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Davis v. Saul

United States District Court, E.D. Virginia, Richmond Division

June 25, 2019

ASHLEY NICOLE DAVIS, Plaintiff,
v.
ANDREW M. SAUL, [1] Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK UNITED STATES MAGISTRATE JUDGE.

         On July 29, 2014, Ashley Nicole Davis ("Plaintiff) applied for Social Security Disability Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"), alleging disability from narcolepsy with cataplexy, neurocardiogenic syncope, anxiety, panic disorder and bipolar effective disorder, with an alleged onset date of June 28, 2014. The Social Security Administration ("SSA") denied Plaintiffs claims both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claims in a written decision and the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner.

         Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred in: (1) failing to consider whether Plaintiffs impairments met or medically equaled the criteria of Listing 11.03; (2) assigning "little weight" to the opinion of Plaintiffs treating physician, Rakesh Sood, M.D.; and, (3) failing to account for Plaintiffs moderate limitations in concentration, persistence and pace in Plaintiffs Residual Functional Capacity ("RFC") assessment. (Mem. in Support of Pl.'s Mot. For Summ. J. ("Pl.'s Mem.") (ECF No. 13) at 5, 8, 10.) This matter now comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on the parties' cross-motions for summary judgment, rendering the matter ripe for review.[2] For the reasons that follow, the Court recommends that Plaintiffs Motion for Summary Judgment or, in the Alternative, Motion for Remand (ECF No. 12) be DENIED, that Defendant's Motion for Summary Judgment (ECF No. 15) be GRANTED and that the final decision of the Commissioner be AFFIRMED.

         I. PROCEDURAL HISTORY

         On July 29, 2014, Plaintiff filed applications for DIB and SSI with an alleged onset date of June 28, 2014. (R. at 83, 93.) The SSA denied these claims initially on September 24, 2014, and again upon reconsideration on December 23, 2014. (R. at 86, 91, 112, 123.) At Plaintiffs written request, the ALJ held a hearing on September 28, 2016. (R. at 37.) Following the submission of additional medical interrogatories on December 29, 2016, the ALJ held a supplemental hearing on May 12, 2017. (R. at 63-81.) During the supplemental hearing, Plaintiffs counsel alerted the ALJ that Plaintiff recently attended an appointment with her treating physician; however, the ALJ never received the medical record for this appointment. (R. at 15-16, 64-67.) On June 27, 2017, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because "considering [Plaintiffs] age, education, work experience, and residual functional capacity, [Plaintiff could make] a successful adjustment to other work that exists in significant numbers in the national economy." (R. at 29.) On May 24, 2018, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner subject to review by this Court. (R. at 1-5.)

         II. STANDARD OF REVIEW

         In reviewing the Commissioner's decision to deny benefits, a court "will affirm the Social Security Administration's disability determination 'when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.'" Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial evidence requires more than a scintilla but less than a preponderance, and includes the kind of relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Indeed, "the substantial evidence standard 'presupposes ... a zone of choice within which the decision makers can go either way, without interference by the courts. An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.'" Dunn v. Colvin, 607 Fed.Appx. 264, 274 (4th Cir. 2015) (quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988)).

         To determine whether substantial evidence exists, the court must examine the record as a whole, but may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1157 (2019) (holding that the substantial-evidence inquiry requires case-by-case consideration, with deference to the presiding ALJ's credibility determinations). In considering the decision of the Commissioner based on the record as a whole, the court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951)). The Commissioner's findings as to any fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 477. If substantial evidence in the record does not support the ALJ's determination or if the ALJ has made an error of law, the court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         The Social Security Administration regulations set forth a five-step process that the agency employs to determine whether disability exists. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see Mascio, 780 F.3d at 634-35 (describing the ALJ's five-step sequential evaluation). To summarize, at step one, the ALJ looks at the claimant's current work activity. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's residual functional capacity, accounting for the most that the claimant can do despite her physical and mental limitations. §§ 404.1545(a), 416.945(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform any work existing in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

         III. THE ALJ'S DECISION

         On September 28, 2016, the ALJ held a remote hearing during which Plaintiff (represented by counsel) and a vocational expert ("VE") testified. (R. at 37.) Following the submission of additional medical interrogatories from medical expert ("ME") Gerald Orth, M.D., on December 29, 2016, the ALJ held a supplemental hearing on May 12, 2017. (R. at 63-82.) On June 27, 2017, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 15-29.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 16-29.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (R. at 18.) At step two, the ALJ determined that Plaintiff had the following severe impairments: neurocardiogenic syncope, [3] narcolepsy with cataplexy, [4] anxiety, panic disorder and bipolar affective disorder. (R. at 18.) At step three, the ALJ found that Plaintiff did not have any impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (R. at 19-20.).

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff had the residual capacity to perform a full range of work at all exertional levels, but with some additional limitations. (R. at 21.) Specifically, Plaintiff could only occasionally balance, stoop, kneel, crouch, crawl and climb ramps and stairs. (R. at 21.) Plaintiff could never climb ladders, ropes or scaffolds. (R. at 21.) Plaintiff could handle only occasional exposure to vibrations and no exposure to hazardous conditions, including unprotected heights and moving machinery. (R. at 21.) The ALJ limited Plaintiff to simple, routine tasks with occasional interaction with the general public. (R. at 21.) At step four, the ALJ found that Plaintiff could not perform any past relevant work. (R. at 27.) At step five, the ALJ determined that Plaintiff could perform jobs existing in significant numbers in the national economy, including work as a cleaner, food prep worker and mail clerk at a private company. (R. at 28-29.) Therefore, the ALJ concluded that Plaintiff did not qualify as disabled under the Act. (R. at 29.)

         IV. ANALYSIS

         Plaintiff, age twenty-eight at the time of this Report and Recommendation, previously worked as a certified nursing assistant. (R. at 28, 43, 305-312.) She applied for Social Security benefits, alleging disability from neurocardiogenic syncope, narcolepsy with cataplexy, anxiety, panic disorder and bipolar affective disorder, with an alleged onset date of June 28, 2014. (R. at 48-52, 83-91, 280-286, 312, 444-451, 505-506.) Plaintiffs appeal to this Court alleges that the ALJ erred in: (1) failing to consider whether Plaintiffs impairments met or medically equaled the criteria of Listing 11.03; (2) assigning "little weight" to the opinion of Plaintiff s treating physician, Dr. Sood; and, (3) failing to account for Plaintiffs moderate limitations in concentration, persistence and pace in Plaintiffs RFC assessment. (Pl.'s Mem. at 5, 8, 10.) For the reasons set forth below, the ALJ did not err in her decision.

         A. The ALJ Did Not Err in Failing to Consider Listing 11.03 at Step Three.

         Plaintiff argues that the ALJ should have considered Dr. Sood's opinion that her impairments medically equaled the criteria of Listing 11.03.[5] (Pl.'s Mem. at 11.) Defendant responds that as of the date of Dr. Sood's opinion and the ALJ's decision, Listing 11.03 had lapsed, rendering Dr. Sood's opinion outdated. (Def.'s Mot. for Summ. J. & Br. in Supp. Thereof ("Def.'s Mem.") (ECF No. 15) at 13-15.) Defendant further argues that even with regard to the relevant listing in effect, Listing 11.02, [6] Plaintiff failed to meet her burden of proof to demonstrate that her impairments met or medically equaled the criteria of that Listing. (Def.'s Mem. at 21-22.)

         Plaintiff bears the burden of proving that she meets or equals a listing. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The listings "were designed to operate as a presumption of disability that makes further inquiry unnecessary" and, consequently, require an exacting standard of proof. Sullivan v. Zebley, 493 U.S. 521, 532-33 (1990). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. at 530. The regulations reserve to the Commissioner the ultimate decision of whether a claimant qualifies as disabled under the Act. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).

         Here, as Defendant correctly points out, Listing 11.03 had lapsed both at the time of Dr. Sood's opinion (March 16, 2017) and at the time of the ALJ's decision (June 27, 2017). Indeed, as of September 29, 2016, Listing 11.02, which contains different criteria, replaced Listing 11.03. Revised Medical Criteria for Evaluating Neurological Disorders, 81 Fed. Reg. 43048, (July 1, 2016); (Def.'s Mem. at 19-20.) The listing change applied "to new applications filed on or after the effective date of the final rule and to claims that are pending on or after the effective date." Id. Thus, Dr. Sood's opinion regarding the equivalency of Plaintiff s impairments to Listing 11.03 proved irrelevant, because he relied on outdated and therefore invalid listing criteria.

         As to the relevant listing in effect, Listing 11.02, the ALJ found that Plaintiff "show[ed] no evidence of an impairment [or combination of impairments] which me[t] or medically equal[ed] the criteria of a listed impairment [under listings 4.00 and 11.00]." (R. at 19.) In support of this conclusion, the ALJ cited to exhibits 6F and 10F, which included treatment records relevant to Plaintiffs narcolepsy and neurocardiogenic syncope. (R. at 19.) The ALJ also relied on the answers to medical interrogatories submitted by the ME, Dr. Orth, which opined that Plaintiffs conditions did not meet or equal any listing under 11.00 or 1.00. (R. at 19, 573.) The Court finds the ALJ's explanation regarding Listing 11.02 legally sufficient, as the ALJ cited to specific objective medical findings and other evidence in the record - namely, Dr. Orth's interrogatory answers - in support of her conclusion. Indeed, the Court's own review of the record finds substantial support for the ALJ's finding that Plaintiffs impairments, either singly or in combination, failed to meet or medically equal the criteria of Listing 11.02.

         Listing 11.02 requires evidence of epilepsy or an equivalent impairment with a detailed description of a typical seizure and evidence of either:

A. Generalized tonic-clonic seizures (see 11.00H1a), [7] occurring at least once a month for at least 3 consecutive months (see 11.00H4)[8] despite adherence to prescribed treatment (see 11.00C);[9] or
B. Dyscognitive seizures (see 11.00H1b), [10] occurring at least once a week for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); or
C. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once every 2 months for at least 4 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following: 1. Physical functioning (see 11.00G3a); or 2. Understanding, remembering, or applying information (see 11.00G3b(i)); or 3. Interacting with others (see 11.00G3b(ii)); or 4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 5. Adapting and managing oneself (see 11.00G3b(iv));[11] or
D. Dyscognitive seizures (see 11.00H1b), occurring at least once every 2 weeks for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following: 1. Physical functioning (see 11.00G3a); or 2. Understanding, remembering, or applying information (see 11.00G3b(i)); or 3. Interacting with others (see 11.00G3b(ii)); or 4. Concentrating, ...

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