Opinion
No. 7:17-CV-00207-FL
11-13-2018
Kathi Jo Stanley, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner for Operations, Defendant.
Memorandum & Recommendation
Plaintiff Kathi Jo Stanley instituted this action in October 2017 to challenge the denial of her application for social security income. Stanley claims that the Administrative Law Judge ("ALJ") Richard LaFata erred in finding she engaged in substantial gainful activity in 2013. Stanley also contends that the Appeals Council failed to appropriately consider new evidence she presented to it. Both Stanley and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 17, 23.
After reviewing the parties' arguments, the undersigned magistrate judge has determined that ALJ LaFata erred in his determination. Substantial evidence does not support ALJ LaFata's finding that Stanley's work in the later part of 2013 qualified as substantial gainful activity. And the undersigned concludes that there is a reasonable probability that new evidence submitted to the Appeals Council may change the outcome of the disability determination. Therefore, the undersigned magistrate judge recommends that the court grant Stanley's motion, deny the Commissioner's motion, and remand this matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In November 2013, Stanley filed an application for disability insurance benefits, alleging a disability that began in June 2013. After her claim was denied at the initial level and upon reconsideration, Stanley appeared before ALJ LaFata for a hearing to determine whether she was entitled to benefits. ALJ LaFata determined Stanley was not entitled to benefits because she was not disabled. Tr. at 26-39.
ALJ LaFata found that Stanley had several severe impairments: osteoporosis, degenerative disc disease of the cervical and lumbar spine, degenerative joint disease of the knees (right worse than left), and osteoarthritis of the ankles. Tr. at 28. ALJ LaFata also found that Stanley's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 30.
ALJ LaFata then determined that Stanley had the residual functional capacity ("RFC") to perform light work with limitations. Tr. at 31-32. Stanley can frequently perform bilateral hand movements. Id. She can frequently reach overhead in all directions and bilaterally handle, finger, and feel. Id. Stanley can occasionally climb ramps and stairs, but she can never climb ladders, ropes, or scaffolds. Id. She can occasionally balance, stoop, kneel, and crouch, but she can never crawl. Id.
Stanley cannot tolerate exposure to unprotected heights and she cannot operate a motor vehicle, so she cannot perform an occupation where operation of a motor vehicle is required. Id. Her time off-task can be accommodated by normal breaks. Id. To adjust to her symptoms, Stanley requires a sit/stand option defined as a brief postural change at or near the workstation no more frequent than twice an hour for a duration of five minutes each. Id.
ALJ LaFata concluded that Stanley could perform her past relevant work as a general office clerk. Tr. at 37. And considering her age, education, work experience, and RFC, ALJ LaFata also found that there were jobs existing in significant numbers in the national economy that Stanley could perform. Tr. at 38. These jobs include: information clerk, blood donor unit assistant, and office assistant/helper. Tr. at 38-39. Thus, ALJ LaFata found that Stanley was not disabled. Tr. at 39.
After unsuccessfully seeking review by the Appeals Council, Stanley began this action in October 2017. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Medical providers have diagnosed Stanley with degenerative disc disease of the cervical and lumbar spine, degenerative joint disease of the knees, osteoarthritis of the ankles, and osteoporosis. Tr. at 28. In 2008, before her disability onset date, Stanley underwent lumbar spine surgery for a herniated nucleus pulposus with myelopathy at L4-L5. Tr. at 509-10.
In January 2012, while working as a certified nursing assistant, Stanley injured her back and neck. Tr. at 240. Two months later, x-rays of Stanley's spine revealed multilevel cervical spondylosis, including severely degenerated discs at C5-6 and C6-7, and degenerative facet arthropathy from C3-4 through C6-7. Tr. 936. A May 2012 MRI showed post-surgical changes from her earlier laminectomy and discectomy as well as severe degenerative disc and facet arthropathy. Tr. at 937.
A July 2012 nerve conduction study failed to reveal persuasive evidence of peripheral neuropathy or lumbar radiculopathy. Tr. at 622. Four months later, a cervical spine MRI showed multilevel cervical spondylosis, including central canal stenosis at C4-C5 with ventral cord flattening and C5 root mass effect in conjunction with posterior protrusion of the disc and osteophyte with left foraminal narrowing. Tr. at 943-44. Later that month, Stanley underwent a ulnar nerve transposition for her left ulnar nerve neuropathy. Tr. at 1066-67.
In February 2013, Stanley underwent a nerve conduction study of her right upper extremity which showed right median neuropathy at the wrist. Tr. at 1063-64. Providers assessed Stanley with right carpal tunnel syndrome, for which she received an injection. Tr. at 647.
Two months later, Stanley visited the emergency department of New Hanover Regional Medical Center after slipping and falling. Tr. at 547. She reported pain in her back and knees. Id. X-rays showed degenerative changes including tricompartmental osteoarthritis with possible intraarticular loose bodies. Tr. at 552.
In June 2013, Stanley settled her workers' compensation claim and her employment with with Brunswick County ended. Tr. at 73, 234-36, 304. Two months later, she began part-time work as a certified nursing assistant with AssistedCare, Inc. Tr. at 272, 275, 301, 304.
Dr. Michael Marushack, an orthopedist, examined Stanley later that month for her reports of bilateral knee pain. Tr. at 635-36. Dr. Marushack noted positive medial joint line tenderness and patellofemoral crepitus. Tr. at 636. He assessed bilateral knee chondromalacia and pain likely secondary to degenerative joint disease. Id. X-rays of her bilateral knees showed medial and anterior compartment degeneration in her left knee and severe degenerative joint disease in the medial and anterior compartments of her right knee. Tr. at 971.
The next month, Stanley returned to Dr. Marushack for her continuing bilateral knee pain which a recent fall aggravated. Tr. at 637-38. Stanley received injections later that month. Tr. at 639-40. Around this time, Stanley also reported experiencing migraine headaches up to five times per week. Tr. at 594. Her treating provider administered Botox injections, which controlled this condition well. Tr. at 1094-95, 1099-1101, 1105-08.
In October 2013, Stanley again received injections into her knees to address her bilateral knee pain. Tr. at 641-42. After falling down stairs later that month, Stanley visited her treating provider reporting injury to her left leg and ankle. Tr. at 685. Stanley stated that she had experienced several falls. Id. Stanley told her treating provider that she could work for only a few hours because of pain. Id. Later that month, x-rays of her right knee showed severe osteoarthritis with suprapatellar effusion and a probable loose body in the region. Tr. at 833. The right ankle had a moderate size calcaneal spur with lateral soft tissue swelling. Tr. at 831.
The next month, Dr. Marushack evaluated Stanley for her continuing right knee and ankle pain. Tr. at 643-45. He noted crepitus with range of motion and assessed a right ankle sprain and degenerative joint disease of the right knee. Tr. at 644. Dr. Marushack prescribed a hinged knee brace and an ankle brace. Id.
Eight months later, Stanley reported to her treating provider that she had experienced severe fatigue for the past two months. Tr. at 1136-39. She also stated that she was suffering from crying spells, depression, anhedonia, difficulty concentrating, and sleep disturbance. Tr. at 1136. Stanley also continued to report diffuse joint pain, back pain, and myalgias. Id. One week later, she stopped working because she could no longer do her job because of her symptoms. Id.
In August, Stanley visited the emergency department of Brunswick Hospital for pain after injuring her back while lifting, turning, and bending at home. Tr. at 1204. An examination showed muscle spasms in the back, soft tissue tenderness, and limited range of motion. Id. Providers diagnosed acute lumbar strain and advised Stanley to limit lifting and refrain from strenuous activity. Id.
Two months later, Dr. Bryan Satterwhite, a podiatrist, examined Stanley for her complaints of foot pain. Tr. at 1234. She described a burning and tingling sensation as well as pain with walking and standing. Id. Dr. Satterwhite assessed diabetes with mild neuropathy, neuritis of the bilateral lower extremity, and noted that radiculopathy had to be ruled out. Id. He opined that Stanley's pain was a combination of diabetic neuropathy and chronic back pain. Id.
Stanley's neurosurgeon, Dr. George Huffmon, examined her later that month. Tr. at 261-63. She described increasing low back pain, weakness because of her knee conditions, and difficulty maintaining balance. Tr. at 1261. After reviewing her imaging studies, Dr. Huffmon opined there were no surgical remedies available to her to address her back condition. Tr. at 1263.
Two months later, Stanley returned to her primary care provider for concerns about gait disturbances. Tr. at 1367, 1369. Stanley reported feeling off-balance and uncoordinated. Tr. at 1368. A bone density study performed a few days later revealed osteopenia. Tr. at 1373, 1378.
In February 2015, Dr. Kenneth Willeford saw Stanley for medication management. Tr. at 1443-44. He noted her diagnoses of postlaminectomy syndrome, lumbar spinal intradural lesion, osteopenia, mild cervical spondylolisthesis, and moderate central canal stenosis. Tr. at 1443. He continued Stanley's medications. Tr. at 1444. The next month, Dr. Willeford performed a cervical translaminar epidural steroid injection to treat her cervical spinal stenosis and radiculopathy. Tr. at 1442. Dr. Willeford saw Stanley later that month for medication management and another steroid injection Tr. at 1441.
Eight months later, Stanley reported to her treating provider that she had an improvement in her pain and energy levels after losing weight. Tr. at 1530. The next month, Dr. Willeford noted Stanley's back condition had improved and her reduced her pain medication. Tr. at 1542. Stanley reported that she experienced the worst pain in her right arm and fingers. Id. Dr. Willeford believed the pain may be caused by a brachial plexus stretch from an injury two months earlier. Id. He assessed lumbar spondylosis, post-laminectomy syndrome, spinal stenosis, and bilateral lumbar radiculopathy. Id.
Stanley followed-up with her treating provider in May 2016 for several medical conditions including diabetes, hypertension, migraine headaches, and foot pain. Tr. at 1606. She described increased right foot pain along the dorsal ankle, which had progressively worsened over the past few months. Id.
Dr. David Snow of the Cape Fear Arthritis Center saw Stanley the next month. Tr. at 1611-15. He observed that Stanley walked with a limp and a cane and appeared to be in moderate distress. Tr. at 1611, 1613. Stanley stated that her pain was worse in the morning and that she had trouble performing personal care activities. Tr. at 1611. Dr. Snow noted the presence of 15 of 18 tender points. Tr. at 1614. He assessed bilateral hand swelling, myalgia, primary osteoarthritis involving several joints, knee pain, and other chronic pain. Id.
D. Substantial Gainful Activity
Stanley first argues that ALJ LaFata erred in finding that she engaged in substantial gainful activity after her alleged disability onset date. While the Commissioner could not determine whether ALJ Williams's erred in deciding this issue on the record before her, the undersigned finds that this matter warrants further consideration.
The Commissioner maintains that further consideration of the substantial gainful activity issue is only necessary if there is another basis for remand. Without those circumstances, the Commissioner asserts that Stanley's alleged onset date calculation is immaterial if the court finds that substantial evidence supports the disability determination. Because the undersigned also finds that the additional evidence forms a basis for remand, further consideration of the SGA level activity for 2013 is appropriate.
Under the Regulations, substantial gainful activity is defined as work activity that is both substantial and gainful. 20 C.F.R. § 404.1572. "Substantial" work is work activity that involves doing significant physical or mental activities. Id. § 404.1572(a). Work activity may be "substantial" even on a part-time basis or if the individual does less, is paid less, or has less responsibility than when he worked before. Id. Work activity is "gainful" if it is the kind of work that is usually done for pay or profit, whether or not a profit is realized. Id. § 404.1572(b).
Generally, a claimant's earnings from work are the "primary consideration" in determining whether a claimant engaged in substantial gainful activity. Id. § 404.1574(a)(1). To assist in this analysis, the Regulations contain earnings guidelines that establish, for every year, an average monthly earnings amount that is considered substantial gainful activity. Id. § 404.1574(b)(2). If a claimant's earnings exceed the guidelines, he is presumed to be engaged in substantial gainful activity, although that presumption can be rebutted. Id.; Payne v. Sullivan, 946 F.2d 1081, 1083 (4th Cir. 1991). To qualify at the SGA level in 2013 and 2014, the years at issue here, Stanley's monthly earning must have averaged more than $1,040 and $1,070, respectively. Program Operations Manual System ("POMS") DI 10501.015 B.
Average monthly earnings that exceed the income guidelines "will ordinarily show that [a claimant has] engaged in substantial gainful activity[.]" Payne v. Sullivan, 946 F.2d 1081, 1083 (4th Cir. 1991) (citing 20 CFR § 404.1574(b)(2)). Because a claimant may rebut this premise, the presumption of substantial gainful activity based on earnings is not to be rigidly applied. Id. at *1083.
But averaging the entire relevant period is not the proper method for determining substantial gainful activity where a claimant has a significant change in work pattern or earnings during the relevant period. The governing regulation, 20 C.F.R. § 404.1574a states:
(c) If there is a significant change in your work pattern or earnings during the period of work requiring evaluation, we will average your earnings over each separate period of work to determine if any of your work efforts were substantial gainful activity.20 C.F.R. § 404.1574a(c); see also SSR 83-35 (stating that the rule that "[e]arnings are generally averaged over the actual period of time in which work was performed." SSR 83-35, 1983 WL 31257, at *1 (1983)). There is little case law establishing what constitutes a "significant change" under the applicable regulations. Proffitt v. Colvin, No. 7:15-CV-493, 2017 WL 536076, at *3 (W.D. Va. Jan. 24, 2017), adopted by, Proffitt v. Berryhill, 2017 WL 543278 (W.D. Va. Feb. 9, 2017).
Stanley contends that ALJ LaFata miscalculated her earnings for second half of 2013. Stanley points out that she stopped working for County of Brunswick on June 20, 2013 when she received a worker's compensation settlement. She stated that she performed no work between June 20 and August 19 of that year.
Then, from August 19, 2013 through the end of the year, Stanley worked part-time as a certified nursing assistant ("CNA") for AssistedCare. During this four-and-a-half-month period, Stanley's earning were $2,347.13.
Stanley continued this work through July 29, 2014. Her earning in 2014 were $4,314. Averaged out over the seven months of her employment, Stanley's 2014 earning amount to $616.29 per month, below the level of SGA for 2014 of $,1070 per month. ALJ LaFata noted her earnings for 2014 and found that that Stanley's 2014 earnings fell below the level of below SGA. Tr. at 28.
ALJ LaFata remarked that Staley's earning totaled $14,411.91 for 2013. Id. Averaged out over 12 months, her monthly income would total $1,200.99, over the $,1040 monthly level to be presumptively characterized as substantial gainful activity for 2013.
But Stanley argues that ALJ LaFata failed to average her earning over the months she actually worked. She also contends that the significant change in her work pattern and earnings for two different periods in 2013 warrants departing from the general rule to average earnings over an entire period of work and instead average the earnings over each separate period of work.
Under this approach, Stanley asserts that averaging her earnings from AssistedCare, $2,347.13, over the five-month period she worked there results in a monthly income of $469.42. This falls well-below the threshold of $1,040 for monthly income for 2013 and so would not qualify as work at the SGA level.
Stanley concedes that her work from January 1, 2013 through June 20, 2013 qualifies as SGA based on her earning during this time.
Although there is little case law interpreting the the Regulations meaning of "significant change" to warrant the application of § 404.1547a(b), the facts here support that both Stanley's work and her income involved two separate ventures in 2013. First, Stanley he worked for Brunswick County DSS. She worked as a human resources aide and CNA caregiver. Tr. at 308. She worked 36 hours per week. Tr. at 309. She lifted up to 100 pounds and frequently lifted 25 pounds or more. Tr. at 309. After her injury, however, she worked light duty. Tr. at 70. And she was reassigned to perform administrative and clerical tasks like filing and answering phones. Tr. at 70-71.
The Vocational Expert ("VE") classified Stanley's work with County of Brunswick as a CNA, performed at the heavy work level. After her injury in January 2012 through the end of her employment with County of Brunswick in June 2013, the VE categorized Stanley's work as general office clerk, a light duty job. Tr. at 97-98.
But when she began her work with AssistedCare, Stanley performed the job tasks of a CNA. She worked part-time, averaging 12-16 hours per week, as involved being a patient caregiver. Tr. at 301. She was given work that suited her conditions and she did no heavy lifting. Tr. at 303. Stanley stated she was unable to do "so much" in this position because of her conditions. Tr. at 304. Stanley described her duties as easier than other workers. Tr. at 303.
Notably, the Vocational Expert classified Stanley's work for Brunswick County in 2013 as a general office clerk, an entirely different occupation than her work as a CNA with AssistedCare. Given these separate and distinct employers, associated tasks, hours worked, and income earned, coupled with a two-month break in employment, the undersigned finds it appropriate to average Stanley's earnings for two separate periods in 2013. ALJ LaFata did not do so, and instead appears to have averaged Stanley's 2013 earnings as one work period over 12 months.
Because the inquiry of whether Stanley's work after June 20, 2013 was performed at SGA levels relies on a flawed calculation of average monthly income, remand is appropriate. The undersigned therefore recommends that the court grant Stanley's motion on this issue.
This calculation is important because it informs her disability onset date. Stanley alleged that she became disabled on June 21, 2013. Tr. at 26. But by finding her work in the second half of 2013 was at the SGA level, ALJ LaFata concluded that Stanley was not disabled during this time. Tr. at 28.
E. New Evidence
Stanley next argues that her case should be remanded for consideration of the additional evidence she submitted to the Appeals Council. The Commissioner maintains that the new evidence is not relevant to the period at issue before ALJ LaFata. The undersigned concludes that this newly-submitted evidence potentially informs Stanley's condition during the relevant period and warrants consideration.
The Appeals Council must consider evidence submitted by a claimant with a request for review "if the additional evidence is (a) new, (b) material, and (c) relates to the period on or before the date of the ALJ's decision." Wilkins v. Sec'y, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir. 1991), superseded on other grounds by 20 C.F.R. § 404.1527; 20 C.F.R. § 404.970(a)(5) (effective to Dec. 16, 2016) ("The Appeals Council will review a case if . . .[it] receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision."). Evidence is new if it is not duplicative or cumulative, and it is material if there is a "reasonable possibility that the new evidence would have changed the outcome of the case." Wilkins, 953 F.2d at 96. The Appeals Council need not review or consider new evidence that relates only to a time period after the ALJ issues the decision. See 20 C.F.R. § 404.976(b)(1).
The Appeals Council need not explain its reason for denying review of an ALJ's decision. Meyer v. Astrue, 662 F.3d 700, 702 (4th Cir. 2011). It "must consider new and material evidence relating to that period prior to the ALJ decision in determining whether to grant review, even though it may ultimately decline review." Wilkins, 953 F.2d at 95. When the Appeals Council incorporates additional evidence into the record, the reviewing court must "review the record as a whole, including the new evidence, in order to determine whether substantial evidence supports the Secretary's findings." Gentry v. Colvin, No. 2:13-CV-66-FL, 2015 WL 1456131, at *3 (E.D.N.C. Mar. 30, 2015) (quoting Wilkins, 953 F.2d at 96).
Stanley submitted five additional exhibits to the Appeals Council which included (1) prescriptions for her use of a cane and a rollator walker with a seat and (2) reports from April and May 2017 authored by a neurologist, neurosurgeon, and neurosurgical assistant, all stating that Stanley could not perform the demands associated with light work because of leg pain and weakness. Tr. at 7, 11, 15-17. The Appeals Council concluded that this additional evidence related to a time after ALJ LaFata's January 2017 decision and thus did not affect the disability determination. Tr. at 2.
Stanley's later application for disability benefits was successful and she was found disabled as of January 14, 2017, the day after ALJ LaFata's determination.
Stanley maintains that the additional evidence she submitted meets Wilkins three-prong test and warrants more consideration. First, this evidence is new as it did not exist at the time of the hearing before ALJ LaFata.
And Stanley maintains that this new evidence relates to the relevant period because it presents documentation of her ongoing and declining physical condition. While the additional evidence falls outside the relevant period, that fact need not render this evidence inconsequential to the disability determination. Fourth Circuit case law directs that the Commissioner "must give retrospective consideration to medical evidence created after a claimant's last insured date when such evidence may be 'reflective of a possible earlier and progressive degeneration.'" Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 345 (4th Cir. 2012) (quoting Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)). "[M]edical records from a later time period may be probative and relevant to establishing disability in an earlier time period if there is 'linkage' between the later treatment and the impairments at issue in the claimant's disability claim." Bruton v. Berryhill, No. 8:16-1006-RMG, 2017 WL 1449542, at *6 (D.S.C. Apr. 24, 2017) (citing Bird, 699 F.3d at 340-41).
Here, the five exhibits document Stanley's need for an assistive device and her inability to meet the demands associated with light work. Providers generated these exhibits within a few months of ALJ LaFata's decision and address the impairments and limitations at issue before him. The later records may thus inform Stanley's condition during the applicable period. So the fact that the Appeals Council discounted this evidence as untimely is an unpersuasive basis to exclude it.
This is especially true given that Stanley was subsequently found disabled as of January 14, 2017, one day after ALJ LaFata's decision at issue here. --------
The remaining issue is whether these new exhibits are material and there is a reasonable probability that they could change ALJ LaFata's decision. These medical documents came from Stanley's treating providers and were created within months of ALJ LaFata's decision. As to the prescriptions for a cane and walker, ALJ LaFata's RFC determination did not account for Stanley's use of an assistive device. Although the record before him referenced Stanley's use of a cane and walker, ALJ LaFata observed that Stanley used assistive devices to ambulate, tr. at 32, 34, but found there was no evidence she was prescribed one for long-term use, tr. at 35.
But the additional exhibits Stanley presents contain no time limitation for her use of a cane or rollator walker. Tr. at 16-17. And the prescriptions for the assistive devices remark that she needs these apparatuses for stability because of acute bilateral low back pain with bilateral sciatica. Id. These exhibits, if found persuasive about Stanley's condition, would result in an altered RFC determination to account for Stanley's use of an assistive device. See 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.00J4. ("The requirement to use a hand-held assistive device may ... impact ... [an] individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling."); Eason v. Astrue, No. 2:07-CV-30-FL, 2008 WL 4108084, at *16 (E.D.N.C. Aug. 29, 2008) (an ALJ must consider the effect of "medically required" hand-held assistive devices); SSR 96-9, 1996 WL 374185, at *7 (July 2, 1996).
And the three medical opinions from Stanley's treating providers also have a reasonable probability of changing the outcome of the disability determination because they directly bear on ALJ LaFata's RFC determination. Importantly, this evidence addresses her inability to perform the demands associated with light work because of her leg pain and weakness. As Stanley points out, if she cannot perform light work and is limited to sedentary work, Rule 201.14 of the Medical Vocational Guidelines ("Grids") would direct a finding that she is disabled.
In sum, Stanley has shown that the the additional evidence she submitted warrants further consideration. Accordingly, the undersigned recommends that the court remand the matter for further consideration of this additional evidence.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court grant Stanley's Motion for Judgment on the Pleadings (D.E. 17), deny Berryhill's Motion for Judgment on the Pleadings (D.E. 23), and remand this matter to the Commissioner for further consideration.
The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party 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)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
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 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 Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: November 13, 2018.
/s/_________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE