Opinion

BENNETT v. KIJAKAZI

Court
District Court, M.D. North Carolina
Filed
Sep 8, 2020
Cited by
0 cases
Authority
More cited than 31.5%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SUSAN BENNETT, )

Plaintiff,

v. 1:19CV273

ANDREW SAUL,

Commissioner of Social Security, )

Defendant.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Susan Bennett (“Plaintiff”) brought this action pursuant to Section 205(g) of

the Social Security Act (the “Act’’), as amended (42 U.S.C. § 405(2)), to obtain judicial review

of a final decision of the Commissioner of Social Security denying her claim for Disability

Insurance Benefits (“DIB”) under Title II of the Act. The parties have filed cross-motions

fot judgment, and the administrative recotd has been certified to the Court for review.

I. PROCEDURAL HISTORY

Plaintiff protectively filed her application for DIB on June 19, 2015, alleging a disability

onset date of October 15, 2014. (Tr. at 12, 181-87.)! Her claim was denied initially (Tr. at 64-

77, 92-95), and that determination was upheld on reconsideration (I'r. at 78-91, 102-09).

Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative

Law Judge (“ALJ”). (Tr. at 110-11.) Plaintiff attended the subsequent hearing on March 27,

Transcript citations refer to the Administrative Record [Doc. #8].

2018, along with her attorney and an impartial vocational expert. (Ir. at 12, 33.) Following

the heating, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act.

(Tr. at 21), and, on January 17, 2019, the Appeals Council denied Plaintiffs request for review,

thereby making the ALJ’s conclusion the Commissionet’s final decision for purposes of

judicial review (I'r. at 1-5). □

I. LEGALSTANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s denial of

social security benefits.” Hines v. Batnhatt, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of teview of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts ate not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

ALJ if they ate supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cit. 2012) Gnternal

quotation omitted). .

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept

as adequate to suppott a conclusion.” Hunter _v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than □□□□

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict wete the case before a jury, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation matks omitted).

“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

[AL]].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where

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

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was □

reached based upon a cottect application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits beats the burden of ptoving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to tesult in death or which has lasted or can be expected to last for a continuous

petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).2

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C-F.R. §§ 404.1520(a)(4); 416.920(a)(4)).

Under this process, the Commissioner asks, in sequence, whether the claimant:

(1) worked during the alleged petiod of disability; (2) had a severe impairment;

2 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDD), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Security Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDJ); 20 C.F.R. pt. 416 (SSI), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

(3) had an impairment that met or equaled the requirements of a listed

impairment; (4) could return to her past relevant work; and (5) if not, could

perform any other work in the national economy.

Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the inquity. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at the first two steps, and if

the claimant’s impaitment meets or equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

falters at step three, ie., “[i]fa claimant’s impairment is not sufficiently severe to equal or

exceed a listed impaitment,” then “the ALJ must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.3 Step four then requires the ALJ to assess whether, based on

that REC, the claimant can “perform past relevant work”; if so, the claimant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

wotk, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

3 “RFC is a measurement of thé most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8

houts a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, ot very heavy work,” as well as “nonexertional limitations

(mental, sensory, or skin impaitments).” Hall, 658 F.2d at 265. “REC is to be determined by the AL] only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”

Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide

“whether the claimant is able to perform other work considering both [the claimant’s RFC],

and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust

‘to a new job.” Hall, 658 F.2d at 264-65. If at this step, the Government cannot carry its

“evidentiary burden of proving that [the claimant] temains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

Il. DISCUSSION

In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” between her alleged onset date, October 15, 2014, and her date last insured, June 30,

2018. Plaintiff therefore met het burden at step one of the sequential evaluation process. (Tr.

at 14.) At step two, the ALJ further determined that Plaintiff suffered from the following

severe impairments:

histoty of deep vein thrombosis (DVT), history of shunted pseudotumor

cetebri, and obesity[.| .

t. at 14.) The ALJ next found at step three that none of Plaintiff's impairments, individually □

of in combination, met ot equaled a disability listing. (I'r. at 15.) Therefore, the ALJ assessed

Plaintiffs RFC and determined that, through her date last insured, Plaintiff had the RFC to

perform light work with the following, additional limitations:

[Plaintiff] can never climb ladders, ropes ot scaffolds; cannot have concenttated

exposute to temperature[] extremes or hazards, such as heights or moving

machinery, and would not be capable of commercial driving. [Plaintiff] would

be limited to simple, repetitive, and routine tasks with occasional decision-

making and occasional changes to the work duties and would have the ability to

maintain concentration up to 2 hours at a time.

at 15.) Based on this determination and the testimony of a vocational expert, the AL]

determined at step four of the analysis that Plaintiff was unable to perform any of her past

televant work. (Tr. at 19-20.) However, at step five, the ALJ found that, given Plaintiffs age,

education, work experience, and RFC, she could perform other jobs available in the national

economy. (Tr. at 20-21.) Therefore, the ALJ concluded that Plaintiff was not disabled under

the Act. (It. at 21)

Plaintiff now contends that, in formulating her RFC, the AL] failed to adequately

account “for the vocationally limiting effects of Plaintiffs well documented chronic

headaches.” (Pl’s Br. [Doc. #12] at 1.) After a thorough review of the record, the Court

agrees that substantial evidence fails to support the AL]’s decision.

When assessing Plaintiffs RFC, the ALJ found that Plaintiffs “intractable headaches

and severe memoty impaitment would limit her to no more than simple, repetitive, and routine

tasks with [the] ability to maintain concentration for no more than 2 hours at a time.” (I'r. at

17.) She further found that Plaintiffs “allegations of disabling pain and other limitations

[were] not fully supported by the objective medical evidence and other relevant evidence” □□□□□

at 17), explaining that “[dJespite the severity of the invasive procedures and extensive

symptoms teported by [Plaintiff] throughout the record, there is evidence in the record to

temper the severity and chronicity of the symptoms as alleged” (I'r. at 19). . □

In discounting the severity and limiting effects of Plaintiffs headaches, the ALJ relied

on the following analysis:

[T]hetre is no medical evidence of record that goes back as far as the alleged

onset date. The undersigned also has taken into account the discrepancy of the

fepotted 7-8 emergency room visits per year for intractable headaches, as

alleged, and the failure of the representative to provide documentation of same,

despite ample opportunity, as detailed in the procedural history above. When

questioned why there had been no neurological treatment since 2016, [Plaintiff]

testified that she goes to the emergency room 7-8 times a yeat for headaches

that last more than two hours. Only one visit was submitted, in September

2017. The tecotd contains emergency toom visits for things other than

[PlaintifPs] alleged impairments. [Plaintiff's] representative was also given

post[-]heating time to make arguments and submit a brief. No brief was

submitted.

The medical evidence of record reflects [that Plaintiff] stopped neurological

treatment, even though she had insurance. Allegations of emergency toom

visits for headaches lasting more than two houts have not been submitted even

though additional time was given. This implies [Plaintiff] exaggerated this. She

also testified she could lift 20 pounds. She alleges vertigo, but takes no

medication for same. [Plaintiff] takes no medication for migraines. She testified

that they did not help, but treatment notes in Exhibit 15F say Imitrex helped.

Thete is no medical evidence of tight shoulder pain.

(Tr. at 19.) Thus, the ALJ telied on the following findings to “temper the severity and

chtonicity of the symptoms as alleged”: .

1. “There is no medical evidence of record that goes back as far as the alleged onset

date” of October 15, 2014.

2. Plaintiff “testified that she goes to the emergency toom 7-8 times a yeat for

headaches that last mote than 2 hours” but “[o]nly one visit was submitted, in

September 2017,” and “[allegations of emergency room visits for headaches lasting

mote than two hours have not been submitted even though additional time was

given. This implies the claimant exaggerated this.” The ALJ further noted that she

had “taken into account the discrepancy of the reported 7-8 emergency room visits

pet yeat for intractable headaches, as alleged, and the failure of the representative

to provide documentation of same.”

3. Plaintiff “stopped neurological treatment, even though she had insurance” and

thete had been “no neurological treatment since 2016.”

4, “She alleges vertigo, but takes no medication for same.”

5. She “takes no medication for migraines. She testified that they did not help, but

treatment notes in Exhibit 15F say Imitrex helped.”

6. “There is no medical evidence of right shoulder pain.”

at 19.) However, a review of the tecotd teveals that each of these bases for discrediting

Plaintiffs allegations is without basis or support.

First, with respect to the finding that “[t]here is no medical evidence of record that

goes back as far as the alleged onset date” of October 15, 2014, Plaintiff's medical records do

go back as far as her alleged onset date, as evidenced in Exhibit 3F, which contains Plaintiffs

records from her primary cate ptovider, Oakboro Medical Setvices, between May 3, 2011 and

May 11, 2015. (Tr. at 397-457.) Those records specifically include a visit on June 24, 2014,

apptoximately four months prior to the alleged onset date, for vertigo. (Ir. at 421-23.) ‘This

is consistent with Plaintiffs testimony that she began to experience vertigo and continued to

tty to work, but ultimately could not safely drive and stopped working in October 2014 □□□

at 41). At the visit in June 2014, Plaintiff was treated with Antivert (meclizine), Phenergan

and Solu Medrol, and medical records through the alleged onset date and to the end of 2014

continue to list meclizine as a cutrent medication (It. at 421-23, 417-20, 450.) She continued

to seek treatment and was subsequently diagnosed a month later in January 2015 with swelling

of the optic disc (It. at 465-66), she had an MRI and lumbar puncture in February 2015 (Tr.

at 392, 394), she was teferred to a neutosutgeon in June 2015 (Ir. at 460), the neurosurgeon

(Dt. McLanahan) noted that she teported significant headaches that began in October 2014,

he diagnosed pseudotumot cerebri (intracranial hypertension) and performed brain surgery to

place a shunt in July 2015 (Tr. at 472-76), she had complications from the surgery, and she

underwent a shunt revision surgery in September 2015 (Tr. at 552-53). .

Second, the ALJ erroneously states that only one emergency room visit for a headache

appeated in the record. In fact, the record reveals numerous ER visits for headaches, including

Match 2016 (Tr. at 1027-29) August 2016 (Tr. at 980-82), Februaty 2017 (Tr. at 1011), Match

2017 (It. at 1120), September 2017 (Tr. at 2058), and February 2018 (Tr. at 1893). ‘The

treatment notes confirm that “these ER visits occurred when [Plaintiff's] headaches lasted fot

longet than two days and thus were not relieved by the usual taking of additional medication

and lying down in a dark room until they subsided,” consistent with [Plaintiffs] testimony.

(PL’s Br. at 7; Tr. at 1011, 1120, 2058.) Moreover, during the hearing, Plaintiff initially testified

that she went to the emergency room seven or eight times a yeat in the following exchange:

Q. Okay. So you indicated if you have a headache more than two days you'll

go to the emergency toom. Is that rightp

A. Yes, ma’am.

Q. So Ihave emergency room visit in February *18.

A. Yes, ma’am.

Q. How many times a yeat would you say that happens, that you have to go

to the emergency room —

A. Probably —

Q. Because of a headache?

A. Seven ot eight.

Q. Seven or eight times a year? .

A. Probably.

(Ir. at 46-47.) Later in the heating, the ALJ noted that she did not see documentation of

emergency room visits seven to eight times a yeat: Plaintiffs representative noted that the

documentation included visits for “pain in the chest and the shoulder,” and “[t]here’s more of

those than the emergency room visits for the headaches.” (Ir. at 54.) The ALJ then clarified

with Plaintiff as follows:

Q. So how do you explain the discrepancy? Ate you sute you go to the

emetgency toom seven or eight times a yeat for your headaches?

A. I may have put the other visits in with it.

at 54.) The ALJ then noted that she only had documentation for one ot two emergency

room visits ovet a two or three year petiod, and Plaintiff noted that “[t}hat doesn’t sound

9 □

cottect. There has to be something missing.” (I'r. at 55-56.) As noted above, the record

teflects six emergency toom visits for headaches over a two-yeat petiod, not one or two overt

a two- ot three-year petiod as asserted by the ALJ. Moreover, to the extent Plaintiff “put the

other visits in with it,” as Plaintiff clarified in her testimony, the evidence reflects that for the

one yeat petiod prior to the hearing, from Match 2017 to February 2018, Plaintiff visited the

emetgency toom 7 times, and 3 of those visits were for intractable headache. (Tr. at 1120-24,

1134-40, 1146, 1163-64, 2058, 1785, 1893.) In the year prior to that, from March 2016 to

February 2017, Plaintiff visited the emergency room 8 times, and 3 of those visits were for

intractable headache. (It. at 1027-29, 985, 1038, 1068, 1076-80, 980, 990-1001, 1011-16.)

Thus, in the two years prior to the hearing, she visited the emergency toom 7 to 8 times pet

year, as alleged, and at least 6 of those visits were specifically for headaches that would not

respond to medication and treatment at home.*

Third, with respect to the AL]’s finding that Plaintiff “stopped neurological treatment,

even though she had insurance” and that there had been “no neurological treatment □□□□□

2016,” the record reflects that Plaintiff did not stop neurological treatment in 2016 as the ALJ

suggests. During 2016 and 2017, Plaintiff saw a neurologist (Dr. Liu), a neuro-

ophthalmologist (Dt. Brown), and a neurosurgeon (Dr. McLanahan), all with respect to her

“Notably, the ALJ does not discuss or summatize this evidence and cites only to the emergency room visit in

September 2017. The AL] does generally note that “[t]he record contains emergency room visits for things

other than [Plaintiffs] alleged impairments.” (Tr. at 19.) However, many of these visits relate to Plaintiff's

pulmonaty embolism in September 2016, and subsequent diagnosis of Lupus Coagulent Disorder with lifetime

anticoagulant treatment and monitoring. Although the AL] noted the “history of [DVT]” as a severe

impaitment, the AL] did not address the emetgency room visits in 2016 and 2017 related to the pulmonary

embolism and the subsequent visits for chest pain ot leg pain to address the possibility of another DVT. (Tr.

at 1038, 1044, 1076-80, 990-1001, 1110-15, 1134-40, 1146-48, 1785-86, 1180-82, 1242-43, 1295, 1312-13, 1344,

1374).

10

pseudotumor cerebri. Plaintiffs last visit with Dr. Liu was October 2016 (I'r. at 746-69), and

Plaintiff testified at the hearing that she had recently made another appointment but Dr. Liu

had a six-month waiting list for appointments. (I'r. at 42.)° Dr. Liu continued to prescribe

medication for her during the wait time between appointments (Tr. at 43.) Moreover, during

the time period between her last appointment with Dr. Liu in October 2016 and the hearing

in March 2018, Plaintiff had four appointments with her neurosurgeon Dr. McLanahan or his

staff in November 2016 (Ir. at 667-71), March 2017 (Ir. at 666), May 2017 (Tr. at 663-65),

and September 2017 (Tr. at 1763-66). Dr. McLanahan noted the possibility for further surgery

including a lumbar catheter, and noted her symptoms of headaches 2-3 times.per week and

chronic vertigo. (Tr. at 663-64, 666, 667.) During that same time period between October

2016 and the hearing in Match 2018, Plaintiff also saw het neuro-ophthalmologist Dr. Brown

twice, in November 2016 and May 2017 (Tr. 52, 696-99, 703-04).° Thus, the record does not

support the ALJ’s finding that she “had no neurological treatment since 2016” or that she

“stopped neurological treatment, even though she had insurance.”

Fourth, with respect to the ALJ’s finding that she “alleges vertigo, but takes no

medication for same,” the record includes numerous visits noting vertigo or dizziness (Ir. at

421, 1672, 774, 807, 980, 667-71, 927, 703-04, 1763, 1791), and Plaintiff was initially treated

with meclizine and corticosteroids (Tr. at 421-23, 1760). The medical records continue to note

treatment with antihistimines and corticosteroids, and a recurring entry for medication for

5 The notes of Plaintiff's primary care provider confirm the long wait time for an appointment with Dr. Liu

when otiginally referred in 2015. (Tr. at 1676.)

€ Plaintiff also had appointments with her primaty care ptovider (Dt. Lamichhane), and had appointments at

the Pain Clinic where she reported dizziness, headaches, and post-sutgical neuropathic pain (I. at 838-40, 882,

886-87, 921, 925).

11

motion sickness telief as needed (Tr. at 450, 417-20, 748, 858, 905, 947, 994, 1012, 1121, 1269,

1345-46, 1399, 1415, 1433, 1445, 1460, 1469, 1496, 1520, 1570, 1584, 1593, 1865, 1900, 1970,

1982, 1996). This is consistent with Plaintiff's testimony:

Q. Are you taking medication for [vertigo]? .

A. Not tight now. That’s one of the meds that you take as you need it.

Q. Okay. So when you feel dizzy, do you take ite □

A. Yes, ma’am.

Q. And does it resolve?

A. Not always.

(Tr. at 48.). .

Fifth, with respect to the AL]’s finding that Plaintiff “takes no medication for

migraines” and that “[s}he testified that they did not help, but treatment notes in Exhibit 15F

say Imitrex helped,” there is no evidence that Plaintiff took the illogical step of stopping her

treatment with Imitrex despite its efficacy in alleviating her headaches. The AL] cites to

Exhibit 15F, which is the treatment recotd for Dr. Liu. That tecord reflects that at het first

visit with Dr. Liu, Plaintiff reported that with respect to medications tried in the past, “Imitrex

helped.” (T'r. at 724.) Dr. Liu therefore prescribed Imitrex, noting that, “[flor her headac[he]s, _

will let her try Imitrex 100 mg prn to see if it would help.” (I't. at 728.) However, the next

visit with Dr. Liu reflects that Plaintiff continued to have headaches, and Dr. Liu noted that,

“T tried the patient with Imitrex without benefit.” (Ir. at 747.) Dr. Liu therefore switched

Plaintiff to try Relpax, but Plaintiff testified that it also did not help. (Ir. at 750, 56.) Other

records reflect that Plaintiff continued to take propranolol as a preventative medication for

migtaines, although she still had frequent headaches despite medication. (I'r. 208, 235, 268,

405, 417, 512, 635, 667-70, 671, 675, 1181, 1672, 1657-58, 1574-75, 1436-37, 1763-64, 1027-

29, 980, 1011-16, 1120-24, 1893.)

12

Sixth, the ALJ found that there was “no medical evidence of right shoulder pain,” but

eatlier in the opinion the AL] summarized her “neuropathic pain in the right shoulder in the

upper pectoralis /tight claviculat joint, which developed postoperatively after ventricular atrial

shunt placement.” (Tr. at 17.) In that earlier discussion, the ALJ cited to medical records

reflecting ongoing treatment for the shoulder pain, which appeats to have been the result of

damage to a nerve during the shunt revision surgery. The records reflect that Plaintiff was

ptesctibed gabapentin and was seen regularly at the Pain Clinic, where she was assessed with

Right Brachial Plexus Nerve Pain as a “post-opetative pain.” (I't. at 642, 649, 652, 661-62.)

continued on gabapentin for her shoulder pain, and it is not cleat why the AL] then

concluded that there was no medical evidence of right shoulder pain.

In light of the lack of evidence to support any of these findings, the Court cannot

conclude that the AL]’s decision is supported by substantial evidence. While it may be that

the RFC in this case could adequately account for Plaintiff's limitations, the reasons cited by

the AL} ate not supported by the record, and the Court cannot now substitute other reasons

ot analysis not relied upon by the AL]. See SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)

(holding that courts must review administrative decisions on the grounds upon which the

tecotd discloses the action was based); Anderson v. Colvin, No. 1:10CV671, 2014 WL □

1204726, at *1 (M.D.N.C. Mat. 25, 2014) (noting that this Court’s “[r]eview of the ALJ’s ruling

is limited further by the so-called ‘Chenery Doctrine,’ which prohibits courts from considering

post hoc rationalizations in defense of administrative agency decisions. Under the doctrine, a

reviewing coutt must judge the propriety of [agency] action solely by the grounds invoked by

the agency. If those grounds are inadequate or improper, the court is powerless to affirm the

13

administrative action by substituting what it considers to be a more adequate or proper basis.”

(quotations and citations omitted)).’

IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be REVERSED, and that the matter be REMANDED to the Commissioner

under sentence fout of 42 U.S.C. § 405(g). The Commissioner should be ditected to remand

the matter to the AL] for further consideration of Plaintiffs clatm in light of the above

recommendation. Defendant’s Motion fot Judgment on the Pleadings [Doc. #13] should be

DENIED, and Plaintiffs Motion for Judgment Reversing the Commissioner [Doc. #11]

’ The Coutt also notes that the ALJ relied on Plaintiffs activities, particularly her cake-baking business, in

discounting the severity of her impaitments, particularly her headaches. Specifically, the ALJ wrote as follows:

[Plaintiffs] activities of daily living are significant and independent. [Plaintiff] has a home

business baking cakes and selling them out of het home. She is paid $25 per cake. She said

she did not have a lot of orders, but rather sold the cakes by word of mouth. She said she did

this for seven months. She said she made about 10 cakes. [Plaintiff] also alleges memory

issues due to shunt placement. However, there are no objective findings to support this and

[Plaintiffs] ability to run a cake baking business out of her home casts doubt on these clatms.

At any rate, the RFC accounts for any memory impairment.

(Tr. at 19.) In other words, the AL] used Plaintiff's testimony that she could bake ten cakes over a period of

seven months, an average of one cake evety 21 days, as evidence that Plaintiffs headaches would not limit her

ability to work a full-time job. However, as the Fourth Circuit explained in Woods v. Berryhill, 888 F.3d 686,

694 (4th Cir. 2018), “[aJn ALJ may not consider the sype of activities a claimant can perform. without also

considering the extent to which she can perform them.” See also Lewis v. Berryhill, 858 F.3d 858, 868 n.3 (4th

Cir. 2017) (“The ALJ points to Lewis’ ability to perform incremental activities interrupted by periods of rest,

such as ‘driv[ing] short distances of up to 30 miles, shop for groceries with the assistance of her mother or

toommate, handle her finances, and watch television.’ The ALJ’s conclusion that Lewis’ activities demonstrate

she is capable of work is unsupported by the record.”) (citation omitted); Brown v. Comm’r, 873 F.3d 251, 263

(4th Cir. 2017); Fletcher v. Colvin, No. 1:14CV380, 2015 WL 4506699 at *5-8 (M.D.N.C. Jul. 23, 2015). In this

tegatd, Plaintiff contends that, “the AL]’s citation to activities in which [Plaintiff] engages when she is not

experiencing a headache. . . has little relevance to her ability to work on a consistent basis, eight hours per day,

five days pet week during which she will have periods of time when a debilitating headache is occurring.” □□□□□□

Br. at 9.) Given the necessity of a remand in light of the lack of substantial evidence supporting the ALJ’s

reasoning as set out above, the Court need not consider this issue further, and further consideration of this

issue will be before the ALJ on remand.

14

should be GRANTED to the extent set out herein. However, to the extent Plaintiff seeks an

immediate awatd of benefits, her Motion is DENIED.

This, the 8® day of September, 2020.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

15

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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