Opinion
5:22-CV-165-M
08-22-2023
COURTNEY DAVIS, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-20, -22] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Courtney Davis (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). [DE-1-2] at 2. Both parties submitted memoranda in support of their respective motions. [DE-21, -23]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings [DE-20] be allowed, Defendant's Motion for Judgment on the Pleadings [DE-22] be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and DIB on March 28, 2020, alleging disability beginning June 1, 2018. Transcript of Proceedings (“Tr.”) 125, 256-59. Her claim was denied initially. Tr. 111-25, 153-61. Plaintiff filed a request for reconsideration (Tr. 162), and was denied upon reconsideration on February 11, 2021 (Tr. 126-150, 163-71). On March 9, 2021, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 172-73. A hearing before the ALJ was held on July 22, 2021, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 80-110. On August 11, 2021, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 61-79.
On September 15, 2021, Plaintiff requested a review of the ALJ's decision by the Appeals Council (Tr. 225-28) and submitted additional evidence as part of her request (Tr. 15-60), consisting of treatment records from Monarch from September 1, 2021 through October 5, 2021. The Appeals Council determined that the additional evidence “did not relate to the period at issue” (Tr. 2), and denied Plaintiff's request for review on February 24, 2022. Tr. 1-7. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, “the court must ‘review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'” Felts v. Astrue, No. 1:11-CV-00054, 2012 WL 1836280, at *1 (W.D. Va. May 19, 2012) (quoting Wilkins v. Sec'y, Dep't of Health & Hum. Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 75. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since June 1, 2018, the alleged onset date. Tr. 66.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: a history of an injury to the right knee, left knee, and foot with chronic pain; depressive disorder; and anxiety disorder. Tr. 67. The ALJ also found Plaintiff had the non-severe impairment of an injury to her left elbow. Id. However, at step three, the ALJ concluded these impairments both physical and mental were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in moderate limitation in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and mild limitation in adapting or managing oneself. Tr. 67-68.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with the following limitations:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
she can occasionally lift, carry, push, and pull up to 20 pounds, frequently lift, carry, push, and pull up to 10 pounds as well as sit, stand, and walk about six hours in an eight-hour workday. She can occasionally climb ramps/stairs; balance; crouch; stoop; kneel; and crawl. The claimant can never climb ladders, ropes, or scaffolds. She cannot use foot pedals with her left lower extremity along with no pushing and pulling with her bilateral lower extremities. The claimant can frequently reach
overhead with her left upper extremity. She should avoid concentrated exposure to workplace hazards that include unprotected heights and moving machinery. The claimant is able to perform simple, routine, repetitive tasks involving no more than simple work-related decisions with few workplace changes with reasoning levels of one or two in a low-stress environment. She cannot work at a fixed production rate or pace. The claimant can have occasional contact with supervisors, coworkers, and the public.Tr. 68.
In making this assessment, the ALJ found Plaintiff's statements about her limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 72.
At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of her past relevant work as a teller head or department manager, as actually or generally performed. Tr. 73. Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff is capable of making an adjustment to other work that exists in significant numbers in the national economy. Tr. 73-74.
V. DISCUSSION
In this case, Plaintiff contends that the ALJ “erred [by] failing to properly weigh all of the limitations opined by an examining physician and failed to include limitations in the RFC that are supported by substantial evidence.” Pl.'s Mem. [DE-21] at 4. Specifically, at issue is whether the ALJ's finding that the medical opinion of John Bentley, M.D. (“Dr. Bentley”) was persuasive, precludes the ALJ from providing limitations in Plaintiff's RFC which are less restrictive than those provided in Dr. Bentley's opinion. Plaintiff argues that it does, reasoning that because the ALJ found Dr. Bentley's opinion persuasive, “she should have included all of the limitations set out in his opinion in [the ALJ's] RFC finding.” Pl.'s Mem. [DE-21] at 7.
Except for citations to the Transcript of Proceedings (“Tr.”), all citations to documents using the docket entry number [DE-] provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
Although an ALJ is not required to include every limitation from a medical opinion in an RFC finding merely because that opinion was afforded great weight, see Morgan v. Colvin, No. 5:15-CV-00266-D, 2016 WL 4217822, at *5 (E.D. N.C. July 21, 2016), report and recommendation adopted, No. 5:15-CV-266-D, 2016 WL 4218333 (E.D. N.C. Aug. 9, 2016) (collecting cases), an ALJ must still satisfy the requirement to “explain how any material inconsistencies or ambiguities in the case record were considered and resolved.” SSR 96-8p, 1996 SSR LEXIS 5, *19, 1996 WL 374184, at *7. For the reasons below, the undersigned recommends this case be remanded for further proceedings as the ALJ has failed to provide explanation in the written decision to reconcile certain inconsistences in the evidence relevant to the ALJ's findings.
A. Limitations recommended in Dr. Bentley's opinion
Following a thorough summary of Dr. Bentley's medical opinion, the ALJ found it to be persuasive “because [Dr. Bentley] was able to personally, independently examine the claimant as well as a majority of her medical records in order to determine that she would be capable of light work with postural and manipulative limitations with breaks that could be accommodated during a normal work schedule.” Tr. 72. The ALJ additionally noted that Dr. Bentley “indicated that [Plaintiff] was only temporarily disabled and could certainly return to work with restrictions.” Id.
As noted in Plaintiff's brief (Pl.'s Mem. [DE-21] at 2, 4, 6), the ALJ chose to include some, but not all, of the limitations provided in the opinion. Plaintiff focuses on the differences between the following limitations provided by Dr. Bentley and the corresponding limitations that the ALJ included in the RFC:
The undersigned notes, for clarity, that although the limitations included hi this comparison chart compiled by the court are those upon which Plaintiff's memorandum ([DE-21] at 6) focuses, these are quotations from Dr. Bentley's opinion itself and the RFC. respectively.
| Dr. Bentley's recommended limitations | Corresponding limitations in the RFC |
| She can push/pull up to 10 [pounds] rarely. | [S]he can frequently . . . push[] and pull up to 10 pounds .... |
| She can occasionally lift 10 pounds from ground and waist level. . . [and] can lift 20 [pounds] from waist level occasionally.... | [S]he can occasionally lift . . . up to 20 pounds . . . and frequently lift ... up to 10 pounds .... |
| [T]he claimant can sit for up to 60 minutes with a 5 minute break for up to 8 horns in an 8 horn workday . . . [and] can walk [or stand] for up to 30 minutes with a 5 minute break for up to 4 hours in an 8 horn workday. | [S]he can . . . sit, stand, and walk about six hours in an eight-hour workday, |
| She can climb none. | She can occasionally climb ramps/stairs ... [and] can never climb ladders, ropes, or scaffolds. |
| She can balance rarely .... | She can occasionally ... balance .... |
“It is well-settled that in according significant weight to a medical opinion, an ALJ is not bound to accept or adopt all the limitations set forth therein.” Morgan, 2016 WL 4217822, at *5; see also Godfrey v. Kijakazi, No. 6:20-CV-2504-TMC, 2022 WL 951620, at *5 (D.S.C. Mar. 30, 2022) (citations omitted) (“[T]here is no rule or regulation that simply because the ALJ finds a medical opinion generally persuasive, he must include each and every aspect of the medical opinion hi his RFC assessment.”). “[T]he law does not require the RFC to minor a medical opinion: rather, the ALJ must consider the record as a whole.” Vanderpool v. Berryhill, No. 5:18 CV-44-RJ, 2019 WL 118414, at *4 (E.D. N.C. Jan. 7, 2019).
The court finds, therefore, that the ALJ did not err per se by diverging in the RFC from several of Dr. Bentley's proposed limitations, even though the ALJ found Dr. Bentley's opinion to be persuasive. However, an ALJ must still satisfy the requirement to “explain how any material inconsistencies or ambiguities in the case record were considered and resolved.” SSR 96-8p, 1996 SSR LEXIS 5, *19, 1996 WL 374184, at *7.
B. Substantial evidence for the RFC
“A Social Security claimant's RFC represents ‘the most [he] can still do despite [his] limitations.'” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). In assessing an individual's RFC, an ALJ considers that person's “ability to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R. § 404.1545(a)(4). Further, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 178 (4th Cir. 2016)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “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).” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Indeed, “the ALJ's logical explanation is just as important as the other two [components] . . . and our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas, 916 F.3d at 311 (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). The ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, where a court is “left to guess about how the ALJ arrived at [her] conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
Additionally, “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” McNeill v. Saul, No. 5:20-CV-244-M, 2021 WL 3701348, at *3 (E.D. N.C. June 2, 2021) (alterations in original) (quoting Mascio, 780 F.3d at 636). And while there is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[,]” courts have found remand warranted where the ALJ fails to assess a “contested” function that is “critically relevant to determining [a claimant's] disability status ....” Dowling, 986 F.3d at 388-89 (remanding case where the ALJ failed to evaluate the plaintiff's ability to sit when it was a contested function critical to determining the plaintiff's disability status, and stating that the ALJ should have included “an analysis [of the plaintiff's ability to sit] that was separate from the ALJ's appraisal of [the plaintiff's] ability to perform other functions, and [this analysis] should have been accompanied by ‘a narrative discussion describing' the evidence supporting it”).
Here, Dr. Bentley found that Plaintiff could only rarely push and pull 10 pounds (Tr. 602) (emphasis added), while the ALJ found that Plaintiff could do so frequently (Tr. 68) (emphasis added). Additionally, Dr. Bentley found that Plaintiff could never climb (Tr. 602), while the ALJ found that Plaintiff could occasionally climb stairs and ramps (Tr. 68). The ALJ does not provide any explanation as to how or why she is so significantly diverging from the limitations recommended by Dr. Bentley. In contrast, the ALJ also determined the opinions of Dorothy Linster, M.D. and Lisa Green-Hill, D.O. to be persuasive, however she expressly notes the need for additional manipulative and environmental limitations in the RFC beyond those recommended by these two doctors “due to the combination of [Plaintiff's] impairments.” Tr. 73. It is unclear why the ALJ explains her divergence from one set of medical opinions, but not from another that included more restrictive limitations.
This lack of explanation and analysis frustrates meaningful review by the court, as the court is left to guess at how the ALJ arrived at the RFC based upon the persuasiveness assigned to the opinions in the record. Based on the descriptions by the ALJ, it is impossible to know how she weighed and considered the evidence. See Monroe, 826 F.3d at 190-91 (explaining how an ALJ's general and conclusory assignments of weight precluded meaningful review). It appears from the limitations included in the RFC that the ALJ gave other medical opinions, or perhaps other records, enough weight to discount Dr. Bentley's opinion to some degree. The ALJ does not provide any explanation, however, for why Dr. Bentley's more restrictive limitations were not included -limitations given in a medical opinion that the ALJ found to be persuasive without any noted qualification or exception. The ALJ here fails to “build an accurate and logical bridge from the evidence to [her apparent] conclusion” that Plaintiff did not require more restrictive limitations to account for her severe impairments in the RFC. Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
The court also finds that this was not harmless error, as the inclusion of “frequent” versus “rare” limitations, “occasional” versus “never” limitations, or other limitations could be outcome-determinative. Additional limitations could limit or eliminate the jobs that Plaintiff was found able to do at step five of the sequential evaluation process. The lack of explanation regarding the inconsistencies in the medical opinion evidence also frustrates the courts analysis in this instance.
Specifically, the ALJ does not mention frequently pushing or pulling up to 10 pounds in the hypotheticals she provides to the VE. See Tr. 104-08. While “frequently” “exerting . . . up to 10 pounds of force,” which could include pushing and pulling, is included in the description of light work in the Selected Characteristics of Occupations (“SCO”), a companion title to the Dictionary of Occupational Titles, see U.S. Dep't of Labor, Employment & Training Admin., Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (“DOT”); Appendix C: Physical Demands, 1. (1993), the governing regulations do not specifically discuss the frequent pushing or pulling of 10 pounds in the definition of light work. 20 C.F.R. § 404.1567(b). Accordingly, the court is unable to determine whether the VE considered such a limitation in the jobs she provided and what impact, if any, it may have on the VEs determination of jobs. Neither the ALJ's hypotheticals to the VE (Tr. 104-08), nor the ALJ's discussion in her opinion (Tr. 74), provide any clarification on this point.
The SCO is a supplement to the DOT that lists the specific functional requirements for specific DOT occupations. See Soc. Sec. Ruling 83-14, 1983 WL 31254, at *1 (1983).
While there may indeed be details and explanation that can reconcile the inconsistencies described above upon review, the ALJ does not state any in the written decision. It is not the reviewing court's role to reconcile inconsistencies. Accordingly, the ALJ's lack of explanation and analysis frustrates meaningful review by the court, and the undersigned recommends this case be remanded to the Commissioner for further proceedings. To be clear, the court expresses no opinion as to whether Plaintiff does or does not require additional or different limitations based upon the medical opinions. The court only seeks to ensure that the relevant evidence is considered and that the decision is fully explained, so as to permit meaningful review by the court if necessary. It is, of course, up to the Commissioner to determine what weight to give all evidence.
VI. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-20] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-22] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until September 1, 2023 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections, and in no event later than September 8, 2023, whichever is earlier.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).