Opinion
C. A. 2:20-cv-02249-RBH-MGB
07-12-2021
RHONDA FAYE BANKS, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Rhonda Faye Banks (“Plaintiff”), brought this action 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 Administration regarding her claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 45 years old on her alleged disability onset date, March 2, 2017. (R. at 14, 22.) Plaintiff claims disability due to fibromyalgia, major depression, anxiety, ADD, venuous insufficiency, vertigo, allergic rhinitis, anemia, vitamin D deficiency, and hypertension. (R. at 197.) Plaintiff has at least a high school education and is able to communicate in English. (R. at 22.) Plaintiff has past relevant work as a teacher's aide. (R. at 22.)
Plaintiff does not allege any error by the ALJ specific to her fibromyalgia.
Plaintiff filed an application for DIB on March 31, 2017. (R. at 12.) Her application was denied initially and on reconsideration. (R. at 12.) After a hearing before an Administrative Law Judge (“ALJ”) on March 12, 2019, the ALJ issued a decision on July 8, 2019, in which the ALJ found that Plaintiff was not disabled. (R. at 12-24.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.
(2) The claimant has not engaged in substantial gainful activity since March 2, 2017, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: obesity; rheumatoid arthritis; depression; anxiety; and degenerative disc disease (20 CFR 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals 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 the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can perform all posturals occasionally; no ladders, ropes, scaffolds or hazards; bilateral upper extremity fine manipulation frequently; simple, routine, repetitive tasks; no contact with public; occasional contact with coworkers and supervisors; simple work related judgments; and infrequent changes in routine and work setting.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on November 3, 1971 and was 45 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (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) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from March 2, 2017, through the date of this decision (20 CFR 404.1520(g).(R. at 12-24.)
APPLICABLE LAW
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). “Disability” is defined in the Act 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 a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff argues that the ALJ's decision is not supported by substantial evidence for the following reasons: (1) the ALJ failed to properly evaluate the opinion evidence; (2) the ALJ failed to consider Plaintiff's impairments in combination and cherry-picked certain evidence; and (3) the ALJ failed to properly evaluate Plaintiff's subjective testimony (Dkt. No. 14.)
The undersigned considers these arguments below.
A. The ALJ's Decision
The ALJ's decision considers whether Plaintiff was disabled from March 2, 2017, the alleged onset date, through the date of the ALJ's decision, July 7, 2019. The ALJ considered Plaintiff's allegations of disability and found that she had the following severe impairments: obesity, rheumatoid arthritis, depression, anxiety, and degenerative disc disease. The ALJ found that the evidence indicated Plaintiff's alleged hypertension and vitamin D deficiency were not severe and that Plaintiff's lupus was not a medically determinable impairment. (R. at 14-15.)
The ALJ followed a special analysis to assess Plaintiff's alleged mental impairment at step two. Specifically, the ALJ rated the degree of functional limitation in four broad categories, known as the “paragraph B” criteria, which include: (1) understanding, remembering, or applying information; (2) interacting with others; (3) maintaining concentration, persistence, or pace; and (4) adapting or managing oneself. 20 C.F.R. § 416.920a(c). The ALJ assessed moderate limitations in all categories. (R. at 16-17.) In assessing these limitations, the ALJ repeatedly mentioned Plaintiff's reported activities of daily living. (R. at 16-17 (“The claimant also stated that she could perform simple maintenance, prepare meals, pay bills, go to doctor's appointments, shop, drive, and read”; “the claimant is also able to get along with others, shop, spend time with friends and family, attend church, and live with others”; “The claimant said that she is also able to drive, prepare meals, watch TV, manage funds, use the internet, and attend church”). The ALJ stated here that her RFC analysis “reflects the degree of limitation” she found in Plaintiff's mental function analysis. (R. at 17.)
The ALJ then found Plaintiff had the RFC to perform light work with additional limitations. (R. at 18.) In assessing Plaintiff's RFC, the ALJ detailed Plaintiff's hearing testimony as follows:
The claimant alleges disability due to Fibromyalgia, Major Depression, Anxiety, Attention Deficit Disorder, Venous Insufficiency, Vertigo, Allergic Rhinitis, Anemia, Vitamin D Deficiency, and Hypertension. (1E/2). At the hearing, the claimant testified that she struggles with getting out of and staying out of bed. She testified that she also struggles with normal activities, like taking a bath and washing dishes. The claimant testified that she cannot lift anything over her head, bend, and stoop, or get on the floor. She noted that she could not pick things up and put them away. The claimant noted that the most she could sit is for 20 minutes due to her back pain, she can walk at most for 15 minutes, but she cannot stand for long, and she has to move around. She noted that she lays in bed a lot. She noted that her depression also affects her ability to work. She noted that she cannot be in large crowds, which she noted was more or less 10 to 15 people, especially if they get
closer to her. She noted that she will get anxious if people get too close to her. (Hearing Testimony).(R. at 18.) The ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. at 18.)
The ALJ considered the medical evidence pertaining to Plaintiff's obesity, degenerative disc disease, rheumatoid arthritis, and Plaintiff's mental impairments. (R. at 19-20.) She found that the objective medical evidence supported the limitations assessed in Plaintiff's RFC. (R. at 19-20.) She further noted here that
The claimant's overall allegations of disability during the period at issue are also undermined by her continued engagement in a large number of activities of daily living, many of which are inconsistent with disability. At the hearing, the claimant testified that she is able to do simple maintenance and is able to spend time and live with others. (Hearing Testimony). It was further noted in the third-party function report completed by the claimant's mother, that the claimant reads and is able to prepare for Sunday school lessons. (7E/9). The claimant also noted in her function report that she is able to walk, shop, and attend church. It was further noted in the record that the claimant is able to spend time with friends for lunch or dinner, and talks to her friends very frequently. (8F/3).(R. at 20.)
The ALJ then considered the opinion evidence in the record, including those of Plaintiff's treating physicians, Dr. Marcella Young and Dr. Stephanie Phillips, and Plaintiff's treating psychiatrist, Dr. Shane Sherbondy. (R. at 21-22.) The ALJ found these opinions were unpersuasive and offered the following analysis:
The undersigned considered the opinions of Dr. Marcella Young at Exhibit 22F and Dr. Stephanie Phillips at Exhibit 14F, and finds them unpersuasive, as these opinions are largely unsupported by an examination of the claimant. For example, Dr. Young opined that the claimant is limited to the sedentary exertional level, which is unsupported by the claimant's evidence noting that the claimant still had generally normal physical examination findings. (4F-7F generally). Moreover, this opinion is generally inconsistent with the claimant's longitudinal evidence of
record, for example, the claimant noted that despite her conditions she was able to drive, shop, prepare meals, and perform simple maintenance.
The undersigned considered the opinions of Dr. Shane Sherbondy at Exhibit 16F, and finds them unpersuasive as these opinions are largely unsupported by an examination of the claimant. For example, Dr. Sherbondy opined that the claimant is would [sic] miss more than 3 days a month due to her impairments, which is unsupported by the claimant's evidence noting that the claimant still had generally normal mental status examination findings. (11F, 18F, 19F and 12F generally; 19F/21). Moreover, this opinion is generally inconsistent with the claimant's longitudinal evidence of record, for example, the claimant noted that despite her conditions she was able to drive, shop, prepare meals, and perform simple maintenance, as well as live with others, and spend time with others including attend church. (6E; 7E; Hearing Testimony).(R. at 22.) The ALJ also considered the opinions of the State Agency psychological and medical consultants, and a consultative examiner. (R. at 21.) She found certain opinions offered by the State Agency psychological consultants and the consultative examiner were persuasive. (R. at 21.)
The ALJ concluded that “[t]he above residual functional capacity assessment is supported by the claimant's medical evidence of record and daily activities.” (R. at 22.) After considering Plaintiff's RFC and the vocational expert's testimony, the ALJ found that the claimant can perform work that exists in significant numbers in the national economy. (R. at 23.) The ALJ therefore concluded that Plaintiff is not disabled. (R. at 24.)
B. Consideration of Opinion Evidence
Plaintiff first argues the ALJ erred in failing to evaluate the medical opinions of her treating physicians, Dr. Young and Dr. Phillips, and her treating psychiatrist, Dr. Sherbondy. (Dkt. No. 14 at 12-17.) For benefits applications filed on or after March 27, 2017 (such as Plaintiff's), the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or give special deference to treating source opinions. 20 C.F.R. § 404.1520c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical opinions using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. § 404.1520c(c). The first two factors, supportability and consistency, are the most important in determining the persuasiveness of a medical source's opinion, and the ALJ is not required to explain the consideration of the other three factors. 20 C.F.R. § 404.1520c(b)(2). The new regulations further deem certain evidence “inherently neither valuable nor persuasive.” 20 C.F.R. § 404.1520b(c). This includes statements on issues reserved to the Commissioner such as whether a claimant is disabled, is unable to work, or is incapable of doing past relevant work. 20 C.F.R. § 404.1520b(c)(3).
20 C.F.R. § 404.1520c has replaced the “Treating Physician Rule” for claims filed after March 27, 2017. See 20 C.F.R. § 416.920c; see also Marshall v. Berryhill, No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the Treating Physician Rule, a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” Arakas, 983 F.3d at 107 (emphasis in original).
The new regulations define a “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions” in the abilities to perform the physical, mental, or other demands of work activity or to adapt to environmental conditions. 20 C.F.R. § 404.1513(a)(2). Those regulations also define a “prior administrative medical finding” as a “finding, other than the ultimate determination about whether [a claimant is] disabled, about a medical issue made by [the SSA's] Federal and State agency medical and psychological consultants at a prior level of review.” 20 C.F.R. § 404.1513(a)(5).
As discussed above, the ALJ found the opinions of Plaintiff's treating physicians and treating psychiatrist were unpersuasive. In support of this assessment, she found that Plaintiff's “generally normal physical examination findings” contradicted Dr. Young's opinion that Plaintiff “is limited to the sedentary exertional level.” (R. at 22.) She further found Dr. Young's opinion was inconsistent with Plaintiff's reports that “she was able to drive, shop, prepare meals, and perform simple maintenance.” (R. at 22.) As for Dr. Sherbondy, the ALJ found her opinion that Plaintiff “would miss more than 3 days a month due to her impairments” was unsupported by Plaintiff's “generally normal mental status examination findings.” (R. at 22.) The ALJ further found Dr. Sherbondy's opinion was inconsistent with Plaintiff's report that “despite her conditions she was able to drive, shop, prepare meals, and perform simple maintenance, as well as live with others, and spend time with others including attend church.” (R. at 22.) Notably, other than finding Dr. Phillips' opinion “unpersuasive, ” the ALJ offered no discussion of Dr. Phillips' opinion.
Plaintiff argues that the ALJ's above assessment lacks the support of substantial evidence because, inter alia, (1) the ALJ did not evaluate Dr. Phillips' opinion in accordance with the regulations; and (2) the ALJ found the opinions were inconsistent with Plaintiff's ability to perform daily activities without sufficient explanation. The Commissioner responds that the regulations do not require any discussion of Dr. Phillips' opinion because Dr. Phillips issued her opinion “for the purpose of Plaintiff receiving State of South Carolina Long-Term Disability Benefits.” (Dkt. No. 15 at 15.) According to the Commissioner, “any opinion rendered for the purpose of obtaining disability by another government agency (or nongovernmental entity) is of no probative value.” (Id. at 16.) The Commissioner further asserts that the ALJ “considered the relevant factors of supportability and consistency with respect to the medical opinions.” (Id. at 14.)
1. Dr. Phillips' Opinion
20 C.F.R. § 404.1520b(c) provides that decisions by other agencies, findings made by a State agency disability examiner at a previous level of adjudication, and statements on issues reserved to the Commissioner are evidence that is inherently neither valuable nor persuasive, so the ALJ is not required to consider such evidence. As argued by Plaintiff, Dr. Phillips's opinion does not entirely fall under any of these three categories such that the ALJ can ignore her opinion. (Dkt. No. 18 at 5.) Dr. Phillips treated Plaintiff as her primary care physician from March 4, 2016 through April 13, 2017 (R. at 341-78), and from June 23, 2017 through December 4, 2017 (589- 610). On March 21, 2017, Dr. Phillips completed a review of Plaintiff's physical RFC for the State of South Carolina Long-Term Disability Benefits. (R. at 633-35.) Dr. Phillips opined, inter alia, that due to Plaintiff's fibromyalgia and chronic pain, Plaintiff could sit only 2 hours in an 8-hour workday and could only sit for 30 minutes at a time. (R. at 633, 635.) She further opined Plaintiff could only walk/stand for a total of 6 hours in a workday and could only walk/stand for 1 hour at a time. (R. at 635.) She opined that Plaintiff “would not be able to return to her current position” and was “completely unable to work.” (R. at 633, 635.)
Here, the Commissioner is correct that the ALJ did not need to consider Dr. Phillips' opinion that Plaintiff was unable to return to work, as this is an issue reserved to the Commissioner. 20 C.F.R. § 404.1520b(c)(3). However, the remainder of Dr. Phillips' physician statement constituted a medical opinion, which the ALJ was required to consider. 20 C.F.R. § 404.1520c; see also § 404.1527 (“Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.”). The ALJ's failure to discuss the consistency and supportability of Dr. Phillips' opinion constitutes reversible error. 20 C.F.R. § 404.1520c(b)(2); see Rivera v. Saul, No. 5:19-CV-390-D, 2020 WL 4723170, at *5 (E.D. N.C. June 25, 2020) (remanding “for the ALJ to evaluate the persuasiveness of” certain medical opinions; finding opinion at issue only partially consisted of a conclusion on an issue reserved to the Commissioner), adopted by, 2020 WL 4718382 (E.D. N.C. Aug. 12, 2020).
2. Consideration of Activities of Daily Living
As discussed above, the ALJ found the opinions of Dr. Young and Dr. Sherbondy unpersuasive largely because they conflicted with Plaintiff's activities of daily living. (R. at 22.) The Fourth Circuit recently found that “[a] claimant's inability to sustain full-time work due to pain and other symptoms is often consistent with her ability to carry out daily activities.” Arakas, 983 F.3d at 101. Accordingly, “[a]n ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them.” Woods, 888 F.3d at 694 (citing Brown, 873 F.3d at 263).
In her decision, the ALJ failed to consider the extent Plaintiff could perform her activities of daily living. As discussed above, the ALJ found Dr. Young's opinion that Plaintiff was limited to a sedentary exertional level was inconsistent with Plaintiff's reports that “she was able to drive, shop, prepare meals, and perform simple maintenance.” (R. at 22.) The ALJ further found Dr. Sherbondy's opinion that Plaintiff “would miss more than 3 days a month due to her impairments” was inconsistent with Plaintiff's report that “despite her conditions she was able to drive, shop, prepare meals, and perform simple maintenance, as well as live with others, and spend time with others including attend church.” (R. at 22.)
As an initial matter, the ALJ never clarified what “simple maintenance” Plaintiff could perform, and her hearing testimony is not clear on this issue. (R. at 20 (“At the hearing, the claimant testified that she is able to do simple maintenance . . . .”).) Further, in her function report, Plaintiff specified that it takes her “1-2 hours” to make “simple meals, ” which she only does “weekly.” (R. at 234.) Plaintiff stated that she shopped “maybe every 2 weeks” for “1-2 hours.” (R. at 235.) The ALJ did not recognize these limitations when discussing Plaintiff's ability to shop and prepare meals and it is not clear, without further explanation by the ALJ, that her ability to do these activities in a limited fashion is inconsistent with the opinions of Dr. Young and Dr. Sherbondy. Further, the fact that Plaintiff lives with others and spends time with other churchgoers does not necessarily mean that she can work at the RFC assessed by the ALJ.
Based on the foregoing, the undersigned cannot find that the ALJ's assessment of the opinion evidence is supported by substantial evidence. The ALJ must consider the extent to which Plaintiff can perform her activities of daily living so that it is clear why she finds they are inconsistent with the opinion evidence at issue. The ALJ's failure to do so here warrants remand for proper consideration of the consistency and supportability of the opinions of Dr. Young, Dr. Sherbondy, and Dr. Phillips. See, e.g., Penny M. v. Saul, No. 3:20-CV-00012, 2021 WL 2349299, at *7 (W.D. Va. June 8, 2021) (finding the ALJ erred in rejecting opinion evidence because claimant's “'limited' daily activities ‘suggest[ed] she could work on a full time basis'”; finding the activities highlighted by the ALJ “fully accommodate” the opinion evidence at issue), adopted by, 2021 WL 2582579 (W.D. Va. June 23, 2021); Brenda T. v. Saul, No. CV TMD 19-3617, 2021 WL 1060362, at *5 (D. Md. Mar. 19, 2021) (“The ALJ should explain on remand how Plaintiff's activities show that she could persist through an eight-hour workday and sustain a full-time job.”); Cantrell v. Saul, No. 2:20-CV-00467, 2021 WL 1305384, at *12 (S.D. W.Va. Mar. 19, 2021) (“In short, though the ALJ acknowledged Claimant's daily activities, there is a deficiency in the assessment as to the extent Claimant was able to perform them, and how this translates into the conclusion that Claimant remained capable of substantial gainful activity.”), adopted by, 2021 WL 1299203 (S.D. W.Va. Apr. 7, 2021); Billy H. v. Saul, No. 7:18-CV-0171, 2019 WL 4783116, at *9 (W.D. Va. Sept. 30, 2019) (“the ALJ's reliance on Billy's daily activities is not substantial evidence on which to discredit his subjective allegations”; “the fact that Billy is comfortable at home and around family is not substantial evidence that his panic attacks are not disabling, or that he can otherwise work a full workday or workweek”).
C. Remaining Allegations
As mentioned above, Plaintiff also argues that remand is necessary because: (1) the ALJ failed to consider Plaintiffs impairments in combination and cherry-picked certain evidence; and (2) the ALJ failed to properly evaluate Plaintiffs subjective testimony. (Dkt. No. 14.) The undersigned does not address these remaining allegations of error, as they may be rendered moot on remand. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). The undersigned notes, however, that the ALJ's further consideration of Plaintiffs activities of daily living may impact Plaintiffs RFC assessment and the ALJ's analysis of Plaintiffs subjective testimony. As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration Plaintiff s remaining allegations of error.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
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 835
Charleston, South Carolina 29402
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).