Opinion
5:22-CV-424-M-KS
10-28-2023
MARIE ANTOINETTE NEVELS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK UNITED STATES MAGISTRATE JUDGE
This matter is before the court for judicial review pursuant to 42 U.S.C. § 405(g) of a final administrative decision denying Plaintiff's application for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The parties have fully briefed the matter pursuant to the Supplemental Rules for Social Security Actions, and this matter is ripe for decision.Having carefully reviewed the administrative record and the parties' briefs, the undersigned recommends that the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
The Commissioner also filed a motion for judgment on the pleadings. (Mot. J. Pleadings [DE #18].) This action is governed by the Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g), which provide that “[t]he action is presented for decision by the parties' briefs” in lieu of dispositive motions. Suppl. R. Soc. Sec. 5. Accordingly, it is recommended that the Commissioner's motion be dismissed as moot.
S TATEMENT OF THE CASE
Plaintiff applied for DIB and SSI on April 24, 2020, with an alleged onset date of October 30, 2019. (R. 11, 253-67.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 11, 74-75, 119-20, 178-81.) A telephonic hearing was held on November 23, 2021, before Administrative Law Judge (“ALJ”) James E. Williams, who issued an unfavorable ruling on January 10, 2022. (R. 8-30, 42-73.) On August 31, 2022, the Appeals Council denied Plaintiff's request for review. (R. 1-7.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On October 21, 2022, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits 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). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). “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, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the “substantial evidence” inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Albright v. Comm'r of SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide “whether the claimant is able to perform other work considering both [the claimant's residual functional capacity] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). “If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Social Security Act (“the Act”). As a preliminary matter, the ALJ found Plaintiff meets the insured status requirements of the Act through December 31, 2025. (R. 14.) At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since October 30, 2019, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff has the severe impairments of carpal tunnel syndrome (CTS); obesity; essential hypertension; asthma; inflammatory arthritis; depressive, bipolar, and related disorders; and anxiety and obsessive-compulsive disorders. (Id.)
At step three, the ALJ concluded Plaintiff's impairments 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, App. 1. (R. 14-17.) The ALJ expressly considered Listings 3.03, 4.02, 4.04, 12.04, 12.06, and 14.09. (Id.) The ALJ also considered SSR 19-2p in connection with Plaintiff's obesity. (Id.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found that Plaintiff has
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following limitations: frequently handle and finger bilaterally; occasionally work at unprotected heights, around moving mechanical parts, in humidity and wetness, in dust, odors, fumes and pulmonary irritants, and in extreme heat; understand, remember and carryout instructions by performing simple, routine and repetitive tasks but not at a production rate pace (e.g. assembly line work), make simple work-related decisions, and frequently interact with supervisors, coworkers, and the public.(R. 17.) In making this assessment, the ALJ stated that he considered Plaintiff's symptoms and the evidence (both “objective medical” and “other”) based on the requirements of 20 C.F.R. §§ 404.1529, 416.929, and SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017), and found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms “not entirely consistent with the medical evidence and other evidence in the record.” (R. 17-18.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 23.) At step five, the ALJ determined, based upon Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, namely: cashier II (DOT #211.462-010), sales attendant (DOT #299.677-010), and marker (DOT #209.587-034). (R. 23-24.) The ALJ concluded that Plaintiff has not been disabled under the Act from October 30, 2019, through the date of the decision. (R. 24.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by
(A) improperly evaluating the medical opinion of a non-examining nurse practitioner (Pl.'s Opening Br. [DE #16] at 11-16);
(B) failing to explain how Plaintiff's moderate limitation in adapting or managing herself impacts the RFC (id. at 16-19); and
(C) failing to explain why certain RFC-related limitations assessed in a medical opinion the ALJ deemed to be “mostly persuasive” were not incorporated into the RFC (id. at 19-21).
The undersigned agrees with Plaintiff as to arguments (B) and (C) for the reasons explained below and, therefore, recommends remand.
A. Nurse Practitioner Medical Opinion
When evaluating medical opinions, the ALJ must consider factors set forth in 20 C.F.R. §§ 404.1520c(b), (c)(1)-(5); 416.920c(b), (c)(1)-(5). See generally Oakes v. Kijakazi, 70 F.4th 207, 212 (4th Cir. 2023) (summarizing the medical opinion evaluation process for disability claims filed after March 27, 2017). “The ALJ is not required to explain how [he] considered each of the relevant factors; instead, when articulating [his] finding about whether an opinion is persuasive, the ALJ need only explain how [he] considered ‘the most important factors' of supportability and consistency.” Corbin v. Kijakazi, No. 2:20-CV-60-M, 2022 WL 990487, at *2 (E.D. N.C. Mar. 31, 2022). “Supportability is the degree to which a provider supports their opinion with relevant, objective medical evidence and explanation, and consistency is the degree to which a provider's opinion is consistent with the evidence of other medical and non-medical sources in the record.” Oakes, 70 F.4th at 212. Generally, the ALJ must explain how the evidence led to his conclusions. Arakas v. Comm'r of SSA, 983 F.3d 83, 95 (4th Cir. 2020) (“To pass muster, ALJs must ‘build an accurate and logical bridge' from the evidence to their conclusions.” (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016))); see also Mascio, 780 F.3d at 637 (remand is necessary when a reviewing court is “left to guess about how the ALJ arrived at his conclusions”).
ALJ Williams assessed the medical opinion of Nurse Practitioner Virginia Pierce and explained why he found Ms. Pierce's opinions about Plaintiff's functional abilities only “partially persuasive.” (See R. 22 (citing R. 923-30).) As to the supportability factor, ALJ Williams recognized that Ms. Pierce cited to clinical findings in the record. (R. 22.) ALJ Williams also explained that certain evidence in the record was inconsistent with Ms. Pierce's opinions. The ALJ noted that (i) consultative examiner Dr. Joseph Umesi, M.D., “was able to put [Plaintiff] through postural maneuvers,” which, along with Dr. Umesi's exam findings and observations, do not support postural limitations in the RFC, contrary to Ms. Pierce's opinion;(ii) Plaintiff retained the ability to drive, which requires the ability to manipulate the automobile; (iii) Plaintiff has not been referred for more significant diagnostic testing of her foot; and (iv) Ms. Pierce did not examine Plaintiff. (R. 22; cf. R. 924 (Ms. Pierce's opinions as to functional limitations).) The undersigned can trace ALJ Williams' reasoning, and the ALJ's evaluation complies with 20 C.F.R. §§ 404.1520c(b), (c)(1)-(5); 416.920c(b), (c)(1)-(5). Accordingly, Plaintiff's argument as to this issue should be rejected.
Plaintiff argues that the ALJ's consistency explanation is infected by the reliance on Dr. Umesi's “evaluation.” (Pl.'s Opening Br. at 15.) Plaintiff is correct that ALJ Williams discredited Dr. Umesi's opinions, but ALJ Williams did not cite Dr. Umesi's opinions as a basis for discrediting Ms. Pierce's opinions; the ALJ cited facts about Dr. Umesi's physical examination and observations of Plaintiff. (R. 22.)
B. Moderate Limitations in Adapting and Managing Oneself
During the listings analysis at step three, ALJ Williams found Plaintiff moderately limited in four areas of mental functioning, including Plaintiff's ability to adapt or manage herself. (R. 16.) See also 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00E.4 (describing the ability to adapt or manage oneself as referring to a person's “abilities to regulate emotions, control behavior, and maintain well-being in a work setting” and noting that the examples provided “illustrate the nature of this area of mental functioning”). ALJ Williams noted that the limitations regarding Plaintiff's mental functioning rated during step three were not an RFC assessment and that the RFC assessment “used at steps 4 and 5 . . . requires a more detailed assessment of the areas of mental functioning.” (R. 17.) See also SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996) (“The mental RFC assessment used at steps 4 and 5 . . . requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and summarized on the [Psychiatric Review Technique Form].”).
Plaintiff contends that ALJ Williams failed to account for her moderate limitations in adapting or managing herself in the RFC. (Pl.'s Opening Br. at 16-19; Pl.'s Response Br. [DE #20] at 2-3.) In contrast, the Commissioner contends that (i) “the ALJ's discussion of the evidence sufficiently explains how he arrived at the functional limitations articulated in the RFC” and (ii) the ALJ's finding that Plaintiff can perform work that is not at a production pace implies that the RFC “accommodates any difficulty . . . Plaintiff may experience when responding to demands.” (Comm'r's Br. [DE #19] at 6-12 (citing 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00E.4, for the proposition that a person's ability to respond to demands while at work is an example of that person's ability to adapt or manage herself).) The undersigned agrees with Plaintiff for the reasons below.
The RFC is an administrative assessment of “an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis” despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). “A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p, 1996 WL 374184, at *1. In assessing an individual's RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(4). It is based upon all relevant evidence, which may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). If necessary, an ALJ must “explain how any material inconsistences or ambiguities in the evidence were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7. In fulfilling the obligation to consider all relevant evidence, an ALJ “cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
An ALJ must “include a narrative discussion describing how the evidence supports each conclusion” in the RFC. Monroe, 826 F.3d at 189 (quoting Mascio, 780 F.3d at 636). The ALJ must specifically explain how certain pieces of evidence support particular conclusions and “discuss[ ] . . . which evidence the ALJ found credible and why.” Monroe, 826 F.3d at 189 (quoting Radfordv. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The Fourth Circuit has interpreted this to require an ALJ to “build an accurate and logical bridge from the evidence to his conclusion.” Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion [M]eaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). Simply put, this means an ALJ must “[s]how his work.” Patterson v. Comm'r of SSA, 846 F.3d 656, 663 (4th Cir. 2017) (applying same principle to an ALJ's listing analysis). Such analysis-“[h]armonizing conflicting evidence and bolstering inconclusive findings,” Patterson, 846 F.3d at 662-is a “necessary predicate” to determining whether substantial evidence supports the Commissioner's findings, Monroe, 826 F.3d at 189 (quoting Radford, 734 F.3d at 295). Where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
Here, ALJ Williams did not explain how the step-three finding that Plaintiff has moderate limitations in adapting or managing herself translates, or does not translate, into an RFC limitation. See Mascio, 780 F.3d at 638 (“Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work.”). Nor can the undersigned discern where ALJ Williams conducted the “more detailed assessment of the areas of mental functioning” he said he would. (R. 17-23.) Maybe it is, as the Commissioner suggests, that ALJ Williams believed the RFC limitation of no production-pace work accommodates the moderate limitation in adapting or managing oneself. However, absent an explanation from the ALJ, the undersigned is left to guess how ALJ Williams accounted for this limitation.
The Commissioner appears to argue that ALJ Williams' recognition that Plaintiff's mental health symptoms improved when Plaintiff complied with her medication regimen shows why no further mental RFC restrictions were warranted. (Comm'r's Br. at 9-10.) There are at least two problems with this position. First, ALJ Williams did not make that clear. See, e.g., Thomas, 916 F.3d at 311. Second, it calls into question ALJ Williams' step three findings in the first place-the Commissioner's argument on review appears to undermine the ALJ's finding that Plaintiff is moderately limited in adapting or managing herself. (Comm'r's Br. at 710.) The undersigned appreciates that Mascio did not create a per se rule regarding an ALJ's failure to conduct an explicit function-by-function assessment or to incorporate a step-three finding from the Psychiatric Review Technique into the RFC, but here there is too little explanation from the ALJ on this issue.
C. Medical Opinion of Dr. Sean Sayers, Ph.D
Two state agency consultants reviewed Plaintiff's records and offered opinions regarding Plaintiff's work-related mental abilities, and ALJ Williams stated that he found the opinions of Dr. Sean Sayers, Ph.D., “the most persuasive.” (R. 22-23.) Dr. Sayers opined, among other things, that Plaintiff would be limited to jobs requiring Plaintiff “to understand, remember, and carry out simple 1-3 step instructions but that Plaintiff may have difficulty with detailed instructions when feeling stressed or pressured.” (R. 22.) ALJ Williams did not explain why the RFC assessment did not adopt Dr. Sayers' opinion about Plaintiff's ability to understand different types of instructions at work. (Id.); see SSR 96-8p, 1996 WL 374184, at *7 (“If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.”).
The failure to explain why Dr. Sayers' opinion was not incorporated into the RFC is relevant because the jobs relied on at step five present an apparent conflict with Dr. Sayers' opinion. In Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015), the Fourth Circuit, in addressing the impact of SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000), held that an ALJ must independently identify and obtain a reasonable explanation from the Vocational Expert (VE) as to any apparent conflicts between the VE's testimony and the DOT before relying on the VE's testimony. Pearson, 810 F.3d at 209-10. The Cashier II and Sales Attendant jobs identified by ALJ Williams at step five require a reasoning level of three. Cashier II, DOT #211.462-010, 1991 WL 671840; Sales Attendant, DOT #299.677-010, 1991 WL 672643. Jobs requiring a reasoning level of three present a conflict with an RFC limitation to “short and simple” instructions. Keller v. Berryhill, 754 Fed.Appx. 193, 197 (4th Cir. 2018); Shook v. Saul, No. 5:20-CV-122-FL, 2021 WL 3074406, at *9 (E.D. N.C. June 7, 2021), mem. & recommendation adopted by 2021 WL 3064294 (E.D. N.C. July 20, 2021) (citing Keller and summarizing related district court opinions). The Marker job requires a reasoning level of two and presents an apparent conflict with an RFC limitation to “very short and simple instructions.” See Keen v. Kijakazi, No. 4:20-CV-99-KS, 2022 WL 851722 (E.D. N.C. Mar. 22, 2022) (analyzing apparent inconsistency between RFC limitation to very short and simple instructions and reasoning-level-two jobs, including Marker, DOT #209.587-034, based on Thomas v. Berryhill, 916 F.3d 307, 314 (4th Cir. 2019), and Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019)). Accordingly, ALJ Williams' apparent endorsement of Dr. Sayers' medical opinions but failure to incorporate (or to explain why he did not incorporate them) in the RFC assessment precludes meaningful review.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that the Commissioner's Motion for Judgment on the Pleadings [DE #18] be DISMISSED as moot and the matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
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 November 13, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her 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 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. (May 2023).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, 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, a party's failure to file written objections by the foregoing deadline may 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).