Opinion
7:22-CV-193-FL
02-12-2024
CHRISTINE PIACITELLI, Plaintiff/Claimant, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the parties' briefs filed pursuant to the Supplemental Rules for Social Security Actions. [DE-21, -23]. Claimant Christine Piacitelli (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits (“DIB”). Claimant filed a reply in support of her opening brief, [DE-24], the time for further responsive briefing has expired, and the matter is ripe for adjudication. Having carefully reviewed the administrative record and the briefs submitted by the parties, it is recommended that the case be remanded for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on November 5, 2020, alleging disability beginning December 3, 2019. (R. 24, 208-09). The claim was denied initially and upon reconsideration. (R. 24,99-119). A telephonic hearing before an Administrative Law Judge (“ALJ”) was held on November 4, 2021, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 24, 46-73). On December 6, 2021, the
ALJ issued a decision denying Claimant's request for benefits. (R. 21-45). On June 17, 2022, the Appeals Council denied Claimant's request for review. (R. 9-15). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
IL STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ erred by failing (1) to properly evaluate Claimant's fibromyalgia, (2) to properly evaluate Claimant's statements about her pain in light of her limited daily activities, and (3) to consider evidence after the date last insured. Pl.'s Br. [DE-21] at 8-15.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant did not engage in substantial gainful activity from the alleged onset date of December 3, 2019 through the date last insured of December 31, 2020. (R. 27). Next, the ALJ determined Claimant had the severe impairments of right carpal tunnel syndrome, obesity, back disorder, anxiety and obsessive-compulsive disorder, and attention deficit and hyperactivity disorder, as well as the non-severe impairments of left lateral facet patellofemoral arthritis and lymphedema. Id. The ALJ also determined that Claimant's alleged problems related to a fibromyalgia diagnosis did not meet the requirements of SSR 12-2p. (R. 28). At step three, the ALJ concluded Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 28-31). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in a mild limitation in understanding, remembering, or applying information; and a moderate limitation in interacting with others, adapting or managing oneself, and concentrating, persisting, or maintaining pace. (R. 30).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following additional limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
[S]he can lift and carry 20 pounds occasionally and 10 pounds frequently. She can sit, stand and/or walk for six hours each in an eight-hour workday. She can frequently climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds;
and frequently balance, stoop, kneel, crouch and crawl. She could have frequent handling with the right dominant hand. She could not use the left upper extremity at or above shoulder level. She can maintain attention and concentration to carry out simple tasks and/or instructions. She can maintain occasional interaction with coworkers, supervisors, and the general public. She cannot perform time pressured tasks such that the claimant is limited to goal-oriented work, not time sensitive strict production quotas. She can tolerate simple routine changes in a work setting.(R. 31-38). In making this assessment, the ALJ found Claimant's statements regarding the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. (R. 32). At step four, the ALJ concluded Claimant had no past relevant work. (R. 38). Nevertheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined there are other jobs that exist in significant numbers in the national economy that Claimant can perform. (R. 38-10).
V. DISCUSSION
A. The ALJ's Consideration of Fibromyalgia
Claimant contends that she suffers from fibromyalgia, which has caused her joint and muscle pain “forever,” and that the ALJ made a conclusory finding that SSR 12-2p was not satisfied. Pl.'s Mem. [DE-21] at 8-10; Pl.'s Reply [DE-24] at 2-5. The Commissioner contends the ALJ properly evaluated Claimant's fibromyalgia. Def.'s Br. [DE-23] at 8-16.
A medically determinable impairment is one that “result[s] from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques” and “must be established by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 404.1521. Importantly, a claimant's statement of symptoms, a diagnosis alone, or a medical opinion are insufficient to establish the existence of an impairment. Id. The Social Security Administration defines fibromyalgia as “a complex medical condition characterized primarily by widespread pain in the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” S.S.R. 12-2p, 2012 WL 3104869, at *2 (July 25, 2012). “Generally, a person can establish that he or she has [a medically determinable impairment] of [fibromyalgia] by providing evidence from an acceptable medical source.” Id. However, “[t]he evidence must document that the physician reviewed the person's medical history and conducted a physical exam.” Id.
In evaluating fibromyalgia, the ALJ considers the physician's treatment notes, the claimant's symptoms over time, and the physician's assessment over time of the claimant's physical strength and functional abilities. Id. A claimant's fibromyalgia is considered a medically determinable impairment when one of two sets of criteria are met: a physician diagnosed fibromyalgia and provided evidence of (1) a history of widespread pain; at least 11 positive tender points on physical examination; and other disorders that could cause the symptoms or signs were excluded; or (2) a history of widespread pain; repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome; and other disorders that could cause the aforementioned symptoms were excluded. Id. at *2-3. The fibromyalgia “signs” and “symptoms” may 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, heartbum, 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 *3 n.9. The “co-occurring conditions” may include irritable bowel syndrome, depression, anxiety disorder, chronic fatigue syndrome, interstitial cystitis, temporomandibular joint disorder, gastroesophageal reflux disorder, migraine, or restless leg syndrome. Id. at*3n.l0. Finally, the physician's diagnosis must be consistent with other evidence in the record. Id. at *2.
The first set of criteria is based on the 1990 American College of Rheumatology (“ACR”) Criteria for the Classification of Fibromyalgia (the “1990 Criteria”) and the second on the 2010 ACR Preliminary Diagnostic Criteria (the “2010 Criteria”). S.S.R. 12-2p, 2012 WL 3104869, at *2.
At step two, the ALJ acknowledged that Claimant alleged she experienced problems related to a fibromyalgia diagnosis, summarized the requisite criteria under SSR 12-2p, and determined that the criteria were not met. (R. 28). The ALJ explained that,
Dr. David Stoll, consultative examiner determined that he needed rheumatology notes substantiating a fibromyalgia diagnosis (B14F/4). .. . [T]here is no evidence in the record that her doctors ruled out other disorders that could cause her symptoms through examinations, laboratory tests and imaging. During a consultative examination for DDS, the claimant did not exhibit any signs of fibromyalgia on examination. She does not treat with a specialist for her alleged fibromyalgia nor does she take medications for it.Id. Claimant suggests that the ALJ's determination is conclusory and fails to cite any evidence supporting the conclusion and that Claimant's fibromyalgia meets the 2010 criteria, specifically that the record (1) contains evidence of a history of widespread pain, (R. 454, 458, 471, 478); (2) contains diagnoses of co-occurring conditions such as anxiety and depression, (R. 466), memory problems, (R. 339), sleep disturbance, (R. 318), chronic fatigue, (R. 466), and muscle weakness, (R. 530); and (3) indicates conditions including carpal tunnel have been excluded as a cause for many of her problems, (R. 526). Pl.'s Mem. [DE-21] at 8-9.
First, although Claimant contends she carries the requisite six co-occurring conditions, the 2010 criteria require “repeated manifestations” of six or more “symptoms, signs, or co-occurring conditions . . . .” S.S.R. 12-2p, 2012 WL 3104869, at *3. In finding that Claimant did not meet the 2010 criteria the ALJ noted that, in December 2020, “[d]uring a consultative examination for DDS, the claimant did not exhibit any signs of fibromyalgia on examination.” (R. 28, 458-461). The ALJ also discussed in the RFC analysis Claimant's anxiety, depression, and memory problems, noting that in December 2019, Claimant reported no anxiety, depression, or memory loss problems, (R. 451); in May 2020, her depression was noted to be stable on medication, (R. 616); in September 2020, she displayed no cognitive function impairments (R. 444); and in October 2020, she denied depression, anxiety, and memory loss, (R. 421). (R. 35). Furthermore, at a primary care visit in August 2021, which is after Claimant's date last insured but only two months prior to the administrative hearing where she testified to having panic attacks and anxiety, (R. 65), Claimant denied anxiety and had “no complaints” regarding her depression. (R. 626-27). Similarly, Claimant does not cite evidence of “repeated manifestations” of sleep disturbance, and the most recent records indicate her ability to sleep was unaffected after physical therapy, (R. 473). The ALJ also observed that Claimant was not treated by a specialist nor she did take medication for her fibromyalgia. (R. 28); see Simon J. v. Kijakazi, No. CV 22-2315-BAH, 2023 WL 3794323, at *4 (D. Md. June 2,2023) (finding the ALJ properly considered Plaintiffs limited treatment history in evaluating his fibromyalgia), reconsideration denied, 2023 WL 5577387 (D. Md. Aug. 29, 2023).
Next, the ALJ correctly found that the requirement that Claimant's doctors ruled out other disorders that could cause her symptoms was not met. (R. 28). SSR 12-2p lists examples of other such disorders, including rheumatologic disorders, myofacial pain syndrome, polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or hyperflexion-associated disorders. 2012 WL 3104869, at *3 n.7. Claimant does not argue that any of these or other similar disorders were ruled out; rather, Claimant cites a March 2020 orthopedic treatment note as evidence that carpel tunnel was ruled out as a cause for her symptoms. Pl.'s Mem. [DE-21] at 9 (citing R. 526). However, this treatment note indicates that Claimant did have carpel tunnel syndrome and that she might also have other issues with her hand, and she was referred to a hand surgeon. (R. 526). This record does not support the implication that fibromyalgia might be the cause for Claimant's hand and wrist pain and limited functioning. Furthermore, the ALJ discussed Claimant's hand impairment in detail in the RFC analysis, including her August 2020 carpel tunnel release, her initial improvement with some continued symptoms after physical therapy from September to October 2020, and her continued improvement with additional skilled hand therapy. (R. 34). The record also reflects that Claimant reported she suffers from spondylitis multilevel lumbar disc disease, narrowing of her spine, bursitis in her hips, and sciatic nerve pain, (R. 463), conditions other than fibromyalgia that could cause many of her symptoms. See Wood v. Berryhill, No. 5:14-CV-00171-RLV, 2017 WL 3710803, at *3 (W.D. N.C. Aug. 28, 2017) (finding no error in the ALJ's conclusion that fibromyalgia was not a medically determinable impairment where the medical evidence in the record revealed that other medical conditions could account for plaintiffs symptoms and that they were not ruled out). Accordingly, Claimant has not established error in the ALJ's analysis regarding the failure to rule out other disorders that could cause her symptoms.
Claimant does cite a normal red blood cell sedimentation rate test from June 2021, (R. 600), which she contends is “sufficient to rule out other impairments that could cause full-body pain.” Pl.'s Mem. [DE-21] at 10. The treatment note indicates that this lab work was done prior to starting medication treatment related to a vertebral fracture. (R. 589). Claimant cited no support for her assertion that this test is sufficient to rule out other impairments that could cause full body pain or the other impairments listed in SSR 12-2p.
Claimant also takes issue with the ALJ's interpretation of Dr. Stoll's statement in a consultative opinion that he “would like to see notes from the rheumatologist substantiating a diagnosis of fibromyalgia,” (R. 461). Pl.'s Mem. [DE-21] at 9-10. The ALJ, in finding that the fibromyalgia criteria were not met, stated that Dr. Stoll determined he “needed rheumatology notes substantiating a fibromyalgia diagnosis.” (R. 28). SSR 12-2p provides that “a person can establish that he or she has [a medically determinable impairment] of [fibromyalgia] by providing evidence from an acceptable medical source,” a diagnosis alone is insufficient, and “[t]he evidence must document that the physician reviewed the person's medical history and conducted a physical exam.” 2012 WL 3104869, at *2. The ALJ appropriately cited Dr. Stoll's statement regarding the absence of evidence substantiating a fibromyalgia diagnosis, which is required by SSR 12-2p. Id. (“We will review the physician's treatment notes to see if they are consistent with the diagnosis of [fibromyalgia]....”).
Finally, Claimant contends the ALJ's evaluation of her fibromyalgia is contrary to the Fourth Circuit's guidance in Jrato v. Comm'r of the SSA, 983 F.3d 83 (4th Cir. 2020). However, Arakas is distinguishable. In that case, the ALJ found Claimant's fibromyalgia was a severe impairment but then “failed to appreciate the waxing and waning nature of fibromyalgia and to consider the longitudinal record of Arakas's symptoms as a whole.” Id. at 100. The ALJ in Arakas also erred in discounting symptoms of pain and fatigue based on a lack of objective medical evidence, which was legal error because the symptoms of fibromyalgia are almost entirely subjective. Id. at 96. Here, the ALJ found that fibromyalgia was not a medically determinable impairment under SSR 12-2p; therefore, the discussion in Arakas regarding evaluation of the symptoms of fibromyalgia is not applicable in this case. See Lisa W. v. Kijakazi, No. 2:20-CV-00590, 2021 WL 6101825, at *8 (E.D. Va. Sept. 28, 2021) (concluding that where the ALJ found that Plaintiff's fibromyalgia was not severe, Arakas was not directly controlling), adopted by 202110 WL 5412585 (E.D. Va. Nov. 19, 2021).
The ALJ's discussion here was not lengthy, but it was sufficient for the court to trace the ALJ's reasoning, which is supported by substantial evidence. See Keene v. Berryhill, 732 Fed.Appx. 174,177 (4th Cir. 2018) (finding no error where the ALJ's justification, “albeit somewhat sparse,” was sufficient to demonstrate the ALJ performed an adequate review of the whole record and that the decision is supported by substantial evidence). Accordingly, the ALJ did not err in evaluating fibromyalgia at step two.
B. Subjective Reports of Pain
Claimant contends the ALJ erred by discrediting her statements regarding her pain based on her activities of daily living and the objective medical evidence. Pl.'s Mem. [DE-21] at 10-13. The Commissioner argues that the ALJ properly considered Claimant's subjective reports of pain pursuant to 20 C.F.R. § 404.1529 and SSR 16-3p. Def.'s Mem. [DE-23] at 13-18.
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also SSR 96-8p, 1996 WL 374184, at *5. “[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting SSR 96-8p); see also Clifford v. Apfel, 11 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
Federal regulation 20 C.F.R. § 404.1529(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause the alleged symptoms. S.S.R. 16-3p,2016WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate “the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work,” Craig, 76 F.3d at 595, including whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the “intensity, persistence and limiting effects” of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 404.1529(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because their subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 595-96, but the ALJ is not required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
The ALJ recounted Claimant's hearing testimony as follows:
At the hearing, the claimant indicated that she injured her right dominant upper extremity at a work-related accident. She also alleged fibromyalgia, sciatica, hip pain, bursitis, left knee arthritis and lymphedema, panic attacks and anxiety. The claimant reported chronic pain on a constant basis on her hand and throughout her body, with chronic fatigue syndrome. Due to her injury, she stated that she lost strength, has range of motion difficulties in every direction, cannot lift her hand up in the air; and feels a sensation which she describes as “electrocution feeling”. She experiences lower extremity swelling. The claimant indicated that she has no use of her right dominant hand. Notably, there is no evidence of record to suggest that she has no functional use of her right hand. She went on to indicate that her symptoms have gotten worse with time. Moreover, she expressed that since her injury, her pain in the right hand and shoulder is the most uncomfortable. She denied being capable of holding items like a fork. Due to her impairments, she could stand for 30 minutes and walk for 15 minutes before needing to change positions. The claimant stated that due to her lower extremity swelling, she elevates her legs for approximately four hours during the day. Notably, there is no indication in the record that the claimant needs to elevate her legs so often and for so long. Due to her pain, she alleged sometimes experiencing difficulties to concentrate. In terms of treatment, she stated that she does not take prescribed medications for fatigue nor for fibromyalgia; she only takes Meloxicam. She noted little improvement with her medication. She also wears a hand brace. Although she has taken physical therapy, the claimant reported that she only gained minor mobility due to her nerve damage. The claimant has not seen a specialist; and indicated that she receives treatment with her primary care physician (Hearing recording).(R. 32). The ALJ determined that Claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that Claimant's statements regarding the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. Id. The ALJ based this determination on the inconsistency between Claimant's statements regarding the severity of her symptoms and (1) her activities of daily living and (2) the objective medical evidence. (R. 33).
The ALJ noted what he considered to be several inconsistencies between Claimant's alleged limitations and her activities of daily living: at one point in Claimant's hearing testimony she denied being capable of cleaning, but later stated that she uses her left hand to clean, write, and complete daily tasks; she stated that she had no dexterity but can use her cell phone to talk to others; she noted difficulties in zipping or buttoning clothes, doing her hair, showering, and completing personal care activities at the hearing, but before the hearing she indicated she could button and zip clothes and bathe; she denied being able to grocery shop due to difficulty carrying objects at the hearing, but before the hearing she indicated she could prepare meals, feed her pet, and take her pet out; at the hearing she also denied going on vacation and reported problems lifting objects; and before the hearing she indicated she needed no reminders, could sweep, do light chores, iron clothes, perform activities with no encouragement, drive, go out alone, shop in stores, handle her finances, spend time with others, needed no companion going places, got along with others, and followed written instructions. Id. (citing 54-66, 285-92).
The court agrees with Claimant that the ALJ erred by not considering the extent to which she could perform the activities in evaluating her testimony. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (“An ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them.”). For example, Claimant testified that she had “no use of her right hand,” (R. 54), and when asked if she used a cell phone, she testified that she uses her left hand and the “talk to text” feature because she is not able to text due to a lack of dexterity in her thumb. (R. 57-58). The ALJ cited Claimant's testimony that she had no dexterity and that she can still use her cell phone to talk to others, but he did not take into account her testimony regarding the limited extent to which she can use a cell phone. Similarly, the ALJ cited Claimant's testimony at the hearing that she had difficulties in zipping or buttoning clothes and doing her hair but pointed out that before the hearing she indicated she could button and zip clothes. (R. 33). What Claimant actually stated in the Adult Function Report, completed on November 20, 2020, was that it takes her extra time to dress if buttons or zippers need to be 14 fastened and that she had issues with tying her shoes, buttons, and zippers. (R. 286). The ALJ also noted that Claimant could feed and take her pet out, but what she actually stated was that she “let them out in the yard,” not that she took them out, and she also stated that her husband and adult children help with feeding, letting them out, and walking them. Id. As for cooking, while Claimant indicated on the report that she generally cooked for the people in her household, (R. 286), when asked specifically about what kind of meals, how often she cooked, and any changes in her cooking habits since her injury, she stated that the type of meals she cooked depended on how much pain she was experiencing, she could cook every couple of days and it took her about 90 minutes, and she used to cook daily but it had become difficult, (R. 287).
While there are some differences in Claimant's abilities as reported in the Adult Function Report and her hearing testimony, her statements are largely consistent, the differences are not as stark as the ALJ makes them out to be, the statements were made approximately a year apart, and Claimant reported that her condition had worsened over time, (R. 56). In Arakas, as here, “[t]he ALJ selectively cited evidence concerning tasks which [Arakas] was capable of performing” and improperly disregarded her qualifying statements.” 983 F.3d at 100. The Fourth Circuit found that “[s]ubstantial evidence does not support the ALJ's conclusion that Arakas's subjective complaints were inconsistent with her daily activities, ‘because the record, when read as a whole, reveals no inconsistency between the two.'” Id. (quoting Hines, 453 F.3d at 565). Likewise, here, the ALJ's determination that Claimant's allegations regarding the severity of her symptoms were inconsistent with her activities of daily living is not supported by substantial evidence. Given that this was a significant factor in the ALJ's RFC analysis, it is recommended that the matter be remanded for further consideration.
C. Post-DLI Evidence
Claimant contends the ALJ erred in refusing to consider some evidence after her December 31,2020 date last insured but relying on other post-DLI evidence that was supportive of the ALJ's decision. Pl.'s Mem. [DE-21] at 14-15. The Commissioner argues that the ALJ properly relied on evidence during the relevant period in determining Claimant was not disabled. Def.'s Mem. [DE-23] at 18-20.
The ALJ acknowledged that Claimant submitted evidence dated after the date last insured but stated that he would only consider evidence from the alleged onset date to the last insured date. (R. 35) (citing exhibits B16F, B17F, B19F, B21F). Notwithstanding, the ALJ noted that the post-DLI evidence showed that Claimant reported up to 85% functional and emotional improvement with therapy and notable improvement in her lymphedema by April 2021. (R. 35, 472).
When a claimant is seeking DIB, the law requires both a finding of disability and that the claimed disability began before the expiration of insurance coverage. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §§ 404.101(a), 404.131(a); Johnson v. Barnhart, 434 F.3d 650, 655-56 (4th Cir. 2005). However, the Fourth Circuit has held that post-DLI records “may be relevant to prove a disability arising before the claimant's DLL” Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012) (citing Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir. 1987)). The ALJ erred in summarily declining to consider the post-DLI evidence without determining whether it was relevant. See Wilkins v. Colvin, No. 7:12-CV-324-FL, 2014 WL 1057384, at *7 (E.D. N.C. Mar. 17, 2014) (“[A]n ALJ may consider [post-DLI] medical records when they may be relevant to prove that a disability existed prior to the DLI”) (citing Wooldridge, 816 F.2d at 160 (“[M]edical evaluations made subsequent to the expiration of a claimant's insured status are not automatically barred from consideration and may be relevant to prove a previous disability.”)). The ALJ compounded this error by cherrypicking the post-DLI evidence where it supported his finding that Claimant was not disabled and ignoring evidence potentially supportive of Claimant's disability application, such as an April 10, 2021 MRI of the lumbar spine, only four months after her date last insured, which showed lumbar spondylosis, most prominent at ¶ 4-L5 where there is a grade 1 anterolisthesis; mild central canal and bilateral neural foraminal stenosis; and bulging disc contacting the undersurface of the exiting right L4 nerve root. (R. 470); see Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of no disability while ignoring evidence that points to a disability finding.”). Accordingly, the ALJ on remand should evaluate the post-DLI evidence to determine whether it is relevant.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that the case be remanded for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 26,2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed. R. Civ. R 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).