Opinion
C/A No. 0:18-2970-RMG-PJG
10-25-2019
Esther Bennett Greene, Plaintiff, v. Andrew Saul, 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, Esther Bennett Greene, 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") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), 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), 416.905(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), 416.920(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), 416.920(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), 1382c(a)(3)(A)-(B); 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 2014, Greene applied for DIB and SSI, alleging disability beginning March 1, 2014. Greene's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A video hearing was held on June 8, 2017, at which Greene appeared and testified and was represented by Natasha M. Hanna, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on September 22, 2017, concluding that Greene was not disabled from March 1, 2014 through the date of the decision. (Tr. 10-19.)
Greene was born in 1961 and was fifty-two years old at the time of her alleged disability onset date. She has a high school education and has past relevant work experience as a pharmacy clerk. (Tr. 247.) Greene alleged disability due to diabetes, Hepatitis C, high blood pressure, and high cholesterol. (Tr. 246.)
In applying the five-step sequential process, the ALJ found that Greene had not engaged in substantial gainful activity since her alleged onset date of March 1, 2014. The ALJ also determined that Greene's diabetes mellitus with retinopathy, cataracts, and Hepatitis C were severe impairments. However, the ALJ found that Greene 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 Greene retained the residual functional capacity to
perform less than a full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). Light exertional work is described by the Commissioner of the Social Security Administration as requiring lifting/carrying of up to 20 pounds occasionally
and 10 pounds frequently, and standing, walking, and sitting for 6 hours in an 8-hour workday. The claimant cannot climb ladders/ropes/scaffolds, but she can occasionally climb ramps/stairs and reach overhead bilaterally. She must avoid work that requires binocular vision, working at unprotected heights, and working around hazardous machinery. Additionally, she must avoid concentrated exposure to extreme cold or heat.(Tr. 14.) The ALJ found that Greene was capable of performing past relevant work as a pharmacy technician, a cosmetologist, and a teacher's aide, and that this work did not require the performance of work-related activities precluded by Greene's residual functional capacity. Therefore, the ALJ found that Greene was not disabled from March 1, 2014 through the date of the decision.
The Appeals Council denied Greene's request for review on August 29, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) 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
Greene raises the following issues for this judicial review:
I. The ALJ did not explain his finding regarding the Plaintiff's residual functional capacity, as required by Social Security Ruling 96-8p.(Pl.'s Br., ECF No. 18.)
II. Evaluation of Greene's subjective symptomology[.]
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, 416.913, 416.927. Because the instant claims were 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 Greene's applications for benefits were filed, unless otherwise specified.
Upon careful review of the parties' arguments, the ALJ's decision as a whole, and the record, the court is constrained to recommend that this matter be remanded for further consideration and analysis by the ALJ. As an initial matter the court finds that Greene's allegations of error overlap and therefore, the court addresses these issues together. Specifically, the court is unable to determine whether the ALJ's evaluation of Greene's alleged impairment of carpal tunnel syndrome was properly considered at Step Two of the sequential evaluation in light of the record presented and Greene's subjective reports. Further, it does not appear that the ALJ properly considered Greene's subjective reports of limitations stemming from this alleged impairment. Therefore, it is unclear whether the ALJ's residual functional capacity assessment is supported by substantial evidence.
Step Two of the sequential evaluation requires the ALJ to "consider the medical severity of [a claimant's] impairment(s)." 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The claimant bears the burden at this step to show that he has a severe impairment. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 4163.920(c). "Basic work activities" means "the abilities and aptitudes necessary to do most jobs." Examples of these include:
(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;20 C.F.R. §§ 404.1522(b), 416.922(b). "[A]n impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984) (internal quotation marks omitted).
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.
At Step Two, the ALJ found that Greene's diabetes mellitus with retinopathy, cataracts, and Hepatitis C were severe impairments, but that Greene's "hypertension (Exhibit 1F/5, 4F/3), status- post right rotator cuff tear and repair (Exhibit 8F/34), status-post left Achilles tendon tear and repair (Exhibit 6F), left carpal tunnel syndrome (Exhibit 12F/1-3), gastroesophageal reflux disease (GERD) (Exhibit 3F/3), peptic ulcer disease (Exhibit 5F/21), hyperlipidemia, (Exhibit 1F/5, 4F/3), and anemia (Exhibit 1F/4, 4F/3)" were nonsevere. (Tr. 13.) Greene argues that the ALJ erred in failing to find Greene's carpal tunnel syndrome to be a severe impairment. Specifically, Greene points to her testimony regarding her limitations. Greene testified to an inability to grip anything due to the pain in her left hand which also impacted her ability to dress (Tr. 45, 50) and being able to pick up about five pounds and pain in her left hand even when she was not using it (Tr. 48). Medical records immediately preceding Greene's hearing on her applications indicate a diagnosis of carpal tunnel syndrome, hand pain with an inability to close her left hand, findings of a reduced range of motion due to pain, and administration of a corticosteroid injection to Greene's left wrist (Tr. 663-77.)
As a initial matter, the mere presence or diagnosis of a condition is insufficient to meet Greene's burden at Step Two; rather, she must show how it significantly limits her ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c); Bowen, 482 U.S. at 146 n.5; see also Washington v. Astrue, 698 F. Supp. 2d 562, 580 (D.S.C. 2010) ("Plaintiff's medical records establish the existence of her impairment, but the current record contains no evidence of how it significantly limits her physical or mental ability to do basic work activities."). Prior to these most recent medical records, there does not appear to be reports in her medical records of more than tingling in her hands. However, these recent records appear to support Greene's testimony, and it is unclear why the ALJ determined that Greene's alleged impairment was non-severe.
It is further unclear why the ALJ discounted Greene's testimony on these limitations. The ALJ acknowledged Greene's testimony that
she could not grip or pull things with her left hand without increased pain symptoms. She noted that she also had problems with her right hand, but they were less severe. . . . She indicated that she could lift/carry approximately five pounds, but that her medical provider was trying to get her placed in physical therapy. She indicated that she experienced constant pain in her left hand, as well as diffuse pain in multiple sites throughout her body.(Tr. 15.) The ALJ's decision fails to explain why this aspect of Greene's testimony was discounted. See SSR 16-3p, 2017 WL 5180304, at *10 (stating that 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"); see also 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (providing the applicable factors for consideration when evaluating a claimant's subjective complaints). Thus, it is unclear whether the ALJ considered Greene's alleged hand impairment after Step Two of the sequential process, and the court is unable to find the error at Step Two harmless.
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.
Further complicating judicial review of the ALJ's decision is the ALJ's evaluation of Greene's allegations of disabling vision. The ALJ acknowledged Greene's testimony that "she lost her driver's license in March 2015 because she could not have it renewed due to poor eyesight, had it reissued two weeks [prior to the June 8, 2017 hearing], but still did not drive often." (Tr. 15.) Review of the hearing transcript reflects that Greene further stated that her vision rendered her unable to drive at some point before her driver's license expired. Greene continued, testifying that
A . . . . One day, I was sitting in my kitchen, and I just saw this shadow, like, come over the right eye. And I called the eye doctor, and he told me to have an emergency visit and come in.(Tr. 53-54.)
By the time I left my house, which is about five minutes from the Wal-Mart site, where the eye doctor is -- by the time I got there, that cloudiness had gone from the corner to the center of my eye. That's how fast the cataract was actually moving across my eye.
So he told me, it was a fast- growing cataract. About a month after the right eye went like that, I went back in, because the left eye was doing the same thing. So within a month's period, both of them had a fast-growing cataract.
So I had to go back in, and he said that he saw there were a lot of shots. It looked like blood that was going through the eye. And he suggested that I needed to have Lasik surgery, also.
Q Okay.
A So within 2015, when they first spotted it, and I got in with Commission for the Blind, it took them from March -- which was Good Friday, that I got approved and she said that they were working as fast as they could -- it took them until this year, when I finally had my first surgery on the right eye, February 14th.
And then about --
Q You said, from March, 2015 and about -- until about May, 2017, your vision was so bad that you couldn't even pass a driver's license test.
A -- right.
In evaluating Greene's subjective complaints and the medical evidence the ALJ observed the following:
Treatment notes dated July 2015 from WalMart Vision Center showed that the claimant was assessed with cataracts bilaterally (Exhibit 7F). Treatment notes from Coastal Eye Group showed that the claimant was diagnosed with age-related cataracts bilaterally in January 2017 (Exhibit 10F/3-4). She underwent right cataract removal in February 2017 (Exhibit 10F/7) and on the left eye in March 2017 (Exhibit 10F/18). She underwent laser surgery in April 2017 the right eye and in May 2017 on the left eye to correct diabetic retinopathy with macular ischemia/edema (Exhibit 10F/43, 48). Treatment notes dated April 2017 from Dr. Kristi Miller indicated that the claimant was instructed that the claimant's visual impairment was likely the cause for imbalances. A walking stick was recommended, which the claimant declined. The claimant advised that her vision had improved since surgery (Exhibit 12F/1-3).(Tr. 16.) Review of the treatment notes from Coastal Eye Group in 2017 indicate in the history of present illness that
The 55 year old female presents for evaluation of decreased vision in the right > left. It started about 1 year(s) ago. It affects both near and far vision. The symptom is constant. The condition is severe. Patient states she saw Dr. Ledford last year and was told that there was some blood behind her eyes. Vision rapidly decreased throughout the past year. She states she had to go through the Commission of the Blind. Patient states she was also told she had some rapid growing cataracts.(Tr. 565.) She was diagnosed with "Cortical Cataract 4+" in both eyes. (Tr. 567.) In evaluating the medical evidence and Greene's subject complaints, it is unclear why the ALJ did not provide additional limitations with regard to Greene's alleged visual limitations, as the evidence suggests she may have experienced limitations beyond those included in the residual functional capacity for a period exceeding twelve months. However, without the ALJ's explanation, it is unclear whether the ALJ considered this possibility.
In light of all of the foregoing, the court is constrained to recommend that this matter be remanded for further consideration of the evidence presented. See Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017) (stating that when determining a claimant's residual functional capacity, the ALJ "must evaluate 'all' relevant record evidence") (citing 20 C.F.R. § 404.1520(e)); see also Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). While caselaw acknowledges that an ALJ is not required to specifically refer to every piece of evidence, the court is constrained to agree with Greene that the ALJ's failure to analyze or otherwise address some of this evidence leaves the court guessing as to how the ALJ arrived at his conclusions and whether the ALJ's findings are supported by substantial evidence. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) ("While the Commissioner's decision must 'contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based,' 42 U.S.C. § 405(b)(1), 'there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.' ") (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)); 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); 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). Although the Commissioner suggests reasons that the ALJ could discount the evidence concerning Greene's alleged carpal tunnel syndrome and vision, where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court recommends that this matter be remanded for further consideration of this evidence.
Accordingly, the court expresses no opinion as to whether further consideration of these impairments and the above discussed evidence and testimony by the ALJ should necessarily lead to a finding that additional limitations are warranted or that Greene is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on these points.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. October 25, 2019
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).