Opinion
5:22-CV-490-FL
01-24-2024
TABITHA LEE JOYCE, Plaintiff, v. MARTIN O'MALLEY Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS UNITED STATES MAGISTRATE JUDGE.
Plaintiff Tabitha Lee Joyce (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her applications for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”). This matter is before the court on Plaintiff's brief [D.E. 14] seeking judgment in her favor, Defendant's responsive brief [D.E. 18] in opposition, and Plaintiff's reply brief [D.E. 19]. The parties have fully briefed this matter pursuant to the Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g), and this case is ripe for adjudication. The briefs were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the parties' filings, it is recommended that the court grant Plaintiff's request for relief [D.E. 14], deny Defendant's request for relief [D.E. 18], and remand the case to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed applications for a period of disability, DIB, and SSI on January 7, 2019, alleging disability beginning August 1, 2018. Transcript of Proceedings (“Tr.”) 92, 244-56. Her claim was denied initially. Tr. 80-105. Plaintiff filed a request for reconsideration (Tr. 139-140), and was denied upon reconsideration on October 18, 2019 (Tr. 106-33, 141-49). On October 21, 2019, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 150-53. A hearing before the ALJ was held on February 1, 2022, at which Plaintiff, represented by an attorney, and a vocational expert (“VE”) appeared and testified. Tr. 39-79. On February 9, 2022, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 12-38.
On April 5, 2022, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 241-43. On October 12, 2022, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “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 [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and §§ 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(4), 416.920a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 30-31. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since August 1, 2018, the alleged onset date. Tr. 17.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease cervical and lumbar spine; urinary stress incontinence; bilateral carpal tunnel syndrome; cardiac palpitations; plantar fasciitis; vertigo/dizziness; venous congestion bilateral lower extremities, status-post bilateral venous ablation; anxiety disorder; depressive disorder; and adjustment disorder. Tr. 17-18. The ALJ also found Plaintiff had the following non-severe impairments: status-post hernia repair; status-post hysterectomy and tubal ligation; hemorrhoids; dermatitis; gastro esophageal reflux disease; and scalp hyperhidrosis. Tr. 18. However, at step three, the ALJ concluded these impairments both physical and mental, were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 19.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; moderate limitations in interacting with others; moderate limitations in concentrating, persisting, or maintaining pace; and mild limitations in adapting or managing oneself. Tr. 21-22.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with the following limitations:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b). “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
Frequent climbing of ramps and stairs, but only occasional climbing of stepladders up to 4 vertical feet in height, with no climbing of higher ladders or of ropes or scaffolds of any height - frequent balancing - occasional stooping, kneeling, crouching, and crawling - frequent overhead reaching bilaterally - frequent handling, fingering, feeling, pushing, and pulling with the bilateral upper extremities - frequent use of foot controls bilaterally - occasional exposure to vibration, moving mechanical parts, and high, exposed places - access to indoor toilet facilities in the work area - limited to unskilled work, which is work needing little or no judgment to do simple duties that can be learned on the job or in a short period of time, usually within 30 days, and for which little specific vocational preparation and judgment are needed - limited to work requiring sustained concentration and persistence for no greater than approximately 2 hours at a time -limited to work that is not frequently performed on an assembly line or at a similar production-pace - occasional changes to the work setting and the manner and method of performing the assigned work - work that frequently provides for two 15-minute breaks and one 30-minute break for each 8-hour shift worked, occurring at such times as directed by the employer - occasional interactions with supervisors, coworkers, and the public when performing the assigned work.Tr. 22-23.
In making this assessment, the ALJ found Plaintiff's statements about her limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 24.
At step four, the ALJ concluded Plaintiff did not have the RFC to perform the requirements of her past relevant work as a bartender, as actually or generally performed. Tr. 29. Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined Plaintiff is capable of making an adjustment to other work that exists in significant numbers in the national economy. Tr. 29-30.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) failing to make specific findings concerning the frequency and duration of Plaintiff's bathroom usage; and (2) failing to account for Plaintiff's need to intermittently elevate her lower extremities during the day. Pl.'s Brief [D.E. 14] at 1. Each will be discussed below.
Except for citations to the Transcript of Proceedings (“Tr.”), all citations to documents using the docket entry number (“[D.E. X]”) provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
VI. DISCUSSION
A. Frequency and duration of Plaintiff's bathroom visits
Plaintiff contends that the ALJ erred by failing to make specific findings concerning the frequency and duration of Plaintiff's bathroom usage. Pl.'s Brief. [D.E. 14] at 1. The court agrees. Specifically, at issue is whether Plaintiff's time off-task during a workday due to her urinary incontinence and the requirements surrounding the use of adult diapers, combined with other issues requiring time off-task, would preclude SGA. Id. at 5.
“A Social Security claimant's RFC represents ‘the most [she] can still do despite [her] limitations.'” Dowling v. Comm'r Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). It is “an administrative 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' despite impairments and related symptoms.” Brooks v. Berryhill, No. 2:16-CV-80-FL(2), 2018 WL 944382, at *3 (E.D. N.C. Jan. 23, 2018) (quoting S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). In making this assessment, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 178 (4th Cir. 2016)). Further, an RFC assessment must be “based on all of the relevant medical and other evidence.” Ward v. Colvin, 90 F.Supp.3d 510, 513 (E.D. N.C. 2015) (citing 20 C.F.R. § 404.1545(a)(3)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
District courts in the Fourth Circuit have routinely held that when “an ALJ finds that a claimant has an impairment that requires [her] to have access to a bathroom, the ALJ should make specific findings concerning the frequency and duration of [the claimant's] bathroom usage.” Summey v. Berryhill, No. 1:16-CV-1185, 2018 WL 708355, at *3 (M.D. N.C. Feb. 5, 2018) (citing Binder v. Colvin, No. 5:12-CV-271-D, 2013 WL 1686306, at *3 (E.D. N.C. Mar. 21, 2013); Taylor v. Astrue, No. 7:11-CV-162-FL, 2012 WL 3637254, at *11 (E.D. N.C. Aug. 1, 2012); Davis v. Comm'r Soc. Sec., No. 2:10-CV-30, 2011 WL 442118, at *1 (N.D. W.Va. Feb. 2, 2011)). This is because “[a]bsent specific findings concerning the frequency and duration of a claimant's bathroom usage, a court cannot determine whether the ALJ's findings are supported by substantial evidence, and remand is appropriate.” Minchew v. Berryhill, No. 5:18-CV-56-KS, 2019 WL 772042, at *3 (E.D. N.C. Feb. 21, 2019) (citing Binder, 2013 WL 1686306, at *3).
In a recent decision, the Fourth Circuit appears to have adopted this view. Dowling, 986 F.3d at 377. In Dowling, the Fourth Circuit stated that, “[o]bviously, the need to visit the bathroom many times throughout the day impacts one's ability to work. And yet, the ALJ did not analyze [the claimant's] need for regular bathroom breaks.” Id. at 389. In doing so, the court ordered that the case be remanded to the ALJ, and “[o]n remand, the ALJ should evaluate the frequency at which [the claimant] needed to use the bathroom and analyze how that restriction impacted her ability to work.” Id. While the court in Dowling may not have created an explicit requirement, the court does implicitly require that an ALJ make specific findings about the frequency and duration of a claimant's bathroom usage in cases where a claimant requires bathroom access. Notably, the court does not undermine the persuasive authority of other district courts in the circuit, which demonstrate that such specific findings should be made.
Here, at step two of the sequential evaluation process the ALJ found that Plaintiff suffered from a severe impairment of urinary stress incontinence (Tr. 18) and required “access to indoor toilet facilities in the work area” as a part of her RFC (Tr. 23). At her hearing before the ALJ, Plaintiff testified that she would need to make a trip to the bathroom “about every 15 minutes . . . just to make sure that [her] diaper didn't leak through.” Tr. 63. The ALJ noted in his opinion that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 24. However, nowhere does the ALJ explain why he does not credit Plaintiff's testimony regarding the frequency and duration of her required bathroom visits, nor what frequency and duration of bathroom visits he did find consistent with the medical evidence and other evidence in the record.
The Commissioner in his brief, points out that the medical evidence suggests that Plaintiff's incontinence affected her primarily at night, and multiple medical records suggested that it had improved or been resolved through her medication, at least during the daytime. Def.'s Brief [D.E. 18] at 9-11. While the ALJ does note that Plaintiff “complained of urinary leakage [in May 2020], primarily at night” (Tr. 25 (citing Tr. 876)), the ALJ provides toilet access as a part of Plaintiff's RFC (Tr. 23), crediting at least partially Plaintiff's claims of daytime incontinence issues, noting elsewhere that after “initial improvement [of her urinary incontinence] with medication, [there was] a return of symptoms after claimant discontinued the medication (Tr. 25).
Much of the Commissioner's argument here appears to be post-hoc reasoning. The Commissioner includes explanation and analysis justifying the ALJ's written decision, and specifically, the ALJ's apparent conclusion that Plaintiff's urinary incontinence did not require regular bathroom breaks beyond those provided in the RFC. The ALJ, however, does not state this in the written decision. Such post-hoc justifications are unpersuasive. Lewis v. Saul, No. 7:19-CV-246-FL, 2021 WL 826777, at *5 (E.D. N.C. Feb. 8, 2021) (citing Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 109 (4th Cir. 2020)); see also Patterson v. Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (the court may only affirm an ALJ's decisions based on the reasons the ALJ gave).
The undersigned finds that the ALJ's lack of analysis on this issue was not harmless. The VE testified that if Plaintiff were off-task for twenty percent or more of the workday, it would preclude any type of gainful activity and that “[n]o activity and no work functions could be sustained.” Tr. 77.
In sum, because the ALJ did not make specific findings concerning the frequency and duration of Plaintiff's bathroom requirements and failed to explain how Plaintiff's urinary incontinence impacted her ability to work, the court cannot determine whether the ALJ's findings are supported by substantial evidence. Therefore, the undersigned RECOMMENDS that the court remand the matter to the Commissioner for further proceedings. On remand, the Commissioner should make specific findings concerning the frequency and duration of Plaintiff's bathroom use, and how this would impact Plaintiff's time off-task.
B. Intermittently elevation requirement of lower extremities
Plaintiff contends that the ALJ erred in failing to account for Plaintiff's need to intermittently elevate her lower extremities (“LE”) during the day. Pl.'s Brief. [D.E. 14] at 1. Specifically, at issue is whether the ALJ should have considered a closed period of disability for the period where Plaintiff's doctors recommended this treatment. Pl.'s Brief [D.E. 14] at 10.
The ALJ notes Plaintiff's claim that “she has to elevate her feet over her head 4 to 5 times per day due to varicose veins.” Tr. 24. The recommendation to intermittently elevate her legs came from Plaintiff's doctors at Carolina Heart and Leg Center. The ALJ provides the following evaluation of these doctors' opinion:
Hari Sani, M.D. [(“Dr. Sani”)] and Matthew McEntire, PA [(“PA McEntire”)] of Carolina Heart and Leg Center provided treatment for the claimant's varicose veins. At various times through the treatment records, which begin in 2019, they advised the claimant to avoid prolonged standing or sitting, intermittent leg elevation and use compression hose during waking hours . . . Of note, the restriction was dropped during more recent evaluations in July and August 2021 . . . Furthermore, no lower extremity edema was noted after the claimant completed her ablation procedures in June and 2021 . . . Therefore, the opinion is not offered for the entirety of the time under consideration. Furthermore, even during times when the opinion was offered, there was either no lower extremity edema noted, or what was described as “trace”
or “nonpitting” lower extremity edema. Therefore, the opinion is not entirely consistent with the providers own documented examination findings. Similarly, is not necessarily consistent with the entirety of the whole record, when considered longitudinally. Accordingly, the opinion is generally unpersuasive.Tr. 28.
Plaintiff contends that because Dr. Sani recommended that Plaintiff engage in LE elevation starting in May 2019 and “continued to experience LE edema as documented in her July and August of 2021 treatment notes with Carolina Cape Fear Medical Group,” Pl.'s Brief [D.E. 14] at 10 (citing Tr. 630), there was a continuous period of at least 12-month where plaintiff had this limitation (see also Tr. 1011 (recommending intermittent leg elevation in July 2019), Tr. 1380 (recommending intermittent leg elevation in November 2020); Tr. 1376 (recommending intermittent leg elevation in December 2020), Tr. 1372 (recommending intermittent leg elevation in March 2021)). Accordingly, Plaintiff contends that she arguably had a potential closed period of disability that the ALJ failed to consider. Pl.'s Brief [D.E. 14] at 10 (“‘Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months. We call this the duration requirement.'”) (quoting 20 C.F.R. § 404.1509).
In response, the Commissioner contends that “there no evidence that the swelling in [Plaintiff's] legs prevented her from working, [and] the evidence shows that the swelling was only found at a limited number of examinations and not for a continuous 12-month period.” Def.'s Brief [D.E. 18] at 15 n.7.
Courts in this circuit have found remand appropriate where an ALJ failed to consider a closed period of twelve or more continuous months within which the claimant was disabled between the alleged onset date and the hearing date. Sykes v. Comm'r, Soc. Sec., No. CV ELH-16-898, 2017 WL 35436, at *2 (D. Md. Jan. 4, 2017) (“Cases are subject to remand where an ALJ fails to consider whether a closed period of disability existed.”) (collecting cases). However, courts in this circuit have also found that an ALJ's finding that the claimant was not disabled at any time from her alleged onset date through the date of the ALJ's decision included “implicit . . . findings” that the claimant was “not entitled to a closed period of disability at any relevant time.” Atwood v. Astrue, No. 5:11CV002-RLV-DSC, 2011 WL 7938408, at *6 (W.D. N.C. Sept. 28, 2011), report and recommendation adopted, No. 5:11-CV-00002-RLV, 2012 WL 1858764 (W.D. N.C. May 22, 2012).
The Commissioner argues that the ALJ's finding that Plaintiff was not under a disability “for the entire relevant period of her claims” includes an implicit finding that Plaintiff was not disabled during any closed period of twelve or more continuous months during this time. Def.'s Brief [D.E. 18] at 15 n.7; see also Tr. 30. However, when the ALJ notes that Dr. Sani's and PA McEntire's “opinion is not offered for the entirety of the time under consideration” (Tr. 28), it suggests that the ALJ only considered the doctors' opinion in light of the entire period of plaintiff's claims, rather than as a potential closed period.
The failure to consider a potential closed period would arguably be harmless here if the reasons the ALJ provided for discounting Dr. Sani's and PA McEntire's opinion were supported by substantial evidence. The ALJ discounts their opinion because “during times when the opinion was offered, there was either no lower extremity edema noted, or what was described as ‘trace' or ‘nonpitting' lower extremity edema.” Id. The ALJ fails to consider that the intermittent leg elevation combined with other treatment, as recommended by the doctors, may have been preventing a return of more severe symptoms. Indeed, it would be the essence of irony to find a medical recommendation unpersuasive because it is achieving the desired outcome and preventing undesired symptoms. Cf. SSR 96-8p (“The RFC assessment must be based on all of the relevant evidence in the case record, such as: . . . [t]he effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication).”) (emphasis added).
Finally, the ALJ notes that Dr. Sani's and PA McEntire's opinion is “not necessarily consistent with the entirety of the whole record, when considered longitudinally.” Tr. 28. The ALJ does not elaborate on this point, but the Commissioner suggests several inconsistencies in Plaintiff's brief including that Plaintiff reported difficulty with swelling in her legs to Dr. Saini on various occasions but reported no swelling in her extremities during her gynecological and primary care examinations during similar periods. Def.'s Brief [D.E. 18] at 14 (citing Tr. 1110, 1114). A patient reporting swelling in her legs to her treating leg specialist rather than to her gynecologist hardly seems to constitute substantial evidence undermining the credibility of the leg specialist's findings. While is it is not the role of the court to “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner],” Mastro, 270 F.3d at 176 (citations omitted), an ALJ “must give ‘good reasons' for the weight assigned to a treating physician's opinion.” White v. Colvin, No. 5:13-CV-853-FL, 2015 WL 545447, at *7 (E.D. N.C. Feb. 10, 2015) (quoting Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *3).
In light of the court's decision to remand above, and because the findings on remand related to Plaintiff's need for additional breaks during her workday may be substantially different, the court does not address whether remand is also required for this argument. On remand, however, the ALJ should consider Plaintiff's argument, including the potential of a closed period of disability, and ensure that steps four and five of the sequential evaluation process are supported by substantial evidence. It will be incumbent on the ALJ to properly consider all of the relevant evidence in accordance with the applicable law and regulations. The ALJ should also include a narrative discussion of how the evidence supports the conclusions reached, in order to facilitate meaningful review if the case is again before the court. See Monroe, 826 F.3d at 189.
VII. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that the court GRANT Plaintiff's request for relief [D.E. 14], DENY Defendant's request for relief [D.E. 18], and REMAND the case to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until February 6, 2024 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).