Opinion
Civil Action No. 8:18-cv-02102-JMC-JDA
09-11-2019
Linda Diane Gilchrist, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In October 2014, Plaintiff filed an application for DIB, alleging an onset of disability date of February 7, 2013. [R. 169-71.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 105-08, 111-14.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on September 7, 2017, ALJ James M. Martin conducted a hearing on Plaintiff's claim. [R. 30-68.]
The ALJ issued a decision on November 20, 2017, finding Plaintiff had not been under a disability within the meaning of the Social Security Act ("the Act"), from February 7, 2013, through the date of the decision. [R. 7-29.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through March 31, 2018, and had not engaged in substantial gainful activity since February 7, 2013, the alleged onset date. [R. 12, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of degenerative disc disease and degenerative joint disease. [R. 12, Finding 3.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 14, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, I find that the claimant has the RFC to perform sedentary work as defined in 20 CFR 404.1567(a) except that she can frequently operate hand controls with the right and left hands. She can frequently reach overhead to the left and right. She can frequently handle items with the right hand. She can occasionally climb ladders/ropes/scaffolds and occasionally crawl.[R. 15, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a retail manager. [R. 21, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 22, Finding 10.] Accordingly, the ALJ found Plaintiff had not been under a disability, as defined in the Act, from February 7, 2013, through the date of the ALJ's decision. [R. 23, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined. [R. 1-6.] Plaintiff filed the instant action for judicial review on July 31, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and "should be reversed outright and the case remanded to the Commissioner for certification of benefits beginning February 7, 2013. In the alternative, the case should be remanded to the Commissioner for a new Administrative Law Judge hearing and decision." [Doc. 26 at 1.] Specifically, Plaintiff contends the ALJ did not follow the "slight abnormality" standard by failing to find that Plaintiff's combination of depression/anxiety, COPD, and bronchitis were severe impairments. [Id. at 16-19.] Plaintiff also argues that the ALJ's RFC findings are not supported by substantial evidence because they fail to account for time off task and/or work absences [id. at 20-22] and that the ALJ failed to limit Plaintiff to unskilled work as a result of her pain [id. at 22-24].
The Commissioner, on the other hand, contends that the ALJ applied the correct legal standards and that substantial evidence supports the ALJ's decision. [Doc. 44.] The Commissioner argues that substantial evidence supports the ALJ's findings that Plaintiff's depression and anxiety, COPD, and bronchitis were non-severe impairments that did not significantly limit her ability to perform basic work activities. [Id. at 10-13.] The Commissioner also contends that substantial evidence supports the ALJ's RFC determination for a range of sedentary work at all skill levels. [Id. at 13-20.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in 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 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Combination of Impairments
Plaintiff argues that the ALJ erred by failing to find Plaintiff's COPD, chronic/recurrent bronchitis, and depression/anxiety to be severe impairments at Step 2. [Doc. 26 at 16-19.] The Commissioner maintains that "the ALJ determined that Plaintiff's COPD (with acute bronchitis), and depression and anxiety were 'not severe' at step two because the medical and other evidence of record established only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on Plaintiff's ability to work." [Doc. 44 at 11.]
It "is axiomatic that disability may result from a number of impairments which, taken separately, might not be disabling, but whose total effect, taken together, is to render claimant unable to engage in substantial gainful activity. . . . [T]he [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). Where a claimant has more than one impairment, the statutory and regulatory scheme for making disability determinations, as interpreted by the Fourth Circuit Court of Appeals, requires the ALJ to consider the combined effect of these impairments in determining the claimant's disability status and to "'adequately explain his or her evaluation of the combined effects of [the] impairments'" Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 866 (4th Cir. 2014) (quoting Walker, 889 F.2d at 50). Further, the ALJ's duty to consider the combined effect of a claimant's multiple impairments is not limited to one particular aspect of its review, but is to continue "throughout the disability determination process." 20 C.F.R. § 404.1523; see also Fleming v. Barnhart, 284 F. Supp. 2d 256, 270 (D. Md. 2003) ("The ALJ is required to assess the combined effect of a claimant's impairments throughout the five-step analytical process.").
As an initial matter, it seems that Plaintiff's argument regarding the ALJ's failure to consider her impairments in combination is limited to the failure to find these impairments to be severe at Step 2. [Doc. 26 at 16 ("The ALJ did not follow the 'slight abnormality' standard by failing to find that [Plaintiff's] combination of depression/anxiety, COPD, and bronchitis are severe impairments."), 19 ("The ALJ erred by failing to find that [Plaintiff's] COPD, chronic/recurrent bronchitis and depression/anxiety to be severe impairments." and "The ALJ erred when he failed to consider these impairments to be severe at step two.").] The ALJ addressed Plaintiff's non-severe impairments as follows:
The impairments of hypertension, gastroenteritis, COPD, anxiety and depression do not significantly limit the claimant's ability to perform basic work activities. The impairments are "not severe" because medical and other evidence establishes only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on claimant's ability to work (20 CFR 404.1522; SSRs 85-28, 96-3p, and 96-4p).[R. 13.] To support her assertion that her COPD, bronchitis, and depression and anxiety are severe, Plaintiff relies only on her hearing testimony and has failed to direct the Court to any medical evidence supporting her claims of daily crying spells, monthly panic attacks, or lengthy bouts of bronchitis. [Doc. 26 at 19 (citing R. 48-51).] Moreover, a review of Plaintiff's Adult Disability Report, Adult Function Report, and Appeal Disability Report, reveals that Plaintiff did mention crying spells, panic attacks, or bronchitis as being medical conditions limiting her ability to work. [R. 188-98, 205-13, 224-30.] Additionally, the Court's own review of the medical evidence does not support Plaintiff's contention that her COPD, bronchitis, and/or depression and anxiety should have been considered severe. To the contrary, although Plaintiff was diagnosed with bronchitis approximately seven times between December 2013 and March 2017, on each occasion, she was diagnosed with acute bronchitis, and there is no indication that bronchitis was a chronic impairment, particularly where Plaintiff responded to antibiotics on each occasion and never appeared to be in any respiratory distress during any medical visit. [R. 1050-52, 1063-65, 1068-71, 1147-51, 1168-72, 1174-80, 1437-41.] Additionally, the record does not contain a diagnosis of COPD; as of February 2016, encounter notes expressly state that Plaintiff's medical history did not include asthma or COPD [R. 1174], and as of April 2016, encounter notes state that pulmonary function tests would be ordered because Plaintiff "may have COPD" [R. 1187]. With respect to Plaintiff's depression and anxiety, the record is replete with evidence that she did not suffer disabling limitations from depression or anxiety and suffered symptoms primarily when she stopped taking her mediation. [E.g., R. 1182 (Plaintiff denied anxiety described her depression as mild although it had worsened because she was not taking medication); R. 1207 (Plaintiff reported experiencing sadness and easily crying after being off Prozac for about a month.] In light of the above, the Court cannot find error in the ALJ's decision to find Plaintiff's COPD, bronchitis, depression and anxiety to be non-severe. The ALJ reasonably found that Plaintiff's non-severe impairments did not significantly limit her ability to perform basic work activities.
I must consider the combined effect of all impairments on the person's ability to function without regard to whether any such impairment, if considered separately, would be of sufficient severity (20 CFR 404.1523). Any diagnosis, ailment, or condition not specifically set out herein was both not severe and acute in nature (i.e., conditions such as allergic rhinitis, upper respiratory infection) or otherwise quickly resolved and was not expected to lead to any permanent work restriction.
The claimant's medically determinable mental impairments of depression and anxiety, considered singly and in combination, do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and are therefore nonsevere.
Moreover, even if the ALJ erred at Step 2, an erroneous finding at Step 2 is harmless if the ALJ finds another severe impairment at Step 2 and proceeds to consider all impairments in subsequent steps. Sawyer v. Colvin, 995 F. Supp. 2d 496, 509 (D.S.C. 2014); see also Groberg v. Astrue, 415 F. App'x 65, 67(10th Cir. 2011) ("An error at step two concerning the severity of a particular impairment is usually harmless when the ALJ . . . finds another impairment is severe and proceeds to the remaining steps of the evaluation."). Here, as stated, the ALJ found that Plaintiff had severe impairments of degenerative disc disease and degenerative joint disease. [R. 12, Finding 3.] Additionally, throughout the remaining steps of the evaluation, the ALJ considered all of Plaintiff's impairments, including her non-severe impairments. [E.g., R. 19 (noting that Plaintiff did not see a mental health professional or pulmonary specialist).] Accordingly, remand is not warranted on this basis.
Consideration of Plaintiff's Pain in the RFC Analysis
Plaintiff argues that the ALJ erred in formulating the RFC by failing to include any limitations for time off task or work absences based on Plaintiff's "crippling pain." [Doc. 26 at 20-22.] Plaintiff also contends the ALJ erred by failing to limit Plaintiff to unskilled work as a result of her pain. [Id. at 22-24.] The Commissioner argues that substantial evidence supports the ALJ's decision that Plaintiff can perform sedentary work at all skill levels. [Doc. 44 at 13-20.]
The Administration has provided a definition of RFC and explained what a RFC assessment accomplishes:
RFC is what an individual can still do despite his or her limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule. . . .SSR 96-8p, 61 Fed. Reg. 34,474-01, at 34,475 (July 2, 1996) (internal citation and footnotes omitted). The RFC assessment must first identify the claimant's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. § 404.1545. See id. Only after this identification and assessment may RFC be expressed in terms of the exertional levels of work: sedentary, light, medium, heavy, and very heavy. Id. Additionally, the Administration has determined that in assessing RFC, the ALJ
must consider only limitations and restrictions attributable to medically determinable impairments. It is incorrect to find that [a claimant] has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height, or whether the [claimant] had ever engaged in certain activities in his or her past relevant work (e.g., lifting heavy weights.) Age and body habitus (i .e., natural body build, physique, constitution, size, and weight, insofar as they are unrelated to the [claimant]'s medically determinable impairment(s) and related symptoms) are not factors in assessing RFC. . . .Id. at 34,476.
To assess a claimant's RFC, the ALJ must consider all relevant evidence in the record, including medical history, medical signs, laboratory findings, lay evidence, and medical source statements. Id. at 34,477. SSR 96-8p specifically states, "The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id. at 34,478.
The determination of whether a person is disabled by pain or other symptoms is a two-step process. First, the ALJ must determine whether objective medical evidence shows the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged. Craig, 76 F.3d at 593, 595. Only after a claimant makes this threshold showing is the ALJ obligated to evaluate the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work. Id.
A claimant's symptoms, including pain, are considered to diminish her capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. § 404.1529(c)(4). Further, "a formalistic factor-by-factor recitation of the evidence" is unnecessary as long as the ALJ "sets forth the specific evidence he relies on" in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (internal quotation marks omitted). 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, 82 Fed. Reg. at 49, 467.
The following is a nonexhaustive list of relevant factors the ALJ should consider in evaluating a claimant's symptoms, including pain: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the claimant's symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) treatment, other than medication, received to relieve the symptoms; and (6) any measures the claimant has used to relieve the symptoms. 20 C.F.R. § 404.1529(c).
The ALJ's Analysis
In determining Plaintiff's RFC, the ALJ confirmed the presence of objective medical evidence showing the existence of medical impairments that could reasonably be expected to produce the pain and other symptoms alleged by Plaintiff. [R. 15-18.] However, the ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of the alleged symptoms are not entirely consistent with the medical evidence and other evidence in the record. [R.18.] The ALJ explained as follows:
In terms of the claimant's alleged symptoms, I have evaluated each allegation in light of the objective medical evidence and other evidence regarding the relevant factors listed in the symptoms regulations. The factors include daily activities; the location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes to alleviate pain or other symptoms; treatment, other than medication, received for relief of pain or other symptoms; any measures other than treatment used to relieve pain or other symptoms (e.g., lying flat on the back, standing for 15-20 minutes every hour, or sleeping on a board); and any other factors concerning functional limitations and restrictions due to pain or other symptoms.
The claimant reported daily activities that are consistent with the RFC. She testified that she can drive to the grocery store and drives maybe three days a week. When she goes to the grocery store, her husband is usually with her. She is able to walk through the store and get the items she needs. Her husband helps her unload the car and carry them into the house. Sometimes, if something is small, she can use both hands and can put such an item in.
In a Function Report of January 2015 the claimant said the conditions did not affect personal care except for taking off her shirt, reaching her back and needing help to wash her hair. She prepared meals and the only changes in cooking habits was that there were pans she could no longer pick up. She performed household chores at her own pace without help or encouragement that included cleaning and laundry. She was
able to go out alone, managed money and shopped in stores for food and clothes (Exhibit 4E).[R. 18-19.] The ALJ also noted,
The claimant testified that she sometimes has problems with the right hand when she is writing or using it for more than 5-10 minutes. She cannot raise the right arm above shoulder height without hurting.
As to side effects of prescribed medications she said oxycodone and hydrocodone kept her drugged up and sleepy but no longer takes those because her primary care doctor will not prescribe them and she prefers to not take those pills because of the way they make her feel.
The claimant testified that she can sit for 30 minutes before her neck gets stiff, stand for 30 minutes, walk for 20-30 minutes and lift no more than 10 pounds with both hands. Considering these allegations in light of the objective evidence, I find the alleged limitations for sitting, standing and walking are inconsistent with objective findings but the alleged limitations for lifting are consistent with objective findings and I have considered them in formulating the RFC.
The claimant testified that her most severe problems affecting ability to work are with her neck pain and right shoulder pain and swelling. She said surgeries on the shoulder did not help. Symptoms go down both arms to the hands, worse on the right.
I find it significant that the claimant has not sought or received treatment from a mental health professional since the alleged onset date. Apparently, treatment sources did not consider that the mental impairments were severe enough to warrant referral to a mental health professional or pulmonary specialist.
Upon evaluation of this evidence regarding the intensity, persistence, and limiting effects of symptoms to determine the extent to which they limit the claimant's work-related activities, I find the evidence shows the symptoms have not been as limiting as the claimant has alleged. The symptoms reduce the claimant's ability for work-related activities to some extent, but the claimant remains capable of performing work within the RFC.
Based on the seven strength factors of the physical RFC (lifting/carrying, standing, walking, sitting, pushing and pulling), I find that due to a combination of musculoskeletal impairments, the claimant demonstrates the maximum sustained work capability for sedentary exertion as defined in 20 CFR 404.1567(a) (lift/carry maximum of 10 pounds occasionally, stand/walk for a maximum total of two hours in an eight-hour workday). The claimant has no limitation for sitting and can sit for six of eight hours in an eight-hour workday. Due to musculoskeletal impairments affecting the upper extremities, she has a limitation for pushing/pulling with upper extremities but she has no limitation for pushing/pulling with the lower extremities.[R. 15-16.]
The reported symptoms of difficulty with sitting are inconsistent with objective medical evidence. The claimant has had minimal positive findings in the lower extremities. Exams have not shown abnormal gait and station, lower extremity edema, or abnormal motor strength, sensation or reflexes. The claimant uses no orthotic, prosthetic or assistive devices and no treatment source has prescribed use of such a device.
Continuing the RFC assessment on a function-by-function basis, I find that due to a combination of impairments, the claimant has additional nonexertional postural and manipulative limitations. She can frequently operate hand controls with the right and left hands. She can frequently reach overhead to the left and right. She can frequently handle items with the right hand. She can occasionally climb ladders/ropes/scaffolds and occasionally crawl. In formulating the RFC, I have considered the effects of pain, fatigue and medication side effects.
Objective medical evidence, opinion evidence, activities of daily living, response to treatment and other relevant evidence support this RFC.
Discussion
Upon review, the Court finds that the ALJ adequately discussed the evidence in the entire record and addressed each function for which he believed Plaintiff had limitations. Upon weighing the medical evidence related to Plaintiff's impairments, the ALJ limited Plaintiff to sedentary work with additional postural limitations. Although Plaintiff disagrees with the ALJ's failure to include limitations for time off task and/or absences and with the ALJ's failure to limit Plaintiff to unskilled work, the record evidence does not appear to support these limitations. Moreover, Plaintiff, who has the burden at Steps 1 through 4 of the five-step sequential evaluation process, Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995), has failed to direct the Court to any evidence of record that the ALJ failed to consider or improperly summarized, which would require the Court to remand on these issues. The Court's own review of the record reveals that none of Plaintiff's treatment providers provided any opinion as to Plaintiff's time off task, absences, or inability to perform anything more detailed than unskilled work. Moreover, at Step 2, the ALJ found Plaintiff had no limitations in understanding, remembering, or applying information and only mild limitations in her ability to concentrate, persist, or maintain pace [R. 13-14], and Plaintiff has not challenged these findings. Plaintiff has failed to direct the Court to any evidence suggesting that she is incapable of performing sedentary work as additionally limited by the ALJ in this case. Accordingly, remand is not warranted on this basis.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge September 11, 2019
Greenville, South Carolina