Opinion
C/A 6:21-cv-3446-MGL-KFM
06-22-2022
Linda McGee, 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 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. § 1383(c)(3)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for supplemental security income benefits under Title XVI 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 supplemental security income (“SSI”) benefits on January 10, 2017, alleging that she became unable to work on September 26, 2015 (Tr. 227-32). The application was denied initially (Tr. 121-30) and on reconsideration (Tr. 132-43) by the Social Security Administration. On November 15, 2017, the plaintiff requested a hearing (Tr. 167-68). On May 31, 2019, an administrative hearing was held in Charlotte, North Carolina, at which the plaintiff, represented by counsel, and Lauren Calderon, an impartial vocational expert, appeared and testified before the administrative 1 law judge (“ALJ”) assigned to the case (Tr. 35-74). On July 1,2019, 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. 19-34). 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 May 19, 2020 (Tr. 5-7). After receiving additional time to file a civil action from the Appeals Council (Tr. 1), the plaintiff filed this action for judicial review (doc. 1).
The ALJ's decision listed the date as December 15, 2016 (Tr. 19).
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 has not engaged in substantial gainful activity since December 15, 2016, the application date (20 C.F.R. § 416.971 et seq.).
(2) The claimant has the following severe impairments: Lupus, Raynaud's syndrome, hypertension, chronic obstructive pulmonary disease (“COPD”), obstructive sleep apnea, mild degenerative disc disease, and obesity (20 C.F.R. § 416.920(c)).
(3) 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. §§ 416.920(d), 416.925 and 416.926).
(4) 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. § 416.967(b) except she should avoid concentrated exposure to temperature extremes, wetness, humidity, vibrations, pulmonary irritants, poor ventilation, and workplace hazards. She can occasionally climb ramps and stairs, but no climbing of ladders, ropes, or scaffolds. She can occasionally balance, stoop, knee[l], and crouch, but no crawling. No more than frequent grasping, handling, fingering, and feeling bilaterally. The claimant is limited to unskilled work at a nonproduction pace (non-assembly line, non-piece rate).
(5) The claimant has no past relevant work (20 C.F.R. § 416.965).2
(6) The claimant was born on August 10, 1968, and was 48 years old, which is defined as a younger individual age 18-49, on the date the application was filed. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. § 416.963).
(7) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 416.964).
(8) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. § 416.968).
(9) 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 C.F.R. §§ 416.969 and 416.969a).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since December 15, 2016, the date the application was filed (20 C.F.R. § 416.920(g)).
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. § 1382c(a)(3)(A), (H)(i), 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. § 416.905(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 3 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. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 416.920(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 192.
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 48 years old on the application date, seeks SSI based upon her impairments, including lupus. The plaintiff argues that the ALJ's decision erred by not providing an appropriate analysis of Listings 14.02 and 14.06 (doc. 10 at 12-15). 4 The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 11 at 13-18).
Listing Analysis
To determine whether a claimant's impairments meet or equal a Listed impairment, the ALJ identifies the relevant impairments and compares the Listing criteria with the evidence of a claimant's symptoms. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986) (explaining 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.” Beckman v. Apfel, C/A No. WMN-99-3696, 2000 WL 1916316, at *9 (D. Md. Dec. 15, 2000) (quoting Cook, 783 F.2d at 1172). This includes comparing symptoms, signs, and laboratory findings with the appropriate listing criteria. 20 C.F.R. § 416.926(a); Cook, 783 F.2d at 1173.
Here, the plaintiff argues that the ALJ's Listing analysis erred because he did not discuss Listings 14.02 or 14.06 (doc. 10 at 12-15). Listing 14.02, which is entitled systemic lupus erythematosus (“SLE”), can be met by meeting either paragraph A or paragraph B. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.02. Paragraph A requires a claimant to show:
Because the undersigned finds that the ALJ's error with respect to Listing 14.02 is sufficient to warrant remand, the undersigned will not address Listing 14.06. On remand, the ALJ will be able to review all of the pertinent Listings in the new decision.
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
5 Id. § 14.02(A). Paragraph B requires a claimant to show:2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).
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. § 14.02(B).3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.
Although the ALJ found that the plaintiff had a severe impairment of lupus (Tr. 22), he did not address Listing 14.02 in finding that the plaintiff's impairments did not meet or medically equal any of the Listed impairments (see Tr. 23). The plaintiff argues that there is evidence in the record that she meets paragraph A of the Listing (doc. 10 at 12-15). For example, the plaintiff notes that her records include complaints of fatigue, malaise, fever, and involuntary weight loss, all of which qualify as two constitutional signs or symptoms (see Tr. 44, 372, 378, 422, 444, 484, 487, 547, 641,702, 714, 740, 746, 749, 750). The plaintiff also argues that her lupus affects two of her body systems to a moderate level of severity, including her respiratory system and lumbar spine (doc. 10 at 12-15). The Commissioner, on the other hand, argues that the record does not show significant symptoms for lupus based upon notations by the plaintiff's treating provider that her labs looked good and her lupus was stable (see doc. 11 at 16 (citing Tr. 749-50)). The Commissioner also argues that the plaintiff's symptoms did not meet the 12-month duration requirement to satisfy the Listing (doc. 11 at 16-17). The undersigned agrees with the plaintiff that the ALJ erred by not evaluating the application of Listing 14.02 to the plaintiff's lupus. As an initial matter, the Commissioner appears to concede that the record evidence supports the signs and symptoms to meet paragraph A(2) - arguing instead that the symptoms do not meet the duration requirement and thus the plaintiff does not meet the listing. However, the Listing 6 itself does not include a specific duration requirement. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.02. Instead, as recognized by the Court of Appeals for the Fourth Circuit, the regulations require that impairments meet the duration requirement, not specific symptoms or findings. See Radford v. Colvin, 734 F.3d 288, 293 (4th Cir. 2013).
The Commissioner also asserts that even if the ALJ erred by not specifically referencing Listing 14.02 in the Listing analysis, the remainder of the decision provides substantial evidence for the finding that the plaintiff did not meet Listing 14.02 (doc. 11 at 17-18). The court disagrees. As an initial matter, the cases relied on by the Commissioner for this argument are distinguishable from this case. For example, although the court found that the ALJ in Case v. Colvin had provided enough information in the RFC explanation to support a finding that the plaintiff had not met the lupus Listing, in that case, the ALJ had referenced the Listing, but had not provided the necessary analysis under that section of the decision. Case, C/A No. 1:15-cv-0009, 2015 WL 9599969 (W.D. N.C. Dec. 15, 2015), report and recommendation adopted by 2016 WL 54935 (W.D. N.C. Jan. 5, 2016). Here, of course, the ALJ did not even mention Listing 14.02 - making it unclear whether he considered the Listing at all in his decision. The second case referenced by the Commissioner is likewise distinguishable from the instant matter, as the ALJ in that case did not include reference to Listing 14.02 (as herein), but the plaintiff in that case did not have a formal diagnosis of lupus (unlike herein). See Lee ex rel. Lee v. Colvin, C/A No. 1:14-cv-0644 (LMB/JFA), 2014 WL 7359770 (E.D. Va. Nov. 3, 2014), report and recommendation adopted by 2014 WL 7363057 (E.D. Va. Dec. 24, 2014).
Indeed, as noted by the Commissioner, the record evidence includes conflicting findings with respect to the plaintiff's lupus; however, the ALJ (not this court) is charged with the weighing and analysis of conflicting evidence as that goes beyond the purview of substantial evidence review. As such, because the ALJ omitted mention or analysis of Listing 14.02 despite finding lupus a severe impairment, the Listing analysis is 7 not supported by substantial evidence. Accordingly, this matter should be remanded for further review.
Remaining Allegation 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 allegation of error with regard to Listing 14.06 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 allegation 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.
The attention of the parties is directed to the important notice on the following page. 8
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). 9