Opinion
Civil Action No. 6:19-cv-02792-BHH-KFM
12-18-2020
Jacqueline Daniel, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B).
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on July 25, 2016, alleging that she became unable to work on May 23, 2016 (Tr. 200-16). The applications were denied initially (Tr. 54-80, 82) and on reconsideration (Tr. 83-118) by the Social Security Administration. On March 24, 2017, the plaintiff requested a hearing. On August 31, 2018, an administrative hearing was held at which the plaintiff, represented by counsel, and Carey Washington, Ph.D., an impartial vocational expert, appeared and testified in Mauldin, South Carolina (Tr. 28-52). On November 29, 2018, the ALJ considered the case de novo and found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 12-27). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on September 3, 2019 (Tr. 1-3). The plaintiff then filed this action for judicial review (doc. 1).
The ALJ's decision indicates that the plaintiff's DIB application was filed on June 30, 2016, and the plaintiff's SSI application was filed on July 5, 2016; however, the record notes both applications were filed on July 25, 2016 (compare Tr. 12 with Tr. 200-16)
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2020.
(2) The claimant has not engaged in substantial gainful activity since May 23, 2016, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: partial seizures, chronic migraines, and depression with anxiety (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b) except the claimant can lift, carry, push, and/or pull twenty pounds occasionally and ten pounds frequently; and sit for six hours, stand for six hours, and walk for six hours. The claimant can climb ramps and stairs frequently, never climb ladders, ropes, or scaffolds, but can balance frequently. The claimant can never work at unprotected heights, never work around moving mechanical parts and never operate a motor vehicle. The claimant can sustain concentration, persistence, and pace sufficient to perform unskilled work activities; the claimant can interact with the public occasionally. She would be absent from work one day a month.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on November 27, 1969 and was 46 years old, which is defined as a younger individual age 18-49 on the alleged disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569a, 416.969, and 416.969a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from May 23, 2016, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff argues that the ALJ erred by not explaining the residual functional capacity ("RFC") findings—including failing to appropriately account for the plaintiff's moderate limitations in concentrating, persisting, and maintaining pace (doc. 16 at 16-20); failing to account for the plaintiff's moderate limitations in interacting with others (id. at 20-22); failing to explain his conclusion that the plaintiff would be absent only one day per month (id. at 22-23); and by failing to appropriately weigh opinion evidence (id. at 23-29). The Commissioner, on the other hand, asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 18 at 13-24).
Residual Functional Capacity
The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, id. §§ 404.1546(c), 416.946(c), and the ALJ does so by considering all of the relevant medical and other evidence in the record, id. §§ 404.1545(a)(3), 416.945(a)(3).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may [the] RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). Further, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
Here, at step two, the ALJ found that the plaintiff had "moderate" limitations in interacting with others as well as in concentrating, persisting, or maintaining pace (Tr. 16). The ALJ noted:
In interacting with others, the [plaintiff] has moderate limitations. Here, the [plaintiff] alleged that she has difficulty getting along with others and dealing appropriately with authority. However, according to her statements, the [plaintiff] is also able to shop and spend time with friends and family. Finally, the medical evidence shows that the [plaintiff] was described as pleasant and cooperative and appeared comfortable during appointments. (5E; 1F/12, 18, 40; 12F/10, 26, 41, 55).(Tr. 16).
The next functional area addresses the [plaintiff's] ability to concentrate, persist, or maintain pace. For this criterion, the [plaintiff] has moderate limitations. The [plaintiff] contended that she has limitations in concentrating generally. On the other hand, the [plaintiff] said that she is also able to prepare meals and watch TV. Additionally, the record fails to show any mention of distractibility and an inability to complete testing that assesses concentration and attention. The [plaintiff] had normal concentration in examination (5E; 11F/3, 8, 13, 17, 21, 25, 29).
In determining the plaintiff's RFC, the ALJ noted that the plaintiff "can sustain concentration, persistence, and pace sufficient to perform unskilled work activities; the claimant can interact with the public occasionally. She would be absent from work one day a month" (Tr. 17). The ALJ's decision concluded:
The [plaintiff's] treatment for her mental and medical impairments was limited to routine outpatient therapy and medication with an occasional emergency room visit for reported seizure within the relevant period. The [plaintiff] had improvement with this care, for example[,] she reported she was doing well on medication. In terms of daily activities, she would regularly cook simple microwavable meals brought by her daughter, and do simple household chores such as laundry, indicating an ability to engage in simple routine tasks, and interact with another person. The [plaintiff] took affirmative steps such as seeking treatment to mitigate her symptoms, with some success. The [plaintiff's] mental impairments are accounted for by the above residual functional capacity. . . . The [plaintiff's] demonstrated normal concentration, but also reported memory difficulties mean she can only perform unskilled work activities. Her generally cooperative history indicates no interaction limitations, however, to avoid stress and the possibility of a stress induced partial seizure, she should only have to occasionally interact with the public.(Tr. 19).
In Mascio v. Colvin, the claimant objected to the ALJ's failure to conduct a function-by-function analysis of the claimant, as well as the use of a legally insufficient hypothetical to the vocational expert. 780 F.3d 632, 635-38 (4th Cir. 2014). 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." Id. at 638. The Mascio court found it reversible error that the ALJ did not explain her consideration of the plaintiff's limitations in concentration, persistence, or pace in the RFC or present the limitation to the vocational expert in a hypothetical, stating as follows:
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.Id. (internal citation omitted).
Here, although the ALJ's decision includes a discussion of the plaintiff's mental impairments—including her concentration difficulties—the court finds that it does not adequately explain the determination that the plaintiff would be absent from work one day (and not more days) per month or the plaintiff's limitations in persistence and pace.
As an initial matter, as noted by the plaintiff, the ALJ's decision does not contain an explanation regarding the RFC finding that the plaintiff would be absent from work one day per month. Indeed, the decision does not mention this limitation other than its inclusion in the RFC. The Commissioner asserts that the narrative RFC discussion provides the explanation, based upon the plaintiff's improvement with treatment and her frequency of seizures (once per month) (doc. 18 at 21-22). The court disagrees. First, this argument by the Commissioner does not appear in the ALJ's decision; thus, it is a post hoc rationalization, which cannot be considered in undertaking substantial evidence review. See Moseley v. Berryhill, C/A No. 6:18-cv-01389-BHH-KFM, 2019 WL 2107917, at *10 (D.S.C. Apr. 22, 2019), Report and Recommendation adopted by 2019 WL 2106181 (D.S.C. May 14, 2019) ("[G]eneral principles of administrative law preclude the Commissioner's lawyers from advancing grounds in support of the agency's decision that were not given by the ALJ." (quoting Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir.2003))).
Moreover, there is conflicting evidence in the record regarding the number of days the plaintiff would miss per month, with the vocational expert testifying during the hearing that if the plaintiff were to be absent more than one day per month (two or more days), she would be precluded from all work (Tr. 49). For example, the plaintiff's medical providers, albeit non-acceptable medical sources, provided medical source statements that the plaintiff would miss at least three days of work per month (Tr. 472, 587, 590) whereas the state agency examiners opined (giving the plaintiff the benefit of the doubt) that the plaintiff "may miss an occasional day due to her mental" impairments (Tr. 64, 77, 97, 114). The ALJ's decision, however, which assigned all of this evidence little weight, does not provide an explanation for his determination that the plaintiff would miss one (and not more) days of work per month.
Likewise, the ALJ's decision, which provides a detailed discussion of the plaintiff's concentration limitations (as outlined above), does not explain how the RFC accounts for any limitations the plaintiff may have in persisting and maintaining pace. Indeed, it may be that the that the ALJ found that the plaintiff's limitations in this area of functioning were only in concentration (and not persistence and pace); however, the ALJ's decision does not include such an explanation. "A necessary predicate to engaging in substantial evidence review is a record" that adequately explains the ALJ's findings and reasoning. Dowell v. Colvin, C/A No. 1:12-cv-1006, 2015 WL 1524767, at *4 (M.D.N.C. Apr. 2, 2015) (requiring that the ALJ "build a logical bridge between the evidence and his conclusions") (citing Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). Thus, although the ALJ retains the authority to assess the plaintiff's RFC, the ALJ's decision is legally insufficient because it does not adequately explain the plaintiff's mental RFC findings.
Remaining Allegations of Error
In light of the court's recommendation that this matter be remanded for further consideration as discussed above, the court need not specifically address the plaintiff's remaining allegations of error as the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo); see Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). As such, on remand, the ALJ is to also take into consideration the plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
As such, based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED
s/ Kevin F. McDonald
United States Magistrate Judge December 18, 2020
Greenville, South Carolina
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).