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Graley v. Berryhill

United States District Court, S.D. West Virginia, Charleston Division

February 13, 2019

LISA MARIE GRALEY, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn, United States Magistrate Judge.

         This is an action seeking review of the final decision of the Acting Commissioner of Social Security denying the Plaintiff's applications for Disability Insurance Benefits (DIB) under Title II and for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. By Order entered July 6, 2018 (ECF No. 4), this case was referred to the undersigned United States Magistrate Judge to consider the pleadings and evidence, and to submit proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are Plaintiff's Memorandum in Support of Judgment on the Pleadings and Defendant's Brief in Support of Defendant's Decision. (ECF Nos. 13 and 16)

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that the United States District Judge DENY Plaintiff's request for judgment on the pleadings (ECF No. 13), GRANT Defendant's request to affirm the decision of the Commissioner (ECF No. 16); AFFIRM the final decision of the Commissioner; and DISMISS this action from the docket of the Court.

         Procedural History

         The Plaintiff, Lisa Marie Graley (hereinafter referred to as “Claimant”), protectively filed her applications for Titles II and XVI benefits on October 8, 2014 and June 23, 2016, respectively, and alleged that her disability began on September 15, 2013, because of “diabetes, cirrhosis, enlarged liver, enlarged spleen, fibromyalgia, degenerative disc disease, asthma, IBS, depression, and low blood platelets.”[1] (Tr. at 178, 179-185, 193-194, 199) Her claim was initially denied on March 20, 2015 (Tr. at 104-108) and again upon reconsideration on June 17, 2015. (Tr. at 112-118) Thereafter, Claimant filed a written request for hearing on August 10, 2015. (Tr. at 119-120)

         An administrative hearing was held on April 26, 2017 before the Honorable Julianne Hostovich, Administrative Law Judge (“ALJ”). (Tr. at 53-75) On July 3, 2017, the ALJ entered an unfavorable decision. (Tr. at 17-35) On September 1, 2017, Claimant sought review by the Appeals Council of the ALJ's decision. (Tr. at 175-177) The ALJ's decision became the final decision of the Commissioner on May 7, 2018 when the Appeals Council denied Claimant's Request. (Tr. at 1-7)

         On July 5, 2018, Claimant brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2) The Defendant, (hereinafter referred to as “Commissioner”) filed an Answer and a Transcript of the Administrative Proceedings. (ECF Nos. 10 and 11) Subsequently, Claimant filed a Memorandum in Support of Judgment on the Pleadings (ECF No. 13); in response, the Commissioner filed a Brief in Support of Defendant's Decision. (ECF No. 16) Consequently, this matter is fully briefed and ready for resolution.

         Claimant's Background

         Claimant was 50 years old as of the alleged onset date and considered a “person closely approaching advanced age” throughout the underlying proceedings. See 20 C.F.R. §§ 404.1563(d), 416.963(d). (Tr. at 58) Claimant has a high school education and quit working as a home health care provider on September 15, 2013 when the patient she was working for passed away. (Tr. at 200, 201)

         Standard

         Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(i), a claimant for disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A).

         The Social Security Regulations establish a “sequential evaluation” for the adjudication of disability claims. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found “not disabled” at any step, further inquiry is unnecessary. Id. §§ 404.1520(a), 416.920(a). The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). If a severe impairment is present, the third inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4. Id. §§ 404.1520(d), 416.920(d). If it does, the claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the claimant's impairments prevent the performance of past relevant work. Id. §§ 404.1520(f), 416.920(f). By satisfying inquiry four, the claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant is able to perform other forms of substantial gainful activity, considering claimant's remaining physical and mental capacities and claimant's age, education and prior work experience. Id. §§ 404.1520(g), 416.920(g). The Commissioner must show two things: (1) that the claimant, considering claimant's age, education, work experience, skills and physical shortcomings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the Social Security Administration (“SSA”) “must follow a special technique at every level in the administrative review process.” 20 C.F.R. §§ 404.1520a(a), 416.920a(a). First, the SSA evaluates the claimant's pertinent symptoms, signs and laboratory findings to determine whether the claimant has a medically determinable mental impairment and documents its findings if the claimant is determined to have such an impairment.

         Second, the SSA rates and documents the degree of functional limitation resulting from the impairment according to criteria as specified in Sections 404.1520a(c) and 416.920a(c). Those Sections provide as follows:

(c) Rating the degree of functional limitation. (1) Assessment of functional limitations is a complex and highly individualized process that requires us to consider multiple issues and all relevant evidence to obtain a longitudinal picture of your overall degree of functional limitation. We will consider all relevant and available clinical signs and laboratory findings, the effects of your symptoms, and how your functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication and other treatment.
(2) We will rate the degree of your functional limitation based on the extent to which your impairment(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional performance, any episodic limitations, the amount of supervision or assistance you require, and the settings in which you are able to function. See 12.00C through 12.00H of the Listing of Impairments in appendix 1 to this subpart for more information about the factors we consider when we rate the degree of your functional limitation.
(3) We have identified four broad functional areas in which we will rate the degree of your functional limitation: Understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. See 12.00E of the Listings of Impairments in appendix 1 of this subpart.
(4) When we rate the degree of limitation in the first three functional areas (understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself), we will use the following five-point scale: None, mild, moderate, marked, and extreme. The last point on the scale represents a degree of limitation that is incompatible with the ability to do any gainful activity.

         Third, after rating the degree of functional limitation from the claimant's impairment(s), the SSA determines their severity. A rating of “none” or “mild” will yield a finding that the impairment(s) is/are not severe unless evidence indicates more than minimal limitation in the claimant's ability to do basic work activities. Id. §§ 404.1520a(d)(1), 416.920a(d)(1).

         Fourth, if the claimant's impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2).

         Finally, if the SSA finds that the claimant has a severe mental impairment(s) which neither meets nor equals a listed mental disorder, the SSA assesses the claimant's residual functional capacity. Id. §§ 404.1520a(d)(3), 416.920a(d)(3). The Regulations further specifies how the findings and conclusion reached in applying the technique must be documented at the ALJ and Appeals Council levels as follows:

At the administrative law judge hearing and the Appeals Council levels, the written decision must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section.

Id. §§ 404.1520a(e)(4), 416.920a(e)(4).

         Summary of ALJ's Decision

         In this particular case, the ALJ determined that Claimant met the requirements for insured worker status through December 31, 2016. (Tr. at 22, Finding No. 1) Moreover, the ALJ determined that Claimant satisfied the first inquiry because she had not engaged in substantial gainful activity since the alleged onset date of September 15, 2013. (Id., Finding No. 2) Under the second inquiry, the ALJ found that Claimant had the following severe impairments: degenerative joint disease; diabetes mellitus; cirrhosis; and neuropathy.[2] (Id., Finding No. 3)

         At the third inquiry, the ALJ concluded Claimant's impairments did not meet or equal the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 25, Finding No. 4) The ALJ then found that Claimant had the residual functional capacity (“RFC”) to perform light work except:

she can occasionally climb ramps, stairs, ladders, ropes and scaffolds. She can frequently balance. She can frequently use pedals with the bilateral feet. She can occasionally stoop, kneel, crouch and crawl. She can have occasional exposure to extreme cold, extreme heat, vibration, pulmonary irritants and hazards.

(Tr. at 26, Finding No. 5)

         At step four, the ALJ found Claimant was capable of performing past relevant work as a cashier. (Tr. at 28, Finding No. 6) Finally, the ALJ determined Claimant had not been under a disability from September 15, 2013 through the date of the decision. (Tr. at 30, Finding No. 7)

         Claimant's Challenges to the Commissioner's Decision

         Claimant asserts two main errors in support of this appeal: first, she argues that the ALJ failed to provide an adequate explanation for the RFC assessment by failing to consider all the relevant evidence, specifically with respect to Claimant's chronic diarrhea (ECF No. 13 at 6-10); second, the ALJ did not follow the pertinent Ruling and Regulations or abide by controlling jurisprudence in analyzing Claimant's subjective symptoms. (Id. at 10-14)

         With regard to the first alleged ground of error, Claimant contends that the ALJ formulated her RFC without having considered Claimant's functional limitations due to her gastrointestinal conditions, but nevertheless determined that same were “controlled” without citing any evidence supporting this. (Id. at 7-8) The medical evidence in addition to Claimant's testimony confirmed that Claimant continued to experience problems with chronic diarrhea that not only interfered with her ability to stay on task and complete a normal workday and workweek, but also interfered with treatment for her other impairments; the medical records did not demonstrate that her gastrointestinal conditions were “controlled.” (Id. at 8-9) In short, the RFC finding is not supported by substantial evidence. (Id. at 10)

         With respect to the second alleged ground, Claimant contends that the ALJ did not perform the required analysis concerning Claimant's subjective symptoms and further ignored the factors the Regulations require adjudicators to consider when assessing a claimant's credibility. (Id. at 12-13) Claimant states that the ALJ found that the objective evidence of record did not support her statements concerning her constant need to use the bathroom but did not address the factors or cite to the evidence that would disprove Claimant's statements as required under law. (Id. at 13) Basically, the ALJ's determination that Claimant's statements were inconsistent with the evidence was based upon her own conclusions that Claimant's conditions were “controlled” but did not consider the evidence of how often Claimant had been prescribed medication for bowel infections or the side effects she experienced from her other medications. (Id.) Claimant argues the ALJ's credibility determination was deficient and constituted reversible error. (Id. at 14)

         Claimant asks that the Court enter an order reversing the final decision and remand this matter back to correct these errors. (Id.)

         In response, the Commissioner argues that the ALJ properly accounted for all of Claimant's credibly established limitations in her RFC assessment. (ECF No. 16 at 7) The Commissioner further argues that in addition to properly evaluating and determining that Claimant's symptoms associated with cirrhosis were controlled, she also appropriately evaluated Claimant's diverticulitis and concluded that it was not a severe impairment based on the medical evidence. (Id. at 8) Additionally, the Commissioner states that the ALJ discussed Claimant's diarrhea throughout her decision, and that the medical evidence contained references to this condition, but it also showed that just as frequently Claimant had denied having diarrhea. (Id. at 9) Importantly, the vocational expert identified jobs that Claimant could still perform if she needed close access to a bathroom due to this limitation. (Id.) The ALJ was also free to reject restrictive hypotheticals due to Claimant's bathroom use that are not supported by the evidence of record. (Id. at 9-10)

         Next, the Commissioner argues that the ALJ properly performed the two-step analysis of Claimant's subjective complaints with respect to her pain and her need to use the bathroom, and that her analysis further complied with the Regulations. (Id. at 10) The ALJ discussed Claimant's allegations and noted instances from the record as to why she found Claimant's allegations not entirely consistent with the evidence. (Id. at 11) Furthermore, the Commissioner argues that the ALJ did not assess her RFC without any regard to Claimant's alleged limitations, instead, the ALJ recognized that Claimant had some limitations due to these conditions, just not to the extent that precluded all work activity; the ALJ provided evidentiary support for her conclusions. (Id.)

         The Commissioner asserts that substantial evidence supports the ALJ's RFC assessment as well as her credibility determination; ultimately, the decision finding Claimant was not disabled is also supported by substantial evidence and this Court should affirm. (Id. at 12)

         The Relevant ...


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