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McGinnis v. Saul

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

September 23, 2019

STARLOE JANE MCGINNIS, Plaintiff,
v.
ANDREW M. SAUL[1], Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK, UNITED STATES MAGISTRATE

         On December 22, 2014, Starloe Jane McGinnis ("Plaintiff) applied for Social Security Disability Benefits ("DIB") under the Social Security Act (the "Act"), alleging disability from depression, anxiety, panic attacks, high blood pressure, high cholesterol and "knee effusion and cartilage trouble in the right knee," with an alleged onset date of December 13, 2014. The Social Security Administration ("SSA") denied Plaintiffs claim both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claim 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 by: (1) characterizing Plaintiffs knee impairment as non-severe at step two and failing to consider her knee impairment in assessing her residual functional capacity ("RFC"); and, (2) providing an insufficient explanation for affording little or partial weight to the opinions relating to Plaintiffs mental abilities. (Mem. in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s Mem.") (ECF No. 18) at 1, 8-12.) 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 set forth below, the Court recommends that Plaintiffs Motion for Summary Judgment (ECF No. 17) be GRANTED, that Defendant's Motion for Summary Judgment (ECF No. 19) be DENIED and that the final decision of the Commissioner be VACATED and REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g).

         I. PROCEDURAL HISTORY

         On December 22, 2014, Plaintiff filed an application for DIB, with an alleged onset date of December 13, 2014. (R. at 17, 92.) The SSA denied this claim initially on April 27, 2015, and again upon reconsideration on August 27, 2015. (R. at 91, 106.) On October 30, 2017, the ALJ issued a written opinion, denying Plaintiffs claim and concluding that Plaintiff did not qualify as disabled under the Act, because Plaintiff could perform work that exists in significant numbers in the national economy. (R. at 17-28.) On September 17, 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 1-3.)

         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. Chafer, 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 F. App'x. 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)). In considering the decision of the Commissioner based on the record, 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. NLRB, 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).

         SSA regulations set forth a five-step process that the agency employs to determine whether disability exists. 20 C.F.R. § 404.1520(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). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. § 404.1520(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). Between steps three and four, the ALJ must assess the claimant's RFC, accounting for the most that the claimant can do despite her physical and mental limitations. § 404.1545(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. § 404.1520(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).

         III. THE ALJ'S DECISION

         On May 12, 2017, the ALJ held a hearing during which Plaintiff (represented by counsel) and a vocational expert ("VE") testified. (R. at 36-79.) On October 30, 2017, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 14-28.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 17-28.) At step one, the ALJ determined that Plaintiff had not engaged in substantial activity since December 13, 2014, her alleged onset date. (R. at 19.) At step two, the ALJ determined that Plaintiff suffered from the following severe impairments: depression and anxiety. (R. at 19.) At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (R. at 21.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform the full range of work at all exertional levels, with additional non-exertional limitations. (R. at 23.) Specifically, the ALJ determined that Plaintiff could focus and concentrate for only two hours before requiring a fifteen-minute break, required a goal-oriented rather than a production-rate-pace job, and could sustain only occasional interaction with supervisors and co-workers and no interaction with the public. (R. at 23.)

         Based on Plaintiffs RFC, at step four, the ALJ found that Plaintiff could not perform her past relevant work. (R. at 26.) However, at step five, the ALJ determined that Plaintiff could perform jobs existing in significant numbers in the national economy, including the representative occupations of administrative clerk and computing clerk. (R. at 27.) Accordingly, the ALJ concluded that Plaintiff did not qualify as disabled under the Act. (R. at 28.)

         IV. ANALYSIS

         Plaintiff, sixty-three years old at the time of this Report and Recommendation, previously worked as a bookkeeper. (R. at 84.) She applied for DIB, alleging disability from depression, anxiety, panic attacks, high blood pressure, high cholesterol and "knee effusion and cartilage trouble in the right knee," (which Rachel Waller, M.D., later diagnosed as osteoarthritis), with an alleged onset date of December 13, 2014. (R. at 92.) Plaintiffs appeal to this Court alleges that the ALJ erred by: (1) characterizing Plaintiffs knee impairment as non-severe at step two and failing to consider her knee impairment in assessing her RFC; and, (2) providing an insufficient explanation for affording little or partial weight to the opinions relating to Plaintiffs mental abilities. (Pl.'s Mem. at 1, 8-12.) For the reasons set forth below, the ALJ erred in her decision.

         A. Although the ALJ Did Not Err in Assessing the Severity of Plaintiffs Knee Impairment at Step Two, She Erred in Failing to Consider it at Subsequent Steps in Her Assessment, Requiring Remand.

         Plaintiff argues that the ALJ erred in determining that the osteoarthritis in her right knee did not qualify as "severe" as defined by 20 C.F.R. § 404.1522(a). (Pl.'s Mem. at 8.) Plaintiff further contends that the ALJ incorrectly afforded little weight to the opinion of Karissa Hackleton, M.D., regarding her physical limitations. (Pl.'s Mem. at 9.) Alternatively, Plaintiff alleges that the ALJ erred in failing to properly consider Plaintiffs knee impairment in formulating her RFC. (Pl.'s Mem. at 8-9.) Plaintiff adds that her use of a cane illustrated her need for additional exertional limitations. (Pl.'s Mem. at 9.)

         Defendant responds that substantial evidence supports the ALJ's assessment of Plaintiff s knee impairment, noting that courts cannot reweigh the evidence on judicial review. (Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") (ECF No. 19) at 14-17.) Defendant further contends that the ALJ correctly afforded Dr. Hackleton's opinion regarding Plaintiffs knee impairment only little weight. (Def.'s Mem. at 14-17.) Moreover, because no medical source prescribed a cane to Plaintiff, Defendant argues that the ALJ properly excluded consideration of Plaintiffs intermittent cane use. (Def.'s Mem. at 15-16.) The Court agrees with Defendant that the ALJ did not err in her severity assessment at step two, but finds that the ALJ erred by failing to consider Plaintiffs knee impairment at all when crafting Plaintiffs RFC.

         1. The ALJ Properly Characterized Plaintiff's Knee Impairment as Non-Severe at Step Two.

         At step two, the ALJ must consider the claimant's medically determinable impairments and determine which are "severe." 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1521. "The Supreme Court has held that this step of the disability evaluation is a de minimis threshold." Williams v. Astrue, 2010 WL 395631, at *14 (E.D. Va. Feb. 2, 2010) (citing Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987)), report and recommendation adopted, at *1.

         An ALJ satisfies step two by finding a severe impairment and proceeding through the rest of the sequential analysis. McCormick v. Soc. Sec. Admin., Comm 'r, 619 Fed.Appx. 855, 858 (11th Cir. 2015); Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) ("[T]he finding of any severe impairment, whether or not it qualifies as a disability and whether or not it results from a single severe impairment or a combination of impairments that together qualify as severe, is enough to satisfy the requirement of step two.") Plaintiff has the burden of demonstrating that she has an "impairment or combination of impairments which significantly limits [her] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c); Bowen, 482 U.S. at 146. The claimant's impairment "must have lasted or must be expected to last for a continuous period of at least 12 months." 20 C.F.R. § 404.1509.

         A severe impairment causes more than a minimal effect on one's ability to function. § 404.1520(c). Likewise, "[a]n impairment or combination of impairments is not severe if it does not significantly limit [one's] physical or mental ability to do basic work activities." § 404.1522(a). An ALJ will find a claimant not disabled at step two if she "do[es] not have a severe medically determinable physical or mental impairment that meets the duration requirement. .., or a combination of impairments that is severe and meets the duration requirement." § 404.1520(a)(4)(ii).

         Here, the ALJ concluded that Plaintiffs knee impairment did not qualify as severe, because it caused no more than minimal vocationally relevant limitations, did not meet the durational requirement and lacked support from the medical evidence of record. (R. at 19-20.) In support of this conclusion, the ALJ acknowledged Plaintiffs testimony that she used a cane when leaving her house. (R. at 20.) The ALJ also recited Plaintiffs knee-related medical history, observing that Plaintiff first sought treatment for right-knee pain in December 2014. (R. at 20.) The ALJ noted that Plaintiffs physical examination during the December 2014 emergency room visit revealed tenderness and a limited range of motion in her right knee, and the ALJ recited x-ray results showing minimal degenerative joint disease and "very tiny joint effusion" in Plaintiffs knee. (R. at 20.) The ALJ observed that the hospital discharged Plaintiff with pain medications. (R. at 20.)

         Continuing through Plaintiffs medical history, the ALJ noted that Plaintiff complained of ineffective medicative treatment during a March 2015 appointment; however, the ALJ observed that during the same appointment, Plaintiff exhibited no abnormalities on examination. (R. at 20.) And although Plaintiff ambulated with a cane, the ALJ noted that she could move around independently and effectively. (R. at 20.) The ALJ recited the results of a November 2016 x-ray showing osteoarthritis in all three compartments of Plaintiff s right knee, but noted that her examination that same day revealed a normal range of motion, normal strength and no tenderness in Plaintiffs knee. (R. at 20.) And the ALJ emphasized Plaintiffs generally normal examinations throughout the record. (R. at 20.) Ultimately, the ALJ discredited Plaintiffs use of a cane, noting that it had not been prescribed by a treating source. (R. at 20.)

         The Court finds the ALJ's explanation legally sufficient, because she appropriately cited objective evidence in the record to support her conclusion. (R. at 20.) Moreover, the Court's own review of the record finds substantial evidence ...


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