United States District Court, W.D. Virginia, Danville Division
REPORT & RECOMMENDATION
C. HOPPE UNITED STATES MAGISTRATE JUDGE
Lois J. asks this Court to review the Acting Commissioner of
Social Security's (“Commissioner”) final
decision denying her applications for disability insurance
benefits (“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act (the “Act”), 42 U.S.C. §§
401-434, 1381-1383f. The case is before me by referral under
28 U.S.C. § 636(b)(1)(B). ECF No. 16. 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
Standard of Review
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), 1383(c)(3); 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)).
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). 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).
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),
1382c(a)(3)(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), 416.920(a)(4). 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.
August 2013, Lois J. filed for DIB and SSI alleging that she
had been unable to work since May 2012 because of diabetes,
high blood pressure, obesity and lap-band surgery, back pain
and muscle spasms, and problems with her knees and ankles.
See Administrative Record (“R.”) 40,
88-89, 96-97, 206-07, 208-14, ECF No. 9-1. Disability
Determination Services (“DDS”), the state agency,
denied her claims initially in January 2014, R. 88-105, and
upon reconsideration that September, R. 106-29. On February
17, 2016, Lois J. appeared with counsel and testified at an
administrative hearing before ALJ William Barto. See
R. 59-87. A vocational expert (“VE”) also
testified at this hearing. R. 78-85.
Barto issued an unfavorable decision on March 18, 2016. R.
40-53. He found that Lois J. had severe medical impairments
of “obesity, right lower extremity knee with advanced
tricompartment[al] degenerative changes, mild degenerative
changes in the hip, and degenerative disc disease in the
lower back.” R. 42. None of these impairments, alone or
combined, met or medically equaled the relevant
musculoskeletal Listings. R. 43-44. ALJ Barto then evaluated
Lois J.'s residual functional capacity
(“RFC”) and found that she could “perform a
range of light work” as defined in the regulations,
“except she [could] stand and/or walk for up to two
hours daily [and] must change positions between sitting and
standing at will.” R. 44. She also could
“occasionally climb ramps/stairs, balance, stoop,
kneel, couch, and crawl” and “frequently reach,
handle, finger, and feel” with either upper extremity,
but never “climb ladders/ropes/scaffolds or
[tolerate] exposure to workplace hazards.” Id.
(punctuation corrected). Based on this RFC finding and the
VE's testimony, ALJ Barto concluded at step five that
Lois J. was not disabled after May 2012 because she could
perform representative occupations offering a significant
number of jobs in the economy, such as credit card
interviewer, appointment clerk, or addresser. R. 52;
see R. 80-85. The Appeals Council declined to review
the ALJ's decision, R. 1-6, and this appeal followed.
J.'s arguments on appeal challenge ALJ Barto's RFC
determination. See generally Pl.'s Br. 4-13, ECF
No. 19. 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. SSR 96-8p, 1996
WL 374184, at *2 (emphasis omitted); see 20 C.F.R.
§§ 404.1545, 416.945. 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 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
account for any functional limitations the ALJ identified at
steps two or three of his decision, see Mascio, 780
F.3d at 638-39; Ashcraft v. Colvin, No. 3:13cv417,
2015 WL 9304561, at *8-10 (W.D. N.C. Dec. 21, 2015). The
ALJ's 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).
broadly argues that ALJ Barto's RFC assessment did not
include a narrative discussion describing how specific
medical facts or other credited evidence supported his
conclusions about her physical abilities. She further argues
that the ALJ's reasons for discounting her subjective
statements alleging even more severe pain-related limitations
than those ALJ Barto identified were not supported by
substantial evidence in the record. See Pl.'s Br.
3-13. In making both arguments, Lois J. points out several
examples where ALJ Barto appears to have cherrypicked
evidence from the medical reports to support his RFC finding,
while minimizing or overlooking evidence that bolstered Lois
J.'s subjective allegations. These objections are
worked full-time as a manager at a fast-food restaurant from
November 1987 until May 2012. R. 231. She spent most workdays
standing and walking on concrete and unloading boxes from a
delivery truck. See R. 232, 358. Eventually she
developed severe pain in her lower back and both knees, R.
71, 78, 358, 373, which was exacerbated by her morbid
obesity, see R. 235-36, 327, 419. In May 2010, Lois
J. had gastric bypass (lap-band) surgery because she weighed
almost 500 pounds. See R. 327, 419. She lost about
80 pounds after surgery, but she still struggled to control
her weight and chronic joint pain. See R. 327, 358,
388. In May 2012, Lois J. left her job “by mutual
agreement” because she was spending too much time
sitting down trying to relieve her knee pain. R. 71;
see R. 327, 358, 373.
received her routine healthcare from family nurse
practitioners (“FNP”) at Piedmont Access to
Health Services (“PATHS”) Community Medical
Center. See R. 110-11, 122, 233, 235, 276-78, 287.
On August 2, 2013, she saw Judy Broughton, FNP, with
complaints of joint pain related to obesity and
osteoarthritis. R. 327-30. Lois J. was “morbidly
obese” at 415 pounds (BMI 59.5), but the rest of her
physical examination was normal. R. 327-28; see R.
45. FNP Broughton administered two therapeutic injections
(Solumedrol, Toradol) and gave Lois J. a sample of topical
pain-relief cream to use three times daily. See R.
328-29. She also wrote a prescription for Lortab, which Lois
J could take “sparingly” as needed for pain.
Id. On August 16, Lois J. reported that “the
cream and shots . . . ha[d] not helped” her back and
knee pain. R. 324. The Lortab helped at night, but she was
“willing to try any meds” to manage her pain
during the day. Id. Other than Lois J.'s weight
(402 lbs.) and BMI (57.6), relevant findings on that
date's physical examination were unremarkable.
Id.; see R. 45. FNP Broughton told Lois J.
to continue using Lortab “sparingly” and
prescribed Neurontin three times daily for pain. R. 325. An
X-ray of the right knee taken in September 2013 showed
“advanced tricompartmental degenerative changes,
” but no fracture or dislocation. R. 321. On November
14, Lois J. saw Elizabeth Pickeral, FNP, to evaluate
increasing back pain and muscle spasms. R. 341. She reported
using Lortab as prescribed, but explained that she had to
ration the Neurontin because it was “too
expensive” to use every day. Id. On exam, FNP
Pickeral noted that Lois J. was “morbidly obese”
at 408 pounds; walked with a slow, steady gait; got
“on/off [the] exam table slowly”; and endorsed
tenderness to palpation of the right lower back. Id.
returned to PATHS every few months throughout the relevant
period. R. 343-47 (Feb. 2014); R. 387-91 (Aug. 2014); R.
380-84 (Oct. 2014); R. 427-29 (Jan. 2015); R. 423-26 (Apr.
2015); R. 433-36 (Aug. 2015). In February 2014, Lois J.
reported that her conditions kept her “somewhat
housebound.” R. 343. FNP Broughton explained that their
“goal [was] to decrease [Lois J.'s] pain to [a]
functional level, ” but that Lois J. should
“expect good days and bad days” because treatment
“will never totally remove [the] pain.” R. 345.
Lois J. consistently reported lower back and bilateral knee
pain that was worse when sitting, standing, or walking, and
had not satisfactorily responded to repeated injections and
various combinations of prescription pain medications and
muscle relaxants. See, e.g., R. 388-90 (Aug. 2014);
R. 423 (Apr. 2015), 427-29 (Jan. 2015). FNP Broughton's
exam notes generally show that Lois J. was morbidly obese,
but otherwise had normal extremities; full range of motion in
the back, albeit with occasional tenderness on palpation of
the spine; and full muscle strength throughout. R. 383-84,
388, 424, 434. But see R. 343-44 (noting that Lois
J. could not get on the exam table and had crepitus in both
knees, paravertebral discomfort and spasms on palpation of
the back, and “limited” range of motion in the
spine secondary to morbid obesity (Feb. 2014)); R. 424
(noting “mild edema, crepitus, and painful” range
of motion in both knees (Apr. 2015)). Lois J. weighed between
398 and 418.5 pounds (BMI 51.1 to 60.0) on these visits.
See R. 380, 383, 387-88, 423, 427-28, 433-35. In
January 2015, Lois J. reported that her right hip had hurt