Opinion
5:23-CV-407-D
07-23-2024
GREGORY WILLIAMS, Plaintiff/Claimant, v. MARTIN O'MALLEY, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones United States Magistrate Judge
This matter is before the court on the parties' briefs filed pursuant to the Supplemental Rules for Social Security Actions. [DE-16, -18]. Claimant Gregory Williams (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits (“DIB”). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the briefs submitted by the parties, it is recommended that the case be remanded to the Commissioner for further consideration.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on April 14, 2021, alleging disability beginning April 1, 2020. (R. 421-25). His claim was denied initially and upon reconsideration, (R. 122-39), at which point Claimant requested a hearing before an Administrative Law Judge (“ALJ”). The hearing was held on July 20, 2022, and Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 41-83). On September 15, 2022, the ALJ issued a decision denying Claimant's request for benefits. (R. 140- 69). The Appeals Counsel then remanded the matter for a new hearing and decision. (R. 170-75). A second hearing was held on February 22, 2023, and on March 22, 2023, the ALJ once more issued a decision denying Claimant's request for benefits. (R. 7-33, 84-121). After the Appeals Council denied Claimant's request for review, (R. 1-6), he filed a complaint in this court seeking review of the now-final administrative decision.
IL STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d . 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla .. . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520, under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; . concentration, persistence, or pace; and episodes of decompensation. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).
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 the alleged onset date. (R. 12). Next, the ALJ determined Claimant had the severe impairments of degenerative disc disease, status-post surgery; obesity; degenerative joint disease; arthritis; left elbow bursitis; substance use disorder; major depressive disorder; anxiety disorder; and chronic adjustment disorder. (R. 12-13). The ALJ also determined that Claimant had the non-medically determinable impairment of ADHD and the non-severe impairments of allergic rhinitis, asthma, hypothyroidism, obstructive sleep apnea, and hypertension. Id. At step three, the ALJ concluded Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 13-16). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in no limitations in understanding, remembering, or applying information; moderate limitations in interacting with others and concentrating, persisting, or maintaining pace; and no limitations in adapting or managing oneself. (R. 15). Prior to proceeding to step four, the ALJ assessed Claimant's residual functional capacity (“RFC”), finding that he had the ability to perform light work with the following restrictions:
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 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).
[H]e is limited to occasional overhead reaching with the upper extremities; frequent reaching in all other directions with the upper extremities; frequent . pushing, pulling, operating hand controls, handling, fingering, and feeling with the upper extremities. He is limited to occasional pushing, pulling, and operating foot controls with the lower extremities. He can occasionally climb ramps and stairs, but no climbing ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He must avoid concentrated exposure to
pulmonary irritants, such as fumes, odors, dusts, gases, poor ventilation, and the like. He must avoid all exposure to workplace hazards, such as dangerous moving machinery and unprotected heights. He can understand and perform simple, routine, repetitive tasks; he can maintain concentration, persistence, and pace to . stay on task for 2 hours at a time over the course of a typical 8-hour workday with normal breaks in order to complete such tasks, in a low stress work setting, which is further defined to mean no production-pace or quota-based work; rather, he requires a goal oriented [job] dealing with things rather than people, with no more than frequent social interaction as part of the job with supervisors and co-workers; [and] no more than occasional interaction/work with the public as a part of the job, such as sales or negotiation.(R. 16-26) (internal footnote omitted). In making this assessment, the ALJ found that Claimant's statements about his limitations were not persuasive of disability based on the medical evidence and other evidence in the record. (R. 17). At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work as a radio intel operator. (R. 26). At step five, upon considering Claimant's age, education, work experience and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that he can perform. (R. 26-27).
V. DISCUSSION
Claimant argues that the ALJ erred by failing to perform a function-by-function evaluation of his ability to sit, stand, and walk when formulating his RFC; applying an incorrect legal standard to evaluate Claimant's allegations of pain and other symptoms arising from his degenerative disc disease, status-post surgery; failing to perform a proper analysis of Claimant's need for a handheld assistive device; and failing to explain what the term “production-pace” means in the RFC assessment. Pl.'s Br. [DE-16] at 5-18. The Commissioner counters that that ALJ's determination is supported by substantial evidence. Def's Br. [DE-18] at 8-27.
A. The Functiori-by-Function Analysis and Claimant's Subjective Statements Regarding His Pain and Other Symptoms
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1). “[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 SSR 96-8p); 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”).
In the instant case, the ALJ found that Claimant can perform light work with various exertional and non-exertional limitations. (R. 16-26). However, Claimant contends that the RFC and the ALJ's assessment of it are inadequate because the ALJ did not address Claimant's contested and relevant ability to stand, sit, and walk for a prolonged period of time. Pl.'s Br. [DE-16] at 5-12. Claimant posits that this oversight occurred partly because the ALJ applied the wrong legal standard to establish the degree of pain and other symptoms caused by Claimant's severe medical impairments, including his degenerative disc disease, status-post surgery. Id. at 5-13. Specifically, Claimant argues that the ALJ “noted several instances of normal objective findings upon examinations, including 5/5 strength,” to explain why he did not find Claimant was more limited with respect to the contested functions, and in doing so, improperly discounted Claimant's subjective statements about his pain and other disabling symptoms. Id.
The Undersigned agrees with Claimant. The ALJ's report acknowledges that Claimant underwent two surgeries for severe cervical stenosis, cord compression, and myelopathy: first on April 29, 2021, after which Claimant was prescribed a handheld cane, (R. 665-73, 699-700); and then on December 3, 2021, after the initial procedure did not produce improvements to the extent expected, (R. 1212, 1224-28). (R. 19). The ALJ then cites to Claimant's January 31, 2022 post-operative visit, (R. 1197-1200), and it is at that this point that his reasoning becomes difficult to trace. Id. In summarizing Claimant's January 2022 follow-up appointment, the ALJ states that Claimant “reported he felt his balance had improved and he was not using his cane”; claimed “he felt numb from his ribs down to his feet, including his entire left and right leg, which had not changed since his original surgery”; and showed on physical examination that he “had 5/5 muscle strength, and a slow steady gait with a cane. He demonstrated tandem gait and used the wall for balance.” (R. 19).
As an initial matter, Claimant's medical provider did not state that Claimant was not using his cane altogether, but rather, that he was not using the cane as much as he did prior to surgery and immediately post-operation. (R. 1199). More notably, though, the ALJ's discussion of the January 2022 appointment highlights Claimant's numbness and unsteady balance-both of which were present despite Claimant's 5/5 muscle strength-and seemingly recognizes that muscle strength is not synonymous with ease of function. However, in formulating Claimant's RFC, the ALJ conflates the two, without explaining why. (R. 22). At best, this is an oversight, and at worst, it is impermissible cherrypicking designed to depict Claimant as more physically capable than his testimony and other record evidence implies. See Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of no disability while ignoring 7 evidence that points to a disability finding.”) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); Lockerby v. Saul, No. 1:19-cv-00159-MOC, 2020 WL 506752, at *3 (W.D. N.C. Jan. 30, 2020) (“An accurate and logical bridge must consider both favorable and unfavorable evidence”).
The ALJ's error is compounded by his near-total dismissal of Claimant's subjective statements, without explanation. Claimant has consistently testified and communicated to his medical providers that he struggles with intermittent pain, balance issues, tremors, and numbness and pressure in his legs and thighs, particularly when standing or walking for a prolonged period of time, (R. 92, 107, 817, 1195, 1199, 1701, 2033, 2190), and that because of his symptoms, his ability to stand and walk is “very limited,” (R. 93). Claimant has stated that he tries “to use [ ] family members ... to assist [him] in everyday . . . life upkeep.” Id. He has also stated that he uses a cane to improve his balance “all the time,” especially when walking further than short distances or outside of his home. (R. 54, 102). At the July 2022 hearing, Claimant explained that when he is walking around his house, he is not as reliant on the cane because he can “grab on to stuff,” and on the few short trips that he takes to the grocery store or out with his sister, he will either support himself by holding onto the grocery cart or “grab [his infant niece's stroller] and use that as [his] walker.” (R. 54-55).
At the February 2023 hearing, Claimant explained that “[t]rying to walk 10 steps feels like [he is] walking 50 steps. It just tires [his] body out.” (R. 94). He was unable to estimate how long he can stand or walk without the cane because “as soon as [he] startfs] feeling anything, like more draining, [he] just sit[s] down or [lies] down and [tries] to stretch [his] body out until [he] feels like [he] can get back up.” (R. 102). When counsel inquired as to what position he finds the most comfortable, Claimant explained that “[t]here's not a position”; sleeping on his stomach is 8 the longest he can stay in one position, but even then, he must continually move because “the pain adjusts to how [he's] positioned.” (R. 102-03). At the same hearing, Claimant also testified that he has trouble sitting upright because he “[has] to keep moving .... [His] body just feels restless and like twitches or . . . like [he needs] to move it or stretch it or try to get it to feel better, but it never does.” (R. 94). According to Claimant, within three to five minutes of sitting, he is “probably moving or stretching the areas that feel like they need the most attention.” (R. 103).
The Fourth Circuit has found that where, as here, an ALJ decides that a claimant has an underlying medically determinable impairment that could reasonably be expected to produce the claimant's symptoms, the claimant is entitled to rely on subjective statements to support his disability claims. Shelley C. v. Comm'r of the SSA, 61 F.4th 341, 360 (4th Cir. 2023) (‘“[O]bjective evidence is not required to find the claimant disabled' .... In other words, the ALJ will not disregard [a claimant's] statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual.'”) (internal citations omitted). Thus, Claimant is entitled to rely on his subjective statements to support his functionality-related claims, and if the ALJ disregarded these claims-which is not entirely clear-he should have explained why he did so, without cherrypicking the record in the process. Id. at 361-62; see Oakes v. Kijakazi, 70 F.4th 207, 215 (4th Cir. 2023) (“[T]he ALJ failed to adequately consider the intensity and persistence of [Claimant's] pain. Instead, following a recitation of facts, the ALJ baldly stated that ‘the claimant's subjective complaints and alleged limitations were not persuasive.'”). On the few occasions where the ALJ attempts to address Claimant's testimony, he mischaracterizes the available evidence. Compare (R. 22) (“[Claimant] testified he did not use 9 his cane to ambulate when he was at home”) with (R. 54) (“The only time I haven't really been trying to use my cane is when I'm at my house . . . just because for me, mentally, I'm thinking I'm doing my physical therapy around my house, . . knowing I know I can grab onto stuff.”). This is error.
The Fourth Circuit has also held that remand is not required when the ALJ's RFC analysis fails to explicitly discuss every part of the function-by-function analysis, provided that the ALJ sufficiently details his conclusions and uses evidence from the record to support the RFC finding. Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018); see Mascio, 780 F.3d at 636-37; Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). However, here, as explained supra, the ALJ does not sufficiently discuss his conclusions with respect to Claimant's leg pain, tremors, numbness, and associated functional limitations, and the ALJ did not use adequate evidence from the record to explain the RFC finding in this regard. Instead, the ALJ glosses over Claimant's subjective statements and conflates Claimant's muscle strength with his ability to stand, sit, and walk for more than a handful of minutes at a time, without explaining why. The ALJ may have had his reasons for disregarding or discrediting these factors, but his rationale is not articulated in the report and the court cannot now decide these issues in the first instance. See Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
The decision to remand the instant case is supported by Shelley C. v. Comm 'r of the SSA. In Shelley C., the Fourth Circuit stated, in pertinent part,
Strikingly,. . . the ALJ disregarded a powerful segment of the vocational expert's testimony. When asked about a person with psychological impairments who would be off task from their job for more than an hour a day, in addition to regular breaks, and miss more than two days of work a month on a regular basis, the vocational expert vocalized that there were no such jobs in the national economy suitable for a person with such limitations. We are perplexed by the ALJ's dismissal of this significant testimony. Given Shelley C.'s daily routine, she
cannot possibly be expected to attend, let alone perform, the jobs suggested.Shelley C., 61 F.4th at 368. Here, Claimant's ability to stand, sit, and walk for longer than a . couple of minutes at a time without changing position is likewise outcome-determinative, -because at the July 2022 hearing, the VE testified that to sustain competitive employment, “generally, ... a person needs to be able to maintain a posture for at least 15 minutes to be productive and not have it be a distraction,” (R. 80), and at the February 2023 hearing, the VE testified that the need for a sit/stand option would impact Claimant's employment options, (R. 111-15). However, the ALJ limits Claimant to light work, which requires “a good deal of walking or standing, or . . . involves sitting most of the time,” 20 C.F.R. § 404.1567(b), without adequately addressing contradictory evidence indicating how long Claimant can perform any of these actions, (R. 22). Without reweighing the evidence, the VE's testimony clearly indicates that these factors are outcome-determinative, and the ALJ's failure to folly address any of them frustrates meaningful review. As it is not the province of the court to weigh the evidence in the first instance, see Mascio, 780 F.3d at 636, remand is warranted for further consideration of this issue.
B. Claimant's Need for a Handheld Assistive Device
Claimant argues that the ALJ erred by not finding Claimant's cane medically necessary. Pl.'s Br. [DE-16] at 14-17. The Commissioner contends that Claimant has not proven that his cane is medically required, so the ALJ did not err in omitting this analysis. Def's Br. [DE-18] at 20-23. “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.” Daniel v. Berryhill, No. 5:17-cv-338, 2018 WL 4134844, at *5 (E.D. N.C. July 13, 2018), adopted by, 2018 WL 4113340 (E.D. N.C. Aug. 29, 2018) (citing Listing 1.00.J.4). Although Social Security Ruling (“SSR”) 96-9p . addresses the use of a handheld assistive device by individuals capable of less than a full range of sedentary work, “district courts within the Fourth Circuit have consistently referred to [SSR 96-9p] for direction when a claimant alleges that the ALJ failed to properly consider the claimant's use of a hand-held assistive device in the RFC analysis.” Id. (citing Lovejoy v. Berryhill, No. 2:17-cv-02921, 2018 WL 2729240, *14 (S.D. W.Va. 2 May 2018), adopted by, 2018 WL 2728032 (June 5, 2018)).
SSR 96-9p provides that an “RFC assessment must include a narrative that shows the presence and degree of any specific limitations and restrictions, as well as an explanation of how the evidence in file was considered in the assessment.” SSR 96-9p, 1996 WL 374185, *5 (July 2, 1996). An ALJ must consider the impact of a “medically required hand-held assistive device.” Id. at *7. For an ALJ to find that a handheld assistive device is medically required, “there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).” Id.
Here, the ALJ did not consider the impact of Claimant's cane in his RFC assessment. Instead, the ALJ found Claimant's cane not medically necessary, stating that,
The claimant's progress notes indicate he used a single point cane (SPC) to ambulate, but the claimant's testimony demonstrates he did not need to use both his hands and he was able to use one upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements. The claimant testified he was right-hand dominate and mainly used his right hand to hold his cane and he switched to his left hand due to the numbness in his hands. He also testified he did not use his cane to ambulate when he was at home.
However, his physical exams from the VAMC show 5/5 motor throughout upper and lower extremities (Exhibits 16F, and 17F). The State agency consultants did not find the claimant required an assistive device for ambulation or support, and' the undersigned concurs the record does not support the need for such a device, even if the claimant chooses to use one.(R.22).
As previously detailed, the ALJ should have adequately considered Claimant's subjective statements regarding his ability to stand, walk, arid sit for a prolonged period of time, and many of these statements involve Claimant's use of a cane. See supra § V.A. For similar reasons, the undersigned is unable to trace the reasoning behind the ALJ's medical necessity analysis. In, determining that Claimant's cane is not medically necessary, the ALJ based his decision on, inter alia, Claimant's testimony that that he does not use his cane to ambulate when he is at home; Claimant's physical exams, which showed 5/5 motor strength throughout his upper and lower extremities; and the state agency consultants' failure to find that Claimant required an assistive device for ambulation or support. (R. 22). However, Claimant's hearing testimony revealed that he does not use the cane when he is in his house because he can “grab on to stuff,” not because he no longer experience tremors, balance issues, and pain, (R. 54-55); and it is unclear from the ALJ's report whether Claimant's muscle strength alone determines his ability to ambulate for prolonged periods of time without his cane. Supra § V.A. Without a proper discussion of these factors, it is far from clear whether the ALJ's decision to deem Claimant's cane medically unnecessary is supported by substantial evidence.
There is also reason to question the ALJ's reliance on the state agency medical consultants' necessity analyses. To begin with, both opinions were rendered prior to December 3, 2021, the date of Claimant's second surgery. (R. 122-39). As the medical records make clear, Claimant's second surgery was performed after the initial procedure did not improve Claimant's symptoms-including his balance, numbness, tremors, and pain-to the extent expected. (R. 1212). More significantly, though, the state agency consultants' opinions were rendered before both administrative hearings, where Claimant clarified the extent of his limitations. (R. 10, 84). Given these factors-and the ALJ's failure to acknowledge either one-the undersigned is unable to meaningfully review the medical necessity finding.
The Commissioner correctly notes that while the record is replete with references to Claimant's cane use up to and after April 29, 2021, the date of Claimant's initial surgery, (R. 5051, 54-55, 65, 67-68, 102, 123, 128, 132, 137, 563, 569, 572, 640, 699-700, 761, 766, 843, 872, 878, 881, 924, 951, 956, 959, 964, 976, 1199, 1212, 1215, 1220, 1245, 1247-48, 1255, 1950-51, 2033, 2107, 2184, 2191, 2300, 2302, 2304-05), outside of the medical treatment notes indicating that Claimant was prescribed use of a single point cane and tall forearm crutches by a physical therapist, (R. 699-700), none of these records establish a medical need for the device; rather, they simply reflect that Claimant uses a cane to ambulate. See Emanuel v. Saul, No. 7:19-CV-202-FL, 2021 WL 1217309, at *3 (E.D. N.C. Mar. 31, 2021) (finding ALJ's error in miscounting references to a cane in the record harmless where “these mentions are traceable to [plaintiff's] self-reports and to physicians' observations that he presented with an assistive device” because such records do not establish medical necessity) (emphasis in original). A prescription alone is insufficient to establish medical necessity. See Easton v. Astrue, No. 2:07-CV-00030, 2008 WL 4108084, at *16 (E.D. N.C. Aug. 29, 2008) (“In this case, while Dr. Perez prescribed the use of a cane, no record describes the circumstances for which the cane is needed.”); Burgess v. Kijakazi, No. 5:21-CV-00131-M, 2022 WL 18657365, at *7 (E.D. N.C. May 4, 2022) (“The relevant inquiry is not whether a cane is prescribed but whether it is medically required.”) (internal quotation marks omitted). However, the evidence does not show that Claimant's degenerative disc disease, status post-surgery poses little limitation. There are some favorable findings in the record, such as 5/5 motor activity in the upper and lower extremities, (R. 1199), and decreased reliance on the cane following Claimant's second surgery, (R.843, 1199). But the evidence also shows that Claimant has continued to rely on his cane or other supports when walking further distances, (R. 1194, 1199, 1244), and he still experiences leg pain, numbness, and balance issues that affect his ability to sit, stand, and walk after two surgeries, (R. 1193-97, 1701, 2034, 210708, 2190). Thus, there is evidence supporting and opposing the medical necessity of Claimant's cane, but the ALJ's inadequate discussion of the matter leaves the undersigned unable to determine whether substantial evidence supports the conclusion that Claimant does not require an assistive device. See Roberts v. Kijakazi, No. 5:20-CV-00204-D, 2021 WL 4074797, at *6-7 (E.D. N.C. July 31, 2021), adopted by, 2021 WL 4066668 (E.D. N.C. Sept. 7, 2021); Daniels v. Saul, No. 4:19-CV-175-FL, 2021 WL 826775, at *5 (E.D. N.C. Feb. 11, 2021), adopted by, 2021 WL 815835 (E.D. N.C. Mar. 3, 2021). Remand is warranted on this basis.
C. The Term “Production-Pace” as Used in the RFC
Claimant argues that the ALJ erred by failing to explain what the term “production-pace” means when assessing Claimant's RFC. Pl.'s Br. [DE-16] at 17-18. The Commissioner asserts that the ALJ committed no such error and properly explained the basis for limiting Claimant to no production-pace work. Def.'s Br. [DE-18] at 23-27.
Claimant appeals to Thomas v. Berryhill for his contention that the ALJ's “productionpace” descriptor is impermissibly vague. Pl.'s Br. [DE-16] at 17. In Thomas, the Fourth Circuit considered a Social Security appeal where the ALJ had found that the claimant could
perform light work .... [She] is able to follow short, simple, instructions and perform routine tasks, but no work requiring a production rate or demand pace. She can have occasional public contact or interaction and frequent, but not
continuous, contact or interaction with coworkers and supervisors. [She] must avoid work involving crisis situations, complex decision making, or constant changes in a routine setting.916 F.3d 307, 310 (4th. Cir. 2019). Finding that remand was warranted, the court remarked, “while the ALJ stated that Thomas could not perform work ‘requiring a production rate or demand pace,' she did not give us enough information to understand what those terms mean .... That makes it difficult, if not impossible, for us to assess whether their inclusion in Thomas's RFC is supported by substantial evidence.” Id. at 312.
The Commissioner challenges Claimant's interpretation of Thomas, arguing that consistent with the Supreme Court's instruction in Biestek v. Berryhill, the Fourth Circuit did not create a categorical rule about the use of vocational terms in Thomas or in a subsequent decision, Perry v. Berryhill. Def's Br. [DE-18] at 23. In Perry, the Fourth Circuit examined an RFC limitation to a “non-production oriented work setting” for a claimant with limitations in concentration, persistence, and pace. 765 Fed.Appx. 869 (4th Cir. 2019). The court noted that the Regulations do not define the phrase, and the ALJ did not explain what was meant. Id. at 872. Emphasizing the difficulty of evaluating whether the restriction “properly accounted for [claimant's] well-documented limitations in concentration, persistence, and pace[,]” the court remanded the matter for further consideration. Id. Sizemore v. Berryhill supports the Commissioner's position. In Sizemore, the Fourth Circuit affirmed an ALJ's decision where the RFC included a limitation to “work only in [a] low stress [setting] defined as non-production jobs [without any] fast-paced work [and] no public contact.” 878 F.3d 72, 79 (4th Cir. 2017). Finding the additional descriptors explained the restriction intended by the ALJ, the court was able to evaluate whether the limitation to nonproduction jobs adequately accounted for the claimant's limitations. See id. at 81; Perry, 765 Fed.Appx. at 872 (distinguishing from Sizemore on this basis).
In the instant case, the AL J adds context to the “no production-pace” RFC limitation through descriptors that are similar to those in Sizemore. For example, here, as in Sizemore, the ALJ uses the phrase “no production-pace or quota-based work” to define Claimant's limitation to a “low stress work setting.” (R. 16). However, the ALJ also goes one step further and adds the qualifier, “[Claimant] requires a goal-oriented [job] dealing with things rather than people, with no more than frequent social interaction as part, of the job with supervisors and co-workers; [and] no more than occasional interaction/work with the public as part of the job, such as sales or negotiations.” Id That description is sufficient for the court to meaningfully review the RFC; unlike in Perry and Thomas, the court is not left to guess what the ALJ meant. See Nelson v. Saul, No. 4:18-cv-163, 2019 WL 4748028 (E.D. N.C. Aug. 29, 2019) (finding no error where the claimant had moderate difficulties with regard to concentration, persistence, or pace and the RFC limited her to performing only simple, routine, and repetitive tasks in a low-stress job, defined as no more than occasional decision-making required and no more than occasional changes in the work setting; no production-rate or paced-work, such as would be done on an assembly line; and limited interaction with others), adopted by, 2019 WL 4747048 (E.D. N.C. Sept. 27, 2019); Dunston v. Berryhill, No. 5:17-CV-380-FL, 2018 WL 4576783, at *1 (E.D. N.C. June 5, 2018) (finding no error when the claimant had a moderate limitation in concentrating, persisting, and maintaining pace and the RFC limited the claimant to simple, routine, repetitive tasks; occasional interaction with coworkers; no interaction with the public; and no performance of tasks that require a production pace), adopted by, 2018 WL 4204639 (E.D.N'C. Sept. 4, 2018); Simmons v. Berryhill, No. 5:17-CV-4-D, 2018 WL 577243, at *7 (E.D. N.C. Jan. 10, 2018) (holding that an RFC limiting the claimant to “no quotas or fast-paced production work with uninvolved oral and 17 written instructions in two-hour segments” adequately accounted for moderate limitations in concentrating, persisting, and maintaining pace), adopted by, 2018 WL 576845 (E.D. N.C. Jan. 26, 2018). The ALJ adequately accounted for Claimant's moderate difficulties concentrating, persisting, and maintaining pace, and the ALJ's RFC formulation contains sufficient explanation for meaningful review. See Duffin v. Saul, No, 2:18-CV-27-D, 2019 WL 3731135, at *4 (E.D. N.C. June 28, 2019), adopted by, 2019 WL 3731309 (E.D. N.C. Aug. 6, 2019). Accordingly, the ALJ did not err in formulating the RFC as it relates to Claimant's ability to stay on task.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that the final decision of the Commissioner be reversed 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 August 6,2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review, (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.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).