C/A No.: 1:17-cv-01683-AMQ-SVH
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On August 7, 2013, Plaintiff protectively filed an application for DIB in which she alleged her disability began on August 6, 2013. Tr. at 138-44. Her application was denied initially and upon reconsideration. Tr. at 88-91 and 93-94. On March 8, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Theresa R. Jenkins. Tr. at 43-63. The ALJ issued an unfavorable decision on May 23, 2016, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 21-42. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-5. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 27, 2017. [ECF No. 1].
B. Plaintiff's Background and Medical History
Plaintiff was 44 years old at the time of the hearing. Tr. at 47. She completed eleventh grade. Tr. at 155. Her past relevant work ("PRW") was as a payroll clerk, accounting clerk, general clerk, data entry clerk, and housekeeper. Tr. at 59. She alleges she has been unable to work since August 6, 2013. Tr. at 64.
2. Medical History
On July 20, 2010, Plaintiff saw Dr. Sameer Vemuri at Carolina Neurosurgery and Spine Associates. Tr. at 220. Plaintiff complained of hip pain and reported that the week prior she had fallen and landed on her back near the area of a previous fusion. Id. Plaintiff indicated severe back pain since the fall and reported that she had been to the emergency room and was given pain medication. Id. Plaintiff also reported posterior radiation of pain down the right lower extremity and into the sole of her right foot, with associated numbness and tingling. Id. A lumbar spine x-ray showed the previous L3-L4-L5 posterior fusion remained well fused and did not show evidence of malalignment. Tr. at 222. The x-ray revealed significant loss of disc space and foraminal narrowing at L5-S1. Id. Dr. Vemuri diagnosed post-operative laminectomy pain/lumbar, pain/limb, numbness, and degenerative disc/lumbar or lumbosacral intervertebral disc. Id.
On August 8, 2013, Richard Richardson, a physician's assistant at OrthoCarolina, evaluated Plaintiff for complaints of lower back and right leg pain. Tr. at 254. Plaintiff reported debilitating pain syndrome in the posterolateral aspect of the right lower extremity causing paresthesias in the feet and toes for the prior week. Id. A lower extremity examination showed a positive right straight leg raise ("SLR") at approximately forty degrees, consistent with an L5 radicular pattern, and a slightly contralateral left SLR for radicular pain. Id. A lumbar examination showed Plaintiff's flexion to be limited approximately thirty degrees secondary to pain syndrome and radiating discomfort down the posterolateral aspect of the left lower extremity. Id. A lumbar spine x-ray performed during the office visit showed an L3 to L5 DSF with pedicle screws and rods, but no signs of mechanical failure. Id. Richardson diagnosed Plaintiff with multilevel DSF with acute onset of a right lumbar radiculopathy and degeneration with decreased disc space height at L5-S1. Id. He prescribed a steroid, muscle relaxer, and hydrocodone-acetaminophen. Id.
On August 15, 2013, Plaintiff had a lumbar MRI, which showed instrumented fusion from L3 to L5 that appeared solid at the L4-L5 level and moderate multifactorial spinal stenosis at L2-3 and L5-S1 with no specific evidence of right L5 nerve root compression. Tr. at 224.
On August 26, 2013, a medical consultant on contract with the Social Security Administration ("SSA") completed a Physical Residual Functional Capacity ("RFC") assessment indicating that Plaintiff was capable of performing light work with postural and environmental limitations. Tr. at 67-69.
On August 27, 2013, Plaintiff had a follow-up appointment with Richardson at OrthoCarolina to review her progress and her MRI. Tr. at 252. Plaintiff reported moderate improvement with the steroids, but recurrence of discomfort after finishing the course of medication. Id. Richardson noted paraesthesias and discomfort more in the anterolateral portion of her right lower extremity, especially affecting the top of her right foot. Id. An exam of Plaintiff's lower extremities showed a mildly positive right SLR at seventy degrees, consistent with an L5 radicular pattern. Id. Richardson diagnosed status post DSF with questionable fusion coherence at L4-L5 and right L5 radiculopathy with foraminal stenosis and far lateral disc bulge. Id. He recommended a right L5 selective nerve root block. Id.
On September 6, 2013, Plaintiff received a right L5-S1 transforaminal epidural injection under fluoroscopic guidance. Tr. at 269. Plaintiff reported concordant provoked leg pain. Id.
On September 24, 2013, Drewid Plyler, a physician's assistant at Chester Medical Group, evaluated Plaintiff for complaints of chest pain and fatigue. Tr. at 243. Plaintiff reported fatigue, excess weight gain, diminished activity, myalgia, weakness, and headache and indicated that her Paxil may no longer be working. Tr. at 244. Plyler diagnosed malaise and fatigue, unspecified chest pain, benign essential hypertension, and depressive disorder, and he prescribed Tenoretic and Zoloft. Tr. at 245-46.
On September 24, 2013, Plaintiff also saw Dr. Eric Laxer of OrthoCarolina for a follow-up appointment after her spinal injection. Tr. at 249-51. Plaintiff reported a four-month history of increased back pain with more pronounced right buttock, anterior thigh, and lower leg pain extending to the top of her foot. Tr. at 249. Dr. Laxer noted that Plaintiff's SLR provoked buttock pain on the right and her femoral stretch provoked right lower back pain, but no thigh pain. Tr. at 249. Dr. Laxer diagnosed right lumbar radiculopathy, probably from adjacent segment changes at L2-L3, and he recommended a right L3 nerve root block. Tr. at 250.
On October 2, 2013, Plaintiff visited Chester Medical Group complaining of hypertension. Tr. at 240. Marlon Shelby, a physician's assistant, examined Plaintiff, diagnosed essential hypertension and palpitations, and he prescribed Tenoretic. Tr. at 240-42.
The following day, on October 3, 2013, Plaintiff was admitted to Chester Regional Medical Center for complaints of chest pain. Tr. at 225-26. Plaintiff underwent a nuclear medicine stress test that was normal. Tr. at 226. The medical center discharged Plaintiff on October 4, 2013, with diagnoses of atypical chest pain, morbid obesity, and hypertension. Id.
On October 8, 2013, Plaintiff returned to Chester Medical Group for a follow-up regarding her blood pressure and potassium. Tr. at 237. Plyler evaluated Plaintiff and diagnosed benign hypertension and stable hypokalemia. Tr. at 239.
On October 11, 2013, Plaintiff underwent a bilateral L3-L4 transforaminal epidural injection under fluoroscopic guidance. Tr. at 267. Plaintiff reported intense provoked leg pain with injections on both sides. Id.
On October 12, 2013, Plaintiff went to the emergency room at Chester Regional Medical Center complaining of having experienced leg pain for five days. Tr. at 229. Plaintiff's electrocardiogram showed no changes, and she was discharged with a diagnosis of left leg pain, most likely inflammatory, and a prescription for Indocin. Tr. at 227-33.
On October 22, 2013, Plaintiff returned to Chester Medical Group to follow up on her blood pressure. Tr. at 234. Plyler evaluated Plaintiff and assessed stable benign hypertension, unstable anxiety, and phlebitis and recommended tapering off of Zoloft and starting Celexa. Tr. at 235-36.
On November 1, 2013, Dr. Laxer at OrthoCarolina followed up with Plaintiff regarding her spinal injection. Tr. at 247. Plaintiff reported the bilateral injection had not helped her much. Id. Dr. Laxer noted mild provocation for back pain on both sides with a seated SLR, numbness in the back of Plaintiff's left calf and below her left foot, and a negative femoral stretch. Id. Dr. Laxer assessed lumbar radiculopathy and low back pain and recommended a trial of gabapentin and physical therapy. Id.
On December 31, 2013, Plaintiff returned to Dr. Laxer for another follow-up appointment. Tr. at 468. Plaintiff reported worsening pain down the back of her left leg that had become lateral posteriorly around her calf and had caused numbness in the bottom of her left foot. Id. She also reported milder pain, but no numbness, down the back of her right leg to her calf. Id. Plaintiff also reported that she tried one physical therapy session, which caused her pain to worsen and caused her to struggle at home for about a week. Id. Upon examination, Plaintiff exhibited a positive SLR, reproducing posterior leg pain to her calf. Id. Dr. Laxer diagnosed adjacent segment stenosis at L2-L3; adjacent segment degenerative change and disc herniation, left greater than right, L5-S1; and multiple lumbar surgeries by Dr. Cowan. Id. Dr. Laxer recommended bilateral S1 nerve root blocks. Tr. at 468-69.
On January 30, 2014, Plyler completed an SSA questionnaire regarding Plaintiff's mental condition and stated that Plaintiff was being treated for anxiety and depression with medication and that the medication had helped her conditions. Tr. at 271. Plyler indicated that Plaintiff's thought process was intact; thought content was appropriate; mood and affect were normal, anxious, and depressed; attention and concentration were good; and memory was good. Id. Plyler represented that Plaintiff's mental condition resulted in "slight" work-related limitation in function. Id.
On February 21, 2014, Plaintiff saw Dr. Laxer for another follow-up appointment. Tr. at 329. Plaintiff reported experiencing the same constant pain since her last appointment, predominantly down her left leg posterolaterally with altered sensation to her outer foot. Id. She also reported milder, different, intermittent pain down part of her right leg that was more posterior and probably muscular, along with some lower back pain at the lumbosacral junction. Id. Plaintiff stated she was having difficulty doing limited activity. Id. Dr. Laxer assessed lumbar radiculopathy and lumbar spondylosis and recommended a microdiscectomy. Tr. at 329-30.
On February 25, 2014, Plyler evaluated Plaintiff for surgical clearance and noted she had a positive SLR on the left side at forty-five degrees and abnormal neurological findings in her left leg. Tr. at 1200-03.
On March 8, 2014, a non-examining agency consultant completed a Psychiatric Review Technique ("PRT") assessment that indicated Plaintiff's medically determinable mental impairments were not severe. Tr. at 79-80.
On March 10, 2014, an agency medical consultant completed an RFC assessment, which indicated Plaintiff was capable of performing light work with postural and environmental limitations. Tr. at 81-83.
On March 14, 2014, Plaintiff underwent a left L5-S1 microdiscectomy. Tr. at 333-34. Plaintiff was diagnosed with shredded fibrocartilaginous fragments consistent with intervertebral disc. Tr. at 306-08.
On March 25, 2014, Plaintiff saw Dr. Laxer for a post-operative follow-up. Tr. at 460. Plaintiff reported that her left leg symptoms were gone, except for some tingling, but that she was experiencing discomfort down the back of her right leg. Id.
On March 31, 2014, Plaintiff returned to Chester Medical Group complaining of sleep problems, including snoring, fatigue throughout the day, and trouble falling and staying asleep. Tr. at 1198. Plyler evaluated Plaintiff for potential sleep apnea, Tr. at 1196, and assessed snoring, fatigue, excessive somnolence, and asthma. Tr. at 1198. Plyler prescribed an inhaler and referred Plaintiff for a sleep study. Id.
On April 4, 2014, Plaintiff saw Richardson at OrthoCarolina for a three-week, post-operative, follow-up appointment. Tr. at 457. Plaintiff reported continued pain down her left leg. Id. Richardson diagnosed persistent left lumbar radiculopathy. Id.
On April 8, 2014, Plaintiff returned to OrthoCarolina for a follow-up appointment with Dr. Laxer. Tr. at 455. Plaintiff complained of general discomfort and contralateral pain down her right leg from her buttock toward her foot and reported continuing numbness in her left leg toward her outer foot. Id. Dr. Laxer noted Plaintiff's SLR was mildly productive on the right side, but negative on the left side. Id. He assessed numbness in the left leg since her surgery, which Dr. Laxer noted is not unusual, and pain down her right leg. Id. He recommended another lumbar MRI, particularly of the right L5-S1. Id.
Dr. Laxer saw Plaintiff on September 12, 2014, for her six month post-operative appointment. Tr. at 453. Plaintiff reported improvement in the sciatica in her left leg, but complained of right lower back and buttock pain. Id. Plaintiff also reported more diffuse musculoskeletal pain in almost all of her joints, but particularly in her right elbow, for which her primary care physician referred her to physical therapy. Id. Plaintiff's SLRs were negative on both sides, and Dr. Laxer opined she was recovering well from her surgery. Id. Dr. Laxer noted Plaintiff's complaint of diffuse pain could be fibromyalgia or an inflammatory arthritic condition, but he deferred to her primary care physician for treatment decisions for those symptoms as Plaintiff relayed that she had been referred to physical therapy by Dr. Stone for the pain in her right elbow. Id.
On April 6, 2015, Plaintiff was admitted to the hospital for complaints of a headache lasting three days. Tr. at 560. The hospital notes indicate that Plaintiff collapsed outside of her office building, and when she arrived at the hospital she was nonverbal with her eyes closed but could follow commands. Tr. at 561. Plaintiff received a brain CT scan and an MRI, both of which were unremarkable, and she was discharged on April 7, 2015, with diagnoses of headache, now resolving, and syncope with negative workup. Tr. at 596.
On June 22, 2015, Plaintiff had an MRI of her cervical spine that showed a disc protrusion within the upper thoracic spine at T1-2 impinging on the ventral cord. Tr. at 286.
On June 25, 2015, Plaintiff underwent nerve conduction and EMG studies to assess her right elbow pain, radiating to her right shoulder. Tr. at 278-79. Neither study showed evidence of neuropathy or radiculopathy affecting either arm. Tr. at 279.
On August 31, 2015, Plaintiff was treated in the emergency room for a headache. Tr. at 1122. She reported severe pain, photophobia, and vomiting. Id. The hospital performed a head CT scan, which was negative, and Plaintiff was discharged with a diagnosis of migraine headache. Tr. at 1124.
On October 6, 2015, Plaintiff saw Dr. Stone at Lowry's Family Medicine to follow up on her headaches and fibromyositis. Tr. at 1188. Plaintiff indicated that she was still having headaches and that they were incapacitating. Tr. at 1195. Dr. Stone diagnosed headache and primary fibromyalgia syndrome and prescribed Cymbalta. Tr. at 1193.
On October 20, 2015, Plaintiff returned to Dr. Stone to follow up on her headaches and to review her progress on Cymbalta. Tr. at 1186. Plaintiff reported having fewer headaches since starting Cymbalta, but she complained of trouble sleeping. Id. Dr. Stone noted that Cymbalta was probably working because Plaintiff likely had fibromyalgia. Id. He diagnosed migraine headache with musculoskeletal component, insomnia, and obesity. Id. He reviewed Plaintiff's medications and prescribed Ambien. Id.
On November 23, 2015, Dr. Stone followed up with Plaintiff on her headaches, primary fibromyalgia syndrome, chronic back pain, depressive disorder, and benign essential hypertension. Tr. at 1173. Plaintiff reported that her fibromyalgia had been flaring up and that she had been having panic attacks, mostly at night. Tr. at 1178. She also complained of continued back pain but indicated that her headaches were under control. Id. Dr. Stone diagnosed migraine headache, stable; fibromyalgia with flare up; depression; chronic back pain; abdominal pain, and hypertension and prescribed Neurontin and Duexis. Tr. at 1177-78.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on March 8, 2016, Plaintiff testified that she previously worked as a payroll clerk at Trinet Corporation. Tr. at 48. She was employed there for about one year, but she was out on short-term disability for several months. Tr. at 48-49. Prior to her job at Trinet, Plaintiff worked in accounts payable at Bradford Management. Tr. at 49. Plaintiff's duties included processing invoices, making wire transfers, and investigating discrepancies with invoices. Id. Plaintiff was also employed in a clerical role at Staff Masters, where she assisted sales agents with making copies and filing. Id. In addition, Plaintiff worked as a payroll administrator at Superior Essex, entered insurance application data for Kanawha Healthcare, and cleaned house for Robert Wiley. Tr. at 49-50.
Plaintiff testified she was no longer working because her doctor instructed her not to work after she passed out at work twice. Tr. at 50-51. She explained that when she experienced severe back pain, her blood pressure would rise, she would get a migraine and then blackout. Id. Plaintiff testified that the primary reasons she could not work were her back and leg pain, irritable bowel syndrome ("IBS"), and sleep problems. Tr. at 51. Plaintiff testified that her back and leg pain made remaining in one position for any length of time difficult and that her previous employment did not allow for taking regular breaks. Id. In addition, Plaintiff testified that her IBS required her to use the bathroom ten to fifteen times a day for bowel movements. Id.; Tr. at 56.
Plaintiff stated her daily activities in the past year had been limited to mostly resting. Tr. at 51. She indicated she took the following medications: two pain medications, a muscle relaxer, Neurontin, Vitamin D3, an IBS medication, three blood pressure medications, Ambien, a medication for her stomach, and anti-inflammatories. Tr. at 51-52.
Plaintiff reported having a small limp from her spinal fusion and a lack of flexibility in her right leg. Tr. at 52-53. She stated she could lift a gallon of milk, only needed a walker when her back went completely out, and could sit comfortably for fifteen to twenty minutes. Tr. at 53. Plaintiff described her back pain as raw nerve pain similar to a toothache, stated her leg pain was more of a shooting pain, and indicated a burning pain in the bottoms of both feet. Id.
Regarding her mental health, Plaintiff testified she had depression and had anxiety surrounding her blackout spells, but had no problem getting along with other people. Tr. at 54.
Plaintiff testified she only sleeps for about one hour at a time before her leg pain wakes her up and she has to get out of bed to take more medication or otherwise alleviate the pain. Tr. at 54-55.
Plaintiff stated that she wants to return to work, and has tried, but that her injuries continue to prevent her from doing so. Tr. at 57. She also indicated that she has had seven back surgeries. Id.
b. Vocational Expert Testimony
Vocational Expert ("VE") Stephen Ratliff reviewed the record and testified at the hearing. Tr. at 59-62. The VE categorized Plaintiff's PRW as a payroll clerk as sedentary with a Specific Vocational Preparation ("SVP") of four; accounting clerk as sedentary with an SVP of five; general clerk as light with an SVP of three; data entry clerk as sedentary with an SVP of four; and housekeeping cleaner as light with an SVP of two. Tr. at 59.
Although the transcript of the ALJ hearing reflects an appearance by "Ms. Marit (phonetic), Vocational Expert," Tr. at 43, the ALJ's decision reflects that Vocational Expert Stephen Ratliff appeared at the hearing, Tr. at 24.
The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform work at the light exertion level; could lift and carry up to twenty pounds occasionally and ten pounds frequently; would need to alternate between sitting and standing up to two times each hour; could occasionally perform all postural activities, but should avoid work place hazards; could follow short, simple instructions and perform routine tasks, but could not perform work requiring a production rate or demand pace; could stay on task, sustaining attention and concentration for two hours at a time; and should avoid work environments dealing with crisis situations, complex decision making, or constant changes in a routine setting. Tr. at 59-60. The VE testified that the hypothetical individual would not be able to return to any of Plaintiff's PRW. Tr. at 60. The ALJ asked whether there were any other jobs in the regional or national economy that the hypothetical person could perform. Id. The VE identified information clerk, DOT number 237.367-018, SVP of two; toll collector, DOT number 211.462-038, SVP of two; and ticket taker, DOT number 344.667-010, SVP of two. Tr. at 60-61.
The ALJ then offered a second hypothetical, maintaining all factors in the original hypothetical and adding that the individual would likely require one to two additional five-minute rest breaks. Tr. at 61. The VE testified that the additional requirement would not impact his testimony. Id. In a third hypothetical, the ALJ increased the duration and frequency of those rest breaks to three to four rest breaks for five to fifteen minutes away from the duty station. Id. The VE testified that the additional limitations would preclude employment. Id.
2. The ALJ's Findings
In her decision dated May 23, 2016, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2016.
2. The claimant has not engaged in substantial gainful activity (SGA) since August 6, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: hypertension, migraines, obesity, lumbar stenosis, lumbar spondylosis, lumbar radiculopathy, fibromyalgia, depression and anxiety (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. 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) except she must be allowed to alternate between sitting and standing up to two times each hour. She is limited to occasional climbing, balancing, stooping, kneeling, crouching and crawling and must avoid workplace hazards. The claimant can follow short, simple instructions and perform routine tasks but is precluded from work requiring a production rate or demand pace. She is also able to sustain attention and concentration for two hours at a time. The claimant should avoid work environments dealing with crisis situations, complex decision making or constant changes in a routine setting. She also requires 1 to 2 additional 5-minute rest breaks.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on November 13, 1971 and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from August 6, 2013, through the date of this decision (20 CFR 404.1520(g)).
Tr. at 26-37. II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ improperly relied on the VE's testimony without resolving conflicts between the testimony and the DOT's job descriptions; and
2) the ALJ failed to properly follow Social Security Ruling 12-2p.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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). Section 423(d)(1)(A) defines disability as:
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 months.
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at any step, Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 404.1520(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1980). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo, or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
1. Improper Reliance on VE's Testimony
Plaintiff argues the ALJ erred in relying on the VE's testimony to meet the burden at step five without resolving a conflict between the RFC's restriction to short, simple instructions and routine tasks and the DOT's descriptions of the jobs the VE identified as having general educational development ("GED") reasoning levels of two, three, and four. [ECF No. 11 at 17-21]. The Commissioner maintains that the ALJ did not err in relying on the VE's testimony to support the existence of jobs as an information clerk, toll collector, and ticket taker because it did not conflict with the DOT's description of the jobs and the ALJ independently determined that there was no conflict. [ECF No. 15 at 7-9]. Further, the Commissioner asserts that Plaintiff's "proposed 'conflicts' stem from an assumption that her mental condition caused limitations beyond those identified" in the RFC. [ECF No. 15 at 7]. Plaintiff responds that, when arguing that there is not an apparent conflict, the Commissioner confuses SVP level with GED reasoning level, [ECF No. 22 at 3-4], as recognized in this court since Henderson v. Colvin, 643 F. App'x 273, 274 (4th Cir. 2016). Moreover, Plaintiff argues the Commissioner's positions contradict the ALJ's own findings that Plaintiff's impairments limited her to "short, simple instructions" and to "perform routine tasks." [ECF No. 22 at 2-5].
During the fifth step in the sequential evaluation process, "the Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). While assessing the claimant's ability to perform other jobs existing in significant numbers in the national economy, the ALJ should take administrative notice of job information contained in the DOT. 20 C.F.R. § 404.1566(d); see also SSR 00-4p (providing that "we rely primarily on the DOT (including its companion publication, the [Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles]) for information about the requirements of work in the national economy"). In some cases, ALJs obtain testimony from VEs to address how certain restrictions affect claimants' abilities to perform specific jobs. 20 C.F.R. § 404.1566(e).
Acknowledging that VE's opinions sometimes conflict with the information contained in the DOT, the SSA promulgated SSR 00-4p to explain how these conflicts should be resolved. The SSR 00-4p's purpose is to "require the ALJ (not the [VE]) to '[i]dentify and obtain a reasonable explanation' for conflicts between the [VE]'s testimony and the [DOT], and to 'explain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208 (citing SSR 00-4p (emphasis in original)). According to SSR 00-4p, the ALJ has two responsibilities to fulfill. Id. "First, the ALJ must '[a]sk the [VE] . . . if the evidence he or she has provided conflicts with information provided in the [DOT].'" Id. (citing SSR 00-4p). "[S]econd, '[i]f the [VE]'s . . . evidence appears to conflict with the [DOT],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. (citing SSR 00-4p). "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [VE] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified.'" Id. (citing SSR 00-4p (emphasis in original)). Therefore, "[t]he ALJ independently must identify conflicts between the expert's testimony and the [DOT]." Id. at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT" and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016) (citing Pearson, 810 F.3d at 210).
The court explained that an "apparent conflict" existed when the VE's testimony 'appear[ed] to conflict with the [DOT]," but an explanation from the VE may show that no actual conflict exists. Pearson, 810 F.3d at 209. ALJs must resolve both obvious and apparent conflicts between the VE's testimony and the DOT.
In this case, the ALJ determined that Plaintiff could "follow short, simple instructions and perform routine tasks," but would be precluded from work requiring a production rate or demand pace. Tr. at 29 and 60. Without explanation, the ALJ found the VE's testimony to be consistent with the DOT and relied on it to find that Plaintiff was capable of performing jobs as a ticket taker, toll collector, and an information clerk. Tr. at 37. A review of the DOT reflects GED reasoning levels for these positions of two, three, and four, respectively. See 344.667-010 TICKET TAKER, DOT (4th ed., revised 1991), 1991 WL 672863; 211.462-038 TOLL COLLECTOR, DOT (4th ed., revised 1991), 1991 WL 671847; 237.367-018 INFORMATION CLERK, DOT (4th ed., revised 1991), 1991 WL 672187.
A GED reasoning level depicts the analytical ability required by a job with each level arranged in graduating order of complexity from one to six. See DOT, App'x C ("Components of the Definition Trailer"), § III ("General Educational Development (GED)"), 1991 WL 688702. Thus, if a plaintiff is unable to perform work in a position with a lower level of GED reasoning due to a related limitation, then he or she would be unable to perform work with a higher level of GED reasoning, as well. Consequently, in this case, if Plaintiff is unable to perform work as a ticket taker with a GED reasoning level of two because she is limited to follow short, simple instructions and to perform routine tasks, then she is unable to perform work as a toll collector with a GED reasoning level of three or information clerk with a GED reasoning level of four.
The United States Court of Appeals for the Fourth Circuit has found that "there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions." Henderson, 643 F. App'x. at 277. The Fourth Circuit explained that "[u]nlike GED reasoning Code 1, which requires the ability to 'apply commonsense understanding to carry out simple one-or-two step instructions,' GED Reasoning Code 2 requires the employee to 'apply commonsense understanding to carry out detailed but uninvolved written or oral instructions.'" Id. (citing DOT, 1991 WL 688702 (2008)).
Plaintiff argues that Henderson dictates a finding that an apparent conflict exists between the VE's testimony identifying jobs requiring a GED reasoning level of two or higher and a restriction to short, simple instructions and routine tasks. [ECF No. 11 at 19]. The Commissioner argues that Henderson is distinguishable because, here, the ALJ did not limit Plaintiff to "one-to-two step instructions." [ECF No. 15 at 9].
"Following the Fourth Circuit's decision in Henderson, this court considered restrictions to simple, routine tasks in several cases and found that a conflict existed between the restrictions and GED reasoning level two." Austin v. Berryhill, No. CV 1:17-1797-JMC-SVH, 2018 WL 2392209, at *19 (D.S.C. Apr. 24, 2018), report and recommendation adopted, No. 1:17-CV-01797-JMC, 2018 WL 2389595 (D.S.C. May 24, 2018) (citing Stepp v. Berryhill, No. 1:17-771-MBS-SVH, 2017 WL 6806664 (D.S.C. Dec. 6, 2017), adopted by 2018 WL 294517 (D.S.C. Jan. 3, 2018); Piner v. Berryhill, No. 1:17-TMC-SVH, 2017 WL 4712084 (D.S.C. Sept. 28, 2017), adopted by 2017 WL 4682004 (D.S.C. Oct. 18, 2017); Pressley v. Berryhill, No. 8:16-2716-BHH-JDA, 2017 WL 4174780, at *10-11 (D.S.C. Aug. 24, 2017), adopted by 2017 WL 4156460 (D.S.C. Sept. 19, 2017); Dewalt-Gallman v. Berryhill, No. 9:16-2332-PMD-BM, 2017 WL 2257418, at *4 (D.S.C. May. 5, 2017), adopted by 2017 WL 2225133 (D.S.C. May 22, 2017); Christopherson v. Colvin, No. 6:15-4725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016), adopted by 2016 WL 7212785 (D.S.C. Dec. 13, 2016)). Moreover, in this case, the ALJ limited Plaintiff's RFC to "follow short, simple instructions and perform routine tasks," which lends further support that Plaintiff was limited to a GED reasoning level of one requiring the application of "commonsense understanding to carry out simple one- or two-step instructions," whereas the next GED reasoning level requires the ability "to carry out detailed but uninvolved" instructions. See DOT, App'x C ("Components of the Definition Trailer"), § III ("General Educational Development (GED)"), 1991 WL 688702.
The Commissioner's attempt to distinguish Henderson as only applying to one or two step instructions fails to recognize this court's prior decisions. Further, the ALJ's limited RFC in this case only appears to comport with a GED reasoning level of one. Therefore, the Fourth Circuit's decision in Henderson and this court's prior cases support a finding that there was an apparent conflict in this case between an RFC that limited Plaintiff to "follow short, simple instructions and perform routine tasks" (Tr. at 29) and the ALJ's finding that she could perform jobs with GED reasoning levels of two, three, or four, which may require the ability to "carry out detailed . . . instructions," "[d]eal with problems involving several concrete variables," or "solve practical problems and deal with a variety of concrete variables." See DOT, App'x C ("Components of the Definition Trailer"), § III ("General Educational Development (GED)"), 1991 WL 688702.
Separately, the Commissioner also argues that Henderson is "overly broad" and "appears to conflate the ability to perform detailed instructions" with the DOT's definition of a GED reasoning level of two, which addresses the ability "to carry out detailed but uninvolved instructions." [ECF No. 15 at 8-9]. The undersigned recommends this argument be rejected as merely criticism of the Fourth Circuit's decision and this court's position in prior cases. --------
As explained by the Fourth Circuit previously, in cases involving apparent conflicts, "testimony may only appear to conflict with the [DOT], and the vocational expert may be able to explain that, in fact, no conflict exists." Pearson, 810 F.3d at 209. Yet, "if the ALJ does not elicit this explanation," the VE's testimony "cannot provide substantial evidence to support the ALJ's decision." Id. "An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT]." Id. at 209-10 (citing SSR 00-4p). It may be possible that the VE's testimony does not actually conflict with the DOT's descriptions of ticket taker, toll collector, and an information clerk; however, the undersigned is unable to make that determination because the ALJ failed to recognize the apparent conflict and elicit an explanation from the VE. Instead, the ALJ appears to have relied on the VE's assertion during the hearing that the testimony was consistent with the DOT, Tr. at 61, as the ALJ's decision states that she has determined the VE's testimony was consistent pursuant to SSR 00-4p, Tr. at 37. Without an explanation or independent determination, the ALJ erred in relying on the jobs that the VE identified to meet the burden at the fifth step.
The undersigned further recommends the court reject the Commissioner's argument that no conflict existed due to the VE's identification of jobs with an SVP of two because, as noted in Plaintiff's reply, the Commissioner appears to be confusing SVP with GED reasoning level—two independent vocational considerations. See Pearson v. Comm'r of Soc. Sec. Admin., No. CV 1:16-2726-PMD-SVH, 2017 WL 1378197, at *13 (D.S.C. Mar. 29, 2017), adopted by 2017 WL 1364220 (D.S.C. Apr. 14, 2017) (recognizing the distinction between SVP—"the amount of lapsed time it takes for a typical worker to learn the job's duties"—with GED reasoning level—"the minimal ability a worker needs to complete the job's tasks themselves" (internal citations and quotation marks omitted)). "Because the GED reasoning level is a distinct consideration apart from the SVP, the fact that the VE identified jobs that were consistent with the SVP described in the DOT did not resolve the apparent conflict that was created by his identification of jobs with GED reasoning levels" of two, three, or four, which appear inconsistent with the limitation to "follow short, simple instructions and perform routine tasks" as specified in the assessed RFC. Id. As noted in a previous case, the Commissioner is "comparing apples to oranges," and the undersigned recommends the Commissioner's argument be rejected. Austin v. Berryhill, No. CV 1:17-1797-JMC-SVH, 2018 WL 2392209, at *21 (D.S.C. Apr. 24, 2018), adopted by 2018 WL 2389595 (D.S.C. May 24, 2018).
In light of the foregoing, the undersigned recommends the court find that substantial evidence does not support the ALJ's reliance on the VE's testimony to meet the burden at the fifth step.
2. SSR 12-2p
Plaintiff argues the ALJ did not properly consider her diagnosis of fibromyalgia in accordance with SSR 12-2p. [ECF No. 11 at 22-23]. Specifically, Plaintiff contends the ALJ dismissed her complaints of IBS, granted too much weight to her daily activities, and improperly relied on an absence of objective medical evidence. [ECF No. 11 at 23]. The Commissioner maintains the ALJ's analysis comports with SSR 12-2p's guidance, the ALJ properly found the record was devoid of treatment or diagnosis for IBS, and Plaintiff's statements of fibromyalgia pain were not fully supported by the evidence. [ECF No. 15 at 9-12]. Plaintiff responds the ALJ ignored that Plaintiff was prescribed Dicyclomine for IBS, the Commissioner's arguments are improper post-hoc rationale, and the ALJ inappropriately relied on the lack of objective medical evidence. [ECF No. 22 at 6-7].
A claimant may establish fibromyalgia as a medically determinable impairment through evidence from an acceptable medical source. SSR 12-2p, 2012 WL 3104869, at *2. ALJs should not rely on a physician's diagnosis alone, but should review the evidence to determine if the claimant's medical history and physical examinations are consistent with the diagnosis and with the physician's statements regarding the claimant's physical strength and functional abilities. Id. at *2. A diagnosis of fibromyalgia may be confirmed through either the 1990 American College of Rheumatology ("ACR") Criteria for the Classification of Fibromyalgia ("1990 Criteria") or the 2010 ACR Preliminary Diagnostic Criteria ("2010 Criteria"). Id. at *2.
The 1990 Criteria are as follows:
1) A history of widespread pain—that is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical
spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months. The pain may fluctuate in intensity and may not always be present.
2) At least 11 positive tender points on physical examination . . . The positive tender points must be found bilaterally (on the left and right sides of the body) and both above and below the waist . . .
3) Evidence that other disorders that could cause the symptoms or signs were excluded . . . .
2012 WL 3104869, at *2-3.
To establish a diagnosis under the 2010 Criteria, the claimant must have a history of widespread pain; repeated manifestations of six or more fibromyalgia symptoms, signs, or co-occurring conditions; and evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded. Id. at *3. Fibromyalgia symptoms and signs that may be considered include muscle pain, IBS, fatigue or tiredness, thinking or memory problems, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, depression, pain in the upper abdomen, nausea, nervousness, chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud's phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste, change in taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms. Id. at *3 n.9. Co-occurring conditions include IBS, depression, anxiety disorder, chronic fatigue syndrome, IBS, interstitial cystitis, temporomandibular joint disorder, gastroesophageal reflux disorder, migraine, or restless leg syndrome. Id. at *3 n.10.
If the ALJ determines fibromyalgia to be a medically determinable impairment, she must consider the intensity and persistence of the claimant's pain and other symptoms and determine the extent to which her symptoms limit her capacity for work. Id. at *5. To determine the consistency of the claimant's statements, the ALJ must consider all of the evidence in the case record, including the claimant's daily activities, medications or other treatments, the nature and frequency of the claimant's medical treatment, and statements from others regarding the claimant's symptoms. Id.; see also SSR 16-3p (superseding SSR 96-7p for all decisions issued on or after March 28, 2016, as noted in the Federal Register); 82 Fed. Reg. 49462 n.27, 2017 WL 4790249. Then the ALJ must consider fibromyalgia as part of the five-step sequential evaluation. Id. The ALJ should evaluate the severity of the impairment, whether the impairment medically equals the requirements of a listed impairment, and whether the impairment precludes the claimant's PRW or other work that exists in significant numbers in the national economy. Id.
Plaintiff argues that the ALJ, despite listing fibromyalgia as a severe impairment, failed to properly evaluate this impairment in accordance with SSR 12-2p. Furthermore, Plaintiff contends that the ALJ dismissed Plaintiff's complaints of IBS, weighed her daily activities too heavily, improperly relied on an absence of objective medical evidence, and failed to consider that symptoms may wax and wane. [ECF No. 11 at 22-23]. The Commissioner counters that the ALJ followed SSR 12-2p and discussed Plaintiff's testimony, allegations, treatment records, and the medical opinions in reaching her decision. [ECF No. 15 at 10-11]. The Commissioner asserts that the "ALJ's decision is supported by a substantial gap in treatment, a lack of specialized treatment . . . and evidence that Cymbalta was helpful in controlling Plaintiff's fibromyalgia" so the "ALJ's RFC is supported by overall review of evidence" and the ALJ "fully evaluated the degree of fibromyalgia symptoms by discussing Plaintiff's treatment and daily living activities." [ECF No. 15 at 11-12]. Plaintiff responds that the ALJ actually ignored the diagnosis and treatment for IBS evidenced by Plaintiff's prescription for Dicyclomine to treat the IBS listed in her medical records. [ECF No. 22 at 6 (citing Tr. at 454)]. Moreover, Plaintiff argues that the Commissioner is providing post-hoc rationale by stating the ALJ's decision is supported by a gap in treatment or lack of treatment with a specialist. [ECF No. 22 at 6-7].
The undersigned notes that the ALJ is to consider important information recorded by medical sources, such as the "onset, description of the character and location of the symptoms, . . . and the change over a period of time (e.g. whether worsening, improving, or static)," among other things. SSR 16-3p. "In addition to using all of the evidence to evaluate the intensity, persistence, and limiting effects of an individual's symptoms," the ALJ must consider certain factors: daily activities; the location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate the symptoms; type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain; and other factors. SSR 16-3p (citing 20 C.F.R. § 404.1529(c)(3)); see also SSR 12-2p.
Here, the ALJ determined that Plaintiff's fibromyalgia was a severe medically determinable impairment; however, in proceeding to the next step, the ALJ failed to follow SSR 12-2p, which requires the ALJ to "consider a longitudinal record whenever possible because the symptoms of [fibromyalgia] can wax and wane so that a person may have bad days and good days." SSR 12-2p. In this case, the ALJ's decision appears to be contradicted by the longitudinal record upon which she relied to evaluate Plaintiff's fibromyalgia. Specifically, in her decision, the ALJ references the records received from Plaintiff's primary care provider at Lowry's Family Medicine—Dr. Stone—that are dated September 2013 through November 2015. Tr. at 31. In addition, the ALJ references Plaintiff's visit to Dr. Stone on October 20, 2015, which conveys that, since prescribing Cymbalta for Plaintiff on October 6, 2015, Plaintiff had improved and Cymbalta appeared to be working for Plaintiff's fibromyalgia. Id. Finally, based upon these records, the ALJ concludes that Plaintiff's fibromyalgia was responsive and adequately managed by the medication such that her complaints of pain or incapacitation were not consistent. Id. at 31-32.
However, the more recent medical records reveal that Plaintiff saw Dr. Stone on November 23, 2015—one month later—for a follow-up appointment, and Dr. Stone noted Plaintiff's statements:
Fibromyalgia has been flaring up. . . She is feeling pretty rotten. . . . She denies any trouble with migraine, which seems to be under control with the Cymbalta, although, she is having more and more problems otherwise at present. She said the disc hurts and with fibromyalgia, she just aches. She has been taking some anti-inflammatory Mobic. She thinks that has not really been effective at this point, so she is really hoping we can get something else going at this point.
Tr. at 1178. Dr. Stone's assessment reflects, "Fibromyalgia with flare up" and his plan relays, "I gave her samples of Duexis today for the muscle spasms and myalgia and [I'll] see how that works." Id. In addition, Dr. Stone included a note in his assessment or plan that he prescribed Neurontin for Plaintiff's fibromyalgia. Tr. at 1177. This more recent evidence contradicts the ALJ's conclusion that Plaintiff's fibromyalgia had continued to improve with the use of Cymbalta and disregards SSR 12-2p's instruction to specifically consider that a person with fibromyalgia may have symptoms that wax and wane, as exhibited by the next month's visit to the doctor in the record.
Furthermore, the Commissioner's position that a substantial gap in treatment supports the ALJ's decision is undermined by Plaintiff's subsequent visits to Dr. Stone on October 6, 2015, October 20, 2015, and November 23, 2015, for fibromyalgia treatment. Tr. at 1173-95. Moreover, as noted by Plaintiff, this alleged gap in treatment is an argument raised by the Commissioner and not expressly relied upon by the ALJ in her decision. [ECF No. 22 at 6-7]. "[P]rinciples of agency law limit this Court's ability to affirm based on post hoc rationalizations from the Commissioner's lawyers." Robinson ex rel. M.R. v. Comm'r of Soc Sec., No. 0:07-3521-GRA, 2009 WL 708267, at 12* (D.S.C. 2009). "[R]egardless [of] whether there is enough evidence in the record to support the ALJ's decision, principles of administrative law require the ALJ to rationally articulate the grounds for [her] decision and confine our review to the reasons supplied by the ALJ." Id. (citing Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)). Therefore, the undersigned recommends that the argument be rejected.
Due to the conflict that appears to exist between the ALJ's findings and the medical records, the undersigned is unable to determine if the ALJ properly evaluated Plaintiff's fibromyalgia pursuant to SSR 12-2p or if her RFC assessment failed to adequately consider all of Plaintiff's impairments. In light of the foregoing, the undersigned recommends the court find the ALJ has not adequately shown that she considered Plaintiff's fibromyalgia diagnosis in accordance with SSR 12-2p. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. July 24, 2018
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).