Riggs v. Colvin

Filing 25

ORDER adopting 22 Memorandum and Recommendation, granting 16 Motion for Judgment on the Pleadings and denying 19 Motion for Judgment on the Pleadings. The case is REMANDED to the Commissioner for further proceedings. Signed by Senior Judge James C. Fox on 3/24/2017. (Grady, B.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:16-CV-00011-F
KIMBERLY ANNETTE RIGGS,
Plaintiff/Claimant,

v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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ORDER

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Before the court are the following:
(1) the parties' cross Motions for Judgment on the Pleadings [DE-16, -19], pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure;
(2) the Memorandum and Recommendation ("M&R") [DE-22] of United States
Magistrate Judge Robert B. Jones, Jr.; and
(3) Defendant's Objection [DE-23] to the,Magistrate Judge's M&R and Plaintiffs
Response [DE-24].
The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons
addressed below, this court ApOPTS the findings and recommendations of the Magistrate Judge,
Plaintiffs Motion for Judgment on the Pleadings [DE-16] is ALLOWED, Defendant's Motion
for Judgment on the Pleadings [DE-19] is DENIED, and this case is REMANDED to the
Commissioner for further proceedings.

Pursuant to Federal Rule of Civil Procedure ~5(d), Nancy A. Berryhill, Acting
Commissioner of Social Security, has been added as a party. Carolyn W. Colvin's term expired
on January 20, 2017, and she has been terminated as a party.
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I. DISCUSSION
A. The Magistrate Judge's M&R
1. Standard of Review
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. See Mathews v. Weber, 423 U.S. 261,270-71 (1976). This court is charged with making a
de novo determination of those portions of the recommendation to which specific objections are

made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's
recommendation, or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b)(1). In the absence of a timely-filed objection, a district court need not conduct a
de novo review, but instead must "only satisfy itself that there is no clear error on the face of the

record in order to accept the recommendation." Diamond v. Colonial Life & Ace. Ins. Co., 416
F.3d 310,315 (4th Cir. 2005).
On March 2, 2017, the Magistrate Judge issued a M&R, in which herecommended that
Plaintiff's Motion for Judgment on the Pleadings [DE-16] be ALLOWED, Defendant's Motion
for Judgment on the Pleadings [DE-19] be DENIED, and this case be REMANDED to the
Commissioner for further proceedings. The Magistrate Judge advised the parties of the
procedures and requirements for filing objections to the M&R and the consequences if they failed
· to do so. On March 16, 2017, Defendant filed an Objection [DE-23] to the Magistrate Judge's
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M&R. Plaintiff filed a Response [DE-24]' on March 23, 2017.

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2. Defendant's Objection
a. Defendant argues that the Magistrate Judge erred by recommending that the
case be remanded.
Defendant argues that the Magistrate Judge erred by recommending that the case be
remanded to allow the Administrative Law Judge ("ALJ") to explain why he did not credit
Plaintiffs allegations that she required the use of her nebulizer every four hours and it takes
twenty minutes to recover from each treatment. See Objection [DE-23] at 3-7. Defendant further
argues that the Magistrate Judge's conclusion was error because the ALJ gave sufficient reasons
for not crediting Plaintiffs allegations. !d. at 3. Finally, Defendant argues that her explanation
was not an impermissible post-hoc explanation because she merely addressed why substantial
evidence supported the ALJ's determination. !d. at 4.
Residual functional capacity ("RFC") is the measurement of the most a claimant can do
on a regular and continuing basis despite his limitations. Hines v. Barnhart, 453 F.3d 559, 562
(4th Cir. 2006); Glass v. Comm 'r, No. 4:15CV46, 2017 WL 836859, at *2 n.2 (W.D. Va. Feb.
15, 2017); see 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l). RFC includes both a "physical
exertional or strength limitation" that assesses the claimant's "ability to do sedentary, light,
medium, heavy, or very heavy work," as well as "nonexertionallimitations (mental, sensory, or
skin impairments)." Hall v. Harris, 658 F.2d 260, 265 (4th Cir. 1981). 'fhe ALJ is to determine
RFC only after considering all the relevant evidence of a claimant's impairments and any related
symptoms, such as pain. Hines, 453 F.3d at 562-63. If a claimant retains the RFC to perform his

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"A nebulizer is a machine that administers inhaled medications. An air compressor
delivers a stream of medicated air to the patient's lungs through a mouthpiece or mask." Hincher
v. Barnhart, 362 F.Supp. 2d 706, 713 n.2 (W.D. Va. 2005).
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past relevant work, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
At her hearing before ALJ Bowling, held on April29, 2014, Plaintiff testified that she
stopped working at Pigggy Wiggly, her last employer, because she couldn't use her nebulizer at
work. (R. 58.) Plaintiff explained that she couldn't use her nebulizer at work, in part, because
she was embarrassed about using it. (Tr. 59.) Plaintiff further explained that she could not use
her nebulizer at work because the breaks she got did not allow her to take the nebulizer treatment
and lay down for an hour. !d.
Plaintiff testified that when she uses her nebulizer, she gets the shakes "real bad" and has
to sleep it off for about an hour. !d. Plaintiff explained that she typically uses her nebulizer
every four hours, and the treatment itself takes about twenty minutes. !d. Plaintiff testified that
she previously put Xopenex in her nebulizer, but she now puts Albuterol in it. (R. 67 .) Plaintiff
explained that she gets Albuterol from Merci Clinic. (R. 66-67.)
In his July 15, 2014 Decision, the ALJ found as follows: Plaintiff's chronic obstructive
pulmonary disease ("COPD") 3 was a severe impairment4 at step two in the sequential evaluation.
(R. 15.) Plaintiff's COPD did not meet or medically equal a listed impairment. (R. 16.)
Plaintiff's testimony was that she has COPD and uses both a nebulizer and a rescue
inhaler. (R. 19.) One of the reasons Plaintiff was unable to continue at Piggly Wiggly was an

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COPD is "characterized by the progressive development of airflow limitation that is not
fully reversible." Bishop v. Colvin, No. 3:13CV94, 2013 WL 6913246, at *3 n.2. (E.D. Va. Dec.
30, 2013) (citation omitted).
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A "severe impairment" is an impairment or combination of impairments that
significantly limits a claimant's physical or mental ability to perform basic work activities.
Deboardv. Colvin, No. 3:16-CV-02661, 2017 WL 510743, at *2 (S.D. W.Va. Jan. 18, 2017); see
20 C.F.R. §§ 404.1520(c), 416.920(c).
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inability to use her nebulizer. Id. Plaintiff was unable to use her nebulizer at Piggy Wiggly in
part out of embarrassment and in part due to the shakes and a need to lie down afterward. Id.
Plaintiff testified that she is unable to do most housework and yard work because ofher
breathing difficulties and lack of endurance. I d. Plaintiff admitted she continues to smoke,
despite the fact that her doctors have advised her to quit. I d. Plaintiff reports that she has tried to
quit smoking in the past, using Wellbutrin, Chantix, and nicotine patches. Id.
With respect to Plaintiffs respiratory impairments, the ALJ noted the record revealed that
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she presented at the Emergency Department of Wayne Memorial Hospital on August 6, 2007
with complaints of headache, nausea, and dizziness. (R. 20.) It was noted that Plaintiff was seen
just five days earlier and given Albuterol for coughing, wheezing, and chest tightness. (R. 2021.) Plaintiff reported smoking one to two packs of cigarettes per day and was observed to have
mild expiratory wheezing throughout. (R. 21.) A subsequent medical note from September 12,
2007 reveals that Plaintiff continued toreport a chronic cough, but she denied chest pain,
shortness of breath, nausea, vomiting, or other symptoms. I d.
Plaintiff had additional visits to a mobile clinic in 2007 and 2008 for coughing, expiratory
wheezing, and similar symptoms. Id. During those visits, Plaintiff received multiple
recommendations to quit smoking. Id. A medical note from January 21, 2009 reveals that
Plaintiff had occasional expiratory wheezing, yet it was noted that she was not using her inhaler.

I d.
On November 2, 2010, Plaintiff saw Dr. Hyppolite. Id. At that time, it was noted that
Plaintiff had been diagnosed with acute bronchitis a week earlier and was using her nebulizer
daily. Id. On December 8, 2010, Plaintiff was seen by Dr. Harmon for cough, congestion, and

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shortness ofbreath. !d. Plaintiff was given Prednisone, three doses ofDuoNeb, and one
Singulair nebulizer. !d.
On September 19, 2011, Plaintiff was seen as a new patient at Physicians East, P.A. !d.
It was noted that Plaintiffhad a diagnosis for COPD. Id. On September 26, 2011, Plaintiff
underwent a pulmonary consultation with Dr. Dietrich. Id. At that time, Plaintiff had been a ·
half-pack to a pack a day smoker for twenty-five years with several unsuccessful attempts at
cessation. !d. Plaintiffrepqrted shortness of breath with any activity. Id. Dr. Dietrich found no
evidence ofCOPD, but some air trapping might be present. (R. 21-22.) Dr. Dietrich suspected
that tobacco cessation would make a big improvement in Plaintiff's condition. (R. 22.) A
nicotine inhaler was prescribed for smoking cessation, but Plaintiff did not pick up the inhaler
due to cost. Id. Plaintiff saw Dr. Dietrich again on November 10, 2011. Id. At that time,
Plaintiff continued to smoke. I d.
On September 13, 2012, Plaintiff was seen at Coastal Carolina Health with complaints of
sinus congestion that led to chest pain, congestion, and shortness of breath. Id. It was noted that
Plaintiff's shortness ofbreath was improved with her nebulizer. Id. Plaintiff's chest x-rays and
sinus x-rays were negative. !d.
In a statement from Amanda Cardwell, Plaintiff's friend, Cardwell remarked that Plaintiff
gets the shakes when using a nebulizer. (R. 28.) Cardwell also noted that Plaintiff has daily
struggles with1breathing and needs to rest when doing household chores. Id. Finally, Cardwell
noted that Plaintiff tried to work a couple of months but was unable to continue the job. !d.
The ALJ gave "little weight" to Cardwell's opinion, which he found to be a non-medical source
who had not seen Plaintiff in a professional capacity in connection with her impairments. !d.

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The ALJ noted that Cardwell was not a medical provider, her opinion rested in large part on
Plaintiffs subjective reports, and the severity of these allegations did not comport with the record
provided by treating or examining medical sources. Jd
The.ALJ's credibility analysis, in pertinent part, provides as follows:
[T]he claimant does have severe impairments that limit her ability to perform work
related functions. However, the issue here is not whether the claimant can be restored
to full health, or even rendered free from pain. Rather, an individual's residual
functional capacity (RFC) is what the individual can still do despite his or her
limitations. Viewed in this light, to the extent that the Claimant alleges limitations
greater than those set forth in the current residual functional capacity, those claims
are not supported by the evidence.
In terms of the claimant's physical issues, ... [w]hile the claimant does have
diagnoses for asthma and COPD, it is noted that the only pulmonology examination
appearing of record, from Dr. Dietrich, did not produce a diagnosis for COPD and
spirometry testing indicated only borderline restriction. The undersigned also notes
that during a September 13, 2012 appointment with Coastal Carolina Health Care,
the claimant reported that she had never been seen by a pulmonologist, despite the
fact that her last examination by Dr. Dietrich had been less than a year earlier.
Furthermore, while the record ret1ects multiple recommendations for smoking
cessation, as of the hearing date the claimant continued to smoke.
(R. 25-26.)

The Magistrate Judge concluded that the ALJ erred by failing to evaluate Plaintiffs
testimony about her nebulizer use and the time it takes her to recover. M&R [DE-22] at 9. The
Magistrate Judge further determined that it was unclear what portions of Plaintiffs testimony and
the record evidence the ALJ found credible, or not credible, and why. Id The Magistrate Judge
acknowledged that the Commissioner offered several explanations regarding why Plaintiff did
not need to use a nebulizer, but he concluded that this was a determination for the ALJ in the first
instance because the reviewing court is prohibited from engaging in post-hoc rationalizations
offered in support of administrative agency decisions. Id at 9-10.

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"

This court agrees with the Magistrate Judge that the ALJ erred by failing to evaluate
Plaintiffs testimony about her nebulizer use and the time it takes her to recover from each use.
Moreover, this court finds Defendant's argument in favor of a post-hoc rationale to be wholly
without merit. In particular, Defendant argues that she should be allowed to "embellish the
rationale of the ALJ to show substantial evidence supports the ALJ's deterrriination." Objection
[DE-23] at 4. This court disagrees. Pursuant to the so-called "Chenery Doctrine," courts are
prohibited from· considering post-hoc rationalizations offered in support of administrative agency
decisions. Johnson v. Colvin, No. 1:15CV538, 2016 WL 6106439, at *5 (M.D.N.C. Oct. 19,
2016). When the grounds are inadequate or improper, a reviewing court is precluded from
affirming the administrative decision by substituting the more adequate or proper basis. Id. For
these reasons, Defendant's sole objection is overruled.

II. CONCLUSION
In light of the foregoing, and upon de novo review of the portions of the Magistrate
Judge's M&R to which specific objections were filed, the court ADOPTS the findings and
recommendations of the Magistrate Judge, Plaintiffs Motion for Judgment on the Pleadings
[DE-16] is ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-19] is
DENIED, and the case is REMANDED to the Commissioner for further proceedings.
The Clerk of Court is DIRECTED to close the case.
SO ORDERED.
This, the~ day ofMarch, 2017.

enior United States District Judge

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