Opinion
Civil Action 8:21-cv-01015-SAL-JDA
03-04-2022
Kristen Diane Sweat, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Jacquelyn D. Austin United States 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 Title 28, United States Code, Section 636(b)(1)(B).Plaintiff 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 Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded.
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 August 2017, Plaintiff filed an application for DIB alleging a disability onset date of January 28, 2017. [R. 306-07.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 91-92, 103.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on March 19, 2019, ALJ Tammy Georgian (“the ALJ”) conducted a de novo hearing by telephone on Plaintiff's claims. [R. 51-83.]
The ALJ issued a decision on May 17, 2019, finding Plaintiff not disabled under the Social Security Act (?the Act”). [R. 107-15.] Plaintiff requested Appeals Council review and the Appeals Council granted the request and remanded the decision to the ALJ to address the following issues:
* Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 !ind Social Security Ruling 85-16 and 96-8p).
* Give further consideration to whether the claimant has past relevant work and, if so, can perform it (20 CFR 404.1560(a)-(b)). If warranted, obtain vocational expert evidence to assist in evaluating whether the claimant can perform past relevant work.
* Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14), and to determine whether the claimant has acquired any skills that are transferable to other occupations under the guidelines in Social Security Ruling 82-41. The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).[R. 121-22.]
On November 3, 2020, the ALJ held a telephonic hearing with Plaintiff and her representative due to the extraordinary circumstances caused by the COVID-19 pandemic. [R. 15.] The ALJ subsequently issued a second unfavorable decision on December 1, 2020, finding Plaintiff has not been under a disability within the meaning of the Act from January 28, 2017, through the date of the decision. [R. 16.]
At Step 1, the ALJ determined that Plaintiff meets the insured status requirements of the Act through December 31, 2021, and has not engaged in substantial gainful activity since January 28, 2017, the alleged onset date. [R. 18, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: obesity and ulcerative colitis. [R. 18, Finding 3.] The ALJ also noted Plaintiff had a non-severe impairments related to a thyroid disorder and Hashimoto's disease. [Id.] At Step 3, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 18, 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 his 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 residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). Specifically, the claimant is able to lift and carry up to 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit for 6 hours in an 8-hour day. The claimant can tolerate frequent changes m the work setting, requires access to a restroom, and would take unscheduled breaks but would not need additional time off task.[R. 19, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was capable of performing past relevant work as bank teller. [R. 25, Finding 6.] Alternatively, considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert (“VE”), the ALJ also found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 25-26.] Thus, on that basis, the ALJ determined that Plaintiff had not been under a disability as defined in the Act from January 28, 2017, through the date of the decision. [R. 26, Finding 7.]
Plaintiff requested Appeals Council review of the ALJ's decision but the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on April 6, 2021. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that this Court should vacate the Commissioner's decision and remand her claim for further proceedings. [Doc. 14.] Specifically, Plaintiff argues the RFC analysis is flawed in that it failed to consider the degree to which Plaintiff's ulcerative colitis (“UC”) symptoms would interfere with her ability to maintain employment on a regular and continuing basis. [Id. at 12-15.] Plaintiff contends “[t]here is no evidence cited to support the ALJ's assertion that [Plaintiff], suffering from a relapsing and remitting disease, would be able to confine her unscheduled bathroom breaks to the allowable time limit such that she would not run afoul of the minimum standards related to absenteeism and time off task identified by the VE.” [Id. at 13.]
The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's decision. [Doc. 15.] The Commissioner argues that substantial evidence supports the RFC for light work with additional limitations to account for Plaintiff's chronic UC. [Id. at 8-11.]
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); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
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. 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). 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); Brehem v. Harris, 621 F.2d 688, 690 (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 may be appropriate to allow the Commissioner to explain the basis for the decision. See 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.
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), 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. Medical Opinions
For claims filed on or after March 27, 2017, as Plaintiff's is, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. § 404.1520c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. § 404.1520c(c)(1). As for the relationship with the claimant, ALJs consider the “length of the treatment relationship, ” the “[f]requency of examinations, ” the “[p]urpose of the treatment relationship, ” the “[e]xtent of the treatment relationship, ” and whether the source has examined the claimant. 20 C.F.R. § 404.1520c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. §§ 404.1513(a)(2).
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 Fed.Appx. 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
RFC Determination
Plaintiff argues that “[t]here is no evidence cited to support the ALJ's assertion that [Plaintiff], suffering from a relapsing and remitting disease, would be able to confine her unscheduled bathroom breaks to the allowable time limit such that she would not run afoul of the minimum standards related to absenteeism and time off task identified by the VE.” [Doc. 14 at 13.]
Applicable Law
Social Security Ruling 96-8p provides the process for determining RFC. Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015). The ruling states that the “‘assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations.” Id. (quoting SSR 96-8p, 61 Fed.Reg. 34, 474, 34, 475 (July 2, 1996)). “Only after such a function-by-function analysis may an ALJ express RFC in terms of the exertional levels of work.” Monroe v. Colvin, 826 F.3d 176, 187 (4th Cir. 2016) (internal quotation marks omitted). The Fourth Circuit has explained that were the ALJ to express the RFC before he engaged in this function-by-function analysis, it would “create[] the danger that the adjudicator [will] overlook limitations or restrictions that would narrow the ranges and types of work an individual may be able to do.” Id. (second alteration in original) (internal quotation marks omitted).
SSR 96-8p also provides that the RFC “‘assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).'” Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed.Reg. at 34, 478). Additionally, the Fourth Circuit has held that “[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling, including a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Monroe, 826 F.3d at 189 (alteration in original) (internal quotation marks omitted). To create such a record, the ALJ must “explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Rehoric v. Berryhill, No. 1:17-cv-02634-MGL-SVH, 2018 WL 7021611, at *12 (D.S.C. Dec. 28, 2018) (internal quotation marks omitted), Report and Recommendation adopted by 2019 WL 188690 (D.S.C. Jan. 14, 2019). The Fourth Circuit has described the required discussion as “build[ing] an accurate and logical bridge from the evidence to [the ALJ's] conclusion.” Monroe, 826 F.3d at 189 (internal quotation marks omitted).
Plaintiff's Testimony
Plaintiff testified that she suffered from Crohn's disease and hypothyroidism. [E.g., R. 42, 62.] At the first hearing before the ALJ, Plaintiff testified that she stopped working as a bank teller on January 28, 2017, after having a bad Crohn's disease flare and being admitted to the hospital, likely due to the stress of the job. [R. 63-64.] She testified that at the time of the hearing she was unable to work due to the unpredictability of her disease, especially the resulting fatigue and frequent urgent bathroom trips. [R. 66.] Plaintiff testified that she had been twice reprimanded at work for leaving her station to run to the bathroom. [R. 71.] She stated she kept extra clothes in her car because she often would have to go to the bathroom quite urgently and generally had about two or three accidents per month. [R. 72.] She also noted that she had migraines, joint pain, and fatigue as the result of her Crohn's disease, and that, in conjunction with Hashimoto's disease, which she had been diagnosed with after the birth of her daughter, the conditions left her little energy with which to function. [R. 66-67.]
Crohn's disease and ulcerative colitis are both disorders that involve inflammation of the digestive tract. Inflammatory bowel disease, Mayo Clinic, https://www.mayoclinic.org/ diseases-conditions/inflammatory-bowel-disease/ symptoms-causes/syc-20353315 (last visited Mar. 4, 2022). Ulcerative colitis “involves inflammation and sores (ulcers) along the superficial lining of [the] large intestine (colon) and rectum” and Crohn's disease “is characterized by inflammation of the lining of [the] digestive tract, which often can involve the deeper layers of the digestive tract.” Id. Both conditions “are characterized by diarrhea, rectal bleeding, abdominal pain, fatigue and weight loss.” Id.
Hashimoto's disease is an autoimmune disorder affecting the thyroid gland. Hashimoto's Disease, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/ hashimotos-disease/symptoms-causes/syc-20351855 (last visited Mar. 3, 2022).
During a typical day, Plaintiff cared for her one-year-old daughter in her home until about 1:30 p.m. when her mom finished work and came to help cook dinner and take care of the child. [R. 62.] Plaintiff indicated she was fine feeding and changing her child but had no energy to carry her around or interact with her a lot. [Id.] If they went downstairs, Plaintiff would generally sit on the couch while the child played. [Id.] Plaintiff testified that she had low energy due to the hypothyroidism. [Id.]
Plaintiff testified that she liked to read, watched television a good bit, and played video games with her husband but that she had no outside activities, did not go to church, did not get together with friends, and went out to dinner only on special occasions. [R. 70-71.] Plaintiff testified that she was going to the bathroom 12 to 13 times a day and that usually she had no warning before she needed to go. [R. 72.] Plaintiff did not go anywhere on her own, and, although she had a license, she did not drive due to fatigue and the fact that her medication gave her headaches and made her nauseous. [R. 63, 73.] At night and early mornings, she also suffered from severe abdominal pain. [R. 73.] Plaintiff testified to being tired during the day from having gotten up during the night to use the bathroom. [R. 73-74.] She testified to having good and bad weeks. [R. 74.]
At the second hearing before the ALJ, Plaintiff testified that she was still taking care of her daughter, who was almost three, that her mom still helped in the afternoons, and that her husband came home during his lunch break to help. [R. 40.] Plaintiff testified she was receiving Stelara injections monthly, which caused headaches, body aches, sweats, and resultant weakness, with these flu-like symptoms lasting two or three days. [R. 41.] Plaintiff testified that, after her shots, her husband usually took one or two days off work if he was not already off. [R. 42.] Her mom also came over to help since her headaches were similar to migraines in that any kind of noise or anything would bother her. [Id.] Plaintiff testified that, even with the treatment she was receiving, she continued to have the Crohn's disease symptoms such as going to the bathroom persistently without warning. [R. 41.]
Plaintiff testified she was referred to pain management in April 2020 to help her deal with localized pain and stomach issues from her Crohn's disease. [R. 42.] She was prescribed Norco but she took it only as needed and usually not in the mornings because she needed to be alert and the medication made her sleepy. [Id.] Plaintiff testified she had a yearly flare in July and August but that she was still experiencing severe symptoms and that doctors were hoping the Stelara would eventually begin to address her symptoms. [R. 43.] Until then, doctors had started her on a short course of steroids, but it had not helped yet either. [Id.] During her better months, Plaintiff indicated she still had to go to the restroom about 15 times per day, had urgency, and experienced weakness as part of her Crohn's. [Id.]
Plaintiff also testified that some of her medication caused bad nausea and that the medication she took for that nausea made her sleepy, as did the Norco. [R. 44.] Plaintiff testified she was doing worse since her first hearing in that her medicine was not working as well, which appeared to be seasonal with her flares typically starting in July and putting her in the hospital. [R. 45.] She testified that nothing seemed to be controlling her Crohn's symptoms, although her medications were keeping her thyroid issues under control. [Id.]
ALJ's Decision
Regarding Plaintiff's testimony, the ALJ stated:
At [Plaintiff's] first hearing, on March 19, 2019, she reported living with her husband, who works full-time, and their then one-year-old daughter. [Plaintiff] first said that she and her baby stay in bed until 1:00 p.m. each day, when her mother arrives, due to her hypothyroidism and low energy. She stated that she lacks the energy to carry her baby around, to climb stairs (due also to pain), or to put herself together. However, when asked about her activities of daily living, she admitted that she gets up and makes breakfast, downstairs, for her daughter. [Plaintiff] has a valid driver's license, but she said that she currently does not drive due to nausea and headaches secondary to medication. As of her first hearing, [Plaintiff] weighed 287 pounds at 69 inches tall. She is a high school graduate and worked until the second quarter of 2018 as a bank teller. I give little weight to [Plaintiff's] testimony due to her contradictory statements and because her statement that she is unable to walk down the stairs due to pain is not supported by her reports to her treatment providers or by objective clinical findings. I note also that [Plaintiff] has no one to assist her in caring for her baby for at least half of each day and that childcare, by its very nature, requires a certain degree
of lifting, carrying, standing, walking, pushing, pulling, bending, and stooping. Such activity is inconsistent with the functional limitations alleged by [Plaintiff].
At [Plaintiff's] second hearing, she reported caring for her daughter, now three years old, in the mornings by herself and stated that her mother comes to help and that her husband comes home on his lunch breaks. Since her prior hearing, [Plaintiff] testified that she is still receiving injections with accompanying side effects. She alleged that her body is not absorbing medication as it should. She described flu-like symptoms after getting her shots, lasting for a few days. [Plaintiff] indicated that she is now seeing a pain management practice for localized abdominal, lower back, and below-the-hip pain, and is taking Norco as prescribe[d]. She stated that her most recent colitis flare was in July/August of 2020 and that her symptoms are help[ed] with a short course of steroids. [Plaintiff] testified that she goes to the bathroom approximately 15 times per day. She stated that Norco causes sleepiness. Medication controls her thyroid symptoms.
After careful consideration of the evidence, I find that [Plaintiff's] medically determinable impairments could reasonably be expected to cause some of her alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of those symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.[R. 20.]
The ALJ noted that Plaintiff “has a history of assessment with and treatment for Crohn's disease and/or ulcerative colitis in 2003 with occasional flares.” [R. 20.] The ALJ described Plaintiff's medical record, which reflects Plaintiff's struggles with symptoms such as fecal incontinence and urgency, rectal bleeding, nausea, and abdominal pain, for which Plaintiff has taken an array of different medications. [R. 20-24.] The ALJ noted that in July 2019, Plaintiff reported having 15-20 bowel movements per day, and indeed that a colonoscopy performed on July 12, 2019, showed moderately active ulcerative colitis. [R. 22.] The ALJ noted that Plaintiff began on Stelara by injection on November 5, 2019, with differing results, and that during medical visits in May and June of 2020, Plaintiff reported being in the middle of a flare and that she was taking four Norco pills per week for pain. [R. 23-24.]
Regarding Plaintiff's symptoms, the ALJ reasoned as follows:
I note that [Plaintiff] was assessed with ulcerative colitis in 2003. She has undergone varying treatment and medication regimens with mixed results. The medical evidence of record does not support a finding that [Plaintiff's] symptoms have significantly increased in severity over time. [Plaintiff's] earnings records reflect that she has been able to perform work at substantial gainful activity levels despite her colitis symptoms (Exhibit 12D). This suggests that she has greater functional abilities than alleged.
. . . .
I note that [Plaintiff's] inflammatory bowel disease ulcerative colitis is a flaring remitting disease and that [Plaintiff] has reported periods of minimal symptoms as well as flares but also carried a healthy baby to term without complications and is able to care for her now toddler despite undergoing treatment as needed for occasional flares. In sum, in light of [Plaintiff's] history of obesity and ulcerative colitis, I find that [Plaintiff] retains the [RFC] to perform a reduced range of light work as set forth above. However, due to the aforementioned inconsistencies, particularly the relatively benign physical examinations, [Plaintiff's] treatment noncompliance, the inconsistency of [Plaintiff's] testimony, and the extent of [Plaintiff's] daily activities, including caring for a three-year-old, I cannot find [Plaintiff's] allegation that she is incapable of all work activity to be consistent with the medical evidence of record as a whole.[R. 24.]
Finally, the ALJ considered the medical opinions offered in Plaintiff's case. The ALJ noted that DDS physicians found Plaintiff “could perform a full range of light work.” [Id.] However, the ALJ indicated that she limited Plaintiff further “to account for flares such that [Plaintiff] would require unscheduled bathroom breaks and have limited her to lower-stress jobs to help alleviate her flares.” [Id.]
Discussion
The Court concludes that the ALJ's analysis leaves too many unanswered questions for the Court to conduct substantial evidence review. Most critically, noticeably absent from the ALJ's RFC discussion is any function-by-function analysis of Plaintiff's abilities. [See R. 20-24.]
The most detailed description of the Plaintiff's limitations as determined by the ALJ is found in the heading where the ALJ sets forth Plaintiff's RFC, in which the ALJ restricted Plaintiff to light work with additional specific restrictions. [R. 19.] However, nowhere does the ALJ explain how she reached her conclusions regarding Plaintiff's limitations except to state that she included additional limitations to account for flares. [R. 24.] The ALJ never discusses Plaintiff's ability to work an eight-hour day, five days a week, while dealing with fatigue or chronic fatigue [see e.g., R. 66-67, 999, 1009, 1266]; side effects of her Stelara injections [see e.g., R. 41, 1223, 1266]; or the unpredictability of her disease requiring her to go to the bathroom so suddenly and frequently [R. 66, 1266].
Regarding the bathroom breaks in particular, the Court notes that “[d]istrict courts in the Fourth Circuit have routinely held that when an ALJ finds that a claimant has an impairment that requires h[er] to have access to a bathroom, the ALJ should make specific findings concerning the frequency and duration of the claimant's bathroom usage.” Ackerman v. Saul, No. 5:20-cv-187-FL, 2021 WL 4317282, at *4 (E.D. N.C. Aug. 24, 2021) (alteration and internal quotation marks omitted), Report and Recommendation adopted by 2021 WL 4314435 (E.D. N.C. Sept. 22, 2021). The reason for this requirement is that “[a]bsent specific findings concerning the frequency and duration of a claimant's bathroom usage, a court cannot determine whether the ALJ's findings are supported by substantial evidence, and remand is appropriate.” Minchew v. Berryhill, No. 5:18-CV-56-KS, 2019 WL 772042, at *3 (E.D. N.C. Feb. 21, 2019).
In Ackerman Judge Meyers noted:
In a recent decision, the Fourth Circuit appears to have adopted this view. Dowling [v. Comm'r Soc. Sec. Admin.], 986 F.3d [377 (4th Cir. 2021)]. In Dowling, the Fourth Circuit stated that, “[o]bviously, the need to visit the bathroom many times throughout the day impacts one's ability to work. And yet, the ALJ did not analyze [the claimant's] need for regular bathroom breaks.” Id. at 389. In doing so, the court ordered that the case be remanded to the ALJ, and “[o]n remand, the ALJ should evaluate the frequency at which [the claimant] needed to use the bathroom and analyze how that restriction impacted her ability to work.” Id. While the court in Dowling may not have created an explicit requirement, the court does implicitly require that an ALJ make specific findings about the frequency and duration of a claimant's bathroom usage in cases where a claimant requires bathroom access. Notably, the court does not undermine the persuasive authority of other district courts in the circuit, which demonstrate that such specific findings should be made.Ackerman, 2021 WL 4317282, at *4 (some alterations in original).
Here, the vocational expert testified that unscheduled breaks over 15 minutes in the morning or afternoon and 30 minutes for lunch would make an individual unemployable. [R. 49.] Although the ALJ found that Plaintiff would require access to a restroom and unscheduled breaks, she made no findings regarding the frequency with which Plaintiff would need to use the restroom during the day and how much time that would take away from her ability to stay on task in a work environment. Nor did the ALJ appear to account for the time Plaintiff would lose when she had accidents and had to clean herself and change clothes. To the extent that the ALJ suggests that Plaintiff's taking care of her child in her own home for half of a day largely from her bed or couch-with no apparent limits on when or how often she could use her bathroom or the amount of time she could spend in the bathroom when she went-demonstrates that she could hold down a full-time job with breaks limited to 15 minutes in the morning, 30 minutes for lunch, and 15 minutes in the afternoon, the ALJ does not explain her reasoning. See Monroe, 826 F.3d at 189 (explaining that it is the duty of the ALJ to “build an accurate and logical bridge from the evidence to his conclusion” (internal quotation marks omitted)). Nor does the ALJ address the fact that Plaintiff had to leave her last full-time job in January 2017, when she had a bad flare that ultimately put her into the hospital. [R. 63-64.] The Court concludes that the ALJ erred by determining Plaintiff's RFC without addressing these issues.
The Court also notes that the ALJ seemed to suggest that Plaintiff's testimony was not credible because she initially testified that she and her baby stay in bed until 1:00 each day, but that she later admitted that sometimes they go downstairs. [R. 20.] Although it is not clear why it is important how much time Plaintiff spent downstairs on the couch as opposed to upstairs in her bed, the ALJ on remand should explain her reasoning to the extent that she believes Plaintiff's testimony on this point is inconsistent. Plaintiff testified that she and her child “usually stay in bed” and that she could “change her and stuff easily” and feed her, “but carrying her around or interacting with her a lot, [she did not] have the energy to do.” [R. 62.] When questioned further regarding whether Plaintiff stays in bed with her child until 1:00 in the afternoon, Plaintiff responded:
Most of the time. Usually we try to go downstairs[. T]hat way she's not in the same environment [be]cause she does get fussy if . . . she's bored. So, we try to go downstairs. Usually I'll sit down on the couch and . . . she has like a little playhouse that she plays in, and that usually keeps her pretty entertained until my mom gets off work.[Id.] When asked why she stayed in bed most of the time until 1:00, she answered, “Because the hyperthyroidism makes it low energy. We're upstairs most of the time and going up and down stairs is a strain on my joints. I don't really have the energy to put myself together to go downstairs or carry her downstairs with her being so heavy.” [Id.]
The error is particularly glaring given that the Appeals Council remanded this matter to the ALJ to “[g]ive further consideration to [Plaintiff's] maximum [RFC] and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations.” [R. 121.]
The Fourth Circuit has “not adopted a rule of per se reversal for errors in expressing the RFC before analyzing the claimant's limitation function by function.” Monroe, 826 F.3d at 188. However, the Fourth Circuit has held that “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Mascio, 780 F.3d at 736 (alterations in original and internal quotation marks omitted). That is exactly the case here. At no point does the decision purport to specifically resolve the extent to which Plaintiff's claimed symptoms and limitations affect her ability to work. To the contrary, the ALJ appears to ignore Plaintiff's well documented symptoms based only on the fact that she is able to watch her child in her own home over a period of several hours per day.
The lack of a function-by-function assessment, combined with the ALJ's failure to adequately explain her reasoning, prevents this Court from assessing whether the ALJ's RFC determination is supported by substantial evidence. For that reason, the Court recommends that the ALJ's decision be reversed and the case remanded for additional consideration by the Commissioner. See Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling. . .. If the reviewing court has no way of evaluating the basis for the ALJ's decision, then the proper course . . . is to remand to the agency for additional investigation or explanation.” (internal quotation marks omitted)). On remand, the ALJ should address Plaintiff's capacity to complete a normal workday or workweek in light of all of her symptoms. See Mascio, 780 F.3d at 636; SSR 96-8p.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.