Foust v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

CIVIL ACTION NO. 5:19-CV-00132-KDB

MELINDA FOUST,

Plaintiffs,

v. ORDER

ANDREW M. SAUL,

Defendants.

THIS MATTER is before the Court on Plaintiff Melinda Foust’s Motion for Summary

Judgment (Doc. No. 10) and Defendant’s Motion for Summary Judgment (Doc. No. 17). In this

action, Plaintiff seeks judicial review of an unfavorable administrative decision denying her

application for disability insurance benefits under the Social Security Act (the “Act”).

Having reviewed and considered the parties’ briefs and exhibits, the administrative record

and applicable authority, and for the reasons set forth below, the Court finds this matter should be

remanded to allow the ALJ to reconsider and further explain his decision that the claimant is not

disabled under the relevant sections of the Act. Accordingly, the Court will GRANT Plaintiff’s

Motion for Summary Judgment, DENY Defendant’s Motion for Summary Judgement,

REVERSE the Commissioner’s decision, and REMAND this matter for further proceedings

consistent with this Order.

I. PROCEDURAL BACKGROUND

On August 30, 2016, Plaintiff filed an application for a period of disability and disability

insurance under Title II of the Act, alleging disability since August 27, 2016 (Tr. 18, 114-120).

The claim was initially denied on December 22, 2016 and following that denial Plaintiff filed a

written request for a hearing (Tr. 18, 66-75). ALJ B. Lloyd Blair (the “ALJ”) held a hearing on

June 19, 2018, at which Plaintiff and a vocational expert appeared (Tr. 18, 31-50). On July 31,

2018, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the Act (Tr.

18-26). The Appeals Council denied review of the ALJ’s decision on August 19, 2019 (Tr. 1).

Plaintiff now seeks review of that decision in this Court pursuant to 42 U.S.C. § 405(g).

II. THE COMMISSIONER’S DECISION

The ALJ followed the required five-step sequential evaluation process established by the

Social Security Administration to determine if Ms. Foust was disabled under the law during the

relevant period. 1 At step one, the ALJ found that Ms. Foust had not engaged in substantial gainful

activity (“SGA”) since her alleged onset date and at step two that she had several medically

determinable and severe impairments: fibromyalgia; obstructive sleep apnea (“OSA”); restless leg

syndrome; dysthymic disorder; GAD; and panic disorder without agoraphobia (20 CFR

404.1520(c)). (see Tr. 20). However, the ALJ found at step three that none of Plaintiff’s

impairments, nor any combination thereof, met or equaled one of the conditions in the Listing of

Impairments at 20 C.F.R. Pt. 404, Subpt. P, App. 1 (see Tr. 21).

The ALJ then determined that Ms. Foust had the residual functional capacity (RFC):

to perform light work, as defined in 20 C.F.R. § 404.1567(b) except she could never

use ladders, scaffolds, or ropes. She can occasionally use ramps, stairs, stoop, kneel,

crouch, and crawl. She must avoid concentrated exposure to vibrations. She cannot

1 The required five-step sequential evaluation required the ALJ to determine: (1) whether

the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a

severe impairment; (3) if so, whether the impairment (or combination of impairments) met or

equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments)

prevented the claimant from performing past relevant work; and (5) if so, whether the impairment

(or combination of impairments) prevented the claimant from performing any other jobs available

in significant numbers in the national economy. 20 C.F.R. §§ 416.920(a)-(g) and 404.1520(a)-(g).

The claimant has the burden of production and proof in the first four steps, but the Commissioner

must prove the claimant is able to perform other work in the national economy despite his

limitations. Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015).

use torque, pneumatic, or power tools. She needs simple repetitive tasks. She cannot

engage in production line type of work. She cannot engage in team work with the

public.

(Tr. 22). The ALJ then found at step four that Plaintiff could not perform her past relevant work

(Tr. 25). However, at step five the ALJ found that given Plaintiff’s age (35), education (high

school), work experience (in skilled, semiskilled and unskilled light work), and RFC there are jobs

that exist in significant numbers in the national economy that she could perform, including “Hand

packager,” “Bench assembly,” and “Inspector” (Tr. 25-26). Thus, the ALJ decided that Plaintiff

has not been under a disability within the meaning of the Act from the alleged onset date through

the date of the decision (Tr. 26).

III. LEGAL STANDARD

The legal standard for this Court’s review of social security benefit determinations is well

established. See Shinaberry v. Saul, 952 F.3d 113, 120 (4th Cir. 2020). “The Social Security

Administration (SSA) provides benefits to individuals who cannot obtain work because of a

physical or mental disability. To determine whether an applicant is entitled to benefits, the agency

may hold an informal hearing examining (among other things) the kind and number of jobs

available for someone with the applicant’s disability and other characteristics. The agency’s factual

findings on that score are ‘conclusive’ in judicial review of the benefits decision so long as they

are supported by ‘substantial evidence.’” Biestek v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1148,

1151-52, 203 L.Ed.2d 504 (2019) (quoting 42 U.S.C. § 405(g)).

“Under the substantial-evidence standard, a court looks to an existing administrative record

and asks whether it contains sufficient evidence to support the agency’s factual

determinations.” Id. at 1154 (internal quotation marks and alteration omitted). “[T]he threshold for

such evidentiary sufficiency is not high. Substantial evidence ... is more than a mere scintilla. It

means—and means only—such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (internal quotation marks and citations omitted). Accordingly, this

Court does not review a final decision of the Commissioner de novo, Smith v. Schweiker, 795 F.2d

343, 345 (4th Cir. 1986), and must affirm the Social Security Administration’s disability

determination “when [the] ALJ has applied correct legal standards and the ALJ’s factual findings

are supported by substantial evidence.” Shinaberry, 952 F.3d at 120 (internal citations omitted).

See also Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Johnson v. Barnhart, 434 F.3d

650, 653 (4th Cir. 2005) (“Where conflicting evidence allows reasonable minds to differ as to

whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].”)

Thus, while the Court must always ensure that proper legal standards are being followed,

this Court may not weigh the evidence again, nor substitute its judgment for that of the

Commissioner, assuming the Commissioner’s final decision is supported by substantial evidence.

See Hays, 907 F.2d at 1456. “In reviewing for substantial evidence” in support of an ALJ’s factual

findings, “[the reviewing court] do[es] not undertake to reweigh conflicting evidence, make

credibility determinations, or substitute [its] judgment for that of the ALJ.” Hancock v. Astrue, 667

F.3d 470, 472 (4th Cir. 2012) (internal quotation marks and alteration omitted). Rather, “[w]here

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the

court defers to the ALJ’s decision. Id. (internal quotation marks omitted); Shinaberry, 952 F.3d at

123. This is true even if the reviewing court disagrees with the outcome—so long as there is

“substantial evidence” in the record to support the final decision below. Lester v. Schweiker, 683

F.2d 838, 841 (4th Cir. 1982).

IV. DISCUSSION

Plaintiff makes numerous arguments that the ALJ’s conclusion that she is not disabled is

not supported by substantial evidence and that the ALJ failed to “build an accurate and logical

bridge” from the evidence in the record to his unfavorable conclusion. See Woods v. Berryhill, 888

F.3d 686, 694 (4th Cir. 2018). Although the Court does not concur with all of Plaintiff’s criticisms

of the ALJ’s decision and does not suggest by this remand whether or not Plaintiff should

ultimately be found to have been disabled during the relevant period, several points of the ALJ’s

opinion raise sufficient questions that the Court believes the case should be remanded so that the

ALJ may further explain his decision.

Plaintiff’s challenge to the ALJ’s decision focuses on her argument that the RFC is not

adequately supported or explained. The Court (in part) agrees. In crafting a RFC, the ALJ must

consider all of the claimant's “physical and mental impairments, severe and otherwise, and

determine, on a function-by-function basis, how they affect [the claimant's] ability to

work.” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Also, in performing the RFC

assessment, an 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).” See Woods, 888 F.3d at 694 (quoting Mascio v. Colvin, 780

F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96–8p, 61 Fed. Reg. at 34,478)). Thus, a proper RFC

analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. Woods,

888 F.3d at 694.

Plaintiff first complains that the ALJ did not properly evaluate her fibromyalgia,

specifically arguing that the ALJ did not fully consider the “fatigue and chronic pain” allegedly

caused by her condition. See Doc. No. 11 at 6-9. While a recognized medical impairment that the

ALJ found to be severe, the nature of fibromyalgia presents a difficult challenge to the

Commissioner because it is often not accompanied by any objective findings that support the

claimant’s subjective reports of pain and fatigue. See Adamson v. Astrue, No. CA 8:06-2901-

HMH-BHH, 2008 WL 474222, at *3 (D.S.C. Feb. 19, 2008). Thus, in determining whether a

claimant who suffers from fibromyalgia is disabled under the Act – which is a different and further

conclusion than the finding that the claimant has a severe impairment – the Commissioner must,

using all the evidence in the record, judge the credibility and impact of the claimant’s subjective

claims. So, while Plaintiff is correct that the absence of adverse “objective” findings alone should

not doom her claim for disability, it is equally correct that an ALJ can and should consider all of a

claimant’s objective medical findings – which here included a lack of neurological deficits, an

ability to complete various tasks with no difficulty and other “normal” findings – in reaching an

ultimate assessment of the claimant’s RFC.2

In this case, the ALJ found that while “the claimant's medically determinable impairments

could reasonably be expected to cause the alleged symptoms … the claimant's statements

concerning the intensity, persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence in the record ….” Tr. at 23. In support of

this finding, the ALJ noted the lack of objective medical findings supporting her complaints of

2 Indeed, context and a careful evaluation of all the evidence matters a great deal in evaluating a

claimant’s subjective complaints. For example, Plaintiff suggests that in addition to pain

medication, “physical therapy, moist heat, aerobic exercise, relaxation, and stress reduction” are

the treatment plan for fibromyalgia and that she has tried massage, hot tub, yoga and Pilates among

other remedies. Of course, standing alone, such treatments might be similarly suggested in an

advertisement for a spa or a health club. In other words, it is not just permissible but critically

important for the Commissioner to be allowed to consider the full picture of Plaintiff’s

circumstances, including findings that may be inconsistent with a claimant’s subjective reports of

pain.

pain. Also, the ALJ relied on evidence that Plaintiff’s “treatment has generally been limited and

conservative” and her testimony that she is “not seeing a psychiatrist, therapist or counselor.” Tr.

at 24.3 Nevertheless, and with due regard for the Court’s limited role in reviewing the

Commissioner’s decision, the Court shares Plaintiff’s concern that the ALJ failed to fully explain

how Plaintiff would be able to participate in full-time work as described in the RFC given her

reports of pain and fatigue.

In particular, the ALJ’s decision does not discuss in any detail Plaintiff’s limited activities

beyond saying that she is able to drive and lives with her fiancé and 5 year old daughter. See Eller

v. Colvin, No. 1:14CV493, 2015 U.S. Dist. LEXIS 96030, at *12-13 (M.D.N.C. July 22, 2015)

(“[T]he nature of fibromyalgia means that a patient’s ability to perform certain tasks or postural

maneuvers on a given day does not necessarily reflect an ability to perform those tasks and

maneuvers on a sustained basis.”). For example, the ALJ’s decision does not discuss the testimony

that Plaintiff stays home most of the time, can do light chores with multiple rests, watches TV and

tries to do “little things” with her daughter such as playing games, coloring, or sitting outside.

Also, she testified that she tries to cook, but can only make sandwiches or frozen meals without

assistance. She can do laundry, a little gardening on good days, goes shopping but not alone, and

has visitors who come to her house. She gets help from her fiancé, mother, and neighbors to feed,

dress, and bathe her daughter. See Tr. 42-43, 139-44.

3 Plaintiff also criticizes the fact that the ALJ took a “negative inference” from the fact that her

medical provider had not placed any restrictions on Plaintiff’s activities. Again, although the

absence of such restrictions is not determinative, it is a fact that the ALJ may consider as part of

his review of all the evidence. While a summary statement from a physician that a claimant is or

is not “disabled” or “able to work” is not considered a medical opinion and is an opinion on an

issue reserved to the Commissioner, 20 C.F.R. §§ 404.1527(d), 416.927(d), the medical provider’s

opinion on specific functional limitations (or here the absence of such limitations) may be

considered.

The extent to which this evidence impacts the ALJ’s decision on whether Plaintiff is

disabled is, of course, up to him in the first instance and may in fact have already been considered.

But, in any event, the ALJ’s written decision does not explain if and how he considered the

evidence and he should do so on remand. See Adamson, No. CA 8:06-2901-HMH-BHH, 2008 WL

474222, at *4 (finding substantial evidence to support Commissioner’s assessment of plaintiff’s

credibility and finding that plaintiff’s activities and circumstances were inconsistent with the level

of her subjective complaints of pain).

Further, the ALJ substantially discounts the testimony of Plaintiff’s fiancé, who lives with

her, finding that it has “limited weight” because “he is not an acceptable medical source.”

Plaintiff’s fiancé testified that he has observed that Plaintiff “has gotten worse over time.” He says

that he has to help her more and more each day because she has a hard time doing daily things like

cooking, cleaning, lifting, shopping, doing personal care, and yard work. He also says that she has

difficulty sleeping because she is always in pain. Tr. 152-59. As the ALJ noted in his opinion,

“whenever statements about the intensity, persistence, or functionally limiting effects of pain or

other symptoms are not substantiated by objective medical evidence, the undersigned must

consider other evidence in the record to determine if the claimant's symptoms limit the ability to

do work-related activities.” Tr. 22. While it is plainly not “medical evidence,” the Plaintiff’s

fiancé’s testimony is “other evidence” that should have been fairly considered and not disregarded

simply because Plaintiff’s fiancé is not a medical provider.

In sum, it will be up to the Commissioner to determine if Plaintiff’s ability to perform daily

activities is or is not inconsistent with a claim of disability. See, e.g., Totten v. Califano, 624 F.2d

10, 12 (4th Cir. 1980). However, on remand the ALJ must explain how Plaintiff’s activities relate

to her ability to perform those or similar functions for a full workday. See Brown v. Comm’r of

Soc. Sec., 873 F.3d 251, 263 (4th Cir. 2017); Mascio, 780 F.3d at 636-37. In other words, the

ALJ must consider the type of activities a claimant can perform as well as the extent to which she

can perform them. Brown, 873 F.3d at 263.

In addition to these arguments, Plaintiff contends that the ALJ did not sufficiently explain

how the RFC reflected his finding that Plaintiff had a moderate limitation in “concentrating,

persisting, or maintaining pace.” See Tr. 21.4 The RFC limits Plaintiff to “simple repetitive tasks”

and further states that “[s]he cannot engage in production line type of work.” However, an ALJ

cannot summarily “account for a claimant’s limitations in concentration, persistence, and pace by

restricting the hypothetical question to simple, routine tasks or unskilled work,” because “the

ability to perform simple tasks differs from the ability to stay on task.” Mascio, 780 F.3d at 638.

In response to this argument, the Commissioner cites to the Court the recent case of

Shinaberry v. Saul in which the Fourth Circuit held that there is no “categorical” obligation for an

RFC to specifically include a limitation in “concentration, persistence or pace” if one has been

found so long as the ALJ explains “why [a claimant’s] moderate limitation in concentration,

persistence, or pace at step three does not translate into a limitation” in the claimant’s

RFC. Shinaberry, 952 F.3d at 120–21. “For example, the ALJ may find that the concentration,

persistence, or pace limitation does not affect [the claimant’s] ability to work, in which case it

would [be] appropriate to exclude it from the hypothetical tendered to the vocational expert.” Id.5

4 In making this determination, the ALJ stated that Plaintiff testified “that she does not finish what

she starts and can pay attention 5-10 minutes (3E/6),” but also noted her ability to name cities,

famous people, and current events in a consultative examination and that she had normal mood

and affect during treatment. Tr. 21.

5 In Shinaberry, the Court noted that “our sister circuits [do not] impose such a per se rule. ‘[W]hen

medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled

work despite limitations in concentration, persistence, and pace, courts have concluded that

limiting the hypothetical to include only unskilled work sufficiently accounts for such

In Shinaberry, the court affirmed the District Court’s decision that the ALJ had

“sufficiently explained why the mental limitation to simple, routine, and repetitive tasks accounted

for Shinaberry’s borderline intellectual disability and her moderate limitations in her

concentration, persistence or pace,” distinguishing Mascio on the grounds that in Mascio:

the ALJ “ignor[ed] (without explanation) Mascio’s moderate limitation in her

ability to maintain her concentration, persistence, or pace” when he conducted the

function-by-function analysis and “said nothing about Mascio’s mental limitations”

in the hypothetical posed to the vocational expert. “[B]ecause the ALJ ... gave no

explanation” for these omissions, “a remand [was] in order.”

(internal citations omitted). So, the absence of a specific limitation in the RFC related to the mental

limitation concerning “concentration, persistence or pace” is not, standing alone, an indication of

error.

However, the Court finds that the ALJ’s discussion of the moderate mental limitation of

“concentration, persistence and pace” in this case, while not omitted entirely, is closer to the facts

in Mascio than Shinaberry. See also Thomas v. Berryhill, 916 F.3d 307, 311–12 (4th Cir. 2019), as

amended (Feb. 22, 2019) (ALJ drew no explicit conclusions about how plaintiff’s mental

limitations affect her ability to perform job-related tasks for a full workday). While the ALJ did

discuss in some detail his view that Plaintiff’s “moderate limitation” should be considered less

impactful because of her otherwise normal psychological evaluations and lack of ongoing mental

limitations.’ Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). Hypothetical

questions can also ‘adequately account for a claimant’s limitations in concentration, persistence,

and pace when the questions otherwise implicitly account for these limitations.’ Id. ‘The inquiry,

as is usually true in determining the substantiality of evidence, is case-by-case.’ Biestek, 139 S. Ct.

at 1157; see also Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017) (rejecting argument

that remand was required under Mascio because the ALJ failed to specifically account for

claimant’s moderate difficulties with regard to concentration, persistence and pace, because more

detailed medical findings provided substantial support for the RFC limitations).”

treatment, the ALJ’s opinion does not, for example, specifically address how Plaintiff’s professed

inability to focus on tasks for more than 5-10 minutes relates to her RFC. Indeed, it may be that

the RFC limitation that Plaintiff “cannot engage in production line type of work”6 relates to this

mental limitation by giving Plaintiff more flexibility to avoid a fast pace or the need to consistently

focus on her tasks. Accordingly, the Court will remand this action to allow the ALJ to more clearly

explain how the RFC reflects Plaintiff’s moderate limitation in “concentration, persistence and

pace,” whether or not a specific limitation in that regard is included in the RFC.

Finally, Plaintiff argues that the Court should find error in the RFC based on an allegedly

insufficient discussion of Plaintiff’s sleep apnea. The Court declines to find error in this regard,

primarily because it appears that Plaintiff was still in the process of obtaining treatment for this

condition, and Plaintiff did not complain of any significant ongoing problems. However, the Court

notes that on remand the ALJ will have an opportunity to further explain his reasoning with respect

to Plaintiff’s sleep apnea if that is warranted by the evidence presented.

In summary, the Court will remand this matter to the Commissioner for further proceedings

for the reasons discussed above. Again, to be clear, by ordering remand pursuant to sentence four

of 42 U.S.C. § 405(g), the Court does not forecast a decision on the merits of Ms. Foust’s

application for disability benefits. See Patterson v. Comm’r of Soc. Sec. Admin., 846 F.3d 656,

663 (4th Cir. 2017). “Under § 405(g), ‘each final decision of the Secretary [is] reviewable by a

separate piece of litigation,’ and a sentence-four remand order ‘terminate[s] the civil action’

6 Although the Court does not fully share Plaintiff’s concern that this limitation is so ambiguous

that it is “impossible” to assess whether the limitation is supported by substantial evidence, the

ALJ should also clarify this limitation on remand. See Thomas v. Berryhill, 916 F.3d 307, 311–12

(4th Cir. 2019), as amended (Feb. 22, 2019) (While “the ALJ stated that Thomas could not perform

work ‘requiring a production rate or demand pace,’ she did not give us enough information to

understand what those terms mean.”).

seeking judicial review of the Secretary’s final decision.” Shalala v. Schaefer, 509 U.S. 292, 299

(1993) (alternation in original) (emphasis omitted) (quoting Sullivan v. Finkelstein, 496 U.S. 617,

624-25 (1990)).

V. ORDER

Plaintiff's Motion for Summary Judgment (Doc. No. 10) is GRANTED; Defendant’s

Motion for Summary Judgment (Doc. No. 17) is DENIED; and the Commissioner’s decision 1s

REVERSED. This matter is REMANDED for a new hearing pursuant to Sentence Four of 42

U.S.C. § 405(g).’

SO ORDERED ADJUDGED AND DECREED.

Signed: November 23, 2020

Kenneth D. Bell ey,

United States District Judge il of

7 Sentence Four authorizes “a judgment affirming, modifying, or reversing the decision . . . with

or without remanding the cause for a rehearing.” Sullivan, 496 U.S. 617, 625 (1990).

12