North Carolina Cases July 31, 2023: Woolard v. Kijakazi

Case Description

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MEMORANDUM AND RECOMMENDATION

Robert B. Jones Jr. United States Magistrate Judge

This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-12, -16] pursuant to Fed.R.Civ.P. 12(c). Claimant Cynthia Smith Woolard ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.

I. STATEMENT OF THE CASE

Claimant protectively filed an application for a period of disability and DIB on July 10, 2020, alleging disability beginning June 15, 2015. (R. 16, 228-32). The claim was denied initially and upon reconsideration. (R. 16, 98-128). A telephonic hearing before an Administrative Law Judge ("ALJ") was held on June 28, 2021, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 16, 43-67). On July 21, 2021, the ALJ issued a decision denying Claimant's request for benefits. (R. 13-40). On January 26, 2022, the Appeals Council denied Claimant's request for review. (R. 2-7). Claimant 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 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. Chafer, 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).

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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 under which the ALJ is to evaluate a claim:

The claimant (1) must not be engaged in "substantial gainful activity," 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 to (4) perform . . . past work or (5) any other work.

Albright v. Comm'r of the SSA, 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 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.l 520a(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). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404. l 520a(e)(3).

In this case, Claimant alleges the ALJ erred by (1) finding Claimant had the residual functional capacity ("RFC") to perform light work, (2) finding Claimant's statements were not consistent with the medical and other evidence, and (3) failing to set forth all of Claimant's physical and mental limitations in the hypothetical to the VE. Pl.'s Mem. [DE-13] at 22-27.

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IV. ALJ'S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant did not engage in substantial gainfol activity from the alleged onset date of June 15, 2015 through the date last insured of December 31,2020. (R. 18). Next, the ALJ determined Claimant had the severe impairments of disorders of the back, disorders of muscle, chronic skin infection, obesity, gastritis/duodenitis, and depression and anxiety. Id At step three, the ALJ concluded these impairments 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. (R. 18-25). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 2324).

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

She can lift/carry 20 pounds occasionally and 10 pounds frequently and push/pull as much as she can lift/carry. She can sit for six hours, stand for six hours, and walk for six hours. She can handle items frequently with the right hand. She has fingering limitations frequently with the right hand. She can climb ramps and stairs occasionally; never climb ladders, ropes, or scaffolds; balance occasionally, stoop occasionally, kneel occasionally, crouch occasionally, and crawl occasionally. She can work at unprotected heights occasionally, moving mechanical parts occasionally. She can understand remember and execute instructions sufficiently to perform simple, routine and repetitive tasks but not at a production rate pace (e.g.

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assembly line work); she can use judgment sufficient to make simple work related decisions. She is able to interact with supervisors, coworkers and the public occasionally. As for dealing with changes in in the work setting, she is able to make simple work-related decisions.

(R. 25-32). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical and other evidence in the record. (R. 27). At step four, the ALJ concluded Claimant was unable to perform her past relevant work as an x-ray technician. (R. 32-33). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 33-34).

V. DISCUSSION

A. The RFC Assessment

Claimant contends the ALJ erred in determining she had the RFC to perform a modified range of light work and, in doing so, erred in finding her statements were not consistent with the medical evidence. Pl.'s Mem. [DE-13] at 22-26. Defendant contends the evidence supports the ALJ's RFC determination, and the ALJ properly explained his finding that Claimant's statements were not entirely consistent with other evidence in the record. Def's Mem. [DE-17] at 6-21.

An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description oflimitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also SSR 96-8p, 1996 WL 374184, at *5. "[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or

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restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). The ALJ must provide "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)." Id. (quoting SSR 96-8p); see also CliffOrdv. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").

Federal regulation 20 C.F.R. § 404.1529(a) provides the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. SSR 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate "the intensity and persistence of the claimant's pain[,] and the extent to which it afects her ability to work," Craig, 76 F.3d at 595, including whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.

Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the "intensity, persistence and limiting effects" of the claimant's symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 5956

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96, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must "evaluate whether the statements are consistent with objective medical evidence and the other evidence." SSR 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).

Claimant asserts that she cannot stand or walk for six hours in an eight hour work day; she would have great difficulty bending, stooping, and crouching on an occasional basis; grasping, touching, and gripping makes her pain worse and results in reduced grip strength; and chronic pain and fatigue interfere with her ability to function physically and cognitively on a sustained, consistent, and predictable basis. Pl. 's Mem. [DE-13] at 22-24. Claimant points to evidence that she has a documented history of impairments involving her neck, right shoulder, arm, hand, and fifth finger; low back, hip, and bilateral knee and ankle pain; she has a diagnosis of complex regional pain syndrome and pain described as constant shooting, burning, throbbing, cramping, aching, stinging, and tingling that occurs 80-100% of the time; she is a candidate for right hip surgery that she has delayed; her symptoms are exacerbated by standing, sitting, walking, and postural movements; grasping, touching, and gripping reduces her grip strength; on a good day she can walk for thirty minutes, stand for fifteen minutes, and sit for sixty to ninety minutes; and the side effects from her prescription medications cause drowsiness and dizziness that affect her ability to drive, pay bills, write checks, and maintain household payments. Id. at 24 -26. Claimant argues that her symptoms and functional limitations are supported by the longitudinal record, including the failure of conservative treatments, and the ALJ cherry picked facts supporting a non-disability finding and ignored evidence supportive of disability. Id. at 26.

The ALJ summarized Claimant's testimony at the administrative hearing regarding her

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impairments and limitations, including that she had not driven in a year due to the effects of pain medication that caused drowsiness and dizziness, she was tired all the time, she developed an infection after hand surgery in 2012 that caused significant pain, she dislocated her sacroiliac joint in 2015 and had been unable to return to work, she sleeps a lot during the day and feels unwell, her main activity is getting dressed and watching TV, her husband does chores and they have a house cleaner, and her hand is the worst problem because she cannot manipulate her fifth finger, has pain radiating to her elbow, extreme sensitivity, and weakness that prevents the use of her hand. (R. 26). Claimant also discussed her back problems that limit her ability to sit and stand, and she explained that the muscle relaxers she takes cause forgetfulness such that her husband took over paying the bills. Id. Claimant's depression and anxiety, for which she received treatment, prevent her from socializing or engaging in activities she enjoys. Id. Finally, Claimant testified regarding her immune system deficiency, for which she was attempting to get treatment at Duke Immunology, that causes upper respiratory conditions, swollen joints, fatigue, and nausea, and she had a prior staph infection that reoccurs in the mouth and face and was contagious at the time of the hearing. Id. at 26-27. The ALJ concluded that Claimant's statements concerning the effects of her symptoms were "not entirely consistent with the medical evidence or other evidence in the record" and that she could perform a limited range of light work. Id. at 25, 27. Substantial evidence in the record supports the ALJ's decision.

Claimant indicated her most significant problem was her hand pam, and the ALT acknowledged Claimant's continuing treatment in April 2019 for right upper extremity and hand pain, including several I & D procedures on her fifth finger and a complicating staph infection. (R. 28, 53, 1403-06). The ALJ noted that Claimant sought treatment related to her ongoing right extremity pain on July 10, 2020, and an MRI demonstrated early osteomyelitis, she had an open

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wound with exposed bone in the fifth digit, the radial aspect of the tendon was torn, and there was moderate tendinosis with edema suggesting cellulitis. (R. 29, 1392-95). The treatment note indicates that Claimant was reestablishing care for pain management and was last seen in April 2019, after which she was lost to follow-up due to changes in insurance. (R. 1392). Claimant had been on no medications for chronic pain since late 2019, when her pain had been well managed with tramadol and Keppra. (R. 1392-93). Claimant was restarted on Keppra, which she reported made "a big difference" in her right hand nerve pain. (R. 1395). The ALJ noted that on March 2021, Claimant reported she always had pain in her right hand. (R. 30). However, at a pain management visit on March 18, 2021, Claimant reported that ganglion blocks had been beneficial for her right upper extremity pain in the past and that until a recent exacerbation medications had been very effective in managing her pain, and Claimant received a block on March 29 with good relief of around 40% and another block on May 21. (R. 30, 2580-81, 2635); see Bullock v. Kijakazi, No. 4:20-CV-188-D, 2022 WL 943141, at *10 (E.D. N.C. Feb. 27, 2022) (finding no error in the ALJ's evaluation of claimant's subjective statements regarding her pain where the treatment records demonstrated improvement with treatment), report and recommendation adopted, No. 4:20-CV-188-D, 2022 WL 909357 (E.D. N.C. Mar. 28, 2022). Claimant did not report to her treatment providers the types of extreme limitations in using her hand that she testified to at the administrative hearing. The ALJ limited Claimant to only frequent handling and fingering of the right hand, consistent with the opinions of the state agency medical consultants, (R. 25, 3 I, 111, 124), and the VE testified that even a further limitation to occasional handling and fingering would not preclude employment, (R. 65). The ALJ fully considered Claimant's right upper extremity impairment, and it is not the court's role to "to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ." Hancock v. Astrue,

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667 F.3d 470, 472 (4th Cir. 2012) (citation omitted).

Claimant's assertion that she does not have the ability to stand and walk, perform occasional postural movements, or perform the mental requirements necessary for light work due to her complex regional pain syndrome stemming from hip, low back, knee, and ankle pain is inconsistent with the medical record evidence. The ALJ acknowledged Claimant's treatment for hip pain, a small labral tear, and some borderline ischiofemoral narrowing, as well as her complaints of diffuse joint pain in her cervical spine, hips, knees, ankles, and toes, but noted that x-rays showed minimal findings, her physical examinations were largely unremarkable, and her gait was routinely normal. (R. 28-30, 2416-36). On September 2, 2020, Claimant was seen in follow up for her right hip pain and was noted to be doing well post cortisone injection and was directed to continue her exercises and take anti-inflammatories as needed. (R. 2260). On February 3, 2021 she received another injection for hip pain. (R. 2444-46). The ALJ cited a March 16, 2021 pain management visit at which Claimant reported that her complex regional pain syndrome was well controlled for the most part, which the ALJ found to be "very inconsistent with her testimony." (R. 30, 2564). Claimant also reported her recent hip injection was effective. (R. 258081). Although Claimant testified to medication side effects, (R. 56-57), she reported at her pain management visits that her medications had been effective and did not mention side effects with her current medications, (R. 2580-81). At an April 16, 2021 pain management medication check, Claimant stated that medication was somewhat helpful in managing her pain but "in the past" she had not tolerated some medications, tramadol had been the most well tolerated, and injections were beneficial, so she was continued on her current medications. (R. 2588-91). The pain management treatment notes make no mention of the medication side effects to which Claimant testified at the administrative hearing in June 2021. The ALJ also discussed Claimant's normal mental status

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observations at physical examinations, that she received mental health treatment only through her primary care provider, and that her anxiety and depression were controlled. (R. 30-32, 2562-74). The medical records do not support the degree of limitation in the ability to stand and walk, postural movements, and mental ability reported by Claimant, and the ALJ's decision that Claimant can perform a limited range of light work is supported by substantial evidence.

In sum, the ALJ acknowledged Claimant's complaints of pain and found that she did have some limitations but that the overall record did not support all the limitations to which Claimant testified. The ALJ applied the appropriate framework in evaluating Claimant's statements regarding the limiting effects of her impairments, and the court can trace the ALJ's reasoning, which is supported by substantial evidence. Furthermore, the ALJ did not cherry pick evidence but thoroughly considered the medical evidence, opinion evidence, and Claimant's testimony in formulating the RFC, and the ALJ cited evidence in the record to support the determination that Claimant had the RFC to perform a reduced range of light work. See Ladda v. Berryhill, 749 Fed.Appx. 166, 172 (4th Cir. 2018) (finding no error in the ALJ's RFC determination where the ALJ used evidence from the record to explain his finding that the claimant was capable of light work, explained the weight assigned to statements made by the claimant, and provided a thorough discussion allowing the court to conclude the RFC was supported by substantial evidence). Accordingly, the ALJ did not err in the RFC determination.

B. Hypothetical to the VE

Claimant contends the ALJ erred in failing to include all of Claimant's limitations in the hypothetical to the VE. Pl.'s Mem. [DE-13] at 26-27. This argument is foreclosed by the court's finding that the ALJ's RFC determination was without error.

The ALJ may utilize a VE at steps four and five "to assist the ALJ in determining whether

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there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). For a VE's opinion to be "relevant or helpful," it must be given in response to a proper hypothetical question. Id. A proper hypothetical question "fairly set[s] out all of claimant's impairments" that are supported by the record. Id.; Russell v Barnhart, 58 Fed.Appx. 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question "adequately contemplated all of [claimant's] impairments and resulting limitations" as evidenced by the record). The additional limitations for time off task and absences that Claimant suggests the VE should have considered were not included in the RFC by the ALJ. Claimant's argument here is derivative of the RFC arguments addressed above and is rejected for the same reasons. The hypothetical to the VE included the limitations the ALJ found supported by the record that were ultimately imposed in the RFC. See King v Berryhill, No. 2:17-CV-58-D, 2018 WL 6817036, at *8 (E.D. N.C. Dec. 6, 2018), adopted by 2018 WL 6815651 (E.D. N.C. Dec. 27, 2018). Accordingly, the ALJ's hypothetical to the VE was without error.

VI. CONCLUSION

For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-12] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-16] be ALLOWED, and the final decision of the Commissioner be AFFIRMED.

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 August 14, 2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or 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

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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 by within 14 days of the filing of the objections.

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).