PAIGE J. GOSSETT, Magistrate Judge.
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Patricia Ann Fimiani, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and the case remanded.
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. § 404.1505(a);
20 C.F.R. § 404.1520(a)(4).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A);
In April 2012, Fimiani applied for DIB, alleging disability beginning July 27, 2010. Fimiani's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on December 12, 2013, at which Fimiani, who was represented by James Callahan, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on March 7, 2014 finding that Fimiani was not disabled. (Tr. 16-28.)
Fimiani was born in 1960 and was forty-nine years old on her disability onset date. (Tr. 26.) She has passed a General Educational Development ("GED") test and has past relevant work experience as a janitor. (Tr. 190.) Fimiani alleged disability due to depression, anxiety, panic attacks, insomnia, and fibromyalgia. (Tr. 189.)
In applying the five-step sequential process, the ALJ found that Fimiani had not engaged in substantial gainful activity since July 27, 2010—her alleged onset date. The ALJ also determined that Fimiani's obesity, fibromyalgia, spondylosis in the lumbar spine, hypothyroidism, mild arthritis to the knee, depression, and anxiety were severe impairments. However, the ALJ found that Fimiani did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that Fimiani retained the residual functional capacity to
(Tr. 21.) The ALJ found that Fimiani was unable to perform any past relevant work, but that, considering Fimiani's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Fimiani could perform. Therefore, the ALJ found that Fimiani was not disabled from July 27, 2010—her alleged onset date—through the date of his decision.
Fimiani submitted additional evidence to the Appeals Council, which denied her request for review on July 21, 2015, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-6.) This action followed.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard."
Fimiani raises the following issues for this judicial review:
(Pl.'s Br., ECF No. 16.)
Upon review of Fimiani's allegations of error, the court finds that the cumulative effect of some of these allegations requires remand for further consideration of Fimiani's application.
As an initial matter, the court observes that it is unclear whether the ALJ found that Fimiani was limited to a limited range of light exertional work or medium exertional work. The residual functional capacity assessment in the decision states that the ALJ limited Fimiani to a reduced range of medium exertional work. However, some of the ALJ's subsequent findings are inconsistent with such a residual functional capacity. Specifically, the ALJ found that Fimiani was unable to return to her past relevant work based on the vocational expert's testimony that "the claimant would not be able to perform her past relevant work with the above residual functional capacity." Further, after stating that if Fimiani could perform the full range of medium work, the medical-vocational guidelines would direct a finding of not disabled, the ALJ observed that Fimiani had additional limitations impeding her ability to perform all or substantially all of the requirements of medium work. The ALJ continued, stating "[t]o determine the extent to which [the additional] limitations erode the unskilled medium occupational base, the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity." (Tr. 27.) The ALJ then found that the vocational expert testified that such an individual would be able to perform the requirements of representative occupations such as: storage clerk, tobacco sampler, and coupon clerk. Contrary to these findings, the hearing transcript reflects that when presented with the hypothetical question containing the limitations of a reduced range of medium work, the vocational expert testified that Fimiani could return to her past relevant work as a janitor. Further, when presented with the hypothetical question containing the limitations of a reduced range of light work, the vocational expert testified that Fimiani could not return to her past relevant work as a janitor, but that such a hypothetical individual could perform the requirements of storage clerk, tobacco sampler, and coupon clerk. Fimiani appears to argue that based on the ALJ's other findings, the ALJ intended to find that she was limited to a reduced range of light work despite his repeated statements that she was limited to a reduced range of medium work. The Commissioner appears to argue that the ALJ found Fimiani was limited to a reduced range of medium work and that the finding that she could not return to her past relevant work was the erroneous statement. The Commissioner further argues that such an error was harmless.
Fimiani also raises several issues regarding the ALJ's determination at Step Two of the sequential analysis. At this step, the ALJ found that Fimiani's obesity, fibromyalgia, spondylosis in the lumbar spine, hypothyroidism, mild arthritis to the right knee, depression, and anxiety were severe impairments, but Fimiani's irritable bowel syndrome (IBS), sleep apnea (OSA), tremor, and gastroesophageal reflux disease (GERD) were nonsevere impairments. Fimiani challenges the ALJ's determination that her IBS, tremor, and GERD were nonsevere impairments. She also argues that the ALJ erred in failing to find or even consider whether her alleged bladder frequency was a severe impairment.
With regard to Fimiani's tremor, the ALJ found that Fimiani "has repeatedly reported a tremor, but by her own testimony it is effectively controlled with anti-anxiety medications." (Tr. 19.) Later in the decision, the ALJ also observed that (1) in November 2012 Fimiani's "primary care provider noted she was asymptomatic of her tremor with Xanax . . ." (Tr. 23), (2) in January 2013, Fimiani presented to a neurologist for evaluation of her tremor during which "[m]otor exam disclosed a low amplitude generalized tremulousness of the head, trunk, and extremities, but Dr. Baumgartner stated the etiology of tremor unknown" (
(Tr. 25.) Finally, the ALJ summarized third-party functional statements that mentioned Fimiani's tremors or shakes, which the ALJ appears to have discounted or rejected.
Thus, the ALJ appears to have found that Fimiani's tremor was nonsevere and did not result is any additional limitations in her residual functional capacity based on Fimiani's testimony during the hearing as well as records indicating that her tremor was mild. However, review of the transcript appears to indicate that although Fimiani stated that the Xanax would make the shaking go away, the ALJ does not appear to have considered the quantity of Xanax and its resulting side effects in determining Fimiani's residual functional capacity. Specifically, when questioned by her attorney, Fimiani testified as follows:
(Tr. 44-45.) Since the ALJ found Fimiani's tremor was a nonsevere impairment and did not find any additional limitations were warranted because when Fimiani took her Xanax three times per day the shaking stopped, the court is unable to determine whether Fimiani's ultimate residual functional capacity is supported by substantial evidence as it is unclear whether the ALJ also considered the alleged side effects from taking the Xanax three times a day.
Moreover, the ALJ's decision does not reflect that he considered Fimiani's allegation that her bladder frequency was a distinct severe impairment with specific limitations. Although the Commissioner argues any such error by the ALJ is harmless as he included that Fimiani "should work close to a bathroom to accommodate her symptoms of diarrhea"
Therefore, the court finds that the cumulative impact of the inconsistent findings, of which the parties appear to dispute the correct interpretation; the failure to consider potential additional limitations as a result of finding that with medication Fimiani's tremor is resolved; and the possible failure to consider her alleged bladder frequency, renders the court unable to determine whether the ALJ's decision is supported by substantial evidence or a correct application of the law. Therefore, the court is constrained to recommend that this matter be remanded for further consideration.
Further consideration of these matters may impact Fimiani's remaining issues. Therefore, in light of the court's recommendation that this matter be remanded for further consideration, the court need not address the plaintiff's remaining issues, as they may be rendered moot on remand.
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
