Opinion
Civil Action No. 6:18-65-MBS-KFM
06-21-2019
Natasha Morgan, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff, who is proceeding pro se, brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed an application for disability insurance benefits ("DIB") on March 28, 2013, alleging that she became unable to work on November 1, 2011. The application was denied initially and on reconsideration by the Social Security Administration. On August 19, 2014, the plaintiff requested a hearing. Although informed of the right to representation, the plaintiff chose to appear and testify without the assistance of an attorney or other representative (Tr. 50-51, 158-64, 173-76, 182). The administrative law judge ("ALJ"), before whom the plaintiff and an impartial vocational expert appeared on March 16, 2016, considered the case de novo and, on September 14, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 26-41). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on November 1, 2017 (Tr. 1-3). The plaintiff then filed this action for judicial review.
The plaintiff was represented by counsel during her request for review by the Appeals Council (Tr. 4, 22, 183-84, 272-75).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2016.
(2) The claimant has not engaged in substantial gainful activity since November 1, 2011, the alleged onset date (20 C.F.R. § 404.1571 et seq).
(3) The claimant has the following severe impairments: osteoarthritis (OA), depression, lumbar degenerative disc disease (DDD), and breast cancer (clear but on medications) (20 C.F.R. § 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), specifically, she could lift, carry, push, and pull twenty (20) pounds occasionally and ten (10) pounds frequently; sit, stand, and walk up to six (6) hours each in an 8-hour day with normal breaks every two (2) hours; except she could occasionally climb ladders; frequently climb steps/stairs; occasionally stoop; frequently balance, crouch, kneel, and crawl; frequent gross manipulation with the left upper extremity;
no more than occasional overhead reaching with the left upper extremity; and she should avoid concentrated exposure to dust, fumes, gases, respiratory irritants, etc.; avoid concentrated exposure to hazards; and is limited to unskilled work that would require no more than occasional interaction with the general public.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. § 404.1565).
(7) The claimant was born on May 31, 1982, and was 29 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. § 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from November 1, 2011, through the date of this decision (20 C.F.R. § 404.1520(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (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).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
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). "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." Id. 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]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 29 years old on her alleged disability onset date (November 1, 2011) and 34 years old on the date of the ALJ's decision (September 14, 2016). She completed four years of college but did not graduate (Tr. 57-58). She has past relevant work experience as a corrections officer, sales clerk, and security guard (Tr. 39).
On June 6, 2012, Daniel Wetenhall, M.D., examined the plaintiff for a fall on a hard floor an hour earlier. She was ambulatory and denied any headaches, extremity weakness, hearing loss, loss of consciousness, tingling, or laceration. Her physical examination was within normal limits except for some tenderness of the cervical and thoracic spine. She had no boney tenderness, swelling, or edema; her neck was supple; she had normal range of motion throughout her spine; she had no neurological deficits; and she had normal mental status (Tr. 514-16). At a July 2012, followup appointment with Linda Giambalvo, M.D., the plaintiff's primary care physician, she reported that her pain was well controlled with medication, and her physical examination was unremarkable (Tr. 420-21).
On October 17, 2012, the plaintiff returned to Dr. Giambalvo complaining of a flare-up of back spasms. A physical examination revealed some tenderness and muscle spasms in the low back and decreased forward flexion, but was otherwise normal. Dr. Giambalvo assessed the plaintiff with anxiety and muscle spasms and administered a pain injection (Tr. 417-18). A November 8, 2012, a lumbar MRI showed a midline disc protrusion/herniation at L2-4, disc bulge at L4-5, degenerative disc disease at L3-4 and L4-5, epidural lipomatosis, and mild lumbar facet arthrosis, while a cervical MRI showed no disc herniation or compressive discopathy (Tr. 448-49). The plaintiff saw Michael Bucci, M.D., for a neurosurgical consultation on December 18, 2012. Her physical examination was unremarkable, showing normal muscle tone, full (5/5) muscle strength throughout, normal coordination and gait, and no impairment of thought processes or cognitive function. Dr. Bucci determined that the plaintiff did not have a surgical problem to explain her chronic pain and advised her to continue with pain management (Tr. 277-79). Between April 30, 2013, and April 29, 2014, the plaintiff presented for regular appointments with Michael Grier, M.D., her pain management physician. Her physical examinations were unremarkable, showing some spinal tenderness, but no new focal motor or sensory deficits, palpable distal pulses throughout, and symmetric deep tendon reflexes (Tr. 280, 463-64, 1224-28).
On May 15, 2013, a biopsy demonstrated that the plaintiff had invasive ductal carcinoma and the ductal carcinoma in situ (Tr. 456-57). On August 23, 2013, she underwent a left breast simple mastectomy and axillary sentinel lymph node biopsy with Joseph Millican, M.D. (Tr. 560-62). The plaintiff had a postoperative bleed beneath the skin flaps, which had to be evacuated, but she was in stable condition at the end of the procedure and discharged home in stable condition on August 27, 2013 (Tr. 562-63, 567-68, 574-76).
On September 27, 2013, primary care physician Dr. Giambalvo completed a mental medical source statement indicating that the plaintiff's diagnoses were anxiety and depression for which she was prescribed Paxil and Ativan. The medications helped the plaintiff's condition "somewhat." Dr. Giambalvo further stated that she referred the plaintiff for psychiatric care in 2011, but the plaintiff did not keep the appointment. The plaintiff's mental status was oriented in all spheres with intact thought process; appropriate thought content; worried/ anxious and depressed mood/affect; adequate attention/concentration; and adequate memory. Dr. Giambalvo opined that the plaintiff had an "obvious" work-related limitation in function due to her mental condition, and she was capable of managing her funds (Tr. 724).
Oncologist Stephen Dyar, Jr., M.D., initiated weekly Taxol and Herceptin beginning on October 17, 2013 (Tr. 1151-62).
On December 5, 2013, Dale Van Slooten, M.D., a state agency medical consultant, concluded that the plaintiff could perform medium work with postural and environmental limitations (Tr. 116-18).
On December 10, 2013, Bruce Kofoed, Ph.D., conducted a psychological examination of the plaintiff. On examination, she was appropriately dressed and groomed with good hygiene. Her speech was logical but slow, and she was oriented to all spheres. She was able to name the previous president with prompting, complete serial seven subtractions (slowly), complete a simple dot counting exercise, state the months of the year in reverse (although she omitted two months and completed slowly), learn a four-word list after a brief delay, and copy geometric shapes and angles with fair attention to detail. The plaintiff presented in a very sedated quality, appeared slow in her processing speed, and had poor recall for verbal and nonverbal information. Dr. Kofoed noted her physical health issues and assessed her with depressive disorder associated with general medical conditions and underlying grief response of her father's death, and opined that the plaintiff would have difficulty in a customer service situation. Dr. Kofoed further opined that "her physical endurance is likely to be extremely poor," and "[i]t would appear that she would require some assistance to manage funds appropriately" (Tr. 1139-42).
On December 27, 2013, the plaintiff was seen at Upstate Oncology Associates, and it was noted that the plaintiff was to have her tenth cycle of Taxol and Herceptin. The plaintiff was continued on medication for diarrhea, nausea, and insomnia. She had balance issues with neuropathy and pain, and it was noted that her activities of daily living were affected in that she could perform buttoning, but it took awhile and was difficult (Tr. 1150). When she was seen on January 3, 2014, for the eleventh cycle of Taxol and Herceptin, Dr. Dyar noted that the plaintiff was "feeling more poorly, side effects are accumulating." The plaintiff was more fatigued and dehydrated, and her "biggest current issue [was] hot flashes" (Tr. 1151).
On January 7, 2014, state agency psychologist Anna Williams, Ph.D., found that the plaintiff would have difficulty sustaining concentration and pace on complex tasks and would do better at jobs that did not require regular work with the general public, but she remained capable of attending and performing tasks without special supervision; attending work regularly, although she may miss an occasional day due to her mental condition; relating appropriately to supervisors and coworkers; making work-related decisions and occupational adjustments; adhering to basic standards for hygiene and behavior; and protecting herself from work-place safety hazards (Tr. 118-20).
On January 17, 2014, the plaintiff was seen by Dr. Dyar for her first cycle of single agent Herceptin. She reported that she was doing well overall with no new symptoms from Taxol. The review of systems was positive for malaise/fatigue, and nausea, dizziness, insomnia, and chronic back pain (Tr. 1235-36). On February 28, 2014, Dr. Dyar noted that she was doing well with treatment, and she was cleared to start adjuvant therapy (Tr. 1163). On May 2, 2014, it was noted that the plaintiff was doing well overall, but was having abdominal symptoms that Dr. Dyar was "unsure are related to therapy" (Tr. 1258). Review of systems was positive for malaise/fatigue, nausea, abdominal pain (cramping), headaches, chronic back pain, nervousness/anxiety, and insomnia (Tr. 1297-98). On June 14, 2014, she was doing well overall, although she reported continued lower back pain. Review of symptoms was also positive for malaise/fatigue, headaches, nervousness/anxiety, and insomnia (Tr. 1260). In July 2014, Dr. Dyar noted that, as of May 2, 2014, the plaintiff had no residual cancer, and her cardiac function was within normal limits based upon a recent echocardiogram (Tr. 1296).
On July 8, 2014, Carl Anderson, M.D., a state agency medical consultant, concluded that the plaintiff could perform medium work with postural and environmental limitations (Tr. 138-41).
On July 4, 2014, the plaintiff was admitted to the hospital for evaluation of seizure activity. She was given a loading dose of Keppra and continued with Kepra 500 milligrams twice a day. A CT scan, MRI, and EEG were all normal (Tr. 1336, 1346-53). She continued to have frequent seizures and was taken to the ER on July 16, 2014. John R. Absher, M.D., examined the plaintiff on July 17, 2014, and noted that she had non-physiological findings. Her speech was slow and child-like, which Dr. Absher believed was psychosomatic. He stated that "conversion disorder could tie everything together" (Tr. 1349-53).
On July 25, 2014, the plaintiff was seen for followup by Upstate Oncology Associates. She was "doing very well overall." It was noted that she was continuing tamoxifen, which she was "tolerating well with mostly hot flashes which do impair her quality of life." Review of systems was positive for malaise/fatigue, nausea, vomiting, diarrhea, constipation, itching, tingling, sensory change, headaches, depression, memory loss, nervousness/anxiety, and insomnia (Tr. 1365). On October 14, 2014, at a followup appointment with Dr. Dyar, the plaintiff reported that she had no issues as it pertained to her breast cancer. Review of systems was positive for malaise/fatigue, nausea, vomiting, diarrhea, constipation, back pain, joint pain, dizziness, tingling, sensory change, speech change, seizures, headaches, and insomnia (Tr. 1384). On February 10, 2015, Dr. Dyar noted that an October 2014 PET/CT scan showed no evidence of recurrence or residual disease, and the plaintiff reported that she was doing well overall. Review of systems was positive for malaise/fatigue, cough, nausea, vomiting, abdominal pain, diarrhea, constipation, itching, tingling, sensory change, headaches, depression, memory loss, nervousness/anxiety, and insomnia (Tr. 1364-65). A repeat PET/CT scan in November 2014 was also negative for any evidence of recurrence (Tr. 1355). On June 4, 2015, the plaintiff reported to Dr. Dyar that she was doing well overall and had no new issues. Review of systems was positive for weight loss, malaise/fatigue, leg swelling, heartburn, constipation, back pain, joint pain, neck pain, urinary frequency, tingling, seizures, bruises/bleeds easily, depression, nervousness, and anxiety (Tr. 1355-56).
On September 28, 2015, the plaintiff was seen at Steadman Hawkins Clinic for symptoms consistent with rotator cuff syndrome status-post a twisting type injury. On examination, she was tender to palpation over the left trapezius and cervical paraspinals, she had positive Hawkins and Neer maneuvers, and difficulty with internal rotation of the left shoulder. Strength was normal except left shoulder abduction at 4/5. It was noted that an MRI of the left shoulder was "suspicious for degenerative changes, superior posterior glenoid labrum. Small effusion." The rotator cuff was intact, and biceps tendon showed no significant abnormality. It was noted that her cancer remained in remission (Tr. 1463-64).
At the administrative hearing on March 16, 2016, the plaintiff testified that she sustained a neck and back injury with permanent nerve damage in a 2010 work accident. She continued to work until November 2011 on light duty, but eventually became eligible for police retirement and received a workers' compensation settlement in 2013 (Tr. 55-60). The plaintiff stated that the pinched nerve in her left hip is her most severe problem preventing her from working (Tr. 72-77). The plaintiff testified that she was diagnosed with breast cancer and underwent a mastectomy of her left breast in 2013. She reported that she subsequently developed anemia due to blood loss during the surgery and seizures due to chemotherapy and radiation treatment (Tr. 83-84). The plaintiff testified that she took Trokendi for her seizure-like episodes, which helped, but she still had three to five episodes in a two-week period (Tr. 85). During the episodes, her legs and hands involuntarily jump and flinch (Tr. 84). The plaintiff further testified that she could lift her left arm to shoulder height, but not above; lift a maximum of five pounds with her left arm, but she could not lift a gallon of milk with her left hand; lift 15 pounds with her right arm; stand for no more than ten to 15 minutes unless she is leaning against a wall; and walk for ten to 15 minutes before she tires out (Tr. 89-94). She testified that although her medications are helpful, they cause side effects of sleepiness, nausea, dizziness, fatigue, and leg cramps (Tr. 66-67, 77).
In response to a hypothetical that corresponded to the residual functional capacity ("RFC") assessment in the ALJ's decision, the vocational expert testified that an individual with the plaintiff's vocational factors could perform the representative unskilled, light occupations of office helper, mail clerk, and small parts assembler (Tr. 99-102). The ALJ noted that the Dictionary of Occupational Titles ("DOT") does not address overhead reaching and asked the vocational expert whether a person who was limited to no more than occasional overhead reaching/lifting could still perform the jobs that had been identified (Tr. 102). The vocational expert responded that the hypothetical individual could perform the jobs and that this testimony was based upon her education and experience with job placement and job requirements (Tr. 102).
When asked by the ALJ if she had any questions for the vocational expert, the plaintiff stated that she could not assemble small parts by hand because she had chronic neuropathy, which caused tingling and numbness in her hands (Tr. 102-103). She further testified that she had "a problem with buttons" (Tr. 103). The ALJ asked the vocational expert whether the jobs previously identified could still be performed with a limitation to frequent fine manipulation (Tr. 103-104). The vocational expert responded that the jobs could still be performed with that additional limitation (Tr. 104). The plaintiff asked the ALJ about "the medications they require me to take," and the ALJ responded that she had limited the plaintiff to unskilled work based on her medications (Tr. 104-105).
In her brief submitted in this action, the plaintiff states that she had to leave college because of a brain tumor (pituitary adenoma). She states that she suffers from chronic migraines daily because of the brain tumor. The migraines make her dizzy, blur her vision, and cause vomiting. She states that an MRI showed that the pituitary adenoma was located on cranial nerve number five. The plaintiff states in her brief that the chemotherapy pill that she has to take for breast cancer (tamoxifen) has "awful side effects" including nausea, vomiting, constant aching bone pain, hair loss, dizziness, drowsiness, loss of appetite, blurry vision, constipation, and diarrhea. She takes a chemotherapy drug called cabergoline prescribed by her endocrinologist, Dr. Horton, for the pituitary adenoma. She states the side effects of this medication are extreme and include vomiting, nausea, fatigue, hair loss, blurred vision, and dizziness. She states that she has heart failure as a result of intravenous Herceptin and chemotherapy. She states that she has to take lisinopril and carvedilol for the rest of her life for her heart issues. She further states that intravenous chemotherapy has caused her to have stocking neuropathy that impairs her legs and feet with intense pain, tingling, and numbness. Because of this, there are many days she cannot walk either with or without her cane. She states the neuropathy is also in both hands and fingers because of her back injury and that intravenous chemotherapy made it much worse. The plaintiff states that during intravenous chemotherapy she began to have seizure activity on a regular basis even though she was prescribed Trokendi, a seizure medication, by her neurologist. She states she has seizures at least five times a week and that she is afraid of dying because her chronic asthma flares up during a seizure (doc. 39 at 2-5).
The plaintiff submitted a brief on October 31, 2018, and an amended brief on December 27, 2018 (docs. 35, 39).
The plaintiff further states she is on 33 medications for physical and mental health issues. She states that her back condition is so bad that she has to take fentanyl and Roxicodone to "take the edge off the pain." She states she has post traumatic stress disorder ("PTSD") from being assaulted when she worked at the county detention center. The plaintiff reports in her brief that she has severe depression and "over compulsive disorder" because of constant terrible pain and from being molested and raped as a child and as an adult. She reports that she attends weekly therapy sessions, and sees a psychologist who prescribes her mental health medications. She states that she is prescribed clonazepam, Wellbutrin, and Effexor. She also states that the neuropathy in her hands is documented in her records with Dr. Grier at Comprehensive Pain Management and with her oncologist Dr. Dyar. She is prescribed Neurontin and Lyrica for neuropathy (doc. 39 at 5-6).
ANALYSIS
The plaintiff argues that she did not receive a fair disability hearing because the ALJ had an extreme bias against her because of her young age. She contends that the ALJ told her that she had too many health problems for someone of her age, and she needed to stop taking her medications, go back to school, and get a job. She further claims that the ALJ stated that she did not have a brain tumor and did not have seizures. The plaintiff contends that her many impairments and the medications she must take for them make it impossible for her to perform the requirements of any job. She further contends that the vocational expert's testimony that she could perform the job of small parts assembler is not supported by the record, which shows that she has chronic neuropathy in her hands (doc. 39 at 1-6).
Fair Hearing
"Claimants in disability cases are entitled to a full and fair hearing of their claims . . . ." Sims v. Harris, 631 F.2d 26, 27 (4th Cir. 1980). The ALJ plays a "crucial role in the disability review process" and has a duty to "develop a full and fair record" and to "carefully weigh the evidence, giving individualized consideration to each claim." Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir. 1996). "ALJs are presumed to be unbiased[,] and the burden is on [the plaintiff] to rebut this presumption." Corley v. Colvin, C.A. No. 9:12-2676-TMC, 2014 WL 607706, at *3 (D.S.C. Feb. 18, 2014) (citation omitted). See Liteky v. United States, 510 U.S. 540, 555 (1994) ("[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." (citation omitted)).
As noted above, the plaintiff claims that the ALJ had an extreme bias against her because of her young age and further claims that the ALJ told her that she did not have a brain tumor or seizures and that she needed to stop taking her medications, go back to school, and get a job (doc. 39 at 1-6). The Commissioner did not address this allegation in the brief submitted in support of the ALJ's decision (see doc. 38).
In the administrative hearing, the plaintiff testified that she attended college for four years but had to quit after she was diagnosed with a pituitary adenoma. The ALJ asked the plaintiff if she had "thought about going back and completing that so you could get maybe a job where you were sitting?" The ALJ noted that the plaintiff had put in lots of time toward her college education and "it looks like you ought to be able to go back with [your children] in school most of the time to finish your degree is the thought. I mean, you think that would be something well worth looking into" (Tr. 57-58).
With regard to the plaintiff's seizures, the ALJ noted in the hearing, "Your seizure activities seem very confusing to me because there are a lot of unusual symptoms and signs and seizures. I feel like they don't know what it is. The signs and symptoms you're having are not the usual." The plaintiff then testified that Dr. Absher described the incidents as pseudoseizures and that they made her legs and hands jump and flinch. The ALJ noted that the EEGs had been normal and that they did not appear to be grand mal seizures because the plaintiff was cognizant and able to talk to her doctor after having a seizure in his office. The plaintiff stated that the seizures were "a different type," and the only name her doctor had given them was "something called pseudoseizures" (Tr. 84-86).
The plaintiff testified in the hearing that she was diagnosed in 2008 "with a pituitary adenoma, basically a brain tumor on [her] pituitary gland." The ALJ noted that the medical record showed "[i]t looked like a pituitary mass, but they indicated it was benign and they didn't choose to operate." The plaintiff stated that there was no way to tell if the tumor was benign because the doctors could not operate because "[t]he area of my brain, it was too risky." The ALJ then asked, "In the brain or the pituitary because every place I was reading in the medical it kept referencing it was a pituitary mass." The plaintiff clarified that the doctors told her that the tumor was "on the cranial nerve 5," and the medical term was "pituitary adenoma" (Tr. 80-81).
The presumption that an ALJ is unbiased can be rebutted by showing that the ALJ "displayed deep-seated and unequivocal antagonism that would render fair judgment impossible," Liteky, 510 U.S. at 556. On the record before the court, the plaintiff has not shown that "the ALJ's behavior, in the context of the whole case, was 'so extreme as to display clear inability to render fair judgment.'" Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001) (quoting Liteky, 510 U.S. at 551). The transcript does not support the plaintiff's allegations. Rather, the transcript of the hearing shows that the ALJ was gracious and accommodating to the plaintiff and simply asked questions regarding the plaintiff's impairments to investigate the facts. Because "Social Security proceedings are inquisitorial rather than adversarial," the ALJ has a "duty to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 110-11 (2000).
Based upon the foregoing, the plaintiff's claim that the ALJ was biased against her and failed to give her a fair hearing lacks merit. Accordingly, while the undersigned recommends that this matter be remanded, as discussed below, there is no legal requirement that the ALJ be excluded from considering the matter upon remand.
Side Effects of Medications
Throughout her brief submitted in this action, the plaintiff argues that the numerous medications that she is prescribed for her physical and mental impairments cause significant side effects, including nausea, vomiting, pain, hair loss, dizziness, drowsiness, lack of appetite, blurry vision, constipation, and diarrhea (doc. 39 at 1-6). The plaintiff brought this action pro se, which requires the court to liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberally construed, the plaintiff argues that the ALJ failed to properly consider her subjective complaints regarding the side effects of her medications. In response, the Commissioner argues generally that the ALJ's determination at steps one through five of the sequential evaluation process is based upon substantial evidence (doc. 38 at 5-15).
As noted above, the plaintiff states that she is on 33 medications for her mental and physical impairments (doc. 39 at 3; see Tr. 263-66, medication list).
At the administrative hearing, the plaintiff testified at length regarding side effects caused by tamoxifen, a medication the plaintiff testified she must take for ten years to prevent the return of breast cancer (Tr. 66-67; see also Tr. 92). The plaintiff testified that side effects from the medication include fatigue, nausea, dizziness, stomach pain, vomiting, and cramping in her legs (Tr. 67). The plaintiff further testified that she takes Neurontin, diclofenac, fentanyl patch 100 mg, and Percocet 10 for neuropathy, back and hip pain, and spasms (Tr. 77-78). The ALJ noted at the hearing that Percocet 10, which the plaintiff testified her doctor told her she could take up to four times a day, "would explain a lot of the sleepiness" (Tr. 78). The plaintiff further testified that her doctor prescribed Trokendi for the seizures she started having following radiation for the pituitary adenoma. The plaintiff testified, "All these medications, they just cause a bunch of side effects" (Tr. 83). When asked what "other physical problems" she had, the plaintiff testified, "The biggest thing is, I guess, a lot of these medicines, I wasn't on until a much more extensive list that what we've talked about and you got in your notes. But, I wasn't on a lot of them until - of course, I had the back injury. Then, after being diagnosed with breast cancer. . ." (Tr. 86). The plaintiff further testified that she takes Cymbalta for depression and anxiety, and she takes Effexor for depression and to help with hot flashes that are a side effect of tamoxifen (Tr. 94-95).
In the RFC assessment, the ALJ noted the plaintiff's testimony that she could not drive because of medication side effects, which included dizziness (Tr. 32). The ALJ also noted the plaintiff's testimony that during the daytime "she could not seem to keep her eyes open" and that the medication tamoxifen caused sleepiness, nausea, dizziness, and fatigue. The ALJ also noted that the plaintiff testified that the medication also caused leg cramps, stomach cramps, and vomiting, and that the medication for her pituitary adenoma caused memory loss (Tr. 33). The ALJ found that while the plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of the symptoms were not entirely consistent with the medical evidence and other evidence of record for the reasons explained in the decision (Tr. 34). The ALJ cited the following evidence that is relevant to the plaintiff's allegations regarding debilitating medication side effects: in a followup with Dr. Grier for chronic back and lower extremity pain on April 30, 2013, the plaintiff reported no side effects from medication; in an October 2014 examination by Dr. Dyar, the plaintiff "continued on [t]amoxifen with reasonable tolerance"; in a followup with Dr. Absher in March 2015, the plaintiff reported sleepiness with her migraine medication and only two hours of relief; Dr Giambalvo stated in a mental medical source statement that the plaintiff's thought content, attention, concentration, and memory were adequate; and in a consultative examination by Dr. Kofoed, to which the plaintiff gave great weight, the plaintiff's speech was extremely slow, she appeared to be very slow in her processing speed, and she had a sedated quality to her movements and speech (Tr. 32-39). The ALJ concluded:
This treatment note precedes the plaintiff's breast biopsy, mastectomy, chemotherapy, and later treatment with tamoxifen (Tr. 280; see also Tr. 35).
The light RFC and postural limitations accommodate her DDD and osteoarthritis. The unskilled work and occasional interaction with the public limitations accommodates her mental impairment of depression. The evidence does not show any evidence of a recurrence of the cancer per her treating physician. However, she continues to take the medication, which reasonably affects her ability to function. Based on the foregoing, the undersigned finds the claimant has the above residual functional capacity assessment, which is supported by the objective medical evidence of record.(Tr. 39).
A claimant's symptoms, including pain, are considered to diminish his 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). Furthermore, "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). 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 (applicable date Mar. 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include: the individual's daily activities; the location, duration, frequency, and intensity of the individual's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; treatment received; and any measures other than treatment the individual used to relieve pain or other symptoms. 20 C.F.R. § 404.1529(c).
Social Security Ruling16-3p rescinded and superseded SSR 96-7p and became applicable on March 28, 2016. 2017 WL 5180304, at *13. Because this application was adjudicated after the date SSR 16-3p became applicable, the court has analyzed the plaintiff's allegations under that ruling. Id. at *13 n.27. The court observes that SSR 16-3p discontinues use of the term "credibility," but "'the methodology required by both SSR 16-3p and SSR 96-7, are quite similar. Under either, the ALJ is required to consider [the claimant's] report of his own symptoms against the backdrop of the entire case record.'" Best v. Berryhill, C.A. No. 0:15-cv-02990-DCN, 2017 WL 835350, at *4 n.3 (Mar. 3, 2017) (alteration in original) (quoting Sullivan v. Colvin, C.A. No. 7:15-cv-504, 2017 WL 473925, at *3 (W.D. Va. Feb. 3, 2017)). See also Keaton v. Colvin, C.A. No. 3:15-cv-588, 2017 WL 875477, at *6 (E.D. Va. Mar. 3, 2017) ("Effective as of March 28, 2016, SSR 16-3p superseded SSR 96-7p. SSR 16-3p effectively removes the use of the term 'credibility' but does not alter the substantive analysis.").
Citing to testimony in the administrative hearing, the Commissioner states, "[T]he ALJ considered Plaintiff's testimony that although her medications are helpful, they cause side effects of sleepiness, nausea, dizziness, fatigue, and leg cramps" (doc. 38 at 7) (citing Tr. 66-67, 77). As discussed above, the ALJ indeed acknowledged the plaintiff's subjective complaints (see Tr. 32-33). Further, as set out above, the ALJ also cited evidence in the RFC assessment that was relevant to the alleged medication side effects, some of which is supportive of the plaintiff's claims and some that is not (see Tr. 32-39). However, the ALJ did not explain why, based on this evidence, she rejected the plaintiff's allegations regarding the many serious side effects of her medications. In the RFC assessment, "the ALJ must both identify evidence that supports his conclusion and 'build an accurate and logical bridge from [that] evidence to his conclusion.'" Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). As the ALJ here failed to do so, it is impossible for the court to determine whether the RFC assessment is based upon substantial evidence, and remand for further consideration is required.
Remaining Allegations
Because the court finds the ALJ's failure to properly consider the plaintiff's subjective complaints regarding medication side effects is a sufficient reason to remand the case to the Commissioner, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); 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). As part of the overall reconsideration of this claim upon remand, the ALJ should also consider and address the additional allegations of error raised by the plaintiff.
CONCLUSION AND RECOMMENDATION
The plaintiff requests that "the decision . . . be changed to fully favorable on [her] behalf" (doc. 40 at 2). However, as the plaintiff's entitlement to benefits is not wholly established, this matter should be remanded for further consideration and assessment by the ALJ in the first instance. See Crider v. Harris, 624 F.2d 15, 17 (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). Accordingly, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. §405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED. June 21, 2019
Greenville South Carolina
s/Kevin F. McDonald
United States Magistrate Judge
The attention of the parties is directed to the 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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
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).