WRIGHT v. BERRYHILL

Civil Action No. 2:16-cv-01981-RBH-MGB.

Autry Wright, Jr., Plaintiff, v. Nancy Berryhill, Acting Commissioner of Social Security, Defendant.

United States District Court, D. South Carolina, Charleston Division.

Editors Note
Applicable Law: 42 U.S.C. § 405
Cause: 42 U.S.C. § 405 Review of HHS Decision (DIWC)
Nature of Suit: 864 Social Security: SSID Tit. XVI
Source: PACER


Attorney(s) appearing for the Case

Autry Wright, Jr, Plaintiff, represented by Harry Frazer Smithson , Harry F Smithson Law Office.

Commissioner of Social Security Administration, Defendant, represented by Barbara Murcier Bowens , US Attorneys Office.


REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

MARY GORDON BAKER, Magistrate Judge.

This case is before the Court for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1).

The Plaintiff, Autry Wright, Jr., brought this action pursuant to Section 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. § 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner") regarding his claim for supplemental security income benefits ("SSI") under Title XVI of the Social Security Act, as amended (the "Act").

RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS

The Plaintiff was 47 years old on the date he applied for supplemental security income. (R. at 16.) He alleged disability beginning July 28, 2011 due to hypertension, glaucoma, broken leg status post surgery with hardware, and gout. (R. at 11, 13, 72.) Plaintiff has an eighth-grade education and no past relevant work. (R. at 16, 25-26.)

The Plaintiff filed an application for SSI on August 3, 2012. (R. at 11.) His application was denied initially and on reconsideration. (R. at 11.) After a hearing before an Administrative Law Judge (ALJ) on October 23, 2014, the ALJ issued an unfavorable decision on January 7, 2015. (R. at 11-17.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.

In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant has not engaged in substantial gainful activity since August 3, 2012, the application date (20 CFR 416.971 et seq.). (2) The claimant has the following severe impairments: broken leg status post surgery with hardware and hypertension (20 CFR 416.920(c)). (3) The claimant 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 (20 CFR 416.920(d), 416.925 and 416.926). (4) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) with lifting and carrying 10 pounds occasionally and less than 10 pounds frequently; no climbing of ladders, ropes or scaffolds; no more than occasional climbing of ramps or stairs, balancing, stooping, kneeling, crouching, or crawling; and avoid concentrated exposure to heights and dangerous equipment. (5) The claimant has no past relevant work (20 CFR 416.965). (6) The claimant was born on July 11, 1965 and was 47 years old, which is defined as a younger individual age 45-49, on the date the application was filed (20 CFR 416.963). (7) The claimant has a limited education and is able to communicate in English (20 CFR 416.964). (8) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968). (9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)). (10) The claimant has not been under a disability, as defined in the Social Security Act, since August 3, 2012, the date the application was filed (20 CFR 416.920(g)).

(R. at 13-17.)

APPLICABLE LAW

The Act provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. 42 U.S.C. § 1381 et. seq.; 20 C.F.R. § 416.110. "Disability" is defined in the Act as 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A).

To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has an impairment which prevents past relevant work; and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id.; see also Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The plaintiff "bears the burden of production and proof during the first four steps of the inquiry." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If the plaintiff "is able to carry this burden through the fourth step, the burden shifts to the Secretary in the fifth step to show that other work is available in the national economy which the claimant could perform." Id. at 1203.

The scope of judicial review by the federal courts in disability cases is "limited to determining whether the findings of the Secretary are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.

Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).

Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

DISCUSSION

The Plaintiff contends that the ALJ erred in failing to find him disabled. More specifically, Plaintiff contends the ALJ erred in analyzing Plaintiff's credibility, as the ALJ "fail[ed] to provide an adequate credibility evaluation as required by Craig and SSR 96-7p." (Dkt. No. 15 at 12.)1 Plaintiff further asserts the ALJ's assessment of Plaintiff's residual functional capacity ("RFC") "violates Fourth Circuit law and SSR 96-8p" and that the ALJ erred in finding that Plaintiff's gout did not constitute a severe impairment. (Dkt. No. 15 at 12, 14.)2

A. Severe Impairment

As to Plaintiff's contention that the ALJ erred in finding that Plaintiff's gout was not a severe impairment, Plaintiff asserts this was error because Plaintiff "complained of weekly flareups of gouty pain, primarily in his right foot but also in his elbows, despite taking two antiinflammatories for the disease, Allopurinal and Colcrys." (Dkt. No. 15 at 13.) At Step Two of the sequential evaluation process, the ALJ "consider[s] the medical severity of [a claimant's] impairment(s)." 20 C.F.R. § 416.920(a)(4)(ii). The regulations define a "non-severe impairment" as "[a]n impairment or combination of impairments . . . [that] does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 416.922(a). "Basic work activities" means "the abilities and aptitudes necessary to do most jobs," and some examples include:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; (3) Understanding, carrying out, and remembering simple instructions; (4) Use of judgment; (5) Responding appropriately to supervision, co-workers and usual work situations; and (6) Dealing with changes in a routine work setting.

20 C.F.R. § 416.922(b). In Evans v. Heckler, 734 F.2d 1012 (4th Cir. 1984), the Fourth Circuit stated, "An impairment can be considered as `not severe' only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience." Evans, 734 F.2d at 1014 (emphasis in original) (citations omitted).

In the case sub judice, the ALJ noted Plaintiff's gout but found that it was not a severe impairment because "[t]he evidence fails to show that th[is] condition[] cause[s] more than minimal interference with [Plaintiff's] ability to perform basic work-related activities." (R. at 13.) Plaintiff's medical record contains several references to gout. (See, e.g., R. at 266-68, 300-01, 305-06.) Additionally, as set forth below, the record contains numerous complaints that appear to be related to Plaintiff's gout, even though the documentation may not specifically mention gout.

Plaintiff was seen in March of 2008 for right ankle pain due to his gout; his uric acid was "9.8 then 7.7," and his right ankle was swollen and tender. (R. at 267; see also R. at 268.) In June of 2008, Plaintiff reported needing a higher dose of gout medication. (R. at 266.) In March of 2011, Plaintiff complained of sharp pain in his left leg from his hip to his ankle. (R. at 257.) In April of 2011, Plaintiff again complained of left leg pain. (R. at 253-54.) In July of 2011, Plaintiff was given a toradol shot in his left hip. (R. at 250.) On March 4, 2013, Plaintiff was seen on complaints of pain in his right elbow and tingling in his arm. (R. at 309.) On July 16, 2013, Plaintiff was seen on complaints of arthritis, particularly in his right arm and leg; Plaintiff reported numbness and tingling. (R. at 308.) Mobic was discontinued, and Plaintiff was prescribed celebrex. (R. at 308.)

On July 8, 2014, Plaintiff was seen on complaints of his hips hurting; he requested medication for gout. (R. at 305.) Plaintiff was prescribed, inter alia, celebrex. (R. at 306.) His uric acid was 7.7 on July 9, 2014. (R. at 301.) On July 21, 2014, Plaintiff complained of arthritis in both hips as well as low back pain and leg pain. (R. at 300.) He had decreased range of motion in his hips; he was prescribed allopurinal and colcrys for his gout. (R. at 300.)

At the hearing before the ALJ on October 23, 2014, Plaintiff testified that his gout in his feet flares up at least once a week; he testified that he has gout in his elbow that flares up approximately twice a month. (R. at 28.) He testified that when he gets up in the morning, he "can't walk good," and after sitting for a period of time, his leg becomes stiff, making it painful to stand. (R. at 38.) He testified that his right foot is always swollen from gout. (R. at 39.)

The ALJ's analysis of Plaintiff's gout consists of nothing more than his finding that it was not a severe impairment because "[t]he evidence fails to show that th[is] condition[] cause[s] more than minimal interference with [Plaintiff's] ability to perform basic work-related activities." (R. at 13.) Although Plaintiff's diagnosis alone does not mean that it is a severe impairment, see Salles v. Comm'r of Soc. Sec., 229 F. App'x 140, 145 (3d Cir. 2007), the ALJ does not explain why Plaintiff's gout does not significantly limit Plaintiff's ability to perform "[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling," see 20 C.F.R. § 416.922(b).

Furthermore, as stated in Walker v. Bowen, 889 F.2d 47 (4th Cir. 1989),

[A] failure to establish disability under the listings by reference to a single, separate impairment does not prevent a disability award. . . . It is axiomatic that disability may result from a number of impairments which, taken separately, might not be disabling, but whose total effect, taken together, is to render claimant unable to engage in substantial gainful activity. In recognizing this principle, this Court has on numerous occasions held that in evaluating the effect[] of various impairments upon a disability benefit claimant, the Secretary must consider the combined effect of a claimant's impairments and not fragmentize them. As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.

Walker, 889 F.2d at 49-50 (citations omitted); see also 20 C.F.R. § 416.923 ("In determining whether your physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under the law, we will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. If we do find a medically severe combination of impairments, we will consider the combined impact of the impairments throughout the disability determination process.").

Even if an ALJ is found to have erred at step two in concluding an impairment is not severe, the error is generally considered harmless if the ALJ considers that impairment at subsequent steps. See Sawyer v. Colvin, 995 F.Supp.2d 496, 509 (D.S.C. 2014); Brown v. Astrue, Civ. A. No. 0:10-cv-01584-RBH, 2012 WL 3716792, at * 6 (D.S.C. Aug. 28, 2012) ("[T]he adequacy requirement of Walker is met if it is clear from the decision as a whole that the Commissioner considered the combined effect of a claimant's impairments."); Thornsberry v. Astrue, Civ. A. No. 4:08-4075-HMH, 2010 WL 146483, at *5 (D.S.C. Jan. 12, 2010) (finding "while the ALJ could have been more explicit in stating that his discussion dealt with the combination of [the plaintiff's] impairments, his overall findings adequately evaluate the combined effect of [the plaintiff's] impairments.").

In the case sub judice, however, the ALJ—with no analysis—found that Plaintiff's gout was not a severe impairment, and the ALJ did not explain how Plaintiff's gout—if at all—affects Plaintiff's residual functional capacity. Given the medical evidence Plaintiff presented with respect to gout, and Plaintiff's testimony about the limiting effects of that condition, the undersigned concludes the ALJ's failure to (a) explain why gout was not a severe impairment, and (b) explain how Plaintiff's gout affected his RFC, the undersigned cannot conclude that the ALJ's decision is supported by substantial evidence. See Walker, 889 F.2d at 50 ("[T]he ALJ must adequately explain his or her evaluation of the combined effects of the impairments."); Reichenbach v. Heckler, 808 F.2d 309, 312 (4th Cir. 1985) ("While the ALJ may have considered all of these factors prior to determining that [the plaintiff] was not eligible for disability benefits, he failed to provide adequate explanation to show that he had considered the combined effect of the impairments so as to allow proper judicial review."); see also Washington v. Comm'r, 659 F.Supp.2d 738, 745 (D.S.C. 2009) (remanding where the ALJ's opinion "does not include analysis of the cumulative effect of [the plaintiff's] impairments"); Saxon v. Astrue, 662 F.Supp.2d 471, 480 (D.S.C. 2009) ("What is missing from the ALJ's findings . . . is an explanation of his evaluation of the combined effects of the Plaintiff's impairments." (emphasis in original)); Kins v. Comm'r of Soc. Sec., Civ. A. No. 3:14-cv-86, 2015 WL 1246286, at *21 (N.D.W. Va. Mar. 17, 2015) (concluding that "substantial evidence does not support the ALJ's finding that Plaintiff's leg impairments were non-severe," where the "ALJ provided little explanation for her finding that Plaintiff's leg impairments were not severe," and (a) "Plaintiff underwent objective medical testing, was seen by neurologists and received medication for her leg impairments," and (b) "the record includes alleged limitations related to Plaintiff's leg impairments, including foot jerking, falling and difficulty with gait, walking and postural imbalance"); Price v. Astrue, Civ. A. No. 5:08-CV-485-FL, 2009 WL 2568194, at *3 (E.D.N.C. Aug. 17, 2007) ("[W]ithout a more detailed analysis as to the impact, if any, that Plaintiff's non-severe impairments have on her RFC, this Court is unable to conclude that the ALJ's decision is supported by substantial evidence."); SSR 96-8p, 1996 WL 374184, at *5 ("In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not `severe.' While a `not severe' impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may—when considered with limitations or restrictions due to other impairments—be critical to the outcome of a claim.").

B. Remaining Claims of Error

Because the Court finds the ALJ's analysis with respect to Plaintiff's gout is a sufficient basis to remand the case to the Commissioner, the undersigned does not specifically address Plaintiff's additional allegations of error by the ALJ. However, upon remand, the Commissioner should take into consideration Plaintiff's remaining allegations of error, including Plaintiff's assertion that the ALJ erred in analyzing Plaintiff's credibility and in assessing Plaintiff's residual functional capacity. (See Dkt. No. 15 at 12, 14.)

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. Section 405(g) for further proceedings as set forth above.

IT IS SO RECOMMENDED.

FootNotes


1. See Craig v. Chater, 76 F.3d 585 (4th Cir. 1996); SSR 96-7p, 1996 WL 374186. The undersigned notes that, effective March 16, 2016, SSR 16-3p superseded SSR 96-7p. See SSR 16-3p, 2016 WL 1119029; see also Keefer v. Colvin, Civ. A. No. 1:15-4738-SVH, 2016 WL 5539516, at *11 (D.S.C. Sept. 30, 2016).
2. See SSR 96-8p, 1996 WL 374184.

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