MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Marvin W. Ambler ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's decision terminating his period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the parties' filings, the undersigned recommends that Plaintiff's motion [DE #20] be granted, Defendant's motion [DE #23] be denied, and case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. §405(g) for further proceedings.
STATEMENT OF THE CASE
On May 20, 2004, Plaintiff's applications for a period of disability and DIB were granted and Plaintiff was found disabled as of June 17, 2003. (R. 19, 73, 76.) On June 20, 2013, the Social Security Administration notified Plaintiff it had conducted a continuing disability review and determined that Plaintiff had medically improved and, as of June 1, 2013, was no longer disabled within the meaning of the Social Security Act. (R. 104-06.) That determination was upheld on reconsideration (R. 121-33), and Plaintiff requested a hearing (R. 135, 136-38).
A hearing was held before Administrative Law Judge ("ALJ") Amy Benton on November 8, 2016, at which Plaintiff appeared without counsel. (R. 58-72.) ALJ Benton obtained new evidence, and Plaintiff requested a supplemental hearing. (R. 483-85.) On April 5, 2018, Plaintiff appeared without counsel before ALJ Jerry Faust for a supplemental hearing. (R. 41-57.) ALJ Faust issued an unfavorable ruling on May 29, 2018. (R. 19-31.) The Appeals Council denied Plaintiff's request for review on September 14, 2018 (R. 1-6), making the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. § 404.981. Plaintiff, proceeding pro se, seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g).
I. Standard of Review
The scope of judicial review of a final agency decision regarding disability benefits 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). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (internal quotation marks and citation omitted) (alteration in original). "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, 76 F.3d at 589) (internal quotation marks omitted) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In an initial disability determination, the Commissioner utilizes a sequential five-step evaluation process. See 20 C.F.R. § 404.1520; see also Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 74 n.2 (4th Cir. 1999). Where benefits are granted, the Commissioner periodically reviews the claimant's impairments to determine whether there has been medical improvement such that the claimant is no longer disabled. 20 C.F.R. §§ 404.1589, 404.1594. A claimant's benefits may be terminated where the Commissioner produces substantial evidence that "(A) there has been medical improvement in the individual's impairment or combination of impairments (other than medical improvement which is not related to the individual's ability to work), and (B) the individual is now able to engage in substantial gainful activity." 42 U.S.C. § 423(f)(1).
For purposes of this review, "medical improvement" is defined as any decrease in the medical severity of the impairment present at the time of the most recent favorable disability decision. Thus, a comparison is made between the individual's current condition and his condition at the time of the most recent favorable disability decision, which decision is referred to as the comparison point decision. Smith v. Astrue, No. 7:09-CV-41-D, 2010 WL 2691583, at *1 (E.D.N.C. July 6, 2010), mem. & recommendation adopted, No. 7:09-CV-41-D, 2010 WL 3028935 (E.D.N.C. Aug. 2, 2010).
The Commissioner uses an eight-step process to assess whether a claimant continues to be disabled for DIB claims. 20 CFR § 404.1594(f). The Commissioner asks, sequentially, whether
(1) the claimant is engaged in substantial gainful activity;
(2) the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1 [("Listings")];
(3) there has been medical improvement as shown by a decrease in medical severity of the impairments present at the time of the comparison point decision;
(4) any medical improvement is related to the claimant's ability to work;
(5) there is an exception to medical improvement;
(6) the claimant's current combination of impairments is severe;20 C.F.R. § 404.1594(f).
(7) the claimant can perform past relevant work; and
(8) the claimant, based on her age, work experience, and residual functional capacity ("RFC"), can adjust to other work that exists in significant numbers in the national economy.
III. ALJ's Findings
Applying the eight-step, sequential evaluation process, the ALJ found that Plaintiff's disability ended on June 1, 2013, and that Plaintiff had not become disabled again since that date. The ALJ found that at the time of the comparison point decision issued on May 20, 2004 ("CPD"), Plaintiff had a disorder of the back that met the requirements of Listing 1.04 (disorders of the spine). (R. 21.)
At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment as of June 1, 2013, the date Plaintiff's benefits were terminated, through the date of the ALJ's decision on May 29, 2018. (R. 21.) Next, the ALJ determined Plaintiff's current impairments are as follows: "disorder of the back, status post right Achilles repair, obesity, diabetes, hypertension, major depressive disorder, and generalized anxiety disorder." (Id.) The ALJ concluded that Plaintiff did not have an impairment or combination of impairments which meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1. (Id.) The ALJ analyzed Listings 1.04 (disorders of the spine), 4.00 (cardiovascular system), and 12.06 (anxiety and obsessive-compulsive disorders). (R. 21-22.) Obesity and hypertension are not listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1; however, the ALJ determined that Plaintiff's obesity and hypertension did not meet or medically equal criteria for any listed impairment. (Id.)
At step three, the ALJ found medical improvement occurred as of June 1, 2013, due to a decrease in the medical severity of Plaintiff's disorder of the back present at the time of the CPD. (R. 23.) At step four, the ALJ concluded that the medical improvement is related to Plaintiff's ability to work because, as of June 1, 2013, Plaintiff's back impairment no longer met or medically equaled Listing 1.04. (Id.) Because of this conclusion, the ALJ proceeded to step six, finding that Plaintiff has continued to have a severe impairment or combination of impairments since June 1, 2013. (R. 24.) At step seven, the ALJ assessed Plaintiff's RFC, and found that Plaintiff had the ability
to perform light work as defined in 20 C.F.R. 404.1567(b) except the claimant can occasionally climb ramps and stairs, never ladders, ropes or scaffolds; can occasionally balance, stoop, kneel, crouch and craw; can have no more than occasional exposure to vibration and hazards; can perform simple, routine, repetitive tasks in relatively static environment with infrequent changes.(R. 24.) In making the RFC assessment, the ALJ found Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms "not entirely consistent with the medical evidence and other evidence in the record." (R. 25.) Next, the ALJ concluded that since June 1, 2013, Plaintiff has been unable to perform past relevant work as a merchandiser distributer. (R. 29.) However, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that other jobs exist in significant numbers in the national economy that Plaintiff could perform, namely: marker, sorter, and assembler of small parts. (R. 30-31.) The ALJ then concluded that Plaintiff's disability ended as of June 1, 2013. (R. 31.)
IV. Plaintiff's Contentions
Plaintiff challenges the Commissioner's final decision terminating his benefits on several grounds. Plaintiff argues he has not undergone medical improvement because the same injuries and ailments that led to his favorable decision in 2004 are still active and have gotten worse. (Pl.'s Mot. Requesting Social Security Decision be Overturned [DE #20] at 1-2.) Plaintiff also asserts that the ALJ incorrectly discounted the opinion of his primary care doctor and that the RFC does not account for his work-related limitations. (Id. at 1.) The Commissioner contends that substantial evidence supports the ALJ's conclusion that medical improvement occurred because Plaintiff no longer met or equaled Listing 1.04, the ALJ properly considered and weighed the physician opinion evidence, and the ALJ's physical and mental RFC determinations were proper. (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #23] at 7-18.)
At step three of the sequential process, the ALJ was required to determine whether there had been a medical improvement as shown by a decrease in the medical severity of Plaintiff's impairment (disorder of the spine) between the date of the CPD (May 20, 2004) and the date Plaintiff's benefits were terminated (June 1, 2013). "[A] determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs, and/or laboratory findings associated with [the individual's] impairment(s)." 20 C.F.R. § 404.1594(b)(1).
In analyzing whether medical improvement has occurred, an ALJ must evaluate not only the current medical evidence, but also the medical evidence upon which the claimant's disability was premised. Veino v. Barnhart, 312 F.3d 578, 587 (2d Cir. 2002) (concluding that administrative record lacks a foundation for finding medical improvement where ALJ failed to consider medical records upon which the prior disability determination was made); Byron v. Heckler, 742 F.2d 1232, 1236 (10th Cir. 1984) ("In order for evidence of improvement to be present, there must also be an evaluation of the medical evidence for the original finding of disability."); Vaughn v. Heckler, 727 F.2d 1040, 1043 (11th Cir. 1984) (concluding the ALJ erred by focusing only on current evidence; "[w]ithout . . . a comparison [of the medical records], no adequate finding of improvement could be rendered").
The ALJ concluded Plaintiff' was no longer disabled based solely on a review of Plaintiff's records dated after the CPD. The ALJ found that as of June 1, 2013, Plaintiff no longer met or medically equaled Listing 1.04. (R. 21, 23.) Regarding Plaintiff's disorder of the back, the ALJ stated
the record shows that the condition was stable and improved with prescribed treatment . . . . The record generally shows that the claimant presented for routine medical visits without any significant complications related to his condition. Furthermore, the objective medical evidence, including imaging and physical examinations, failed to show significant abnormalities. Moreover, he was effectively treated with conservative measures, including medications, injections and physical therapy.(R. 23.) The ALJ discussed Plaintiff's medical records from 2013 to 2018, finding that the evidence "fails to show significant abnormalities" and that Plaintiff's physical examinations showed "similar and stable findings." (R. 25-29.)
The ALJ's decision and list of exhibits fail to contain any records upon which Plaintiff's favorable disability determination was based. And the record before the court is devoid of any medical evidence pre-dating the 2004 comparison point decision. While the record reflects a disability hearing officer's summary of evidence from the CPD, that summary is not evidence and may not form the basis for the ALJ's finding of medical improvement. See Veino, 312 F.3d at 587 (disability hearing officer's summary of claimant's disorder at time of prior disability determination is not evidence).
The administrative record lists hospital records from Fayetteville VA Medical Center from September 7, 1999, to February 7, 2013; however, a review of these hospital records reflects medical evidence dating back only to 2011. (R. 530-98.) --------
The ALJ acknowledged that Plaintiff previously met Listing 1.04 but found that "the record no longer supports that the claimant's condition meets or equals the listing . . . as of June 1, 2013." (R. 21, 24.) The ALJ failed to discuss the 2004 CPD or any of the medical records leading up to the CPD. Thus, the ALJ could not have found a decrease in the medical severity of Plaintiff's impairments "based on changes (improvements) in the symptoms, signs and/or laboratory findings associated with his impairment(s)." See 20 C.F.R. § 404.1594(b)(1).
"Absent these previous medical records, the administrative record lacks a foundation for a reasoned assessment of whether there is substantial evidence to support the Commissioner's finding that a present condition represents an improvement." Hathaway v. Berryhill, 687 F. App'x 81, 83 (2d Cir. 2017) (internal quotation marks omitted); see also Daniel C. v. Berryhill, No. 5:17-CV-74, 2018 WL 7051034, at *8-9 (W.D. Va. Dec. 28, 2018), rep. & recommendation adopted, 2019 WL 237400 (W.D. Va. Jan. 16, 2019) (medical improvement cannot be found in the absence of pre-CPD medical records). An ALJ must present "findings and determinations sufficiently articulated to permit meaningful judicial review." Testamark v. Berryhill, 736 F. App'x 395, 398 (4th Cir. 2018) (quoting DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983)). Without a comparison of the medical records in existence at the time of the CPD and Plaintiff's current medical records, the court is unable to determine whether substantial evidence supports the ALJ's finding that medical improvement occurred.
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion Requesting the Social Security Decision be Overturned [DE #20] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #23] be DENIED, and the Commissioner's decision be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings.
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 February 10, 2020, 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.
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, 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, a party's failure to file written objections by the foregoing deadline may 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).
This 24th day of January 2020.
KIMBERLY A. SWANK
United States Magistrate Judge