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Lois J. v. Commissioner of Social Security

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

February 5, 2019

LOIS J., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT & RECOMMENDATION

          JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 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), 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)).

         “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). 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), 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).[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 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.

         ALJ 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.”[2] 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.

         III. Discussion

         Lois 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, [3] 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).

         Lois J. 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.[4] 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 persuasive.

         A. Summary

         Lois J. 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.

         Lois J. 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.

         Lois J. 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 for ...


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