Opinion
C/A No. 0:17-2661-DCC-PJG
10-02-2018
Cynthia W. Boyd, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Cynthia W. Boyd, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and the case remanded.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In November 2013, Boyd applied for DIB, alleging disability beginning November 14, 2012. Boyd's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on July 26, 2016, at which Boyd, who was represented by Penny H. Cauley, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on November 9, 2016, finding that Boyd was not disabled from November 14, 2012 through the date of the decision. (Tr. 21-35.)
Boyd was born in 1962 and was forty-nine years old on her alleged disability onset date. She has a high-school education and has past relevant work experience as a nurse. (Tr. 245.) Boyd alleged disability due to asthma, dyspnea, depression, arthritis, thyroiditis, GERD, sinusitis, bronchitis, hypothyroidism, anxiety, osteoarthritis, chronic back and neck pain, and insomnia. (Tr. 244.)
In applying the five-step sequential process, the ALJ found that Boyd had not engaged in substantial gainful activity since her alleged onset date of November 14, 2012. The ALJ determined that Boyd's asthma, anxiety, and depression were severe impairments. However, the ALJ found that Boyd did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 ("the "Listings"). The ALJ found, after consideration of the entire record, that Boyd retained the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except she is limited to frequent sitting, standing and walking; frequent gross manipulation with the bilateral upper extremities; occasional climbing of ramps/stairs and ladders, ropes and scaffolding; occasional balancing, stooping, kneeling, crouching and crawling; and no concentrated exposure to pulmonary irritants (concentrated dusts, odors, fumes,
etc.) or humidity or wetness. She [] can perform simple routine and repetitive tasks but not at a production rate pace. She can have occasional superficial interaction with the general public.(Tr. 26.) The ALJ found that Boyd was unable to perform any past relevant work, but that considering Boyd's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Boyd could perform. Therefore, the ALJ found that Boyd had not been disabled from November 14, 2012 through the date of the decision.
The Appeals Council denied Boyd's request for review on August 15, 2017, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-6.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
From Boyd's Brief, the court is able to glean the following issues for this judicial review: (1) the ALJ improperly discredited the records of Boyd's treating physicians; (2) the ALJ improperly discredited Boyd's testimony; (3) the ALJ erred in misstating Dr. DePace's medical opinion in forming Boyd's residual functional capacity; and (4) the hypothetical question presented to the vocational expert failed to include all of Boyd's limitations. (See generally Pl.'s Br., ECF No. 10.)
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claim was filed prior to that date, all references in the instant Report and Recommendation are to the prior versions of the regulations which were in effect at the time Boyd's application for benefits was filed, unless otherwise specified.
Because the court concludes that remand is warranted as to Boyd's second issue, it addresses that issue first.
The court observes that further consideration of Boyd's second issue may impact the remaining issues. Therefore, in light of the court's recommendation that this matter be remanded for further consideration, the court need not address the plaintiff's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments).
With regard to subjective complaints, the United States Court of Appeals for the Fourth Circuit has stated that "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 594. The first step requires there to "be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged." Id. (internal quotation omitted). During the second step the ALJ must expressly consider "the intensity and persistence of the claimant's [symptom] and the extent to which it affects her ability to work." Id. In making these determinations, the ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." SSR 16-3p, 2017 WL 5180304, at *10. ALJs are further instructed to
Effective March 28, 2016, SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029. See 2016 WL 1237954 (correcting the effective date of SSR 16-3p to read March 28, 2016). The ALJ's decision in this matter post-dates the effective date of SSR 16-3p.
limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments. In evaluating an individual's symptoms, our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person. Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities . . . .Id., at *11.
Further, "claims of disabling pain may not be rejected 'solely because the available objective evidence does not substantiate [the claimant's] statements' as to the severity and persistence of her pain." Craig, 76 F.3d at 595 (citations omitted) (emphasis and alteration in original). "This is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work." Id. A claimant's subjective complaints "need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the [symptoms] the claimant alleges he suffers." Id. The social security regulations inform claimants that in evaluating subjective complaints, the Commissioner will consider the following relevant factors:
(i) Your daily activities;20 C.F.R. § 404.1529(c)(3).
(ii) The location, duration, frequency, and intensity of your pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms.
Boyd alleges the ALJ erred in part by failing to sufficiently state her reasons for discounting Boyd's subjective complaints. In this case, the ALJ summarized Boyd's testimony at length and found that Boyd's impairments "could reasonably be expected to cause the alleged symptoms; however, the claimant'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. 26-28.) The ALJ then proceeded to summarize the medical evidence and weigh all of the opinion evidence. (Tr. 28-33.) The ALJ then concluded:
In sum, the claimant's medical record is positive for asthma, anxiety, and depression. While the medical evidence of record establishes the existence of the above-mentioned impairments, the objective evidence does not document a particularly serious condition and does not confirm that these impairments are of such severity that they could reasonably be expected to produce the degree of functional limitations alleged by the claimant. Considering the claimant's medical evidence in its entirety and her testimony, I conclude that the claimant's testimony is not fully consistent with the medical evidence of record and she retains the above residual functional capacity assessment.(Tr. 33.) Unfortunately, it is unclear from the ALJ's decision whether the ALJ considered all the applicable factors in considering Boyd's subjective complaints. It is also unclear how Boyd's testimony is not consistent with the medical evidence. Moreover, as written, the ALJ's opinion appears to suggest that she required, at the second step of the analysis of Boyd's subjective complaints, objective medical evidence to support Boyd's claims regarding the intensity of her symptoms. As Lewis observed, the law precludes this. See Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017) (quoting Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006) ("Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain is so continuous and/or so severe that it prevents him from working a full eight hour day.") (footnote omitted)); cf. Craig v. Chater, 76 F.3d 585, 589-90 (4th Cir. 1996) ("Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers . . . .").
The court observes that the ALJ did not have the benefit of Lewis at the time of her decision.
Furthermore, as pointed out by Boyd, the only statements by the ALJ suggesting specific evidence contrary or inconsistent with Boyd's testimony are a misleading footnote and a perplexing comment. Neither is sufficient to constitute substantial evidence to reject her subjective complaints. First, in summarizing Boyd's testimony, the ALJ indicated that Boyd "reported that she is petrified to leave the house and if she has to go out in the fall or winter, she will wear a mask" due to her asthma and susceptibility to illness. (Tr. 27.) The ALJ then noted that Boyd was not wearing a mask when attending her hearing in a federal courthouse. This footnote suggests that Boyd's testimony was unsupported, but it fails to also note that the hearing was in July, so it is not inconsistent with her testimony. Later in the decision, in evaluating an opinion from a treating physician, the ALJ simply states, "While [Boyd] said that she was unable to leave her house, she was able to attend the hearing." (Tr. 33.) Thus, the ALJ appears to have used Boyd's attendance at a critical hearing to her detriment to discount her subjective reports. Moreover, as Boyd argues, the ALJ unaccountably failed to note Boyd's tearful condition throughout the hearing.
Based on the foregoing, and especially in light of the ALJ's lack of specificity in evaluating Boyd's subjective complaints, the court is "left to guess" as how the ALJ arrived at her conclusions. See, e.g., Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted). It is unclear how Boyd's testimony was inconsistent with, contradicted by, or otherwise undermined by the record, and remand appears to be warranted. The court therefore is constrained to recommend that the matter be remanded for further analysis of Boyd's subjective complaints.
Moreover, although Boyd seeks a reversal and remand for an award of benefits, the court finds that Boyd's entitlement to benefits is not wholly established and that this matter should be remanded for further consideration and assessment of the above discussed evidence by the Commissioner in the first instance. See Crider v. Harris, 624 F.2d 15 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record); Smith v. Astrue, No. 3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) ("Whether to reverse and remand for an award of benefits or remand for a new hearing rests within the sound discretion of the district court.") (citing Edwards v. Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987)); cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013) ("Although we hold that the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than 'reversing' the ALJ and remanding with instructions to award benefits to Radford, the district court should have vacated and remanded with instructions for the ALJ to clarify why Radford did not satisfy Listing 1.04A."). The court is mindful of the length of this process to date, and therefore recommends that the Commissioner be directed to expedite reconsideration of this matter on remand.
RECOMMENDATION
For the foregoing reasons, the court recommends that the Commissioner's decision be reversed and remanded for further proceedings. October 2, 2018
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).