Opinion
C/A No.: 1:16-2726-PMD-SVH
03-29-2017
Francis Pearson, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disabled Widow's Benefits ("DWB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On November 8, 2012, Plaintiff protectively filed applications for DWB and SSI in which she alleged her disability began on May 15, 2004. Tr. at. 94, 167-76, and 177- 78. Her applications were denied initially and upon reconsideration. Tr. at 124-27, 128-29, and 130-31. On December 16, 2014, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Jerry W. Peace. Tr. at 37-84 (Hr'g Tr.). The ALJ issued an unfavorable decision on January 30, 2015, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 14-36. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on August 4, 2016. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 51 years old at the time of the hearing. Tr. at 47. She completed the seventh grade. Tr. at 48. She has no past relevant work ("PRW"). Tr. at 50. She alleges she has been unable to work since November 8, 2012. Tr. at 46.
During the hearing, Plaintiff moved to amend her alleged onset date to November 8, 2012. Tr. at 44-46.
2. Medical History
On January 30, 2012, Plaintiff complained of weight gain, stress, anxiety, and pain in her back, shoulder, and joints. Tr. at 391. Wajdi A. Dbouk, M.D. ("Dr. Dbouk") observed Plaintiff to have painful range of motion ("ROM") of her hips and a positive straight-leg raising ("SLR") test on the right at 45 degrees. Tr. at 392. He prescribed Prozac. Tr. at 391. Plaintiff followed up on May 9, 2012, and reported right shoulder pain. Tr. at 385. Dr. Dbouk observed her to have painful external rotation of her shoulder. Tr. at 386. On July 24, 2012, Dr. Dbouk observed Plaintiff to have painful ROM in her hips and a positive SLR test on the right at 45 degrees. Tr. at 384. He assessed hypertension, supraventricular tachycardia ("SVT"), osteoarthritis, fibromyalgia, and panic/fatigue. Id. He prescribed Flexeril, Lortab, Zonegran, Klonopin, and Prozac. Id. Plaintiff reported left hand pain on September 24, 2012, and Dr. Dbouk injected her left hand. Tr. at 381. He noted that Plaintiff demonstrated painful ROM in her hips. Tr. at 382. On October 29, 2012, Plaintiff complained of right shoulder pain and carpal tunnel. Tr. at 379. Dr. Dbouk observed Plaintiff to have painful ROM of her hips and a positive SLR test on the right at 45 degrees. Tr. at 380.
Dr. Dbouk's handwritten notes are minimally legible. See Tr. at 371-92 and 449-54.
Plaintiff presented to Gordon Early, M.D. ("Dr. Early"), for a consultative examination of February 20, 2013. Tr. at 332-34. She reported having been diagnosed with fibromyalgia, peripheral neuropathy, arthritis in her hip and knee, anxiety, and depression. Tr. at 332. She indicated she had undergone bunion surgery to her left foot and had right carpal tunnel release. Tr. at 333. She complained of numbness and tingling in her left carpal tunnel distribution and indicated she felt like she needed to undergo bunion surgery to her right foot. Id. She reported her four-year-old grandson was living with her and that her 24-year-old son often stopped by to assist her with activities of daily living ("ADLs"). Id. Dr. Early described Plaintiff as "moderately depressed." Id. He observed Plaintiff's neck to be moderately tender with decreased abduction and symmetric rotation. Id. He indicated Plaintiff had a positive Tinel's sign at 3+ on the left. Id. He noted Plaintiff had no atrophy or weakness and demonstrated good ROM in her hands. Id. He observed Plaintiff to complain of pain and to demonstrate decreased ROM in her shoulders and back. Id. He noted Plaintiff's left leg was a quarter of an inch bigger than her right leg. Id. He observed Plaintiff to have decreased sensation up to her ankles and to the wrist level of her hands. Id. He described Plaintiff as walking with a slow, antalgic gait and having trouble with prolonged tiptoe and heel gait. Id. He indicated Plaintiff had good short-term memory, but impaired long-term memory. Id. He assessed "[f]ibromyalgia as primary cause of pain," but noted Plaintiff "did not give me a very good exam today." Tr. at 334. He stated Plaintiff had "[p]eripheral neuropathy of unclear cause," but stated he did not think it was causing significant limitations. Id. He diagnosed generalized anxiety with dysthymia and indicated he could not rule out a personality disorder. Id.
On February 28, 2013, Plaintiff reported problems with mitral valve prolapse, SVT, hypertension, and pain. Tr. at 376. Dr. Dbouk observed Plaintiff to have painful ROM of her hips and a positive SLR test on the right at 45 degrees. Id. He added a prescription for Mobic. Tr. at 375.
X-rays of Plaintiff's right knee and hip were negative on March 28, 2013. Tr. at 335 and 336.
On April 16, 2013, state agency consultant Craig Horn, Ph. D. ("Dr. Horn"), reviewed the evidence and completed a psychiatric review technique form ("PRTF"). Tr. at 87-88. He considered Listings 12.06 for anxiety-related disorders and 12.08 for personality disorders, but found that the record contained insufficient evidence to substantiate a diagnosis of personality disorder. Tr. at 88. He found that Plaintiff's anxiety-related disorders caused mild restriction of ADLs; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no repeated episodes of decompensation. Id. State agency consultant Debra Price, Ph. D. ("Dr. Price"), reached the same conclusions on a PRTF she completed on June 20, 2013. See Tr. at 100-01.
State agency medical consultant Ted Roper, M.D. ("Dr. Roper"), reviewed the evidence and completed a physical residual functional capacity ("RFC") assessment on April 16, 2013. Tr. at 89-91. He indicated Plaintiff had the RFC to occasionally lift and/or carry 50 pounds; frequently lift and/or carry 25 pounds; stand for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; frequently stoop, kneel, and crouch; occasionally balance, crawl, and climb ladders, ropes, or scaffolds; and frequently handle and finger with the left upper extremity. Id. He also found Plaintiff should avoid concentrated exposure to hazards. Tr. at 91. State agency consultant Dale Van Slooten, M.D. ("Dr. Van Slooten"), assessed the same RFC on June 20, 2013. Tr. at 102-05.
On April 29, 2013, Dr. Dbouk indicated Plaintiff had a positive SLR test on the right at 45 degrees and demonstrated painful ROM in her hips. Tr. at 374. He assessed osteoarthritis and fibromyalgia. Id. He indicated Plaintiff had problems with panic and fatigue. Id.
Plaintiff presented to the emergency room ("ER") at Greenville Memorial Medical Center on May 16, 2013, with complaints of chest pain and elevated blood pressure. Tr. at 338. She was diagnosed with chronic sinus tachycardia and instructed to follow up with her primary doctor. Tr. at 337.
Plaintiff presented to Dr. Dbouk's office on May 20, 2013. Tr. at 371. She reported dizziness and heart "fluttering." Id. She denied chest pain and shortness of breath. Id. Dr. Dbouk observed her to have SVT and to be hypotensive. Id. He referred her to the ER. Id.
Plaintiff presented to the ER at AnMed Health on May 20, 2013, with a rapid heart rate. Tr. at 354. She reported a one-week history of tachycardia and indicated she was experiencing weakness that primarily occurred when she was standing and walking. Tr. at 356. James M. Stumpff, M.D., changed Plaintiff's medication from Bystolic to Cardizem. Tr. at 357.
On June 19, 2013, Plaintiff presented to the ER at AnMed Health with lightheadedness, mild chest tightness, and palpitations. Tr. at 409. An EKG confirmed SVT. Tr. at 410. Lawson Freeman, M.D., ordered intravenous administration of six milligrams of Adenocard. Id.
Plaintiff presented to the ER at AnMed Health on June 24, 2013, with chest pain, shortness of breath, rapid heart rate, and nausea. Tr. at 404. Nurse Rebecca Yeargin administered six milligrams of Adenosine. Tr. at 405-06.
On July 8, 2013, Dr. Dbouk completed paperwork that authorized Plaintiff to receive a disabled placard through the South Carolina Department of Motor Vehicles. Tr. at 395. He indicated Plaintiff was unable "to ordinarily walk one hundred feet nonstop without aggravating an existing medical condition, including the increase of pain." Id. He stated the disability was temporary and was expected to last for six months. Id.
Dr. Dbouk indicated in a July 15, 2013 statement that Plaintiff's impairments included mitral valve prolapse, SVT, osteoarthritis, and fibromyalgia. Tr. at 393. He indicated that Plaintiff's pain and fatigue would affect her abilities to lift, sit, stand, walk, meet attendance expectations, and maintain concentration, persistence, and pace in a work environment. Tr. at 393-94.
Plaintiff again presented to the ER at AnMed Health on July 18, 2013, with chest pain and an elevated heart rate. Tr. at 399. She indicated that she had experienced three similar episodes in the five weeks since her dosage of Diltiazem had been increased. Id. Jeanette Kinsey, M.D., administered six milligrams of Adenosine and discharged Plaintiff with instructions to return to the ER if her symptoms worsened. Tr. at 400.
On September 23, 2013, Plaintiff presented to the ER at Hillcrest Memorial Hospital ("HMH"), after sustaining a fall. Tr. at 433. She reported injuries to her left ankle and right shoulder. Id. Plaintiff demonstrated painful and limited ROM in her right shoulder and non-pitting edema and limited ROM in her left ankle. Tr. at 435. The attending physician diagnosed an ankle sprain and a shoulder contusion. Id. She discharged Plaintiff with an aircast and crutches. Id.
Plaintiff complained of headaches, body aches, and joint pain on September 25, 2013. Tr. at 454. She informed Dr. Dbouk that she had sustained a fall that had caused her to injure her left ankle and right shoulder. Id. She reported fatigue. Id. Plaintiff complained of pain in her left ankle and right shoulder during follow up visits with Dr. Dbouk on October 2 and 25, 2013, and January 2, 2014. Tr. at 451, 452, and 453. On January 27, 2014, Plaintiff reported arthralgia/myalgia. Tr. at 450. She indicated Neurontin was causing her to feel sleepy. Id.
Plaintiff presented to HMH on April 4, 2014, complaining of neck pain that radiated down her left arm. Tr. at 429. An x-ray of Plaintiff's cervical spine showed lower cervical degenerative disc disease and calcification of the left anterior neck. Tr. at 432. The attending physician diagnosed cervical radiculopathy and instructed Plaintiff to follow up with Dr. Dbouk. Tr. at 430.
On April 9, 2014, Plaintiff presented to HMH with tachycardia. Tr. at 420. She indicated she had experienced periods of elevated heart rate in the morning and that it had become constant over the prior three-hour period. Tr. at 421. Daniel Cranston, D.O., prescribed six milligrams of Adenocard. Tr. at 424.
On June 10, 2014, Plaintiff presented to the ER at HMH with chest pain. Tr. at 411. Daniel McManus, M.D., noted that Plaintiff's heart rate and rhythm were tachycardic. Tr. at 412. He administered six milligrams of Adenocard and indicated Plaintiff's chest pain and tachycardia immediately resolved. Tr. at 413.
Plaintiff presented to cardiologist Richard N. Vest, III, M.D. ("Dr. Vest"), on June 11, 2014. Tr. at 459-62. She reported she had first noticed episodes of SVT when she was 14 or 15 years. Tr. at 459. She indicated she experienced palpitations, a racing heart rate, and dizziness. Id. She stated the episodes had become more frequent over the prior few months. Id. Dr. Vest indicated Plaintiff had paroxysmal SVT that was refractory to medical therapy. Tr. at 461. He opined that her symptoms were most consistent with atrioventricular nodal reentrant tachycardia ("AVNRT"), but that it was also possible that Plaintiff had a concealed accessory pathway. Id. Dr. Vest discussed possible treatment options with Plaintiff, and she opted to proceed with catheter ablation. Id. Plaintiff underwent cardiac ablation surgery on June 23, 2014. Tr. at 442-44.
On August 20, 2014, Plaintiff informed Dr. Dbouk that she had recently undergone cardiac ablation surgery. Tr. at 449. She complained of back and neck pain. Id. On October 1, 2014, Dr. Dbouk indicated that there had been no change in Plaintiff's condition since July 2013. Tr. at 448. On November 20, 2014, Plaintiff's blood pressure was elevated at 159/84 and she attributed her hypertension to pain. Tr. at 478. She reported that she was having difficulty staying asleep and was experiencing pain in her back, neck, and joints. Id. She stated Mobic helped "slightly." Id. Dr. Dbouk noted Plaintiff's heart rate was stable at 68 beats per minute. Id. He discontinued Mobic and prescribed Zorvolex for pain and Melatonin for sleep. Id. He indicated Plaintiff's diagnoses to be hypertension, SVT, osteoarthritis, fibromyalgia, and insomnia. Id. Dr. Dbouk authorized a renewal of Plaintiff's disabled placard on November 24, 2014. Tr. at 479 and 480.
Plaintiff presented to C. David Tollison, Ph. D. ("Dr. Tollison"), at Carolinas Center for Advanced Management of Pain on December 4, 2014. Tr. at 463. Dr. Tollison noted that Plaintiff wept throughout most of the evaluation and that her affect was blunted and her mood was dysphoric. Id. He stated Plaintiff put forth good effort and that he considered the results of testing to be valid. Id. Plaintiff reported having been treated with antidepressant medications over the prior 10 years. Tr. at 464. She indicated her symptoms included loss of appetite and a desire to avoid going places and being around others. Id. She reported feelings of tension, stress, nervousness, impatience, frustration, anhedonia, hopelessness, and helplessness. Id. She stated she felt chronically sad and experienced one or two crying episodes per week. Id. She endorsed poor sleep and stated she typically slept for three hours at a time. Id. She complained of difficulty maintaining focus and attention. Id. She reported that she typically stayed home and avoided contact with others. Tr. at 465. She indicated her family members visited her occasionally and that she attended church once a month. Id. She endorsed abilities to care for her own hygiene, perform light housework, and prepare light meals, but indicated she avoided exertional chores and infrequently visited the grocery store. Id.
Dr. Tollison conducted a mental status examination and indicated Plaintiff was fully oriented to time, place, person, and situation; had intact associations; demonstrated slow, but intact thought processes; had grossly intact recent and remote memory; showed blunted affect and dysphoric mood; displayed facial expressions that were void of rage and spontaneity; had low-average to average intelligence; demonstrated abilities to recite the days of the week and months of the year in reverse order, to subtract seven from 100, and to spell "world" forward and backwards; and neither described nor demonstrated hallucinations, delusions, or psychotic symptoms. Id.
Dr. Tollison administered the Pain Patient Profile ("P-3") psychological test and found that Plaintiff's scores were valid. Id. He indicated Plaintiff's depression score was in the top twelfth percentile, her anxiety score was in the top twenty-sixth percentile, and her somatization score was in the top twenty-ninth percentile. Id. He stated Plaintiff's scores were consistent with "a pessimistic individual who likely no longer makes plans for the future" and "who likely expresses feelings of worthlessness, helplessness, and hopelessness." Id. He stated sleep and appetite disturbance, chronic lethargy, and fatigue were common in individuals with Plaintiff's scores. Id.
Dr. Tollison administered the abbreviated version of the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") and found that Plaintiff's scores were statistically valid. Tr. at 466. He interpreted Plaintiff's scores to evidence "a clinically depressed and highly anxious individual who complains of more than the usual number of chronic physical complaints, health concerns, and related physical symptoms." Id. He stated such a profile was "frequently encountered in individuals who present with a combination of physical and psychological symptoms." Id. He indicated Plaintiff's physical and psychological symptoms tended to exacerbate each other. Id. He stated Plaintiff did "not appear to possess defense mechanisms adequate to protect herself from the influence of psychological symptoms." Id. Dr. Tollison diagnosed depressive disorder, not otherwise specific ("NOS"); anxiety disorder, NOS; and somatoform pain disorder (associated with both psychological symptoms and a general medical condition). Id. He assessed a global assessment of functioning ("GAF") score of 45-50. Id.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on December 16, 2014, Plaintiff testified that she lived in a mobile home with her 26-year-old son. Tr. at 46-47. She stated she was 5'10" tall and weighed 183 pounds. Tr. at 47. She confirmed her abilities to read, write, add, and subtract. Tr. at 48. She indicated she received $194 per month in food stamps and that her son paid for her other living expenses. Tr. at 50.
Plaintiff testified that she experienced back pain most of the time. Tr. at 51. She reported pain that radiated from her neck through her bilateral shoulders and down her back. Tr. at 61. She stated she had been diagnosed with osteoarthritis and fibromyalgia. Tr. at 51. She endorsed significant fatigue. Tr. at 69. She reported neuropathy and indicated her feet and hands were often numb. Tr. at 51. She stated she had a history of SVT and had undergone cardiac ablation surgery. Tr. at 52 and 54. She indicated she continued to have chest pain, but that she had not experienced palpitations since her surgery. Id. She reported a history of right carpal tunnel release and left foot surgery. Tr. at 52. She stated she continued to experience swelling and pain in her right hand and pain and numbness in her left hand. Tr. at 60 and 62. She testified she had received five or six injections to her left wrist over the prior year that had reduced her pain. Tr. at 62-63.
Plaintiff confirmed that Dr. Dbouk was her primary care physician and indicated he had treated her for eight or nine years for pain and depression. Tr. at 61. She testified that she was emotional and became upset easily. Tr. at 69. She indicated she did not like being around others. Id. She testified that her appetite was reduced. Tr. at 69-70. She indicated her depression had improved with use of prescribed medication. Tr. at 64.
Plaintiff testified that her pain medication provided temporary relief, but that her pain returned after the medication wore off. Tr. at 53. She indicated she had received injections that had initially been effective, but that had lost their effectiveness. Tr. at 53. She stated she had also taken steroid medications, but indicated they had caused her to gain weight. Id. She denied having participated in physical therapy or having received treatment from a chiropractor. Id. She stated her pain was worse at night and interfered with her ability to sleep. Tr. at 52 and 54-55.
Plaintiff testified that her medications caused her to experience lightheadedness, drowsiness, and dizziness and to feel like she needed to sit or lie down. Tr. at 58-59. She stated she was unable to take her medications prior to driving because they made her drowsy. Tr. at 67.
Plaintiff estimated she could stand for 10 minutes, walk for 10 minutes, and sit for 20 minutes at a time. Tr. at 59. She indicated she could lift no more than 10 pounds without pain. Id. She stated she sometimes walked with a cane because it eased the pain in her hip. Tr. at 60. She endorsed some difficulty with bending, stooping, and squatting. Id.
Plaintiff testified she took "cat naps here and there" throughout the day. Tr. at 55. She indicated she read and occasionally watched television. Tr. at 55 and 68. She confirmed that she had cared for her grandson for approximately eight months, but "had to let him go back" because she could not continue to care for him. Tr. at 55-56. She stated that her sister had stayed in her house to help her care for her grandson. Tr. at 56. She indicated she had difficulty peeling potatoes and often dropped items from her left hand. Id. She stated her son prepared most of the meals and did the laundry. Id. She testified she was sometimes able to bathe on her own, but was unable to style her hair or apply makeup. Id. She stated she could dress herself, but needed help fastening buttons. Id. She indicated she sometimes attempted to perform household chores, but that her son hired a cleaning lady. Tr. at 57. She denied going shopping, socializing with friends, visiting the movie theater, or going out to restaurants. Id. She stated she had visited the grocery store with her son in the past, but no longer did so because she had difficulty lifting items, pushing the shopping cart, and being around people. Tr. at 63-64. She indicated she attended church, but had only been once in the last three to four months. Tr. at 57. She reported she had a Facebook account that she accessed through her phone, but denied having a computer. Tr. at 57-58.
b. Vocational Expert Testimony
Vocational Expert ("VE") Carey Washington, Ph. D., reviewed the record and testified at the hearing. Tr. at 73-83. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform medium work that required she lift up to 50 pounds occasionally and up to 25 pounds frequently; could occasionally crawl, balance, and climb ladders, ropes, or scaffolds; and could frequently stoop, crouch, kneel, be exposed to moving machinery and unprotected heights, and handle and finger objects with the left hand. Tr. at 74. The VE testified that the hypothetical individual could perform medium, unskilled jobs as a hand packager, Dictionary of Occupational Titles ("DOT") number 920.587-018, with 8,000 positions in South Carolina and 150,000 positions nationally; a linen room attendant, DOT number 222.387-030, with 4,000 positions in South Carolina and 175,000 positions nationally; and a kitchen helper, DOT number 318.687-010, with 6,000 positions in South Carolina and 125,000 positions nationally. Tr. at 75.
The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform light work that required she lift up to 20 pounds occasionally and up to 10 pounds frequently; could stand or walk for approximately two hours in an eight-hour workday; could sit for approximately six hours in an eight-hour workday; could never crouch, kneel, crawl, or climb ladders, ropes, scaffolds, ramps, or stairs; could occasionally balance and stoop; and could frequently handle and finger with the left hand and be exposed to moving machinery and unprotected heights. Tr. at 75-76. The VE testified the hypothetical individual could perform light, unskilled work as a ticket seller, DOT number 211.467-030, with 4,000 positions in South Carolina and 125,000 positions nationally; a ticket taker, DOT number 344.667-010, with 3,000 positions in South Carolina and 125,000 positions nationally; and an office helper, DOT number 239.567-010, with 3,000 positions in South Carolina and 125,000 positions nationally. Tr. at 76.
The ALJ next asked the VE to consider an individual with the limitations set forth in the prior hypothetical question, but to further assume that the individual could not sustain sufficient concentration, persistence, or pace to do even simple, routine, repetitive tasks on a regular and continuing basis over the course of an eight-hour day and 40-hour work week. Tr. at 76-77. He asked if there would be jobs available for someone with those limitations. Tr. at 77. The VE responded that an individual with those limitations could not engage in substantial gainful work activity. Id.
Plaintiff's attorney referenced the jobs of call-out operator, dowel inspector, and telephone quote clerk that were identified in an earlier decision. Id. He asked if those jobs were sedentary and unskilled. Id. The VE confirmed that they were. Id.
Plaintiff's attorney asked the VE to consider a hypothetical individual of Plaintiff's vocational profile whose ability to maintain concentration, persistence, or pace was reduced by 20 percent during an eight-hour workday and five-day work week. Tr. at 78. He asked the VE to indicate the impact of that limitation. Id. The VE testified that it would preclude all substantial gainful work activity. Id.
Plaintiff's attorney asked the VE to indicate the amount of absenteeism that would be permitted in the jobs he cited. Tr. at 79. The VE indicated that absenteeism would be problematic if the individual were absent from work one day per month on a sustained basis. Id.
The ALJ next asked the VE to consider a hypothetical individual of Plaintiff's vocational profile who was limited to light work; could never crouch, kneel, crawl, or climb ladders, ropes, scaffolds, ramps, or stairs; could occasionally stoop and balance; could engage in frequent left fingering and handling; could frequently be exposed to moving machinery and unprotected heights; and could perform only one- or two-step tasks. Tr. at 80. The VE testified the individual could perform the jobs identified in response to the second hypothetical question. Id.
Plaintiff's attorney asked the VE to testify to the walking and standing requirements of light work as defined in the DOT. Tr. at 80-81. The VE confirmed that the general definition of light work required that the individual stand and walk for six hours in an eight-hour workday, but stated "that would not be a precluding factor to the performance of the specific jobs" he identified. Tr. at 81.
Plaintiff's attorney asked the VE if frequent use of the hands would require the individual to use her hands for up to two-thirds of the workday. Id. The VE confirmed that it would. Id.
2. The ALJ's Findings
In his decision dated January 30, 2015, the ALJ made the following findings of fact and conclusions of law:
1. It was previously found that the claimant is the unmarried widow of the deceased insured worker and has attained the age of 50. The claimant met the non-disability requirements for disabled widow's benefits set forth in section 202(e) of the Social Security Act.
2. The prescribed period ends on October 31, 2015.
3. The claimant has not engaged in substantial gainful activity since May 15, 2004, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
4. The claimant has the following severe impairments: osteoarthritis, carpal tunnel syndrome, depressive disorder and anxiety disorder (20 CFR 404.1520(c) and 416.920(c)).
5. The claimant also has the following non-severe impairment: superficial vein thrombosis (20 CFR 404.1521 and 416.921).
6. 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).Tr. at 19-31. II. Discussion
7. 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 CFR 404.1567(b) and 416.967(b) except the claimant is limited to work with no climbing of ladders, ropes, scaffolds, ramps or stairs, occasional stooping, no crouching, kneeling or crawling and frequent left handling and fingering. She is limited to frequent use of moving machinery and frequent exposure to unprotected heights. The claimant is able to perform work with one or two-step tasks.
8. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
9. The claimant was born on May 27, 1963 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged amended disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).
10. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
11. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
12. 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 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
13. The claimant has not been under a disability, as defined in the Social Security Act, from May 15, 2004, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ improperly relied on the VE's testimony to support the existence of jobs that Plaintiff could perform;
2) the ALJ erred in failing to consider a closed period of disability;
3) the ALJ did not evaluate Plaintiff's fibromyalgia in accordance with the provisions of SSR 12-2p; and
4) the ALJ did not adequately evaluate the work-preclusive limitations set forth by Plaintiff's treating and examining medical providers.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520 and § 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) and § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525 and § 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii) and § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526 and § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h) and § 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b) and § 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner [] made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. Reliance on VE Testimony
Plaintiff argues that a conflict exists between the VE's testimony and the DOT's description of the jobs the ALJ found she could perform. [ECF No. 10 at 21]. She maintains that the jobs identified by the ALJ have a general educational development ("GED") reasoning level of two, which conflicts with the restriction the ALJ included in the RFC assessment to jobs requiring one- or two-step tasks. Id. She contends that the VE neglected to identify the conflict between his testimony and the descriptions of the jobs in the DOT and that the ALJ neither identified nor resolved the conflict. Id. at 24-25.
The Commissioner argues "the ALJ was entitled to rely on the testimony of the VE that the jobs of ticket seller, ticket taker, and office helper, each with a specific vocational preparation ("SVP") of 2, constituted unskilled work." [ECF No. 11 at 10]. She maintains that the regulations provide that unskilled work corresponds to an SVP of one or two. Id. at 11. She contends "SSA's adjudicators must adhere to the regulations, notwithstanding the reasoning level set out in the DOT." Id. at 11.
At the fifth step in the sequential evaluation process, "the Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015), citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). In assessing the claimant's ability to perform other jobs existing in significant numbers in the national economy, the ALJ should take administrative notice of job information contained in the DOT. 20 C.F.R. § 404.1566(d) and § 416.966(d); see also SSR 00-4p (providing that "we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy"). In some cases, ALJs call upon the services of VEs to address how certain restrictions affect claimants' abilities to perform specific jobs. 20 C.F.R. § 404.1566(e) and § 416.966(e).
Recognizing that VEs' opinions sometimes conflict with the information contained in the DOT, the SSA promulgated SSR 00-4p to explain how these conflicts should be resolved. The Fourth Circuit recently explained that the "purpose" of SSR 00-4p "is to require the ALJ (not the vocational expert) to '[i]dentify and obtain a reasonable explanation' for conflicts between the vocational expert's testimony and the Dictionary, and to '[e]xplain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208, citing SSR 00-4p (emphasis in original). The court noted that SSR 00-4p sets forth two independent responsibilities. Id. "First, the ALJ must '[a]sk the [vocational expert] . . . if the evidence he or she has provided conflicts with the information provided in the [Dictionary]'; and second, '[i]f the [vocational expert]'s . . . evidence appears to conflict with the [Dictionary],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. at 208, citing SSR 00-4p. "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [expert] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified.'" Id. at 208, citing SSR 00-4p (emphasis in original). Thus, "[t]he ALJ independently must identify conflicts between the expert's testimony and the Dictionary." Id. at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT" and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016), citing Pearson, 810 F.3d at 210.
The court explained that an "apparent conflict" existed when the VE's evidence "appear[ed] to conflict with the Dictionary." Pearson, 810 F.3d at 209.
Pertinent to Plaintiff's argument, the ALJ found that Plaintiff had the RFC "to perform work with one or two-step tasks." Tr. at 22. He recognized that he could not rely on the Medical-Vocational Guidelines to direct a decision because Plaintiff's "ability to perform all or substantially all of the requirements" of light work had "been impeded by additional limitations," and he solicited the services of a VE to identify jobs Plaintiff could perform given her age, education, work experience, and RFC. See Tr. at 30. The ALJ relied on the VE's testimony that an individual with the assessed RFC could perform jobs as a ticket seller, a ticket taker, and an office helper. Tr. at 30-31. He determined, "[p]ursuant to SSR 00-4p," that the VE's testimony was consistent with the information contained in the DOT. Tr. at 31.
The ALJ fulfilled his first obligation under SSR 00-4p in asking the VE whether the evidence he provided through his testimony conflicted with the DOT. See Pearson, 810 F.3d at 208; SSR 00-4p. In fact, both the ALJ and Plaintiff's attorney questioned the VE regarding the consistency of his testimony with the job descriptions found in the DOT. Tr. at 80-83. The following exchange occurred between Plaintiff's attorney and the VE:
ATTY: Okay. And in your utilization of these jobs and the titles that you cited, they are, in fact, as defined in the DOT[?]Tr. at 82-83. After Plaintiff's attorney completed his questioning, the following exchange occurred between the ALJ and the VE:
VE: To the best of my knowledge, yes, sir, they are.
ATTY: Okay. So there's not some significant difference in your opinion versus the actual definitions.
VE: Well, the Dictionary of Occupational Titles is quite outdated. And my observation and experience is what I bring to the table that could be conflictual, in some instances, to what is in the Dictionary of Occupational Titles.
ATTY: But in your opinion expressed today we're using these numbers and how they're described there.
VE: Yes, sir.
ALJ: Okay. All right, just be sure—have you identified a conflict between your testimony and the Dictionary of Occupational Titles?Tr. at 83. Although the VE indicated that he brought his "observation and experience" to "the table," he emphatically denied that any of the evidence in his testimony conflicted with the DOT. Thus, he did not put the ALJ on notice of a need to reconcile his testimony with evidence in the DOT. Nevertheless, the VE's failure to identify the conflict did not absolve the ALJ of his independent duty to consult the DOT and to determine whether the VE's testimony was consistent with its descriptions of the identified jobs. See Pearson, 810 F.3d at 208-10; SSR 00-4p.
VE: I haven't.
ALJ: Okay. Okay. All right, thank you. I have no further questions.
A review of the DOT reveals that the job of ticket seller is described as having a GED reasoning level of three and requiring that the worker "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form" and "[d]eal with problems involving several concrete variables in or from standardized situations." 211.467-030 TICKET SELLER. Dictionary of Occupational Titles (4th ed., revised 1991), 1991 WL 671853. The jobs of ticket taker and office helper have a GED reasoning level of two and require the worker to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving a few concrete variables in or from standardized situations." 344.667-010 TICKET TAKER. Dictionary of Occupational Titles (4th ed., revised 1991), 1991 WL 672863; 239.567-010 OFFICE HELPER. Dictionary of Occupational Titles (4th ed., revised 1991), 1991 WL 672232.
The United States Court of Appeals for the Fourth Circuit recently explained that "[u]nlike GED reasoning Code 1, which requires the ability to '[a]pply commonsense understanding to carry out simple one-or-two-step instructions,' GED Reasoning Code 2 requires the employee to '[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.'" Henderson v. Colvin, 643 F. App'x 273, 276-77 (4th Cir. 2016), citing DOT, 1991 WL 688702 (2008); Rounds v. Comm'r, 807 F.3d 996, 1003 (9th Cir. 2015) (holding that reasoning code 2 requires additional reasoning and understanding above the ability to complete one-to-two step tasks). Given this explanation, the RFC the ALJ assessed in the instant case was consistent with jobs having a GED reasoning code of one, as opposed to the identified jobs that had GED reasoning codes of two and three.
In Henderson, 643 F. App'x at 277, the court acknowledged that "there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions." Accordingly, the court found that the ALJ failed to meet his burden at step five because the VE's testimony did not provide substantial evidence to show that the plaintiff's RFC would allow him to perform work that existed in significant numbers. Id. at 277; Pearson, 810 F.3d at 207-10. Although Henderson is an unpublished opinion, this court has applied its holding in subsequent cases. See Christopherson v. Colvin, No. 6:15-4725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016) (relying on the Fourth Circuit's holding in Henderson and earlier cases in this district to find that an apparent conflict existed between the limitation in the RFC to "simple, routine, and repetitive tasks" and identified jobs with GED reasoning levels of two and three); Sullivan v. Colvin, No. 8:16-79-JMC-JDA, 2016 WL 7228854, at *10 (D.S.C. Nov. 10, 2016) (following Henderson in finding the restriction in the RFC to "one or two step tasks" created an apparent conflict with the jobs the VE identified that had a GED reasoning code of two). The Fourth Circuit's holding in Henderson and this court's holdings in Christopherson and Sullivan direct a finding that there was an apparent conflict in the instant case between an RFC that limited Plaintiff to "to perform work with one or two-step tasks" (Tr. at 22) and the ALJ's finding that she could perform jobs with GED reasoning codes of two and three. Because the ALJ failed to identify or resolve the conflict, the undersigned recommends the court find that he erred in relying on the VE's testimony and failed to meet his burden at step five.
The undersigned further recommends the court reject the Commissioner's argument that no conflict existed because the VE identified jobs with an SVP of two. As Plaintiff points out in her response, the Commissioner appears to be confusing SVP and GED reasoning level. See ECF No. 12 at 3. In Taylor v. Colvin, No. 1:14-629, 2015 WL 4726906 (M.D.N.C. Aug. 10, 2015), the court considered and rejected a similar argument. The court noted "the SVP for the positions and the designation as 'skilled' or 'unskilled' are separate vocational considerations that do not address [the argument] with respect to Reasoning Level." Taylor, 2015 WL 4726906, at *5, citing Hann v. Colvin, No. 12-6234-JCS, 2014 WL 1382063, at *16 n.9 (N.D. Cal. Mar. 28, 2014) (unpublished) ("The Court rejects the Commissioner's first argument to the extent that it depends on the SVP to show consistency between the DOT and the VE's testimony, because the Commissioner 'conflat[es] two separate vocational considerations.' An SVP gauges 'the minimal ability a worker needs to complete the job's tasks themselves.' Accordingly, the SVP is inapposite to the analysis of whether the DOT's definition of Reasoning Level 2 is consistent with the VE's testimony regarding jobs that [the claimant] could perform with her RFC limitation to on- to two-step instructions." (internal quotations omitted); Gonzalez v. Astrue, No. 1:10-1330, 2012 WL 14002, at *13 (E.D. Cal. Jan. 4, 2012), ("'Unskilled work,' however, as used by the DOT and the Commissioner's regulations, does not necessarily conflate with jobs that involve only simple one- to two-step instructions. There are two separate vocational considerations . . . In other words, not all 'unskilled' jobs will necessarily be limited to the simplest level of work involving only one- or two-step instructions."). As the court in Snider v. Colvin, No. 7:12-539, 2014 WL 739151, at *8 n.5 (W.D. Va. Feb. 26, 2014), explained, citing Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 (C.D. Cal. 2005), "[t]he SVP level in a DOT listing is focused on the amount of lapsed time it takes for a typical worker to learn the job's duties." It stated "[t]he SVP level is different from the reasoning level, which gauges the minimal ability a worker needs to complete the job's tasks themselves." Snider, 2014 WL 739151, at *8 n.5. Because the GED reasoning level is a distinct consideration apart from the SVP, the fact that the VE identified jobs that were consistent with the SVP described in the DOT did not resolve the apparent conflict that was created by his identification of jobs with GED reasoning levels of two and three that were inconsistent with the "one- and two-step tasks" specified in the assessed RFC.
To the extent the Commissioner argues Plaintiff's attorney was required to point out the conflict between the VE's testimony and the DOT at the hearing [ECF No. 11 at 11], the undersigned recommends the court reject her argument. The ALJ's affirmative duties to resolve conflicts between the DOT and the VE's testimony and to identify jobs at step five cannot be shifted to the claimant. See Pearson, 810 F.3d at 210 (providing that an ALJ "has a duty to investigate the facts and develop the record independent of the claimant or his counsel" and has "not fully developed the record if it contains an unresolved conflict between the expert's testimony and the Dictionary").
2. Closed Period of Disability
Plaintiff argues the ALJ failed to consider whether SVT was disabling between May 16, 2013, and her ablation surgery on June 24, 2014. [ECF No. 10 at 25-26]. She maintains the ALJ mischaracterized the condition as superficial vein thrombosis. Id. at 25.
The Commissioner argues the record did not support a finding that Plaintiff had a cardiac impairment that significantly limited her ability to perform work activities. [ECF No. 11 at 5-6].
Plaintiff correctly notes that the ALJ mischaracterized her impairment as "superficial venous thrombosis" as opposed to "supraventricular tachycardia." See Tr. at 20. Despite his error in identifying Plaintiff's diagnosis, his decision reflects that he considered relevant evidence with respect to Plaintiff's impairment. See Tr. at 20 (noting that Plaintiff experienced some tachycardia and chest pain, but that her issues were resolved through ablation surgery), 24 (referencing an ER visit for SVT on July 28, 2013), and 25 (indicating Plaintiff presented to the ER for tachycardia on April 9, 2014). Therefore, the ALJ's error in identifying Plaintiff's diagnosis in the decision was harmless. See Mickles v. Shalala, 29 F. 3d 918, 921 (4th Cir. 1994) (finding the ALJ's error harmless where he conducted the proper analysis, cited substantial evidence to support his finding, and "would have reached the same conclusion notwithstanding his initial error").
Although Plaintiff argues the ALJ should have considered whether her SVT entitled her to a closed period of disability, the undersigned recommends the court find the ALJ did not err in failing to award a closed period of disability. To qualify for disability benefits under the Social Security Act, an individual must have a medically-determinable impairment that renders her unable to engage in substantial gainful activity and is either (1) expected to result in death or (2) has lasted or can be expected to last for a continuous period of not less than 12 months. See 42 U.S.C. § 423(d)(1)(A) and § 1382c(a)(3)(A). While the record supports a finding that Plaintiff's symptoms of SVT lasted for more than 12 months, it does not support a finding that her symptoms were continuous over that period. Plaintiff initially presented to the ER and was diagnosed with SVT on May 16, 2013. Tr. at 337-38. She again presented to the ER on May 20, 2013, and reported that she had experienced a one-week history of tachycardia. Tr. at 354 and 356. In light of Plaintiff's reports, it seems her symptoms developed around mid-May 2013. Plaintiff presented to the ER on three more occasions in June and July 2013. See Tr. at 399-400, 404-06, and 409-10. However, she did not present with complaints of SVT-related symptoms again until April 9, 2014. See Tr. at 420-24. She subsequently visited the ER with SVT-related symptoms for the last time on June 10, 2014. Tr. at 411-13. When she visited Dr. Vest the next day, she reported that her symptoms had been more pronounced over the prior few months, which was consistent with the ER visit on April 9, 2014. See Tr. at 459. Plaintiff underwent ablation surgery on June 23, 2014, which seemed to resolve most of her symptoms. See Tr. at 442-44. Because the record indicates that Plaintiff had two periods of exacerbation of SVT symptoms, but that her symptoms were generally stable between July 18, 2013, and April 9, 2014, the undersigned recommends the court find she did not show a continuous period of disability based exclusively on symptoms of SVT between May 16, 2013, and June 23, 2014.
3. Evaluation of Fibromyalgia Under SSR 12-2p
Plaintiff argues the ALJ erroneously determined that her diagnosis of fibromyalgia was not a medically-determinable impairment. [ECF No. 10 at 26-27]. She maintains the ALJ failed to consider the alternative diagnostic criteria in SSR 12-2p. Id. at 27. She contends the ALJ did not consider fibromyalgia at step two or at subsequent steps in the evaluation process. [ECF No. 12 at 5].
The Commissioner contends that Plaintiff was not diagnosed with fibromyalgia based on the requirements in SSR 12-2p. [ECF No. 11 at 6]. She maintains that the ALJ's consideration of fibromyalgia in subsequent steps rendered his failure to consider it at step two harmless error. Id.
The Social Security Administration ("SSA") published SSR 12-2p to provide guidance on how it develops evidence to establish and evaluate a medically-determinable impairment of fibromyalgia. SSR 12-2p, 2012 WL 3104869. The ruling provides that a claimant may establish fibromyalgia as a medically-determinable impairment through evidence from an acceptable medical source. Id. at *2. ALJs should not rely on the physician's diagnosis alone, but should review the evidence to determine if the claimant's medical history and physical examinations are consistent with the diagnosis and with the physician's statements regarding the claimant's physical strength and functional abilities. Id. The ruling requires that a claimant's diagnosis of fibromyalgia be confirmed through either the 1990 ACR Criteria for the Classification of Fibromyalgia ("1990 Criteria") or the 2010 ACR Preliminary Diagnostic Criteria ("2010 Criteria"). Id.
The 1990 Criteria required the following:
1) A history of widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months. The pain may fluctuate in intensity and may not always be present.2012 WL 3104869, at *3.
2) At least 11 positive tender points on physical examination . . . The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist . . .
3) Evidence that other disorders that could cause the symptoms of signs were excluded . . . .
To establish a diagnosis under the 2010 Criteria, the claimant must have a history of widespread pain; repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded. Id. Fibromyalgia symptoms and signs that may be considered include muscle pain, irritable bowel syndrome, fatigue or tiredness, thinking or memory problems, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, depression, pain in the upper abdomen, nausea, nervousness, chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud's phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste, change in taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms. Id. at n.9. Co-occurring conditions include irritable bowel syndrome, depression, anxiety disorder, chronic fatigue syndrome, irritable bladder syndrome, interstitial cystitis, temporomandibular joint disorder, gastroesophageal reflux disorder, migraine, or restless leg syndrome. Id. at n.10.
The ALJ noted that the record contained several references to the diagnosis of fibromyalgia, but that it contained "no evidence showing that the claimant exhibits the symptoms associated with this impairment." Tr. at 20. He stated the record did not show Plaintiff to have "the requisite number of tender point findings (or any tender points)" or that physicians had "excluded other impairments as required in SSR 12-2p." Id. He concluded that the fibromyalgia diagnosis did not "comport with the requirements set forth in SSR 12-2p or 96-4p that requires that an 'impairment' must result from anatomical, physiological or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques." Id. Therefore, he found that fibromyalgia was not a medically-determinable impairment. Id.
The record supports the ALJ's finding that Plaintiff did not have a medically-determinable impairment of fibromyalgia based on the 1990 Criteria, but his decision reflects no consideration of the 2010 Criteria. See Tr. at 20. The 2010 Criteria, as opposed to the 1990 Criteria, do not require the presence of tender points. See 2012 WL 3104869, at *3. A review of the record reveals that Dr. Dbouk and Dr. Early—both acceptable medical sources—indicated a diagnosis of fibromyalgia. See Tr. at 334 and 384; see also 20 C.F.R. § 404.1513(a) and § 416.913(a). It evidences Plaintiff's reports of widespread pain during multiple treatment visits. Tr. at 51, 61, 333, 374, 375-76, 379-80, 381-82, 384, 385-86, 391, 392, 450, 451, 452, 453, 454, and 478. The record also documents more than six symptoms, signs, or co-occurring conditions of fibromyalgia, including muscle pain (Tr. at 376, 379, 385, 391, 449, and 478), fatigue (Tr. at 374, 384, 454, and 465), cognitive or memory impairment (Tr. at 333 and 464), depression (Tr. at 333, 465, and 466), anxiety (Tr. at 334, 391, 465, and 466), numbness and tingling (Tr. at 333), and loss of appetite (Tr. at 464).
The ALJ was correct in concluding that the record did not show that fibromyalgia was diagnosed after other potential impairments were excluded. Pursuant to SSR 12-2p,
[I]t is common in cases involving [fibromyalgia] to find evidence of examinations or testing that rule out other disorders that could account for the person's symptoms and signs. Laboratory testing may include imaging and other laboratory tests (for example, complete blood counts, erythrocyte sedimentation rate, anti-nuclear antibody, thyroid function, and rheumatoid factor).2012 WL 3104869, at *3. The record is not devoid of imaging reports or laboratory testing. See Tr. at 335, 336, 432, 438, and 439 (containing relatively benign x-ray and CT scan results) and Tr. at 346-47, 351, 352-53, 365-66, 368, 369, 418, 419, 420, 424, 427, 445-47, 455, and 457-58 (indicating few abnormalities on laboratory testing and normal thyroid functioning). However, these imaging reports and laboratory tests were administered routinely and not for the purpose of ruling out particular disorders.
Although the record does not reflect efforts to exclude other potential diagnoses that might account for Plaintiff's symptoms, it is unclear if such evidence is absent from the record because Plaintiff's medical providers neglected to exclude other impairments or if the other potential impairments were excluded prior to the relevant period. The SSA requested Dr. Dbouk's records for the period beginning November 8, 2011 (Tr. at 370), and the first note from a treatment visit in the record is dated January 30, 2012 (Tr. at 391). In his July 15, 2013 statement, Dr. Dbouk indicated he had treated Plaintiff since 2005. Tr. at 393. The earliest records from Dr. Dbouk indicate that fibromyalgia was an established diagnosis by early 2012. See Tr. at 387-92. Therefore, it is possible that Dr. Dbouk ruled out other potential diagnoses prior to the earliest date covered by the medical records request.
Pursuant to SSR 12-2p, the SSA is to request evidence for the 12-month period prior to the claimant's application date unless the adjudicator has "reason to believe" that he needs "evidence from an earlier period." 2012 WL 3104869, at *4. In addition, SSR 12-2p dictates actions to be taken if the record contains insufficient evidence for the adjudicator to determine whether the claimant has a medically-determinable impairment of fibromyalgia. Id. It provides that the ALJ may recontact the claimant's treating or other sources; request additional existing records; or ask the claimant or others for more information. Id. If the record remains insufficient to establish fibromyalgia as a medically-determinable impairment after the adjudicator takes these steps, the ALJ may make a decision based on the evidence he has or may refer the claimant for a consultative examination. Id.
In light of Plaintiff's lengthy treatment relationship with Dr. Dbouk and evidence that fibromyalgia was an established diagnosis by January 2012, the ALJ should have reasonably inferred that earlier existing records might show that other potential diagnoses were excluded. Despite this possibility and contrary to SSR 12-p's provisions for addressing cases involving insufficient evidence, the ALJ did not attempt to obtain additional records from Dr. Dbouk or any other provider who treated Plaintiff prior to November 2011. He also failed to take any of the other actions specified in SSR 12-2p for resolving the insufficiency. Because the ALJ did not take any steps to resolve the insufficiency, he did not properly reject the diagnosis of fibromyalgia based on the absence of evidence in the record to show other potential diagnoses were excluded. See SSR 12-2p, 2012 WL 3104869, at *4 (providing that the determination may be made based on the evidence of record if the record remains insufficient "despite our efforts to obtain additional evidence").
Furthermore, a review of the record does not show that the ALJ adequately considered fibromyalgia at subsequent steps in the evaluation process. He did not consider whether fibromyalgia equaled a Listing at step three. See Tr. at 20-22. He indicated that the medical evidence of record revealed Plaintiff to have osteoarthritis and carpal tunnel syndrome, but did "not support the severity of symptoms as alleged." Tr. at 26. He proceeded to summarize the x-ray findings and some of the objective examination findings. See id. He did not consider whether fibromyalgia may support the severity of Plaintiff's alleged symptoms when he found that "medical signs and laboratory findings [did] not substantiate any physical impairment capable of producing the pain alleged." Tr. at 27. Therefore, his RFC assessment fails to reflect adequate consideration of all of Plaintiff's impairments and his finding that Plaintiff could perform jobs at step five is inherently flawed.
In light of the foregoing, the undersigned recommends the court find the ALJ did not adequately consider Plaintiff's fibromyalgia diagnosis under SSR 12-2p.
4. Medical Opinions
Plaintiff argues that substantial evidence does not support the weight the ALJ accorded to opinions from Dr. Dbouk and Dr. Tollison. [ECF No. 10 at 29-36]. In light of the foregoing recommendations, the undersigned declines to address Plaintiff's specific allegations of error. However, because the ALJ's consideration of the medical opinions of was affected by his rejection of fibromyalgia as a severe impairment, it would be prudent for him to reevaluate the opinions after obtaining additional evidence regarding Plaintiff's fibromyalgia diagnosis. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. March 29, 2017
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).