Towanda Thomas v. Commissioner Social Security

T
                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 20-2296
                                      _____________

                          TOWANDA UNDERDUE THOMAS,
                                            Appellant

                                              v.

                         COMMISSIONER SOCIAL SECURITY
                                _______________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 2-19-cv-0570)
                         District Judge: Hon. John M. Vazquez
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    April 13, 2021

            Before: CHAGARES, JORDAN, and SCIRICA, Circuit Judges.

                                   (Filed: May 20, 2021)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Towanda Underdue Thomas applied for disability benefits based on the symptoms

of her multiple sclerosis (“MS”). Thomas’s MS affects her gait, eyesight, and levels of

fatigue, as well as her mental health. The administrative law judge (“ALJ”) denied her

application for benefits, having found that she was capable of sedentary work during the

relevant period. The ALJ relied on her medical record, her education, her daily efforts

caring for her ill husband and two special-needs children, and reports by state medical

consultants. On appeal, the District Court concluded that the ALJ’s decision was

supported by substantial evidence. Although Thomas faces a severely daunting daily

routine, made even more challenging by her MS, the record provides enough support for

the ALJ’s conclusion, so we must affirm.

I.     BACKGROUND

       Thomas was born in 1968 and started experiencing MS symptoms in her twenties.

She went on to obtain master’s degrees in teaching and journalism, to work as a reporter

for fifteen years, and to teach English for seven more years, until 2013. She also began

an online doctoral-level degree as an education specialist in 2009 and completed the

degree in 2017. In 2011, she was diagnosed with MS.1 The following year, she began


       1
           As the District Court explained, MS is characterized by:
                a body’s own immune system attack[ing] the … protective
                sheath that covers nerve fibers. There is no cure. The signs
                and symptoms can vary drastically as can … the
                manifestations. It can be so severe that a person can’t walk due
                to the nerve damage, and then at the same time certain persons
                will go through extended period with apparent remission. So
                the disease itself can be disabling in certain persons and not

                                               2
taking medication for her condition, while still working, and increased her medication in

2013 to address inflammation causing damage to the optic nerve in her right eye.

       Also in 2013, Thomas decided to leave her job to care for her husband, who was

incapacitated by Parkinson’s disease and dementia. Medicaid paid her as a full-time

caregiver.2 She also cared for their two teenage children, both of whom have special

needs. The care Thomas provides her family is significant, continuous, and out of

necessity. She bathes her husband, cooks for him, feeds him, and does his laundry,

though she reported difficulties making meals and required help with the laundry. As

could be expected, taking care of her family leaves her seriously fatigued.

       Between 2013 and 2015, Thomas saw numerous doctors to whom she described

numbness and tingling in her hands and feet, related to MS. In August 2013, a

neurologist concluded that she had no neurological deficits, and in June 2014, another

neurologist found the same. In November of 2014, her primary care physician, Dr.

Marina Alexandrova, noted “mild unsteadiness” in Thomas’s walking and described her

MS symptoms as “very mild[.]” (AR at 569, 572.) In February of 2015 Dr. Alexandrova

noted that Thomas was “upset about … having MS and her husband being very ill with

[Parkinson’s,]” and so the doctor started her on depression medication. (AR at 573.)




             disabling in other persons, or it could be not disabling for
             extended periods.
(App. at 22-23.)
       2
       She was paid by the New Jersey State-Medicaid Division’s Personal Preference
Program.

                                             3
       Thomas filed an application for disability insurance benefits on March 31, 2015,

alleging that her disability began on August 2, 2013. In April 2015, her physician

confirmed her MS diagnosis and noted effects on her vision. In May 2015, New Jersey’s

Disability Determination Services (“DDS”) sent Thomas to be examined by a

psychiatrist, who described her as “alert” and “oriented[,]” with “cognitive functions …

intact” and “no memory deficits.” (AR at 562, 567.) Thomas also demonstrated a

“normal heel to toe gait,” “normal tone and strength [in her] upper extremities and lower

extremities[,]” and normal reflexes. (AR at 563.) In June and September 2015, two

medical consultants for DDS reviewed Thomas’s medical record and determined that she

could perform light work. Then, in November 2015, at the direction of DDS, Thomas

underwent a psychiatric examination and complained of impaired vision but said that she

makes do. That psychiatrist observed good hygiene, grooming, and posture, a

cooperative attitude, and “somewhat impaired” gait. (AR at 607.) “Conversations were

clear and goal directed” and Thomas knew personal and current information, had the

ability to concentrate, had a normal IQ, and had good motivation and effort. (AR at 607.)

Around that same time, she reported that she was able to exercise on a bike at home for

forty-two minutes each day.

       Also in November 2015, Dr. Alexandrova completed an assessment of Thomas’s

residual functional capacity (“RFC”), concluding that, due to MS, she had no ability to

sit, stand, or walk for any amount of time throughout the day, that she could walk less

than one city block, could not lift any weight, would need breaks every 15 to 30 minutes

in an eight-hour work-day, had five to ten percent capacity to manipulate her arms,


                                            4
fingers, and hands, and more generally “c[ould] not work.” (AR at 611 (emphasis in

original).)

       In December 2015, Thomas reported to a neurologist that she was “doing ok”

despite some fatigue. (AR at 617.) The neurologist referred her to physical therapy,

which she attended later that year and was assessed as having the “main functional

limitations [of] increased fatigue with activity and weakness to [lower extremities].” (AR

at 635.) In July 2016, she mentioned to that neurologist that her “mental stamina is

poor.” (AR at 726.) In the fall of 2016, a new neurologist diagnosed her with “[MS],

[u]nspecified abnormalities of gait and mobility[,] [m]ood disorder due to known

physiological condition with depressive features [and] fatigue[,]” but described her MS

symptoms as mild. (AR at 670.) An MRI of her spine at that point revealed no change in

the plaque in her upper thoracic spine and other lab tests between 2012 and 2016. A few

months later, in February 2017, Thomas noted increased fatigue and gait challenges, and

in April 2017, she was hospitalized for fainting. In May 2017, she began seeing a

therapist for depression.

       Thomas’s application for disability benefits was denied on July 1, 2015 by the

Social Security Administration (“SSA”), as was her motion to reconsider four months

later. A hearing was held before an ALJ in October 2017, and he found Thomas capable

of sedentary work and therefore not entitled to benefits. The relevant period for her claim

is between her August 2013 alleged onset date and the date of the ALJ’s October 2017

decision. The SSA’s Appeals Council concluded there were no grounds for review, and




                                            5
the District Court similarly denied relief, deciding that substantial evidence supported the

ALJ’s decision. This appeal followed.

II.    DISCUSSION3

       Thomas challenges the ALJ’s conclusion that, during the relevant period, she had

an RFC sufficient to permit her to work forty hours each week in a sedentary capacity.

She argues that the ALJ inappropriately relied on the reports of medical consultants, the

ALJ’s own lay speculation, and Thomas’s “heroic, daily efforts to care for herself and her

disabled family members[,]” all while discounting the opinion of Thomas’s treating

physician. (Opening Br. at 14.)

       Title II of the Social Security Act provides benefits to people who have

contributed to the program and have a disability. 42 U.S.C § 423(a)(1). “Disability” is

defined as an “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less

than 12 months[.]” 

Id.

 at § 423(d)(1)(A). Thomas is disabled “only if” her impairment is

so severe that she not only cannot complete her “previous work but cannot, considering




       3
         The District Court had subject matter jurisdiction under 42 U.S.C. § 405(g) and
we have jurisdiction under 28 U.S.C. § 1291. “We review the ALJ’s decision under the
same standard of review as the District Court, to determine whether there is substantial
evidence on the record to support the ALJ’s decision.” Burnett v. Comm’r of Soc. Sec.
Admin., 

220 F.3d 112

, 118 (3d Cir. 2000) (citations omitted); see Biestek v. Berryhill, 

139
S. Ct. 1148

, 1153-54 (2019) (“Substantial evidence is ‘more than a mere scintilla’ and
means only ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” (citation omitted)).

                                             6
[her] age, education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy[.]” 

Id.

 at § 423(d)(2)(A).

       To make that decision, the SSA, acting through its ALJs, follows a five-step

analysis. 20 C.F.R. § 404.1520(a)(4). First, the ALJ considers whether the claimant is

engaged in any substantial gainful activity. 

Id.

 at § 404.1520(a)(4)(i). If not, at step two,

the ALJ analyzes the severity of the claimant’s impairments. 

Id.

 at § 404.1520(a)(4)(ii).

At step three, the ALJ compares the claimant’s severe impairments to a list of

impairments “presumed severe enough to preclude any gainful work.” Plummer v. Apfel,

186 F.3d 422

, 428 (3d Cir. 1999) (citation omitted); 20 C.F.R. § 404.1520(a)(4)(iii). If

the claimant’s impairment is not listed, the ALJ considers whether the claimant retains

the RFC to perform her past relevant work at step four. 20 C.F.R. § 404.1520(a)(4)(iv).

If the claimant can return to her past relevant work, she is not disabled. 

Id.

 Should the

claimant successfully demonstrate that she is unable to return to her past relevant work,

the fifth step requires the ALJ to determine whether the claimant’s impairment precludes

her from adjusting to other work. 

Id.

 at § 404.1520(a)(4)(v). The ALJ classifies the type

of work the claimant may do based on physical exertion requirements, ranging from

sedentary work to very heavy work. 

Id.

 at § 404.1567.

       Here, the ALJ found, at step one, that, although she received some compensation

from the state for caring for her disabled husband, Thomas had not engaged in substantial

gainful activity since August 2, 2013, the onset date. He then found, at steps two and

three, that she suffered from severe impairments consisting of MS, optic neuritis, and

adjustment disorder secondary to her medical condition, but that she “does not have an


                                              7
impairment or combination of impairments that meets or medically equals the severity of

one of the listed impairments[.]” (App. at 38.) At step four, the ALJ found that she “has

the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a)” with some

limited additional physical capabilities. (App. at 39.) He required that she be given

“ready access to a bathroom with no exposure to unprotected heights or hazardous

machinery” and concluded that she has “sufficient visual acuity to handle and work with

any size object and would be able to read any normal size print.” (App. at 39, 42.) The

ALJ considered her medical record, giving “substantial weight” to the state consultants’

assessments, which limited Thomas to light work, a step above sedentary work. (App. at

40.) The ALJ found that assessment consistent with the record and with the fact that

Thomas’s “objective tests support mostly normal functioning.” (App. at 40.) He then

gave only partial weight to Dr. Alexandrova’s November 2016 RFC assessment that

Thomas had no capacity to work, because Thomas’s “treatment and activities suggest

much higher functioning” than that assessment would permit. (App. at 42.) Moreover,

the ALJ noted that her high level of activity was a cause of her fatigue. Thus, he found

her capable of sedentary work.

       “In making a residual functional capacity determination, the ALJ must consider all

evidence before him.” Burnett v. Comm’r of Soc. Sec. Admin., 

220 F.3d 112

, 121 (3d

Cir. 2000). Thomas argues that the ALJ failed to do so, instead seizing on her “plucky,

unwavering devotion and ‘no other choice’ dedication to her mentally and physically

dependent family[,] … reject[ing] the only treating [physician’s opinion on RFC,] …




                                            8
while giving substantial weight to nonexamining, purportedly ‘neutral’ DDS

physicians[.]” (Opening Br. at 20.)

       To demonstrate that the ALJ drew inappropriate conclusions from her daily

caregiving efforts, Thomas focuses on segments of her testimony that the ALJ allegedly

disregarded, for example, that her brother-in-law folds laundry bi-weekly, she cannot

cook a full meal, her right eye is occasionally blurry, her back is stiff, and her hands are

partially numb. She acknowledges that the ALJ could consider her daily activities but

contends that, in so doing, he failed to account for the “how, when, how well, how often,

under what circumstances and with whose help th[o]se activities are undertaken[.]”

(Opening Br. at 31.) The District Court rejected that argument, saying that the ALJ did

not engage in “cherry-picking.” (App. at 21.) We agree. In reaching his conclusion, the

ALJ comprehensively summarized and characterized Thomas’s medical history, as well

her daily routine, including noting the difficulties she faced. See Fargnoli v. Massanari,

247 F.3d 34

, 42 (3d Cir. 2001) (the ALJ must “consider and evaluate the medical

evidence in the record,” but is not expected “to make reference to every relevant

treatment note.”). Although it does not change the outcome of Thomas’s appeal, we

certainly agree with the District Court that her daily responsibilities “make[] her … akin

to Atlas holding up the world.” (App. at 21.)

       Thomas next argues that the ALJ should have relied more extensively on Dr.

Alexandrova’s November 2015 assessment, as well as excerpted findings from other

doctors that she claims are consistent therewith. She also suggests that the state

consultants’ RFC assessments should have been given less weight because those


                                              9
consultants did not have access to Dr. Alexandrova’s 2015 RFC assessment when they

completed their reviews. And she asks that we rely on Morales v. Apfel, 

225 F.3d 310

(3d Cir. 2000), in which we reversed an ALJ’s decision because it improperly relied on

lay speculation and an expert who did not have access to the full record. See 

id. at 320

(“[I]t is well established that the opinions of a doctor who has never examined a patient

‘have less probative force as a general matter, than they would have had if the doctor had

treated or examined him.’” (citation omitted)).

       In this case, however, the ALJ was within proper bounds in assessing Dr.

Alexandrova’s opinion, giving it partial weight, and reaching a conclusion consistent

with the record as a whole. Unlike in Morales, there is no “overwhelming evidence to

the contrary [of the ALJ’s RFC] in the record.” 

Id.

 The record, instead, adequately

supports the ALJ’s conclusion that Thomas had the ability to complete sedentary work,

based on the reviews completed by state medical consultants, her success in achieving an

online doctorate level degree, and her own testimony about the daily care and

maintenance she provides to her husband, children, and household. Additionally, during

the relevant period every medical report besides Dr. Alexandrova’s November 2015

assessment described her symptoms as mild. This is consistent with the fact that, from

2012 to 2016, Thomas’s back and brain scans showed little change. Even Dr.

Alexandrova described Thomas’s symptoms as mild in late 2014. We therefore agree

with the District Court and the ALJ that Thomas’s “treatment and activities suggest much

higher functioning” than is described in Dr. Alexandrova’s second report. (App. at 23,

42.) Cf. Fargnoli, 

247 F.3d at 42

 (“Where there is conflicting probative evidence in the


                                            10
record, we recognize a … need for an explanation of the reasoning behind the ALJ’s

conclusions[.]”). “The ALJ also noted that the record was consistent with the [state

consultant] opinions[,]” and we further agree with the District Court that he appropriately

relied on those reports. (App. at 24.)

       Lastly, Thomas argues that the ALJ’s RFC determination failed to appropriately

address her physical and mental limitations. Again, we agree with the District Court that

it was “appropriate for [the] ALJ to [ask] what can [Thomas] do on a daily basis.” (App.

at 26.) With that question in mind, the ALJ justifiably concluded, in light of “her

activities, including taking care of her family and household duties,” that Thomas “can

occasionally, climb ramps and stairs, occasionally, stoop, knee[l], crouch, balance, and

crawl[,]” while performing sedentary work. (App. at 41.)

       Thomas deserves the utmost respect for her perseverance in the face of

extraordinary odds. Our commission, however, is very limited in cases like this. The

only question we are to answer is whether substantial evidence supports the ALJ’s

decision. It does.

III.   CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s judgment.




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