North Carolina Cases September 20, 2022: Sylvester v. Kijakazi

Case Description

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MEMORANDUM AND RECOMMENDATION

BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE

This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-17, -23] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Donte Darrell Sylvester (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”). Both parties submitted memoranda in support of their respective motions. [DE-18, -24]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings [DE-17] be allowed, Defendant's Motion for Judgment on the Pleadings [DE-23] be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.

I. STATEMENT OF THE CASE

Plaintiff protectively filed applications for a period of disability, DIB, and SSI on August 5, 2019,

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alleging disability beginning July 8, 2019. Transcript of Proceedings (“Tr.”) 82-83, 18596. His claims were denied initially. Tr. 62-83, 112-16 (SSI). Plaintiff filed a request for reconsideration (Tr. 117-19), and was denied upon reconsideration on January 27, 2020 (Tr. 84111; 120-28). On March 25, 2020, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 129-30. A hearing before the ALJ was held on September 4, 2020, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 2861. On September 21, 2020, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 12-27.

On November 20, 2020, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 178-84. On January 26, 2021, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.

II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq. , is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen , 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze , 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood , 487 U.S. 552, 565 (1988), it is “more

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than a mere scintilla . . . and somewhat less than a preponderance.” Laws , 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel , 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds , 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. 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).

III. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:

The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.

Albright v. Comm'r of the Soc. Sec. Admin. , 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater , 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the

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claimant can perform. Id.

When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and §§ 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(4), 416.920a(e)(4).

IV. ALJ'S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 23. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since July 8, 2019, the alleged onset date. Tr. 17.

Next, at step two, the ALJ determined Plaintiff had the following severe impairments: back disorder; dysfunction, major joints; osteoarthritis; and obesity. Tr. 17. The ALJ also found Plaintiff had non-severe impairments of: essential hypertension; asthma; and anxiety disorder. Tr. 17-18. However, at step three, the ALJ concluded these impairments both physical and mental, were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 18.

Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in no limitation in understanding, remembering, or applying information; no limitation in interacting with others; no limitation in concentrating, persisting, or

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maintaining pace; and no limitation in adapting or managing oneself. Tr. 18.

Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with the following limitations:

[H]e can lift 15 pounds occasionally and 7 pounds frequently. He can sit 4 hours, stand 2 hours, and walk 2 hours. He can occasionally operate foot controls. He can frequently operate hand controls. He should never kneel or crawl.

Tr. 19. In making this assessment, the ALJ found Plaintiff's statements about his limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 20.

At step four, the ALJ concluded Plaintiff had the RFC to perform the requirements of his past relevant work as a linen room supervisor, as generally performed. Tr. 21. Although the ALJ found that Plaintiff is capable of performsing past relevant work, the ALJ specifically made alternative findings for step five. The ALJ found in the alternative, upon considering Plaintiff's age, education, work experience, and RFC, there are other jobs that exist in significant numbers in the national economy that Plaintiff can also perform. Tr. 22-23.

V. OVERVIEW OF PLAINTIFF'S CONTENTIONS

In this case, Plaintiff alleges the ALJ erred by: (1) failing to find that Plaintiff's condition

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met or equaled medical listing 1.04; (2) finding that the residual functional capacity assessment was at the modified light exertional level; (3) failing to properly assess Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms and their consistency with the medical evidence and other evidence; and (4) failing to accurately set forth all Plaintiff's physical and mental limitations in the hypothetical question posed to the VE. Pl.'s Mem. [DE-18] at 7-8. Each will be discussed below.

VI. DISCUSSION

A. RFC assessment that Plaintiff can perform “light work” with additional limitations

Plaintiff contends that the ALJ erred by finding that Plaintiff's RFC was at the modified light exertional level. Pl.'s Mem. [DE-18] at 7-8, 24. Specifically, at issue is whether the ALJ's RFC assessment is supported by substantial evidence in the record. Id. at 26. Plaintiff argues that it is not, as the evidence of record shows that Plaintiff cannot sit, stand or walk to the extent found by the ALJ. Id. at 24, 26. For the reasons discussed below, the undersigned finds that remand is required for this issue.

“A Social Security claimant's RFC represents ‘the most [he] can still do despite [his] limitations.'” Dowling v. Comm'r of Soc. Sec. Admin. , 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). In assessing an individual's RFC, an ALJ considers that person's “ability to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R. § 404.1545(a)(4). Further, “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.” Shinaberry v. Saul , 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin , 826 F.3d 176, 178 (4th Cir. 2016)).

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“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill , 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Monroe , 826 F.3d at 189 (quoting Mascio v. Colvin , 780 F.3d 632, 636 (4th Cir. 2015)). Indeed, “the ALJ's logical explanation is just as important as the other two [components] . . . and our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas , 916 F.3d at 311 (citing Woods v. Berryhill , 888 F.3d 686, 694 (4th Cir. 2018)). The ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm'r of Soc. Sec. , 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio , 780 F.3d at 637.

Additionally, “[r]emand 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.” McNeill v. Saul , No. 5:20-CV-244-M, 2021 WL 3701348, at *3 (E.D. N.C. June 2, 2021) (alterations in original) (quoting Mascio , 780 F.3d at 636). And while there is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[,]” courts have found remand warranted where the ALJ fails to assess a “contested” function that is “critically relevant to determining [a claimant's] disability status ....” Dowling , 986 F.3d at 388-89 (remanding case where the ALJ failed to evaluate the plaintiff's ability to sit when it was a contested function critical to

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determining the plaintiff's disability status, and stating that the ALJ should have included “an analysis [of plaintiff's ability to sit] that was separate from the ALJ's appraisal of [the plaintiff's] ability to perform other functions, and [this analysis] should have been accompanied by ‘a narrative discussion describing' the evidence supporting it”).

Here, the ALJ found that Plaintiff had the following RFC:

After careful consideration of the entire record, I find that [Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can lift 15 pounds occasionally and 7 pounds frequently. He can sit 4 hours, stand 2 hours, and walk 2 hours. He can occasionally operate foot controls. He can frequently operate hand controls. He should never kneel or crawl.

Tr. 19.

In assessing Plaintiff's RFC, the ALJ here considers several factors, including Plaintiff's treatment history and the medical evidence of record. In particular, the ALJ discusses that Plaintiff had an MRI of his lumbar spine in September 2018, which “revealed a disc herniation and foraminal protrusion, both of which ended in mass effect on nerve roots (Ex. 1F).” Tr. 20. The ALJ also discusses that Plaintiff was treated for back pain, and that records indicate that Plaintiff had a history of back pain that was exacerbated by a recent work-related fall. Tr. 20. However, the ALJ notes that examinations showed that Plaintiff had a normal range of motion and normal gait. Tr. 20. The ALJ further states that “[o]f particular note, there are no treatment records on file from any pain management specialist, which one would expect to see if [Plaintiff's] pain was severe as alleged.” Tr. 20.

As acknowledged by Defendant, the ALJ's finding that Plaintiff did not treat with a pain management specialist appears to be incorrect. See Def.'s Mem. [DE-24] at 14 n.9 (“The ALJ seems to have gotten this wrong, stating that there were no records on file from any pain

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management specialist (Tr. 20). These steroid injections notes suggest otherwise.”). Contrary to this finding, the Transcript contains treatment records from the Sentara Interventional Pain Management Specialists. See, e.g. , Tr. 343-44, 346-52. These records indicate that Plaintiff received additional treatment specifically related to his pain, including at least two epidural steroid injections in early 2019. See, e.g. , Tr. 328-29, 333-52. The treatment records note that “[d]espite conservative therapy , [Plaintiff's] pain is not controlled. Therefore, he is a candidate for spinal injections.” Tr. 338, 348. It is also noted that Plaintiff was scheduled for at least one additional injection, but the procedure was cancelled by Plaintiff because “he has had no pain relief since last injection and was advised to cancel future appointment if he did not receive any relief.” Tr. 329. The ALJ does not consider any of this treatment in assessing Plaintiff's RFC.

By failing to acknowledge Plaintiff's pain management records included in the Transcript, the ALJ here fails to properly “consider all relevant medical evidence ....” Lewis v. Berryhill , 858 F.3d 858, 869 (4th Cir. 2017) ( Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010)) (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.”). While the ALJ does not appear to intentionally “cherrypick” records, the ALJ nevertheless fails to consider relevant records pertaining to Plaintiff's treatment with pain management. The relevance and importance of this evidence is emphasized by the ALJ himself, who appears to afford significant weight to the mistaken belief that Plaintiff did not seek treatment with a pain management specialist. Tr. 20 (stating that Plaintiff's lack of treatment was “ [o]f particular note ”). That is, the ALJ appears to find Plaintiff to be less limited than alleged, specifically due to the fact that Plaintiff did not seek additional treatment to help manage his pain. The undersigned further

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finds that this error is not harmless. If properly considered by the ALJ, this additional evidence may impact the ALJ's RFC analysis and the ALJ may reach a different conclusion as to Plaintiff's RFC.

Therefore, remand is warranted due to the ALJ's failure to consider all relevant evidence in assessing Plaintiff's RFC. While it is ultimately up to the ALJ to weigh the evidence of record, the ALJ must properly consider all pertinent evidence before him. By Defendant's own admission, the ALJ here fails to do so. Accordingly, the undersigned RECOMMENDS this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should make findings and provide sufficient explanation in order to permit meaningful judicial review for substantial evidence, if necessary.

B. Evaluation of Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms

Plaintiff next contends that the ALJ erred by improperly assessing Plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms. Pl.'s Mem. [DE-18] 8, 26. Specifically, at issue is whether the ALJ erred by finding Plaintiff's statements not consistent with the medical and other evidence of record. Id. at 26. Plaintiff argues that the ALJ did err, as the ALJ improperly “cherry picked” facts in evidence that supported his decision and improperly failed to consider Plaintiff's inability to afford treatment. Id. at 27-28. Therefore, Plaintiff argues, the ALJ's finding that Plaintiff's statements are not consistent with the evidence of record is not supported by substantial evidence. Id. at 28. For the reasons discussed below, the undersigned finds that remand is also required for this issue.

The regulations provide “a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill , 858 F.3d 858, 867 (4th Cir. 2017)

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(citing 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c)). As explained by the Fourth Circuit:

First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms. Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities. The second determination requires the ALJ to assess the credibility of the claimant's statements about symptoms and their functional effects.

Id. (citations omitted).

In assessing a claimant's credibility, an ALJ is not required to accept a claimant's statements at face value. Howley v. Colvin , No. 5:12-CV-260-FL, 2013 WL 6184954, at *15 (E.D. N.C. Nov. 14, 2013). Generally, “[a]n ALJ may find a claimant's statements regarding the severity of her symptoms less credible if these statements are inconsistent with the medical evidence in the record and if the ALJ explains how she weighed all of the relevant evidence, including the claimant's statements.” Brooks v. Berryhill , No. 2:16-CV-80-FL(2), 2018 WL 944382, at *4 (E.D. N.C. Jan. 23, 2018) (citing S.S.R. 96-7p, 1996 WL 374186, at *2 (July 2, 1996); Mascio v. Colvin , 780 F.3d at 636-37). However, the ALJ may not discredit a claimant's “statements about the intensity and persistence of [] pain or other symptoms or about the effect [] symptoms have on [their] ability to work solely because the available objective medical evidence does not substantiate [the] statements.” Lewis , 858 F.3d at 866 (citing 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)) (emphasis added). In discrediting a claimant's testimony, an ALJ must be sure to articulate what specific facts discredited the claimant. Lewis , 858 F.3d at 866 (citations omitted); Cobb v. Colvin , 4 F.Supp.3d 786, 790 (E.D. N.C. 2014).

Here, the ALJ's entire discussion of Plaintiff's subjective statements appears as follows:

[Plaintiff] alleges pain, arthritic pain, and obesity-related concerns. After careful consideration of the evidence, I find that [Plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged symptoms;

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however, [Plaintiff'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.

In finding Plaintiff's subjective statements about his impairments and symptoms not entirely consistent with the evidence of record, the ALJ again appears to put significant weight in his mistaken belief that Plaintiff did not treat with a pain management specialist. That is, the ALJ finds that Plaintiff's subjective complaints of pain are not fully consistent with the record specifically due to his belief that Plaintiff did not seek additional treatment to manage his pain. See Tr. 20 (“Of particular note, there are no treatment records on file from any pain management specialist, which one would expect to see if [Plaintiff's] pain was as severe as alleged.”). As discussed above, this is an error. By failing to acknowledge Plaintiff's treatment with a pain management specialist and the fact that Plaintiff received multiple injections to treat his pain, the ALJ fails to properly consider all pertinent evidence when assessing Plaintiff's subjective statements. Were the ALJ to have properly considered this additional treatment, it is possible that the ALJ may have instead found that Plaintiff's statements were consistent with the evidence, and therefore, entitled to additional credibility and weight.

Accordingly, the undersigned RECOMMENDS this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should properly consider all relevant evidence and provide sufficient explanation of her findings in order to permit meaningful judicial review for substantial evidence, if necessary.

C. Evaluation of Disability Listing 1.04

Next, Plaintiff contends that the ALJ erred by failing to find that Plaintiff's condition met

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or medically equaled Listing 1.04. Pl.'s Mem. [DE-18] at 7, 21. Plaintiff acknowledges that the record does not appear to show the existence of all elements of Listing 1.04. Id. at 24. However, Plaintiff “contends that the ALJ failed to fully evaluate the medical equivalence and believes that the constellation of medical findings support a finding of medical equivalence.” Id. Defendant argues that Plaintiff “does not meet or equal Listing 1.04 because, by his own admission, he does not have all the elements required.” Def.'s Mem. [DE-24] at 6. Defendant further argues that Plaintiff cannot show a medical equivalence to Listing 1.04 solely through his subjective allegations of pain, as he tries to do here. Id. at 9.

In light of the above recommendation to remand this case due to the ALJ's failure to consider pertinent medical treatment, the court does not address this argument by Plaintiff. On remand, however, the ALJ should consider Plaintiff's argument here and determine whether Plaintiff meets or medically equals the criteria for Disability Listing 1.04. The ALJ should also consider whether to include additional analysis regarding Disability Listing 1.04 in his written decision, so as to permit meaningful review by the court, if necessary.

D. Hypothetical presented to the VE

Finally, Plaintiff contends that the ALJ erred by failing to accurately set forth all of his physical and mental limitations in the hypothetical question posed to the VE. Pl.'s Mem. [DE-18] at 8, 28. Plaintiff argues that “[t]he ALJ's hypothetical RFC exceeded the limits articulated by [Plaintiff] in his hearing.” Id. at 29. Therefore, the ALJ's determination here is not supported by substantial evidence. Id. Defendant argues that the ALJ's hypothetical presented to the VE here was appropriate and supported by substantial evidence. Def.'s Mem. [DE-24] at 14-16. In particular, Defendant argues that “the law only requires the ALJ to include limitations he found

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credible.” Id. at 14. And, the ALJ here fulfilled this requirement by “put[ting] forth a hypothetical that incorporated all of the limitations he found credible ....” Id. at 15.

Plaintiff's argument here is derivative of the RFC argument addressed directly above, as the hypothetical to the VE included the limitations the ALJ found supported by the record that were imposed in the RFC. Because the ALJ's RFC findings on remand may be substantially different, the undersigned does not address whether the hypothetical presented to the VE is supported by substantial evidence.

VII. CONCLUSION

For the reasons stated above, IT IS RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-17] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-23] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.

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 September 2, 2022 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g. , 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.

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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).