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Patricia C. v. Berryhill

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

January 2, 2019

PATRICIA C., Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          REPORT & RECOMMENDATION

          Joel C. Hoppe United States Magistrate Judge.

         Plaintiff Patricia C. asks this Court to review the Acting Commissioner of Social Security's (“Commissioner”) final decision denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434. The case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 11. Having considered the administrative record, the parties' briefs, and the applicable law, I cannot find that substantial evidence supports the Commissioner's denial of benefits. Accordingly, I recommend that the presiding District Judge reverse the decision and remand the matter for further proceedings.

         I. Standard of Review

         The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. 42 U.S.C. § 405(g); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, a court reviewing the merits of the Commissioner's final decision asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); see Riley v. Apfel, 88 F.Supp.2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98-100 (1991)).

         “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). Ultimately, this Court must affirm the ALJ's factual findings if “conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         A person is “disabled” within the meaning of the Act if he or she is unable 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 12 months.” 42 U.S.C. § 423(d)(1)(A). Social Security ALJs follow a five-step process to determine whether a claimant is disabled. The ALJ asks, in sequence, whether the claimant (1) is working; (2) has a severe impairment that satisfies the Act's duration requirement; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017); 20 C.F.R. § 404.1520(a)(4).[1] The claimant bears the burden of proof through step four. Lewis, 858 F.3d at 861. At step five, the burden shifts to the agency to prove that the claimant is not disabled. See id.

         II. Procedural History

         In November 2013, Patricia C. filed for DIB claiming that she had been unable to work for the past month because of anxiety and severe depression, sleep apnea, diabetes, neuropathy, and hypertension. See Administrative Record (“R.”) 78, 177-80, ECF No. 18-1. Disability Determination Services (“DDS”), the state agency, denied her claim initially in June 2014, R. 78-88, and upon reconsideration that October, R. 89-105. On May 18, 2016, Patricia C. appeared with counsel and testified at an administrative hearing before ALJ Brian Kilbane. See R. 40-71. A vocational expert (“VE”) also testified at this hearing. R. 63-70.

         ALJ Kilbane issued an unfavorable decision on July 27, 2016. R. 20-35. He found that Patricia C.'s diabetes mellitus, affective disorder, and attention deficit disorder (“ADD”) were “severe” medical impairments, but that her “history of essential hypertension and peripheral neuropathy” were nonsevere impairments because the record did “not show these conditions [could not] be controlled with proper medication use, [were] more than acute symptoms, or result[ed] in more than minimal work-related limitations.” R. 22. At step three, ALJ Kilbane found that none of Patricia C.'s severe impairments met or medically equaled the relevant Listings. R. 22-25. As part of this assessment, he also found that Patricia C.'s severe mental impairments caused “moderate restriction” in her activities of daily living (“ADLs”); “marked difficulties” with social functioning; “moderate difficulties” maintaining concentration, persistence, or pace; and one brief “episode of decompensation” related to a psychiatric hospitalization in October 2013. See Id. (citing R. 203-10, 231, 272-76).

         ALJ Kilbane then evaluated Patricia C.'s residual functional capacity (“RFC”) based on all of her impairments. See R. 25-33. He found she could perform “a range of medium work”[2]that involved at most “occasional” climbing of ladders, ropes, and scaffolds, and “frequent” stooping, kneeling, crouching, crawling, and climbing ramps/stairs. R. 25. She also could “perform simple, unskilled work on a sustained basis in a competitive work environment where there [was] no more than occasional interaction with the general public” and “maintain her concentration, persistence, and pace for 2 hours before taking a break, and she [could] do that repeatedly to complete an 8-hour workday.” Id. These mental limitations ruled out Patricia C.'s return to her past work as a nurse and medical case manager. See R. 33-34, 64-65. Finally, based on this RFC finding and the VE's testimony, ALJ Kilbane concluded that Patricia C. was not disabled after October 2013 because she still could perform certain medium, unskilled occupations that represented a significant number of jobs available both nationwide and in Virginia. See R. 34-35, 64-66.

         When Patricia C. asked the Appeals Council to review ALJ Kilbane's decision, she also submitted a March 31, 2016 treatment note from podiatrist Nathan Young, N.P.D., documenting “generalized soreness to touch” with “diminished” proprioception, sensation, and protective threshold on examination of her feet. See R. 2 (citing R. 72-77). The Appeals Council appears to have accepted Dr. Young's examination note as “additional evidence” related to the period at issue, see R. 2, 8-9 (citing 20 C.F.R. § 404.970 (2017)), but concluded that the information did “not show a reasonable probability that it would change the outcome of the [ALJ's] decision, ” R. 2. See 20 C.F.R. § 404.970(a)(5), (c) (2017). Therefore, the Appeals Council “did not consider and exhibit this evidence, ” R. 2, in determining whether to grant or deny Patricia C.'s request for review.[3] See R. 1-2, 8-9; 20 C.F.R. § 404.970(a)(5), (b) (2017). The Appeals Council ultimately declined to review ALJ Kilbane's decision, R. 1-5, and this appeal followed.

         III. Discussion

         Patricia C.'s arguments on appeal generally impugn the ALJ's RFC assessment. See generally Pl.'s Br. 13-21, ECF No. 22. A claimant's RFC represents her “maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis” despite her medical impairments, including those that are not severe. SSR 96-8p, 1996 WL 374184, at *2, *5 (July 2, 1996) (emphasis omitted); see 20 C.F.R. § 404.1545. It is a factual finding “made by the Commissioner based on all the relevant evidence in the [claimant's] record, ” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230-31 (4th Cir. 2011) (per curiam), and it must reflect the combined functionally limiting effects of impairments that are supported by the medical evidence or the claimant's credible reports of pain or other symptoms, see Mascio v. Colvin, 780 F.3d 632, 638-40 (4th Cir. 2015). “This RFC assessment is a holistic and fact-specific evaluation, ” Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017), which must reasonably account for any functional limitations the ALJ identified at steps two or three of his decision, see Mascio, 780 F.3d at 638-39 (step three); Ashcraft v. Colvin, No. 3:13cv417, 2015 WL 9304561, at *8-10 (W.D. N.C. Dec. 21, 2015) (step two). The ALJ's written decision must also “include a narrative discussion describing” how specific medical facts and nonmedical evidence “support[] each conclusion” in the RFC assessment, Mascio, 780 F.3d at 636, and explaining why he discounted any “obviously probative” evidence, Arnold v. Sec'y of Health, Educ. & Welfare, 567 F.2d 258, 259 (4th Cir. 1977), that supported the individual's claim for disability benefits, Ezzell v. Berryhill, 688 Fed.Appx. 199, 200 (4th Cir. 2017).

         A. Summary

         Patricia C. alleged disability from both physical and mental impairments. As for her physical impairments, Patricia C. and her treating endocrinologist, Carl Bivens, M.D., contended that uncontrolled diabetes and painful neuropathy in both feet prevented her from lifting/carrying more than about ten pounds and standing/walking for more than fifteen minutes at one time. See R. 51, 53, 55, 208, 513-14, 518-19. Dr. Bivens attributed these limitations to “neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dexterous movements, or gait and station.” See R. 513. At the administrative hearing, Patricia C. testified that her feet hurt all day and it felt like she was “walking on bumblebees” whenever she stayed on her feet “for a while.” R. 52. Luc Vinh, M.D., and Lewis Singer, M.D., the DDS physicians who reviewed Patricia C.'s records in June and October 2014, respectively, agreed that her exertional capacities were “[l]imited due to diabetes with most recent A1C of 7.4, ”[4] but opined that she could still lift/carry up to 50 pounds, frequently lift/carry 25 pounds, and stand/walk for about six hours during a normal eight-hour workday. R. 84-85, 98-99.

         As for her mental impairments, Patricia C. and her treating psychiatrist, Conrad Daum, M.D., asserted that ADD and bipolar disorder with depression and obsessive-compulsive tendencies caused “moderate” to “extreme” limitations in her abilities to remember information and follow simple instructions, maintain attention and concentration, and stay on task long enough to complete simple tasks. See R. 46-50, 94, 208-09, 510-12, 515-17. Patricia C. testified that she was depressed every day, but two or three days a month she suffered from more severe unpredictable “depressive episodes” that lasted three or four days at a time. R. 47. Sandra Francis, Psy. D., the DDS psychologist who reviewed Patricia C.'s records in October 2014, opined that her severe ADD and depression caused “moderate” limitations in her abilities to “remember locations and work-like procedures, ” complete tasks within a schedule and maintain acceptable attendance, maintain attention and concentration for extended periods, sustain an ordinary routine without special supervision, work with or around other people without being distracted by them, and “complete a normal workday and workweek without interruption from psychologically based symptoms and to perform [tasks] at a consistent pace without an unreasonable number or length of breaks.” R. 100-01 (citing R. 94).[5] Dr. Francis based this detailed functional assessment on Patricia C.'s own description of her “mental ADLs” in September 2014, see id., including that she had “great difficulty remembering” to take her medications, she could “only pay attention for about 10-15 minutes, ” she was easily “overwhelmed” by basic household chores, and she often got “lost while driving a very familiar route, ” R. 94. See, e.g., R. 100 (“Explain in narrative form the presence and degree of specific understanding and memory capacities and/or limitations: (see mental ADLs)”). Ultimately, Dr. Francis concluded that Patricia C. could “perform unskilled work with limited public contact, ” “adjust to a work situation, ” and “interact with supervisors and co-workers in a work setting.” R. 102.

         B. The ...


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