Opinion
Civil Action 2:20-01659-MBS-MGB
06-11-2021
SHAWNA ROBINSON, Plaintiff, v. ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Shawna Robinson (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 39 years old on her alleged disability onset date of June 1, 2017. (R. at 134, 147.) Plaintiff alleged disability due to Sjogren's syndrome, fibromyalgia, diabetes, high cholesterol, high blood pressure, heart condition, over-active bladder, back pain, anxiety, and hearing problems. (Id. at 135, 149.) Plaintiff has past relevant work as a home health attendant, nurse assistant, commercial cleaner, and gun welder. (Id. at 93-95.)
The Fourth Circuit recently reviewed the proper legal framework under which an ALJ should evaluate a claimant's allegations with respect to fibromyalgia, stating that fibromyalgia is a disease whose symptoms are almost entirely subjective and that an ALJ “may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 96-97 (4th Cir. 2020). Although the undersigned need not address Plaintiff's alleged fibromyalgia herein, the ALJ should, if necessary, reconsider her conclusions with respect to Plaintiff's fibromyalgia in light of Arakas.
On June 21, 2017, Plaintiff filed an application for DIB and an application for SSI. (Id. at 135, 149.) Her applications were denied initially on December 13, 2017, and on reconsideration on May 8, 2018. (Id. at 134-46, 147-59, 163-82, 183-202.) Plaintiff requested a hearing before an Administrative Law Judge (the “ALJ”) on June 25, 2018. (Id. at 224.) The hearing was held on January 29, 2019. (Id. at 44-101.) On May 8, 2019, the ALJ issued a decision and found that Plaintiff was not disabled. (Id. at 16-35.) The Appeals Council denied Plaintiff's request for review on March 13, 2020, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (Id. at 1-7.)
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through September 30, 2020.
(2) The claimant has not engaged in substantial gainful activity since June 1, 2017, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: Sjogren's syndrome, arthropathy, right knee disorder status post arthroscopic right knee surgery, obesity, urinary incontinence due to a congenitally small bladder, and bilateral hearing loss. (20 CFR 404.1520(c) and 416.920(c)).
(4) 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).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). She can occasionally climb ramps and stairs and can never climb ladders, ropes, or scaffolds. She can occasionally balance, stoop, or kneel and can never crouch or crawl. She should never have to work in extreme heat or extreme cold. She should not have to work in loud or very loud conditions.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on October 31, 1977 (Ex. 2D) and was 39 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has a limited education and is able to communicate in English (Exs. 2E, 6E) (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) 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, 404.1569a, 416.969, and 416.969a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from June 1, 2017, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
(Id. at 18-35.)
APPLICABLE LAW
I. Relevant Statutory Law
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A) (DIB context); 42 U.S.C. § 1382c(a)(3)(A) (SSI context).
“[T]he definition of disability is the same under both DIB and SSI....” Morgan v. Saul, 9:19-CV-1390-BHH-BM, 2020 WL 3318630, at *1 n.1 (D.S.C. June 3, 2020) (citing Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
II. Standard of Review
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff contends that the ALJ committed reversible error by: (1) failing to consider the side effects of Plaintiff's medications; (2) failing to properly account for the Plaintiff's bilateral hearing loss; (3) failing to properly account for Plaintiff's bladder incontinence and off-task time; (4) failing to properly consider the opinion of Plaintiff's treating rheumatologist. (Dkt. No. 11 at 12-26.) The Commissioner responds that “Plaintiff points to no evidence in the record that would have changed the tailored residual functional capacity [(“RFC”)] finding in this case.” (Dkt. No. 12 at 1.) For the reasons discussed below, the undersigned disagrees with the Commissioner and recommends that the Commissioner's decision be reversed and remanded for further consideration.
I. Bladder Incontinence and Time Off-task
Plaintiff contends that the ALJ correctly concluded that Plaintiff's bladder incontinence was a severe impairment, but erred in failing to include limitations related to Plaintiff's bladder incontinence in Plaintiff's RFC. (Dkt. No. 11 at 18.) Plaintiff asserts that the limitations to which the ALJ cites as accommodating Plaintiff's bladder incontinence “have absolutely nothing to do with the severe impairments of bladder incontinence and specifically being off task.” (Id. at 1819.) In response, the Commissioner argues that there is no evidence to support Plaintiff's claim that her incontinence impedes her ability to work an eight hour day and that “[e]ven accepting Plaintiff's claims regarding her incontinence, there is no support that she could not self-catheterize and/or change her Depends while working a normal workday with regular breaks.” (Dkt. No. 12 at 13-14.) At the outset, the undersigned recognizes that the Commissioner may very well be correct that Plaintiff can accommodate her incontinence during regularly scheduled breaks in a normal workday. However, the ALJ did not address this issue in her opinion, (R. at 23-33), and, as such, has precluded the Court from conducting a meaningful review.
The ALJ's opinion concluded that Plaintiff's “urinary incontinence due to a congenitally small bladder” was a severe impairment but did not meet or medically equal the severity of one of the listed impairments in the Social Security Administration's official Listing of Impairments. (Id. at 19, 22.) Accordingly, the ALJ analyzed Plaintiff's subjective complaints and the objective evidence of record to determine Plaintiff's RFC. (Id. at 23 -33.) She concluded that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's statements regarding the intensity, persistence and limiting effects of those symptoms were not entirely consistent with the evidence in the record. (Id. at 30.) She then justified this conclusion with an explanation of conflicting evidence in the record. (Id. at 30-33.) In doing so, she described that Plaintiff's doctors offered inconsistent recommendations with respect to Plaintiff's need for a cane or walker. (Id. at 31.) She also noted that Plaintiff testified to being drowsy and fatigued but reported to her doctors that she “rarely takes daytime naps.” (Id.) Nowhere in this analysis did the ALJ point to inconsistent evidence relating to Plaintiff's incontinence. (Id. at 23-33.)
The ALJ repeatedly stated that she:
accounts for the claimant's Sjorgen's syndrome, arthropathy, right knee disorder status post arthroscopic right knee surgery, obesity, and urinary incontinence due to a congenitally small bladder as follows. She is limited to sedentary work, she can occasionally climb ramps, and stairs and can never climb ladders, ropes, or
scaffolds, she can occasionally balance, stoop, or kneel and can never crouch or crawl, and she should never have to work in extreme heat or extreme cold. In addition, the undersigned accounts for the claimant's bilateral hearing loss by finding that she should not have to work in loud or very loud conditions.
(Id. at 31-32) (emphasis added). As Plaintiff correctly notes, none of these limitations have anything to do with Plaintiff's incontinence.
The Commissioner argues that the ALJ was justified in declining to include limitations specific to Plaintiff's incontinence and/or Plaintiff's time off-task as a result of that incontinence because “[t]here is no substantial evidence that necessitated a finding for any additional ‘off-task' time due to Plaintiff's incontinence.” (Dkt. No. 12 at 14.) However, the record reflects that Plaintiff's incontinence impacted her daily life and may have resulted in considerable time off-task during a normal workday. For example, Plaintiff testified that she changes her depends five times a day and self-catheterizes three times a day. (R. at 74-76.) She explained that she has episodes of incontinence “on and off” throughout the day, has “trouble getting to the bathroom in time” to urinate, urinates upon coughing or sneezing, and has pain in her bladder prior to self-catheterizing. (Id.) Significantly, Plaintiff testified that she cannot control when she needs to self-catheterize, and needs about twenty minutes to complete each self-catheterization process. (Id.)
Plaintiff provided the following testimony during her hearing:
Q: Okay. Do you [self-catheterize] at certain times of the day, or does it just depend?
A: It depends.
Q: Okay. When you feel that sensation?
A: Yes, sir.(R. at 75-76.)
At Plaintiff's hearing, the ALJ asked the Vocational Expert for his opinion regarding the percentage of time in a workday during which an employee could regularly be off task in a competitive job market. (Id. at 98-99.) He responded that any more than 12% of time off-task would be job-preclusive. (Id. at 99.) Thus, if Plaintiff needed to perform her three daily self- catheterizations during the workday outside of normal breaks, her time off-task would be job-preclusive.
Nonetheless, the ALJ makes no mention of time off-task in her opinion. (See generally id. at 16-33.) As noted, the Commissioner may be correct that Plaintiff's time off-task due to incontinence can be accommodated with regular breaks during an 8-hour workday. However, the ALJ does not make this conclusion in her opinion, nor does she state that she found Plaintiff's testimony regarding her incontinence to be inconsistent with medical or other evidence in the record. (See generally id.) As such, the Court cannot perform a meaningful review of this issue because it is left to guess at the ALJ's reasoning for failing to include an accommodation for Plaintiff's time off-task in her RFC. Benfield v. Saul, 827 Fed.Appx. 297, 301 (4th Cir. 2020) (vacating a district court's judgment and remanding the case for further proceedings where “[t]he district court attempted to explain that, considering nonwork hours and scheduled breaks, the ALJ could reasonably have concluded that [the plaintiff] would have needed fewer than 10 unscheduled bathroom breaks in a workday, ” stating that “it is not the court's responsibility to guess at the ALJ's reasoning [and] without an explanation from the ALJ, [the court] cannot perform a meaningful review.”) The undersigned is therefore constrained to recommend that the Commissioner's decision be reversed and remanded for further proceedings.
To be clear, the undersigned recognizes that the ALJ was not required to include limitations relating to Plaintiff's incontinence solely because she found it to be a severe impairment. See Bowen v. Yuckert, 482 U.S. 137 (1987) (“The determination of a ‘severe' impairment at step two of the sequential evaluation process is a de minimis test, designed to weed out unmeritorious claims.”); see also Crabtree v. Berryhill, No. 1:17-CV-557, 2018 WL 1801955, at *6 (M.D. N.C. Apr. 13, 2018) (collecting cases rejecting the proposition that a severe impairment finding at step 2 requires the ALJ to include restrictions related to that impairment when formulating the RFC). Nonetheless, the ALJ failed to build an accurate and logical bridge from the evidence to her conclusion and therefore did not provide sufficient explanation to allow the Court to conduct a meaningful review of this issue. Cf. Chastity B. v. Saul, No. CV BPG-18-3712, 2020 WL 1809769, at *4 (D. Md. Jan. 17, 2020) (citing Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)) (concluding that remand was not warranted because the ALJ provided sufficient explanation by describing how she accommodated plaintiff's complaints of pain and incontinence and noting that she considered time off-task but determined that any necessary time off-task could be accommodated by normal breaks).
II. Remaining Allegations of Error
Plaintiff also argues the ALJ erred in (1) failing to consider the side effects of Plaintiff's medications; (2) failing to properly account for the Plaintiff's bilateral hearing loss; and (3) failing to properly consider the opinion of Plaintiff's treating rheumatologist. (Dkt. No. 11 at 12-26.) The undersigned does not address these remaining allegations, as they may be rendered moot on remand. As part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration the additional allegations of error raised by Plaintiff.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for further consideration.
IT IS SO RECOMMENDED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).