FERGISON v. COLVIN
Filing
15
MEMORANDUM OPINON AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE, signed on 03/02/2017 recommending that the Commissioner's Decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence 42 U.S.C. § 405(g). Defendant's Motion for Judgment on the Pleadings 13 should be DENIED, and Plaintiff's Motion for Judgment on the Pleadings 11 should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHON R. FERGISON,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.
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1:16CV39
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Michon Fergison (“Plaintiff”) brought this action pursuant to Section 205(g)
of the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial
review of a final decision of the Commissioner of Social Security denying her claim for
Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed her application for DIB on January 26, 2012, alleging a
disability onset date of January 19, 2012. (Tr. at 12, 138.) 2 Her claim was denied initially (Tr.
at 65-73, 85-88), and that determination was upheld on reconsideration (Tr. at 74-84, 93-100).
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Carolyn W.
Colvin as the Defendant in this suit. No further action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
1
2
Transcript citations refer to the Sealed Administrative Record [Doc. #7].
Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative
Law Judge (“ALJ”). (Tr. at 101.) Following the subsequent hearing on April 8, 2014, the ALJ
concluded that Plaintiff was not disabled within the meaning of the Act (Tr. at 22), and, on
November 13, 2015, the Appeals Council denied Plaintiff’s request for review of that decision,
thereby making the ALJ’s conclusion the Commissioner’s final decision for purposes of
judicial review. (Tr. at 1-5.)
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of [the] review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] 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 brackets 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).
2
“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. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). 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 expected
to last for a continuous period of not less than 12 months.’” Id. (quoting 42 U.S.C.
§ 423(d)(1)(A)). 3
“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
“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program . . . provides benefits to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program . . . provides benefits to indigent disabled persons. The statutory
definitions and the regulations . . . for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
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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.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 each of the first two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more
of the impairments listed in Appendix I of the regulations,” then “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, the ALJ must assess the claimant’s residual function[al] capacity (‘RFC’).” Id. at
179. 4 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can
“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’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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“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 Commissioner 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.” Hall, 658 F.2d
at 264-65. 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.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” after January 19, 2012, her alleged onset date. Plaintiff therefore met her burden at
step one of the sequential evaluation process. At step two, the ALJ further determined that
Plaintiff suffered from the following severe impairments:
cardiomyopathy, obesity,
hypertension, piriformis syndrome, bursitis of the right hip, carpal tunnel syndrome, lumbar
strain/sprain, ankle strain/sprain, and plantar fasciitis/plantar fascial fibromatosis. (Tr. at 14.)
The ALJ found at step three that none of these impairments met or equaled a disability listing.
(Tr. at 15.) Therefore, the ALJ assessed Plaintiff’s RFC and determined that she could
lift up to 20 pounds occasionally and ten pounds frequently, sit up to six hours
out of an eight hour day, except she can perform no more than two hours
standing and walking in an eight-hour day. The restriction on standing and
walking reduces the claimant to sedentary work. She can never climb ladders,
ropes, and/or scaffolds, she can occasionally climb ramps and stairs and
frequently, not constantly, use her bilateral upper extremities for fine and gross
5
manipulations. She must avoid concentrated exposure to hazards, humidity,
and extremes of cold and/or heat. Due to her fatigue, she is limited to
performing only simple tasks, in that she can apply common sense
understanding to carry out oral written and diagrammatic instructions.
(Tr. at 15-16.) Based on this determination, the ALJ found under step four of the analysis that
Plaintiff could not perform any of her past relevant work. (Tr. at 20.) However, the ALJ
concluded at step five that, given Plaintiff’s age, education, work experience, and RFC, along
with the testimony of the vocational expert regarding those factors, Plaintiff could perform
other jobs available in the national economy and therefore was not disabled. (Tr. at 21-22.)
Plaintiff now raises five challenges to the ALJ’s decision. Specifically, she claims that
the ALJ (1) failed to properly evaluate the opinions of Plaintiff’s treating cardiologist, Dr.
Eduardo Safille, (2) failed to “properly consider the impact of Plaintiff’s carpal tunnel
syndrome and accompanying manipulative limitations on the sedentary occupational base,”
(3) failed to perform a function-by-function analysis as to sitting limitations caused by
Plaintiff’s bursitis and back condition, (4) failed to “properly evaluate Plaintiff’s obesity in
conjunction with her other medical conditions as required by S.S.R. 02-1p,” and (5) failed to
properly account for Plaintiff’s fatigue in limiting her to simple tasks. (Pl.’s Br. [Doc. #12] at
2.) After a careful review of the record, the Court concludes that the ALJ’s errors in weighing
Dr. Safille’s opinions, along with his failure to properly account for Plaintiff’s fatigue in the
RFC, merit remand. Therefore, the Court need not consider at this time the additional issues
raised by Plaintiff.
A.
Dr. Safille’s Opinions
Plaintiff first contends that the ALJ erred in assigning little weight to the opinions of
her treating cardiologist, Dr. Safille. Social Security Ruling (“SSR”) 96-2p and 20 C.F.R.
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§ 404.1527(c), collectively referred to as the “treating physician rule,” generally require an ALJ
to give controlling weight to the well-supported opinion of a treating source as to the nature
and severity of a claimant’s impairment, based on the ability of treating sources to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
[which] may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(c). However, if a treating source’s opinion is not “well-supported by
medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with
the other substantial evidence in the case record,” it is not entitled to controlling weight. See
Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *2; 20 C.F.R. § 404.1527(c)(2); see
also Craig, 76 F.3d at 590; Mastro, 270 F.3d at 178. Instead, the opinion must be evaluated
and weighed using all of the factors provided in 20 C.F.R. § 404.1527(c)(2)(i)-(c)(6), including
(1) the length of the treatment relationship, (2) the frequency of examination, (3) the nature
and extent of the treatment relationship, (4) the supportability of the opinion, (5) the
consistency of the opinion with the record, (6) whether the source is a specialist, and (7) any
other factors that may support or contradict the opinion.
Where an ALJ declines to assign controlling weight to a treating physician’s opinion,
he must “‘explain in the decision the weight given’ thereto and ‘give good reasons in his . . .
decision for the weight.’” Chirico v. Astrue, No. 3:10CV689, 2011 WL 6371315, at *5 (E.D.
Va. Nov. 21, 2011) (unpublished) (quoting 20 C.F.R. § 404.1527(c)(2)). “This requires the ALJ
to provide sufficient explanation for ‘meaningful review’ by the courts.” Thomas v. Comm’r
of Soc. Sec., No. Civ. WDQ-10-3070, 2012 WL 670522, at *7 (D. Md. Feb. 27, 2012)
7
(unpublished) (citing Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009);
Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 362 (3d Cir. 2011)).
In the present case, the ALJ addressed two opinions from Dr. Safille: a preliminary
opinion dated September 3, 2013, and a more conclusive opinion dated April 15, 2014. With
respect to the first opinion, on September 3, 2013, Dr. Safille issued a note stating that
“[f]urther cardiac testing is necessary to gauge the patient’s cardiac risks for a return to work.
The patient is not yet released for a return to work.” (Tr. at 537.) The ALJ assigned this
opinion “little weight.” In support of that conclusion, the ALJ noted that, “during the same
month, [Dr. Safille] indicated the cardiac findings were stable. . . . Moreover, in October 2013,
after the heart catheter showed negative findings, [Dr. Safille] recommended [Plaintiff] return
in six months, which is inconsistent with his opinion from September 2013.” (Tr. at 20.)
However, it is not clear how Dr. Safille’s September 3, 2013 opinion is inconsistent this
his treatment findings and recommendations at that time. As reflected in the records, Dr.
Safille began treating Plaintiff in early 2012 after she was hospitalized with congestive heart
failure and was diagnosed with postpartum cardiomyopathy. Dr. Safille continued treating
Plaintiff in 2012, 2013, and 2014. With respect to the treatment records at the time of the
September 3, 2013 opinion, the records reflect that on August 27, 2013, Plaintiff underwent a
Myocardial Perfusion Imaging (MPI) Study. The results of that study reflect that:
The left ventricle was dilated with stress and became smaller at rest. There was
moderate global hypokinesis. Left ventricular EF is 36%. 5 Anterolateral wall
motion is mildly hypokinetic. Apical wall motion is mildly hypokinetic. The
anterolateal wall shows mild ischemia.
An “EF” or “ejection fraction” is the percentage of blood leaving the heart each time it contracts, and an EF
of 50% or higher is generally considered normal.
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(Tr. at 490-91). Plaintiff went to an appointment with Dr. Safille a few days later, on
September 3, 2013, the day of Dr. Safille’s opinion. The office notes from that visit reflect
the “Abnormal MPI” study set out above, with an EF of 36% and “Small Anterior/Lateral
Ischemia.” (Tr. at 558.) The treatment notes for that visit also reflect that Plaintiff reported
intermittent substernal chest pain at that time and that Plaintiff was “[p]ositive for chest pain”
and “[p]ositive for edema.” (Tr. at 557-58.) In his treatment notes from September 3, 2013,
Dr. Safille noted that although Plaintiff’s postpartum cardiomyopathy had improved, her
postpartum cardiomyopathy and her hypertension were both under “[s]uboptimal control on
medical therapy.” (Tr. at 559.) Finally, Dr. Safille noted that, although Plaintiff’s heart failure
remained stable, “[f]urther cardiac evaluation [was] indicated” based on the results of the
examination and the abnormal results of the recent MPI study. (Tr. at 557-58.) None of this
evidence conflicts with Dr. Safille’s recommendation that same day that further cardiac testing
was necessary to gauge Plaintiff’s cardiac risks for a return to work. (Tr. at 537.)
Moreover, subsequent records reflect that, consistent with that conclusion, multiple
additional cardiac tests were conducted over the next several weeks. Specifically, Plaintiff
underwent an echocardiogram three days later on September 6, 2013, which is reflected in the
records as indicating a “Small Anterior/Septal Ischemia.” (Tr. at 555.) Plaintiff returned again
to see Dr. Safille just over a week later, on September 16, 2013. The records for that visit
reflect the “Abnormal Stress Echo,” as well as Plaintiff’s complaints of shortness of breath
and mild to moderate chest pain. (Tr. at 554.) The treatment record reflects that Plaintiff was
“[p]ositive for fatigue,” and “[p]ositive for chest pain.” (Tr. at 555.) Based on Plaintiff’s
continued complaints of chest pain and the abnormal test results, Dr. Safille again concluded
9
that “[f]urther cardiac evaluation is indicated.” (Tr. at 556.) Plaintiff was scheduled for
another echocardiogram and a heart catheterization. Plaintiff underwent the echocardiogram
two weeks later, on September 30, 2013, and it reflects “mild global hypokinesis of LV
contractility” and notes that “[o]verall left ventricular systolic function is mild-moderately
impaired with an EF of 45%.” (Tr. at 563-64.) Plaintiff underwent a cardiac catheterization
a week later, on October 7, 2013, which showed no significant coronary artery disease but an
EF of 35%. (Tr. at 570.) Plaintiff returned for an appointment with Dr. Safille less than a
month later, on October 29, 2013, complaining of chest pain, and the records reflect that she
was “[p]ositive for fatigue,” and “[p]ositive for chest pain.”
(Tr. at 551-52.)
An
electrocardiogram was conducted, which was noted as an “Abnormal ECG” reflecting “[l]eft
ventricular hypertrophy” and “[e]xtensive T wave changes . . . probably due to ventricular
hypertrophy.” (Tr. at 566.) Five months later, Plaintiff was treated in the emergency room
for chest pain, with a diagnosis of heart palpitations. (Tr. at 567.)
Moreover, as noted in Plaintiff’s brief, references to Plaintiff’s condition being
“improved” or “stable” do not necessarily reflect a lack of symptoms or an inconsistency with
Dr. Safille’s opinion. Plaintiff’s treatment and testing prior to the September 3, 2013 opinion
demonstrate that the improvement in Plaintiff’s condition during the time in question was not
as linear or dramatic as the ALJ suggests. On January 19, 2012, the alleged onset date, Plaintiff
was hospitalized with congestive heart failure, an EF of 10%, and class IV heart disease under
the New York Heart Association (“NYHA”) Functional Classification system. 6 (Tr. at 370NYHA classification, the most commonly used classification system for heart failure, “places patients in one
of four categories based on how much they are limited during physical activity. . . . Class IV heart failure
encompasses ‘[p]atients with cardiac disease resulting in inability to carry on any physical activity without
discomfort. Symptoms of heart failure or the anginal syndrome may be present even at rest. If any physical
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422.) Her EF improved to 20-25% by March 1, 2012, and two months later, it reached 40%.
(Tr. at 442, 437.) However, these findings continue to reflect moderate to severe impairment
of her left ventricular systolic function. (Tr. at 512, 510.) In addition, as noted above, Plaintiff
continued to be symptomatic, experiencing fatigue and chest pain, and her EF continued to
fluctuate, even with medication, and even at rest. To the extent that the ALJ repeatedly
emphasized Plaintiff’s stability and increased activity level as of mid-2012, the record reflects
that Plaintiff wore an external defibrillator for several months preceding this period and was
rendered completely sedentary for that time due to the severe nature of her heart impairment.
(See Tr. at 36, 439, 458, 591.) By comparison, any activity constituted an increase. 7 In addition,
during that mid-2012 timeframe, at an office visit on May 17, 2012, Dr. Safille noted that
Plaintiff was “[p]ositive for palpitation,” “[p]ositive for dizziness,” and needed further testing.
(Tr. at 496-97, 510.) A subsequent echocardiogram in November 2012 continued to show
“global hypokinesis of LV contractility” and mildly impaired left ventricular systolic function.
(Tr. at 508.) Further, as noted above, Dr. Safille documented ongoing edema and “suboptimal
control” of Plaintiff’s condition on September 3, 2013, the same day he issued his opinion.
(Tr. at 558-59.)
While the ALJ was not required to credit Dr. Safille’s opinion as to the ultimate issue
of whether Plaintiff was, in fact, disabled as of that date, see 20 C.F.R. § 404.1527(d)(1), his
stated reasons for discrediting Dr. Safille’s opinion that further cardiac testing was necessary
activity is undertaken, discomfort increases.’” Foster v. Colvin, No. CIV.A. 6:13-926-TMC, 2014 WL 3829016,
at *3 n.2 (D.S.C. Aug. 4, 2014).
Indeed, in her testimony, Plaintiff noted that Dr. Safille only conducted chemical stress tests, rather than
treadmill tests, because of her condition. (Tr. at 36-37.)
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before such a determination could be made do not appear to be supported by substantial
evidence.
Similar problems confront the ALJ’s treatment of Dr. Safille’s later opinion. On April
15, 2014, Dr. Safille completed a Medical Source Statement indicating that, since Plaintiff’s
alleged onset date, Plaintiff has not been capable of performing even sedentary work on a fulltime, continuous basis, and that, even with a sit/stand option, this opinion would remain the
same. (Tr. at 539-540.) Dr. Safille also noted that Plaintiff had “moderately severe” limitations
in her ability to maintain attention and concentration for extended periods, “severe”
limitations in the ability to perform activities within a schedule and maintain regular
attendance, and “severe” limitations in her ability to complete a normal workday and
workweek without interruptions from medically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. (Tr. at 541.) Dr.
Safille further noted that Plaintiff “is unable to maintain regular attendance or production in
any employment. [She] requires frequent, unscheduled breaks. Totally disabled from all
competitive employment for the foreseeable future. Will require lifetime medical treatment
and prescription medicine.” (Tr. at 542.)
With regard to this opinion, the ALJ stated that “Dr. Safille’s opinions do not correlate
with his treatment notes and the overall record of evidence, as described herein, does not
support them. As discussed above, during the same month, Dr. Safille noted essentially
normal exam findings and noted [that Plaintiff] had mild to moderate left ventricular systolic
functioning.” (Tr. at 20.) However, it is not clear how Dr. Safille’s opinions are inconsistent
with his treatment notes or the overall evidence of record. On the very day Dr. Safille
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completed the medical source statement in question, his treatment notes recounted myriad,
objective, abnormal heart findings, including an S4 gallop, a paradoxically split S2, occasional
premature ventricular contractions (“PVCs” or “VPCs”) including rare couplets, and a
possible episode of supraventricular tachycardia (“SVT”). (Tr. at 545.) The former two
findings evidence Plaintiff’s continuing congestive heart failure, while the latter two findings
support and account for Plaintiff’s subjective complaints of heart palpitations. (Tr. at 545,
561.) The treatment records also reflect that recent electrocardiograms on March 31, 2014
and April 1, 2014 reflected “Non-specific T changes,” and the April 1, 2014 electrocardiogram
reflects an “Abnormal ECG” with “[l]eft ventricular hypertrophy” and “[e]xtensive T wave
changes . . . due to hypertrophy and/or ischemia.” (Tr. at 544, 565.) Dr. Safille also found
that Plaintiff continued to have edema and shortness of breath as of April 2014 (Tr. at 54344) and that her fatigue and malaise continued to be suboptimally controlled on medical
therapy (Tr. at 545). Although he further noted that her postpartum cardiomyopathy and
hypertension were “reasonably well controlled,” Dr. Safille added digoxin to Plaintiff’s cardiac
medication regimen and recommended a return office visit in 3 months. (Id.) Overall, Dr.
Safille’s contemporaneous treatment notes fail to reflect “normal exam findings” as stated by
the ALJ, and the ALJ never explained how Dr. Safille’s treatment notes fail to correlate with
his opinion that Plaintiff experiences substantial limitations in her ability to work based on her
ongoing heart problems. 8
Moreover, the RFC presented to the vocational expert at Plaintiff’s hearing is identical to the one ultimately
issued in the ALJ’s decision (Tr. at 15-16, 59-60), despite the fact that Dr. Safille’s more recent treatment records
and opinion were not available at the time of the April 8, 2014 hearing (Tr. at 30-32, 38-39, 56, 59, 62-64).
Accordingly, it is unclear the extent to which the ALJ took this more recent evidence into account, if at all,
when assessing Plaintiff’s RFC.
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The ALJ’s cursory treatment of Dr. Safille’s opinions is particularly problematic in that
the only other opinion evidence of record, that of the state agency physicians, addresses only
the first few months of Plaintiff’s alleged disability period, and offers a prospective opinion of
her projected improvement as of mid-2012, rather than an opinion based on her actual
functioning throughout the period at issue.
(Tr. at 67, 79.) These assessments, issued on
April 13, 2012 and August 30, 2012, both concluded that, within 12 months of January 19,
2012, Plaintiff “could reasonably expect to continue to improve” to an RFC for light work.
(Tr. at 70, 82.) However, these predictions are based on evidence through May 2012, and do
not include any of the additional evidence from later 2012 or 2013 discussed above. The ALJ
assigned these opinions partial weight, but found that Plaintiff “requires slightly different
restrictions” for “sitting, standing, and further environmental and mental limits” “considering
her obesity, her subjective complaint of fatigue, her continued, intermittent palpitations, and
her CTS.” (Tr. at 20.) Nevertheless, it appears that the ALJ accepted and relied upon the state
agency consultants’ prediction of improvement in not only setting the RFC, but in rejecting
the later opinions of Plaintiff’s treating cardiologist. (Tr. at 15, 59-60.) 9
In sum, the ALJ failed to “provide sufficient explanation for ‘meaningful review’ by
the courts” when weighing Dr. Safille’s opinions, and the summary reasons given for rejecting
Dr. Safille’s opinions do not appear to be supported by substantial evidence. As a result,
In addition, the Social Security Administration utilized the wrong onset date in assessing Plaintiff’s claim. In
the administrative decision, the ALJ states that Plaintiff “amended” her alleged onset to January 19, 2012. (Tr.
at 12.) In fact, Plaintiff alleged January 19, 2012 as her onset date in her Title II application (Tr. at 138), but all
SSA documents, including the state agency RFC assessments, misstated the alleged onset date as a year earlier,
i.e., January 19, 2011 (Tr. at 65, 66, 67, 68, 75, 76, 78, 79, 163, 486). It is unclear to what extent this further
error may have affected the administrative determinations prior to Plaintiff’s hearing, including the state agency
opinions, particularly as to credibility.
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remand is required for further evaluation of the opinion evidence and corresponding treatment
notes, as well as the RFC based upon them. Moreover, additional RFC limitations, including
those relating fatigue, merit additional review on remand, as set out below.
B.
Fatigue
Plaintiff also contends that the RFC limitation to “simple tasks,” defined as “apply[ing]
common sense understanding to carry out oral written and diagrammatic instructions” fails to
adequately address her fatigue. Specifically, she argues that this restriction improperly applies
a mental limitation to address a physical impairment. As Plaintiff notes, the ALJ even
“couched the term ‘simple work’ in cognitive impairment terms, stating [that,] ‘Because of her
persistent fatigue, [Plaintiff] is limited to performing unskilled work as it is defined herein.’”
(Pl.’s Br. at 14 (citing Tr. at 19).) 10
In describing her fatigue, Plaintiff testified that fatigue is the primary symptom of her
heart condition that affects her ability to work. (Tr. at 16, 40-41, 53.) She repeatedly noted
the need to pace herself and undertake everything, including household tasks and activities of
daily living, in stages. (Tr. at 39-41.) Plaintiff also testified that pain from her musculoskeletal
issues and medication to control the pain further increases her fatigue and sleepiness, and she
described aching all over and needing to lay down for an extended period after traveling to
attend medical appointments or volunteering for part of a school day as a proctor. (Tr. at 5253.)11 In short, Plaintiff, along with her treating physician, described Plaintiff’s fatigue as
10 The regulations define unskilled work as “work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time.” 20 C.F.R. § 416.968(a).
At the hearing, Plaintiff testified that she served as a test proctor at her daughter’s school 2 times during the
past year, for no more than 4 hours each time, and that it took several days for her to recover afterwards. (Tr.
at 52-53.) The ALJ cited Plaintiff’s ability to “volunteer at her daughter’s school” as evidence that Plaintiff’s
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physical exhaustion, requiring rest periods and a slow work pace. (Tr. at 541-42, 545.) At no
point did Plaintiff allege that her fatigue impaired her judgment or ability to learn as implied
by a limitation to unskilled work, nor does the ALJ offer any explanation as to how simple or
unskilled work can address Plaintiff’s physical limitations. In fact, as Plaintiff correctly notes,
unskilled work can be physically arduous. 12 This discrepancy merits further consideration
upon remand. 13
IV.
CONCLUSION
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand
the matter to the ALJ for proceedings consistent with this Recommendation. To this extent,
Defendant’s Motion for Judgment on the Pleadings [Doc. #13] should be DENIED, and
daily activities were inconsistent with her alleged limitations. (Tr. at 17.) However, it is not clear how the ability
to proctor a test for part of a day 2 times in a year is inconsistent with the alleged limitations.
The Court acknowledges that the ALJ in the present case limited Plaintiff to sedentary work. However, as
noted above, he did so in light of Plaintiff’s musculoskeletal limitations; he failed to tie any physical restrictions
to Plaintiff’s fatigue.
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Plaintiff also challenges the ALJ’s finding that she can sit for six hours per day, “despite also concluding . . .
that [she] suffers from the severe impairment of piriformis syndrome, bursitis in the right hip[,] and a lumbar
sprain/strain.” (Pl.’s Br. at 12) (citing Tr. at 14, 15). Although Plaintiff testified that her hip impairments made
sitting for extended periods painful (Tr. at 16, 42, 50), sought treatment for these conditions (Tr. at 524, 529,
569, 577, 578, 579, 581, 583), and was referred to physical therapy (Tr. 583), the RFC fails to reflect any
limitations relating to these problems or any explanation for their absence. Plaintiff similarly challenges the
ALJ’s finding that despite her carpal tunnel syndrome, Plaintiff could frequently use her upper extremities for
fine and gross manipulations. The ALJ based this conclusion on a determination that “the evidence shows
minimal objective findings” regarding the carpal tunnel syndrome. However, the ALJ failed to address EMG
results from April 2012 showing moderate slowing of the right median nerve at the wrist involving motor and
sensory fibers, as well as mild slowing of the left median nerve at the wrist involving the sensory fibers and
moderate slowing of the right ulnar nerve at the elbow, and a subsequent examination in 2013 reflecting
numbness in 2 fingers on her right hand, positive Tinel’s in both wrists and positive Phalen’s sign. (Tr. at 517,
518, 520-23.) To the extent that these omissions raise additional concerns, they can be addressed on remand.
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Plaintiff’s Motion for Judgment on the Pleadings [Doc. #11] should be GRANTED.
However, to the extent that Plaintiff’s motion seeks an immediate award of benefits, it should
be DENIED.
This, the 2nd day of March, 2017.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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