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Updike v. Berryhill

United States District Court, W.D. Virginia, Lynchburg Division

January 29, 2018




         Plaintiff Amy Marie Updike (“Updike”), proceeding pro se, challenges the final decision of the Commissioner of Social security (“Commissioner”) determining that she was not disabled and therefore not eligible for supplemental security income (“SSI”) and disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433, 1381-1383f, Updike asserts that the record does not adequately address her hip impairment. Updike also presented new evidence to the court that she alleges supports her claims for benefits. Dkt. Nos. 13 & 14. I conclude that the ALJ failed to properly account for Updike's moderate impairment with concentration, persistence and pace. Accordingly, I RECOMMEND DENYING the Commissioner's Motion for Summary Judgment, GRANTING Updike's Motion for Summary Judgment and REVERSING and REMANDING this matter for further administrative consideration consistent with this opinion.


         This court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Updike failed to demonstrate that she was disabled under the Act.[2] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations and alterations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         Remand is appropriate if the ALJ's analysis is so deficient that it “frustrate[s] meaningful review.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (noting that “remand is necessary” because the court is “left to guess [at] how the ALJ arrived at his conclusions”); see also Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (emphasizing that the ALJ must “build an accurate and logical bridge from the evidence to his conclusion” and holding that remand was appropriate when the ALJ failed to make “specific findings” about whether the claimant's limitations would cause him to experience his claimed symptoms during work and if so, how often) (citation omitted). In Mascio and Monroe, the court remanded because the ALJ failed to adequately explain how he arrived at conclusions regarding the claimant's RFC. Mascio, 780 F.3d at 636, Monroe, 826 F.3d. at 189. Similarly, I find that remand is appropriate here because the ALJ's opinion leaves the court to guess at how he reached his conclusions regarding Updike's RFC.


         Updike filed applications for SSI and DIB in December 2012, alleging that her disability began on January 15, 2008. R. 227-40. The Commissioner denied the applications at the initial and reconsideration levels of administrative review. R. 85-151. On June 2, 2015, ALJ Brian P. Kilbane held a hearing to consider Updike's disability claim. R. 42-84. Updike was represented by an attorney at the hearing, which included testimony from Updike, her daughter, and vocational expert Jeanie Diehl. Id.

         On July 24, 2015, The ALJ entered his decision analyzing Updike's claim under the familiar five-step process[3] and denying her claim for benefits. R. 12-33. The ALJ found that Updike suffered from the severe impairments of residual status post total hip replacements, urinary tract disorder, obesity, affective disorder, and anxiety disorder. R. 14. The ALJ found that these impairments did not meet or medically equal a listed impairment. R. 15-17. The ALJ found that Updike had the residual functional capacity (“RFC”) to perform sedentary work, except that she can lift and carry 20 pounds occasionally and 10 pounds frequently, frequently balance, occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl and never climb ladders, ropes or scaffolds. R. 17. The ALJ found that Updike should avoid concentrated exposure to extreme cold, wetness, vibration and hazards. The ALJ further found that Updike retained the ability to perform simple, unskilled work on a sustained basis in a competitive work environment. Id. The ALJ determined that Updike could not perform her past relevant work as a weaving inspector, fast food services manager, personnel clerk, office clerk, customer service representative, general house worker, or department manager. R. 31. However, the ALJ determined that Updike could work at jobs that exist in significant numbers in the national economy, such as order clerk, charge account clerk and document preparer. R. 32. Thus, the ALJ concluded that she was not disabled. On October 6, 2016, the Appeals Council denied Updike's request for review (R. 1-3), and this appeal followed.


         On appeal, Updike, acting pro se, filed a brief alleging that she requested a consultative examination by an agency doctor but was denied, and further that her physicians do not understand why she doesn't receive disability.[4] Dkt. No. 13. I liberally construe her brief to argue that the ALJ's decision is not supported by substantial evidence.[5] Having reviewed the ALJ's decision for substantial evidence, I conclude that the ALJ failed to properly account for Updike's moderate impairments in concentration, persistence and pace, which requires remand.

         Updike has congenital hip dysplasia, and has undergone multiple surgeries on her hip, culminating in a hip replacement in May 2008. R. 18. Updike also suffers from back pain, which she relates to complications from her hip replacement surgery. Id. The ALJ reviewed Updike's considerable medical treatment in detail. R. 20-29. The ALJ also reviewed the testimony of Updike and her daughter as to her limitations and found that her medically determinable impairments could reasonably be expected to cause some of her alleged symptoms, but that their statements concerning the intensity, persistence and limiting effects of those symptoms are not entirely credible. R. 20. Specifically, the ALJ noted that Updike's physical examinations did not reveal significant neurological deficits or decreased strength or range of motion. R. 20. The objective findings with regard to Updike's complaints of pain in her hip and back have been sporadic, and she generally had normal strength, sensation and range of motion. Id. The ALJ noted that medications generally controlled Updike's symptoms and that physical therapy helped considerably in March 2009. Id.

         The ALJ generally adopted the opinions of the state agency reviewing physicians in the record that Updike was capable of performing a range of sedentary work, finding them to be consistent with Updike's treatment notes and imagery and testing results. R. 30. There are no other physician opinions in the record with regard to Updike's physical limitations. Having reviewed the record, I find that substantial evidence supports the ALJ's determination that Updike is capable of performing a range of sedentary work.

         The ALJ also reviewed Updike's mental health treatment in detail. R. 20-29. Updike was diagnosed with depression, bipolar disorder, anxiety disorder, and has been hospitalized twice for her mental conditions. Id. At step three of his analysis, the ALJ determined that the severity of Updike's mental impairments did not meet or equal the criteria of one of the listed impairments. R. 15. Specifically, the ALJ found that Updike had a mild restriction with activities of daily living and social functioning. R. 16. He determined that Updike had a moderate impairment with concentration, persistence or pace, noting that she reported problems with memory, completing tasks, concentration and following instructions. R. 17, 64.

         At step four of his decision, the ALJ reviewed Updike's mental health treatment records, which included complaints of depression, suicidal ideation, fatigue, panic attacks, anxiety and poor concentration. R. 23. Notably, in October, 2013, Updike was also diagnosed with “ADHD predominantly ...

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