Opinion
Civil Action No.: 4:19-cv-00846-MGL-TER
06-25-2020
RANSON R. ANDERSON, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application for DIB on December 8, 2015, alleging inability to work since September 27, 2014. (Tr. 14). His claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on February 8, 2018, at which time Plaintiff and a VE testified. (Tr. 14). The Administrative Law Judge (ALJ) issued an unfavorable decision on June 20, 2018, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 14-22). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on February 22, 2019, making the ALJ's decision the Commissioner's final decision. (Tr. 1-3). Plaintiff filed this action on March 20, 2019. (ECF No. 1).
B. Plaintiff's Background and Medical History
Plaintiff was born on April 2, 1967, and was forty-eight years old on the date last insured(DLI). (Tr. 20). Plaintiff alleges disability initially due to sciatic nerve pain, leg pain, right knee pain, diabetes, high blood pressure, high cholesterol, gout, acid reflux, depression, and anxiety. (Tr. 67). Plaintiff had past relevant work experience as a truck driver, auto inspector, and production assembler. (Tr. 20). Records pertinent to the issue upon which the court's recommendation of remand is based are summarized below under the relevant issue heading.
2. The ALJ's Decision
In the decision of June 20, 2018, the ALJ made the following findings of fact and conclusions of law (Tr. 14-22):
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2015.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of September 27, 2014 through his date last insured of December 31, 2015 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease, osteoarthritis of the right knee, and obesity (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant can never climb ladder, ropes, or scaffolds; occasionally climb ramps aud stairs, balance, stoop, kneel, crouch, and crawl; and frequently handle and finger. He can have frequent exposure to workplace hazards.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on April 2, 1967 and was 48 years old, which is defined as a younger individual age 45-49, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from September 27, 2014, the alleged onset date, through December 31, 2015, the date last insured (20 CFR 404.1520(g)).
II. DISCUSSION
Plaintiff argues the ALJ erred in finding mental impairments non-severe. Defendant argues the ALJ properly concluded based on the evidence that the alleged mental impairments resulted in no RFC limitations. Plaintiff argues the ALJ failed to consider the combined effect of impairments. Defendant argues the ALJ considered combined effects of all impairments throughout subsequent steps.
Plaintiff argues the ALJ erred in evaluating Dr. Burnette's opinion because the ALJ made a mistake of fact when summarizing what Dr. Burnette opined. Plaintiff argues the opinion is that Plaintiff could sit for a total of 4 hours and stand or walk for a total of two hours, not supporting an 8-hour workday. Defendant argues the RFC is the ALJ's final and reserved responsibility and an opinion is not entitled to special deference. Defendant argues the ALJ made a supported assessment of Plaintiff's RFC based on the record. Defendant argues the opinion states Plaintiff could stand/walk two hours each in a work-day.
A. LEGAL FRAMEWORK
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as: the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity ("SGA"); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [ ] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. ANALYSIS
Mental Impairments as Non-severe/ Combination of Impairments
Plaintiff argues the ALJ erred in finding mental impairments non-severe. Defendant argues the ALJ properly concluded based on the evidence that the alleged mental impairments resulted in no RFC limitations. Plaintiff argues the ALJ failed to consider the combined effect of impairments. Defendant argues the ALJ considered combined effects of all impairments throughout subsequent steps.
When a claimant has more than one impairment, the Commissioner "must consider the combined effect of a claimant's impairments and not fragmentize them." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)(citations omitted). The ALJ is required to "adequately explain his or her evaluation of the combined effects of the impairments." Id. This court must uphold the Commissioner's decision as long as it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Regulations require that an ALJ "consider the limiting effects of all [the claimant's] impairment(s), even those that are not severe," in determining the claimant's RFC. 20 C.F.R. § 416.945(e); see also SSR 96-8p ("In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not 'severe.' ").
The ALJ, in the paragraph B analysis, found no limits in all four categories:
The claimant's medically determinable mental impairment of depression did not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and was therefore nonsevere. His pain management records show him reporting increased depression in relation to pain and dysfunction (Exhibit B1F). However, the medical evidence of record does not show that the claimant received any mental health treatment.
In making this finding, the undersigned has considered the four broad areas of mental functioning set out in the disability regulations for evaluating mental disorders and in the Listing of lmpairments (20 CFR, Part 404, Subpart P, Appendix 1). These four areas of mental functioning are known as the "paragraph B" criteria.(Tr. 17).
The first functional area is understanding, remembering, or applying information. In this area, the claimant had no limitation. The claimant reported that he could pay bills, count change, handle a savings account, and use a checkbook and money orders (Exhibit B4E).
The next functional area is interacting with others. In this area, the claimant had no limitation. The claimant reported that people came by to visit him, and he went to visit people. He also talked on the phone and went to church regularly (Exhibit B4E).
The third functional area is concentrating, persisting, or maintaining pace. In this area, the claimant had no limitation. He reported that he watched television and read all day, and he also played checkers (Exhibit B4E).
The fourth functional area is adapting or managing oneself. In this area, the claimant had no limitation. The claimant testified that he was able to shower and take care of his personal needs, as well as prepare meals for himself. He said that he was doing grocery shopping, but no chores.
Because the claimant's medically determinable mental impairment caused no more than "mild" limitation in any of the functional areas, it was nonsevere (20 CFR 404.1520a(d)(1)).
Of note, the four paragraph B criteria are not an RFC assessment and a mental RFC assessment at Steps Four and Five requires a more detailed assessment by itemizing various functions contained in the broad paragraph B categories. SSR 96-8p, 1996 WL 374184 at *4. Further, even a non-severe impairment may prevent PRW or narrow the range of other work an individual may still be able to do; thus, non-severe impairments may be critical to the outcome of a claim. SSR 96-8p, at *5. An adjudicator is solely responsible for assessing a claimant's RFC. 20 C.F.R. § 416.946(c). In making that assessment, he must consider the functional limitations resulting from the claimant's medically determinable impairments. Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. This ruling provides that: "The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." SSR 96-8, *7. "The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." Id. Additionally, " 'a necessary predicate to engaging in a substantial evidence review is a record of the basis for the ALJ's ruling,' including 'a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.' " Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The ALJ considers the evidence in the record as a whole when analyzing Plaintiff's claims, as does this court when reviewing the ALJ's decision. See Craig, 76 F.3d at 595.
The record contains the following, never mentioned by the ALJ or weighed by the ALJ: In August 2016, Dr. Burnette completed a mental RFC assessment. (Tr. 383-85). While most categories indicate not significantly limited, Dr. Burnette opined that Plaintiff was moderately limited in the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance. Dr. Burnette opined Plaintiff was moderately limited in the ability to complete a normal workday and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 383-384).
Further, the record contains treatment notes by Dr. Burnette regarding mental impairments. On October 17, 2014, Plaintiff reported to Dr. Burnette that he had increased depression in relation to pain and dysfunction. (Tr. 284). Upon exam, Plaintiff was a little down. Plaintiff stated he was possibly interested in seeing a psychiatrist and counseling for depression. "I am hoping to get him set up with someone." Cymbalta was prescribed to help with both pain and depression. (Tr. 284). In November 2014, Dr. Burnette noted Plaintiff gets discouraged and depressed and Dr. Burnette had tried to get a referral to a psychiatrist but had not heard back yet for an appointment. Upon exam, Plaintiff appeared a little depressed with slightly restricted range of affect. (Tr. 283). Cymbalta was refilled.
In January 2015, Plaintiff reported to Dr. Burnette that Cymbalta was helping a little bit but Plaintiff wanted counseling, "and there may be other options that his psychiatrist could recommend." (Tr. 282). "In terms of mood, he is feeling frustrated and discouraged. I had tried to get him a referral to Psychiatry, but did not have any luck getting an appointment." Upon exam, Plaintiff's mood appeared stable with slightly restricted range of affect. Cymbalta was refilled. (Tr. 282). In March 2015, Dr. Burnette increased Plaintiff's Cymbalta dosage. "He does have an appointment coming up with Dr. Wiley for depression." (Tr. 280). In May 2015, Dr. Burnette noted Cymbalta may be helping with his depression. (Tr. 279). Assessment was history of anxiety/depression. Dr. Wiley was managing Cymbalta refills now instead of Dr. Burnette. (Tr. 279). In August 2015, Dr. Burnette noted Plaintiff was in fair spirits. (Tr. 311). In November 2015, Plaintiff reported he was not able to get his Cymbalta from Dr. Wiley because of an outstanding bill, so Dr. Burnette prescribed Cymbalta. (Tr. 310). Dr. Burnette suggested increasing Cymbalta to see if it works better for depression and pain. (Tr. 310).
After the DLI, it is noted in November 2016 by Dr. Burnette: "He has been less depressed over time, fortunately. He is still seeing a pastor for counseling and feels it has been helpful." (Tr. 469). By September 2017, well after the DLI, anxiety/depression was listed as stable. (Tr. 441).
It cannot be said here that the ALJ gave reasons and explanation, in accordance with SSR 96-8p, supported by substantial evidence for the RFC determination, where mental impairments, regardless of severity, were not discussed in formulating the RFC and mental limitation opinions by a treating physician were not assigned weight or mentioned by the ALJ.
Considering the record as a whole, the court lacks the ability to determine whether substantial evidence supports the ALJ's decision. As such, remand is required. "Assessing the probative value of competing evidence is quintessentially the role of the fact finder. We cannot undertake it in the first instance." Meyer, 662 F.3d at 707. Proper development of the record as set out above may have a significant impact on the Commissioner's determination of Plaintiff's subjective symptom evaluation, the RFC, and on the availability of work for Plaintiff in the national economy at Step Five. Therefore, this court will not address the remaining steps in the sequential evaluation or Plaintiff's other arguments.
In light of the court's finding that this matter should be remanded for further consideration, the court need not address Plaintiff's remaining issues. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Upon remand, the ALJ should take into consideration all of Plaintiff's remaining allegations of error, including but not limited to Plaintiff's arguments regarding Dr. Burnette's opinion on stand/walk limitations/full workday limitations and consider all of Plaintiff's impairments in combination, and support findings on such with citation to substantial evidence and provide logical explanation from the evidence to the ultimate conclusions. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir, 2015).
III. CONCLUSION
In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. The court cannot, however, conduct a proper review based on the record presented. Accordingly, pursuant to the power of the Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in social security actions under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge June 25, 2020
Florence, South Carolina
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).