Opinion
CA No. 8:19-cv-01180-MBS-JDA
02-14-2020
Tonya Holmes Owens, Plaintiff, v. Andrew Saul, Commissioner Social Security Administration, Defendant
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In September 2015, Plaintiff filed an application for DIB, alleging an onset of disability date of May 29, 2009. [R. 166-169.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 97-100, 106-111.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on January 31, 2018, ALJ Julie Petri conducted a de novo hearing to review Plaintiff's claim. [R. 37-66.]
The ALJ issued a decision on May 1, 2018, finding Plaintiff was not under a disability, as defined in the Social Security Act ("the Act"), from May 29, 2009, through the date of the decision. [R. 14-32.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Social Security Act through December 31, 2020. [R. 16, Finding 1.] The ALJ found that Plaintiff had engaged in substantial gainful activity from the alleged onset date through December 31, 2009, and from January 2011 to October 2014; the ALJ found, however, that there had been continuous 12-month periods during which Plaintiff had not engaged in substantial gainful activity. [R. 16-17, Findings 2 & 3.] At Step 2, the ALJ found Plaintiff had severe impairments of cervical degenerative disc disease, systemic lupus erythematosus with history of pericarditis, depression, and anxiety disorder. [R. 17, Finding 4.] The ALJ also found Plaintiff had non-severe impairments of GERD, chronic tension headaches, and carpal tunnel syndrome, and had a history of seizures which was not a medically determinable impairment due to the lack of evidence of a seizure disorder. [R. 17.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 18, Finding 5.] Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
[Plaintiff] has the RFC to perform sedentary work as defined in 20 CFR 404.1567(a) except that she can never climb ladders/ropes/scaffolds. She can occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. She can have frequent exposure to extreme cold/heat and workplace hazards. She is limited to simple, routine tasks performed for two hours at a time.[R. 20, Finding 6.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a medical transcriber. [R. 30, Finding 7.] However, the ALJ found that, considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), jobs exist in significant numbers in the national economy that Plaintiff could perform. [R. 31, Finding 11.] Accordingly, the ALJ found Plaintiff was not under a disability, as defined in the Act, at any time from May 29, 2009, through the date of the decision. [R. 32, Finding 12.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 2-7.] Plaintiff filed this action for judicial review on April 23, 2019. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains errors of law requiring a remand for an award of benefits or, alternatively, for further proceedings before the Commissioner. [Doc. 12.] Specifically, Plaintiff contends the ALJ erred by failing to perform a proper listing analysis under Listing 14.02 as each of the required findings under the listing are documented in the record. [Id. at 17-20.] Plaintiff also argues the ALJ's RFC analysis is not supported by substantial evidence because the ALJ "overlooked evidence supporting [Plaintiff's] statements of extreme fatigue, joint pain and lupus flares." [Id. at 20-25.]
The Commissioner, on the other hand, contends that the ALJ applied the correct legal standards and that substantial evidence supports the ALJ's finding that Plaintiff is not disabled within the meaning of the Act. [Doc. 13.] The Commissioner argues that substantial evidence supports the ALJ's Step 3 findings [id. at 17-23] and his RFC findings [id. at 24-31].
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
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 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 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Listing Analysis
Plaintiff contends the ALJ erred by failing to find her disabled under Listing 14.02 because each of the findings required by the listing are documented by medical evidence in the record. [Doc. 12 at 17-20.] Plaintiff also points out that the ALJ's analysis was limited to section 14.02(B) with no analysis of section 14.02(A), which Plaintiff contends was met based on the record evidence. [Id. at 19.] The Commissioner contends the ALJ properly considered and found Plaintiff's impairments did not meet or medically equal a listed impairment. [Doc. 13 at 17-23.] The Commissioner also contends that Plaintiff's near-constant part-time work during the relevant time period precludes her argument that Step 3 is satisfied. [Id. at 23, n.4.]
Listing 14.02.
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 3 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) (noting 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) (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)). "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." Id. (citations omitted). While the ALJ may rely on the opinion of a State agency medical consultant in conducting a listing analysis, see 20 C.F.R. § 404.1527(f)(2)(iii), the ALJ ultimately bears the responsibility for deciding whether a claimant's impairments meet or equal a listing, see id. § 404.1527(e)(2).
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, a 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:
Id. § 14.02(A)-(B).1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.
Here, the ALJ's finding that Plaintiff's severe impairments included lupus obligated her to consider whether Plaintiff satisfied the Listing for lupus, found at § 14.02. As noted, Listing 14.02 provides that Plaintiff can establish her disability through meeting the requirements of either § 14.02A or § 14.02B. Under § 14.02A, the claimant must demonstrate the involvement of two or more organs or body systems and the presence of at least two "constitutional symptoms," which include severe fatigue, fever, malaise, or involuntary weight loss. Under § 14.02B, the claimant can satisfy the Listing by showing repeated manifestations of lupus with at least two constitutional symptoms and the presence of marked limitations on activities of daily living, social functioning, or limitations secondary to deficiencies in concentration, persistence, or pace.
For reasons unexplained by the ALJ, she addressed only the specific provisions of Listing 14.02B, finding that Plaintiff's lupus was not sufficiently severe to meet the Listing requirement because "[e]vidence cited elsewhere in this decision, including evidence of work activity and specialist treatment, shows no more than mild limitation of activities of daily living, mild limitation of social functioning and moderate limitation in [] completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace." [R. 19.] The ALJ did not address the specific provisions of Listing 14.02A. This is hardly an immaterial oversight since the record establishes that Plaintiff's lupus involved at least one organ to a moderate degree of severity evidenced by her diagnosis of pericarditis [see, e.g., R. 346-347; 278 (documenting Plaintiff had multiple episodes of pericarditis, had tried multiple agents without success, and was unable to get off the prednisone without pericarditis recurring); R. 279 (indicating viral etiology to recurrent pericarditis); R. 382 (noting sero-negative lupus began with pericraditis, but had caused joint pain in Plaintiff's knees, malar rashes, and mucosal ulcers in her nose and mouth); R. 830, 987 (noting lupus involvement with cardiovascular system was severe)], and caused Plaintiff to exhibit at least two of the constitutional signs or symptoms, which include severe fatigue [R. 54-55, 59, 278, 340, 352, 485, 827, 831, 837, 877, 883, 888, 987], malaise [R. 49, 51, 359, 823 (noting Plaintiff was admitted to Laurens Hospital with diffuse weakness malaise felt to be a lupus intact), 851, 987], and involuntary weight loss [R. 42, 55, 851, 888, 987]. The record also indicates that Plaintiff had lupus flares every three months. [R. 831.] Additionally, hearing testimony and opinion evidence establish that Plaintiff suffers from cardiac and musculoskeletal/joint pain related to lupus, meeting the Listing 14.02A requirement that SLE affect two body systems. [R. 45, 48-52, 382, 505.]
Here, Plaintiff claims that the record demonstrates that her impairments, at the very least, equal the severity of Listing 14.02. A review of Plaintiff's extensive medical history clearly documents the presence of severe impairments arising both from the Plaintiff's cervical degenerative disc disease and her lupus. In this complicated medical setting, it is essential that the Commissioner first evaluate all potentially relevant Listings, which in this case includes Listings 1.04A, 14.02A, and 14.02B.
While the ALJ acknowledged some of the aforementioned evidence in her discussion of Plaintiff's subjective complaints and the RFC, the Court finds that the ALJ failed to offer any explanation as to how this evidence informed any portion of her decision regarding the relevant listing criteria noted above. 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).
The ALJ's conclusory finding at Step 3 and her failure to analyze the aforementioned record evidence in the context of Listing 14.02A 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 14.02A, if at all, or how she reconciled such evidence with her 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 14.02A, and any other relevant listings, at Step 3 of the sequential analysis.
Remaining Allegations of Error
The undersigned finds that the ALJ's failure to identify and compare the specific listing criteria under Listing 14.02A to Plaintiff's impairments is a sufficient basis on which to remand the case to the Commissioner for further explanation of her determination at Step 3. See Harris v. Asture, No. 9:09-cv-0028-HFF, 2009 WL 5125215, *4 (D.S.C. 2009); Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 (W.D. Va. 2002) (explaining that, on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). 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) (explaining 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 AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge February 14, 2020
Greenville, South Carolina