MARY GORDON BAKER, Magistrate Judge.
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).
The Plaintiff, Amy Rae Simpson, brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for disability insurance benefits ("DIB") under Title II of the Social Security Act.
Plaintiff was 38 years old on her alleged disability onset date of May 15, 2011. (R. at 21, 32.) Plaintiff claims disability due to, inter alia, degenerative disc disease with spondylosis, osteoarthritis in the shoulders, migraine headaches, depression, anxiety, fibromyalgia, and Raynaud's disease. (R. at 23, 102.) Plaintiff has a college degree and past relevant work as a daycare worker, substitute teacher, and assembly line worker. (R. at 32, 43.)
Plaintiff filed an application for DIB on January 27, 2014. (R. at 21.) Her application was denied initially and on reconsideration. (R. at 21.) After a hearing before an Administrative Law Judge (ALJ) on May 11, 2016, the ALJ issued an unfavorable decision on July 20, 2016. (R. at 21-34.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(R. at 23-34.)
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). "Disability" is defined in the Act 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" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520; see also Brown v. Comm'r, 873 F.3d 251, 254-55 (4th Cir. 2017). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5). He must make a prima facie showing of disability by showing that he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Grant, 699 F.2d at 191; see also Brown, 873 F.3d at 255. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971); 42 U.S.C. § 405(g). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).
Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that the Commissioner's conclusion is rational. 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. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Plaintiff claims the ALJ erred in failing to find her disabled. More specifically, Plaintiff contends the ALJ's "Step 2 determination is not supported by substantial evidence," taking issue with the determination that Plaintiff's "fibromyalgia (`FM') and Raynaud's syndrome (a condition in which areas of the body feel numb under certain circumstances) are not severe impairments." (Dkt. No. 13 at 10.) Plaintiff asserts the ALJ failed to analyze Plaintiff's fibromyalgia pursuant to Social Security Ruling 12-2p and that his conclusion that her fibromyalgia "has been controlled with medication and/or other conservative measures and/or has not resulted in any limitation of her ability for basic-work-related activities is not supported by the medical evidence of record." (Dkt. No. 13 at 11-12.) Additionally, Plaintiff asserts the ALJ's residual functional capacity ("RFC") analysis is not supported by substantial evidence because the ALJ "failed to properly weigh the opinion evidence and reconcile his RFC with the opinions of record." (Dkt. No. 13 at 12-13.) Plaintiff also contends the ALJ "failed to fully and fairly develop the record." (Dkt. No. 13 at 15.)
As noted above, Plaintiff contends the ALJ erred in finding that Plaintiff's fibromyalgia and Raynaud's syndrome are non-severe impairments. (Dkt. No. 13 at 10.)
20 C.F.R. § 404.1522(b). In Evans v. Heckler, 734 F.2d 1012 (4th Cir. 1984), the Fourth Circuit stated, "An impairment can be considered as `not severe' only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Evans, 734 F.2d at 1014 (emphasis in original) (citations omitted).
At the hearing, Plaintiff testified that when her Raynaud's syndrome flares up, "it itches," and "it keeps [her] fingers and [her] toes cold." (R. at 53.) She testified that when it flares up, she has to wear gloves on her hands, even in the house. (R. at 53.) She stated that during a flare up, she would not be able to write with a pen or a pencil. (R. at 53-54.)
Plaintiff has also received extensive treatment for this condition. In January of 2012, Plaintiff saw Dr. Scharstein because, inter alia, her toes were swollen and itching; Plaintiff reported her feet had been "swelling and itching over the last 3 weeks." (R. at 303.) Dr. Scharstein's notes indicate that although there was no pedal edema, she had "some erythema over the tips of the toes which could be early rheumatoid arthritis or Raynauds." (R. at 303.) He noted that Plaintiff "smokes one pack per day" and that he advised Plaintiff to quit smoking. (R. at 304.)
When Plaintiff saw Dr. Scharstein on February 13, 2012, she complained that her "toes [have] been freezing cold to the point where they actually hurt and they are discolored." (R. at 301.) Dr. Scharstein could not "palpate a dorsalis pedis pulse in either foot," and her toes were cool to the touch. (R. at 301.) He ordered art doppler on her lower extremities bilaterally. (R. at 302.) Plaintiff saw Dr. Scharstein again on February 21, 2012; his notes indicate her toes showed "some bluish color consistent with mild ischemia" and that the "skin is intact without ulceration." (R. at 299.) Dr. Sharstein stated in his notes that "Nispan has helped her Raynaud's phenomenon," but Plaintiff "can only take half of one." (R. at 299.) His notes further state (verbatim),
(R. at 299.) She was instructed to stop Adipex-P and begin Procardia. (R. at 299.)
Plaintiff had a multilevel lower extremity evaluation on February 21, 2012. (R. at 470.) Plaintiff's toes were listed as "blue," and the "risk factors" listed as "[c]urrent tobacco use." (R. at 470.) The findings were "diminished flow to toes." (R. at 470.) The "impression" section of the report states, "Normal ankle/brachial indexes, but decreased pressure and wave forms in all digits." (R. at 470.)
When Plaintiff saw Dr. Scharstein on March 14, 2012, his notes indicated that Plaintiff "has multiple problems probably the most emergent one at this point in time i[s] her Raynaud's phenomenon." (R. at 297.) Dr. Scharstein's notes further state, "She has to quit smoking I told her this she has not been successful am reluctant to put her on Chantix but we will go ahead and do it at this point in time because the severity of her Raynaud's is the second worst that I have seen." (R. at 297.) As part of the treatment plan for Plaintiff's Raynaud's syndrome, Dr. Scharstein prescribed Chantix and referred her to a rheumatologist. (R. at 297-98.) When Plaintiff saw Dr. Crickman in June of 2012, Plaintiff was instructed to take Niaspaon daily and to take Procardia orally three times a day when her fingers or toes felt cold. (R. at 341.)
On August 29, 2012, Dr. Scharstein noted that Plaintiff continued to have problems "with her feet and toes being extremely cold and discolored." (R. at 333.) She was instructed to take Procardia three times a day when her fingers or toes feel cold. (R. at 333.) She was prescribed, inter alia, Lyrica and Vicodin; Plaintiff also received injections of Vitamin B12, Depo-Medrol, and Decadron. (R. at 333-35.) In September of 2012, Dr. Scharstein instructed Plaintiff to take Nifedipine by mouth three times a day when her fingers or toes feel cold. (R. at 330-31.)
When Plaintiff saw Dr. Scharstein on October 24, 2012, she Plaintiff "complain[ed] of ongoing pain in her hands and toes." (R. at 327.) She described the pain as a "burning pain" in her fingers and hands. (R. at 327.) Plaintiff indicated that Lyrica "has reduced this discomfort but wears off quickly;" she asked to change her prescription to 150mg four times a day. (R. at 327.) Dr. Scharstein noted that Plaintiff's extremities "reveal 2+ radial and ulnar pulses and 1+ dorsalis pedis pulses bilaterally." (R. at 328.) Plaintiff was instructed to take Nifedipine by mouth three times a day when her fingers or toes feel cold. (R. at 327.) Dr. Scharstein also increased Plaintiff's Lyrica to four times a day. (R. at 327-28.)
On November 21, 2012, Dr. Scharstein's notes indicate Plaintiff "continue[d] to have trouble with Raynauds phenomenon." (R. at 325.) Dr. Scharstein's notes state that Plaintiff's extremities were normal, with no edema, and skin was warm and dry to the touch. (R. at 325.) Among other things, he refilled Plaintiff's Chantix, Vicodin, Zanaflex, Prilosec, and Lyrica; he also gave her injections of Vitamin B12, Depo-Medrol, and Decadron. (R. at 325-26.)
On December 12, 2012, Plaintiff complained of numbness and tingling in her hands, arms, and face. (R. at 357.) She wanted "8/80 and B12," indicating the injections help "a lot." (R. at 357.) Dr. Scharstein refilled Plaintiff's prescriptions for Vicodin, Lyrica, and Cymbalta; he gave her injections of Vitamin B12, Decadron, and Depo-Medrol. (R. at 358.)
Dr. Scharstein's notes dated January 16, 2013 indicate that Plaintiff has not been able to get Chantix. (R. at 354.) His notes further state (verbatim), "Patient has Raynauds phenomenon corticosteroid injections relieve this problem nifedipine and Niaspan have been no help she has significant depression and chronic pain disorder. . . ." (R. at 354.) He ordered a CT of Plaintiff's head and neck and discontinued Niaspan and nifedipine; he gave Plaintiff Vitamin B12, Decadron, and Depo-Medrol injections. (R. at 355.) In June of 2013, Dr. Scharstein noted that Plaintiff's feet "have cyanotic color and toes are cool to [the] touch," but "objective function is normal." (R. at 379.)
Dr. Scharstein's notes from July of 2013 indicate that Plaintiff continued to smoke more than a pack of cigarettes a day and has "significant" Raynaud's phenomenon, as well as depression, recurrent tension headaches, and generalized anxiety. (R. at 374.) Dr. Scharstein noted "mild discoloration in her toes because of her Raynaud's disease." (R. at 374.) He refilled Plaintiff's prescriptions for BusPIRone, Synthroid, Cymbalta, Zanaflax, and Prilosec. (R. at 375-76.) She also received injections of Decadron, Depo-Medrol, and Vitamin B12. (R. at 375.)
In August of 2013, Dr. Scharstein noted that Plaintiff "continue[d] to smoke despite her Raynaud's phenomenon." (R. at 371.) Notes indicate that he talked with Plaintiff about stopping smoking but "she is not interested in quitting." (R. at 371.) He refilled Plaintiff's prescriptions for BusPIRone, Lyrica, Vicodin, and Zanaflax. (R. at 372.) He started Plaintiff on Procardia. (R. at 372.) Plaintiff received injections of Vitamin B12, Decadron, and Depo-Medrol. (R. at 372.)
Dr. Scharstein's notes from September 20, 2013 indicate, inter alia, that Plaintiff "has pretty severe Raynaud's phenomenon." (R. at 368.) Plaintiff's skin was warm and dry to the touch, and normal to inspection. (R. at 369.) He refilled Plaintiff's prescriptions for Lyrica, Vicodin, Zanaflex, and BusPIRone. (R. at 369.) In November of 2013, Dr. Scharstein noted that Plaintiff's skin was warm and dry to the touch; extremities were normal, and fingers were normal temperature. (R. at 363.) He refilled Plaintiff's BusPIRone, Lortab, Zanaflex, Lyrica, and Procardia; he gave Plaintiff injections of Decadron, Depo-Medrol, and Vitamin B12. (R. at 363.)
In December of 2013, Dr. Scharstein's notes indicate Plaintiff's skin was warm and dry to the touch and normal to inspection, though "fingertips are cool at times." (R. at 360.) He noted Plaintiff continued to smoke. (R. at 360.) He refilled prescriptions for Zanaflex, Lortab, and BusPIRone HLC; he gave Plaintiff injections of Decadron, Depo-Medrol, Vitamin B12. (R. at 360-61.) In January of 2014, Dr. Scharstein noted Plaintiff has Raynaud's phenomenon but continues to smoke. (R. at 387.) He also noted Plaintiff's skin is warm and dry to the touch and normal to inspection. (R. at 388.)
Plaintiff saw Dr. Scharstein on February 7, 2014; she said her "leg gave out and she fell [on] Monday." (R. at 383.) Notes state (verbatim), "Patient continues to have multiple complaints it seems as if her main problem is with her depression and anxiety she does have significant Raynauds phenomenon I have told her that she must quit smoking and that the nicotine worsens this situation." (R. at 383.) He noted Plaintiff's fingertips were cold. (R. at 383.) For her leg numbness, Dr. Scharstein ordered a nerve conduction study. (R. at 385.) On February 25, 2014, Plaintiff had a nerve conduction study of both lower extremities and an EMG of the left lower extremity; the results were normal. (R. at 287-92.)
On July 2, 2014, Plaintiff complained to Dr. Scharstein of a "killer" headache and reported feeling "numbness in head and face tingling feet and hands." (R. at 448.) She said that trazodone was not helping. (R. at 448.) Dr. Scharstein stopped Trazodone; he refilled Plaintiff's prescriptions for Lyrica, BusPIRone, Synthroid, Prilosec, and Zanaflex. (R. at 448-49.) Plaintiff received injections of Toradol, Vitamin B 12, Decadron, and Depo-Medrol. (R. at 449.) She complained of numbness in her hands and feet on March 27, 2015. (R. at 591.)
Plaintiff saw Dr. Scharstein on October 27, 2015. (R. at 571.) He noted Plaintiff was chronically depressed but that Wellbutrin "has helped her some." (R. at 571.) He further noted her fingers were cool to the touch without skin changes. (R. at 572.) He refilled Plaintiff's prescriptions for Norco, Lyrica, Procardia XL, and Wellbutrin. (R. at 572-73.) Plaintiff received injections of Decadron, Depo-Medrol, and Vitamin B12. (R. at 572-73.)
On December 23, 2015, Dr. Scharstein noted Plaintiff's "ability to concentrate is mildly impaired." (R. at 699.) He further noted that he told Plaintiff "that her cold fingers and hands are made worse by her tobacco use." (R. at 699.) He refilled Plaintiff's Procardia XL and Norco. (R. at 700.) Plaintiff got injections of Vitamin B12, Decadron, and Depo-Medrol. (R. at 699-700.)
On January 20, 2016, Plaintiff reported to Dr. Scharstein that her legs were really weak, and that she had been dizzy and lightheaded. (R. at 696.) His notes state that Plaintiff was "not interested in quitting smoking" but that he told her if she "wants her Raynauds to get better she has to quit nicotine." (R. at 696-97.) She was given a cane "as needed for walking assistance," and Dr. Scharstein indicated Plaintiff could get a disabled placard/license plate. (R. at 698.) He refilled Plaintiff's Norco and Lyrica. (R. at 697-98.) Plaintiff also received injections of Vitamin B12, Depo-Medrol, and Decadron. (R. at 697-98.)
Plaintiff saw Dr. Scharstein on March 18, 2016. (R. at 688.) She reported sharp pain in the first two fingers of her right hand. (R. at 688.) He noted she was "chronically depressed," and he noted she "continues to feel fatigued and depressed[, and] she continues to struggle with chronic myalgias." (R. at 688.) Dr. Scharstein ordered x-rays of Plaintiff's cervical spine and refilled Plaintiff's prescription for Norco. (R. at 689-90.)
As noted above, the ALJ found that Plaintiff's Raynaud's syndrome was not a severe impairment. (See R. at 23.) In so concluding, the ALJ stated, inter alia,
(R. at 24.)
In the opinion of the undersigned, the ALJ failed to build a logical bridge from the evidence to his conclusion that Plaintiff's Raynaud's syndrome was not a severe impairment. To the extent the ALJ concluded Plaintiff's Raynaud's syndrome was not severe because it was controlled by medication, it appears to the undersigned that the record contains several references to Plaintiff's difficulties with Raynaud's syndrome, even when she was taking the prescribed medications. (See, e.g., 341, 333, 327, 699-700.) To the extent the ALJ concluded Raynaud's syndrome is not severe because it does not limit her ability to perform basic work-related activities, there is evidence that this condition limits Plaintiff's ability to use her hands. Although Plaintiff's diagnosis alone does not mean that her Raynaud's syndrome is a severe impairment, see Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 145 (3d Cir. 2007), the ALJ does not explain why this impairment does not significantly limit Plaintiff's ability to perform "[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling," see 20 C.F.R. § 404.1522(b).
Furthermore, as stated in Walker v. Bowen, 889 F.2d 47 (4th Cir. 1989),
Walker, 889 F.2d at 49-50 (citations omitted); see also 20 C.F.R. § 404.1523(c) ("In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. If we do find a medically severe combination of impairments, we will consider the combined impact of the impairments throughout the disability determination process.").
Even if an ALJ is found to have erred at step two in concluding an impairment is not severe, the error is generally considered harmless if the ALJ considers that impairment at subsequent steps. See Sawyer v. Colvin, 995 F.Supp.2d 496, 509 (D.S.C. 2014); Brown v. Astrue, Civ. A. No. 0:10-cv-01584-RBH, 2012 WL 3716792, at * 6 (D.S.C. Aug. 28, 2012) ("[T]he adequacy requirement of Walker is met if it is clear from the decision as a whole that the Commissioner considered the combined effect of a claimant's impairments."); Thornsberry v. Astrue, Civ. A. No. 4:08-4075-HMH, 2010 WL 146483, at *5 (D.S.C. Jan. 12, 2010) (finding "while the ALJ could have been more explicit in stating that his discussion dealt with the combination of [the plaintiff's] impairments, his overall findings adequately evaluate the combined effect of [the plaintiff's] impairments.").
In the case sub judice, the ALJ's decision states,
(R. at 27.) The ALJ concluded that Plaintiff's Raynaud's syndrome was not a severe impairment, but there is no further discussion of this condition anywhere in the decision. Given the evidence Plaintiff presented with respect to her Raynaud's syndrome, and the fact that the ALJ did not explain how this condition affected Plaintiff's residual functional capacity, the undersigned cannot conclude that the ALJ's decision is supported by substantial evidence. See Kins v. Comm'r of Soc. Sec., Civ. A. No. 3:14-cv-86, 2015 WL 1246286, at *21 (N.D.W. Va. Mar. 17, 2015) (concluding that "substantial evidence does not support the ALJ's finding that Plaintiff's leg impairments were non-severe," where the "ALJ provided little explanation for her finding that Plaintiff's leg impairments were not severe," and (a) "Plaintiff underwent objective medical testing, was seen by neurologists and received medication for her leg impairments," and (b) "the record includes alleged limitations related to Plaintiff's leg impairments, including foot jerking, falling and difficulty with gait, walking and postural imbalance"); Price v. Astrue, Civ. A. No. 5:08-CV-485-FL, 2009 WL 2568194, at *3 (E.D.N.C. Aug. 17, 2007) ("[W]ithout a more detailed analysis as to the impact, if any, that Plaintiff's non-severe impairments have on her RFC, this Court is unable to conclude that the ALJ's decision is supported by substantial evidence."); SSR 96-8p, 1996 WL 374184, at *5 ("In 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."). The undersigned therefore recommends reversing the Commissioner's decision and remanding for further consideration of Plaintiff's Raynaud's syndrome.
Because the Court finds the ALJ's analysis with respect to Plaintiff's Raynaud's syndrome to be a sufficient basis to remand the case to the Commissioner, the undersigned does not specifically address Plaintiff's remaining allegations of error. However, on remand, the Commissioner should consider Plaintiff's allegations that the ALJ (a) erred in failing to analyze Plaintiff's fibromyalgia pursuant to Social Security Ruling 12-2p, (b) erred in failing to "properly weigh the opinion evidence and reconcile his RFC with the opinions of record," and (c) erred in failing to develop the record. (See Dkt. No. 13.)
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. Section 405(g) for further proceedings as set forth above.
IT IS SO RECOMMENDED.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge.
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:
Barksdale, 2014 WL 4052858, at *3 n.2.
