Opinion
5:20-CV-345-D
12-16-2021
ROSA TORRES, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr., United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-20, -23] pursuant to Fed.R.Civ.P. 12(c). Claimant Rosa Torres (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her applications for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) payments. The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded to the Commissioner for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability and DIB and for SSI on October 11, 2017, alleging disability beginning October 1, 2016. (R. 16, 196-205). Both claims were denied initially and upon reconsideration. (R. 16, 66-119). A hearing before the Administrative Law Judge (“ALJ”) was held on May 16, 2019, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 16, 31-63). At the hearing, Claimant amended her alleged onset date to January 15, 2018. (R. 16, 62, 221). On June 11, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 13-30). On April 28, 2020, the Appeals Council denied Claimant's request for review. (R. 1-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
IL STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity, ” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.Albright v. Comm 'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and 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. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in failing to perform a proper function-by-fimction analysis of Claimant's ability to sit, stand, and walk when formulating the RFC. Pl.'s Mem. [DE-21] at 7-13.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since January 15, 2018, the alleged onset date. (R. 18). Next, the ALJ determined Claimant had the severe impairments of degenerative disc disease of the bilateral knees and cervical spine, and asthma, and the non-severe impairments of pulmonary embolism and gall bladder removal. (R. 18-19). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19-20).
The ALJ in the RFC assessment stated that Claimant has a history of bilateral knee osteoarthritis, (R. 21), and degenerative disc disease of the bilateral knees appears to be a typographical error, but one immaterial to the ALJ's decision.
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
the claimant would need to adjust positions via sitting, standing, or walking, every 30 minutes without leaving work tasks. She would require an assistive device for ambulation. The claimant can occasionally climb, kneel, crouch, and crawl. She is limited to occasional exposure to extreme cold, extreme heat, wetness, humidity, fumes, odors, dusts, gases, poor ventilation.(R. 20-23). In making this assessment, the ALJ found Claimant's statements about her limitations not fully consistent with the medical and other evidence of record. (R. 22).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work as a nurse's assistant, recreation facility attendant, and home health aide. (R. 23). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 24-25).
V. DISCUSSION
Claimant contends the ALJ erred in failing to perform a proper function-by-function analysis of her ability to sit, stand, and walk when formulating the RFC. Pl.'s Mem. [DE-21] at 7-13. Defendant contends the ALJ's RFC is supported by substantial evidence. Def.'s Mem. [DE-24] at 6-13.
“[T]he residual functional capacity ‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting S.S.R. 96-8p). “Only after such a function-by-function analysis may an ALJ express RFC ‘in terms of the exertional levels of work.'” Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”). However, the Fourth Circuit has rejected “a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis.” Mascio, 780 F.3d at 636. Rather, the court explained that “[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.” Id. (citation omitted). Therefore, despite an ALJ's failure to conduct the function-by-function analysis, the court must look to the ALJ's RFC discussion to determine whether it otherwise provides a sufficient basis for meaningful review. See Dowling v. Comm 'r of Soc. Sec. Admin., 986 F.3d 377, 388 (4th Cir. 2021) (holding that “the lack of a rule requiring remand does not mean that remand is never the appropriate outcome when an ALJ fails to engage in a function-by-function analysis” and finding that remand was appropriate when the claimant's ability to sit was a contested issue and the ALJ “barely mentioned [the claimant's] sitting problems in his decision”).
The ALJ did not conduct a function-by-function analysis of Claimant's ability to sit, stand, and walk, (R. 20-23), and so the court must consider whether the ALJ's RFC discussion provides a basis for meaningful review. In the ALJ's RFC analysis she discussed Claimant's testimony, the medical evidence, and the opinion evidence. First the ALJ summarized Claimant's testimony that she was unable to work due to knee pain and a blood clot in her left leg, she was prescribed a cane after a right knee replacement in December 2017, she can stand for five minutes and walk for four minutes before needing to sit, and she can walk for ten to fifteen minutes before needing to rest for at least five minutes. (R. 21). The ALJ next discussed Claimant's history of bilateral knee osteoarthritis, neck pain, and back pain, as follows:
The record indicates that the claimant has a history of bilateral knee osteoarthritis. She complained of sharp, bilateral knee pain. The claimant reported that her pain is exacerbated by prolonged standing and ambulation (Exhibits 1F/7; 12F/1, 3; 17F/2; and 23F/10, 20). She underwent right knee arthroscopy with subchondroplasty of the medial tibial plateau and medial femoral condyle with medial and lateral meniscus debridement in December 2017. However, she reported ongoing pain and swelling of the right knee despite surgery. The claimant also noted continued left knee pain from compensation (Exhibits 11F/6 and 12F/5). She underwent left total knee arthroplasty in March 2019. She was able to ambulate independently 3 weeks following the surgery (Exhibit 34F/10). The claimant also reported neck and back pain with spasms during examinations throughout the record (Exhibits 4F/2; 5F/13; 23F/17; and 25F/10, 13). She noted that her neck pain radiates predominately into the left shoulder and left upper extremity and is associated with numbness and
tingling in her hands (Exhibit 23F/6). In terms of diagnostic evidence, a January 2019 MRI of the claimant's left knee indicated tri compartmental osteoarthritis (Exhibit 23F/36). A February 2019 MRI of the claimant's cervical spine revealed focal posterior central C5-6 disc herniation with moderate central spinal stenosis, posterior cord displacement and flattening. There was also multilevel cervical degenerative spondylosis and facet arthropathy (Exhibit 23F/34). Nevertheless, during musculoskeletal examinations throughout the record, the claimant generally exhibited normal strength and range of motion (Exhibits 3F/7; 11F/3; 14F/3; 23F/13; and 25F/4, 8, 13, 38). She also demonstrated normal gait and station (Exhibits 3F/11; 11F/3; 14F/3; 23F/10; 25F/4, 8, 13; and 29F/13). Moreover, the claimant reported that her intra-articular steroid injections for her bilateral knees have been helpful with symptom relief (Exhibit 17F/2).(R. 21). The ALJ found Claimant's statements regarding the limiting effects of her symptoms were inconsistent with the medical and other evidence in the record, and cited Claimant's statements in her function report that she had no difficulty performing personal care activities, preparing meals, performing housework, driving a car, and shopping in stores as evidence she is not as limited as she alleged. (R. 22). The ALJ also relied on evidence that examinations demonstrated normal strength and range of motion and normal gait and station to support the finding Claimant was not as limited as she alleged. Id. Finally, the ALJ found the state agency reviewers' opinions that Claimant could perform a reduced range of light work “generally persuasive.” (R. 22- 23).
Here, in the absence of an explicit function-by-function analysis, the ALJ's decision lacks a logical bridge from the evidence to her conclusions regarding Claimant's ability to sit, stand, and walk and the RFC is not supported by substantial evidence. The ALJ acknowledged Claimant's history of bilateral knee osteoarthritis but noted that after a left total knee arthroplasty on March 6, 2019, Claimant was observed to ambulate independently on March 26, 2019, three weeks after surgery. (R. 21, 1535). However, the ALJ omitted any discussion of the most recent evidence in the record, which is arguably supportive of Claimant's alleged limitations and contrary to the ALJ's RFC determination. On April 16, 2019, Claimant's physical therapist noted that Claimant's gait was antalgic and she ambulated with a cane, her walking and activities of daily living were limited due to pain and weakness, and she had mild swelling, weakness, and limited range of motion in her left knee. (R. 1552); see Mascio, 780 F.3d at 636 (“[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”).
The ALJ also cited evidence in the record that Claimant generally demonstrated normal strength, range of motion, gait, and station. (R. 21). However, the majority of those records- from September 12, 2017, March 5, 2018, May 7, 2018, July 23, 2018, August 6, 2018, noting normal range of motion, strength and gait-were internal medicine “sick visits” for symptoms such as congestions, fever, rash, gall stones, and vein stenosis rather than orthopedic visits where Claimant's musculoskeletal impairments were the focus of the visit. (R. 430, 587, 638, 640, 842, 846). At an orthopedic visit for left knee pain on February 22, 2019, where Claimant was noted to have normal gait, station, and range of motion, x-rays showed joint space narrowing, subchondral sclerosis and peripheral osteophyte formation, she was diagnosed with end stage tricompartmental osteoarthritis, she was noted to be unresponsive to conservative treatment, and she was scheduled for a left total knee arthroplasty. (R. 781). The ALJ also cited a duplicate copy of this record. (R. 21, 1154). Similarly, the ALJ cited Claimant's report from June 1, 2018 that injections had been helpful with her symptom relief, (R. 21, 661), but this is not substantial evidence supporting the ALJ's RFC determination in light of the February 22, 2019 treatment note indicating conservative measures, including injections, ultimately failed and Claimant required surgery, (R. 1154).
While citing evidence favorable to her RFC determination, the ALJ made no mention of records from October 24, 2017, November 28, 2017, December 12, 2017, where Claimant was seen for her back and knee impairments, and examination findings demonstrated antalgic or other gait disturbance, (R. 469, 474, 479); a record from a March 6, 2018 orthopedic visit for bilateral knee pain that noted palpable crepitus in the left knee with range of motion and advanced degenerative changes, and physical therapy was prescribed for knee range of motion and strengthening, (R. 595-96); and records from March 13, 14, and 23 and April 16, 2019 physical therapy sessions indicating Claimant's gait was unsteady, (R. 917, 924), she walked with an antalgic gait and a decreased cadence, (R. 913), and her gait was antalgic and she ambulated with a cane (R. 1552). The ALJ is not required to discuss every piece of evidence in the record, Reid v. Comm'rof Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted), but neither can the ALJ cherrypick evidence favorable to her decision and ignore evidence to the contrary, Drotar v. Colvin, No. 7:13-CV-265-FL, 2015 WL 965626, at *3 (E.D. N.C. Mar. 4, 2015) (citing Ivey v. Barnhart, 393 F.Supp.2d 387, 390 (E.D. N.C. 2005)). See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.”) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
The ALJ also found Claimant not as limited as alleged based, in part, on statements in her function report that she had no difficulty performing personal care activities, preparing meals, performing housework, driving a car, and shopping in stores. (R. 22). In the function report, however, Claimant indicated there were limits on the extent to which she performed these activities: she cooked complete meals daily, but it took her three to four hours to do so because she could not stand for long; she did very light cleaning and straitening up the house for a few hours daily, but she required help to do the laundry; she drove or rode in a car sometimes, but could not go far due to her pain; and she shopped for groceries once a week for an hour, but she could not shop for long. (R. 236). The ALJ erroneously considered only the types of activities Claimant performed but not the extent to which she performed them. See Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (finding error when the ALJ stated that the claimant could “maintain her personal hygiene, cook, [and] perform light household chores” but did not consider the claimant's testimony that she has trouble dressing and bathing, she can only prepare simple meals, it takes her longer than normal to do laundry and shop, and she sometimes “spends the entire day on the couch”); Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 263 (4th Cir. 2017). The Claimant's activities as stated in her function report are arguably consistent with her testimony that she could only stand or sit for short periods of time, rather than undermining her testimony as the ALJ concluded.
Finally, the state agency reviewers' opinions as to Claimant's ability to sit, stand, and walk are of limited value because they are from February and April of 2018, and they did not consider much of the relevant medical evidence that came after regarding Claimant's left knee, and as the ALJ acknowledged, (R. 22), they did not consider the Claimant's hearing testimony that indicated Claimant was more limited than the state agency reviewers determined.
In sum, the lack of a function-by-function assessment of Claimant's ability to sit, stand, and walk in this case requires remand because the court cannot trace the ALJ's reasoning given the above noted errors. Claimant asks the court to remand this case for an award of benefits, but the appropriate remedy is a remand for further proceedings because “[j]ust as it is not [the court's] province to “reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ], ” it is also not... the province of the district court [] to engage in these exercises in the first instance.” Radford v Colvin, 734 F.3d 288, 296 (4th Cir. 2013) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). Accordingly, it is recommended that this matter be remanded for further proceedings consistent with this memorandum and recommendation.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-20] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-23] be DENIED, and the matter be REMANDED for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until December 30, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).