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Karen L. v. Saul

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

August 26, 2019

KAREN L., Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.


          Robert S. Ballou United States Magistrate Judge.

         Plaintiff Karen L. (“Karen”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) finding her not disabled and therefore ineligible for disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433. Karen alleges that the Administrative Law Judge (“ALJ”) erred because substantial evidence does not support (1) his evaluation of certain medical opinion evidence, and (2) his assessment of his prior unfavorable decision. I conclude that substantial evidence does not support the ALJ's consideration of his prior unfavorable decision. Accordingly, I RECOMMEND GRANTING in part Karen's Motion for Summary Judgment (Dkt. No. 13), [1]DENYING the Commissioner's Motion for Summary Judgment (Dkt. No. 15), and REMANDING this case for further consideration.


         This Court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Karen failed to demonstrate that she was disabled under the Act.[2] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). This standard of review requires the Court to “look[] to an existing administrative record and ask[] whether it contains ‘sufficien[t] evidence' to support the [ALJ's] factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “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 threshold for such evidentiary sufficiency is not high.” Biestek, 139 S.Ct. at 1154. 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).

         However, 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 of Appeals remanded because the ALJ failed to adequately explain how he arrived at his 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 the ALJ considered his prior unfavorable decision.


         This action arises out of Karen's second application for disability benefits. ALJ Jeffrey J. Schueler issued an unfavorable decision regarding Karen's first application on September 3, 2013. R. 83. In her previous claim, the ALJ found that Karen's severe impairments included cervical spondylosis without myelopathy, cervical degenerative disc disease, cervical radiculopathy, lumbar degenerative disc disease and spondylosis, hypertension, cardiomyopathy, dyspnea, major dap-, post-traumatic stress disorder, and anxiety disorders. R. 72. The ALJ found that Karen did not have an impairment or combination of impairments that met or medically equaled a listed impairment. R. 73. In his “paragraph B” criteria evaluation, the ALJ found that Karen had mild restriction in activities of daily living; moderate difficulties in social functioning; moderate difficulties with concentration, persistence or pace; and no episodes of decompensation. Id. For his RFC determination, the ALJ found that Karen could perform sedentary work, except that she could lift and carry up to ten pounds frequently and twenty pounds occasionally, and must have been allowed to change postural positions every thirty minutes. R. 74. He determined that Karen could occasionally kneel, crawl, crouch, stoop, balance, or climb, and would have to avoid concentrated exposure to moving or hazardous machinery and unprotected heights. Id. Karen would have been off-task up to ten percent of the workday, and absent up to once per month due to mental impairments and pain. Id. Finally, Karen must have worked in a low-stress job, defined as requiring only occasional decision-making or changes in work setting, with only occasional interaction with the public or coworkers. Id. The ALJ determined that Karen was not disabled because she could perform jobs that existed in significant numbers in the national economy, such as surveillance system monitor, product inspector, and small parts assembler. R. 82.

         Karen filed her present application for DIB on September 25, 2014, with an alleged onset date of September 4, 2013 (the day following the ALJ's prior decision), claiming disability due to post traumatic stress disorder, anxiety, depression, insomnia, fibromyalgia, degenerative disc disease, arthritis, hypertension, attention deficit disorder, and irritable bowel syndrome. R. 100- 01. Karen was 46 years old when she applied for DIB, making her 45 years old on her alleged onset date. R. 100. Karen's date last insured was December 31, 2016; thus, she must show that her disability began on or before December 31, 2016, and existed for twelve continuous months, to receive DIB. Id.; 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B), (d)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a). The state agency denied Karen's applications at the initial and reconsideration levels of administrative review. R. 100-30. On January 19, 2017, ALJ Schueler held a hearing to consider Karen's new claim for DIB. R. 33-66. Counsel represented Karen at the hearing, which included testimony from vocational expert Robert Jackson. R. 33. On March 10, 2017, the ALJ entered his decision analyzing Karen's claims under the familiar five-step process[3] and denying her claim for benefits. R. 11-25.

         The ALJ found that Karen had not engaged in substantial gainful activity during the period from her alleged onset date of September 4, 2013, through her date last insured of December 31, 2016. R. 13. The ALJ determined that Karen suffered from the severe impairments of fibromyalgia, irritable bowel syndrome (IBS)/Crohn's disease, degenerative disc disease (DDD) of the cervical spine, DDD of the lumbar spine, major depressive disorder (MDD), anxiety, post-traumatic stress disorder (PTSD), and attention deficit hyperactivity disorder (ADHD). Id. The ALJ found Karen's hypertension and cardiomyopathy to be non-severe. Id. The ALJ determined that Karen's impairments, either individually or in combination, did not meet or medically equal a listed impairment, specifically considering listings 1.04 (disorders of the spine), 5.06 (inflammatory bowel disease), 12.04 (depressive, bipolar and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), 12.11 (neurodevelopmental disorders), and 12.15 (trauma- and stressor-related disorders). R. 14-15. Regarding her mental impairments, the ALJ found that the “paragraph B” criteria were not satisfied. R. 16. The ALJ determined that Karen has no limitation in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and no limitation in adapting or managing herself. R. 15-16. The ALJ also determined that the “paragraph C” criteria were not met. R. 16.

         The ALJ concluded that Karen retained the residual functional capacity (“RFC”) to perform sedentary work. R. 16. Karen was able to lift and carry ten pounds frequently and twenty pounds occasionally, sit for six hours in an eight-hour day, and stand and/or walk for two hours in an eight-hour day. Id. Karen needed to be able to alternate sitting or standing at will throughout the day. Id. For postural limitations, the ALJ determined that Karen was unable to climb ladders, ropes, or scaffolds, but could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. Id. For environmental limitations, Karen had to avoid concentrated exposure to excessive vibration, operational control of moving machinery, unprotected heights, and hazardous machinery. R. 16-17. Karen was limited to work in a low-stress job (defined as having only occasional decision-making or changes in the work setting) with only occasional interaction with the public or coworkers. R. 17. Finally, Karen would have been distracted from work activities not more than ten percent of a normal workday. Id.

         The ALJ determined that Karen is unable to perform her past work as an insurance agent or payroll clerk, but could still perform jobs that exist in significant numbers in the national economy, such as inspector/grader and packer. R. 23-25. The ALJ ultimately concluded that Karen was not disabled. R. 25. The Appeals Council denied Karen's request for review on January 22, 2018. R. 1-5.


         Karen alleges that the ALJ erred because substantial evidence does not support (1) his assessment of his prior unfavorable decision, and (2) his evaluation of certain opinion evidence.

         A. Medical History

         Karen has an extensive medical history, which reflects the close relationship between her separate disability applications. In this appeal, Karen primarily argues that the ALJ erred by according great weight to his prior unfavorable decision, dated September 4, 2013. Pl.'s Br. at 9, Dkt. No. 13. She specifically argues that the ALJ failed to recognize the voluminous additional medical evidence in this case, including the many new medical source statements. Id. at 10. In failing to consider that evidence, she alleges that the ALJ erred in assuming that Karen's medical conditions could not and did not deteriorate over time. Id. at 11.

         1. Physical Impairments

         A May 2013 cervical spine MRI showed that Karen had moderately severe narrowing of the C5-C6 disc space with edema in the disc and endplates (interpreted as possible DDD), a small posterior disc herniation with no significant spinal or foraminal stenosis, a small herniated disc at ¶ 4-C5 with mild narrowing of foramina, and severe narrowing of the C6-C7 disc space but no significant spinal or foraminal stenosis. R. 370. An April 2015 cervical spine x-ray showed DDD. R. 740. A May 2015 cervical spine MRI revealed multilevel cervical DDD with severe narrowing at ¶ 4-C5, C5-C6, and C6-C7; moderate narrowing of foramina bilaterally at ¶ 4-C5; and mild to moderate narrowing of the right foramen at ¶ 5-C6. R. 779.

         Regarding Karen's lower back issues, a June 2013 lumbar spine MRI showed minimal DDD at ¶ 5-S1, and no disc herniations, spinal stenosis, or neural foraminal stenosis. R. 380. The study showed no abnormality to account for the radiculopathy Karen alleged at that time. Id. Karen was evaluated by John Birkedal, M.D., for her neck and back pain in September 2013, during which he diagnosed degeneration of cervical intervertebral disc, cervicalgia, and degeneration of lumbar or lumbosacral intervertebral disc. R. 442, 446. He found no surgical indication. R. 446. A November 2016 lumbar spine imaging study revealed degenerative changes. R. 933. The records show that Karen attended physical therapy for her low back pain from November to December 2016, to which she responded positively. R. 957-76.

         Susan Griffin, M.D., of Forest Family Care, was Karen's primary care provider from November 2013 to at least November 2016. Throughout the course of their relationship, Dr. Griffin diagnosed IBS, Crohn's, or other gastro difficulties (R. 456, 482, 913), insomnia (R. 456, 556), unspecified myalgia (R. 460, 463, 470, 474, 480, 482), degeneration of cervical disks (R. 460, 470, 480, 482, 556, 773, 781, 917), intervertebral lumbar disc disorder with myelopathy or other lumbar spine problems (R. 456, 470, 480, 547, 772, 913, 917), joint pain in Karen's arms and/or pelvis/thigh (R. 547, 549), and tremors (R. 913). She regularly prescribed and adjusted medication for Karen's conditions. Other providers at Forest Family Care, including Jill Snider, FNP, and Tammy Terry, CFNP, diagnosed gastrointestinal issues (R. 798, 868), arthralgia and myalgia (R. 798), right shoulder pain (R. 864), and degeneration of cervical discs (R. 864, 868).

         After having difficulties with abdominal pain, vomiting, and diarrhea, imaging studies in February and August 2014 of Karen's abdomen were unremarkable. R. 386, 390. In late 2014, Karen's gastroenterology specialist diagnosed abdominal pain, diarrhea, and likely IBS, and prescribed medication. R. 531. A September 2014 CT of the abdomen and a colonoscopy were unremarkable. R. 535, 544. In late 2015, Karen was again diagnosed with diarrhea and abdominal pain. R. 810. Robert Benish, M.D., evaluated Karen for her gastrointestinal difficulties in April 2016, during which he diagnosed Crohn's disease, heartburn, and diarrhea and prescribed medication. R. 875. He saw Karen through at least July 2016 and continued to diagnose Crohn's in addition to IBS, and maintained her medication. R. 878, 980, 983, 986, 999, 1003.

         Karen began seeing rheumatologist Song Zang, M.D., in December 2013. Upon initial evaluation, Dr. Zang found that Karen had no swelling in her joints and normal ranges of motion, but multiple joints and muscle groups were tender to palpation. He diagnosed fibromyalgia, characterizing it as a “rather definite” diagnosis. R. 340. He started Karen on medication. Id. In May 2014, Dr. Zang reported that Karen's fibromyalgia was stable and continued her current medication. R. 337. Dr. Zang diagnosed fibromyalgia again in February 2015 and March 2016, and continued Karen's medications. R. 621, 852.

         Karen completed a fatigue questionnaire in September 2014, in which she wrote that she suffers from chronic fatigue and pain. R. 252. She stays home most of the time, does not drive, and relies on others to do housework. Id. She gets only two to three hours of sleep per night even with medication and many naps, but constantly feels fatigued. ...

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