Opinion
Civil Action No. 8:18-cv-00297-CMC-JDA
01-17-2019
Susan Stoehr Beytes, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636. Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In May 2014, Plaintiff filed an application for SSI, alleging an onset of disability date of March 1, 2014. [R. 182-88.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 91-95; 100-104]. Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on October 27, 2016, ALJ Amy Benton conducted a de novo hearing on Plaintiff's claims. [R. 41-59.]
The ALJ issued a decision on February 24, 2017, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 19-34.] At Step 1, the ALJ found Plaintiff had not engaged in substantial gainful activity since May 8, 2014, the application date. [R. 21, Finding 1.] At Step 2, the ALJ found Plaintiff had severe impairments of degenerative disc disease of the lumbar spine, chronic pain syndrome, depression, anxiety and bipolar disorder. [R. 21, Finding 2.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. [R. 21, Finding 3.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:
I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the claimant (1) can occasionally climb stairs and ramps; (2) can never climb ladders and scaffolds; (3) can occasionally balance, stoop, kneel, crouch and crawl; and ( 4) avoid concentrated exposure to hazards such as unprotected heights and moving mechanical parts. Further, the claimant can (1) understand, remember and carry out simple instructions; (2) have occasional interaction with supervisors; (3) have incidental interaction with coworkers; ( 4) have no interaction with the public; (5) only make simple, work-related decisions; and (6) only tolerate occasional change in work location.[R. 24, Finding 4.] At Step 4, the ALJ determined that Plaintiff is unable to perform any past relevant work. [R. 32, Finding 5.] The ALJ further found that Plaintiff was 38 years old, which is defined as a younger individual age 18-49, on the date the application was filed, that Plaintiff had at least a high school education and is able to communicate in English, and that the transferability of job skills is not material to the determination of disability. [R. 32, Findings 6, 7, and 8.] The ALJ then determined that, based on Plaintiff's age, education, RFC, and the testimony of a vocational expert ("VE"), there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 32, Finding 9.] Accordingly, the ALJ concluded Plaintiff had not been under a disability, as defined in the Act, since May 8, 2014, the date the application was filed. [R. 33, Finding 10.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-7.] Plaintiff filed the instant action for judicial review on February 2, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends that the ALJ committed error and asks that decision be remanded for an award of benefits or, in the alternative, for further administrative proceedings. [See Doc. 18 at 2.] Specifically, Plaintiff argues the ALJ failed to adequately consider her impairments under Listing 1.04A [id. at 14-17]; failed to account for Plaintiff's moderate difficulties in concentration, persistence, and pace in the RFC [id. at 18-21]; failed to properly assess the medical source opinion evidence from Drs. John Whitley ("Dr. Whitley") and Robyn Fallaw ("Dr. Fallaw") [id. at 21-29]; and failed to adequately consider Plaintiff's lack of insurance benefits in assessing her symptomology and treatment in accordance with SSR 16-3p [id. at 30-31].
The Commissioner, on the other hand, contends the ALJ's decision is entitled to deference and that the decision should be affirmed. [See, Doc. 20 at 2.] The Commissioner argues the ALJ reasonably concluded that Plaintiff's spine impairment did not meet or medically equal the criteria of Listing 1.04(A) [id. at 12-14]; reasonably accounted for Plaintiff's moderate concentration, persistence, and pace difficulties in the RFC [id. at 14-17]; properly weighed the opinion evidence [id. at 17-26]; and properly considered Plaintiff's subject complaints in accordance with the factors outlined in the Commissioner' regulations [id. at 26-29].
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985);see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
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 or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. § 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. § 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. § 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 2016 WL 1119029. SSR 16-3p reiterates that the two-step process set forth in 20 C.F.R. § 416.929 should be used to evaluate impairment-related symptoms alleged by a claimant. SSR 16-3p, 2016 WL 1119029, at *2-8. Specifically, at step one, there must be an underlying medically determinable physical or mental impairment, shown by medically acceptable clinical and laboratory diagnostic techniques, that could reasonably be expected to produce the claimant's pain or symptoms. Id. at *3; 20 C.F.R. § 416.929. Once an underlying medically determinable physical or mental impairment that could reasonably produce the claimant's symptoms has been shown, at step two, the ALJ must then evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent they limit the claimant's functioning. SSR 16-3p, 2016 WL 1119029, at *4-8; 20 C.F.R. § 416.929 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence). SSR 16-3p also provides that ALJs will evaluate the intensity, persistence, and limiting effects of symptoms in disability claims according to the two-step process in the regulations at 20 C.F.R. § 416.929 without using the term "credibility," which does not appear in the regulations. SSR 16-3p, 2016 WL 1119029, at *1. The new ruling follows more closely the regulatory language regarding the evaluation of symptoms. Id. The ruling tracks the language of 20 C.F.R. § 416.928(a) by defining a symptom as a claimant's own description or statement of his physical or mental impairments, and reiterates the regulatory statement that an individual's statements of symptoms alone are not enough to establish the existence of a physical or mental impairment of disability. Id. at *2. SSR 16-3p further explains that in evaluating the intensity, persistence, and limiting effects of a claimant's symptoms, the ALJ considers relevant factors such as the objective medical evidence, evidence from medical sources, treatment course and effectiveness, daily activities, and consistency of Plaintiff's statements and with the other evidence of record, which are provided in the regulations at § 416.929. SSR 16-3p, 2016 WL 1119029, at *4-8; 20 C.F.R. § 416.929.
APPLICATION AND ANALYSIS
ALJ's Consideration of Plaintiff's moderate mental impairments
Plaintiff contends the ALJ failed to adequately consider Plaintiff's moderate limitations in concentration, persistence, and pace by limiting her to simple instructions and to only making simple, work-related decisions. [Doc. 18 at 18-19.] Thus, Plaintiff contends, the Fourth Circuit's holding in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), requires remand for further administrative action. [Id. at 19.] The Commissioner, on the other hand, contends that Mascio is distinguishable because "the hypothetical and RFC finding here fully addressed Plaintiff's ability to stay on task, as opposed to just her ability to perform simple tasks." [Doc. 20 at 16.]
In conducting the listing analysis with respect to Plaintiff's mental impairments, the ALJ determined that Plaintiff presented moderate limitations in her ability to understand, remember, or apply information; to interact with others; and with regard to concentration, persistence, and maintaining pace. [R. 22-23.] In developing Plaintiff's RFC, the ALJ noted
While the record shows some waxing and waning of her symptoms, the record shows that her symptoms have been improved and stable with use of medications (id., Exhibit 1F). It is notable that there appears to have been some periods of questionable medication compliance, with reports of only taking one of her prescribed medications or using illegal substances in conjunction with her prescribed medications (Exhibits 1F, 3F, 13F). However, the longitudinal evidence of record shows improvement with use of psychotropic medications and that the claimant's mood symptoms are reasonably stable with medication compliance.[R. 32.] The ALJ, in explaining her consideration of opinion evidence from Plaintiff's treating psychiatrist, Dr. Whitley, who opined that Plaintiff was "disabled and unable to be gainfully employed," noted that
despite a treating relationship between the claimant and Dr. Whitley, there is no rationale or explanation for the opinion that the claimant is disabled. There is no reference to objective findings on the mental status examinations or examples of her mood symptoms or behaviors. In short, the opinion is conclusory without any express rationale. Second, there is little objective evidence in the treatment notes to support the opinion. The treatment notes largely recount the claimant's self reports and the mental status examinations are merely circled forms without elaboration. While her mood was often noted to be dysphoric and anxious, there is little other objective evidence of her mood or symptoms to support this opinion. Also, the mental status examinations repeatedly noted that her memory and attention were within normal limits (Exhibits 8F, 9F, 12F, 13F). This would seem to suggest that the claimant would be capable of understanding and remembering simple instructions. Further, the issue whether an individual is disabled is an issue reserved to the Commissioner and is not entitled to any special significance (SSR 96-5p).[R. 30.] The ALJ also afforded great weight to the opinions of the state agency psychological consultants, who found Plaintiff retained the ability to perform simple tasks in a work setting with minimal work with the general public. [R. 31.]
Medical Evidence of Mental Limitations
In her application for SSI, Plaintiff alleges disability due to degenerative disc disease, with bulges at L4-L5. [R. 219.] Plaintiff complained that problems with back pain affected her ability to walk and sleep and that it felt as if she had bones rubbing against each other, making it hard for her to be comfortable. [R. 238.] Plaintiff reported that her pain medication only takes the edge off and that she is unable to enjoy her life. [R. 245.] While Plaintiff did not claim disability due to her mental impairments, she did report taking Adderall for ADD; Bupropion, Lamectal, and Latuda for bipolar disorder; and Effexor for depression. [R. 221.]
Treatment notes indicate that Plaintiff was treated by Dr. Whitley from January 2014, through approximately October 2016. From January through June 2014, treatment notes indicate that Plaintiff was diagnosed with and treated for bipolar disorder, PTSD, ADD and chronic pain. [See, e.g., R. 431-37.] Plaintiff was consistently noted to have poor judgment, attention, and impulse control; poor cognitive functions; and partial response to medications. [See, id.] Treatment notes from July through September 2014, document Dr. Whitley's conclusion that Plaintiff is "totally disabled" due to his rating of her functional disability at 100%, her pain always being at 100%, and her staying in the house and in bed and not interacting with anyone. [R. 438-39.]
From October 2014 through January 2016, Dr. Whitley's treatment notes indicate his continued belief that Plaintiff was "totally disabled" and his findings that she suffered from:
• Poor judgment, attention, impulse control and insight. [R. 510-18.]
• Bottled up hate for her uncle that molested her when she was a child. [R. 510.]
• Pain 24/7 and roller coaster moods. [R. 511, 513.]
• Panic attacks, including crying; unable to be around people. [R. 512, 517.]
• Not eating until dinner then a small amount, pain, unable to do anything. [R. 514.]
• Nightmares. [R. 515.]
• SI swelling-bulging disc with numbness down her left leg and pain 24/7. [R. 517.]
• Unbearable pain and financial problems; fights with husband; looking at divorce papers. [R. 518.]
• Crying, not sleeping well, not eating, feeling uneasy, afraid something is going to happen. [R. 519.]
Dr. Whitley's progress notes from February through October 2016 continue to document his position that Plaintiff is totally disabled. [R. 521-23.] In a Medical Assessment of Ability to do Work-Related Activities (Mental), Dr. Whitley indicated that Plaintiff's ability to follow work rules was good; her ability to use judgment, function independently, and maintain attention/concentration was fair; and her ability to relate to co-workers, interact with supervisors, and deal with work stress was poor. [R. 525.] Dr. Whitley noted that Plaintiff rarely leaves her home, is unable to interact with most people, angers easily, and has trust issues due to sexual abuse by her uncle as a teenager. [Id.] Dr. Whitley also noted that Plaintiff's ability to understand, remember, and carry out simple job instructions was fair, but her ability to carry out or remember complex job instructions was poor due to her reduced focus and concentration. [R. 526.] Dr. Whitley indicated that Plaintiff's limitations were supported by medical/clinical findings of depression, mood swings, inability to trust others, and chronic back pain which inhibits her ability to sit or stand for periods of time. [Id.]
A psychiatric review technique conducted on July 17, 2014, by Dr. Manhal Wieland ("Dr. Wieland") for the SSA noted Plaintiff suffered from moderate difficulties in maintaining social functioning, and in concentration, persistence, and pace. [R. 64.] In completing Plaintiff's Mental RFC Assessment, Dr. Weiland found that Plaintiff had memory and understanding limitations; moderate limitations in her ability to understand and remember detailed instructions; moderate limitations in her ability to carry out detailed instructions; moderate limitations in her ability to maintain attention and concentration for extended periods of time; moderate limitations in her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; moderate limitations in her ability to work in coordination with or in proximity to others without being distracted by them; and moderate limitations in her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. [R. 68-69.] Dr. Wieland concluded that, due to her mental condition as documented on the PRFT, Plaintiff may have difficulty sustaining her concentration and pace on complex tasks and detailed instructions; but noting that she should be able to attend to and perform simple tasks without special supervision. [R. 69.] Dr. Weiland also concluded that Plaintiff can attend work regularly, but may miss an occasional day due to her mental condition. [Id.] These same findings were reiterated on reconsideration by Dr. Samuel Goots on October 21, 2014. [R. 84-86.]
Discussion
In Mascio v. Colvin, the Fourth Circuit found that "the ability to perform simple tasks differs from the ability to stay on task" and that "only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." 780 F.3d 632, 638 (4th Cir. 2015). The Mascio Court found it reversible error that the ALJ did not explain her consideration of Plaintiff's limitations in concentration in the RFC or present the limitation to the VE in a hypothetical, explaining that
In Mascio v. Colvin, the claimant asserted that the hypothetical to the vocational expert (VE) was legally insufficient in failing to include her mental limitations. At step three, the ALJ had found that Mascio had an adjustment disorder and also that she had moderate difficulties with concentration, persistence, or pace as a side effect of her pain medication. However, the ALJ did not include in his hypothetical to the VE any mention of the mental limitations. The court agreed with other circuits that have held that "an ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" 780 F.3d at 683 (citing Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (noting the Eleventh Circuit joined the Third, Seventh, and Eighth Circuits)).
Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here gave no explanation, a remand is in order.Mascio, 780 F.3d at 638 (internal citation omitted). Following Mascio, several courts in this district and in other districts within the Fourth Circuit have found a limitation to simple, unskilled work is insufficient to address moderate limitations in concentration, persistence, and pace absent further explanation. See, e.g., Herren v. Colvin, No. 1:15-cv-00002-MOC, 2015 WL 5725903, at *6 (W.D.N.C. Sept. 30, 2015) (finding a hypothetical containing a restriction to "simple, routine, repetitive tasks" failed to address the claimant's ability to stay on task); Desilets v. Colvin, No. 2:14-cv-1693-RBH, 2015 WL 5691514, at *4-5 (D.S.C. Sept. 28, 2015) (finding a limitation in the RFC to "simple, repetitive tasks that are low stress and require no major decision-making or changes in the work setting in crediting some of her complaints of increased mental symptoms with stress" did not "sufficiently address the claimant's limitations in concentration, persistence, or pace as they relate to the RFC"); Jones v. Colvin, No. 4:14-cv-200-RN, 2015 WL 4773542, at *6 (E.D.N.C. Aug. 13, 2015) ("[T]he hypothetical question to the VE contemplated an individual 'limited to simple, routine, repetitive tasks; should work in a low production occupation, one which would require no complex decision making, constant change or dealing with crisis situations.' The majority of courts in North Carolina, including this court, have held that such restrictions do not adequately address a claimant's moderate limitations in concentration, persistence and pace."); Bailey v. Colvin, No. 5:14-cv-248-DCN, 2015 WL 2449044, at *13 (D.S.C. May 21, 2015) (finding a limitation in the RFC to "only simple, routine, repetitive tasks; he must work in a static work environment (which I define as an environment with few work place changes)" did not account for the claimant's "limitations in concentration, persistence, or pace as to his ability to stay on task") (emphasis in original); Scruggs v. Colvin, No. 3:14-cv-00466-MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015) (finding that an ability to perform simple, routine, repetitive tasks in a non-production environment, without more, does not account for claimant's moderate difficulties in concentration, persistence, and pace).
In this case, the ALJ failed to explain how a limitation to "simple, repetitive tasks and instructions" accommodates Plaintiff's moderate mental limitations. In the hypothetical to the VE, the ALJ presented a hypothetical person with numerous postural limitations who is also limited to "understanding, remembering and carrying out simple instructions;" can have only occasional interaction with supervisors, coworkers and the public; can only tolerate occasional change in work locations; and only makes simple work-related decisions. [R. 55.] The VE testified that this hypothetical person could perform light level, unskilled jobs all at the SVP 2 level. [R. 56.] Assuming this hypothetical person could have no interaction with the public, the VE testified that this person could still perform the jobs identified, but that the number of jobs available would be reduced. [Id.] Further, the VE testified that, if the hypothetical person would miss work once per week, there would be no jobs available. [R. 56-57.]
Similarly, limiting Plaintiff's contact to no interaction with the public and to no more than occasional interaction with co-workers deals largely with workplace adaptation, rather than concentration, pace, or persistence. See McPherson v. Colvin, No. 16-cv-1469, 2016 WL 5404471 at * 8 (E.D. Pa. Sept. 28, 2016) (rejecting proposition that moderate restrictions in concentration, persistence, and pace were accommodated by a hypothetical to a VE that only included: (1) the performance of routine, repetitive tasks; (2) a low stress environment (defined as no frequent independent decision making required and no frequent changes in the work setting); and (3) no public interaction and occasional interaction with coworkers and supervisors) (citing Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015)); Knight v. Commissioner, No. 15-cv-1512, 2016 WL 4926072 (D.S.C. Sept. 16, 2016) (explaining the ALJ's limiting the hypothetical to "unskilled work with no direct interaction with the public; only occasional team type interaction with coworkers; [who] should not be required to adapt to greater than simple, gradual changes in the workplace" did not account for the Plaintiff's moderate limitation in concentration, persistence, or pace).
Upon review, the Court notes that, in making her RFC determination, limiting Plaintiff to simple, repetitive tasks and instructions to accommodate Plaintiff's moderate mental limitations, the ALJ, in effect, became a vocational expert. See, Shelby v. Astrue, 767 F. Supp. 2d 592, 599 (D.S.C. 2010). As this Court has explained:
Plaintiff's nonexertional impairment of moderate limitation in the area of concentration, persistence and pace could directly
affect plaintiff's ability to remain attentive and concentrate. This could directly affect plaintiff's ability to perform simple sedentary work, [], unskilled in nature, which the ALJ found plaintiff capable of performing. It may be that a vocational expert can identify unskilled sedentary jobs which would not be affected by plaintiff's nonexertional limitations. It may also be that a vocational expert would find limitations in the area of concentration, persistence and pace, would affect such jobs and further erode the number of unskilled sedentary jobs available. Reversal and remand is required so a vocational expert can be called and can address the issue.Sherby v. Asture, 767 F. Supp. 2d 592, 600 (D.S.C. 2010), citing Bonds v. Astrue, No. 07-cv-1135, 2008 WL 2952446, at * 11 (D.S.C. July 29, 2008). Here, contrary to the Commissioner's argument, because neither the ALJ's RFC assessment nor the ALJ's hypothetical question to the VE, addressed Plaintiff's ability to stay on task, the Court is left to guess how the ALJ accounted for this ability (or inability) despite the ALJ's finding that Plaintiff has moderate difficulties in maintaining concentration, persistence, or pace. As such, "it is not entirely clear how the evidence aligns with the necessary functions, which is a required showing." See Miller v. Colvin, No. 15-cv-443, 2016 WL 3679292 at *4-5 (W.D.N.C. July 11, 2016) (citing Mascio, 780 F.3d at 636; SSR 96-8p, 1996 WL 374184, at *7). Accordingly, remand is appropriate. Carr v. Colvin, No. 15-cv-685, 2016 WL 4662341, at *10 (D. Md. Sept. 7, 2016) (finding that the ALJ's inclusion of a limitation in the assessment of Plaintiff's RFC and in the hypothetical questions to the VE to only occasional contact with supervisors, co-workers, and the public accounts for Plaintiff's moderate difficulties in social functioning, but does not account for Plaintiff's moderate difficulties in maintaining concentration, persistence, or pace). In light of the above, the Court is unable to conclude that the ALJ sufficiently accounted for Plaintiff's moderate limitations in concentration, persistence or pace in the RFC. And, while the limitation to simple, repetitive tasks and instructions may sufficiently address Plaintiff's mental limitations, after Mascio, and in light of Bonds, further explanation and/or consideration by the ALJ is necessary.
Additional Allegations of Error
With respect to the remainder of Plaintiff's complaints concerning the decision, on remand the ALJ will be able to reconsider and explain her findings with respect to the medical opinion evidence, and Plaintiff's complaints of pain. Harris v. Asture, No. 9:09-cv-0028-HFF, 2009 WL 5125215, *4 (D.S.C. 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-764 (W.D.Va. 2002) (explaining on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo)).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge January 17, 2019
Greenville, South Carolina