IN THE UNITED STATES DISTRICT COURT - FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BOBBY LADD, ) Plaintiff, ) ) v. ) 1:17CV829 © ) ANDREW SAUL, ) Commissioner of Social Security,! ) . ) Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff Bobby Ladd (“Plaintiff”) brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act (the “Act”), as amended (

(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for Disability Insurance Benefits and Supplemental Security Income under, _tespectively, Titles Il and XVI of the Act. The patties have filed cross-motions for judgment, and the administrative record has been certified to the Court for review. I. PROCEDURAL HISTORY Plaintiff protectively filed applications for Disability Insurance Benefits and Supplemental Security Income Benefits on Match 8, 2013, alleging a disability onset date of

1 Andrew Saul became Commissioner of Social Security on June 17, 2019. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew Saul should be substituted for Nancy A. Berryhill as the Defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(2) of the Social Security Act,

(g).

June 30, 2009 in both applications. (T't. at 51, 291-300.)? He later amended his alleged onset date to July 21, 2014. (Tr. at 51.) Plaintiffs applications were denied initially (Ir. at 132-65, 202-12) and upon reconsideration (Tr. at 166-99, 214-31). ‘Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative Law Judge (“ALJ”). (It. at 232.) Plaintiff, along with his attorney and an impattial vocational expert, attended the subsequent video heating on February 8, 2016.- (I't. at 51.) The ALJ ultimately concluded that Plaintiff

was not disabled within the meaning of the Act from his alleged onset date through April 12, 2016, the date of the administrative decision. (Tr. at 70.) On July 19, 2017, the Appeals Council denied Plaintiffs request for review of this decision, thereby making the AL]’s conclusion the Commissionet’s final decision for purposes of judicial review. (It. at 1-7.) Il. LEGAL STANDARD Federal law “authorizes judicial review of the Social Security Commissioner’s denial of social security benefits.” Hines v. Barnhart,

, 561 @th Cir. 2006). However, the

scope of teview of such a decision is “extremely limited.” Frady v. Hatris,

(4th Cir. 1981). “The courts ate not to tty the case de novo.” Oppenheim v. Finch,

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

AL] if they are supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Astrue,

(4th Cir. 2012) Gnternal quotation omitted). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Hunter v. Sullivan,

(4th Cir. 1993)

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

(quoting Richardson v. Perales,

(1971)).. “It consists of more than a mete □ scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel,

(4th Cir. 2001) (internal citations and quotation matks omitted). “If there is evidence to justify a refusal to ditect a verdict were the case before a jury, then there is substantial evidence.” Hunter,

(internal quotation marks omitted). “Ty teviewing 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,

(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,

. “The issue before [the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the AL]’s finding that [the claimant] is not disabled is supported by substantial evidence and was reached based upon a cortect application of the relevant law.” Craig v. Chater,

(4th Cir. 1996). In undertaking this limited review, the Court notes that “[a] claimant for disability benefits beats the burden of proving a disability.” Hall v. Harris,

(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 result in death ot which has lasted ot can be expected to last for a continuous petiod of not less than 12 months.”

(quoting

(d)(1)(A)).°

3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance Program (SSDI), established by Title IT of the Act as amended,

et seq., provides benefits to disabled persons who have contributed to the program while employed. The Supplemental Secutity Income Program (SSD), established by Title XVI of the Act as amended,

et seq., provides benefits to

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

(citing

(a)(4); 416.920(a)(4)). “Under this process, the Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period of disability; (2) had a severe impairment; (3) had an impairment that met ot equaled the tequitements of a listed impaitment; (4) could return to her past relevant work; and (5) if not, could perform any other work in the national economy.”

. A finding adverse to the claimant at any of several points in this five-step sequence forecloses a disability designation and ends the inquiry. For example, “t]he first step determines whether the claimant is engaged in ‘substantial gainful activity.” If the claimantis

working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled. If not, benefits are denied.” Bennett v. Sullivan,

(4th Cir. 1990). On the other hand, if a claimant carties his or her burden at the first two steps, and if the claimant’s impairment meets or equals a “listed impaitment” at step three, the claimant is disabled. Mastro,

. Alternatively, if a claimant clears steps one and two, but falters at step three, ie., “[ilf a claimant’s impaitment is not sufficiently severe to equal or exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional capacity (RFC).”

.4 Step four then requires the ALJ to assess whether, based on

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSD), governing these two programs ate, in all aspects relevant here, substantively identical.” Craig,

n.1. 4 “REC is a measutement of the most a claimant can do despite [the claimant’s] limitations.” Hines,

(noting that administrative regulations requite 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 hours 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, or very heavy work,” as well as “nonexertional limitations (mental, sensory, of skin impairments).” Hall,

. “RFC is to be determined by the ALJ only after

that RFC, 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 □□□□□ work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite the claimant’s impairments.” Hines,

. In making this determination, the ALJ must decide “whether the claimant is able to perform other work considering both [the clatmant’s RFC] and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust to a new job.” Hall,

. If, at this step, the Government cannot catty its “evidentiary burden of proving that [the claimant] remains able to work other jobs available in the community,” the claimant qualifies as disabled. Hines,

. Ill. DISCUSSION . In the present case, the AL] found that Plaintiff had not engaged in “substantial gainful activity” after July 21, 2014, his amended alleged onset date. Plaintiff therefore met his burden

at step one of the sequential evaluation process. rs. at 53.) At step two, the ALJ further determined that Plaintitt suffered from the following severe impairments: status post tight ankle fracture; alcohol use disotder; history of cannabis use; benzodiazepine use; antisocial personality disorder; depressive disorder; bipolar I disorder; and intellectual deficits[-] (Tr. at 54.) ‘The AL] found at step three that none of these impairments, individually or in combination, met or equaled a disability listing. (Tr. at 56-59.) The ALJ therefore assessed

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

.

Plaintiffs RFC and determined that he could petform medium work with the following additional limitations: frequent climbing of ramps and stairs; frequent kneeling, crawling, crouching, stooping and balancing; no climbing of laddets, topes or scaffolds; occasional use of foot pedals with the bilateral lower extremities; occasional pushing and pulling with the right lower extremity; and occasional exposute to hazards. ‘The wotk should be unskilled, simple, routine and repetitive in nature, and non- ptoduction oriented, with only routine changes in the work environment and not require driving an automobile for completion of job tasks. [Plaintiff] is limited to no contract with the public, and occasional contact with co-workers and supervisots. (It. at 60.) Based on the RFC determination, the ALJ found at step four of the analysis that Plaintiff could perform his past relevant work as a ptoduce clerk. (Tt. at 68.) Alternatively, □ the AL] found at step five that, given Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert as to these factors, he could perform other jobs available in the national economy. (It. at 68-70.) Accordingly, the AL] concluded that Plaintiff was

not disabled under the Act. (I'r. at 70.) Plaintiff now contends that the ALJ etred in two respects. First, Plaintiff challenges the ALJ’s determination at step three that he did not meet Listing 12.05C (Intellectual Disability), 20 C-F.R. Part 404, Subpart P, Appendix 1, 12.05C (heteinafter “Listing 12.05C”). Second, Plaintiff argues that the ALJ failed to propertly account for his intellectual disability and his ankle impairments in setting the RFC, particularly by failing to undertake an adequate function-by-function analysis as requited by Mascio v. Colvin,

(4th Cir. 2015). After a cateful review of the record, the Coutt finds that the ALJ’s failure to properly evaluate the effects of Plaintiff's ankle impairment on his ability to stand and walk requires remand, as

set out below. In light of this determination, the Court need not consider Plaintiffs additional

assignments of errot, and to the extent Plaintiffs mental limitations also merit further evaluation, this analysis is best undertaken by the AL] upon rehearing. A. Function-by-function analysis Plaintiff contends that the ALJ erred when assessing Plaintiffs RFC by failing to perform “a function-by-function analysis of the limitations caused by [his] . . . tight ankle impairment.” (PL’s Br. [Doc. #11] at 13.) As Social Security Ruling (“SSR”) 96-8p instructs, “lt]he RFC assessment must first identify the individual’s functional limitations or restrictions and assess his or het work-related abilities on a function-by-function basis,” including the functions listed in the regulations. SSR 96-8P,

, at *1. “Only after such a function-by-function analysis may an ALJ exptess RFC in terms of the exertional levels of work.” Montoe v. Colvin,

(4th Cir. 2016) (internal quotations and citations omitted).

In considering when an AL]’s failure to perform a function-by-function analysis necessitates remand, the Fourth Circuit rejected a per se rule, finding it “inappropriate given that remand would prove futile in cases whete the ALJ does not discuss functions that are ‘irrelevant ot uncontested.” Mascio,

(citing Cichocki v. Astrue,

(2d Cir. 2013)). However, the Fourth Circuit “agree[d] with the Second Circuit that ‘(rlemand may be appropriate ... where an ALJ fails to assess a claimant’s capacity to perform relevant functions, despite conttadictoty evidence in the record, or where other inadequacies in the AL]’s analysis frustrate meaningful review.”’

With regard to his physical impairments, Plaintiff contends that the ALJ failed to “address ot explain the conflicting medical evidence” relating to Plaintiffs right ankle

impairment. (Pl’s Br. at 14.) After a thorough review of the record, the Court agrees that the ALJ’s decision omitted significant evidence of Plaintiffs ongoing ankle problems, potentially affecting his abilities to stand, walk, and perform other work functions. With regard to Plaintiffs ankle, the record reflects that on Januaty 26, 2013, Plaintiff fell on ice and suffered a trimalleolar ankle fracture (Ir. at 479-80). X-rays on that date reflect: Acute oblique mildly displaced fracture of the distal shaft of the fibula. Acute mildly displaced fractures of the medial and posterior malleoli of the tibia. Small avulsion fracture of the lateral malleolus. (Tt. at 482.) Plaintiffs ankle was wrapped and Plaintiff was referred for follow-up. As noted by the consultative examiner, treatment for such a break is ordinarily surgical repair. (It. at 436.) However, Plaintiff was without medical insurance or ability to pay, and therefore he did

not have surgety to set the bones. □□□ at 334, 345.) When Plaintiff went to the consultative examination on May 11, 2013, just over three months after he fell, the ankle was still in a splint and the x-tays were therefore obscured. (Tt. at 436.) The consultative examiner noted that he could not tell which bones were fractured because the x-ray was taken with the splint on. □ (Tt. at 436.) The consultative examiner did note that Plaintiff was using a wooden crutch as a full suppott cane, that Plaintiff was unable to do toe walking or any significant weight beating on his tight foot, and that no range of motion testing was performed on the right ankle and foot. (Ir. at 436, 438.) Plaintiff was subsequently incarcerated and recetved medical treatment in prison, and an x-ray taken on September 11, 2013 reflects: Displaced chronic fractute of the distal fibula is noted and ununited fracture fragments associated with the chronic medial malleolar fracture are also noted. © Nartowing of the tibiotalar joint and other chronic findings. . . .

IMPRESSION Chronic posttraumatic changes to the distal fibula and medial malleolus. Latge ununited medial malleolar fracture fragment. Chronic arthrosis at the tibiotalar joint. □

_ (Tr. at 456.) Medical records from the prison further reflect that there was still swelling, and Plaintiff received limitations on activity in prison. (Ir. at 454.) No subsequent x-rays have been taken, and Plaintiff has been without insurance and unable to obtain any further medical

cate for his ankle. Plaintiffs testimony, as recounted in the administrative decision, chronicles that: His tight ankle never healed properly after having been broken in three places, and that, as a tesult, he has constant right ankle pain that goes up to his right. hip. He further testified that he does not take any pain medication, has not had any medical treatment for his right ankle since he was released from prison [in 2013], and does not have any medical insurance or money to get it fixed. He also testified that while he uses a cane to walk all of the time, he forgot to bring it to the heating. He also indicated at the hearing that he is capable of riding a bicycle for one-half mile, [but] requit[es] rest breaks. (Tr. at 60.) Plaintiff described his ankle pain as incteasing over time and worse with standing. (Tr. at 88, 98.) When asked later in the hearing how long he thought he could stand before having to sit down, Plaintiff answered, “Roughly 15 to 20 minutes, if that much,” and even that amount of standing required use of a cane. (I'r. at 91, 100.) He stated that in prison, he

was typically able to walk around to clean the yard “[rJoughly 10, 15 minutes, depending on how much he had to do, stooping and bending,” but that he was permitted to sit as needed. (Tr. at 97.) Plaintiff further indicated that he had worn an ankle brace since the initial injury and was weating it during the hearing. (I'r. at 98-99.)

In finding that Plaintiff was not as testricted as alleged and was capable of medium work, the AL] expressly relied first on the Maty 7, 2013 consultative examination. (I't. at 61.) The ALJ noted that: Upon exam, testing revealed that the claimant’s cervical spine range of motion was 70% of normal, and his thoracic spine range of motion was 70 degrees on forwatd flexion and 20 degtees on lateral flexion, extension and rotation. However, testing further revealed that the claimant had normal range of motion for his shoulders, elbows, wrists, hands, knees, left foot and great toes. (Tt. at 61.) None of these findings appeat to bear on Plaintiffs right ankle injury. The ALJ then tutned to the tight ankle and noted: Further, while range of motion testing could not be performed on the claimant’s tight ankle, as the claimant had a splint on it, and while the claimant was walking with a limp, using a half cutoff crutch as cane, Dr. Egnatz indicated that a right foot x-tay tevealed no fracture abnormalities, no bone or joint abnormality and □ no significant degenerative changes. Therefore, this evidence fully supports the exertional, postural, manipulative, hazard and driving limitations in the residual functional capacity. (Tr. at 61.) However, the ALJ distegards the further note by the consultative examiner that “t]he x-ray was taken with splinting material on and as stated above no fracture abnormalities could be seen in that circumstance.” (Ir. at 436.) Similarly, the radiologist noted that “[f}ine bony detail [was] obscured due to overlying cast material.” (Tr. at 434.) In addition, records

reflect that the x-ray was taken only of Plaintiffs foot, not his ankle. (Tr. at 434.) In short, the records on which the ALJ relies show that Plaintiffs ankle was still splinted from his injury in January 2013, not that his x-rays were clean. Similarly, the ALJ omits any reference to the later ankle x-ray, taken on September 16, 2013, which confirms Plaintiffs account of an unset, unhealed triple fracture. As set out above, the report from that procedure notes a “[dlisplaced

chtonic fracture of the distal fibula” and “ununited fracture fragments associated with the

chronic medial malleolar fracture,” along with “[c]hronic arthosis at the tibiotalar joint.” (Tr. at 456.) Thus, the ALJ’s analysis, which telies on “no fracture abnormalities, no bone of joint abnormality and no significant degenerative changes,” is not supported by the actual medical evidence in the record. . The ALJ also relied on his finding that Plaintiffs alleged limitations were not consistent with three treatment records from 2014 and 2015. First, the ALJ cites to a March 9, 2014

exam. (I't. at 62.) However, the March 9, 2014 treatment record is for an emergency toom visit when Plaintiff was assaulted and suffered bruising and lacerations to his face. (Trt. at 469.) He teceived 11 stitches on his face and a CT scan of his head. (I't. at 469-77.) There is no evidence of evaluation ot treatment of his ankle, given the reason for the visit. The ALJ next cites to a September 8, 2014 exam. (I't. at 62.) However, the September 8, 2014 exam was an

emergency room visit for chest pain. (It. at 492-93.) ‘The examination was focused on his cardiac function, and there is no evidence of evaluation or treatment of his ankle. Finally, the

_ cites to a Daymark treatment tecord of September 11, 2015, which was a counseling appointment for depression. (Tr. at 541.) The ALJ notes that the recotd “indicated that [Plaintiff] rode his bike to Daymark and walked without difficulty. Significantly, [Plaintiff] reported that his foot was feeling better since he had been biking regularly and that he was not having any problems with pain” (I'r. at 62 (citing Tr. at 541).) However, other Daymark recotds during this petiod, which were not mentioned by the ALJ, indicate otherwise, noting that Plaintiff “walked with a limp” (Tr. at 545 (Mar. 20, 2015)), “thinks his ankle has healed a little but it continues to feel like it is sprained or broken and might need more treatment” (I'r. at 543 (June 12, 2015)), “is struggling physically with foot trouble” (I'r. at 558 (Dec. 4, 2015),

and has “continued problems with his right ankle” (Tr. at 627 (Dec. 30, 2015)). The last of these records further noted Plaintiffs report that “he actually broke his ankle but it was only taped up and it has continued to bother him and feel unstable, hurts constantly, and he wants

to get medical treatment but can’t afford it. It hurts more when the weather is bad.” (I'r. at 627.) In addition, with respect to his ability to tide a bicycle to his appointments at Daymark, Plaintiff explained that it was only a half mile and that he had to sit down at least four or five times, for about five minutes pert time, during the short ride to Daymark, indicating that his ability to use his right ankle for cycling is not as great as the ALJ suggests (Tr. at 102-04.) Finally, the Court notes that the ALJ also rejected all of the medical opinion evidence, including the opinion of the consultative examiner that “there is virtually no work for [Plaintiff] to do, no task that I could see assigning him to” (Tr. at 65, 439), the opinion of North Carolina Department of Cortections medical provider regarding Plaintiff's physical limitations while in prison (I'rt. at 65, 453-54), and the opinions of the state agency physician

limiting Plaintiff to light work with additional limitations (Tt. at 64, 181). Having rejected all of the opinion evidence, the ALJ chose not to obtain a further consultative examination of medical review, and the AL] instead relied on the misstated results of the first x-ray from May 2013 without consideration of the second x-ray from September 2013, which reflected a large ununited fracture fragment and chronic posttraumatic changes to the ankle. (I't. at 456.) The subsequent medical records cited by the ALJ and noted above, for a facial assault, chest pains, and counseling for depression do not provide a substantial basis to teject the actual medical evidence tegarding Plaintiffs unhealed ankle. At the February 8, 2016 administrative hearing, Plaintiff testified that worsening pain from his ankle injury continued to dramatically limit □□□

standing and ambulation. (Tr. at 87-88, 91, 97, 98-102.) The vocational expert testified at the hearing that if Plaintiff needed a cane for standing, none of the cited jobs would be available. (Tr. at 119.) In the citcumstances, the Court finds that remand is required so that the ALJ can fully consider the evidence regarding Plaintiff's ankle injury and perform a function-by- function analysis of Plaintiffs ability to stand and walk. As noted above, Plaintiff raises additional issues regarding the evaluation of his mental □ impairment, particularly in light of his Full Scale 1Q of 61 and inability to read and write. (I't. at 633-38.) However, in light of the remand recommended here, the ALJ can consider the cutrently applicable regulations and the combined impact of Plaintiffs physical and mental limitations as patt of the remand in this case. |

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding no disability be REVERSED, and that the. matter be REMANDED to the Commissioner undet sentence fout of

(g). The Commissioner should be ditected to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Defendant’s Motion for Judgment on the Pleadings [Doc. #12] should be DENIED, and Plaintiffs Motion for Summary Judgment [Doc. #10] should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate awatd of benefits, it should be DENIED. This, the 6% day of January, 2020. /s/ Joi Elizabeth Peake United States Magistrate Judge