FLETCHER v. COLVIN

Filing 13

MEMORANDUM OPINION and RECOMMENDATION signed by MAG/JUDGE JOE L. WEBSTER on 7/23/2015. RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sent ence four of 42 U.S.C. § 405(g). To this extent, the undersigned RECOMMENDS that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be DENIED, and that Plaintiffs Motion for Judgment on the Pleadings (Docket Entry [ ]9) be GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, the undersigned RECOMMENDS that it be DENIED. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MARI-A FLETCHER,
Plaintiff,
v

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

Defendant.

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t14CV380

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, MarIa Fletcher, has brought this action to obtain review of a ltnzl decision of
the Commissioner of Social Security denying her claims for social security disability benefits
The Cout has befote it the certified administative record and ctoss-motions fot judgment.

I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for a pedod of disability and disability
insutance benefits on October28,201,0, alleging a disabiüty onset date of Decembet'1,5,2009,

which was later amended to October 18,2010.

(Ir. 1,5,37,1,60,244.) The application

denied initially and agarn upon reconsideraio¡. (Id. at 109-11,2,
requested

1,1.6-'1,"1.9.)

was

Plaintiff then

a hearing befote an -A.dministrative Law Judge ("ALJ"). (Id. at7.) Ât

the

('1¡E").

Qd.

November 20,201,2 headng were Plaintiff, her attorney, and a vocational expert

On February 11,201,3, the ALJ determined that Plaintiff was not disabled undet the

^t34.)
Act. (Id. at 1,5-29.) On Match 6, 201.4, the Appeals Council

denied Plaintiffs request fot

review, making the ,\LJ's determination the Commissioner's final decision for purposes
fevlew

of

(Id. at 1,-4.)

II. STANDARD FOR REVIEW
The scope of judicial review of the Commissioner's final decision is specific and
naffow

Smith u. Sthweiker, 795 F.2d 343, 345 (4th Cn.

determining

if

thete is substantial evidence

decision. 42U.5.C.

$ a05(g); HanÍeru.

907 tr.2d1453,1,456 (4th Cir.

1986). Review is limited to

in the record to support the Commissionet's

Salliuan,993F.2d31,,34 (4th Cit. 1.992);Ha1su. Salliuan,

1990). In teviewing for substanttalevidence, the Cowt

does

not

te-weigh conflicting evidence, make credibil-ity determinations, or substitute its judgment for
that of the Commissioner. Craigu. Chater,76F.3d 585, 589 (4th Cir. 1996). The issue before

the Coutt, therefore, is not whether Plaintiff is disabled but whethet the Commissionet's
finding that she is not disabled is suppotted by substantial evidence and was reached based
upon a correct application of the relevant

law.

Id.

III. THE AIJ'S DISCUSSION
The ALJ followed the well-established fìve-step sequential analysis to ascertain whether

the claimant is disabled, which is set
Soc. Sec.

Adnin.,

1,74

foth in 20 C.F.R. SS 404.1520.

See

F.3d 473, 475 n.2 (4th Cn. 1,999). Here, the ,\LJ

Albrigþtu. Comm'rof

ftst

determined that

Plaintiff had not engaged in substantial gainful activity since her amended onset date of
October 1.8,201.0.

Qt

at'1,7.) The ÂLJ next found that Plaintiff had the following severe

2

impafuments: degenetative joint disease of the lumbar spine; degenerative joint disease of the
bilateral knees; depressionl post-traumatic stress disorder; and panic disotdet.
thtee, the

(Id.) At

step

AtJ found that Plaintiftdid not have an impaitment or combination of impaitments

listed in, or medically equal to, one listed in ,\ppendix

fourth step of the sequence,

^t

1.

(Id. at

19.) The ALJ teached

the

which point she detetmined that Plaintiff could return to her

past relevant work as a ticketer as it is actually and generally

perfotmed. (Id. at27 .) The ,\LJ

made alternative step five findings and concluded that given Plaintiffls age, education, work
expetience, and RFC, there were other jobs that Plaintiff could petfotm, such as industtial
cleaner, laundry checker, and a self-service laundtomat attendant. (Id. at

28.) Consequently,

the ,\LJ determined that Plaintiff was not disabled from the amended alleged onset date
(October 18,201.0) thtough the date of the decision (February 1.1.,20'1.3.). (Id. at28.)

Pdot to step four, the Â.LJ detetmined Plaintiffls RFC based on an evaluation of the
evidence, including Plaintiffs testimony and the findings of treating and examining health cate

providers. (Id. at 22-26.) Based on the evidence as a whole, the

A{

detetmined that

Plaintiff retained the RFC to perform a limited range of medium wotk. Qd. at

22.)

Specifically, the Ä.LJ concluded that Plaintiff could petform medium work, except that she
(1) could frequently climb, kneel, and crawl, and she could occasionally stoop and crouch; (2)

must avoid concentrated exposure to hazardous conditions; (3) had the mental RFC to
petform simple, routine tasks, follow simple, short instructions; make simple, wotk-telated
decisions; and zdapt to a few workplace changes; (4) could perform work at a fìxed production
tate or pace; and (5) could have only occasional intetaction with the genetal

3

public.

(Id.)

IV.

ANAIYSIS

Plaintiff makes three arguments. First, Plaintiff contends that the ÂIJ failed to point
to substantial evidence in suppon of her RFC findings. (Docket E.rtry 10 at3.) Second,

she

contends that substantial evidence does not support the ALJ's decision at step three that she
does not meet the requfuements of

Listing1.02A. (Itl.) Third, Plaintiff contends that the

-{LJ violated Social Security Rulings 96-8p and 96-9p with tespect to her ability to ambulate

Qd.) Fot the following teasons, the undersigned concludes that remand is in ordet.

A.

The AIJ's RFC Determination Is Not Suppoted By Substantial Evidence.

Plaintiff contends that the ÂLJ failed to point to substantial evidence in support of her

RFC fìndings. (Docket Entty 10
responsibility to determine
a0a.1,527

a

^t

claimant's

4-1,0.) The ÀLJ is charged with the ultimate

RFC. 20 C.tr.R. SS 404.1546(c); 404.1,5a5@)(3);

(e)Q). The RFC is based on all of the relevant evidence, including medical recotds,

medical source opinions, daily activities, and subjective allegations and descriptions of

limitations. 20 C.F.R. S 404.1545;

S.S.R. 96-8p, 1996 \XT- 374'1.84,

at*5

Flete, the ALJ concluded that Plaintiff could petform a limited r^nge of medium work.

fr. 22.) Medium work "involves lifting no more than 50 pounds at a tkne with ftequent
lifting or carryingof objects weighing up to 25 pounds"

and requires an

individual to be on her

feet fot up to six hours during an eight-hour workday. 20 C.F.R. S 404.1567þ)-(c); SSn
83-10, 1983 ìfL

31,251,,

at

x5.

"Occasionally" is defined as up to 1,/3 of a workday, while

"frequendy" is define d as l, / 3 to 2/ 3 of a workday. SSR 83-10,
understand why the ALJ has not pointed

to

4

1,983

substanttal evidence

WL

31.251.,

ñ*5-6.

To

in support of het RFC

finding,

a discussion

of the petinent medical evidence, and the AIJ's evaluation of it, is first in

otdet.

i.

Dr. Morgan

On September 3, 201,0, roughly six-weeks ptior to the amended onset date of October
18,2010, Plaintiff visited het pnmary cate physician, Dr. Ken Morgan with complaints of dght
knee

pain. Qr 256.) Plaintiff noted that her pain had been on and off for the past six to

it

had gotten worse over the last couple of weeks.

Qd.)

Plaintiff had no pain with gentle extension flexion and no instability to stress testing.

Qd.)

severì years, but complained that

Manipulation of the knee caused sudden sharp pain with certain movements, but tesolved in
second or

a

two. (Itl.) Dt. Motgan concluded that these symptoms were consistent with a

ptobable degenerative

teaLt

of the meniscal carllage in the dght knee, teferred Plaintiff to àn

orthopedist, and prescdbed Ibuprofen 800

mg. (Itl.) "[I]n

the meantime, [Dt. Morgan's

notes] advised careful activities us[ing] crutches ot the walker she has with her this morning"
and

"in [the] meantime avoid walking on uneven ground where

knee." (Id.) In Deceml:,er

2010,

she could stumble

ot t'wist her

Dt. Morgan advised that if Plaintiff latet needed sttonget

medication, she could go to the pain

clinic.

(Id. at 364.)

The z{.LJ did not atüibute any particular weight to Dr. Morgan's opinions, though she
did discuss

them. (Ir.

18, 23 referendng42,364.) The

AIJ

accurately noted that Dt. Morgan

offeted to make Plaintiff an appointment at a pain clinic to manage her pain, and that at her
administtative hearing Plaintiff testifìed that she had not teceived treatment fot her knee since

5

Iate 20111 and testified futther that she only took

ii.

Ibuptofen.

(Id.)

Dt. Veneziano

On Octobet 18, 2010, roughly six weeks aftet she met with Dr. Motgan, Plaintiff saw
an otthopedist, Dr. Joseph

.{. Veneziano, Jt., for her complaints of dght knee pain. Qr. 251.)

Dr. Veneziano noted that Plaintiff sought a second opinion because a different doctot, Dr.

Taft, had recoffunended a total knee replacement. (Itl.) Dt. Veneziano also noted that
Plaintiff ambulated with a walket, and that

she

tepoted occasional locking with incteased pain.

Qd.) Het x-ray showed sevete osteoarthritis in all three compartments and "bone-on-bone
atthritis," and Dt. Veneziano-who acknowledged that Plaintiff may have had a meniscus
¡sa1-¡sld Plaintiff that het only surgical option would most likely be a total knee replacement.

(Itl.) Plaintiff

was described as having post traumatic sttess disotder and thus as being leery

of

this procedute, but Dt. Veneziano noted that an arthroscopy might also be an option if she did

not want a total knee teplacement.

(Id.) Dr. Veneziano

also noted that she had received an

"injection" recendy, and that he consequently could not provide her with anothet injection
that day, but could in sevetal months. (Id.)

The,\LJ did not attribure any parícular weight ro Dr. Yeneziano's opinions, although
she did discuss them essentially as set

foth above. Qr. 17, 23.)

The ALJ also specifìcally

noted that Dt. Yeneziano told Plaintiff that she could return fot shots in an effott to contol

her

pain. (It. 17-18,23

referenùng251.) -Àgain, howevet, the -A.LJ accurately noted that

Plaintiff testifìed at her heating that she had not teceived tteatment for her knee since late

t Th. Àt1 ertoneously
Qr.25,26).

stated "late 2071" in her decision
6

Qr.

23), but later correctly states "late 201.0"

20112 arrd thàt she only took Ibuptofen

fot her knee pain. Qt. 23 referendngTr 42.) The

ÂLJ futther pointed to an entry wtitten by her social wotket and therapist the day after
Plaintiff saw Dr. Veneziano in which Plaintiff reports that she planned "to hold off
replacement as long as she can stand it since another tound would be needed in het lifetime."
Ç r. 23 referenùng T r 322.)

iii.

Dr. Setty

On -Apdl 26,2011, about six months after meeting with Dr. Veneziano, Dr. Janal<tram
Setty conducted a consultative examination of

that she uses

a

Plaintiff. Çr. 277.) Plaintiff told Dt.

walker most of the time, beginning in August 201,0.

that she sometimes uses a cane, especially if her back

(Id.) Plaintiff

Setty

also stated

hut. (Itl.) Upon examination, Dt

Setty noted that Plaintiff walked without assistance, with a wide-based gait, but that she drug

her feet slightly. Qd. at 278.) Dr. Setty's notes state that Plaintiff brought a walker with het
and used the walker in the hallway (id.), but latet also indicated that Plaintiff did not use a

walket when walking in the hallway, but brought one with her, (id.

^t

279). However, in any

event, Dr. Setty indicated that Plaintiff used the walker when she left the

office.

(Id. at279.)

Dr. Setty diagnosed Plaintiff with (1) degenerative joint disease of the lumbat spine,

(2)

joint disease bilateral knees, (3) Type 2 diabetes, non-insulin-dependent,

(4)

degenerative

hypertension, moderately severe, (5) morbid obesity, (6) chronic depression, and (7) PTSD

with severe anxiety. (d. at280.) Dr. Setty concluded that that Plaintiff could stand fot fout
hours and "maybe" walk fot fout hours, and noted that Plaintiff "mighC'need
and that a walker would "probably" be beneficial for distance and uneven

'

Again, the ALJ stated "late201.1" in het decision

[r.23),

-7

a

walker or cane

terrain. (Id.) Dr

but latet correctly states 2010 Qt25,26.)

Setty found that Plaintiff could hft/catry ten pounds occasionally and ftequently, climb one

flight of staits and perform occasional stoopirig, with no balancing, crouching, ot ctawling.
(Id. at280-81.) He also found that she should notwork at heights ot around hear,ry machinery
(Id. at281..)

The ALJ also described Dr. Setty's medical opinion, largely as descdbed above.

25.) However,

she atttibuted

(Ir.

Dr. Setty's opinion "little weight." Qd.) In suppott of her

decision to affotd Dr. Setty's opinion little weight, the ÂLJ stated that Dt. Setty's opinion is

not suppoted by othet evidence in the tecotd or by Dr. Setty's own reported observations.

(Id.) Futhetmore, the ALJ

accurately pointed out that claimant had not teceived ueatment

fot her back or knees since late 201.0 and that she only used Ibuprofen for pain

telief. Ql25

referenùng42,364.) The,\LJ also characterized Dr. Setty's report as concluding that Plaintiff
had normal gait and coordination, with no back spasms, normal motor strength and muscle

bulk and tone. Çt.25

iv.

referencing2TT-81,.)

The State Agency Consultants

.A.dditionally, at Plaintiffs initial level of determination in May 2011, non-examining

disability examinet, Mt. Matk Swindell found that Plaintiff could frequendy
ten pounds, occasionally

lift

ltft andf or carry

andf or carry twenty pounds, could stand, walk, and sit fot about

six houts in an eight hour day; could frequently climb ramps and staits; occasionally climb
ladders, ropes, and scaffolds; had no limitatiorìs on balancing, stooping, kneeling, ctouching or

crawling; but should avoid concentated exposure
reconsidetation

in

.dugust 2011,

a

to hazards. (Tt. 85-87.)

second non-examining disability examinet,

8

Upon

Dt.

Jack

Dtummond, found similar limitations to that of Mr. Swindell, except found futhet that
Plaintiff could frequently kneel or crawl, and could occasionally ctouch. (Id. at 101-03.)
The,A,LJ described Dr. Drummond's medical opinion,latgely as descdbed

25.) Like
as

above. (Tt.

the opinion of Dr. Setty, the ÅLJ affotded Dr. Drummond's opinion "little weight"

to his conclusion that Plaintiff could only perform light work, because Plaintiff had teceived

no treatment since late 201,0 and had testified that she only took Ibuptofen For pain
referendng

relief.

(Id.

42,364.) However, the ÂLJ atúibuted "significant weight" to PlaintifPs postutal

and environmental limitations, because these limitations wete said to be generally suppotted
by other tecotd evidence. (Id. at25.)

v.

The ALJ's Decision

In short, the ALJ declined to give the physicians more than little weight regarding their
assessment

pr.

of Plaintifls proper exettional level. In summary, Plaintsf?s teating physician

Morgan) diagnosed a ptobable degenetative te

r of the meniscal

carttlage, presctibed

Ibuprofen 800 mg (and offered the services of a pain clinic), advised that she use a walker until
she could see an orthopedist, and referred her

to an otthopedist. That orthopedrst (Dr.

Veneziano) concluded that Plaintiff had sevete "bone-on-bone" osteoarthdtis, a possible
meniscus teat, and that she needed a total knee teplacement, or perhaps arthtoscopy, and
concluded further that Plaintiff could receive injections to help with het
state agency consultant

pr.

pain. The examining

Setty) concluded that Plaintiff could only hft/carry ter' pounds

and could only stand for four hours and "maybe" walk for four hours, and noted that Plaintiff

"might" need a walket or cane and that a walket would "probably" be beneficial for distance

9

and uneven terrain. The non-examining state agency consultants (Dr. Dtummond and Mt.

Swindell) also concluded that Plaintiff could ftequently

hft and/or catry ten pounds,

occasionally hft and/ot c^nry twenty pounds, and could stand, walk, and sit fot six houts in an
eight hour day.
Nevertheless, after affording the physicians little weight tegatding Plaintiff's proper

exettional level, the ,\LJ concluded

perfotm

a

in her February

1,1,,2013 decision that Plaintiff could

teduced tarLge of medium work, in latge part because Plaintiff testified that she had

not received any treatment since late 2010 for her degenetative joint

disease and the

osteoatthritis in her knees, particulatly het dght knee.

suppott, the ÄLJ

Çr.26.) In futther

also pointed out that at her administrative hearing, Plaintiff "testifìed that she went out to eat
at Golden Conal, a buffet restaurant, three times in six

months. (Heating Testimony). This

demonsttates that the claimant can hft, carry, stand, walk, and balance." (Id. at 24

referencing

Tr. 59.) The ALJ pointed futher to a statement Plaintiff made to het social worker

and

thetapist that she had a good Thanksgiving and that she had cooked a tutkey fot only the
second

time.

(Id. at 24 referenùagTr. 395.) From this, the ,{LJ concluded that Plaintiff can

"stand, Iift, and

carry."

(Id. at24.)

The ALJ also concluded that "the claimant's reported activities of daily living do not
support her allegations of disability." Çr.

2a.) The ,ô.LJ made her fìndings as to PlaintifPs

activities of daily living in step three, where she detetmined that:
She

repoted that

she performed some household chores, such as

light dusting, washing dishes, washing the laundry, sweeping, and
ftimming flowers. She also repotted that she prepated simple
meals, such as microwave dinners and some light stovetop items.
(Exhibit 6F,-3). The claimant also teported that she continued
10

to drive, and that

she went shopping

in

stores and on-line

(Exhibit 6E-4).

it

(Id. at 21,.) Consequendy,

was these activities

of daily living that the ,\LJ took into

considetation in determining that Plaintiff could petform medium work.

vi.

Assessment of PlaintifPs Activities of Daily Living

The undersigned is not persuaded that PlaintifFs activities of daily living consideted
individually or collectively-as aticulated by the,\LJ-provide substanlal evidence for the
ability to perform medium work.3 The undersigned is futther concerned that the

have also failed

to

consider Plaintiffs asserted activities

in theit entìtety

improperly equated those activities with the ability to perform medium level
Bjorwon

u.

,\IJ

may

and may have

work.

See,0.!.,

Astrae,671 tr.3d 640,647 (7th Cir. 201,2) ("The critical diffetences between activities

of daily living and activities in

a

full-time job are thataperson has more flexibility in scheduling

the formet than the latte1 can get help ftom othet persons . . . and is not held to a minimum
standard of perform^nce,

^s

[a claimant]

would be by an employet.") (citations omitted). On

remand, the ,\LJ should build a logical bddge between the evidence and het fìndings that
permits the Court to review fot substantial evidence. Clffird ,. ,4pft/, 227 F.3d 863,872 (7th

Cir. 2000) (observing that the ,\LJ "must build an

^ccur^te

and logical bddge from the

evidence to [the] conclusion").
1

See, e.g., Kalmbacb a. Comm'r of Soc. 5et.,409 F. Âpp'* 852,864 (6th Cfu. Jan.7,2011) ftolding that the
plaintiffs ability to go to the grocery store, the phamacy, and church, prepare her own meals most of
the time, dress herself without assistance, and drive for at least thitty minutes per day wete "minimal
activities [] hardly consistent with eight hours' worth of typical work activities"); lVeb¡ter u. Colrin,No.
3:1.3-CY-497-TÀV-H8G,2014 SøL 4095341.,'aL*9 (E.D. Tenn., Aug.19, 2014) ("f\he Coutt is not
persuaded that the PlaintifPs daily living activities necessariþ support an RFC of medium work. The
.{LJ noted an independence in self-care and an ability to take care of pets, prepare simple meals,
perform light household chores, drìve, walk, go out alone, shop in stores, manage fmances, tead for
short periods of time, watch TV, and socialize by attendingyard sales and family gatherings.").

11.

In support of this conclusion, the undetsigned notes the following. First, Plaintiff did
not testifu that "she went out to eat at Golden Corr:al, a buffet restauraflt, thtee times in six

months." Rather, Plaintiff testified that she "maybe" ate out three times in a six month
period and she thought that last of these outings was a Golden

Cottal. (Ir. 59-60.) Not did

Plaintiff state that she served herself at the buffet at Golden Corcal, although the ALJ
presumed

so. (Id. at 24, 59-60.) However,

even assuming Plaintiff visited Golden Cotral

three times in six months, and assuming further that she served herself at the buffet, without

further explanation from the ALJ, the undersigned still does not undetstand how the ,\LJ's
fìnding supports a conclusion that Plaintiff is able to spend up to six hours a day working on

her feet and lifting up to twenty-fìve pounds or spend up to one-third of an eight hour
wotkday lifting up to fìfty pounds. Second, and likewise, the undersigned cannot discern why

Plaintiffs ability to cook one turkey of an indeterminate weight undet indetetminate
circumstances dudng a multi-year period of alleged disability provides substantial evidence for

the petfotmance of medium work.

Third, the undersigned reaches the same conclusion at to Plaintiffs ability to petfotm
light dusting, washing dishes and laundry, sweeping, trirnming flowers, using the microwave,
and light stovetop cooking. The ÅLJ based these findings on PlaintifPs self-tepotting.
21,4-221,.) Plaintiff reported that she lives alone in

a

(ft.

mobile home and that while she performs

"light dusting, wash dishes, laundry, light broom sv/eeping, [and] ttim flowers" "[i]t takes

a

long time because I have to stop to rest" and that she needs "help with everything due to þet]
walker and limited mobility, but [she] has no one to help þet]." (Id. at 214,2'1.6.) Plaintiff

12

futher reported that her use of the mictowave and her light stovetop cooking genetally took
less than fìve minutes and that her stovetop cooking and oven cooking were gteatly decreased.

(Id.

at216.)

She also reported that she

"just can't stand long enough to prepate

-

[she] sit[s]

dowrì.." Qd. at 221,.) The ,{IJ did not address these qualifications in addtessing Plaintiff
activities of daily

living. In

any event, without explanation,

it is uncleat to the undetsigned

why Plaintiffls ability to perfotm these tasks suppotts the lifting and standing demands
tequited by an RFC fot medium work.
Fourth, the ÂLJ correctly noted that Plaintiff continued to do some ddving during her
alleged period of disabiJity. (Id.

^t

21., 53,

60-66.) The ALJ found that Plaintiff traveled by

cat

oî trips to unnamed destinations in December of 201,1,,Jantary of 201.2,

the

Noth

Carchnamountains in201,1 and20'1,2;

ddve with a friend to "see the leaves."

a

(Id.at24.)

ttip to Myrtle Beach, South Carohna;anda
These

an hour, though the trip to Myrtle Beach was fot fout
Stone Mountain State Park she "sat in

þe{

Febtuary of 201.2;

tips were genetally taken alone fot

hours. (Id.) Plaintiff testified that at

car andwatched the

tivet" but that she did not go

down to the river. Qd. at 62) She testified funhet that she stayed at cabins in the Blue Ridge
Parkway, that they had ramps that were easy to get to, and that while she was there she sat "orì

the ftont potch and looked at the scenery." (Id. at 62-63.)

Plaintiff also testified that on a trip to the beach she "basically just either lay on the bed
and look out at the water and rcad,
[She did

66)

ot [sat] - if it[ was] warm enough, [sat] on the balcony.

not] do any walking" and only left het room to "go through

a

drive-through." (Id. at

Finally, when the ÂLJ completed her questioning of Plaintiff, Plaintiff asked to clanfy

1,3

a

point that she was concetned might mislead the

ALJ. (d. at 68.) Specifically,

she testified,

"CouldI add... one thing... thatmightbemisleading? I'mso sorry. WhenI drive, I do.
. . I have to stop and get out and stretch and rest because I iust cannot sit for that
learned to test and

stop."

long. I've

(Id. at 68.)

Âgain, the undersigned does not understand why Plaintifls ability to take these ttips
over a multi-year period-most of which involved ddving an hour and apparcntly temaining
sedentary upon afftva.l-lt¡ould translate

to an

al:,Lhq,

to repeatedly lift twenty-fìve to fifty

pounds for a considerable portion of the day or to stand fot most of
the

AIJ did not addtess the qualification

a

wotk day. Additionally,

that Plaintiff added at the end of het testimony that

she needed to take bteaks dudng the coutse

of her driving to sttetch and rest, nor did the ÂLJ

address Plaintiffs descdptions of her limited activities dudng the course of those trips.

Fifth, the ÂLJ also found that Plaintiff went shopping in stores and on-line. (Id.

Às an initial matter, while Plaintiffs ability to shop-online may demonstrate

^î

^t21..)

ability to

concentrate to some degree, Plaintiffs ability to shop online appears immaterial to her ability

to perform the requirements of medium wotk. ,{.s fot Plaintiffls ability to shop, the ,\LJ
corectly noted that Plaintiff was able to shop and the Court notes het heating testimony
mostly addressed her ability to grocery shop. (Id. at 54, 60.) Plaintiff testified that she went
grocery shopping two times a month for thirty minutes at a
that she stood in the checkout line by leaning on the

catt.

time.

(Id. at

(Id. at

55.)

54.)

She testifìed

She testified that the

food she buys "is always higher than lower, and [she] just pullfs] it off and setfs] it down into
the cart'and when she got home she would

"pull þer] car right up to þet] front potch, and .

14

. . just kind

of open the doot and just like ttansfer it

as

much as I

can. I have to rest, and then

I get it up on the stoop, and then I get inside my house and tecuperate." (d. at 55-56.)
Ci¡tranþ. u. Coluin,

No. 2:12-cv-82-PRC,

201,3

VL

1,281824,

See

ñ x'1.4 G\.D. Ind. Mat. 27 , 201,3)

("Importantly, the -{LJ does not discuss Plaintiffs testimony that he structures his activities in
accordance with his lirnitations.") (citing SSR 96-7p at *8 and Bjornson, 671, tr.3d

^t

641).)

Without additional explanation, the undetsigned is not petsuaded that the ability to
shop for an hour

a

month would ttanslate to work at the medium exettional level. -dnd, again,

the ÂLJ did not address in her decision the considerable qualifications described in her ability

to shop. For all these teasons, while it was proper for the ALJ to consider the Plaintiffls daily

activities

in

assessing

her RFC, the cited activities taken separately and together,

as

characterization by the ÂLJ, do not ptovide substantial evidence that the Plaintiff can petform

medium

work.

See,

e.!., Cauara

u.

Astrwe,393 Fed. Âpp'* 6L2, 61,4-15 (11th Cu. 2010)

("fl]hese somewhat minimal daily functions þetforming basic household chores, cooking,
ddving, and chutchl are not comparable to typical wotk activities. . .

. [f]h.

ÀLJ did not

explain how the ability to perform basic household chores with difficulty qualified [claimant]

to perform medium wotk[.]") In shoft, consideted individually and collectively, the -ÀLJ
failed to point to substantial evidence supporting

^n

RFC for limited medium wotk.

The undetsþed does not fìnd Defendant's arguments to the contraÐ/ persuasive.
Defendant largely points to the evidence set forth above in suppott of the '\LJ's conclusion
that Plaintiff could perform medium

work.

Howevet, as explained above, the ,\LJ has yet to

point to substantial evidence justi$'ing the RF'C determination. Defendant also points to

15

evidence that the ÂLJ did not mention in her decision. This is problematic because it is the
-A,LJ's

duty to making fìndings of fact in the ftst instance, not this Coutt's. Even setting this

issue aside, however, the evidence that Defendant points to does not meaningfully furthet her

afgument.

For example, Defendant asserts that Plaintiff "did some work on her house, patching
the underpinning to keep animals from getting undet the house."4 (Docket Etttty 12 at
referenting

1,5

Tr. 385.) A review of the document to which Defendant points-a note ftom

PlaintifFs social wotker and therapist-does not ptovide substantial evidence
conclusion that she can petfotm medium

wotk.

for

the

Specifìcally, the note states that Plaintiff

"[d]id get out and do some work on her house despite pain, patching up the underpinning to
keep animals from getting in there; very sore

today. I

had encoutaged paying someone to do

it, but she said she felt stubborn and wanted to do it herself;
to st'oot aroønd on the grourud dae to her knees not holding lter

up."

took her a long time bat she did it, had

(Id. (emphasis

added).) It is unclear

to the undetsigned how the requirements of medium q¡e¡þ-5¡¿nding six hours a day and
lifting twenty-five to fìfty pounds-are consistent with "scootfing] atound on the ground" fot

"along time" where

an individual's knees

will "not hold[] het up."

The cases Defendant cites on this issue are also inapposite. Unlike this case, the
record

in

Hollowa1 u. Apfel contained

a medical source statement concluding that the

o

The additional evidence pointed to by Defendant, generally located in Plaintiffs therapy notes, does
not alter the conclusions the undersigned reaches herein. (Docket Etttty 1,2 at 7.) For example,
Defenclant points out that the ALJ found that Plaintiff adopted a cat, which she was able to care for.
(Itl.) However, the undersþed fails to undetstand how caring for a cat translates to medium work.
Defendant also points to a treatment note referencing a drive to St. Louis. (Id.) Yet, the ÄLJ never
mentioned this in her decision, perhaps because it is not clear ftom the treatment note whether this
trip took place during the alleged period of disabiJity.
16

çf2i¡2¡¡-1¡¡ho was found not to be disabled-could perform medium work and
contained activities of daily living involving

extensiue

also

ddving (of anindeterminate distance) and

walking (of an indeterminate distance). 221 F.3d 1,338,1.338 Qth Cir. 2000). Henlel

u.

Astrwe

involved a clair-:'a¡t whose daily activities involved raking leaves, fi-ring cabinets, installing
ceiling fans, and home improvements for family and a neighbot, including building a deck.

3:11CV488-FDìø-DSC, 201,2

WL

2804852,

x6

CX/.D.N.C. Muy

9, 201,2).

Nothing

comparable exists on the record here.s Fot all these reasons, remand is proper.

vii.

Assessment of PlaintifPs Ability to Ambulate

The undersigned has an additional concern, in that the ALJ's analysis of Plaintifls use

of a walker is also problematic. 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
capactty by virtue

of the fact that one or both upper extremities are not available for

activities as lifting, canying, pushing, and

pulling." 20 C.F.R. Part404,

such

Subpt. P,,\ppendix 1,

$ 1.000(4). Thus, an ,{LJ is required to consider the impact of "medically required"
hand-held assistive devices. Social Security Ruling 96-9p,1996 ì(/L 3741.85, atxT;

¡ee lWimbash

u.Astrae,No.4:10CV00036, 201,1.WL1,7431.53,at*2-3 (\í.D.Va. lr'ray 6,201,1). A hand-held
assistive device is "medically required"

if "medical documentation establish[es]

the need fot

a

hand-held assistive device to aid in walking or standing, and descdbing the circumstances fot

which it is needed." SSR 96-9p,'1,996 WL 374185, at
s

x7. Moreover,

a prescription or the

Deferrdant points to evidence Plaintiff decorated for Christmas (Tt. 395), tdmmed flowers (id. at
216), and wotked on her house by patching her underpinnng (id. ât 385). However, the undersþed
has already addressed Plaintiffs patchwork-which she apparendy had to perform ss¿¡sd-2nd
nothing in the Ä.LJ's decision or on the record explains the details of Plaintiffls decorating for
Christmas or flowet trimming.
17

lack of a presctiption fot an assistive device is not necessarily dispositive of medical necessity.
See Staples u.

Astrue,329 F. Àpp'* 189,'1.91,-92 (1,0th Ctr.2009). Thus, undet SSR 96-9P,

Plaintiff must have ptesented medical documentation (1) establishing the need for his cane and
(2) descdbing the cfucumstances for which

it is needed. Failing that, an ÂLJ is not tequired to

include the use of a walket in a plaintifls RtrC.

PlaintiFf contends this case should be temanded to detetmine whethet her use of
walker was medically necessary. (Docket E.rtty 1,0 at

a

1.3.) The Coun agrees. The ALJ in

this case failed to explicitly address whethet Plaintiffs need for a walker was medically
necessary and, at most, seems to tacitly reject the notion that it could be.6

Here, Dr. Morgan advised that, at least until she could visit a specialist, Plaintiff was
limited to "careful activities us[ing] crutches or the walker she has with her this morning" and

"in [the] meantime avoid walking orì uneven ground whete she could stumble or twist het
knee." Çr. at256.) Dr. Veneziano

also noted that

Plaintiff ambulated with a walker. (Id. at

251,.) Dr. Setty noted that Plaintiff "might" need a walker or cane and that a walket would

"ptobably" be beneficial for distance and uneven terrain. Qd. at 280.) Plaintiff was futther
observed using a walket by a consulting psychiatrist, Dr. Surya I( Challa,

M.D.

(Id. at270.)

In het decision, the ,ÀLJ tepeatedly mentioned PlaintifPs use o f a walket. (Id. at 1'7 -20 ,
6

Hamlin u. Coluin, C/'\ No. 8:12-3601,-RMG-JDÀ, 201,4 WL 587464, at *1.3-1.4 P.S.C. Jan.23,
201,4) (ALJ impropedy failed to discuss whether Plaintiffs cane was medically necessary when
determining the RFC), adopÍed, 2014 WL 588073, at *6 (D.S.C. Feb.14, 201,4); MtNair a. Coluin, No.
8:13-1218-MGL, 201,4 WL 261.4892, *18 (D.S.C. June 1,0, 201.4) ("Plaintiff has some difficulues
ambulating and may, at least at times, require the use of an assist device. þ]owever, that the ÂLJ
tejected outdght Plaintiffs claim that she tequires the use of a cane merely because it was not
prescribed by a doctot, and without any explanation as to how he resolved the conflicting evidence of
recotd tegatding Plaintiff s use of the cane, ot whether he consideted the use of a cane in determining
Plaintiffs RFC at all.").
See

18

25.) However, the ,\LJ never addressed whethet the walket

was medically necessary or

explicitly reconciled the conflicting evidence on this issue so that this Coutt can ptopedy
review the matter. Ât a minimum, the ,A.LJ should assess whether the use of the walket (ot
cane) is medically necessary and to offer teasons suppotting that detetmination.

V. CONCLUSION
None of this necessarily means that Plaintiff is disabled under the

Plaintiff

can

or caflnot perform work

^t ^ny

Äct-or

that the

particular exettional level, including the medium

exertional level-and the undersigned expresses no opinion on that matter. Nevettheless, in

Iight of all of the above, the undetsigned concludes that the propet course here is to remand

this matter for further administrative ptoceedings. Finally, the undersigned
consideration of the additional issues raise by Plaintiff at this

time.

declines

Hancock u. Barnhart,206 F.

S.rpp. 2d 757,763-64 n.3 flX/.D. Ya. 2002) (on remand, the ALJ's

ptiot decision as no

preclusive effect, as it is vacated and the new headng is conducted de novo).

,\fter a careful consideration of the evidence of tecotd, the Court fìnds that
Commissioner's decision is not suppotted by substantial evidence.

the

IT IS THEREFORE

RECOMMENDED that the Commissioner's decision finding no disability

be

REVERSED, and that the matter be REMANDED to the Commissionet undet sentence

fout of 42 U.S.C. $ a05(g). To this extent, the undersigned RECOMMENDS that
Defendant's Motion fotJudgment on the Pleadings (Docket Etttty 11) be DENIED, and that

Plaintiffs Motion forJudgment on the Pleadings (Docket Entry 9) be GRANTED. To the

1,9

extent that Plaintiffs motion seeks an immediate award

of

benefits, the undetsigned

RECOMMENDS that it be DENIED

L fi&fut+r
.{trce hl4gistnmJudge
JuIy 23,201.5

Dutham, Notth Caroltna

20