Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA WHEELING
LUCINDA DIANE RIGGS,
Plaintiff, v. CIVIL ACTION NO.: 5:21CV111
(BAILEY)
FILED KILOLO KIJAKAZI, MAR Acting Commissioner of Social Security,
Defendant. US. DISTRICT COURT-WVND WHEELING, WV 26003 REPORT AND RECOMMENDATION I. Introduction
This action arises out of the denial of Plaintiff’s application for Social Security Disability Insurance and Supplemental Security Income under Title II and Title XVI of the Social Security Act. After Plaintiff’s application proceeded through the administrative process, United States Administrative Law Judge, Laura Bernasconi (“AU”) concluded that Plaintiff was not disabled within the meaning of the Social Security Act. Plaintiff’s request for review by Appeals Council was denied, making the AU ‘s decision the final decision of the Defendant. Plaintiff seeks judicial review of the AU’s decision.
The undersigned has considered the parties’ briefs and the record on appeal. The facts and legal arguments have been adequately presented. Accordingly, the decisional process would not be significantly aided by oral argument. After considering the parties’ briefs and the Administrative Record, the undersigned would conclude that additional analysis is required from the AU in support of her decision. Therefore, the undersigned would RECOMMEND that Plaintiff’s Motion for Summary Judgment be GRANTED and Defendant’s Motion for Summary Judgment be DENIED. The undersigned would further recommend that this matter be REMANDED for additional proceedings as described more fully herein.
II. Factual/Procedural History
On September 7, 2018, Plaintiff filed her application for Social Security Benefits under Title II and Title XVI of the Social Security Act. R. 232. She alleged disability beginning on or about August 1, 2018. R. 232. Her claims were denied initially on December 20, 2018, and upon reconsideration on March 11, 2019. R. 268. Plaintiff requested a hearing before an AU, which hearing occurred on November 13, 2019. R. 232. Plaintiff gave testimony in support ofher claims. Vocational Expert, Jeannie Deal (hereinafter “VE”) also provided testimony. R. 212-31.
The AU issued an unfavorable decision on January 20, 2021. R. 282-307. Plaintiff appealed the AU’s determination to the Appeals Council on January 29, 2021. R. 559. The Appeals Council denied review. R. 1-6. The AU’s decision is therefore the final decision of the Social Security Commissioner.
Plaintiff filed the instant appeal on July 13, 2021. ECF No. 1. Defendant filed an Answer on September 27, 2021. ECF No. 6. On the same date, Defendant filed a copy of the Social Security Administrative Record. ECF No. 7. Plaintiff filed her Motion for Summary Judgment on October 26, 2021. ECF No. 9. Defendant filed her Motion for Summary Judgment on November26, 2021. ECFNo. 10.
III. AU Decision
A. The Five-Step Evaluation Process
In determining whether Plaintiff is disabled, the AU followed the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520. The first step in the process is to determine § 404.1520(b). If the whether a claimant is currently engaged in substantial gainful activity. claimant is not engaged in substantial gainful activity, then the second step requires the AU to determine whether the claimant has a medically determinable impairment that is severe or a § 404.1520(c). combination of impairments that are severe. If the claimant has a severe impairment or combination of impairments, then the analysis moves to the third step in the sequence, which requires the AU to determine whether the claimant’s impairments or combination of impairments meets or equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, § 404.1520(d). Appendix 1 (the “Listings”). If the impairment meets or equals a listed impairment, the claimant is disabled. Id. However, if the impairment does not meet or equal a listed impairment, the AU must determine the claimant’s residual functional capacity (hereinafter “RFC”), which is the claimant’s ability to do physical and mental work activities on a sustained basis despite the limitations of his impairments. § 404.1520(e). After determining the claimant’s RFC, the AU must determine, at step four, whether the claimant has the RFC to perform the requirements of past relevant work. § 404.1520(f). If the claimant does not have the RFC to do past relevant work, then they have established aprimafacie case of disability, and the burden shifts to the Commissioner to demonstrate, at the final step in the process, that other work exists in significant numbers in the national economy that the claimant can do, given the claimant’s age, education, and work experiences. § 404.1520(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983).
B. AU Findings The AU found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2023. R. 287. At step one, the AU found that Plaintiff has not engaged in substantial gainful activity since August 1, 2018, the alleged onset date. R. 287. At step two, the AU found that Plaintiff has the following combination of severe impairments: obesity, type two diabetes mellitus (DM), chronic kidney disease, gout, left carpal tunnel syndrome (CTS), psoriatic arthritis, mixed connective tissue disease (MCTD), emphysema, torn right meniscus, and osteoarthritis. R. 288. At step three, the AU found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. R. 289.
The AU assigned the following RFC at step four of the analysis: [tb perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can never climb ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs and occasionally balance, stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to extreme cold, extreme heat, wetness, vibration, and pulmonary irritants. She should avoid concentrated exposure to hazards. She can use the upper extremity for frequent handling and fingering and occasional overhead reaching.’
R. 292-93. At step five, the AU found Plaintiff capable of performing past relevant work as a telephone solicitor. The AU therefore determined that Plaintiff is not disabled as defined in the Social Security Act. R. 297-299.
IV. Motions for Summary Judgment
A. Arguments of the Parties
1. Plaintiff’s Arguments Plaintiff argues that the AU failed the adequately explain her RFC finding that Plaintiff maintains the ability to perform light/sedentary work without assistance from a cane or the need to elevate her legs in contravention of SSR 96-8. Plaintiff requests that this matter be remanded for additional analysis.
Footnotes throughout this paragraph have been omitted here inasmuch as the information contained therein is not relevant for our purposes and for the sake of brevity.
2. Defendant’s Arguments In opposition, Defendant argues that the AU reasonably declined to include a cane use limitation in her RFC finding, and that the medical evidence of record did not support a finding that Plaintiff needs to elevate her legs. Defendant contends that substantial evidence supports the AU’s decision.
B. The Standards
1. Summary Judgment “Summary Judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Lawson v. Union Cly. Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).
2. Judicial Review This Court’s review of the AU’s decision is limited to determining whether the decision is supported by “substantial evidence.” 42 U.S.C. §~ 405(g), 1383(c)(3). “Substantial evidence” is “more than a mere scintilla of evidence but maybe somewhat less than a preponderance.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “Substantial evidence” is not a “large or considerable amount of evidence, but rather, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988) (internal citations and quotations omitted). “If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence’.” Laws v. Celebrezze, 368 F.2d 640, 642 (4t~~ Cir. 1966), overruled by implication on other grounds by The Black and Decker Disability Plan v. Nord, 538 U.S. 822 (2003).
C. Discussion Plaintiff takes issue with the AU’s RFC on two narrowly defined items: (1) Plaintiff’s need for a cane and (2) Plaintiff’s need to elevate her legs. Plaintiff argues that the AU failed to account for medical evidence which supports Plaintiff’s need for a cane and for Plaintiff’s need to elevate her legs when fashioning the RFC, which found that Plaintiff could perform light work (with limitations), and which did not include any accommodations for a cane or for elevating Plaintiff’s legs. Plaintiff argues that these failures require remand.
The relevant portion of the AU’s opinion with which Plaintiff takes issue is captured at R. 295-96. The entry provides in relevant part as follows:
She is able to move between seated and standing positions without assistance. Despite some allegations during the hearing of needing a cane to help stand and walk sometimes, none of her treating or examining doctors have indicated she has a medical necessity for a cane or other assistive device for support when standing and walking. . . . She has no problems sitting for extended periods and the record does not contain any documentation of instructions from any of her treating doctors that she must elevate her legs for long periods each day to relieve any symptoms.2 R. 295-96. Because the statements captured above do not accurately reflect the medical evidence contained within the record, the undersigned would agree with Plaintiff that this matter should be remanded.
1. Hand-Held Assistive Device (Cane) With respect to Plaintiffs need for a cane, it is simply incorrect to assert that “none of [Plaintiff’s] treating or examining doctors have indicated she has a medical necessity for a cane or other assistive device for support when standing and walking.” To the contrary, on April 6, 2020, Plaintiffs primary care physician, Dr. Saad Butt, M.D., referred Plaintiff to First Settlement Physical Therapy for a balance/gait evaluation. R. 1608. Plaintiff presented to First Settlement [2] This paragraph explains, in part, the AU’s RFC finding.
Physical Therapy for this evaluation on April 7, 2020, where she was evaluated by Amanda McDonald, PT, DPT. R. 1491. According to Ms. McDonald’s assessment, Plaintiff presented with “decreased balance as noted with balance testing.” Ms. McDonald further noted that Plaintiff was unable to stand from a 24 inch chair without definite use of [upper extremity].” Ms. McDonald found that Plaintiff was in the medium risk fall category. Id. Plaintiff declined formal treatment. Ms. McDonald found that Plaintiff would benefit from using a cane. Id. On April 16, 2020, Dr. Butt agreed with Ms. McDonald’s assessment and wrote Plaintiff a prescription for a cane. R. 1779. A copy of the prescription is captured at R. 1796.
In opposing Plaintiff’s Motion, Defendant argues that, “[t]o the extent Plaintiff used a cane, it was to transition from sitting to standing, not for walking.” ECF No. 10 at p. 8. In so arguing, Defendant seems to be advancing the position that only a cane required for walking must be addressed by an AU in an RFC. This is incorrect. According to SSR 96-9p, “a hand-held device is medically required [where] there [is] medical documentation establishing the need for a hand- held assistive device to aid in walking or standing.” See SSR 96-9p, 1996 WL 374185, at *7 (emphasis added). Here, the medical evidence clearly establishes that Plaintiff needs the cane to assist her with standing.3
Defendant also argues that “[t]here was a lack of any other description of the circumstances for which the cane was needed,” so the AU did not include a cane limitation!accommodation within the RFC. ECF No. 10 at p. 8. This may be true, but this rationale does not appear in the AU’s opinion. This is the very point of Plaintiff’s Motion — the AU did not explain why she did not consider or rely upon the medical evidence which tends to demonstrate that Plaintiff needs a ~ Defendant also argues that the wording of the cane prescription makes “clear that Plaintiff does not require a cane to walk.” ECF No. 10 at p. 9. Dr. Butt’s prescription reads as follows: “Straight cane R26.9 — Disturbance of gait and mobility.” It is difficult to understand how ‘disturbance of gait and mobility’ does not implicate Plaintiff’s ability to walk.
cane, when fashioning the RFC. The AU should have, at a minimum, explained why the RFC did not include any such accommodation. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (finding remand appropriate “where an AU fails to assess a claimant’s capacity to perform relevant functions, despite contradictory evidence in the record”).
Defendant next argues that the AU did not ignore Plaintiffs use of a cane because she “noted Plaintiffs use of a cane throughout his decision.” ECF No. 10 at p. 9. This is not entirely accurate. Defendant cites R. 290 and R. 295 in support of this contention. A review of these excerpts of the AU’s decision does not support Defendant’s argument. Rather, it supports Plaintiffs argument — that the AU found Plaintiff does not have a medical need for a cane, and yet, in so finding, did not acknowledge Dr. Saad’s and Ms. McDonald’s findings that Plaintiff does need a cane, and that a cane was prescribed for Plaintiffs use.
Defendant’s final argument on this point is that any failure to acknowledge the medical evidence at issue is harmless error because Plaintiffs use and/or need for a cane would not have impacted her ability to perform a sedentary occupation. See ECF No. 10 at p. 9. The undersigned would disagree. According to SSR 96-9p, “the occupational base for an individual who must use [a hand-held device] for balance because of significant involvement of both lower extremities.. .may be significantly eroded.” See Timmons v. Colvin, No. 3:12CV609, 2013 WL 4775131, at *8 (W.D.N.C. Sept. 5,2013) (applying SSR 96-9p to the light occupational base). See also Roach v. Saul, 2020 WL 1644630, n. 5 (D.S.C. Feb. 26, 2020) (affirming the application of SSR 96-9p vis-à-vis assistive device(s) to an RFC for light work because it involves greater lifting than sedentary work). Considering the aforementioned medical evidence, whether and to what extent Plaintiffs occupational base may be eroded as a result of her alleged need for a cane should have been addressed by the AU.
It is the duty of the Commissioner, not the courts, to make findings of fact and to resolve conflicts of evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); King v. Coflfano, 599 F.2d 597 599 (4th Cir. 1979); Seacristv. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976). The AU, and by extension the Commissioner, failed to resolve conflicts in the medical evidence vis à-vis Plaintiff’s need for a cane. This is not harmless error; rather, it precludes the Court’s meaningful consideration of the AU’s decision. This issue should therefore be remanded for further findings consistent with the above.
2. Elevation of Legs Similarly, the AU errantly declared that “the record does not contain any documentation of instructions from any of [Plaintiff’s] treating doctors that she must elevate her legs for long period of each day to relieve any symptoms.” R.296. This is incorrect. Dr. Janelle King, Plaintiff’s treating dermatologist, recommended that Plaintiff elevate her legs “as much as possible”. R. 1132.
In support of the AU’s finding, Defendant argues that there is no timeframe associated with Dr. King’s recommendation. It is not immediately clear how the lack of a timeframe for the recommendation to Plaintiff to elevate her legs as much as possible supports the AU’s finding that no medical documentation exists which instructs Plaintiff to elevate her legs for long periods of time each day. Rather than support the AU’s finding, the undersigned would conclude that this lack of a timeframe supports Plaintiffs argument because the recommendation appears to continue indefinitely.
Moreover, the undersigned would note that Defendant’s brief misstates the AU’s finding. The AU never declared that “no medical professional has advised Plaintiff that she must elevate her feet every time she is sitting down or for long-periods each day.” ECF No. 10 at p. 10 (emphasis added). Rather, the AU declared that the record “does not contain any documentation of instruction from any of her treating doctors that she must elevate her legs for long periods each day to relieve any symptoms.” R. 296. This assertion is incorrect — the record does contain documentation from Plaintiffs treating physician that she should elevate her legs as much as possible during the day. This evidence conflicts with other evidence cited by the AU in support of the RFC. The AU should have addressed this conflict and the effect, if any, upon Plaintiffs RFC. Because this conflict was not addressed, this issue must also be remanded for additional consideration.
V. Recommendation
Accordingly, and for all of the foregoing reasons, the undersigned would RECOMMEND that Plaintiffs Motion [9] for Summary Judgment be GRANTED. The undersigned would further RECOMMEND that Defendant’s Motion [101 for Summary Judgment be DENIED. Finally, the undersigned would RECOMMEND that this matter be REMANDED for further proceedings consistent with the above.
Any party who appears pro se and any counsel of record, as applicable, may, within fourteen (14) days after being served with a copy of this Report and Recommendation, file with the Clerk of the Court written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection.
A copy of such objections should be submitted to the District Judge of Record. Failure to timely file objections to the Report and Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Report and Recommendation. See 28 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d 841, 845-48 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984), cert. denied, 467 U.s. 1208 (1984); see also Thomas v. Am, 474 U.S. 140, 155 (1985).
The Court DIRECTS the Clerk of the Court to provide a copy of this Report and Recommendation to all counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia. The Court further DIRECTS the Clerk to mail a copy of this Report and Recommendation to any pro se party by certified mail, return receipt requested, to their last known address as reflected on the docket sheet.
Respectfully submitted this// ~ay of________
UNITED JUDGE