Parkhurst v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

5:23-cv-00060-WCM

TINA PARKHURST, )

)

Plaintiff, ) MEMORANDUM OPINION

) AND ORDER

v. )

)

COMMISSIONER OF )

THE SOCIAL SECURITY )

ADMINISTRATION, )

)

Defendant. )

_______________________________ )

This matter is before the Court on Plaintiff’s social security brief, as well

as the Commissioner’s contested Motion to Remand. Docs. 7, 12.

I. Procedural Background

On July 31, 2008, Plaintiff Tina Parkhurst (“Plaintiff”) applied for social

security benefits. See Transcript of the Administrative Record (“AR”) 1292, AR

1385-1388.

On July 17, 2009, Plaintiff was found to be disabled beginning on

February 18, 2007. AR 2661.

On November 8, 2018, an Administrative Law Judge (“ALJ”) found that

Plaintiff’s disability had ended on June 30, 2016. AR 1271, AR 28.

After the Appeals Council denied a request for review by Plaintiff, she

initiated a civil action in this district. See Doc. 1286-1287 (Petition filed in

Parkhurst v. Saul, No. 5:20-cv-18-FDW (filed February 18, 2020).

On July 15, 2020, the presiding Judge granted an unopposed Motion for

Entry of Judgment with Remand by the Commissioner. AR 1288.

On September 18, 2020, the Appeals Council remanded the matter to the

same ALJ, with instructions to evaluate further Plaintiff’s medical

improvement and the opinion of a consultative examiner, A. Caine, M.D. (“Dr.

Caine”). Id. at 1292-1294.

On April 19, 2021, the ALJ issued a “partially favorable” decision,

finding that Plaintiff’s disability had ended on April 1, 2016, and that Plaintiff

had become disabled again beginning on September 22, 2019. AR 1194-1224.

Plaintiff then initiated another action in this district. See Parkhurst v.

Commissioner of Social Security, No. 5:21-cv-116-DSC. In that case, the

presiding Judge granted another Consent Motion to Remand on April 11, 2022.

AR 2615.

On April 21, 2022, the Appeals Council remanded the matter to a new

ALJ, with instructions that the ALJ evaluate certain opinion evidence under

the Administration’s prior rules. AR 2621-2622.

On February 13, 2023, the ALJ issued an unfavorable decision. AR 2656-

2686. That decision is the Commissioner’s final decision for purposes of this

action.

On May 11, 2023, Plaintiff initiated this action.

On December 6, 2023, the Commissioner filed the Contested Motion to

Remand. Doc. 12. Plaintiff has responded, and the Commissioner has replied.

Docs. 13, 15.

II. The ALJ’s Decision

The ALJ determined that though Plaintiff had previously been disabled,

medical improvement had occurred by April 1, 2016. AR 2661-2662.

With respect to Plaintiff’s condition from April 1, 2016 through

September 22, 2019 (the “Relevant Period”), the ALJ found that Plaintiff had

the severe impairments of “lumbar stenosis, headaches, herniated nucleus

pulpous, left knee replacement, right shoulder rotator cuff tear, obesity, and

chronic S1 radiculopathy.” AR 2663. After determining that Plaintiff’s

impairments did not meet or medically equal any listed impairments, the ALJ

concluded that, during the Relevant Period, Plaintiff had the residual

functional capacity (“RFC”):

to perform light work… except she required the option

to alternate between sitting for one hour with standing

for one hour while remaining on task; and she was

limited to occasional climbing of ramps and stairs, no

climbing of ladders, ropes, or scaffolds, occasional

balancing, stooping, kneeling, and crouching; no

crawling; frequent grasping, handling and fingering

with the bilateral upper extremities; and should avoid

more than occasional exposure to pulmonary irritants

and no exposure to hazards.

AR 2665.

Applying this RFC, the ALJ found that Plaintiff could perform other jobs

that existed in significant numbers in the national economy such that Plaintiff

was not disabled during the Relevant Period. AR 2671-2672.

III. Plaintiff’s Allegation of Error & the Commissioner’s Response

Plaintiff contends that the ALJ failed to evaluate the opinion of Plaintiff’s

pain specialist, Dr. Michelle Brown, adequately. Additionally, Plaintiff asserts

that the ALJ failed to include limitations related to Plaintiff’s incontinence and

migraines in the RFC. Plaintiff argues that an award of benefits would be

appropriate, or, alternatively, that this Court should remand for further

administrative proceedings. Doc. 7.

In response, the Commissioner asserts that “remand of this matter for

further proceedings and re-evaluation of Plaintiff’s claim of disability is the

proper remedy….” Doc. 12-1 at 6.

IV. Legal Standard

Pursuant to 42 U.S.C. § 405(g), federal courts have the authority to

affirm, modify, or reverse the Commissioner's final decision ‘with or without

remanding the cause for a rehearing.’” Arakas v. Commissioner, Social

Security Administration, 983 F.3d 83, 111 (4th Cir. 2020). Courts “have

awarded disability benefits without remand where the record clearly

establishes the claimant's entitlement to benefits and another ALJ hearing on

remand would serve no useful purpose.” Id. (collecting cases); see also Shelley

C. v. Commissioner of Social Security, 61 F.4th 341, 369 (4th Cir. 2023)

(“Because substantial evidence in the record clearly establishes Shelley C.’s

disability, remanding for a rehearing would only ‘delay justice.’”) (quoting

Arakas, 983 F.3d at 105); Crider v. Harris, 624 F.2d 15, 17 (4th Cir. 1980) (“On

the state of the record, Crider's entitlement to benefits is wholly established.

Rather than remand, therefore, we reverse, with directions that benefits be

awarded in accordance with this opinion.”).

V. Discussion

Plaintiff is correct that this case “has an extraordinary procedural

history ….” Doc. 7 at 27. However, the question presented is whether the

administrative record, as it exists now, clearly establishes that Plaintiff is

entitled to benefits for the Relevant Period. Shelley C., 61 F.4th at 369; see also

Bilotta v. Saul, 850 Fed. Appx. 162, 171 (4th Cir. 2021) (unpubl.) (awarding

social security benefits where Commissioner conceded that, if plaintiff was

illiterate and limited to light work, he was disabled and the “record clearly

establish[ed] both….”); Carr v. Kijakazi, No. 20-2226, 2022 WL 301540, at *5

(4th Cir. Feb. 1, 2022) (unpubl.) (“We appreciate that this case has dragged on

for many years, currently on its third remand to the agency. And we

acknowledge Carr's concern that health issues may affect his ability to

participate in proceedings going forward. But as the district court explained,

these are not grounds for directing an award of benefits in the absence of a

finding that a claimant is indeed disabled.”).

A. Dr. Brown’s Opinion

Plaintiff contends that the opinion of Dr. Brown is entitled to controlling

weight, and that the limitations identified by Dr. Brown require a finding that

Plaintiff was disabled. Doc. 7 at 28.

In her June 22, 2018 opinion, Dr. Brown described Plaintiff’s pain as

being a 7 or 7-9 out of 10 and noted Plaintiff’s bowel and bladder dysfunction,

limited range of motion, and abnormal gait. Dr. Brown also indicated that

Plaintiff could walk or sit for less than 2 hours, stand and walk continuously

or sit continuously for less than 30 minutes, and lift a maximum of 10 pounds.

AR 1144-1145. Dr. Brown additionally noted that Plaintiff had limitations in

her ability to twist, stoop, crouch, and climb, would need to shift between

standing and walking, would need to lie down at “unpredictable times” during

a workday and take extra breaks, and would be absent from work, on average,

more than 3 times per month. AR 1145.

In contrast to Dr. Brown’s opinion, during Dr. Caine’s March 26, 2016

consultative exam, Plaintiff presented with a normal gait, was able to

ambulate into the exam room and sit on the examination table without

difficulty, and exhibited 5/5 motor strength in bilateral upper and lower

extremities as well as normal muscle bulk and tone. AR 748-752. During that

exam, Plaintiff also reported, when discussing her activities of daily living, that

she did early morning hygiene, went to work as an administrative assistant,

could cook and drive, and was “independent in all of her ADLs.” AR 749.

Further, Dr. Caine’s report reflects that, while Plaintiff’s symptoms were

“positive” for lumbar back pain and bilateral knee pain, they were “negative”

for syncope, lower extremity weakness, and loss of bowel or bladder continence.

Id.

A treating physician’s opinion should be given controlling weight if it is

well-supported by medically acceptable clinical evidence and is not

inconsistent with other substantial evidence of record, see 20 C.F.R §§

404.1527(d)(2); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). However, “if

a physician’s opinion is not supported by clinical evidence or if it is inconsistent

with other substantial evidence, it should be accorded significantly less

weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); 20 C.F.R. §§

404.1527(c)(2); see also Mastro, 270 F.3d at 178 (“Under such circumstances,

the ALJ holds the discretion to give less weight to the testimony of a treating

physician in the face of persuasive contrary evidence.”).

Here, the ALJ assigned “little weight” to Dr. Brown’s opinion. AR 2669.

In doing so, the ALJ stated that she found the “limited explanation in support

of the fairly significant limitations” identified by Dr. Brown to be inadequate,

and, further, that Dr. Brown’s opinion was “not entirely consistent with

[Plaintiff’s] work activity or the longitudinal objective and clinical findings of

record that include fairly normal gait with fairly normal strength and range of

motion throughout as well as adequate pain control with injections.” Id. (citing

e.g., AR 748-752 (Dr. Caine’s March 26, 2016 consultative exam), AR 795

(March 2018 record showing Plaintiff’s report of 75% improvement and normal

gait), AR 1186 (April 2017 treatment record reflecting Plaintiff’s normal

muscle tone and strength without atrophy or abnormal movement)).1

Significantly, although the ALJ also assigned “little weight” to Dr.

Caine’s conclusion that Plaintiff could perform “medium” work (i.e., work

1 The ALJ also noted other evidence indicating that Plaintiff received “fairly

conservative treatment for her back and knee pain….” AR 2663 (citing, among other

records, AR 786 (May 12 2016 treatment record reflecting Plaintiff had 75%

improvement in “S1 radiculopathy” following epidural steroid injection), AR 920

(February 16, 2017 treatment record stating that Plaintiff had been receiving

epidural steroid injections for a number of years with consistent benefit), AR 935

(May 23, 2018 treatment record noting 5 month interval between injections with

“more episodes of numbness in her legs” but also indicating Plaintiff generally

received injections every 2 to 3 months), AR 1042 (May 18, 2017 record noting that

Plaintiff came in for a repeat epidural steroid injection, and that the injections

“enable[d] her to continue to be more active. She is about to start on another job.”),

AR 1086 (January 22, 2018 record reflecting that the epidural steroid injections were

still helping but that Plaintiff did not think the medication was strong enough, and

noting that Plaintiff was “attempting to exercise at a local gym and so she is hurting

more.”)).

involving lifting no more than 50 pounds at a time with frequent lifting or

carrying of objects weighing up to 25 pounds, 20 C.F.R. § 404.1567(c)), it

appears that the ALJ relied on Dr. Caine’s examination itself when discounting

Dr. Brown’s opinion.

Given the differences in Plaintiff’s functional limitations as set out by

Dr. Brown and Dr. Caine, the undersigned is unable to conclude that Dr.

Brown’s opinion clearly establishes that Plaintiff is entitled to benefits for the

Relevant Period. See e.g., Carr, 2022 WL 301540, at *4-5 (explaining that

“[o]nly in the ‘unusual case’” – “where it is clear that there is no account on

which substantial evidence would support a denial of coverage” – is it proper

for a court to “exercise its discretion to direct the award of benefits as a remedy

for a failure to explain” and further stating that conflicting evidence, including

two experts who reached different conclusions, required remand rather than a

direct award of benefits).

B. Incontinence

Plaintiff also contends that the ALJ failed to include limitations in the

RFC related to Plaintiff’s incontinence and suggests that this error also makes

an award of benefits appropriate. See Doc. 7 at 28.

The ALJ found that Plaintiff’s urinary incontinence was not severe, and

did not discuss any functional limitations stemming from Plaintiff’s

incontinency when developing Plaintiff’s RFC. AR 2663, AR 2669. In so finding,

the ALJ explained that “the urology records indicate that medication and the

use of pads has improved her condition such that it would not significantly

limit her ability to perform basic work activities.” AR 2663 (citing AR 2199

(July 12, 2018 record reflecting urinary incontinence which Plaintiff reported

had been occurring “for several months” occasionally at a moderate severity

level), AR 2195 (September 17, 2018 record reflecting severity of urinary

incontinence was “moderate”), AR 2191 (January 21, 2019 record noting

urinary complaints were moderate to severe but improving), AR 2182 (March

11, 2020 record noting improvement with “myrbetriq and drinking less

carbonated water”)). Plaintiff contends that, factually, most of these same

treatment records indicate that Plaintiff’s incontinence was not improved

during the Relevant Period. Doc. 7 at 15-16. Plaintiff further contends that,

legally, the ALJ erred in failing to evaluate the effects of her incontinence when

developing Plaintiff’s RFC, even if such condition was non-severe. Doc. 7 at 16.

Plaintiff is correct that an “ALJ is required to consider the limiting

effects of all of the Plaintiff's impairments, including those that are nonsevere,

in assessing the Plaintiff's RFC.” Lewis v. Kijakazi, No. 3:21-cv-00057-MR,

2022 WL 4456255, at *4 (citing 20 C.F.R. §§ 404.1520(e), 404.1545(a)(2); SSR

96-8p (“In assessing RFC, the adjudicator must consider limitations and

restrictions imposed by all of an individual's impairments, even those that are

not ‘severe.’”)).

However, as it is “in the purview of the ALJ to determine whether the

combination of severe and nonsevere impairments requires additional

limitations to Plaintiff's RFC,” the undersigned finds that remand for further

administrative proceedings is appropriate. Clarence M. v. Saul, No. SAG-19-

2393, 2020 WL 3871142 at *4 (D. Md. July 9, 2020); see also Woody v. Astrue,

No. 2:08¢v00033, 2009 WL 799657 at *29 (W.D. Va. March 29, 2009) (agreeing

with the proposition that it is “unconscionable to repeatedly remand cases

where the determination of entitlement to benefits is unclear,” but concluding

that remand, rather than an award of benefits was proper because the court

was “not confident that a finding of disability [was] warranted “without further

consideration of [plaintiffs] physical and mental limitations”).

VI. Conclusion

For the reasons stated above, Defendant’s Contested Motion to Remand

(Doc. 12) is GRANTED, the Commissioner’s decision (AR 2656-2686) is

VACATED, and this matter is REMANDED for further administrative

proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

The Clerk of Court is respectfully directed to enter a separate judgment

in accordance with this Order. Signed: September 5, 2024

Co J

W. Carleton Metcalf / 7

United States Magistrate Judge eA

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