Opinion
C/A 6:21-cv-04165-SAL-KFM
08-03-2022
Wanda Holbert, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff 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 denying her claim for disability insurance benefits under Title II of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits (“DIB”) on January 23, 2019, alleging that she became unable to work on June 20, 2016 (Tr. 170-71). The application was denied initially (Tr. 79-88) and on reconsideration (Tr. 89-101) by the Social Security Administration. On March 17, 2020, the plaintiff requested a hearing (Tr. 116-17). On December 11, 2020, an administrative hearing was held during which the plaintiff, represented by counsel, and Michael Smith, an impartial vocational expert, appeared and testified via telephone due to the COVID-19 pandemic before the administrative law judge (“ALJ”) assigned to the case (Tr. 30-78). On May 28, 2021, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 12-29). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on October 27, 2021 (Tr. 1-3). The plaintiff then filed this action for judicial review (doc. 1).
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 31,2021.
(2) The claimant has not engaged in substantial gainful activity since June 20, 2016, the alleged onset date (20 C.F.R. § 404.1571 et seq.).
(3) The claimant has the following severe impairments: inflammatory bowel syndrome, ulcerative colitis, multiple joint pain, obesity, disorders of the spine, disorders of the knees, and fatty liver disease (20 C.F.R. § 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526).
(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 C.F.R. § 404.1567(b) except she can frequently balance, stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to hazards. She can frequently reach and handle. In addition to acceptable and normal breaks during an eight-hour workday, the claimant would be off-task 5% of an eight-hour workday.
(6) The claimant is capable of performing past relevant work as a housekeeper and clerical worker. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. § 404.1565).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from June 20, 2016, through the date of this decision (20 C.F.R. § 404.1520(f)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do 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 12 months.” 20 C.F.R. § 404.1505(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform her past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found disabled or not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing she is unable to return to her past relevant work because of her impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff, who was 47 years old on the alleged disability onset date, seeks disability based upon ulcerative colitis, pain, and fatigue. She has past relevant work experience as a certified nurse's assistant, housekeeper, injection molding machine operator, forklift driver, and clerical worker (Tr. 23-24). The plaintiff argues that the ALJ erred by failing to appropriately explain the residual functional capacity (“RFC”) findings (doc. 7 at 19-26). The Commissioner asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 8 at 10-17).
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, id. § 404.1546(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. § 404.1545(a)(3).
Social Security Ruling (“SSR”) 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, “[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence.” Id. Moreover, “[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Id.
As noted above, in evaluating the plaintiff's case, the ALJ set forth the following RFC assessment:
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 C.F.R. § 404.1567(b) except she can frequently balance, stoop, kneel, crouch and crawl. She should avoid concentrated exposure to hazards. She can frequently reach and handle. In addition to acceptable and normal breaks during an eight-hour workday, the claimant would be off-task 5% of an eight-hour workday.(Tr. 19-20). The RFC was followed by a discussion of the record evidence by the ALJ (Tr. 20-23). Here, the plaintiff argues that the ALJ erred in using cherry-picked evidence to justify that the plaintiff's need for restroom breaks could be accounted for with a 5% off-task limitation and in failing to address the plaintiff's reports of pain and fatigue (doc. 7 at 19-26). The court agrees that the ALJ did not properly consider the plaintiff's need for access to the restroom in the RFC assessment.
Because the undersigned recommends that this matter be remanded based upon the ALJ's consideration of the plaintiff's need to access the restroom, the undersigned will not address the plaintiff's allegations of error regarding pain and fatigue as they can be considered on remand by the ALJ.
Here, the ALJ explained that he assessed an off-task limitation in the plaintiff's RFC, based on his calculation that the plaintiff required only five restroom breaks per day and because some of those breaks would take place during regular break times (Tr. 21-22). As argued by the plaintiff, however, this formula by the ALJ appears to cherry-pick record evidence in determining that the plaintiff would require only five restroom breaks per day. For example, during treatment visits in 2018, the plaintiff reported more than ten bowel movements per day, reporting as many as 17 bowel movements on some occasions (Tr. 271,292, 333). Additionally, although the plaintiff reported only five bowel movements per day on February 11,2019 (the treatment visit relied on by the ALJ), by May 7, 2019, she reported increased rectal bleeding and as many as ten loose bowel movements per day (Tr. 688-89, 740, 781). Likewise, during appointments in 2020, the plaintiff reported more than ten bowel movements per day, noting on July 9, 2020, that she had already had five bowel movements before her morning appointment (Tr. 760, 781). Moreover, the plaintiff's function report indicated that she used the restroom 17 times per day and usually every hour (Tr. 196, 201). Likewise, during the administrative hearing, the plaintiff testified that she typically visits the restroom 17 times per day, but occasionally had only four bowel movements per day (Tr. 50-51). Based on this record evidence, it appears that the ALJ cherry-picked evidence regarding the plaintiff's restroom visits in determining that an off-task limitation would account for her need to use the restroom.
Additionally, as argued by the plaintiff, the ALJ appears to have erred in finding that the plaintiff could change her diet and utilize adult diapers to decrease restroom visits (see Tr. 22). Indeed, although the plaintiff subjectively reported to Joseph Baber, D.O., on May 7, 2019, that situational stressors (including eating greasy foods) had worsened her ulcerative colitis, there is no indication by Dr. Baber that the plaintiff's condition drastically improved if she did not eat greasy foods (see Tr. 781). Indeed, the plaintiff testified that she avoids eating all together when she has to leave the house or attend an important event - but takes extra clothes with her in case she has an accident (Tr. 56-57, 66). Moreover, the ALJ's reference to adult diapers eliminating the need for the plaintiff to use the restroom more is in error - as found by the Court of Appeals for the Fourth Circuit in Dowling v. Commissioner of Social Security Administration, 986 F.3d 377 (4th Cir. 2021). The Fourth Circuit noted that the ALJ in that case erred by finding that the use of pads reduced the need for the claimant in that case to have ready access to the restroom, noting that “[p]ads may keep Appellant's clothes clean and help reduce the potential for embarrassing accidents. However, they do not save Appellant any trips to the bathroom, since the pads need to be changed once they are soiled.” Dowling, 986 F.3d at 389.
As such, although the ALJ is responsible for creating an individual's RFC assessment - it is legally insufficient for the ALJ's decision to cherry-pick through record evidence in making a claimant's RFC assessment. “A necessary predicate to engaging in substantial evidence review is a record” that adequately explains the ALJ's findings and reasoning. Dowell v. Colvin, C/A No. 1:12-cv-1006, 2015 WL 1524767, at *4 (M.D. N.C. Apr. 2, 2015) (requiring that the ALJ “build a logical bridge between the evidence and his conclusions”) (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). Accordingly, this case should be remanded so that the ALJ may properly consider the plaintiff's need for restroom breaks under the applicable standards, including Dowling, 986 F.3d at 389.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. 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); 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). As such, on remand, the ALJ is to also take into consideration the plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).