Opinion
5:22-CV-367-M-BM
02-01-2024
KILEY ANN STRADER, Plaintiff, v. MARTIN O'MALLEY Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-16, -18]. Plaintiff Kiley Ann Strader (“Plaintiff” or, in context, “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 Supplemental Security Income (“SSI”). Defendant submitted memoranda in support of its motion. [DE-19]. Plaintiff responded to Defendant's motion for judgment on the pleadings [DE-21], and the time for filing responsive briefs has expired. Accordingly, the pending motions are ripe for adjudication. This matter was referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the parties' filings, it is recommended that the court grant Plaintiff's request relief [DE-16], deny Defendant's request for relief [DE-18], and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and SSI on October 28, 2019, alleging disability beginning March 8, 2019. Transcript of Proceedings (“Tr.”) 97-111, 234-36, 244-59. Her claim was denied initially. Tr. 97, 141-45. Plaintiff filed a request for reconsideration (Tr. 146-50) and was denied upon reconsideration on January 27, 2021 (Tr. 112, 151-55). On March 22, 2021, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 162. A hearing before the ALJ was held on November 16, 2021, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 34-55. On December 21, 2021, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 15-33.
On February 21, 2022, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 227-33. On July 20, 2022, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. 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). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” 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 [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 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. §§ 416.920a(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. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 416.920a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 29. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since October 28, 2019, the alleged onset date. Tr. 20.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: depression; posttraumatic stress disorder (PTSD); fibromyalgia; and obesity. Tr. 20. The ALJ also found Plaintiff had the non-severe impairment of polysubstance drug and alcohol abuse disorder. Tr. 20. However, at step three, the ALJ concluded these impairments, both physical and mental, 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. Tr. 20-22.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in moderate limitation in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and moderate limitation in adapting or managing oneself. Tr. 21.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform a full range of work at all exertional levels, but with the following non-exertional limitations:
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id. “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. § 416.967(b). “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 416.967(c). “Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.” 20 C.F.R. § 416.967(d). “Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light, and sedentary work.” 20 C.F.R. § 416.967(e).
[s]he can occasionally climb ramps/stairs; balance; stoop; kneel; crouch; and crawl. The claimant can never climb ladders, ropes, or scaffolds. She can occasionally work at unprotected heights and around moving mechanical parts. The claimant is able to perform simple, routine, repetitive tasks, but not a production rate pace (e.g. assembly-line work). She is able to perform simple work-related decisions. The claimant is able to occasionally interact with supervisors, co-workers, and the public.Tr. 22.
In making this assessment, the ALJ found Plaintiff's statements about her limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 26.
At step four, the ALJ concluded that Plaintiff did not have any past relevant work. Tr. 28. At step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as lab cleaner, laundry worker, and hospital cleaner. Tr. 28-29.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) failing to consider the effects of Plaintiff's migraines; (2) determining a physical RFC that is not supported by substantial evidence; and (3) determining a mental RFC that is not supported by substantial evidence. Pl.'s Brief [DE-16] at 9. Each will be discussed below.
Except for citations to the Transcript of Proceedings (“Tr.”), all citations to documents using the docket entry number [DE-] provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
VI. DISCUSSION
A. Migraines
Plaintiff contends that the ALJ erred by failing to consider the effects of Plaintiff's migraines. Pl.'s Brief [DE-16] at 9. The court agrees.
Plaintiff's treatment notes include multiple references to migraines for a period of over twelve months. See Tr. 412-15 (Holly Hill Hospital discharge Summary on April 9, 2020, prescribing Inderal for Plaintiff's migraines); Tr. 485 (Dr. Samodal noting on September 1, 2020, Plaintiff's “[m]igraine with aura and without status migrainosus, not intractable”); Tr. 484 (Plaintiff requesting on September 21, 2020, to switch to different medication for her migraines); Tr. 480-81 (Dr. Samodal conducting telephone consult with Plaintiff on September 25, 2020, regarding migraines and sending her Maxalt. Plaintiff reported 6-8 headaches per month); Tr. 570, 574 (PTA Janosko noting on December 17, 2020, that Plaintiff's Maxalt prescription for her migraine medication was still active); Tr. 597-98 (UNC Health Care notes on October 20, 2021, noting migraines as an active problem and that Plaintiff's Maxalt prescription for her migraine medication was still active). Additionally, as a part of Plaintiff's disability determination explanation at the initial level: (i) on December 18, 2018, Karen Schnute, M.D. (“Dr. Schnute”), assessed Plaintiff's migraines to represent a non-severe impairment (Tr. 85); and (ii) on December 18, 2020, Lisa Green-Hill, D.O., cites Plaintiff's migraines as part of the reason for her environmental limitations. Tr. 127.
In his decision, the ALJ provides the following summary of Plaintiff's subjective complaints regarding her migraine headaches:
[Plaintiff] indicated that her headaches are better since getting a piercing, but sometimes would spike. She stated that if she had a bad one, she would lock herself in a cool, dark room. The claimant reported that she had associated nausea and vomiting. She indicated that she had aura and photosensitivity. The claimant stated that it happened a few times a month. She reported that she only took her medications as needed.Tr. 23.
Although the ALJ notes Plaintiff's reports of her headaches spiking and her environmental limitations when she experiences a bad headache, the ALJ does not list migraines as either a severe or non-severe impairment, and does not provide any explanation as to why no limitations are included in the RFC to accommodate them. Tr. 20. In contrast, even though the ALJ found that at Plaintiff's “most recent visits that there was no evidence of sustained [s]ubstance abuse,” he still made a determination regarding this condition, finding it to be a non-severe impairment. Id.
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 medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms.” 20 C.F.R. § 404.1508. Cf. Barfield v. Colvin, No. 4:15-CV-135-F, 2016 WL 4705672, at *3 (E.D. N.C. Aug. 19, 2016), report and recommendation adopted, No. 4:15-CV-00135-F, 2016 WL 4705545 (E.D. N.C. Sept. 8, 2016) (“The ALJ's finding that Claimant's fibromyalgia is not a medically determinable impairment is not supported by substantial evidence and the error is not harmless.”).
Courts have found that failure to discuss medically determinable impairments that affect a claimant's ability to complete work activities, even if not found to be severe or non-severe, required reversal or remand. See Rajo v. Berryhill, No. 17-CV-01795-NRN, 2018 WL 6335236, at *3 (D. Colo. Dec. 5, 2018) (reversing and remanding where “the ALJ's findings beyond steps two and three do not mention [plaintiff's] bipolar disorder or how this medically determinable impairment, though non-severe, affects her ability to perform basic work activities.”).
Courts in this circuit have found that an ALJ's failure to designate, or discuss, a diagnosis mentioned in the treating records as either a severe or non-severe medically determinable impairment, was harmless and did not require remand as long as the record did not contain a showing of functional loss as a result of the condition. See Patton v. Berryhill, No. 1:17CV368, 2018 WL 4017605, at *6 (M.D. N.C. Aug. 22, 2018), report and recommendation adopted, No. 1:17CV368, 2018 WL 4401734 (M.D. N.C. Sept. 14, 2018). However, “if a claimant does have a severe impairment or combination of impairments, the ALJ must consider the effects of both the severe and non-severe impairments at the subsequent steps of the process, including the determination of RFC.” Rivera v. Astrue, No. CIV.A. CBD-12-1095, 2013 WL 4507081, at *7 (D. Md. Aug. 22, 2013) (citations omitted).
Here, although Plaintiff is found to have multiple severe impairments (Tr. 20), the ALJ does not discuss the effects of Plaintiff's migraines in determination of the RFC. An ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
Additionally, “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” McNeill v. Saul, No. 5:20-CV-244-M, 2021 WL 3701348, at *3 (E.D. N.C. June 2, 2021) (alterations in original) (quoting Mascio, 780 F.3d at 636). And while there is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[,]” courts have found remand warranted where the ALJ fails to assess a “contested” function that is “critically relevant to determining [a claimant's] disability status ....” Dowling, 986 F.3d at 388-89 (remanding case where the ALJ failed to evaluate the plaintiff's ability to sit when it was a contested function critical to determining the plaintiff's disability status, and stating that the ALJ should have included “an analysis [of plaintiff's ability to sit] that was separate from the ALJ's appraisal of [the plaintiff's] ability to perform other functions, and [this analysis] should have been accompanied by ‘a narrative discussion describing' the evidence supporting it”).
Here, despite numerous mentions of Plaintiff's migraines in the medical record, the ALJ provides no discussion or analysis on why he does not find Plaintiff's migraines to represent a medically determinable impairment, nor why he does not credit Plaintiff's subjective limitations caused by these headaches. See Powell v. Kijakazi, No. 2:20-CV-69-RJ, 2022 WL 780863, at *2 (E.D. N.C. Mar. 14, 2022) (“The ALJ's decision is problematic in that it fails to state which conditions are ‘not severe' and which are either ‘not medically determinable' or fail to meet the duration requirement.”); Woody v. Kijakazi, No. 22-1437, 2023 WL 5745359, at *1 (4th Cir. Sept. 6, 2023) (“The ALJ's failure to reach an ‘express conclusion in the first instance' on the potentially dispositive issue of whether the frequency and severity of [plaintiff's] headaches would cause her to be absent from work more than once a month-or to explain how, despite any potential absences, the evidence supported his finding that the limitations included in the RFC sufficiently accounted for [plaintiff's] impairments-is an error of law that necessitates remand.”).
It is important to note that ALJ Rideout issued his decision on December 21, 2021, prior to the Fourth Circuit's decision in Woody v. Kijakazi, No. 22-1437, 2023 WL 5745359 (4th Cir. 2023) on September 6, 2023. Accordingly, ALJ Rideout could not have applied the findings in Woody when deciding this case in the first instance.
Because the ALJ's written decision lacks any discussion of whether or how the RFC accounts for Plaintiff's migraines, the ALJ fails to “build an accurate and logical bridge from the evidence to [his apparent] conclusion” that Plaintiff did not require any limitations to account for her migraine headaches in the RFC. Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). This lack of explanation and analysis frustrates meaningful review by the court, as the court is left to guess at how the ALJ came to his conclusions.
The court also finds that this was not harmless error, as the inclusion of additional limitations could limit or eliminate the jobs that Plaintiff was found able to do at step five of the sequential evaluation process. To be clear, the undersigned expresses no opinion as to whether Plaintiff's migraines represent a severe, non-severe, or otherwise medically determinable impairment, nor does the undersigned express an opinion on whether any such condition does or does not require additional limitations. The court only seeks to ensure that the ALJ properly considers the relevant evidence and fully explains his decisions so as to permit meaningful review by the court if necessary.
Accordingly, the undersigned RECOMMENDS this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should include a narrative discussion about how the evidence leads to each conclusion regarding Plaintiff's medically determinable impairments. On remand, the Commissioner should also ensure that Plaintiff's subjective claims regarding her migraines have been evaluated in accordance with the regulations and applicable caselaw and that any relevant findings sufficiently explain the probative evidence, and permit meaningful judicial review, if necessary.
B. Moderate limitation in concentration, persistence, or pace
Plaintiff contends that the mental residual functional capacity assessed by the ALJ is not supported by substantial evidence. Pl.'s Brief [DE-16] at 14. Specifically, Plaintiff argues that the ALJ's limitation to “simple, routine, repetitive tasks, but not a production rate pace (e.g., assemblyline work)” and limited social interactions were inadequate to deal with Plaintiff's moderate limitation in concentration, persistence, and pace. Pl.'s Brief [D.E. 16] at 15.
In Mascio, the Fourth Circuit held “that an ALJ does not account ‘for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'” Mascio, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). Specifically, the court found that “the ability to perform simple tasks differs from the ability to stay on task[,]” and “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Id. However, the Fourth Circuit does “not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC.” Shinaberry, 952 F.3d at 121. Instead, the Fourth Circuit notes “that ‘an ALJ can explain why [a claimant's] moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation' in the claimant's RFC.” Id. (quoting Mascio, 780 F.3d at 638) (alteration in original).
“For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect [the claimant's] ability to work, in which case it would [be] appropriate to exclude it from the hypothetical tendered to the vocational expert.” Id. (alterations in original) (citations omitted). Yet, without such explanation by the ALJ, remand is required. Williams v. Saul, No. 4:20-CV-92-FL, 2021 WL 3399820, at *4 (E.D. N.C. June 16, 2021) (citing Mascio, 780 F.3d at 638); see also Shannon R. v Kijakazi, 2022 WL 636638, at *9-10 (W.D. Va. Mar. 4, 2022) (finding that the ALJ “was required either to include specific work-related restrictions within her RFC finding to accommodate for such ‘moderate' CPP limits, or to explain why such limits did not translate into [the claimant's] RFC.”); and Linda W. v. Saul, 2021 WL 930274, at *4-6 (W.D. Va. Feb. 22, 2021) (“[T]he ALJ failed to draw an explicit conclusion or satisfactorily explain how [the claimant's] [moderate limitations in maintaining CPP] affect her ability to perform job-related tasks for a full eight-hour workday.”).
In Sizemore v. Berryhill, 878 F.3d 72, 79, 81 (4th Cir. 2017), the Fourth Circuit held that limitations to completing simple one, two-step tasks in a low stress, non-production job without any fast-paced work and with no public contact were sufficient to account for moderate limitations in concentration, persistence, or pace. The limitations to accommodate a moderate limitation in concentration, persistence, or pace are similar to those provided in Sizemore, however, the ALJ in Sizemore provided more explanation.
For example, unlike in Sizemore, the ALJ here does not define a “low stress” limitation in the RFC, despite Dr. Gregory's finding that Plaintiff is able to perform “simple, routine, repetitive tasks in a low stress, low social working environment.” See Tr. 108 (emphasis added). While the ALJ may have intended the limitation of no “production rate pace (e.g., assembly-line work) and limited social interactions” (Tr. 22) to accommodate Dr. Gregory's recommendation that Plaintiff should only work in a low-stress environment, the ALJ does not include an explanation. Contra Sizemore, 878 F.3d at 79 (expressly defining “low stress setting” to mean “non-production jobs [without any] fast-paced work [and] with no public contact.”) (alterations in original)); cf. also Taylor v. Saul, No. 4:19-CV-66-FL, 2020 WL 4917624, at *3 (E.D. N.C. Aug. 21, 2020) (“As an initial matter, the RFC limitation given by the ALJ in Sizemore was considerably more detailed, where plaintiff was limited to working in a ‘low stress' environment, which the ALJ ‘defined as non-production jobs [without any] fast-paced work [and] with no public contact.'”) (quoting Sizemore, 878 F.3d at 79).
An ALJ must include details and explanation in his written decision to reconcile inconsistencies in the evidence. It is not the reviewing court's role to reconcile inconsistencies. In light of the above recommendation, however, that this case be remanded to the Commissioner in order to consider Plaintiff's subjective complaints regarding migraines and whether migraines constitute a medically determinable impairment in this case, the ALJ's findings on remand may be substantially different and impact the RFC determination. As such, the undersigned does not make a recommendation as to whether the ALJ's RFC findings and explanation regarding concentration, persistence, or pace limitations are supported by substantial evidence. To be clear, the court expresses no opinion as to whether Plaintiff does or does not require additional or different limitations based upon her moderate limitation in concentrating, persisting, or maintaining pace. The court only seeks to ensure that the relevant evidence is considered, and that the decision is fully explained, so as to permit meaningful review by the court if necessary. It is, of course, up to the Commissioner to determine what weight to give all evidence.
C. No exertional limitations
Plaintiff contends that the ALJ erred in his findings that Plaintiff had no exertional limitations in her RFC and that the RFC is, therefore, not supported by substantial evidence. Pl.'s Brief [DE-16] at 10. Specifically, at issue is whether there is substantial evidence to support the ALJ's decision not to assess any exertional limitations in light of: (1) medical professionals who assessed Plaintiff to have exertional limitations; (2) Plaintiff's fibromyalgia and obesity; (3) the findings of Plaintiff's physical therapists; and (4) Plaintiff's subjective limitations regarding her need for a bariatric chair. The undersigned will discuss each of these arguments below.
1. Severe obesity and fibromyalgia
Plaintiff appears to argue that the ALJ inappropriately disregarded Plaintiff's subjective limitations as described in her activities of daily living despite finding that Plaintiff had severe impairments of obesity and fibromyalgia. Pl.'s Brief [DE-16] at 12-13.
Plaintiff testified that she required assistance bathing. Tr. 46. She also alleged that she could stand for only about 10 minutes or walk for only about 20 minutes at a time. Tr. 43. She alleges she has poor balance and is at risk for falls, sometimes needing to brace herself against walls to keep from falling. Tr. 44. She explained that despite using a bariatric chair, she cannot maintain a seated position for longer than an hour and a half. Tr. 45. She also alleged that she required frequent and lengthy breaks whenever she attempts any activity, such as unloading the dishwasher, due to muscle spasms and pain in her lower back. Tr. 48.
In evaluating Plaintiff's subjective limitations, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 26.
The ALJ's evaluation of the limiting effects of Plaintiff's fibromyalgia and associated pain does not apply the appropriate legal standard for evaluating subjective evidence of symptoms articulated in Oakes v. Kijakazi, 70 F.4th 207, 215 (4th Cir. 2023).
It is important to note that the ALJ issued his decision on December 21, 2021, prior to the Fourth Circuit's decision in Oakes, 70 F.4th 207, on June 7, 2023. Accordingly, the ALJ could not have applied the findings in Oakes when deciding this case in the first instance.
The ALJ appears to discount Plaintiff's allegations of pain based on his evaluation of the medical record. The Fourth Circuit has recently held that if Plaintiff's “medically determinable impairment(s) . . . could reasonably be expected to produce [Plaintiff's] symptoms,” 28 C.F.R. § 1529(c), a claimant may “rely exclusively on subjective evidence to prove that [her] symptoms [are] so continuous and/or severe that they prevented [her] from working.” Oakes, 70 F.4th at 215 (second alteration in original) (quoting Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 96 (4th Cir. 2020). The Fourth Circuit went on to note that “[s]eparate and apart from [her] literal mobility, [Plaintiff] can qualify for benefits if [s]he is in sufficient pain [and t]he ALJ failed to meaningfully address this theory of qualification such that this Court may engage in judicial review.” Id. at 216.
Accordingly, while contradictory medical or other evidence may discredit Plaintiff's subjective statements regarding the limiting effects of her pain, a mere absence of medical evidence cannot. See Shelley C. v. Comm'r of Soc. Sec. Admin., 61 F.4th 341, 360 (4th Cir. 2023) (“[B]ecause pain is subjective [it] cannot always be confirmed by objective indicia[.]”) (alteration in original) (quoting Craig, 76 F.3d at 595). Similarly, while other medical opinions may assess greater exertional capabilities, they do not point to any evidence expressly contradicting Plaintiff's subjective limitations as a result of her pain.
Here, although the ALJ acknowledges that Plaintiff alleges that she is limited in performing activities of daily living due to pain (Tr. 23), he does not explain any evidence directly contradicting such subjective claims. While there may indeed be details that reconcile the inconsistencies upon review, the ALJ does not provide such explanation in the written decision. It is not the reviewing court's role to reconcile inconsistencies. Therefore, remand is warranted due to the ALJ's use of an incorrect legal standard and failure to provide explanation in the written decision to reconcile the inconsistences in the evidence relevant to the ALJ's findings. While it is ultimately up to the ALJ to weigh the evidence of record, the ALJ must properly consider all pertinent evidence before him. Accordingly, the undersigned recommends this case be remanded to the Commissioner for further proceedings.
On remand, the Commissioner should ensure that Plaintiff's subjective statements have been evaluated in accordance with the regulations, see 20 C.F.R. § 404.1529, and applicable case law including Oakes, 70 F.4th 207, and that the findings are fully explained, so as to permit meaningful review by the court if necessary. It is, of course, up to the Commissioner to determine what weight to give all evidence.
2. Physical therapist's evidence
Plaintiff next alleges that the ALJ's failure to address the findings of Plaintiff's physical therapist “constitutes reversible error.” Pl.'s Brief [D.E. 16] at 13. The regulations provide that a physical therapist is not an “acceptable medical source” and therefore cannot issue a “medical opinion.” Jones v. Colvin, No. 4:15-CV-165-BO, 2017 WL 283279, at *3 (E.D. N.C. Jan. 20, 2017) (citing 20 C.F.R. §§ 404.1513(a), 404.1527(a)(2), 416.913(a), 416.927(a)(2)).
However, the SSA has clarified that it “consider[s] all relevant evidence it receive[s] from all medical sources regardless of [whether they hold acceptable medical source] status. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01. Accordingly, relevant records from a physical therapist can still represent evidence that an ALJ must consider when making his decision. See, e.g., Torres v. Kijakazi, No. 5:20-CV-345-D, 2021 WL 6331581, at *4 (E.D. N.C. Dec. 16, 2021), report and recommendation adopted, No. 5:20-CV-345-D, 2022 WL 71785 (E.D. N.C. Jan. 5, 2022) (remanding where the ALJ failed to consider a physical therapist's observations that the claimant's gait was antalgic and she ambulated with a cane); cf. also Brookover v. Kijakazi, No. 2:20-CV-00024-M, 2021 WL 3488260, at *3 (E.D. N.C. Aug. 9, 2021) (finding that the ALJ gave “no weight” to the physical therapist's opinions but sufficiently explained why, including that the physical therapist's opinions “were often vague, . . .[and] physical therapist . . . [are] not an acceptable medical source in accordance with Social Security Regulations.”).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019), as amended (Feb. 22, 2019). The ALJ “must include 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).” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637. Additionally, “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” McNeill v. Saul, No. 5:20-CV-244-M, 2021 WL 3701348, at *3 (E.D. N.C. June 2, 2021) (alterations in original) (quoting Mascio, 780 F.3d at 636).
Plaintiff's physical therapist, Ralph M. Maddocks, PT, reported on November 24, 2020, and January 5, 2021, that due to Plaintiff's “decreased functional core/[lower extremity] strength, marked limitation in her tolerance for [weight bearing] activities, deconditioning, [and] core weakness[, as noted during her exam,] . . . [Plaintiff was] . . . unable to sit, stand, walk, perform [activities of daily living] or homemaking activities at her prior level of function.” Tr. 547, 564.
This evidence appears to corroborate Plaintiff's claims that she was unable to sit, stand, and walk for prolonged periods and required assistance performing her activities of daily living. Tr. 44-48. The ALJ does not discuss why he disregarded evidence from the physical therapist that appears to support these subjective limitations. Moreover, this question could be outcome determinative as an inability to sit, stand, and walk for prolonged periods of time could potentially make Plaintiff unable to perform work even at the light exertional level without additional limitations. See SSR 83-10 (“[T]he full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time.”).
An ALJ is not required to discuss every piece of evidence in the record, however, before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co., 131 F.3d at 439-40. While there may indeed be details that reconcile the inconsistencies upon review, the ALJ does not state this in the decision. It is not the reviewing court's role to reconcile inconsistencies. Therefore, remand is warranted due to the ALJ's failure to consider all relevant evidence in assessing Plaintiff's RFC and to provide explanation in the written decision to reconcile the inconsistences in the evidence relevant to the ALJ's findings. While it is ultimately up to the ALJ to weigh the evidence of record, the ALJ must properly consider all pertinent evidence before him.
Accordingly, the undersigned RECOMMENDS this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should make findings and provide sufficient explanation on the evidence provided by Plaintiff's physical therapists in order to permit meaningful judicial review for substantial evidence, if necessary.
3. Need for bariatric chair
Plaintiff alleges that the “SSA has recognized that a bariatric chair is an accommodation under Section 504 of the Rehabilitation Act of 1973.” Pl.'s Brief (citing Hearings, Appeals, and Litigation Law Manual, Hallex, I-2-0-8, POMS, GN 0021). The resource cited by Plaintiff lists bariatric chairs as a locally available accommodation that some offices may provide while others cannot. I-2-0-8. Accommodations Under Section 504 of the Rehabilitation Act of 1973 (B)(2)(a).
It is Plaintiff's burden to show that her alleged need for a bariatric chair represents a limitation. See Pass, 65 F.3d at 1203 (noting that the burden of proof and production during the first four steps of the inquiry rests on the claimant). Notwithstanding Plaintiff's reference to the Hearings, Appeals, and Litigation Law Manual mentioning bariatric chairs as a possible accommodation, she has not pointed to any SSA authority indicating that individuals above a certain weight require a bariatric chair. While Plaintiff testified that she needed a bariatric chair due to her obesity (Tr. 42, 44-45), no medical opinion opined that Plaintiff required such an accommodation. Contra Higgins v. Comm'r, Soc. Sec. Admin., 898 F.3d 793, 794 (8th Cir. 2018) (where plaintiff's physician prescribed him a bariatric chair.”); De Lisle v. Comm'r of Soc. Sec. Admin., No. CV-20-01535-PHX-DJH, 2021 WL 5162533, at *5 (D. Ariz. Nov. 5, 2021) (“Plaintiff cannot now attempt to present evidence of the need for a bariatric chair accommodation when there is no mention of this accommodation in any of the medical records.”). Similarly, Plaintiff also did not solicit any testimony from the VE on Plaintiff's need for a bariatric chair given her obesity. See Tr. 53; cf. also Joshua B. on behalf of Travis D. B. v. Saul, No. 2:19-CV-00436-LEW, 2020 WL 6376639, at *4 (D. Me. Oct. 30, 2020), report and recommendation adopted, No. 2:19-CV-00436-LEW, 2020 WL 7395136 (D. Me. Dec. 16, 2020) (“[S]everal . . . courts have at least implicitly recognized VEs as competent to testify regarding a claimant's need for a bariatric chair.”) (collecting cases).
Accordingly, Plaintiff has not met her burden of proof and production with respect to her need for a bariatric chair, and the undersigned RECOMMENDS that remand is not necessary on this question.
4. Medical opinion evidence
Plaintiff also contends that the ALJ failed to follow the rules for evaluating medical opinions. Specifically, she alleges that he did not provide substantial evidence for disregarding the opinion of consultative examiner Joseph Umesi, M.D. (“Dr. Umesi”) that Plaintiff had “‘moderate to severe' functional limitations, including postural and manipulative limitations, due to morbid obesity and pain.” Pl.'s Brief [DE-16] at 10 (citing Tr. 333-38). The ALJ explains that he finds Dr. Umesi's opinion to be unpersuasive because “there were no actual function-by-function limitations given and use of the words ‘moderate' and ‘severe' are vague and undefined.” Tr. 24. The ALJ further mentions that:
while it was noted that [Plaintiff] was unable to toe walk because of pain in her toes and obesity, had difficulty sustaining a heel walk due to pain and fatigue, and was unable to bend over and touch her toes, she had a full range of motion of movement along with 5/5 motor strength in all extremities. She had a non-ataxic gait and was negative for any signs of motor or sensory impairment.Tr. 24.
Plaintiff also argues that the ALJ failed to provide a logical bridge for her decision to find unpersuasive the medical opinion of State Agency physician, Dr. Schnute, that Plaintiff was limited to the light work (Tr. 27). Pl.'s Brief [DE-16] at 12.
In light of the above recommendation that this case be remanded to the Commissioner, and as the findings on remand may be substantially different, the undersigned does not make a recommendation regarding Plaintiff's contentions about the sufficiency of the ALJ's evaluation of the medical opinions. On remand, however, the ALJ should consider Plaintiff's argument here, that it is appropriate to afford additional weight to Dr. Umesi's and Dr. Schnute's opinions in this instance. The ALJ should also consider whether additional explanation is necessary regarding the findings as to the weight afforded to Dr. Umesi's and Dr. Schnute's opinions. Without an adequate explanation of the ALJ's findings, the court is left to guess about how the ALJ arrived at his conclusions, and meaningful review is frustrated. Mascio, 780 F.3d at 637.
VII. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that the court grant Plaintiff's request for relief [DE-16], deny Defendant's request for relief [DE-18], and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
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 15, 2024 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his 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.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.Ca. Any response to objections shall be filed 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).