Opinion
Case No. CIV-18-1018-D
09-17-2019
NICOLETTE SHOTT, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423. The Commissioner has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be reversed and remanded for further administrative proceedings.
I. Administrative History and Final Agency Decision
Plaintiff filed her application for disability insurance benefits on February 2, 2016. AR 160-61. Plaintiff alleged she became disabled on August 7, 2015 due to a back injury, depression, and increased anxiety. AR 160, 187. The Social Security Administration denied Plaintiff's application on March 15, 2016, see id. at 67, 68-82 and on reconsideration on June 16, 2016. AR 83-100, 101.
Plaintiff appeared with counsel and testified at an administrative hearing conducted before an Administrative Law Judge ("ALJ") on June 27, 2017. AR 29-66. A vocational expert ("VE") testified at the hearing. AR 58-64. The ALJ issued a decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act. AR 9-23. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since May 29, 2015. AR 14. At the second step, the ALJ found Plaintiff had severe impairments of fibromyalgia, back disorder, systemic lupus erythematosus, obesity, hypertension, psoriatic arthritis, major depressive disorder, and generalized anxiety disorder. Id. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. Id.
At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to lift and carry 20 pounds occasionally and 10 pounds frequently, sit, stand, and walk for six hours in an eight hour workday, occasionally climb, balance, stoop, kneel, crouch, and crawl, and frequently handle and finger. AR 17. Plaintiff can perform simple and some complex tasks, relate to others on a superficial work basis, and adapt to work situations. Id.
Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ determined Plaintiff could not perform her past relevant work. AR 21. Still relying on the VE, the ALJ further concluded Plaintiff could perform the jobs of mail clerk, mail sorter, and bakery worker. AR 21-22. Based on these findings, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from May 29, 2015 through the date of the decision. AR 22.
The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).
II. Issue Raised
Plaintiff raises two issues on appeal. First, Plaintiff contends the ALJ erred at step three of the sequential evaluation process by failing to properly consider whether she met the requirements for Listing 14.02. Plaintiff's Opening Brief (Doc. No. 16) at 10-20. Second, Plaintiff asserts the ALJ erred in granting only little weight to the opinion of her treating physician, Craig Carson, M.D. Doc. No. 16 at 20-30.
III. General Legal Standards Guiding Judicial Review
The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).
The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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." 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).
The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).
IV. Step Three Analysis
At the third step of the required sequential analysis, the ALJ is required to determine whether a plaintiff's impairments are "equivalent to one of a number of listed impairments that the [Commissioner] acknowledges as so severe as to preclude substantial gainful activity." Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (quotations and citation omitted). The ALJ must "discuss the evidence and explain why he found that [a plaintiff] was not disabled at step three." Id. An ALJ who states only a "summary conclusion that [the plaintiff's] impairments did not meet or equal any Listed Impairment" has not provided an adequate explanation that allows for "meaningful judicial review." Id. Notably, however, the Clifton decision does not "reject the application of harmless error analysis," Fischer-Ross, 431 F.3d at 733, and an ALJ's decision that fails to include specific step three findings may be affirmed when the step three determination is supported by "confirmed or unchallenged findings made elsewhere in the ALJ's decision." Id. at 734. For instance, the ALJ could include adequate reasoning in steps four or five of his analysis that "conclusively preclude [a plaintiff's] qualification under the listings at step three" such that "[n]o reasonable factfinder could conclude otherwise." Id. at 735. If, however, there are no findings that "conclusively negate the possibility" that a plaintiff can meet a relevant listing, the Court must remand to the ALJ for further findings. Murdock v. Astrue, 458 F. App'x 702, 704 (10th Cir. 2012).
In the present case, Plaintiff contends the ALJ failed to provide sufficient reasoning at step three to support his conclusion that Plaintiff's impairment did not meet or medically equal Listing 14.02, Systemic Lupus Erythematosus. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.02A. The "A" criteria of Listing 14.02 require the following: (1) a diagnosis of lupus, (2) involving two or more organs or body systems, (3) with one of the body systems involved to at least a moderate level of severity; and (4) at least two of the constitutional signs or symptoms, which are severe fatigue, fever, malaise, or involuntary weight loss. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.02A.
The Commissioner concedes Plaintiff meets the first three criteria, a diagnosis of systemic lupus erythematosus, involvement of two or more organs/body systems, and with one of the organs/body systems involved to at least a moderate level of severity. Doc. No. 20 at 6-7. Thus, this review hinges on the ALJ's analysis of the evidence of record concerning whether Plaintiff had at least two constitutional symptoms or signs, including but not limited to severe fatigue, fever, malaise, or involuntary weight loss. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.02A. As Plaintiff points out, the record is replete with references to either symptoms of fatigue and malaise, or direct notations of the same. AR 308, 336, 655, 718, 933, 943, 959, 960, 968, 973, 992, 1005, 1023, 1026.
In the ALJ's step three analysis, he stated that he "considered the listed impairment for systemic lupus erythematosus . . . ." and then discussed the listing for rheumatoid arthritis, its requirements, and Plaintiff's symptoms related thereto. AR 16. In that same paragraph, the ALJ ended this discussion by stating, "The claimant does not meet the requirements for a listed autoimmune disease or systemic lupus erythematosus impairment. There is no evidence that the claimant meets the requirements of any body system listed impairment." Id.
The fact that the ALJ's step three analysis contains absolutely no discussion of Listing 14.02's criteria, nor any medical evidence in support of the conclusion with regard to the same, certainly stands out. Instead, the ALJ merely stated that he considered Listing 14.02 and then states in a conclusory manner, at best, that the evidence does not meet the listing. Id. This approach falls woefully short of meeting the requirement that the ALJ discuss the relevant evidence and explain on the record why Plaintiff's impairment did not meet or equal the listing in question. See Dye v. Barnhart, 180 F. App'x 27, 29 (10th Cir. 2006) (finding similar conclusory statement that the plaintiff's impairment did not meet the listing to be error that required remand).
The Commissioner argues the ALJ's discussion in steps four and five was adequate to address the shortcomings of his step three analysis. In asserting this argument, the Commissioner relies on the ALJ's discussion and conclusion that Plaintiff's reported symptoms were belied by other evidence of record. However, the portions of the ALJ's decision upon which the Commissioner relies has very little, if any, relation to fatigue and malaise. For example, the Commissioner argues the ALJ noted repeated findings of normal gait, extremity strength, and sensation, normal objective studies of Plaintiff's spine, reports that treatment alleviated back pain, and "inconsistent statements" from Plaintiff because on two occasions during the relevant time period, Plaintiff reported that she was not experiencing depression and on one occasion, she stated that she had "no complaints of cognitive problems." Doc. No. 20 at 10-11. The Commissioner fails to explain how these findings are relevant to the question of whether Plaintiff suffers from fatigue or malaise, or the other highlighted constitutional symptoms, for purposes of Listing 14.02A. Indeed, the Commissioner acknowledges that evidence related to Plaintiff's gait, extremity strength, and sensation, as well as objective studies of her spine, "may not shed light on limitations arising from . . . lupus," and were primarily "relevant to Plaintiff's severe impairment of a back disorder." Doc. No. 20 at 10.
Thus, unlike Fisher-Ross, the Court cannot rely on the ALJ's discussion of the evidence in steps four and five to overlook the ALJ's failure to discuss the medical evidence and explain why Plaintiff's impairment did not meet or equal Listing 14.02A at step three. See Murdock, 458 F. App'x at 704 (holding that an ALJ's failure to discuss evidence at step three is harmless error only if the Court can look at the ALJ's discussion at steps four and five and find that no reasonable factfinder could conclude that the claimant's impairments met or equaled the listing). The undersigned finds that because the ALJ did not expressly consider the medical evidence in the light of Listing 14.02's criteria and the regulatory explanation of the same, and because the ALJ's subsequent discussion and findings did not clarify whether the ALJ had accurately considered the Listing's criteria at step three, the ALJ's step three error was not harmless. Clifton, 79 F.3d at 1010; Stewart v. Colvin, No. CIV-12-0802-HE, 2013 WL 3852775, at *4 (W.D. Okla. July 24, 2013).
Because this error alone requires remand, the undersigned need not address the other arguments raised by Plaintiff. See Madrid v. Barnhart, 447 F.3d 788, 792 (10th Cir. 2006) (noting that when the ALJ's error affected the analysis as a whole, court declined to address other issues raised on appeal); Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003) ("We will not reach the remaining issues raised by appellant because they may be affected by the ALJ's treatment of this case on remand.").
RECOMMENDATION
In view of the foregoing findings, it is recommended that judgment enter REVERSING and REMANDING the decision of the Commissioner for further administrative proceedings. The parties are advised of their right to file an objection to this Report and Recommendation with the Clerk of this Court on or before October 7th , 2019 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 17th day of September, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE