HOLT v. ASTRUE
Filing
18
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 02/24/2015. IT IS THEREFORE ORDERED that Plaintiff's Motion for Judgment on the Pleadings (Doc. 10 ) is GRANTED and that Defendant's Motio n for Judgment on the Pleadings (Doc. 15 ) is DENIED. This case is remanded to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings relating to (1) Plaintiff' ;s nausea and its impact on her RFC determination, (2) CE medical opinion evidence, and (3) determination of Plaintiff's credibility in accordance with this Memorandum Opinion and Order. This case is also remanded to the Commissioner of Social Security pursuant to sentence six of 42 U.S.C. § 405(g) to permit the Commissioner to consider the post-hearing evidence regarding Plaintiffs use of a cane. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LISA M. HOLT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
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1:12CV1001
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Lisa M. Holt (“Plaintiff”) brought this action
pursuant to Section 205(g) of the Social Security Act (the
“Act”), as amended and codified at 42 U.S.C. § 405(g), to obtain
judicial review of a final decision of the Commissioner of
Social Security (“Commissioner”), denying Plaintiff’s claim for
Disability Insurance Benefits under Title II of the Social
Security Act. Subsequently, Plaintiff filed a Motion for
Judgment on the Pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure (Doc. 10), and the Commissioner has
filed its own Motion for Judgment on the Pleadings (Doc. 15).
Additionally, the administrative record has been certified to
this court for review.1
For the reasons set forth below, this court will grant
Plaintiff’s Motion for Judgment on the Pleadings and deny the
Commissioner’s Motion for Judgment on the Pleadings. This action
is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for
further proceedings consistent with this Memorandum Opinion and
Order pursuant to sentence six of 42 U.S.C. § 405(g) to permit
the Commissioner to consider the post-hearing evidence presented
by Plaintiff.2,3
1
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer. (Doc. 7.)
2
Sentence four of § 405(g) authorizes a district court to
enter “a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” Sentence six of § 405(g)
authorizes a district court to remand a case for “additional
evidence to be taken before the Commissioner of Social
Security,” in limited circumstances. The basis for remand
affects the time frame in which a prevailing plaintiff may seek
attorney’s fees under the Equal Access to Justice Act (EAJA) and
the scope of the fees available.
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I.
PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for Disability
Insurance Benefits (“DIB”) on January 25, 2010, alleging a
disability beginning on May 1, 2007. The claim was denied both
initially and upon reconsideration. A hearing was held before an
Administrative Law Judge (“ALJ”) on May 24, 2011 and, in a
decision dated June 20, 2011, the ALJ denied Plaintiff’s
application. (Tr. at 45-53.) On July 25, 2012, the Appeals
Council subsequently denied Plaintiff’s request for review of
the decision, thereby making the ALJ’s conclusion the
Commissioner’s final decision for purposes of judicial review.
(Tr. at 1-5.)
3
Courts can remand a case both on sentence four grounds and
sentence six grounds. In Jackson v. Chater, the Eleventh
Circuit held that a dual remand is permissible. With regard to
the seeking of attorney’s fees in a dual remand situation,
We . . . hold that where the remand is pursuant to
both provisions [sentence four and sentence six] and
the claimant prevails at least in part for sentencesix reasons, he is entitled to reopen the case in the
district court and have judgment entered there in his
favor. The time for filing an EAJA application runs
from that later date, instead of from the date on
which the judgment remanding the matter was entered.
Jackson v. Chater, 99 F.3d 1086, 1090 (11th Cir. 1996).
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The ALJ found that Plaintiff had the following severe
impairments: splenic artery aneurysm, history of fusion back
surgery, history of right elbow surgery, and depression with
anxiety. (Id. at 47.) The ALJ also found that Plaintiff’s
impairments, alone or in combination, did not meet or equal a
Listing impairment. (Id. at 48.)
The ALJ next determined that Plaintiff had the residual
functional capacity (“RFC”) to perform light work with the
following limitations: only occasional climbing of stairs or
ramps; can engage in occasional bending, balancing, stooping,
crouching and crawling; can never climb ladders or ropes; should
avoid hazardous machinery and occupations with vibrations; and
can engage in work consisting of simple, routine, repetitive
tasks. (Id. at 49.) The ALJ determined that Plaintiff was unable
to perform any past relevant work but, that considering her age,
education, work experience, and RFC, there were jobs that
existed in significant numbers in the national economy which she
was capable of performing, including: cashier II, store rental
clerk and cafeteria attendant. (Id. at 52—53, 92.) Thus, the ALJ
determined that Plaintiff was not disabled. (Id. at 53.)
After unsuccessfully seeking review by the Appeals Council,
Plaintiff filed the present action on September 6, 2012.
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II.
LEGAL STANDARD
Federal law authorizes judicial review of Commissioner’s
denial of social security benefits. 42 U.S.C. § 405(g); Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
However, the scope
of review of such a decision is “extremely limited.”
Harris, 646 F.2d 143, 144 (4th Cir. 1981).
to try the case de novo.”
(4th Cir. 1974).
Frady v.
“The courts are not
Oppenheim v. Finch, 495 F.2d 396, 397
Instead, “a reviewing court must uphold the
factual findings of the ALJ if they are supported by substantial
evidence and were reached through application of the correct
legal standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012) (internal quotation omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.
1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.”
Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation
marks omitted).
“If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
substantial evidence.”
Hunter, 993 F.2d at 34 (internal
quotation marks omitted).
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“In reviewing for substantial evidence, the court should
not undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
[ALJ].”
Mastro, 270 F.3d at 176 (internal brackets and
quotation marks omitted).
“Where conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled,
the responsibility for that decision falls on the ALJ.”
Hancock, 667 F.3d at 472.
In undertaking this limited review, the court notes that
“[a] claimant for disability benefits bears the burden of
proving a disability.”
Cir. 1981).
Hall v. Harris, 658 F.2d 260, 264 (4th
In this context, “disability” means the “‘inability
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
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expected to last for a continuous period of not less than 12
months.’”
Id. (quoting 42 U.S.C. § 423(d)(1)(A)).4
“The Commissioner uses a five-step process to evaluate
disability claims.”
Hancock, 667 F.3d at 472 (citing 20 C.F.R.
§§ 404.1520(a)(4); 416.920(a)(4)).
Under this process, the Commissioner asks, in
sequence, whether the claimant: (1) worked during the
alleged period of disability; (2) had a severe
impairment; (3) had an impairment that met or equaled
the requirements of a listed impairment; (4) could
return to her past relevant work; and (5) if not,
could perform any other work in the national economy.
Hancock, 667 F.3d at 472.
A finding adverse to the claimant at any of several points
in this five-step sequence forecloses a disability designation
4
As set out in Craig:
The Social Security Act comprises two disability
benefits programs. The Social Security Disability
Insurance Program (SSDI), established by Title II of
the Act as amended, 42 U.S.C. § 401 et seq., provides
benefits to disabled persons who have contributed to
the program while employed. The Supplemental Security
Income Program (SSI), established by Title XVI of the
Act as amended, 42 U.S.C. § 1381 et seq., provides
benefits to indigent disabled persons. The statutory
definitions and the regulations promulgated by the
Secretary for determining disability, see 20 C.F.R.
pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing
these two programs are, in all aspects relevant here,
substantively identical.
Craig v. Chater, 76 F.3d 585, 589 n.1 (4th Cir. 1996).
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and ends the inquiry.
For example, “[t]he first step determines
whether the claimant is engaged in ‘substantial gainful
activity.’ If the claimant is working, benefits are denied.
The
second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d
157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden
at the first two steps, and if the claimant’s impairment meets
or equals a “listed impairment” at step three, “the claimant is
disabled.”
Mastro, 270 F.3d at 177.
Alternatively, if a
claimant clears steps one and two, but falters at step three,
i.e., “[i]f a claimant’s impairment is not sufficiently severe
to equal or exceed a listed impairment,” then “the ALJ must
assess the claimant’s [RFC].” Id. at 179.5
5
Step four then
“RFC is a measurement of the most a claimant can do
despite [the claimant’s] limitations.” Hines, 453 F.3d at 562
(noting that administrative regulations require RFC to reflect
claimant’s “ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis . . . [which] means 8 hours a day, for 5 days a week, or
an equivalent work schedule” (internal emphasis and quotation
marks omitted)). The 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 “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined
by the ALJ only after [the ALJ] considers all relevant evidence
of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
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requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant work”; if so, the claimant
does not qualify as disabled.
Id. at 179-80.
However, if the
claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, which “requires the
[Government] to prove that a significant number of jobs exist
which the claimant could perform, despite the claimant’s
impairments.”
Hines, 453 F.3d at 563.
In making this
determination, the ALJ must decide “whether the claimant is able
to perform other work considering both [the claimant’s RFC] and
[the claimant’s] vocational capabilities (age, education, and
past work experience) to adjust to a new job.”
at 264-65.
Hall, 658 F.2d
If, at this step, the Government cannot carry its
“evidentiary burden of proving that [the claimant] remains able
to work other jobs available in the community,” the claimant
qualifies as disabled.
Hines, 453 F.3d at 567.6
III. ANALYSIS
In the present action, Plaintiff contends that: (1) the ALJ
did not properly consider all of her functional limitations
(specifically, Plaintiff’s (a) use of a cane and (b) persistent
6
A claimant thus can qualify as disabled via two paths
through the five-step sequential evaluation process. The first
path requires resolution of the questions at steps one, two, and
three in the claimant’s favor, whereas, on the second path, the
claimant must prevail at steps one, two, four, and five.
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nausea) when assessing Plaintiff’s RFC, and therefore
incorrectly determined Plaintiff’s RFC; (2) the ALJ erred by not
considering consultative examiner’s (“CE”) medical opinions; and
(3) the ALJ’s credibility analysis is not substantiated by the
record. (Pl.’s Mem. in Supp. of Mot. for J. on the Pleadings
(Doc. 11) at 1, 4-6.)
A.
Residual Functional Capacity (RFC)
Plaintiff asserts that the ALJ erred in determining her
RFC, because the ALJ failed to take into account Plaintiff’s use
of a cane and her persistent nausea. Defendant argues that
Plaintiff has failed to establish her use of a cane was
medically necessary and, further, that her persistent nausea
resulted in any functional limitations.
1.
Use of Cane
Appendix One of the Regulations states that “[t]he
requirement to use a hand-held assistive device may also impact
on the individual's functional capacity by virtue of the fact
that one or both upper extremities are not available for such
activities as lifting, carrying, pushing, and pulling.” 20
C.F.R. Part 404, Subpt. P, Appendix 1, § 1.00(J)(4). Thus, an
ALJ is required to consider the impact of “medically required”
hand-held assistive devices. Social Security Ruling 96–9p,
Policy Interpretation Ruling Titles II and XVI: Determining
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Capability to do Other Work – Implications of a Residual
Functional Capacity for Less Than a Full Range of Sedentary
Work, 1996 WL 374185 (July 2, 1996) (“SSR 96-9p”); see Wimbush
v. Astrue, No. 4:10CV00036, 2011 WL 1743153, at *2–3 (W.D. Va.
May 6, 2011).
There are instances in the medical record where it was
noted that Plaintiff used a cane. (See, e.g., Tr. at 51.)
Defendant contends that a physician’s mere mention that a cane
was used is insufficient to establish its medical necessity.
(Def.’s Mem. in Supp. of Mot. for J. on the Pleadings (“Def.’s
Mem.”) (Doc. 16) at 5-7.) While this may be true, Plaintiff
testified that she began using a cane after falling several
times, that she uses a cane to walk, and that she can only take
a few steps without the cane. (Tr. at 83.) Additionally,
Plaintiff was prescribed a walker following back surgery in
July, 2009 (id. at 206), and was prescribed both a walker and a
four-pronged cane in September, 2011.7
Although this later
The later prescription (dated 9/12/2011), which was made
after the ALJ’s decision, was presented to the Appeals Council.
(Tr. at 762.)
7
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prescription post-dates the relevant time period, it is new
evidence that deserves consideration.8
Plaintiff’s prescription for a cane is new evidence that is
enough to trigger remand. “The court may remand a case to the
Commissioner for a rehearing under . . . sentence six of 42
U.S.C. § 405(g).” Sargent v. Sullivan, 941 F.2d 1207 (4th Cir.
1991) (unpublished table decision). Sentence six allows that:
The court may . . . at any time order additional
evidence to be taken before the Commissioner of Social
Security, but only upon a showing that there is new
evidence which is material and that there is good
cause for the failure to incorporate such evidence
into the record in a prior proceeding.
Koutrakos v. Colvin, Civil Action No. 8:13-cv-00883-JMC, 2014 WL
4955184, at *8 (D.S.C. Sept. 26, 2014). “A reviewing court may
remand a Social Security case to the Secretary on the basis of
See Bird v. Comm'r of Soc. Sec., 699 F.3d 337, 345 (4th
Cir. 2012) (consideration of medical evidence outside of
relevant time period proper when such evidence may be
“reflective of a possible earlier and progressive
degeneration”). See also Cox v. Heckler, 770 F.2d 411, 413 (4th
Cir. 1985) (evidence should not be disregarded merely because an
evaluation occurred outside the relevant time period so long as
it may be relevant to prove a disability during the relevant
time period); Kemp v. Astrue, Civil Action No. 8:09-3318-JDA,
2011 WL 4434030, at *15 (D.S.C. Sept. 22, 2011) (noting that
evidence should not be disregarded merely because an evaluation
occurred outside the relevant time period so long as it may be
relevant to prove a disability during the relevant time period);
Coulbourn v. Astrue, No. CIV S-07–0095 GGH, 2008 WL 2413169, at
*4 (E.D. Cal. June 12, 2008) (stating that medical reports
created outside the relevant time period may be relevant when
there is no evidence that the condition had changed
significantly during the interim).
8
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newly discovered evidence if . . . prerequisites are met.”
Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985).9
The subsequent medical prescription for both a walker and
a cane satisfies the requirements for consideration under
sentence six. The evidence is new and could not have been
presented earlier, because it had not occurred. The evidence is
material in that it strengthens Plaintiff’s claim of medical
necessity of a cane. Good cause for not submitting the evidence
earlier stems from the same reasoning that the evidence is new.
Plaintiff had not been prescribed the cane yet. Plaintiff
submitted the evidence when Plaintiff appealed the ALJ decision
to the Appeals Council, because it was subsequent to the ALJ’s
initial decision.
In sum, this evidence requires, at a minimum,
that the ALJ assess whether or not the use of the cane is
medically necessary and to offer sufficient reasons supporting
There are three requirements for remand under sentence
six. First, the evidence must be new. “Evidence is new . . . if
it is not duplicative or cumulative.” Wilkins v. Sec'y, Dep’t of
Health and Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)
(internal citation omitted). Second, the evidence must be
material. “Evidence is material if there is a reasonable
possibility that the new evidence would have changed the
outcome.” Id. at 96. Third, there must be good cause for
failing to submit the evidence earlier. Borders, 777 F.2d at
955. The burden of showing that the requirements of sentence six
are met rests with the claimant. See Fagg v. Chater, No. 952097, 1997 WL 39146, at *2 (4th Cir. Feb. 3, 1997); Keith v.
Astrue, No. 4:11CV00037, 2012 WL 2425658, at *2 (W.D. Va. June
22, 2012).
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that determination. Accordingly, sentence six remand for
reconsideration of this issue is proper.
The Commissioner has argued that the ALJ’s failure to
include a limitation involving the cane in the RFC is “harmless
because the VE [“vocational expert”] testified that an
individual with Plaintiff’s RFC could perform a significant
number of jobs even if she required use of an assistive device
to enter and exit the workplace, and the option to perform the
job standing or sitting.”
(Def.’s Mem. (Doc. 16) at 6-7.)
The
Commissioner’s argument does have some merit and it is a close
issue as to whether remand is required.
Nevertheless, because
this court finds that remand would be required regardless, this
court out of an abundance of caution will remand this issue for
further consideration by the ALJ.
2.
Persistent Nausea
Plaintiff also contends her persistent nausea should have
been considered in formulating the RFC. She testified that she
experienced severe nausea, for which she was prescribed
medication. (Tr. at 77.) Although the medication allows her to
eat, she stated that she continues to be nauseated “24 hours a
day.” (Id.) As noted by Defendant, a diagnosis alone does not
establish disability; rather, a plaintiff must also show a
“related functional loss.” Gross v. Heckler, 785 F.2d 1163, 1166
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(4th Cir. 1986). Here, the record does show that Plaintiff
denied she was experiencing nausea in May, July, and August of
2006. Thereafter, however, the medical records note her repeated
complaints of continuing nausea. (Tr. at 318; 586—89).
What effect, if any, this condition had on Plaintiff’s
ability to engage in work activity has not been determined.
Defendant claims that the ALJ did consider Plaintiff’s nausea
when he noted issues regarding Plaintiff’s pelvic pain and
results of a CT scan of Plaintiff’s abdomen. (Def.’s Mem. (Doc.
16) at 7.) However, nowhere in the ALJ’s decision is there any
discussion of Plaintiff’s persistent nausea. It is not clear to
this court that a determination regarding nausea is the natural
extension of the ALJ’s consideration of Plaintiff’s pelvic pain
and CT results. “We cannot determine if findings are unsupported
by substantial evidence unless the Secretary explicitly
indicates the weight given to all of the relevant evidence.”
Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). When it
is unclear from the record whether or not the ALJ’s decision is
supported by substantial evidence, a district court can remand a
case under sentence four of § 405(g). “To remand under . . .
sentence four, the district court must either find that the
decision is not supported by substantial evidence, or that the
Commissioner (or the ALJ) incorrectly applied the law relevant
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to the disability claim.” Jackson v. Chater, 99 F.3d 1086, 1092
(11th Cir. 1996).
With the present record, this court is unable to ascertain
whether Plaintiff’s nausea was considered and rejected by the
ALJ, or whether the ALJ found that the persistent nausea caused
no impact on her ability to work. Because there is no indication
of the weight given to Plaintiff’s nausea in Defendant’s
calculation of the RFC, it is unclear whether the finding was
supported by substantial evidence.
In sum, Plaintiff has demonstrated that the ALJ’s
formulation of the RFC may be in error. The ALJ did not consider
Plaintiff’s prescription for a cane and walker in determining
whether Plaintiff’s use of a cane was medically necessary and
impacted her RFC and the ALJ did not make clear whether or not
Plaintiff’s persistent nausea was considered at all in
determining the RFC. Plaintiff’s arguments on these issues merit
remand under sentence four and sentence six.
B.
Medical Opinion Evidence
Plaintiff argues that the ALJ erred by failing to consider
and to weigh the opinions of the Consultative Examiners [“CE”],
Dr. Scott T. Schell and Dr. John A. Surmonte. However, a review
of the ALJ’s decision clearly indicates that the treatment
records of these physicians were reviewed by the ALJ. (Tr. at
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48.) Nonetheless, Plaintiff is correct in her argument that
these opinions were not given any specific weight by the ALJ.
Regardless of the source, the ALJ must evaluate every medical
opinion received. 20 C.F.R. § 404.1527(c). While an ALJ is under
no obligation to accept any medical opinion, see Wireman v.
Barnhart, Civil Action No. 2:05CV00046, 2006 WL 2565245, at *8
(W.D. Va. Sept. 5, 2006), he must explain the weight accorded
such opinions. See Social Security Ruling 96-2p, Policy
Interpretation Ruling Titles II and XVI: Giving Controlling
Weight to Treating Source Medical Opinions, 1996 WL 374188
(July 2, 1996) (“SSR 96–2p”); Social Security Ruling 96-6p,
Policy Interpretation Ruling Titles II and XVI:
Consideration
of Administrative Findings of Fact by State Agency Medical and
Psychological Consultants and Other Program Physicians and
Psychologists at the Administrative Law Judge and Appeals
Council Levels of Administrative Review; Medical Equivalence,
1996 WL 374180 (July 2, 1996) (“SSR 96–6p”). Like with
Plaintiff’s nausea, it is unclear from the record what weight
was given to the opinions of the CEs. The treatment records are
mentioned (Tr. at 48), but there is no record of what weight the
treating records received in the ALJ’s decision. Having failed
to do so, sentence four remand is appropriate on this issue.
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C.
Credibility
Finally, Plaintiff challenges the ALJ’s credibility
determination. The ALJ found that Plaintiff was not fully
credible, citing her activities of daily living (going with her
husband to his job, shopping for groceries, cooking, watching
television, and playing word games); her use of a cane, though
it was not prescribed; and her failure to comply with prescribed
medications. (Tr. at 51.)
In Craig v. Chater, 76 F.3d 585 (4th Cir. 1996), the Fourth
Circuit addressed the issue of credibility and outlined a twopart test for evaluating the credibility of a claimant's
statements about symptoms. “First, there must be objective
medical evidence showing ‘the existence of a medical
impairment(s) which results from anatomical, physiological, or
psychological abnormalities and which could reasonably be
expected to produce the pain or other symptoms alleged.’” Id. at
594 (quoting 20 C.F.R. §§ 416.929(b) & 404.1529(b)). Upon
satisfaction of part one by the claimant, the analysis proceeds
to part two, which requires an assessment of the intensity and
persistence of the claimant's symptoms, and the extent to which
they affect his or her ability to work. Craig, 76 F.3d at 595.
The step two inquiry considers “all of the available
evidence,” including objective medical evidence (i.e., medical
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symptoms and laboratory findings), medical history, a claimant's
daily activities, the location, duration, frequency and
intensity of symptoms, precipitating and aggravating factors,
type, dosage, effectiveness and adverse side effects of any pain
medication, treatment, other than medication, for relief of pain
or other symptoms and functional restrictions. Id.; see also 20
C.F.R. § 404.1529(c)(3); Social Security Ruling 96-7p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms
in Disability Claims: Assessing the Credibility of an
Individual’s Statements, 1996 WL 374186 (July 2, 2996) (“SSR
96-7p”). The ALJ may not discredit a claimant solely because her
subjective complaints are not substantiated by objective medical
evidence. See Craig, 76 F.3d at 595–96. However, neither is the
ALJ obligated to accept the claimant's statements at face value;
rather, the ALJ “must make a finding on the credibility of the
individual's statements based on a consideration of the entire
case record.”
SSR 96–7p.
Here, the ALJ’s credibility determination is not supported
by substantial evidence. First, Plaintiff’s testimony as to her
activities of daily living did not suggest greater functioning
than she alleged. The activities cited by the ALJ, including
watching television and playing word games, are limited and do
not undermine Plaintiff’s allegations. Indeed, courts both in
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this circuit and elsewhere have recognized that a claimant's
ability to perform modest activities of daily living is not a
reason to reject claims that impairments cause disabling
limitations.10 Additionally, contrary to the ALJ’s reference,
Plaintiff stated that she no longer cooked and that her husband
did the grocery shopping. (Tr. at 80, 82).
The ALJ also concluded that Plaintiff was not credible,
because she was non-compliant with her prescription medication
regimen, although the only instances to such in the record
include one occasion where Plaintiff alleges she ran out of
Vicodin and an instance where Plaintiff was not currently taking
antidepressant medication. (Id. at 564, 583.)
The first
instance does not demonstrate any willful noncompliance, just a
need to refill her prescription, and it is not evident from the
latter incident that Plaintiff had a current prescription at
See, e.g., Bartley v. Astrue, Civil Action No. 5:08cv089,
2009 WL 3712682, at *9 (W.D. Va. Nov. 3, 2009) (finding “cooking
once per day, dusting once per week, shopping with assistance
once every two weeks, reading the newspaper, talking on the
phone, [and] watching television” does not indicate an ability
to work), report and recommendation adopted, 2009 WL 4155920
(W.D. Va. Nov. 24, 2009); Thompson v. Sullivan, 987 F.2d 1482,
1490 (10th Cir. 1993) (“The ‘sporadic performance [of household
tasks or work] does not establish that a person is capable of
engaging in substantial gainful activity.’”) (quoting Frey v.
Bowen, 816 F.2d 508, 516–17 (10th Cir. 1987) (alterations in
original)).
10
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that time.
Consequently, this is not enough to discredit
Plaintiff.
Further, in finding Plaintiff less than fully credible, the
ALJ discounted Plaintiff’s allegations of severe back pain. In
doing so, he relied on medical records indicating objectively
normal or mild findings. The decision noted that there was
significant improvement in her leg, hip and pelvic pain.
However, these records do not address Plaintiff’s ongoing back
pain following her lumbar fusion surgery in July, 2009. In fact,
she was referred to a pain clinic for her continuing pain.
Additionally, the record contains a September, 2010 medical
treatment note from Plaintiff’s primary physician who found that
Plaintiff was negative for depression and anxiety. (Tr. at 697—
98.) However, less than one week later, Plaintiff was examined
by her treating psychiatrist who assessed major depression and
PTSD. (Id. at 686.) This illustrates the record does not
indicate credibility issues with Plaintiff’s mental health
assertions.
Although an ALJ’s credibility determinations are to be
accorded great deference, see Shively v. Heckler, 739 F.2d 987,
989 (4th Cir. 1984), the credibility finding in the present
action is not supported by substantial evidence. The ALJ found
Plaintiff not credible based on supposed inconsistency found
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when he compared his assessment of her activities (cooking,
shopping, going to work with her husband) in comparison to
Plaintiff’s asserted pain and inability to function. However,
upon closer inspection of the transcript as described in depth
above, no such inconsistency seems to actually exist. As such,
this issue is also appropriate for reconsideration upon sentence
four remand.
IV.
CONCLUSION
IT IS THEREFORE ORDERED that Plaintiff’s Motion for
Judgment on the Pleadings (Doc. 10) is GRANTED and that
Defendant’s Motion for Judgment on the Pleadings (Doc. 15) is
DENIED. This case is remanded11 to the Commissioner of Social
Security pursuant to sentence four of 42 U.S.C. § 405(g) for
further administrative proceedings relating to (1) Plaintiff’s
11
The decision of whether to reverse and remand for
benefits or reverse and remand for a new hearing is
one which “lies within the sound discretion of the
district court.” The Fourth Circuit has held that it
is appropriate for a federal court to “reverse without
remanding where the record does not contain
substantial evidence to support a decision denying
coverage under the correct legal standard and when
reopening the record for more evidence would serve no
purpose.” Remand, rather than reversal, is required
when the ALJ fails to explain his reasoning and there
is ambivalence in the medical record, precluding a
court from “meaningful review.”
Liles v. Colvin, No. 5:13-CV-749-BO, 2014 WL 6694075, at *3
(E.D.N.C. Nov. 26, 2014) (internal citations omitted).
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nausea and its impact on her RFC determination, (2) CE medical
opinion evidence, and (3) determination of Plaintiff’s
credibility in accordance with this Memorandum Opinion and
Order. This case is also remanded to the Commissioner of Social
Security pursuant to sentence six of 42 U.S.C. § 405(g) to
permit the Commissioner to consider the post-hearing evidence
regarding Plaintiff’s use of a cane.
A judgment consistent with
this Memorandum Opinion and Order will be entered
contemporaneously herewith.
This the 24th day of February, 2015.
_______________________________________
United States District Judge
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