Opinion
5:20-CV-200-D
08-02-2021
RONNIE ISSETTE, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones, Jr. United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-24, -26] pursuant to Fed.R.Civ.P. 12(c). Claimant Ronnie Issette ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") payments. The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability and DIB on September 19, 2016 and for SSI on October 24, 2016, alleging disability beginning February 1, 2016. (R. 45, 481-503). Both claims were denied initially and upon reconsideration. (R. 45, 299-366). A hearing before the Administrative Law Judge ("ALJ") was held on February 14, 2019, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 263-98). On March 25, 2019, the ALJ issued a decision denying Claimant's request for benefits. (R. 42-63). On March 19, 2020, the Appeals Council denied Claimant's request for review. (R. 1-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . .. past work or (5) any other work.Albright v. Comm'r of the SSA, 174F.3d473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in: (1) failing to evaluate his right ankle impairment under the criteria of Listing 1.03, Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint, (2) failing to perform a function-by-function analysis of his ability to stand and walk, and (3) failing to properly evaluate the opinion of Dr. Carbonell. Pl's Mem. [DE-25] at 6-15.
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 February 1, 2016, the alleged onset date. (R. 48). Next, the ALJ determined Claimant had the following severe impairments: anxiety, bipolar disorder, personality disorder, and right Achilles tendon tear - status post repair surgery. Id. The ALJ also found Claimant had non severe impairments of hypertension, insomnia, obesity, and seizures. (R. 48-49). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 49-51). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 50).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. §§ 404.1567(b), 416.967(b).
the claimant frequently can balance, crouch, kneel, crawl, stoop, and climb ramps, stairs, ladders, and scaffolds; he frequently can push, pull, and operate foot controls with the left lower extremity and occasionally with the right lower extremity; he
needs to avoid concentrated exposure to crowded work environments and hazards, e.g., unprotected heights, machines with moving mechanical parts, and driving employer vehicle; he can understand, remember, and carry out simple instructions; he frequently can interact appropriately with supervisors and coworkers, and he occasionally can interact appropriately with the public; he can make simple work related decisions; he can tolerate few changes in a routine work setting; and, he will be off task 5% of the day due to, for example, alternating between sitting/standing and/or attention/concentration lapses.(R. 51-56). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence in the record. (R. 52).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work. (R. 56-57). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 57-58).
V. DISCUSSION .
Claimant contends the ALJ erred in failing to find that his right ankle impairment met or equaled Listing 1.03, Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint. Pl's Mem. [DE-25] at 10-13. The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. §§ 404.1525(a), 416.925(a). Therefore, if a claimant's impairments meet or medically equal a listing, that fact alone establishes that the claimant is disabled. Id. §§ 404.1520(d), 416.920(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Listing 1.03 relates to "[r]reconstructive surgery or surgical arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur, or is not expected to occur, within 12 months of onset." 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.03. Claimant suffered an Achilles tendon laceration, which was surgically repaired on December 29, 2015. (R. 726-29). In June 2016, six months after surgery, Claimant reported severe pain related to his Achilles tendon but had normal range of motion. (R. 631-32). At monthly pain management visits from July to December 2016, one year after his surgery, Claimant continued to report constant severe pain in his right foot, he had painful range of motion, and his gait was noted to be antalgic. (R. 640-58, 780-89).
Dr. Antonio Carbonell performed a consultative examination of Claimant on February 10, 2017, and noted that Claimant was unable to walk a block at a reasonable pace on a rough/uneven surface. (R. 740-43). Dr. Carbonell also found that Claimant ambulated with a limp, his ankle/foot range of motion was reduced by 50%, he did not need an assistive device for ambulation, he was able to climb a few steps at a reasonable pace with the use of a single handrail and had full use of the other upper extremity for carrying objects, his ability to stand and travel was mildly impaired, his ability to move about was moderately impaired, and his prognosis was poor. (R. 743). In February 2018, Claimant exhibited poor balance due to muscle wasting of the right calf, decreased vibratory sensation and deep tendon reflexes of+1, and reduced strength of 3/5 in the right lower extremity. (R. 757, 759).
Impairments related to the Achilles tendon have been considered under Listing 1.03, see, e.g., Jason K. v. Berryhill, No. 3:18-CV-05291-DWC, 2018 WL4941262, at *6 (W.D. Wash. Oct. 12, 2018) (analyzing Listing 1.03 with respect to the claimant's Achilles tendonitis); Gordon v. Astrue, No. CIVA. 5:06CV101, 2008 WL 822103, at *15 (N.D. W Va. Mar. 26, 2008) ("[T]he ALJ acknowledged that Claimant suffered multiple injuries to her Achilles heel/ankle region and underwent four surgeries to this area between 2000 and 2004-and thus met the threshold qualification of Listing 1.03."), and the Acting Commissioner does not argue that the first part of the listing is not met but rather asserts that Claimant has not satisfied the criteria requiring a failure to return to effective ambulation, Def's Mem. [DE-27] at 11-13.
The "inability to ambulate effectively" is defined as "an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities." 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.00B.2.b(1). The listings provide a non-exhaustive list of examples of ineffective ambulation, which includes "the inability to walk a block at a reasonable pace on rough or uneven surfaces," and the ability to walk independently at home without the use of an assistive device does not, alone, constitute effective ambulation. Id. § 1.00B.2.b(2); Ezzell v. Berryhill, 688 Fed.Appx. 199, 200 (4th Cir. May 4, 2017). Dr. Carbonell found more than a year after Claimant's Achilles repair that he was unable to walk a block at a reasonable pace on a rough or uneven surface. (R. 740-43). Thus, there was evidence in the record satisfying the ineffective ambulation requirement of Listing 1.03.
The Commissioner points to other evidence in the record suggesting that Claimant could ambulate effectively. Def's Mem. [DE-27] at 11-12. However, when "there is at least conflicting evidence in the record" as to whether a claimant satisfies a listing, the ALJ must explain her determination that the claimant's impairment does not meet or exceed the listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). For example, in Radford the record showed "limited motion of the spine on at least four occasions, positive straight leg raises at least five times, and sensory reflex loss on at least three occasions," but it also showed "no weakness, sensory loss, or limitation of motion during some examinations." Id. at 296. The court held that there was conflicting evidence requiring a detailed explanation from the ALJ. Id. Here, the ALJ did not consider whether Claimant's impairment met or equaled Listing 1.03, and the failure to do so was error in light of conflicting evidence in the record.
Furthermore, the case of Ezzell v. Berryhill is instructive. In Ezzell, the Fourth Circuit determined the ALJ erred by failing to consider the applicability of Listing 1.03 where the claimant underwent a reconstructive hip surgery in July 2008 and nearly a year later was still unable to ambulate effectively. 688 Fed.Appx. at 200. Ten months after the claimant's surgery, a consultative examiner observed that Ezzell used a simple cane for walking and standing and that the device was needed for small walks; Ezzell was unable to walk a block at a reasonable pace on a rough or uneven surface and unable to climb a few steps at a reasonable pace with the use of a single hand rail; Ezzell's ability to sit, stand, lift, and carry was moderately impaired; and his ability to move about was severely impaired. Id. at 200-01. The ALJ specifically referred to the consultative examiner's observations, finding that they were "consistent with the clinical record" and "accurately describe[d] the functional impact of the medically determinable impairments upon the claimant," and gave his opinions "significant weight," but without any discussion the ALJ concluded that Ezzell failed to show that his impairment resulted in the inability to ambulate effectively on a sustained basis, implicitly rejecting the consultative examiner's opinion. Id. At 201. The court concluded that
there is probative evidence in the record to support a determination that Ezzell's impairment meets or equals Listing 1.03. Furthermore, the ALJ's decision does not include a sufficient discussion of the evidence and explanation of its reasoning regarding Ezzell's ability to ambulate effectively such that meaningful judicial review is possible with respect to Listing 1.03.Id.
Here, more than a year after Claimant's Achilles tendon repair, Dr. Carbonell opined that Claimant was unable to walk a block at a reasonable pace on a rough or uneven surface, he ambulated with a limp, his ankle/foot range of motion was reduced by 50%, his ability to move about was moderately impaired, and his prognosis was poor. (R. 743). The ALJ gave Dr. Carbonell's opinion some weight, noting that portions of this opinion are supported by the physical examination, while others are not; Dr. Carbonell is an expert who is familiar with the program, but his use of the terms "mild" and "moderate" is undefined and vague in this context; and his opinion is consistent with the longitudinal medical evidence record in that the claimant is able to ambulate without an assistive device, though additional limitations are appropriate. (R. 55). The court is unable to trace the ALJ's reasoning in evaluating material portions of Dr. Carbonell's opinion.
The ALJ found Dr. Carbonell's opinion that Claimant was moderately impaired in the ability move about to be vague and undefined, but in Ezzell the Fourth Circuit favorably cited similar evidence. 688 Fed.Appx. at 201. The ALJ also found Dr. Carbonell's opinion to be consistent with the longitudinal evidence with respect to the fact that he did not require an assistive device, implying that other portions of the opinion were inconsistent, but the ALJ provided no discussion or evidence in that regard. There is evidence in the record that would tend to corroborate Dr. Carbonell's opinion. For example, in February 2018, Claimant exhibited poor balance due to muscle wasting of the right calf, decreased vibratory sensation and deep tendon reflexes of+1, and reduced strength of 3/5 in the right lower extremity. (R. 757, 759).
The ALJ's discussion of Dr. Carbonell's opinion is insufficient for the court to trace why he adopted some portions of the opinion and rejected others, which is particularly problematic with respect to Dr. Carbonell's opinion that Claimant was unable to walk a block at a reasonable pace on a rough or uneven surface, a specific example of ineffective ambulation in the listings. See Jason K., 2018 WL 4941262, at *6 (finding the ALJ's step three findings regarding Listing 1.02 and 1.03 may have changed with proper consideration of his doctor's opinion that the claimant's Achilles tendonitis prevented him from ambulating effectively). Accordingly, it is recommended that this matter be remanded for the ALJ to more fully explain the weight afforded to Dr. Carbonell's opinion and to consider whether Claimant's Achilles impairment meets or equals Listing 1.03. See Morrison v. Saul, No. 3:20-CV-108-DSC, 2020 WL 5549610, at *2 (W.D. N.C. Sept. 16, 2020) (remanding case where the ALJ did not evaluate Plaintiff's foot and ankle injuries or resulting surgeries under Listing 1.03, which was clearly implicated by the medical records).
Because reconsideration of these issue may impact the remaining issue raised by Claimant related to the ALJ's function-by-function analysis of Claimant's ability to stand and walk, it is recommended that this issue receive additional consideration on remand, as necessary, in light of the ALJ's further consideration of Claimant's ability to effectively ambulate and Dr. Carbonell's opinion. See Jones v. Astrue, No. 5:ll-CV-206-FL, 2012 WL 3580482, at *8 (E.D. N.C. Apr. 19, 2012) ("Because this court finds that remand on the issue of the treating physician's opinion will affect the remaining issues raised by Claimant, it does not address those arguments."), adopted by 2012 WL 3580054 (E.D. N.C. Aug. 17, 2012).
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-24] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-26] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
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 16, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ P. 72(b)(3); Local Civ. R 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).