ELLER v. COLVIN
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 7/22/2015; that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Com missioner under sentence 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 12 ) be DENIED, and that Plaintiff's 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. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TANGELA COOPER ELLER,
)
)
Plaintiff,
)
)
)
)
)
)
)
)
)
)
v
CAROLYN Sr. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
l:14CY493
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Tangela Coopet Eller, seeks review of a fìnal decision of the Commissioner
of
Social Secutity denying her claims for social security disability benefits. The Court has before
it the cenifìed administrative record and cross-motions for judgment.
I. PROCEDURAL HISTORY
Plaintiff filed an application for a period of disability and disability insurance benefits in
Octobet of 2010 alleging a disabiJity onset date of October'1,0,2009,later amended toJune
1,
2009. fr.1,7,1,36-38.) The application was denied initially and again upon reconsideration.
(Id. at
60-84.) Plaintiff then requested
(Id. at 88-89.)
cxpcrt
,\t
(1/E").
the February
7
a
heating before an -Administrative LawJudge ("ALJ").
, 201,3 headng were Plaintiff, het attorney, and a vocational
(d. at 30-59.) On Match 26,201,3, the -A.LJ detetmined that Plaintiff was not
disabled undet the
-Àct. (Id. at 17-29.) On Âpril 24,
201,4 the Appeals Council denied
Plaintiffs request for review, making the ,\LJ's determination the Commissioner's fìnal
decision fot putposes of review. Qd. at 1,-4.)
II. STANDARD FOR REVIEW
The scope of judicial teview of the Commissioner's fìnal decision is specific and
Srnith a. Scbweiker, 795 F.2d 343, 345 (4th
naffou/.
detetmining
if
thete is substantial evidence
decision. 42 U.S.C.
$ a05(g); Hantera.
907 F.2d 1.453,1,456 (4th Cir.
Cir. 1986). Review is limited to
in the record to suppott the Commissioner's
Sa/liuan,993F.2d3'1,,34 (4th Cir. 1.992);Hayu. Salliuan,
1990). In teviewing for substanttal evidence, the Cout
does
not
re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for
that of the Commissioner. Craigu. Chater,76tr.3d 585, 589 (4th Cir. 1,996). The issue befote
the Coutt, thetefore, is not whether Plaintiff is disabled but whether the Commissioner'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 ALJ'S DISCUSSION
The
AIJ followed
the well-established five-step sequential analysis to ascertain whether
the claimant is disabled, which is set forth in 20 C.F.R.
Soc. Sec.
SS
404.1520.
See
Adrnin., 1,74 F.3d 473, 475 n.2 (4th Ctr. 1,999). Hete, the ÂLJ
Albright
u. Comm'r
frst detetmined that
Plaintiff had not engaged in substantial gainful activity since het amended onset date ofJune
2009. (Id.
^t
1.9.) The ,\LJ next found that Plaintiff suffered ftom a single
impaitment, fibromyalgia.
impairment
(Id.) Àt
of
1,
severe
step three, the ,\LJ found that Plaintiff did not have an
ot combination of impairments that meets or
2
medically equals one listed in
Appendix
1. (Id.) At the fourth step, the ALJ determined
that Plaintiff was unable to
perform any past relevant work. Qd. at 23.) At step five, the ÂLJ determined that, given
Plaintiffls age, education, work experience, and RFC, thete were other jobs that Plaintiff could
perform, such as mail clerk/sortet, office helpet, and
,\IJ
foldet (Itl
^t
24.)
Consequently, the
detetmined that Plaintiff was not disabled from the alleged onset date Sune 1, 2009)
thtough the date of the decision (À4arch 26,20'13.). Qr. 24-25.)
Prior to step four, the,\LJ determined Plaintiffs RFC based on the AIJ's evaluation
of
the evidence, including Plaintiffs testimony and the findings of treating and examining health
care
providers. (Id. at 20-23.) Based on the evidence
Plaintiff retained the RFC to perform
a
as a whole, the
limited range of üght
the,A.LJ concluded that Plaintiff could perform light wotk
work.
(ifting and
ALJ determined that
(Id. at
20.) Specifìcally,
carcying twenty pounds
occasionally and ten pounds ftequently and standing, walking, and sitting six hours during an
eight hout wotk day), except that she: (1) could only ftequently handle and finger brlaterally, Q)
could only occasionally climb, balance, stoop, crouch, kneel or crawl, (3) could have no
concentrated exposure
to hazards like moving machinery or unprotected heights, and (4)
should be limited to unskilled
activity.
(Id.)
IV.
ANALYSIS
Plaintiff makes three arguments. First, Plaintiff contends that the,{IJ failed to follow
Social Security Ruling 12-2p in evaluating her severe fibromyalgia. (Docket E.rt y 10 at 3.)
Second, she contends that substantial evidence does not support the,{.LJ's RFC
finding.
(Id.)
Third, Plaintiff contends that the ,{LJ failed to present a proper hypothetical question to the
-)
VE. (Itl.) Fot the following reasons, the undetsigned concludes
A.
that rcmand is in order
SSR 12-2p and Fibtornyalg¡a
Plaintiff argues that the ,\LJ ered by failing to address fibromyalgia at every step of the
process, particulady at step
three. (Docket E.ttty
10
at3.)
She contends that though the
AIJ
found at step two that Plaintiff's fibtomyalgia was severe, the ALJ never mentioned SSR 12-2p
in his decision, nor evaluated Plaintiff in light of the Ruling. (Id.)
To evaluate this argument, an understanding of the n tute of fibromyalgra, and of SSR
12-2p, is necessary. Regarding the fotmer, the Foutth Circuit has explained:
symptomsl ]
[f]ibtomyalgia is a rheumatic disease with .
including "significant pain and fatigue," tenderness, stiffness of
joints, and disturbed sleep . . . . Doctots diagnose fibtomyalgia
based on tenderness of at least eleven of eighteen standatd trigger
points on the body. . . "People with rheumatoid athritis and
othet autoimmune diseases, such as lupus, ate parttcularþ likely
to develop fibromyalgia." . . . Fibromyalgia"caninterfete with a
person's ability to carry on daily activities." "Some people
may have such a severe case of fìbromyalgi^
to be totally
^s
disabled ftom working, but most do not."
Stap u. UNUM Life Int. Co., 390 F.3d 301, 303 (4th Cft. 2004) (internal citations omitted)
abrogated on othergroønds, Metro. Life
Im
Co. a. Glenn, 554 U.S. 105
(2008).
-As
for SSR 12-2p, its
putpose is to provide "guidance orì how fthe.{dministtation] develop[s] evidence to establish
that a person has a medically determinable impairment (MDI) of ûbtomyalgia @M), and how
fthe
Administration] evaluate[s] FM in disability claims and continuing disability teviews under
tides
II
and
XVI of the Social
Security Act
(-Act)."
25,2012)
4
SSR
12-2p,2012WL3104869, at *1 fluly
B.
Step Three
When evaluating whethet a claimant meets one or more of the listed impairments, the
ÂLJ must identift the relevant listings and then compare each of the listed criteria to the
evidence of the claimant's symptoms
.
Cook u. Hetkler, 783
F.2d 11,68, 1.173 (4th Cir. 1986).
This requfues an .{LJ to compare the plaintifPs actual symptoms to the requitements of any
relevant listed impairments in mote than a summarT v/ay.
more than
a
Id.
"The ÀLJ is required to give
mere conclusory analysis of the plaintifPs impairments pursuant to the tegulatory
listings." Frale1u. Astrae, No. 5:07CV14'1.,2009
ì7L
577261,
úx25 OJ.D.!ø.Va.Mar.5,2009)
(citation omitted).
In
SSR '12-2p, the Administtation provided the following guidance as
to how to
consider fìbromyaþa at step thtee of the sequential process
FM cannot meet a listing in appendix 1 because FM is not a listed
impairment. Â.t step 3, therefore, we determine whethet FM
medically equals a listing (fot example, listing 1,4.09D in the
listing for inflammatory arthntis), ot whether it medically equals a
listing in combination with
least one othet medicaliy
^t
determinable impairment.
SSR
12-2p,2012 nØL 3104869,at*6
Here,
in his step three analysis, the -ALJ wrote "The
claimant does not have an
impairment of combination of impaitments that meets ot medically equals the sevetity of one
of the ìisted impafuments . . . . The severity of the claimant's mental impairment does not
meet or medically equal the criteda of listing 12.06."1
ffr. 19.) After setting fonh the criteda
t Lirting 12.06, the listing for anxiety-related disorders, is met if an individual meets ot medically
equals the,\ and B, or the,\ and C, cdteria. 20 C.F.R. Pt.404, Subpart P.,,\pp'x 1 S 12.06(Ð-(C).
The Ä cnter:ra are met when a claimant medically documents at least one of five symptoms. Id. The
5
for that listing-which tequires that the ÂLJ rate Plaintiffs activities of daily living, social
functioning; concentration petsistence, or pace; and repeated episodes of
decompen52den-¡þe ,\LJ conducted the following analysis
In activities of daily living, the claimant has mild
restrictions as the claimant cares for het cats, vacuums,
does laundry, watches television, and uses the computer
to pay bills. In social functioning, the clatmant has mild
difficulties as she attends Bible study on Monday nights,
gtocerT shops, and gets along with others. \)Øith regatd
to coflcenttation, persistence or pace, the claimant has
mild difficulties as the claimant stated that she could focus
and concenú^te. As for episodes of decompensation,
the claimant has
experienced no episodes of
decompensation, which have been of extended dutation.
Because the claimant's mental impairment does
not cause at least two "marked" limitations or one matked
limitation and "repeated" episodes of decompensation,
each of extended duration, the "patagraph B" crttetia arc
not satisfied.
The undetsigned has also consideted whethet the
"pangtaph C" ctitetia are satisfied. In this case, the
evidence fails to establish the presence of the "pangraph
C" ctitetia.
Çr
20.)
It is cleat from the tecotd that "the ALJ failed to discuss or even mention Plaintiffs
fìbtomyalgia" at Step 3 in concluding that Plaintiffs
impairments, singulady
or in
combination, failed to equal a listed impai-tment." Kinsry u. Coluin,No. 8:13-1723-8HH,201,4
B criteria are met by having at least two of the followrng: marked testtiction of activities of daily living;
matked difficulties in maintaining social functioning; matked difficulties in maintaining concentradon,
persistence, or pace; or repeated episodes of decompensation, each of extended dutation. Id. The
paragraph C cdteria require the complete inabrlity to function outside the area of one's home. Id.
6
Action No. 1:14CV1.26,
201,5 \Xry- 51,8645,
No. 1:12CV909, 201.3\Xry,3791439,úx4-5
ñ x'1,4 G{.D.ìø.Va. Feb. 6, 201,5); Cashin u. Coluin,
(1.{.D.
OhioJuly 1,8,201.3). The,\LJ should have
done so after detetmining that Plaintiffs fìbromyalgia was a severe impairment at step two
of
the sequential evaluation. Qr. at 19.)
Given the
A{'s
failure to mention or discuss PlaintifPs fìbromyalgia at step thtee
of
the sequential evaluation, the undetsigned cannot conclude that the,{LJ's determination that
Plaintiff did not "have an impairment or combination of impairments that meets ot medically
equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, ,\ppendix
1" Gt.
^t
1.9)
is suppotted by substantial evidence. Nor can the undersigned find that such
ertot is hatmless "because the Social Secutity regulations state that if a person's impaitments
meet or equal
a
Listing, she is disabled under the regulations and would be entitled to benefits
with no futther analysis required."
Cashin, 2013
WL
3791,439, at
undetsigned agrees that the matter should be remanded
for
*6.2 Accotdingly,
discussion
of
the
Plaintiffs
fibromyalgia at Step Three.
Defendant's atguments to the conúary are not persuasive. Defendant acknowledges
that the ,\LJ did not mention SSR 12-2p at step three, nor anywhete else in his decision, but
contends that he had no obligation to do so, so long as he fully complied with the requirements
2
Hook, 201,5 VL 51.8645, at *14-15 (concluding that failure to mention the claimant's severe
frbtomyaþa at step thtee was not harmless etror); Lillard u. Clmm'r, Sot. Sec., No. 13-cv-1458-JI3,
2014 WL 200471,0, at *3 (D. Md. May 1,4, 201,4) (remanding for futhet analysis of claimant's
fibromyalgia because "it is not clear [the ,\LJ'E decision would have been the same had she employed
the guidance of SSR 12-2p" and considering it "[s]ignificantl ]" that "the ALJ only exptessly
considered Listing 12.04, which penains to affective disorders, and she did not specifically evaluate
any Listings for physical impaitments"); Vest u. Coluin, No. 5:13CV00067, 2014 WL 4656207, at *27
(E.D. Va. Sept. 16, 2014) ('The mere fact thatan-{LJ ptoperly found a claimant capable of past work
at step four ot of othet wotk at step Frve does not render
error at step three harmless; otherwise,
^n
step thtee errors would never be teversible alone, which is cleady not the case.").
See
7
of that Rule. (Docket E.rtry 1,3 at 7.) The
undersigned agrees that thete is no per se rule
requidng remand for an -ALJ's failure to mention SSR 12-2p where fìbtomyalgia is found to be
a severe impairment at step two.
Recommendation,
it is fat from
Flowever,
for
reasons descdbed throughout *ris
cleat that the -dLJ was cogtizant of, and adhered to, the
dictates of SSR 1,2-2p.
Defendant also contends that the ALJ considered Plaintiffs fibromyalgia at step three.
(Docket Entty
1,3
at 8-1,0.) Defendant concedes that the ALJ never mentioned fibromyalgia
at step three, but teasons that the ,\LJ must have considered Plaintiffls fibtomyaþa because
was the only severe impairment identifìed by the ÂLJ at step
futher contends that the ,\LJ
suffeted
is not an
(Id. at
9.)
Defendant
analyzed Listing 12.06 because of the alleged limitations
in het ability to concentate
Â.ssuming this
two.
and focus as a result
Plaintiff
of het fibromyalgia.
impermissrlie þo:t hoo' rattonahzalon
by the
it
Qd.)
Commissionet,3
Defendant's argument-^t least at fìrst glance-seems compelling. However, Plaintiff, by
way of teply, has a compelling point as well. She suggests that by evaluating Listing 12.06
telated to anxiety impairments at step three, the ALJ was simply tracking tbe 1,2.06 analysis
conducted by the non-examining state agency physicians who wete analyzing Plaintiffs
non-severe anxiety disorder lø;thet than Plaintiffs fìbromyalgia. (Docket E.rtty 14 at
referencing
Tr.
63-64, 72-74.) Ultimately this exchange heightens the concern
of
5
the
undersigned that the ÂLJ failed to adequately explain his findings and teasoning at step thtee
3 Postbocagency rattonaltzattons are not favored. Nken u. Holder,585 F.3d 878,822 (4th Cir. 2009)
meant to say, but must instead restrict itself
(concluding that"a court may not guess at what
^n ^gency
to what the agency actually did say").
8
and may have also failed to consider a rclatvely new SSR ruling.a
See
Radþrd u. Coluin,734
F.3d 288, 295 (4th C:r.. 2013) ("i\ necessary predtcate to engaging in substantial evidence
review is a record of the basis for the ALJ's ruling.");
see
also
Iuþt
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