welcome to elawyers.us
Elawyers Elawyers
Ohio| Change
  1. Home
  2. Case Laws
  3. District Court, E.D. North Carolina
  4. 2018
  5. Hobbs v. Berryhill, 5:17-CV-346-D. (2018)

Hobbs v. Berryhill, 5:17-CV-346-D. (2018)

Court: District Court, E.D. North Carolina Number: infdco20180724873 Visitors: 19
Filed: Jul. 05, 2018
Latest Update: Jul. 05, 2018
Summary: MEMORANDUM AND RECOMMENDATION JAMES E. GATES , Magistrate Judge . In this action, plaintiff DeEtta Hobbs ("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. 1 The case is before the court on the parties' motions
More

MEMORANDUM AND RECOMMENDATION

In this action, plaintiff DeEtta Hobbs ("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.1 The case is before the court on the parties' motions for judgment on the pleadings. D.E. 17, 22. Each party filed a memorandum in support of its motion. D.E. 18, 23. 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 19 Mar. 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.

I. BACKGROUND

A. Case History

Plaintiff protectively filed applications for DIB and SSI on 16 January 2014, alleging a disability onset date of 11 November 2013. Transcript of Proceedings ("Tr.") 13. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 13. On 18 July 2016, a hearing was held before an AU, at which the witnesses were plaintiff, who was represented by counsel, and a vocational expert. Tr. 32-62. At the hearing, plaintiff amended her alleged onset date to 2 August 2014. Tr. 13, 36, 518. The ALJ issued a decision denying plaintiff's claims on 31 August 2016. Tr. 13-26.

Plaintiff timely requested review by the Appeals Council and on 16 June 2017, the Appeals Council denied the request for review. 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 Mot. to Proceed In Forma Pauperis ("IFP") (D.E. 3) (12 July 2017); Ord. Allowing IFP Mot. (D.E 6) (17 July 2017); Comp. (D.E. 7) (17 July 2017).

B. Standards for Disability

The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 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).[2] 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).[3] 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.[4] 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).

C. ALJ's Findings

Plaintiff was 48 years old on the alleged onset date of disability and 50 years old on the date of the hearing. Tr. 63, 95. Plaintiff testified that she works part time and attends community college. Tr. 18 ¶ 4; 19 ¶ 5; 38-40. The ALJ found that she has past relevant work as an executive secretary, receptionist, cashier, and property manager. Tr. 25-26 ¶ 6.

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 amended alleged disability onset date. Tr. 15 ¶ 2. At step two, the ALJ found that plaintiff has the severe impairments of multiple sclerosis, spine disorders, and obesity. Tr. 15 ¶ 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. 17 ¶ 4.

The ALJ next found that plaintiff has the RFC to perform a limited range of sedentary work:

After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform less than sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a).[5] She can lift, carry, push and pull 10 pounds occasionally; stand and/or walk two hours in an eight-hour workday; sit six hours in an eight-hour workday; frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; and frequently balance, stoop, kneel, crouch, and crawl. She can never be exposed to unprotected heights and can occasionally be exposed to moving mechanical parts.

Tr. 18-19 ¶ 5.

Based on her determination of plaintiff's RFC, the ALJ found at step four that plaintiff was able to perform her past relevant work as an executive secretary and receptionist. Tr. 25-26 ¶ 6. The ALJ accordingly concluded that plaintiff was not disabled from the amended alleged disability onset date, 2 August 2014, through the date of the decision, 31 August 2016. Tr. 26 ¶ 7.

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); 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 benefits awarded, or that this case should be remanded for a new hearing on the grounds that the ALJ erred in assessing her symptoms; finding her to have the RFC to perform sedentary work; and determining her able to perform past relevant work. Because the issues of the AU's assessment of plaintiff's symptoms and determination of her RFC are dispositive of this appeal, the court will limit its discussion to those issues.

IV. ALJ'S ASSESSMENT OF PLAINTIFF'S SYMPTOMS

A. Applicable Legal Principles

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)6; Craig, 76 F. 3d at 594-95; 20 C.F.R. §§ 404.1529(b), (c)(1), 416.929(b), (c)(1).

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. Analysis

As summarized by the ALJ, plaintiff testified at the hearing that her impairments were disabling:

At the hearing, the claimant testified she was living with her mother until two months ago, and now she lived in the house alone. She stated she weighs 230 pounds, and her weight has gone up. She said she drove 30 to 35 minutes to the hearing and did not have to stop. The claimant testified she usually drives to the store. She stated she goes to the grocery store by herself. She said she goes to church and to class. The claimant testified she started last fall at Nash Community College in business administration and goes two days per week. She stated she drives to the school, which is about five minutes from her house. She said she plans to graduate in 2018, but she is not sure if she will work with her degree. The claimant testified she works part-time at TJ Maxx. She stated she works eight to 12 hours in the fitting room. She said she had been working there about six months (Hearing Testimony). The claimant testified she cannot work regularly due to her mobility. She stated her legs go numb, more on the right, and her extremities are very weak and fatigued. She said she was diagnosed with multiple sclerosis and has had mild flares since 2007. The claimant testified she went to the emergency department when she broke her foot but not for multiple sclerosis. She stated she takes an injection for multiple sclerosis that causes flu-like symptoms. She said she uses a cane and has to move gently and slow. The claimant testified her medications have remained stable. She stated she has vision problems and wears contacts that do not help. She said she had high pressure in her left eye. The claimant testified her mobility is weak with her legs, and she is afraid of driving and walking. She stated when her legs go out, she has to stop. She said she has rheumatoid arthritis in her hands. The claimant testified her writing and speech is really affected (Hearing Testimony). The claimant testified the school is aware of her disability and give[s] her longer for tests and assignments. She stated she sits close to the front of class so she can see. She said she has floaters and blurred vision. The claimant testified she can take care of her personal care needs. She stated she does very light chores, like dusting, vacuuming, washing dishes, and preparing meals. The claimant testified at work, she stands one hour and then sits. She stated she lifts no more than 10 pounds, and if she is lifting more than five pounds, she drops it due to weakness. She said she cannot bend over and has to squat. The claimant testified her hands are bad with writing and holding things. She stated she has disc issues in her lower back and takes a pillow everywhere she goes. She said she had three injections that helped her. The claimant testified she takes gabapentin, which makes her sleepy, Motrin, and Tylenol. She stated her pain is a 7 /10 without pain medications and a 5/10 with pain medications. She said she fell down the steps and broke her foot. The claimant testified she can stand one hour and sit 20 to 30 minutes. She stated she lies down four hours per day and naps during the day. She said she is forgetful. The claimant testified she has a C to B average in school. She stated she gets headaches from her blood pressure. She said she can see large print and sometimes is off balance (Hearing Testimony).

Tr. 19-20 ¶ 5 (emphasis added).

At step one of the evaluation of plaintiff's symptoms, the ALJ found that "the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms." Tr. 20 ¶ 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.

Tr. 20 ¶ 5.

After setting out a summary of the medical evidence, the ALJ explained her assessment of plaintiff's symptoms, as well as her RFC determination, in relevant part as follows:

The undersigned finds that the claimant's multiple sclerosis, spine disorders, and obesity do not preclude all work activity. Dr. Soudan diagnosed the claimant with lumbar spondylosis and right L4 and LS radiculopathy. He gave the claimant lumbar epidural nerve root injections (Ex. IF). In May 2014, the claimant said she had undergone surgical evaluation, but conservative treatment helped her and she decided not to undergo surgery (Ex. 6F). In August 2014, the claimant reported low back pain that radiated into her right thigh, but she said ibuprofen and Neurontin helped. Sensation and motor function was normal. She had normal muscle bulk, tone, and strength. Her gait was normal. EMG/NCV testing in 2012 showed neuropathy. Dr. Baule diagnosed lumbago and lumbrosacral neuropathy. A lumbar MRI on September 15, 2014, revealed moderate multilevel degenerative disc disease with foraminal narrowing (Ex. 13F). In April 2016, the claimant had no spinal tenderness or misalignment. Spine range of motion was normal. Paraspinal muscle tone and strength were within normal limits. She had a normal gait and was able to stand without difficulty. She was able to participate in an exercise program, and physical activity was recommended. In June 2016, the claimant had normal muscle strength, bulk, and tone in the upper and lower extremities. No abnormal movements were noted. Her gait was within normal limits (Ex. 20F). With regard to multiple sclerosis, the claimant has had few significant exacerbations and has done will [sic] on the medication Avonex. In November 2013, an MRI of the brain on October 31, 2013, showed findings consistent with extensive demyelination; however, there was no indication of active lesions. A cervical MRI showed an area of demyelination at C2-3 and a disc herniation at C4-5 (Ex. 2F). In May 2014, the claimant reported Avonex had worked well for her over time. Since 1995, she had only one exacerbation in 2007 that required a high dose of steroids. She had mild numbness in her thighs and legs and felt minimal if any weakness in her right lower extremity. She was able to tandem walk with mild difficulty, as she appeared off balance without a side preference. Dr. Gilani said clinically, the claimant was doing very well. She had minimal weakness and sensory loss in her right lower extremity, which was likely related to her low or lumbar nerve root disease. Otherwise, she had a fairly normal neurological examination (Ex. 6F). In January 2015, the claimant said she had been on Avonex for years, with only three relapses, the last of which was in 2007. The claimant had a normal neurological examination. Motor strength was 5/5 and symmetric throughout, except for 4+ in right hip flexion. Reflexes were 2+ and symmetric bilaterally, with the exception of l+ in the right patella. Her gait was normal. While radiographically, she had an extensive lesion burden, Dr. Hartsell said her multiple sclerosis was clinically doing very well on Avonex, and he recommended continuing Avonex for now (Ex. 14F). In June 2016, the claimant had normal muscle strength, bulk, and tone in the upper and lower extremities. No abnormal movements were noted. Her gait was within normal limits (Ex. 20F). In June 2016, Dr. Quan considered the claimant might be having a multiple sclerosis flare, but the claimant reported being late and missing doses of Avonex. Dr. Quan stressed compliance with her medication (Ex. 21F). The claimant has responded well to conservative treatment with her spine impairment and has responded well to medication for her multiple sclerosis. The limitation to sedentary work with additional postural and environmental restrictions adequately accommodates the claimant's impairments. In conformity with Social Security Ruling 02-1 p, the undersigned considered the effect of the claimant's obesity in conjunction with the claimant's severe physical impairments when developing the [RFC]. In this case, on January 29, 2015, the claimant was five feet, five inches tall and weighed 231 pounds (Ex. 14F). This computes to a body mass index (BMI) of 38.44. Social Security Ruling 02-1p states that the National Institute of Health (NIH) has established clinical guidelines for obesity at Levels I, II, and III. On the above stated date, the claimant's obesity was classified at Level II. As required by Social Security Ruling 02-1 p, the undersigned has taken into account the cumulative effect of obesity, which complicates the effects of chronic diseases of the neurological and musculoskeletal system and exacerbates problems with standing, walking, and performing postural activities. . . . . At the reconsideration[7] level [on 7 August 2014], Pamela Jessup, M.D., stated the claimant could occasionally lift and carry 20 pounds and frequently 10 pounds; stand and/or walk for six hours in an eight-hour workday; sit six hours in an eighthour workday; push and/or pull unlimited other than shown for lift and carry; frequently climbs ramps and stairs; occasionally climb ladders, ropes, and scaffolds; frequently balance, stoop, kneel, crouch, and crawl; and should avoid concentrated exposure to extreme heat and hazards (Ex. 1A, 2A). At the reconsideration level [on 16 October 2014], Jack N. Drummond, M.D., stated the claimant could occasionally lift and carry 20 pounds and frequently 10 pounds; stand and/or walk for six hours in an eight-hour workday; sit six hours in an eight hour workday; push and/or pull unlimited other than shown for lift and carry; frequently climbs ramps and stairs; occasionally climb ladders, ropes, and scaffolds; frequently balance, stoop, kneel, crouch, and crawl; and should avoid concentrated exposure to hazards (Ex. 5A, 6A). The undersigned gives partial weight to the state agency medical consultants' opinions. The undersigned agrees the claimant has postural and environmental limitations but find[s] that restriction to sedentary work is more reasonable, considering the claimant's impairments. The claimant has some sensation deficit and muscle weakness in her lower extremities. In sum, the above [RFC] assessment is supported by the medical evidence of record that shows the claimant's spine disorder has responded well to conservative treatment and her multiple sclerosis has responded well to medication.

Tr. 24-25 ¶ 5.

The court agrees with plaintiff that the ALJ's assessment of her symptoms is deficient with respect to her hand impairments. As indicated, plaintiff testified that her use of her hands is impaired and that she attributes the impairment to rheumatoid arthritis. This testimony was consistent with reports about limitations on use of her hands that plaintiff had previously made to medical providers, as the ALJ's decision indicates. For example, the ALJ noted that at a 6 June 2016 office visit note with Thanh Brooks, F.N.P., plaintiff "reported difficulty writing due to stiffness in her fingers, which had made her college courses more difficult." Tr. 23 ¶ 5; see also Tr. 526. The ALJ also cited a 21 June 2016 visit by plaintiff with Melissa Quan, D.O., of Duke Neurology at which plaintiff reported that she "had poor handwriting due to weakness, numbness, and pain in her hands." Tr. 23 ¶ 5; see also Tr. 532. Similarly, in her 11 February 2014 function report plaintiff indicates that "my hands don't allow me to do my hair," Tr. 267 and her "hands get weak when writing because of the arthritis," Tr. 270.

In her analysis of plaintiff's symptoms, the ALJ does not expressly address plaintiff's use of her hands. However, use of her hands is arguably encompassed by the ALJ's determination that neurological examinations of plaintiff's extremities were normal as long as she stayed on her medication for multiple sclerosis. The implication is that the ALJ rejected completely plaintiff's statements that she has limitations in the use of her hands. This interpretation is ostensibly supported by the ALJ's omission from her RFC determination of any limitations on plaintiff's use of her hands.

One problem with the ALJ's stated analysis is that it is limited to neurological impairments of plaintiff's hands. It does not address impairments possibly resulting from arthritis. Medical evidence of record substantiates plaintiff's statements that she has arthritis in her hands.

For example, a 28 October 2014 office visit note from Jennifer Wells, F.N.P., identifies rheumatoid arthritis not only as one of plaintiff's chronic conditions, Tr. 484, but also as a current diagnosis, Tr. 485. Similarly, in a 2 March 2015 office visit note documenting a complaint of pain in the heel of plaintiff's left hand, F.N.P. Wells identifies rheumatoid arthritis as both a past chronic condition, Tr. 481, and a current diagnosis, Tr. 482. A 2 July 2015 office visit note has similar findings, Tr. 495, 496 and includes a referral to Carolina Arthritis to evaluate and treat rheumatoid arthritis, Tr. 496. In addition, a 6 June 2016 office visit note with F.N.P. Brooks indicates plaintiff's past history with rheumatoid arthritis, Tr. 526; identifies rheumatoid arthritis as a current diagnosis, Tr. 528; and memorializes an order for rheumatoid arthritis factor bloodwork, Tr. 528.

The nonexamining state agency consultants at the initial and reconsideration levels of review, Dr. Jessup and Dr. Drummond, respectively, did not, as indicated, include any manipulative limitations in their physical RFC assessments. See Tr. 71, 74, 86, 89,105, 108, 122, 125.8 They ostensibly did not do so largely on the grounds that plaintiff had no then-current diagnosis of rheumatoid arthritis. See Tr. 72, 74-75, 87, 90, 106, 108, 123, 125.9 Nonetheless, even though giving partial weight to the consultants' assessments, the ALJ did not expressly reference the absence of manipulative limitations in them or the basis for it. Perhaps more significantly, these assessments—completed shortly after the amended alleged disability onset date of 2 August 2014 on 7 August 2014 and 16 October 201/1 do not reflect the subsequent medical evidence discussed documenting plaintiff's diagnosis with rheumatoid arthritis. Therefore, in the absence of a valid explanation to the contrary, these assessments could not properly be relied upon by the ALJ to discredit plaintiff's allegations regarding arthritis-based functional limitations in her hands.

By her failure to adequately address plaintiff's alleged arthritis-based hand limitations, the court is left to speculate as to whether the ALJ considered them in her assessment of plaintiff's symptoms and, if she did so, how she evaluated them. This deficiency precludes meaningful substantial evidence review of the ALJ's assessment and requires remand. Monroe v. Colvin, 826 F.3d 176, 189-91 (4th Cir. 2016).

More fundamentally, the ALJ's ultimate determination regarding plaintiff's statements about her hand limitations—whether based on arthritis or multiple sclerosis—is unclear. While, as discussed, the ALJ's explanation of her assessment of plaintiff's symptoms implies that she discounted entirely plaintiff's statements regarding her hand impairments, ambiguity about the RFC's conclusion arises from the disparity between the ALJ's RFC determination and the hypothetical she posed to the vocational expert that elicited the testimony about plaintiff's past work upon which she relied. Unlike her RFC determination, the ALJ's hypothetical to the vocational expert did include a limitation on plaintiff's use of plaintiff's hands. Specifically, the hypothetical specified that the individual "can frequently use her right dominant hand to handle and to finger." Tr. 57, 59-60. The inclusion of the limitation in the hypothetical suggests that the ALJ was crediting to some degree plaintiff's statements regarding limitations in use of at least her right hand. The omission of any such limitation from the RFC determination suggests, as indicated, that she was rejecting entirely plaintiff's statements. The ALJ nowhere reconciles this apparent inconsistency.

The court recognizes that a person with no limitations on use of her hands (as provided for in the RFC determination) could perform work limited to frequent handling and fingering with the dominant hand (as provided in the hypothetical). Nonetheless, the decision is deficient for failing to explain the manifest inconsistency regarding the assessment of plaintiff's symptoms. The unresolved inconsistency leaves unclear the extent to which the ALJ did, or did not, discount plaintiff's statements regarding her hand limitations and the rationale for whatever conclusion she reached. This deficiency, again, precludes meaningful substantial evidence review of the ALJ's assessment of plaintiff's symptoms. Monroe, 826 F.3d at 189-91. For this additional reason, remand is required. See id.

Independent of the need for remand because of the preclusion of meaningful review, the ALJ's failure to properly assess plaintiff's hand symptoms cannot be considered harmless and requires remand because proper treatment of them could reasonably be expected to result in a different outcome of the case. See Mascio, 780 F.3d at 639-40 (holding that error in the ALJ's failure to properly analyze plaintiff's credibility was not harmless and warranted remand); Garner v. Astrue, 436 F. App'x 224, 226 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). Notably, the past relevant work the ALJ found plaintiff capable of performing— executive secretary and receptionst—require, respectively, frequent handling and fingering, and frequent handling and occasional fingering. See DOT, entry for executive secretary, #169.167-014, 1991 WL 647425; entry for receptionist, #237.367-038, 1991 WL 672192.10 Therefore, if proper consideration of plaintiff's hand impairments established that plaintiff could perform less than frequent handling, she would not be able to perform this past relevant work. Needless to say, if plaintiff's hand impairments were deemed sufficiently limiting, they could erode the occupational base to the point at which there would not be available work she could perform, particularly at the sedentary exertional level where use of the hands and fingers can be particularly important. See Soc. Sec. Ruling 83-10, 1983 WL 31251, at *5 (1983) ("Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.").

V. ALJ'S RFC DETERMINATION

A. Applicable Legal Principles

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). This assessment includes consideration of impairments deemed severe as well as those that are nonsevere. See Monroe, 826 F.3d at 179 ("In determining a claimant's RFC, 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.'" (quoting Mascio at 635); Coniglio v. Berryhill, No. 3:16-CV-847-MR, 2018 WL 1161137, at *3 (W.D.N.C. 5 Mar. 2018) r[I]n assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not "severe." While a `not severe' impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may—when considered with limitations or restrictions due to other impairments—be critical to the outcome of a claim.'" (quoting Soc. Sec. Ruling 96-8p) (emphasis in original)). In sum, 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)). The Mascio court held that a function-by-function analysis is deficient if the ALJ's assessment does not contain an analysis of a claimant's work-related abilities "including the functions listed in the regulations." 780 F.3d at 636 (citing SSR 96-8p). Functions listed in the regulations include a claimant's "physical abilities, `such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping or crouching).' Id. at 636 n.5 (quoting 20 C.F.R. § 416.945(b)-(d)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00120, 2015 WL 4389533, at *3 (W.D.N.C. 17 July 2015) ("Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with SSR 96-8p." (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D.N.C. 26 July 2010))).

B. Analysis

Plaintiff contends that the ALJ erred in assessing her RFC by failing to conduct a proper function-by-function analysis with respect to plaintiff's hand impairments. The court agrees.

One deficiency is the ambiguity previously discussed regarding whether or not the ALJ included a limitation on plaintiff's use of her hands in the RFC determination. While the RFC determination itself indicates that there is no such limitation, the hypothetical to the vocational expert suggests that the ALJ was, in fact, including such a limitation. This unresolved ambiguity precludes meaningful substantial evidence review of the ALJ's RFC determination and alone requires remand. See Mascio, 780 F.3d at 636-37; see also Monroe, 826 F.3d at 189-91.

In addition, there is the ALJ's failure to properly assess plaintiff's statements regarding limitations on the functionality of her hands. This deficiency necessarily taints the ALJ's overall assessment of the functionality of plaintiff's hands because assessment of a claimant's symptoms is an essential component of the RFC assessment. See Mascio, 780 F.3d at 639-40 (citing, e.g., Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2, 5). As previously discussed, proper assessment of plaintiff's hand symptoms could result in a different outcome in this case. This deficiency in the ALJ's RFC assessment is therefore not harmless and itself requires remand. See, e.g., Garner v. Astrue, 436 F. App'x 224,226 n.*

While the function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant, that is not the case here, as discussed above. The ALJ's partial reliance on the consultants' assessments therefore does not salvage the otherwise deficient RFC assessment.

VI. CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 17) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 22) 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). 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, 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 19 July 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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 service of the objections on the responding party.

FootNotes


1. 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. The versions of the regulations and Social Security Rulings cited herein by the undersigned magistrate judge are those in effect at the time of issuance of the Commissioner's decision.
2. See also 20 C.F.R. § 404.1545(a)(1).
3. See also 20 C.F.R. § 404.1545(a)(2).
4. See also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1560(c)(2), 404.929.
5. These regulations describe sedentary work as "involv[ing] lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. §§ 404.1567(a), 416.967(a); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C § IV, def. of "S-Sedentary Work," 1991 WL 688702. "Sedentary 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.
6. 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 26 August 2016, after 28 March 2016, Social Security Ruling 16-3p applies to it.
7. Dr. Jessup actually performed her review at the initial level of review. See Tr. 63, 78.
8. For each level of review, there are, of course, two disability determination explanations, one for DIB and SSI. Each disability determination explanation contains two physical RFC assessments by the same physician. At the initial level, handled by Dr. Jessup, the periods covered are 11 November 2013 to 4 July 2014, and 5 July 2014 to 4 July 2015. See Tr. 70, 73, 85, 88. At the reconsideration level, handled by Dr. Drummond, the periods covered are 11 November 2013 to 4 July 2014, and 5 July 2014 to 16 October 2014. See Tr. 104, 107, 121, 124.
9. The language on this issue used by Dr. Jessup in the initial assessment appearing in the record, which was repeated in the subsequent assessments, reads: 49-y.o. clmt. alleging multiple sclerosis, hypertension, rheumatoid arthritis, and spine pain. During the telephone interview on 7/3/14, clmt. also alleged visual limitations. A review of her medical records, including records from two neurology providers, her former PCP [i.e., primary care provider], two orthopaedists, and a hospital do not show any current diagnosis of RA as clmt. alleges. It does appear in the PMH [i.e., past medical history] section in her records but there have been no abnormal findings reported related to arthritis or RA.

Tr. 72.
10. The physical and other demands for these occupations and the others listed in the DOT are set forth in The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (U.S. Dep't of Labor 1993) ("SCO"). See Soc. Sec. Ruling 83-14, 1983 WL 31254, at *1 (1983). The Westlaw versions of the DOT occupational descriptions cited include the information referenced from the SCO.
Source:  Leagle
Lawyers who claimed
No Lawyers
Citations
5:17-CV-346-D.
Counsels
  • Jonathan Howell Winstead
  • Amanda B. Gilman
Cited By (4)
Similar Cases

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer