Opinion
C/A No. 2:18-cv-01454-MGL-MGB
07-16-2019
JUANITA FLUDD, substitute claimant for Angie Bowman, deceased, Plaintiff, v. ANDREW SAUL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). Angie Bowman ("Bowman") brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the "Administration") regarding her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Bowman was 46 years old on her alleged disability onset date of May 15, 2014. (R. at 14, 26, 66, 78, 143.) Bowman alleged disability due to, inter alia, lupus; rheumatoid arthritis; edema; chronic anemia; chronic Vitamin C deficiency; and muscle spasms. (Id. at 66-67, 78, 193.) Bowman has past relevant work as a forklift operator, bakery worker, and short order cook. (Id. at 26, 61-63.)
Bowman filed an application for DIB on October 27, 2014, and an application for SSI on December 9, 2014. (Id. at 17; Dkt. No 16 at 1-2.) Her claims were denied initially on March 9, 2015, and on reconsideration on July 17, 2015. (R. at 17, 93, 99.) After a hearing before the Administrative Law Judge ("ALJ") on May 1, 2017, (id. at 33-65), the ALJ issued a decision on July 20, 2017, and found that Bowman was not disabled (id. at 17-27).
Bowman died in her home on August 8, 2017. (Id. at 9.) On November 20, 2017, Bowman's daughter, Juanita Fludd (hereinafter referred to as "Plaintiff" or "Fludd"), was substituted as a party to her mother's claims and, on May 29, 2018, proceeded with this appeal of the ALJ's decision. (Id. at 10; Dkt. No. 1.) The Appeals Council denied Plaintiff's request for review of the DIB claim, (R. at 5-7), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
Bowman's death certificate lists the following causes of death: coronary insufficiency, heart disease, and lupus. (R. at 9.)
The Appeals Council addressed the request for review of the DIB claim on the merits, finding that Plaintiff did not provide an adequate basis for changing the ALJ's decision. (R. at 5-7.) The Appeals Council addressed Plaintiff's request for review of the SSI claim in a separate order, explaining that there must be a "qualified person" to continue the action following the death of a claimant in order to proceed with review of an SSI claim. (See id. at 3-4, referencing 20 C.F.R. § 416.1471(b).) The Appeals Council found that Fludd did not meet the criteria of a "qualified person" for purposes of an SSI claim and, consequently, denied the request for review pursuant to 20 C.F.R. § 416.1471(b). (Id. at 1-3.) Plaintiff does not appear to challenge the Appeals Council's decision regarding the SSI claim. (Dkt. No. 16 at 1 n.1.) Accordingly, this Report and Recommendation applies to Plaintiff's DIB claim only.
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the decision:
(1) The claimant meets the insured status requirements of the Social Security Act through March 31, 2019.
(2) The claimant has not engaged in substantial gainful activity since May 15, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: lupus, rheumatoid arthritis, and carpal tunnel syndrome (20 CFR 404.1520(c) and 416.920(c)).(Id. at 19-27.)
(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, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following additional limitations: No kneeling, crawling, or climbing ladders, ropes, or scaffolds; no exposure to unprotected heights or dangerous machinery; occasional balancing, stooping, crouching, or climbing ramps or stairs; and frequent handling or fingering, bilaterally.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on December 20, 1967, and was 46 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(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 significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from May 15, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
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. See 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 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 her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to her past relevant work, the burden shifts to the Commissioner to show that the claimant—considering her age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 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) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (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]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff contends that the ALJ erred in failing to properly evaluate several aspects of her disability claim. First, Plaintiff argues that the ALJ erred in failing to identify and consider the relevant listing criteria under Listing 14.02 when evaluating Plaintiff's impairments at Step Three of the sequential analysis. (Dkt. No. 16 at 10-12.) Second, Plaintiff contends that the ALJ committed reversible error because he ignored and discounted record evidence supporting Plaintiff's subjective complaints of pain and fatigue in determining her residual function capacity ("RFC"). (Id. at 12-17.)
Upon review of the parties' arguments, the decision, and the record as a whole, the undersigned finds that there is adequate evidence in the record to, at the very least, raise a question as to whether Plaintiff qualified as "disabled" under Listing 14.02. However, the ALJ's total failure at Step Three to identify and consider the listing criteria in relation to the record evidence of Plaintiff's impairments precludes the Court from determining whether the ALJ's decision is supported by substantial evidence. Thus, as set forth in greater detail below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
I. ALJ's Failure to Properly Identify and Consider Relevant Listing Criteria
When a claimant's impairment or combination of impairments meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is deemed disabled and no further analysis is required. See 20 C.F.R. § 404.1520(a)(4)(iii). To determine whether a claimant's impairments meet or equal a listed impairment at Step Three of the sequential analysis, the ALJ must identify the relevant listed impairments and compare the listing criteria with the evidence of the claimant's symptoms. See Peck v. Colvin, No. 8:12-CV-02594- DCN, 2014 WL 994925, at *12 (D.S.C. Mar. 13, 2014) (stating that without identifying the relevant listings and comparing the claimant's symptoms to the listing criteria, it is simply impossible to tell whether there was substantial evidence to support the determination). "In cases where there is 'ample factual support in the record' for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing." See id. (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)).
As stated above, the relevant listing at issue before this Court is Listing 14.02. Indeed, during the hearing on May 1, 2017, the ALJ suggested that Listing 14.02 may apply to Plaintiff's lupus and, in fact, is one of the "easier listings to meet." (Dkt. No. 16 at 11, referencing R. at 37.) Despite making this comment during the hearing and concluding at Step Two that Plaintiff's lupus constituted a severe impairment, the ALJ's analysis at Step Three did not discuss Listing 14.02. Rather, the ALJ stated only that,
As shown in Finding 5, the claimant does not have an impairment or a combination of impairments which meets or equals any section of the Listing of Impairments. I have carefully considered the criteria of the Listings applicable to the claimant's impairments and find she does not have an impairment or combination of impairments meeting or equaling the criteria of the appropriate Listings.(R. at 20.)
Plaintiff contends that the ALJ's abbreviated analysis is reversible error because the ALJ failed to identify which listing(s) he considered at Step Three of his decision and provided no analysis as to how he compared the criteria under Listing 14.02 to the record evidence of Plaintiff's impairments, if at all. (Dkt. No. 16 at 11-12.) In response, the Commissioner argues that "it is Plaintiff's burden to prove disability at step three," and that Plaintiff failed to do so. (Dkt. No. 18 at 8.) In support of this argument, the Commissioner notes that two state agency physicians reviewed Plaintiff's claims and opined that Plaintiff's impairment(s) "did not rise to the listing-level severity" of Listing 14.00. (Id.)
Listing 14.02 of the Administration's Listing of Impairments addresses systemic lupus erythematosus ("SLE"), which is defined as follows:
a. General. Systemic lupus erythematosus (SLE) is a chronic inflammatory disease that can affect any organ or body system. It is frequently, but not always, accompanied by constitutional symptoms or signs (severe fatigue, fever, malaise, involuntary weight loss). Major organ or body system involvement can include: Respiratory (pleuritis, pneumonitis), cardiovascular (endocarditis, myocarditis, pericarditis, vasculitis), renal (glomerulonephritis), hematologic (anemia, leukopenia, thrombocytopenia), skin (photosensitivity), neurologic (seizures), mental (anxiety, fluctuating cognition ("lupus fog"), mood disorders, organic brain syndrome, psychosis), or immune system disorders (inflammatory arthritis). Immunologically, there is an array of circulating serum auto-antibodies and pro- and anti-coagulant proteins that may occur in a highly variable pattern.20 C.F.R. Pt. 404, Subpt. P, App'x. 1, § 14.00(D)(1)(a)-(b). In order to establish disability under Listing 14.02, the claimant must show:
b. Documentation of SLE. Generally, but not always, the medical evidence will show that your SLE satisfies the criteria in the current "Criteria for the Classification of Systemic Lupus Erythematosus" by the American College of Rheumatology found in the most recent edition of the Primer on the Rheumatic Diseases published by the Arthritis Foundation.
A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).
OR
B. Repeated manifestations of SLE, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.Id. § 1402(A)-(B).
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.
Here, Plaintiff claims that the record demonstrates that her impairments, at the very least, equal the severity of Listing 14.02. Specifically, Plaintiff claims that her medical records indicate "persistent fatigue and malaise," as well as "marked limitations in both concentration and persistence, as well as social functioning." (Dkt. No. 16 at 11-12.) The undersigned agrees. As evidenced by the record before the Court, Plaintiff frequently complained of fatigue and interference with sleep. (R. at 269, 274, 276, 281-82, 292, 359, 368, 385, 399, 414, 453, 465, 530, 538, 547, 555, 566, 573.) Plaintiff also repeatedly complained of malaise, including body aches, pain, swelling, and other forms of discomfort. (Id. at 267, 291, 293, 359, 368, 383, 397, 409, 414, 417, 462, 465, 468, 472, 495, 501, 555, 561.) Moreover, with regard to organ or body system involvement, the medical record reveals evidence of ongoing skin, joint, and neurological problems. Specifically, the record indicates that Plaintiff suffered from rashes, psoriasis, hyperpigmentation, and hair loss (id. at 385, 397, 462-63, 472, 528, 530, 534, 536, 545, 547, 555, 564, 571); joint pain, swelling, stiffness and tenderness, and other degenerative changes (id. at 281, 291, 293, 359, 383, 409, 416-17, 420, 462-63, 495, 497, 501, 534, 542, 555, 564); and numbness and tingling sensations (id. at 281, 429, 468, 470). As discussed above, the ALJ also determined that Plaintiff suffered from rheumatoid arthritis and carpal tunnel syndrome. (Id. at 20.)
While the ALJ acknowledged some of the aforementioned evidence in his discussion of Plaintiff's subjective complaints and her RFC, the Court finds that the ALJ failed to offer any explanation as to how this evidence informed any portion of his decision regarding the relevant listing criteria. See Emming v. Astrue, No. 8:09-CV-2027-RMG-BHH, 2010 WL 4340259, at *4 (D.S.C. Oct. 26, 2010) (noting that remand is appropriate where the ALJ fails to mention or analyze the relevant listing, and evidence clearly generates an issue as to that listing or raises the question of equivalence); see also Watson v. Comm'r of Soc. Sec. Admin., No. 8:14-CV-01310-TLW, 2015 WL 4192612, at *16 (D.S.C. July 9, 2015) (noting that while it is within the purview of the ALJ to weigh the evidence, the ALJ must provide an explanation of how he came to his conclusion, otherwise proper judicial review may not occur); cf. Robinson v. Astrue, No. 2:10-185-DCN, 2011 WL 4368396, at *4 (D.S.C. Sept. 19, 2011) (finding the ALJ's error at Step Three harmless because, read as a whole, the ALJ's decision discussed the evidence relating to plaintiff's rheumatoid arthritis and established that the appropriate factors were considered in finding that plaintiff's impairment did not equal the requirements of listing § 14.09).
In fact, the ALJ omitted, and possibly ignored, much of the above evidence in analyzing Plaintiff's RFC and reaching his ultimate conclusion on disability. For example, the ALJ found that Plaintiff's medications "significantly controlled" her impairments and provided "substantial" symptom relief (R. at 24); the ALJ's decision does not, however, reconcile these findings with the evidence cited above, which reveals a period of at least eight (8) months during which Plaintiff was compliant with her medications and yet, even after increasing the dosages, continued to suffer from her symptoms. (See id. at 536-63 for medical records from June 2015 through February 2016, during which clinical examinations remained unchanged despite medication compliance; see also id. at 22.) The ALJ also discounted Plaintiff's subjective complaints of sleepiness, finding that the record contained no evidence that Plaintiff's medications caused drowsiness. (Id. at 24.) The ALJ failed, however, to account for Plaintiff's repeated complaints of fatigue and interrupted sleep. (See id. at 269, 274, 276, 281-82, 292, 359, 368, 385, 399, 414, 453, 465, 530, 538, 547, 555, 566, 573.) See Peck, 2014 WL 994925, at *13 (referencing Hays v. Sullivan, 907 F.2d 1453, 1456 (1990), stating that, "[i]t is the duty of the ALJ to resolve conflicts in the evidence of record" and, without a discussion of the conflicting evidence, it is difficult for the reviewing court to track the ALJ's reasoning). Although Defendant points to the state agency consultants' opinions as support for the ALJ's conclusion at Step Three, the undersigned notes that the state agency consultants reviewed Plaintiff's impairments in the context of Listing 14.06, rather than 14.02. (R. at 71, 84.) Moreover, as Plaintiff correctly notes, any such arguments are improper post hoc rationalizations. See Amiker v. Colvin, No. 6:12-CV-2886, 2013 WL 6193331, at *9 (D.S.C. Nov. 26, 2013) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ.") (internal citations omitted).
Additionally, the ALJ's evaluation fails to consider the impact of Plaintiff's lupus in combination with evidence of her other severe impairments. Indeed,
even where a claimant does not meet each of the requirements for a listing, an applicant with multiple impairments may satisfy the requirements of a Listing where the claimant's other impairments are in combination the medical equivalent
of the criteria of the listed impairment. Thus, although a claimant's impairment, standing alone, may not satisfy a Listing, the combined effect of multiple impairments may meet the requirements for a Listing. . . . The Fourth Circuit has been particularly concerned with the Commissioner's denial of disability by "fragmentizing" multiple impairments, rather than considering and explaining the combined effects [of] such impairments.See Holback v. Colvin, No. 9:12-CV-2989-RMG, 2013 WL 6834603, at *5 (D.S.C. Dec. 23, 2013) (referencing Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)). Indeed, during the hearing before the ALJ, Plaintiff's counsel argued that, to the extent Plaintiff's lupus did not satisfy the criteria under Listing 14.02 singularly, the combination of her impairments likely equaled the severity of the listing. (R. at 37-38.) The ALJ's decision, however, does not consider Plaintiff's lupus in combination with her other severe impairments at Step Three of the sequential analysis. See Holback, 2013 WL 6834603, at *5 (remanding case where ALJ's 1.04 Listing analysis did not consider effects of the plaintiff's chronic knee pain in combination with his spinal impairment).
The ALJ's conclusory finding at Step Three and failure to analyze the aforementioned record evidence in the context of Listing 14.02 precludes meaningful judicial review of this issue. Indeed, without further explanation as to how the ALJ considered the evidence above in the context of Listing 14.02—if at all—or how he reconciled such evidence with his ultimate conclusion, the Court simply cannot determine whether the ALJ's decision was supported by substantial evidence. See, e.g., Alexander v. Astrue, No. 8:10-CV-1327-RMG, 2011 WL 2363001, at *2 (D.S.C. June 9, 2011) (remanding where ALJ found plaintiff's fibromyalgia to be a severe impairment, but failed to discuss the fibromyalgia in concluding that plaintiff's impairments, singularly or in combination, failed to equal a listed impairment); Johnson ex rel. J.J.G. v. Colvin, No. 6:12-CV-01139-RBH, 2013 WL 5309239, at *5 (D.S.C. Sept. 17, 2013) (remanding because ALJ failed to articulate basis for finding that claimant's impairments did not meet or medically equal the relevant listing, which prevented the court from adequately reviewing the ALJ's full analysis on appeal). The undersigned therefore recommends that this case be remanded for further consideration of Listing 14.02, and any other relevant listings, at Step Three of the sequential analysis.
II. Remaining Allegations of Error
The undersigned finds that the ALJ's failure to identify and compare the specific listing criteria under Listing 14.02 to Plaintiff's impairments is a sufficient basis on which to remand the case to the Commissioner for further explanation of his determination at Step Three. Given that Plaintiff's remaining issues may be rendered moot on remand, the undersigned declines to specifically address Plaintiff's additional allegations of error. See 20 C.F.R. §§ 404.1520(a)(4)(iii) and 416.920(a)(4)(iii) (noting that when a claimant's impairment meets one of the listed impairments, the claimant is deemed disabled and no further analysis is required). However, upon remand, the Commissioner should 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 and that the case be REMANDED for further proceedings consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 16, 2019 Charleston, South Carolina
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).