Opinion
2:20-CV-25-FL
09-02-2021
TAMMY LEE NEWELL, 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-22, -24] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Tammy Lee Newell, (“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”). Both parties submitted memoranda in support of their respective motions [DE-23, -25]. 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 be allowed, Defendant's Motion for Judgment on the Pleadings 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 December 17, 2015, alleging disability beginning December 11, 2015. Transcript of Proceedings (“Tr.”) 196-97. Her claim was denied initially. Tr. 122-30. Plaintiff filed a request for reconsideration (Tr. 131), and was denied upon reconsideration on February 21, 2017 (Tr. 132-39). On April 4, 2017, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 78. A hearing before the ALJ was held on December 12, 2018, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 38-77. On February 14, 2019, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 12-37. On April 11, 2019, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 281. On February 27, 2020, the Appeals Council denied Plaintiff's request for review. Tr. 1. 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).
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 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. 33. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since December 11, 2015, the alleged onset date. Tr. 17.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: spinal disorder, fibromyalgia, organic mental disorder, neurocognitive disorder, and dyslexia. Tr. 17. 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. Tr. 17. Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in mild limitation in understanding, remembering, or applying information; mild limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and, mild limitation in adapting or managing oneself. Tr. 19-20. The ALJ found no repeated episodes of decompensation, each of extended duration. Tr 20.
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).
[The claimant] can only frequently rotate the neck laterally and vertically. She can occasionally use the right dominant upper extremity for overhead lifting, reaching, pulling and pushing, and otherwise frequently use the upper extremities to lift, reach, pull and push in all other directions. She can frequently use the upper right dominant extremity to grasp, finger, feel and handle. She can occasionally stoop, kneel, crouch and climb stairs/ramps. She can occasionally use the lower extremities to operate foot and leg controls. She cannot climb ladders, ropes or scaffolds. She can tolerate it [sic] occasional exposure to temperature extremes. She can work in a moderate noise environment. She cannot work around dangerous moving machinery and/or unprotected heights. The claimant is also limited to work requiring a reasoning level of “3” which connotes the ability to do simple, routine repetitive tasks and to understand and carry out detailed, but uninvolved oral and written instructions in two-hour intervals, and performing jobs not requiring the claimant to complete a specific number of high-volume production quotas on a defined timeline or do fast-paced assembly line work.Tr. 20. In making this assessment, the ALJ found that Plaintiff's statements about the intensity, persistence, and limiting effects of the alleged symptoms reasonably expected to be caused by her medically determinable impairments were “not entirely consistent with the medical evidence and other evidence in the record”. Tr. 22. At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of her past relevant work as a title clerk, auto wholesaler, and administrative assistant, as actually or generally performed in the national economy. Tr. 31. 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. 31-32.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred in: (1) finding that Plaintiff had a residual functional capacity to perform a modified range of light work; (2) assessing Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms and their consistency with the medical and other evidence; and, (3) failing to accurately set forth all of Plaintiff's physical and mental limitations in the hypothetical question posed to the vocational expert. Pl.'s Mem. [DE-23] at 9. Each will be discussed below.
VI. DISCUSSION
A. Evaluation of Plaintiff's credibility and statements concerning intensity, persistence, and limitations
Plaintiff contends that the ALJ erred by failing to properly assess Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms and their consistency with the medical evidence and other evidence. Pl.'s Mem. [DE-23] at 9. Specifically, at issue is whether the ALJ's decision to partially discredit Plaintiff's testimony was an error. Plaintiff contends that, contrary to the ALJ's determination, her testimony regarding the intensity, persistence, and limiting effects of her impairments is corroborated by the objective medical evidence and diagnostic findings. Id. at 27. She claims that she was entitled to rely upon her subjective complaints because she suffers from fibromyalgia, an impairment known for its lack of objective symptoms. Id. at 25-26.
The undersigned agrees that the ALJ improperly evaluated Plaintiff's fibromyalgia and associated symptoms, and, therefore, recommends remand due to that error.
It is important to note that the ALJ issued his decision on February 14, 2019, prior to the Fourth Circuit's decision in Arakas v. Comm'r Soc. Sec. Admin., 983 F.3d 83 (4th Cir. 2020), on December 14, 2020. The ALJ, therefore, could not have applied the findings in Arakas when deciding this case.
The regulations provide “a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 867 (4th Cir. 2017) (citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). As explained by the Fourth Circuit:
First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms. Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities. The second determination requires the ALJ to assess the credibility of the claimant's statements about symptoms and their functional effects.Id. (citations omitted).
In assessing a claimant's credibility, the ALJ may not discredit a claimant's “statements about the intensity and persistence of [] pain or other symptoms or about the effect [] symptoms have on [their] ability to work solely because the available objective medical evidence does not substantiate [the] statements.” Lewis, 858 F.3d at 866 (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)) (emphasis added). However, generally “[a]n ALJ may find a claimant's statements regarding the severity of her symptoms less credible if these statements are inconsistent with the medical evidence in the record and if the ALJ explains how she weighed all of the relevant evidence, including the claimant's statements.” Brooks v. Berryhill, No. 2:16-CV-80-FL(2), 2018 WL 944382, at *4 (E.D. N.C. Jan. 23, 2018) (citing S.S.R. 96-7p, 1996 WL 374186, at *2 (July 2, 1996); Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015)). Yet, in doing so, an ALJ must be sure to articulate what specific facts discredited the claimant. Lewis, 858 F.3d at 866 (citations omitted); Cobb v. Colvin, 4 F.Supp.3d 786, 790 (E.D. N.C. 2014).
In addition to the agency guidance in Social Security Ruling 12-2p (S.S.R. 12-2p, 2012 WL 3104869 (July 25, 2012)), the Fourth Circuit recently clarified how an ALJ should evaluate a claimant's fibromyalgia in Arakas v. Comm'r Soc. Sec. Admin., 983 F.3d 83 (4th Cir. 2020). The Fourth Circuit held that in cases involving a diagnosis of fibromyalgia, the risk of improperly discrediting a claimant's subjective complaints due to the lack of objective medical evidence is especially pronounced. See Arakas, 983 F.3d at 96-97. This is because “[p]hysical examinations [of patients with fibromyalgia] will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions.” Id. at 96 (quoting Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003)) (second alteration in original). Thus, “ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” Arakas, 983 F.3d at 97.
As properly cited by the ALJ, in determining whether there is an underlying medically determinable impairment of fibromyalgia, an ALJ must look at Social Security Ruling 12-2p. S.S.R. 12-2p, 2012 WL 3104869, at *1; see Strickland v. Berryhill, No. 7:16-CV-252-FL, 2017 WL 3910436, at *4 (E.D. N.C. Aug. 21, 2017). S.S.R. 12-2p provides guidance as to how the Commissioner evaluates evidence regarding fibromyalgia and how fibromyalgia must be evaluated for purposes of disability benefits review under the Act. S.S.R. 12-2p, 2012 WL 3104869, at *1. Under S.S.R. 12-2p, two sets of criteria are listed, both of which may be independently used to establish a diagnosis of fibromyalgia. S.S.R. 12-2p, 2012 WL 3104869, at *2-3; Strickland, 2017 WL 3910436, at *4. Namely, the 1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia (“1990 Criteria”) and the 2010 American College of Rheumatology Preliminary Diagnostic Criteria (“2010 Criteria”). S.S.R. 12-2p, 2012 WL 3104869, at *2. Under the 1990 Criteria, a claimant is considered to have a medically determinable impairment if fibromyalgia has been diagnosed by a physician and there is: (1) a history of widespread pain; (2) at least eleven positive tender points on physical examination; and (3) evidence that other disorders that could cause the symptoms or signs were excluded. Id. at *2-3; see also Strickland, 2017 WL 3910436, at *4. Under the 2010 Criteria, a claimant is considered to have a medically determinable impairment if fibromyalgia has been diagnosed by a physician and there is: (1) a history of widespread pain; (2) repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and (3) evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded. Id.
Here, the ALJ determines fibromyalgia to be a severe impairment at step two of the five-step sequential evaluation process (Tr. 17). The ALJ then finds Plaintiff's diagnosis is unsubstantiated (Tr. 18, 28) with the following explanation:
Moreover, while the medical evidence of record contains a diagnosis of fibromyalgia, the record does not disclose the very specific clinical signs and findings required to substantiate the diagnosis. The diagnosis is substantially based on the claimant's subjective description of symptoms. Under Social Security Ruling 12-2p, all three of the following criteria must be documented in a diagnosis of fibromyalgia: a history of widespread pain in all four quadrants of the body (both left and right, above and below the waist) along with a history of spinal pain, which has persisted for at least three months at varying levels of intensity; at least 11 positive tender points found bilaterally, and above and below the waist. The physician must document the positive tender point findings and indicate the use of approximately nine pounds of force; medical exclusion of other disorders that could cause the foregoing symptoms. The medical evidence of record does not contain formal documentation of the foregoing criteria in establishing the diagnosis of fibromyalgia. Nevertheless, the undersigned has considered the diagnosis as well as the clinical signs and findings that may establish a basis for the claimant's pain complaints.Tr. 18.
In support of this finding, the ALJ properly cites to S.S.R. 12-2p. Tr. 18. However, the ALJ improperly evaluates Plaintiff's alleged impairment of fibromyalgia under only the 1990 Criteria. Tr. 18. By doing so, the ALJ errs by failing to consider whether Plaintiff's alleged diagnosis would satisfy the 2010 Criteria, which provides an independent basis for an ALJ to determine that a claimant has a medically determinable impairment of fibromyalgia.
Defendant maintains that regardless of whether the ALJ found Plaintiff's fibromyalgia diagnosis to be unsubstantiated, remand here is unnecessary because the ALJ still properly evaluated Plaintiff's subjective complaints resulting from fibromyalgia. Def.'s Mem. [DE-25] at 18-19. Defendant argues that consistent with Arakas, “the ALJ did not rely on objective findings to discount [Plaintiff's] fibromyalgia.” Id. at 18 (emphasis added). Instead, Defendant asserts that “the ALJ's specific acknowledgment of pain as a factor in Plaintiff's case shows the contrary and supports his conclusion that he considered the whole of Plaintiff's evidence, her subjective complaints, and her daily activities.” Id. at 18-19. Defendant argues that the ALJ was permitted to consider all of Plaintiff's symptoms and the evidence in their entirety, to determine their effect on Plaintiff's work-related abilities. Id. at 19.
Typically, an ALJ is permitted to consider the evidence as a whole, and “may find a claimant's statements regarding the severity of her symptoms less credible if these statements are inconsistent with the medical evidence in the record ....” Brooks, 2018 WL 944382, at *4 (citing S.S.R. 96-7p, 1996 WL 374186, at *2; Mascio, 780 F.3d at 636-37). However, in Arakas the Fourth Circuit emphasized that in cases involving fibromyalgia, an ALJ's analysis of a claimant's subjective complaints will be unique. When fibromyalgia is involved, Arakas explicitly prohibits ALJs from “rely[ing] on objective medical evidence (or the lack thereof)-even as just one of multiple factors[, ]” to discount subjective complaints. Arakas, 983 F.3d at 96-97 (emphasis added). This is true even if the ALJ articulates other valid reasons to discredit a claimant's subjective complaints.
Here, when discrediting Plaintiff's subjective complaints, the ALJ does not independently analyze fibromyalgia. That is, the ALJ does not provide that he is discrediting Plaintiff's subjective complaints stemming from fibromyalgia based only on certain evidence, instead of all of the evidence used to discredit Plaintiff's subjective complaints as a whole. In discrediting Plaintiff's subjective complaints, the ALJ here broadly states that:
After careful consideration of evidence, the undersigned finds that the [Plaintiff's] medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.Tr. 22 (emphasis added). The ALJ further explains that:
The clinical evaluations have consistently indicated normal gait and station, full range of motion in the lower extremities, normal sensation and coordination and a symmetric, steady gait without the use of an assistive device.... [Plaintiff's] muscle tone and bulk were normal. Her gait was normal and she had normal coordination, reflexes and sensation.Tr. 27. And, the ALJ notes that Plaintiff's “range of motion has been essentially normal and upper extremity muscle strength and sensation full ....” Tr. 27.
To the extent that the ALJ did consider Plaintiff's fibromyalgia when discussing her subjective complaints as a whole, the court finds that the ALJ's decision appears to have the same error identified by Arakas - reliance on a lack of objective medical evidence, even as just one factor, to discredit Plaintiff's statements about the severity of her fibromyalgia symptoms. See Arakas, 983 F.3d at 97. In Arakas, the ALJ relied on a lack of objective medical evidence, specifically noting normal examination results of joint range of motion and joint inflammation, to discredit the claimant. Id. at 96. Here, the ALJ's reliance on normal clinical findings such as gait, range of motion, reflexes, and muscle strength is similar to the problem identified in Arakas.
Finally, contrary to Defendant's assertion that the ALJ properly evaluated Plaintiff's subjective complaints stemming from fibromyalgia, the written decision does not provide sufficient explanation regarding how the ALJ actually considered fibromyalgia in order to permit the court's meaningful review. The ALJ's detailed summary of the medical evidence includes multiple references to fibromyalgia, but no explanation of the consideration it's given.
For example, in the records from Plaintiff's evaluation on May 14, 2015 at the Bayview Hospital, the ALJ notes “[t]he diagnostic assessment was periodic malaise symptoms suggestive of fibromyalgia or a possible sleep disorder.” Tr. 22-23. In summarizing the contemporaneous notes from Plaintiff's examination at Atlantic Neurological Associates on October 18, 2017, the ALJ states:
[the notes] show complaints of worsening paresthesias and a heavy feeling in the upper and lower extremities more pronounced on the right side. The neurological examination was normal in all respects.... The doctor could not give a definitive diagnosis noting the possibility that the claimant's multiple symptoms could be related to chronic migraines or a developing chronic pain syndrome like fibromyalgia. He noted that most of her workups had been negative and that low dose Lyrica was effective (Exhibit 15F).Tr. 24. And when discussing the weight assigned to the opinion of the consultative physician, Dr. Gwendolyn Riddick, the ALJ notes “While Dr. Riddick noted a diagnosis of fibromyalgia, there is no indication of any formal fibromyalgia workup or explanation of the basis for the diagnosis other than the claimant's subjective complaints (pages 15 and 22). (Exhibit 9F).” Again, the ALJ does not mention on any occasion how Plaintiff's fibromyalgia was considered in determining her RFC. In addition, there is no discussion addressing the longitudinal record as to fibromyalgia and the potential “wax[ing] and wan[ing]” of Plaintiff's symptoms. S.S.R. 12-2p, 2012 WL 3104869, at *6.
As described above, the undersigned recommends remand in order to allow the ALJ to properly evaluate whether Plaintiff suffers from a medically determinable impairment of fibromyalgia under Social Security Ruling 12-2p. While the Commissioner may be able to articulate on remand why Plaintiff does not have a medically determinable impairment of fibromyalgia or provide different explanations for discounting Plaintiff's claimed limitations due to fibromyalgia, such explanations must be provided by the Commissioner in the first instance in accordance with the principles recently set forth in Arakas. On remand, the Commissioner should provide sufficient explanations that would permit meaningful judicial review, if necessary.
B. ALJ's determination of the RFC
Plaintiff contends that the ALJ erred by finding that Plaintiff's residual functional capacity assessment was at the modified light exertional level. Pl.'s Mem. [DE-23] at 9. Specifically, Plaintiff contends that she cannot perform light work, even with the additional limitations set forth in the RFC. Id. at 24. She claims that the “consistent medical evidence, ” diagnostic testing, lay witness observations, and her own hearing testimony all support that she is unable to perform light work as currently described in the RFC. Id. Thus, Plaintiff contends, the ALJ's RFC assessment is not supported by substantial evidence. Id.
To note, Plaintiff does not cite or direct the court to a single record or page of the Transcript in support of this claim.
Defendant argues that the ALJ correctly found that Plaintiff could perform a reduced range of light work. Def.'s Mem. [DE-25] at 7. Further, Defendant claims that “the ALJ appropriately considered and evaluated the record in its entirety and provided substantial evidence supporting the RFC finding.” Id. at 9. Defendant states that Plaintiff here merely disagrees with ALJ's RFC assessment, and Plaintiff improperly asks the court to reweigh the evidence and determine that Plaintiff requires additional limitations. Id. at 8.
In light of the court's decision to remand above, Plaintiff's argument here is not likely to occur on remand. On remand, it will be incumbent on the ALJ to consider all of the evidence before him and to explain his findings as to the weight afforded the evidence in accordance with the applicable regulations. In particular, the Commissioner must consider whether Plaintiff suffers from a medically determinable impairment of fibromyalgia, and explain his findings related to fibromyalgia. As the findings on remand may be substantially different, the undersigned does not address whether the ALJ's RFC assessment is supported by substantial evidence.
C. Hypothetical presented to the VE
Plaintiff contends that the ALJ erred by failing to accurately set forth all of Plaintiff's physical and mental limitations in the hypothetical question posed to the vocational expert. Pl.'s Mem. [DE-23] at 9. Plaintiff claims that the hypothetical proposed by the ALJ exceeds the limits of what Plaintiff can actually perform. Id. at 28. Thus, the VE's later testimony that Plaintiff can still engage in substantial gainful employment, based off of the hypothetical, is also flawed.
Defendant argues that “[t]he ALJ's hypotheticals to the vocational expert properly included the limitations contemplated in the RFC, and were based on substantial evidence ....” Def.'s Mem. [DE-25] at 20. Further, Defendant argues that “the ALJ does not have a duty to include in hypothetical questions limitations that are not supported by the record.” Id. at 21.
Plaintiff's argument here is derivative of the RFC argument addressed directly above, as the hypothetical to the VE included the limitations the ALJ found supported by the record that were imposed in the RFC. Because the ALJ's RFC findings on remand may be substantially different, the undersigned does not address whether the hypothetical presented to the VE is supported by substantial evidence.
VII. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-22] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-24] 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 15, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct 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, 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 by September 22, 2021.
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).