Holloway
v.
Berryhill

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA EASTERN DIVISIONAug 6, 2018
4:17-CV-94-FL (E.D.N.C. Aug. 6, 2018)

4:17-CV-94-FL

08-06-2018

APRIL U. HOLLOWAY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


MEMORANDUM AND RECOMMENDATION

In this action, plaintiff April U. Holloway ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 13, 15. Both filed memoranda in support of their respective motions. D.E. 14, 16. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 22 Jan. 2018 Text Ord. For the reasons set forth below, it will be recommended that plaintiff's motion be allowed, the Commissioner's motion be denied, and this case be remanded.

The statutes and regulations applicable to disability determinations for DIB and SSI are in most respects the same. The provisions relating to DIB are found in 42 U.S.C. subch. II, §§ 401, et seq. and 20 C.F.R. pt. 404, and those relating to SSI in 42 U.S.C. subch. XVI, §§ 1381, et seq. and 20 C.F.R. pt. 416.

I. BACKGROUND

A. Case History

Plaintiff filed applications for DIB and SSI on 16 May 2014, alleging a disability onset date of 26 March 2014. Transcript of Proceedings ("Tr.") 18. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 18. On 22 December 2016, a video hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 36-72. The ALJ issued a decision denying plaintiff's claims on 1 February 2017. Tr. 18-29. Plaintiff requested review by the Appeals Council and on 13 June 2017, it denied the request. Tr. 1.

At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 12 July 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 4); Compl. (D.E. 5).

B. Standards for Disability

The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity ["SGA"] 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." 42 U.S.C. § 423(d)(1)(A); see id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. §§ 423(d)(3), 1382c(a)(3)(D).

The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:

To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step.
If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2);

416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.

Mascio v
. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).

See also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)(2), 404.929.

C. ALJ's Findings

Plaintiff was 46 years old on the alleged onset date of disability and 48 years old on the date of the hearing. Tr. 28 ¶ 7. The ALJ found that plaintiff has at least a high school education and had past relevant work as a grader manager, program director, and receptionist. Tr. 28 ¶¶ 6, 8. Plaintiff testified that she has a bachelor's degree in psychology. Tr. 44.

Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the date of alleged onset of disability, 26 March 2014. Tr. 20 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: residuals from brain aneurysms, hypertension, major depressive disorder, mood disorder, and substance addiction disorder. Tr. 20 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 20-22 ¶ 4.

The ALJ next determined that plaintiff had the RFC to perform a limited range of light work:

After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant could never climb ladders, ropes, or scaffolds

and could frequently climb ramps and stairs. She could frequently balance. The claimant could have no exposure to unprotected heights or moving mechanical parts. She could only work in a moderate noise environment. In addition, the claimant would be limited to performing simple, routine, repetitive tasks, not at a production rate or pace. The claimant would be limited to only making simple work related decisions with only occasional interaction with supervisors, coworkers, and the general public.

Tr. 22 ¶ 5.

These regulations define "light work" as work that "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. §§ 404.1567(b), 416.967(b); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "L-Light Work," 1991 WL 688702. "Light work" and the other terms for exertional level as used in the Regulations have the same meaning as in the DOT. See 20 C.F.R. §§ 404.1567, 416.967.

Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform her past relevant work. Tr. 27 ¶ 6. At step five, citing the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that she could perform, including jobs in the occupations of retail marker, router, and laundry classifier. Tr. 28-29 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 26 May 2014, through the date of the decision, 1 February 2017. Tr. 29 ¶ 11.

II. STANDARD OF REVIEW

Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.

The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.

Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).

III. OVERVIEW OF PLAINTIFF'S CONTENTIONS

Plaintiff contends that the ALJ's decision should be reversed and this case remanded for a new hearing on the grounds that the ALJ erred in evaluating certain medical evidence, plaintiff's statements regarding her impairments and associated limitations, her obesity, and her RFC. Because the court finds the ALJ's evaluation of plaintiff's statements and her RFC to be dispositive of this appeal, its analysis will focus on these issues.

IV. APPLICABLE LEGAL PRINCIPLES

A. Assessment of a Claimant's Symptoms

An assessment of the individual's symptoms is a component of the ALJ's determination of the RFC. Under the Regulations, symptoms

are your own description of your physical or mental impairment. Your statements alone are not enough to establish that there is a physical or mental impairment.

20 C.F.R. §§ 404.1528(a), 416.928(a).

The ALJ must employ a two-step process for evaluating a claimant's symptoms:

First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities for an adult . . . .

Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *2 (16 Mar. 2016); Craig, 76 F. 3d at 594-95; 20 C.F.R. §§ 404.1529(b), (c)(1), 416.929(b), (c)(1).

Social Security Ruling 16-3p rescinded Social Security Ruling 96-7p, 96 WL 374186 (2 July 1996). Among other revisions, Social Security Ruling 16-3p eliminated use of the term "credibility" in reference to symptom evaluation. Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *1. As issued, Social Security Ruling 16-3p stated that it was effective 16 March 2016, 2016 WL 1119029, at *1, 12, but the effective date was corrected to 28 March 2016 by a subsequent notice, 2016 WL 1237954, at *1 (24 Mar. 2016). On 25 October 2017, the Social Security Administration republished Social Security Ruling 16-3p clarifying that Social Security Administration adjudicators could apply Social Security Ruling 16-3p to decisions they made on or after 28 March 2016 and that it expected a federal court reviewing a Social Security Administration decision to apply the rules in effect at the time the decision under review was made. Soc. Sec. Ruling 16-3p, 2017 WL 510304, at *1, 13 n.27 (25 Oct. 2017). Because the ALJ's decision here was issued on 1 February 2017, after 28 March 2016, Social Security Ruling 16-3p applies to it.

In evaluating a claimant's symptoms at step two, the ALJ must consider "the entire case record." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4; 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence . . . ."); Craig, 76 F. 3d at 595. The evidence and factors that are considered, when relevant, include: the claimant's history; medical signs and laboratory findings; statements from the claimant, the claimant's treating and nontreating sources, and other persons about how the claimant's symptoms affect the claimant, including medical opinions; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of his pain or other symptoms; any measures the claimant uses or has used to relieve his pain or other symptoms; and other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. 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." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *9.

B. RFC

As noted, a claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) More specifically, "[o]rdinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a week, or an equivalent work schedule." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). The assessment of a claimant's RFC must be based on all the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). An ALJ's decision must state the claimant's RFC determination and provide the supporting rationale for it. See Mascio, 780 F.3d at 636; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7 (RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence").

In determining a claimant's RFC, Social Security Ruling 96-8p requires the ALJ to perform a function-by-function analysis. The ruling states that the "RFC assessment must . . . assess [the individual's] work-related abilities on a function-by-function basis." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *1. However, the Fourth Circuit has declined to adopt a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis. Mascio, 780 F.3d at 636. Rather, "'remand 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.'" Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).

V. ANALYSIS

A. ALJ's Failure to Account for Plaintiff's Found Substance Addiction Disorder

As noted, at step two of the sequential analysis the ALJ found plaintiff to have the severe impairment of substance addiction disorder. Tr. 2 ¶ 3. By finding it severe, the ALJ determined this impairment to have more than a minimal impact on plaintiff's ability to perform basic work activities. See, e.g., 20 C.F.R. §§ 404.1520(c), 414.920(c); Soc. Sec. Ruling 85-25, 1985 WL 56856, at *3 (1985). Nevertheless, the ALJ does not account for it in plaintiff's RFC determination. This deficiency alone requires remand. See Hough v. Berryhill, No. 3:17-CV-336-FDW, 2018 WL 3127463, at *4 (W.D.N.C. 26 June 2018) (holding that while a finding of a severe impairment alone may not necessarily require an RFC to imposes particular limitations, "the ALJ must at least provide a sufficient explanation in the decision to allow the Court to determine why no limitations . . . were included in the RFC despite the ALJ's finding").

It extends, though, beyond simply the RFC determination because the ALJ does not mention substance addiction disorder at all after step two. He was required to consider this severe impairment, along with all other severe and nonsevere impairments at each subsequent steps, and make clear his determinations regarding them. See Hammond v. Astrue, No. TMD 11-2922, 2013 WL 822749, at *3 (D. Md. 5 Mar. 2013) ("[A]n error at step two may require reversal and remand where the ALJ improperly discounts or ignores evidence of the allegedly severe impairment at the other steps of the sequential analysis. For this reason, this Court has stated that '[e]rroneous findings at step two usually infect the entire decision, since all of a claimant's impairments must be considered in combination at steps three, four and five.'" (quoting Schoofield v. Barnhart, 220 F. Supp. 2d 512, 518 (D. Md. 2002))). His failure to address after step two the severe impairment of substance addiction disorder he found plaintiff to have therefore taints his determination at all subsequent steps of the sequential analysis. The court is left to speculate as to whether the ALJ considered this found impairment at subsequent steps and, if he did so, what determination he made regarding it. The ALJ's failure to address plaintiff's substance addiction disorder beyond his severity determination reinforces the need for remand.

B. ALJ's Failure to Properly Assess Plaintiff's Sister's Third-Party Function Report

Plaintiff's sister, Felecia Holloway, completed a third-party function report dated 8 December 2014. Tr. 332-39. The ALJ summarized the eight-page report in one sentence:

A third party function report completed by the claimant's sister, Felecia Holloway, indicated that the claimant's mind determines her whole day and triggers slow responses, memory issues, behavior changes and repetitive conversations. (Exhibit 12E)

Tr. 23 ¶ 5.

The ALJ gave the sister's report "little weight," explaining as follows:

The undersigned has considered the third party statement completed by the claimant's sister in Exhibit 12E, pursuant to SSR 06-03p. Ruling 06-03p instructs the undersigned to consider "such factors as the nature and extent of the [parties] relationship whether the evidence is consistent with other evidence, and any other factors that tend to support or refute the evidence." While third party statements such as the one under consideration here can generally be helpful in making findings regarding the claimant's activities of daily living and social activities, they are generally of little probative value in reaching the ultimate conclusion of disability. At the outset, it must be noted that the author of these opinions is not an acceptable medical source as defined in the regulations, nor does he have any type of treating relationship with the claimant, or professional qualifications to render opinions regarding the claimant's ability to perform work related activities. Secondly, it must be noted that these opinions are neither functional nor diagnostic in nature and add little value to the decision herein. Although this witness has lengthy and daily contact with the claimant, the form itself is minimally completed and vaguely worded, thus rendering the opinion less probative. Further, by virtue of his relationship with the claimant, the witness' opinions would naturally tend to be colored by affection for the claimant and, as a member of the claimant's household, he would have an understandable tendency to agree with any limitations alleged by the claimant, as well as incentives to portray the claimant in a disabled light. Finally, the witness's statements are inconsistent with the objective evidence and examination findings of record, which do not evidence such severity of condition that would preclude work activity within the parameters of the residual functional capacity found herein and support a finding that the claimant is capable of a reduced range of medium unskilled work. For all of the above stated reasons, the opinions set forth in Exhibit 12E are given little weight.

Tr. 23-24 ¶ 5 (emphasis added).

The ALJ's analysis suffers from several deficiencies. One is his characterization of the sister's opinions as not functional in nature. They clearly are. They address plaintiff's functional capacities in areas ranging from her physical abilities, such as standing, walking, and lifting; mental abilities, including limitations in understanding, paying attention, and completing tasks; and general abilities in responding appropriately to supervision and coworkers. See Tr. 337-39.

Another problem is the ALJ's description of the report as "minimally completed and vaguely worded." Tr. 24 ¶ 5. In fact, the sister responded to every question and provided an explanation every time it was called for and one time when it was not (see Tr. 333 no. 15.a). The sister routinely used all or almost all of the space provided for explanations. The information provided is detailed and its meaning clear.

Moreover, the ALJ used the masculine in referring to the author of the report and characterized the claimant as having been found to be capable of medium work, instead of light work. Not only was the ALJ wrong in both respects, but these errors suggest that the ALJ was not referring to the report from plaintiff's sister, but rather a report from another case, perhaps utilizing language taken from that other case. Of course, the ALJ's findings that the opinions in the report were not functional in nature and that the report was "minimally completed and vaguely worded" are also consistent with this possibility. Tr. 24 ¶ 5. There is nothing in the ALJ's decision that eliminates this possibility.

By virtue of the errors in his assessment of the sister's report, the ALJ failed to build a logical bridge from the facts to his determination to discredit the report. This failure frustrates meaningful substantial evidence review of the ALJ's assessment and requires remand. See Monroe, 826 F.3d 176, 189-91 (4th Cir. 2016).

Moreover, to the extent that such a review can be conducted, the court cannot say that the ALJ's assessment of the report is supported by substantial evidence. This failing is not harmless because the sister's report is potentially material evidence in this case. More specifically, the report indicates the sister lived with plaintiff at the time of the report. Tr. 332 no. 6.b. She therefore had substantial firsthand knowledge of plaintiff's condition. The sister was also likely in a position to gauge any declines in plaintiff's capacities given the sister's familial relationship to plaintiff. See Tr. 332 no. 6.a. (sister's statement that she has known plaintiff all of the sister's life). Moreover, as discussed, the report covers a broad range of functionalities and the opinions expressed well stated and explained. If credited, the report would substantiate many of plaintiff's statements regarding her impairments and associated limitations. Proper consideration of the sister's report could thereby alter the assessment of plaintiff's statements, which the ALJ discounted. Not only by affecting the assessment of plaintiff's statements, but also by directly showing plaintiff's functionality, the sister's report could alter the determination reached regarding plaintiff's RFC. The harmful nature of the ALJ's errors provides an independent basis for remand. Garner v. Astrue, 436 F. App'x 224, 226 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).

C. ALJ's Failure to Properly Assess Plaintiff's Statements regarding Her Impairments and Associated Limitations

Plaintiff's statements regarding her impairments and associated limitations can be found in the record in her hearing testimony, a function report by her dated 8 December 2014 (Tr. 324-31), and records of her visits to healthcare providers. The ALJ appears to focus primarily on plaintiff's testimony at the hearing. The court will, accordingly, do the same, while recognizing that plaintiff's function report which was completed two years before the hearing and which the ALJ did not expressly cite or discuss, is largely consistent with the hearing testimony.

In her statements, plaintiff portrays her impairments as disabling.

For example, the ALJ summarized her hearing testimony as follows:

The claimant testified that she lived with her 26-year-old disabled son, her niece and two children, ages six and eight. She stated that her niece handled everything with the house. The claimant stated that she had not worked in two years because she had issues processing things since her [aneurysm] surgery in January 2011. She stated that since her second [aneurysm] surgery in March 2014, she had a short fuse. She stated that she has upset and offended all of her siblings. She said that noise and chaos made her want to fight; she had a hard time being around people, and had difficulty dealing with people. She said that she went weeks at a time without leaving the house. The claimant stated that the slightest thing sets her off. She said that she had a run in with someone every day. She stated that the children set her off and she threatens to throw them out of the house two to three times a week.

The claimant testified that she had constant headaches and took Tramadol every four hours. She said that she sleeps two to three hours during the day because she was exhausted. She stated that she spent less than five hours a day out of bed. She said that she reads a lot and does journaling. The claimant stated that she had memory issues. She said that her thoughts go faster than she can write and she could not collect her thoughts. The claimant stated that she sweeps, mops, does dishes, can care for herself, and dress herself. She stated that she had been on medication for her mood swings, but it was too expensive and she could not afford it. She stated that she was not taking anything for her mood.

Tr. 23 ¶ 5.

The ALJ's assessment of plaintiff's statements regarding her impairments and associated limitations appears primarily in his analysis of plaintiff's RFC. But he also addresses plaintiff's statements in his step three analysis on whether plaintiff meets or medically equals any Listings, specifically, his analysis of the so-called paragraph B criteria. These criteria relate to a claimant's capacity in four areas of mental function: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. See generally Listing 12.00A2b, E, F. Although the analysis of the paragraph B criteria occurs at step three, it does have a bearing on the more detailed analysis entailed in determination of the RFC. As stated by the ALJ here, "the following [RFC] assessment reflects the degree of limitation the undersigned has found in the paragraph B mental function analysis." Tr. 22 ¶ 4.

In his assessment of plaintiff's statements in determining her RFC, after summarizing her testimony, the ALJ found at step one that "the claimant's medically determinable impairments could reasonably be expected to produce the above alleged symptoms." Tr. 24 ¶ 5. However, at step two, the ALJ found that

the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. Accordingly, these statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence.

Tr. 24 ¶ 5.

The ALJ explained his assessment of plaintiff's symptoms, in relevant part, as follows:

The undersigned finds that the claimant's testimony was not persuasive of disability and was not consistent with her medical evidence of record. The treatment the claimant has sought for her alleged impairments has been routine, conservative and not commensurate with allegations of symptoms so severe as to preclude work; the claimant has not required inpatient treatment or extensive outpatient treatment.
In sum, the claimant has not carried her burden of establishing the presence of symptoms and limitations so severe as to preclude work. Her impairments, symptoms, and limitations are all reasonably accommodated by the restrictive [RFC] found herein.

Tr. 23 ¶ 5.

In his paragraph B analysis, the ALJ also discounted, at least in part, statements by plaintiff regarding her impairments, as discussed further below. See Tr. 21 ¶ 4 (discussion of interacting with others). Notably, he also credited certain statements. See Tr. 21 ¶ 4 (discussion of understanding, remembering, or applying information; and concentrating, persisting, or maintaining pace).

The court agrees with plaintiff that the ALJ erred in his assessment of plaintiff's statements regarding her impairments and associated limitations. The errors by the ALJ are evident at several points in his decision.

1. Plaintiff's Ability to Interact with Others

One instance is the ALJ's evaluation of plaintiff's ability to interact with others. The ALJ found:

In interacting with others, the claimant has mild limitation. Although the claimant stated that she did not have close friends and was withdrawn from people, the medical evidence of record documented that the claimant generally interacted normally with all treating sources. In fact, they described her as pleasant, cooperative, and in no acute distress on a regular basis.

Tr. 21 ¶ 4.

In this and the other portions of his step three analysis, the ALJ fails to provide any citations to the evidence that he discusses.

One concern is the ALJ's characterization of plaintiff's statements relating to social interaction. Her actual statements express limitations far more severe than simply not having close friends and being withdrawn from people. For example, she testified:

A . . . . But on the last day that I worked what happened was a gentleman had turned to me and asked me to hand him a box. He was a very large man who had just been released from prison after serving ten years. And it rubbed me every kind of way wrong that it could. I pulled a knife on that man. I was going to cut him. And that happened that morning at 10:30, and by 12:00 that day I was on my way out the door. [Tr. 45]
. . . .
A . . . . But after the second surgery, the issues with my hearing appear to have corrected themselves. But from an emotional point, I discovered that my fuse was incredibly short. I live on a family homestead, a big family homestead. None of my siblings come and see me anymore. I just have the one niece. And I — I have pretty — I have watched my — I have done at least one thing to upset and offend every single sibling that I have. They do not call. They do not come by. No. [Tr. 52]
. . . .
A . . . . My niece's children — okay. Noise, chaos, all those kinds of things make me absolutely crazy. And I find myself yelling, cursing, and extremely confrontational. I am angered to the point of, yeah, I want to fight. And that's the that's one of the — and the tolerance, the overall tolerance for it is very, very thin. I have a very hard time encountering people.
Q And you weren't — but you weren't like this before the —
A No. I've always been a people person.
Q Okay. Now, you mentioned there are some days that you — or you go for weeks at time without leaving. And why is that — or without leaving your house, so why?
A I do not do people. I — and it is the slightest little thing that sets me off. [Tr. 52-53]
. . . .

A . . . . That Dollar Store is familiar to me. It is a store that I will go in. The local grocery store too crowded, too many people. People are bumping into you. They're walking in on your feet. The kids are running around. They put those little shopping carts and things in there, and oh my god. It just — it's a nightmare. It is a nightmare. Kids are running around. They're screaming. I they are putting out stock. And they're in the way, and I ah. I can't do it. I just can't do it. I just can't do it.
Q So well, now you mentioned you the Dollar Store, so that would be a place that you — when's the last time you were there? Do you remember or —
A I haven't been in a store this year. [Tr. 53-54]
. . . .
A Every single day I have a run-in with someone. My son is paranoid schizophrenic. At the age of 13, he had a 25-person kill list already. It is a present stressor always. [Tr. 55]
. . . .
A My niece is all I have. She's all I have. She makes —
Q But do you ever —
A — me crazy too.
Q — like — do you ever find yourself, like, sort of, like, going off on her?
A Yeah. I actually — you know, I threaten to throw my niece out of my house with those two kids two or three times a week. [Tr. 59]
. . . .
Q How about your son? How is your relationship with your son living with him?
A My biggest fear in this world is that my son will be Dylan[n] Roof. He has the — every single characteristic of that young man. [Tr. 59-60]


Dylann Roof was convicted of killing nine people in a Charleston, South Carolina church on 17 June 2015. See, e.g., Alan Blinder & Kevin Sack, Dylann Roof Found Guilty in Charleston Church Massacre, N.Y. Times, 15 Dec. 2016, available at https://www nytimes.com/2016/12/15/us/dylann-roof-trial.html. --------

In summarizing plaintiff's testimony in his RFC analysis, the ALJ accurately characterizes some of this testimony. See Tr. 23 ¶ 5. But, as can be seen, the severity of the limitations plaintiff expressed are grossly understated by the ALJ in his assessment of plaintiff's limitations in interacting with others.

Moreover, the stated ground upon which the ALJ discounts plaintiff's statements regarding her interaction with others — her demeanor at visits with treatment providers — is inadequate, at least in the absence of further explanation. The controlled, focused environment at a visit with a treating healthcare provider, typically lasting a relatively short period, provides limited insight into a claimant's ability to interact with others outside such a setting, particularly a competitive workplace, and such intermittent examinations are inherently limited in their ability to assess chronic mental impairments whose manifestation may be episodic and situational. See Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011) ("As we have explained before, a person who suffers from a mental illness will have better days and worse days, so a snapshot of any single moment says little about her overall condition."). The ALJ does not explain why he is justified in relying to the extent he does on examination findings as a valid indicator of plaintiff's mental condition outside of the examination room. This is particularly true where, as here, the claimant's statements regarding her ability to interact with others are generally confirmed by a family member of a claimant who at the time was living with her. See Tr. 332-39.

The ALJ's reliance on plaintiff's purportedly normal interaction "with all treating sources" is deficient for an additional, more fundamental reason — it may be factually inaccurate. While many of plaintiff's medical records do reflect her being pleasant and cooperative during office visits, a 27 January 2016 office visit note indicates that plaintiff

[h]as not been seen by PCP [i.e., primary care physician] in over 2 years, was being seen by Dr. Mark B[e]amer of Belhaven Family medicine. Pt states that she was

essentially dismissed from the practice for yelling at the doctor. [S]tates that they will not see her anymore.

Tr. 633. The ALJ did not address this evidence.

Because of the deficiencies in the ALJ's analysis, he failed to build an accurate and logical bridge from the evidence to his conclusions that plaintiff overstated her limitations in interactions with others and that such limitations were mild. See Monroe, 826 F.3d at 189. This failing provides an independent ground for remand. Id. at 189-91.

When viewed, alternatively, in terms of harmfulness, the court cannot say that the deficiencies are harmless. Proper evaluation of plaintiff's statements about her ability to interact with others could reasonably be expected to lead to a different conclusion regarding their accuracy. The ALJ's determination on plaintiff's ability to interact with others could thereby be altered. More specifically, proper analysis could reasonably result in a finding that the limitation in plaintiff's ability to interact with others was more than mild and that she lacked the ability the ALJ found her to possess in his RFC determination to have occasional interaction with others — presumably signifying up to one-third of the time (see Soc. Sec. Ruling 83-10, 1983 WL 31251, at *5 (1983)) — not only with supervisors and co-workers, but also the general public. Remand is required on this additional ground. Garner, 436 F. App'x at 226 n.*

2. Plaintiff's Ability to Understand, Remember, or Apply Information

The ALJ's analysis of plaintiff's ability to understand, remember, or apply information presents similar problems. In this area of mental function, the ALJ found as follows:

In understanding, remembering, or applying information, the claimant has mild limitation. The medical evidence of record, including mental status reports, generally showed no serious deficits in long/short-term memory, insight and judgment. The claimant reported that she performed some normal necessary household tasks such as cooking, washing dishes, and grocery shopping, which required a basic level of understanding, remembering, and applying information.

She reported that she read and kept a journal, and she had a valid driver's license evidencing memory and understanding.

Tr. 21 ¶ 4.

In this assessment, the ALJ does not appear to evaluate sufficiently the degree to which plaintiff testified she was limited in her ability to perform many of the specified activities. As the Fourth Circuit recently noted, "[a]n ALJ may not consider the type of activities a claimant can perform without also considering the extent to which she can perform them." Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphasis original) (citing Brown v. Commissioner, 873 F.3d 251, 263 (4th Cir. 2017)).

For example, with respect to cooking, plaintiff testified as follows:

A My niece handles the complete and total operation of my house. She does —
Q Okay.
A She is responsible for making sure everything is paid. She does all of the grocery shopping. She does all of the cooking. She runs the house. [Tr. 42]
. . . .
A . . . . I set my stove on fire twice in my house, so I'm not permitted to cook. The new appliances that I have in my house now all come with timers and automatic shut-off for this purpose. [Tr. 59]
. . . .
Q And you don't do any cooking at this point?
A No. No. No, no, no. My — if you were to ask her, follow her Facebook, she would say I do sandwiches. And I do those sandwiches with a plastic knife. That's what I —
Q Okay.
A. — get to use. [Tr. 63-64]


While plaintiff did testify that she washes dishes, her testimony was qualified, as it was with respect to cleaning generally:

I do the dishes. I do do the dishes. But I don't do anything else. I will do the dishes in the sink if it's not a lot of them. If the sink is full, no. No. But I will do a few dishes. If I spill something or mess up something, I will sweep it up or clean it up or whatever. But as far as — there's no — there is no carpet in the house, so it's hardwood floors and linoleum. And my niece does — she does all the cleaning.

Tr. 63.

Plaintiff's testimony concerning grocery shopping conflicts outright with the ALJ's characterization of it:

A Truthfully, sir, I go weeks and weeks at a time when I never leave my house. I haven't —
Q Okay.
A — been in a grocery store in four years. I haven't been in a shopping mall in six. I don't even go to church. [Tr. 43]
. . . .
Q And [your niece does] the grocery shopping?
A Yes. [Tr. 63]


With respect to journaling, plaintiff spoke of it in qualified terms, again, contrary to the unqualified statement by the ALJ:

A . . . . I do some journaling, but that's limited because my thoughts are going so much faster than my hand can write. So, sometimes it gets frustrating because I can't get all my thoughts together. I can't get them collected.

Tr. 61.

As to plaintiff's possession of a driver's license, while she did testify that she had one (Tr. 42), the extent to which it shows the ability to understand, remember, or apply information is unclear without further explanation. Specifically, the ALJ could be alluding to the ability to pass a test to obtain a driver's license. But the rigorousness of such a test can vary widely. Renewal tests, in particular, can be brief and cursory in nature. In plaintiff's situation, when she took any test could be material in light of the evidence that her condition deteriorated significantly after her second surgery.

Alternatively, or additionally, the ALJ could be citing plaintiff's possession of a driver's license as evidence that she has sufficient ability to understand, remember, or apply information to drive, particularly since he later finds that plaintiff reported she does drive at times. As discussed below, however, this characterization of plaintiff's testimony is misleading at best.

Because of these deficiencies in the ALJ's analysis, he failed to build an accurate and logical bridge from the evidence to his conclusion that plaintiff has only mild limitation in his ability to understand, remember, or apply information. See Monroe, 826 F.3d at 189. This failing provides an independent ground for remand. Id. at 189-91.

Alternatively, the court cannot say that the deficiencies are harmless. Proper evaluation of plaintiff's statements about her ability to understand, remember, or apply information could reasonably alter the assessment of their accuracy and thereby the finding that such ability was mildly limited and the RFC determination, which reflects the finding on this ability. Remand is required on this additional ground. Garner, 436 F. App'x at 226 n.*

3. Plaintiff's Ability to Concentrate, Persist, or Maintain Pace

The ALJ committed similar errors in his assessment of plaintiff's ability to concentrate, persist, or maintain pace. The ALJ found in this area of mental function as follows:

With regard to concentrating, persisting, or maintaining pace, the claimant has moderate limitation. Although the claimant's mental health exams documented adequate concentration and attention, she has reported increased problems since her surgery with concentration and attention. She reported that she reads and keeps a journal and at times drives, which indicated some concentration and attention to detail as well as persistence. The claimant reported performing a variety of household tasks that require some concentration and persistence, or maintaining pace.

Tr. 21 ¶ 4.

The court has already addressed the ALJ's blanket finding that plaintiff testified that she keeps a journal. While this testimony was discussed in the context of plaintiff's ability to understand, remember, or apply information, an analogous concern about it arise in the context of plaintiff's ability to concentrate, persist, or maintain pace. Specifically, her testimony about the difficulties of journaling suggests limitations in the ability to concentrate, persist, or maintain pace that are not reflected in the ALJ's unqualified statement that she keeps a journal.

The ALJ's finding that plaintiff reported that she drives at times substantially overstates the driving she testified to doing:

Q Okay. Do you have a driver's license?
A I do.
Q Do you drive?
A No, sir.
Q Why not?
A I don't have a car. But the last time I attempted to travel, they actually issued an elder alert for me because I lost my — I was lost.
Q Okay. So if you need to get around how do you do that?
A Truthfully, sir, I go weeks and weeks at a time when I never leave my house. I haven't —
Q Okay.
A — been in a grocery store in four years. I haven't been in a shopping mall in six. I don't even go to church.
Q So, how did you get to the hearing today?
A My caregiver is sitting out there in the car with those two children waiting for me.

Tr. 42-43.

As to his finding on "a variety of household tasks" that plaintiff reported performing, the ALJ fails to specify the tasks to which he is referring. Tr. 21 ¶ 4. He thereby interjects ambiguity into this finding.

But the finding is not salvaged even if it is assumed that the household tasks the ALJ cites are those previously addressed. For the reasons discussed, just as the ALJ's unqualified reference to plaintiff's testimony regarding these tasks overstates her ability to understand, remember, or apply information, it overstates her ability to concentrate, persist, or maintain pace.

Because of these deficiencies in the ALJ's analysis, he failed to build an accurate and logical bridge from the evidence to his conclusion about plaintiff's ability to concentrate, persist, or maintain pace. See Monroe, 826 F.3d at 189. This failing provides an independent ground for remand. Id. at 189-91.

When viewed, alternatively, in terms of harmfulness, the court cannot say that the deficiencies are harmless. Proper evaluation of plaintiff's statements about her ability to concentrate, persist, or maintain pace could result in a different conclusion regarding their accuracy. Such a change could, in turn, reasonably result in a change in the finding that the limitation in plaintiff's ability to concentrate, persist, or maintain pace was moderate and thereby the RFC determination, which reflects this finding. Remand is required on this additional ground. Garner, 436 F. App'x at 226 n.*

VI. CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 13) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 15) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3) for further proceedings consistent with this Memorandum and Recommendation.

In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case. These are matters that are for the Commissioner to resolve.

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 20 August 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct 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.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).

Any response to objections shall be filed within 14 days after filing of the objections.

This 6th day of August 2018.

/s/_________


James E. Gates


United States Magistrate Judge