Darriel R. v. Kijakazi

Full title: Darriel R.,[1]Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social…

Court: United States District Court, D. South Carolina

Date published: Apr 8, 2022

C. A. 1:21-3685-BHH-SVH (D.S.C. Apr. 8, 2022)

Opinion

C. A. 1:21-3685-BHH-SVH

04-08-2022

Darriel R.,[1]Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security Administration, Defendant.

Shiva V. Hodges United States Magistrate Judge

REPORT AND RECOMMENDATION

Shiva V. Hodges United States Magistrate Judge

This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be affirmed.

I. Relevant Background

A. Procedural History

On May 7, 2015, Plaintiff protectively filed applications for DIB and SSI in which he alleged his disability began on March 24, 2015. Tr. at 49, 50, 296-303, 304-15. His applications were denied initially and upon reconsideration. Tr. at 111-15, 116-22. On November 17, 2016, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Edward T. Morriss. Tr. at 31-48 (Hr'g Tr.). The ALJ issued an unfavorable decision on January 13, 2017, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 10-30. Subsequently, the Appeals Council denied Plaintiff's request for review. Tr. at 1-3.

Plaintiff protectively filed second applications for DIB and SSI on April 28, 2017. Tr. at 1216, 1217, 1389-95, 1396-1402. His claims were denied on January 11, 2018, and April 13, 2018. Tr. at 1294-97, 1298-1302, 1303-06.

On March 30, 2018, the undersigned issued an order granting the Commissioner's motion to remand, reversing the Commissioner's decision under sentence four of 42 U.S.C. § 405(g), and remanding the first case for further administrative proceedings. Tr. at 1219-20. The applications were consolidated: the hearing office, and Plaintiff appeared before the ALJ for a second hearing on March 27, 2019. Tr. at 1152-65. The ALJ issued a second unfavorable decision on July 9, 2019. Tr. at 1126-51. The Appeals Council subsequently denied review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1119-25. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 10, 2021. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 51 years old at the time of the most recent hearing. Tr. at 1155. He completed high school. Id. His past relevant work (“PRW”) was as a maintenance worker and a maintenance director. Tr. at 35. He alleges he has been unable to work since March 24, 2015. Tr. at 296.

2. Medical History

Plaintiff presented to Carolina Forest Family Medical for a testosterone check on October 1, 2014. Tr. at 492. His free and total testosterone levels were low. Tr. at 488. Fritz Frye, M.D. (“Dr. Frye”), prescribed AndroGel 1.62%. Id.

On January 8, 2015, Plaintiff complained of fatigue, sleeping only five hours per night, joint pain, neck pain, numbness in his right middle finger, dizziness upon changing positions, nausea, and gastroesophageal reflux disease (“GERD”). Tr. at 491. He indicated AndroGel was ineffective and expensive. Id. Lab studies showed positive antinuclear antibody (“ANA”) direct and elevated hemoglobin A1C at 11.8%, Sjogren's syndrome B antibodies (“anti-SSB”), glucose, alkaline phosphatase, and serum chloride. Tr. at 485-87. Dr. Frye added Amaryl 4 mg twice a day for diabetes, instructed Plaintiff to have his vision checked, and referred him to an endocrinologist. Id.

On February 3, 2015, Plaintiff complained of elevated fasting blood sugar and erectile dysfunction. Tr. at 499. Dr. Frye noted depression, anxiety, confusion, and memory impairment on physical exam. Id. He continued medication for diabetes and prescribed medication for erectile dysfunction. Id.

On March 4, 2015, Plaintiff returned for medication refills and requested an alternative to Axiron transdermal solution due to its expense. Tr. at 498. Dr. Frye noted no abnormalities and ordered a check of Plaintiff's hemoglobin A1C level. Id.

Plaintiff was hospitalized at Conway Medical Center from March 25 to 26, 2015, for abnormal liver function, suspected as secondary to medication-related hepatitis. Tr. at 503. He presented with complaints of increased fatigue, yellowing of his eyes, and darkening of his urine. Id. Magnetic resonance imaging (“MRI”) of Plaintiff's abdomen showed acalculous cholecystitis, but no other abnormalities. Id. Plaintiff's bilirubin decreased from 12 to 11 mg/dL from admission to discharge, and he was scheduled for additional liver function tests on March 30. Id. Srinivas Vuppala, M.D., instructed Plaintiff to hold off on taking testosterone, diabetic medications, and nonsteroidal anti-inflammatory drugs (“NSAIDs”), pending further workup. Id.

Plaintiff presented to the emergency room (“ER”) at Waccamaw Hospital with complaints of nausea, shortness of breath, abdominal pain, neck and shoulder pain, fatigue, dark urine, clay-colored stool, and yellowing of the eyes on March 30, 2015. Tr. at 525. A laboratory evaluation showed significant hepatic insufficiency. Tr. at 528. Plaintiff was admitted for liver failure due to drug-induced liver injury. Tr. at 521, 603. A liver biopsy showed cirrhosis, and stage 4 fibrosis was confirmed with trichome stain. Id. Plaintiff was released on April 15, 2015, for outpatient monitoring and instructed not to take Glipizide or testosterone. Tr. at 523.

Plaintiff presented to Mary Favaro, M.D. (“Dr. Favaro”), for hospital follow up on April 16, 2015. Tr. at 629. He complained of abdominal pain and feeling weak and ill. Id. Dr. Favaro observed Plaintiff to appear weak, pale, and jaundiced. Id. She noted a firm, tender liver and mid-epigastric pain. Id. She ordered lab studies and referred Plaintiff to a gastroenterologist. Tr. at 630.

Plaintiff presented to Grand Strand Regional Medical Center for worsened abdominal pain, nausea, vomiting, and diarrhea on March 28, 2015. Tr. at 656, 662. His bilirubin and liver function tests showed elevated levels and an ultrasound showed trace free fluid and ascites in his abdomen. Tr. at 690. Plaintiff was admitted for hyperbilirubinemia, mild leukocytosis, tachycardia, hyponatremia, nausea and vomiting, acute anemia, thrombocytosis, diabetes mellitus, and deep venous thrombosis prophylaxis. Id. Lab studies showed Plaintiff to have positive ANA, positive anti-SSB, and ferritin level of 1600 mcg/L. Tr. at 656. An echocardiogram revealed Plaintiff's left ventricular ejection fraction to be 40%, and an angiotensin-converting enzyme (“ACE”) inhibitor and beta blocker were initiated. Id. Plaintiff was transferred to the Medical University of South Carolina (“MUSC”) on May 9, 2015. Id.

Plaintiff was hospitalized at MUSC from May 9 to May 16, 2015. Tr. at 914. He underwent an upper endoscopy that showed a normal esophagus with mild gastritis in the antrum. Tr. at 921. His discharge diagnoses included chronic systolic heart failure, cirrhosis, jaundice, severe proteincalorie malnutrition, and elevated ferritin. Tr. at 919. He was discharged with instructions to follow up with Ira R. Willner, M.D. (“Dr. Willner”), in MUSC's Department of Gastroenterology, to start Carvedilol 3.125 mg, Dicyclomine 10 mg, Lisinopril 5 mg, Magnesium-Oxide 400 mg, Oxycodone IR 5 mg, and Ursodiol 500 mg, and to continue use of Lactulose, Oxycodone 5 mg, Promethazine 12.5 mg, Simethicone 80 mg, Acidophilus, and Hydroxyzine 25 mg. Tr. at 919-20.

On May 20, 2015, a liver biopsy showed cholestatic hepatitis with mild inflammatory activity (grade 2) and bridging and fibrosis with early nodule formation (stage 3-4 fibrosis). Tr. at 959-61.

Plaintiff underwent a colonoscopy on May 26, 2015, that showed internal hemorrhoids and did not reveal a likely cause for his presenting complaints. Tr. at 924-25.

On August 18, 2015, Plaintiff complained of itching, feeling poorly, severe epigastric discomfort, occasional vomiting, and numbness in his back and along his leg. Tr. at 1032. Dr. Willner observed Plaintiff to look “somewhat chronically ill,” to have many excoriations due to pruritus on his upper and lower extremities, and to have mild right upper quadrant and mid-epigastric tenderness. Tr. at 1033. He stated Plaintiff's bloodwork showed some improvement in his bilirubin level. Id. He ordered an esophagogastroduodenoscopy (“EGD”) and prescribed Neurontin for back and leg pain and numbness. Id. He wrote: “I don't think he is able to return to work.” Id.

On September 8, 2015, an EGD showed a normal esophagus and duodenum, mild portal hypertensive gastropathy in the stomach, and erosive gastritis in the gastric antrum, likely secondary to ibuprofen use. Tr. at 1034.

On September 23, 2015, state agency medical consultant Mary Lang, M.D. (“Dr. Lang”), provided the following opinion as to Plaintiff's expected physical residual functional capacity (“RFC”) for the period 12 months after his alleged onset date (“AOD”): occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; and frequently stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, or scaffolds. Tr. at 58-60, 70-72. A second state agency medical consultant, Susan Clifford, M.D. (“Dr. Clifford”), assessed the same physical RFC on March 12, 2016. Compare Tr. at 58-60 and 70-72, with Tr. at 85-88 and 101-04.

Plaintiff followed up with Dr. Willner on November 3, 2015. Tr. at 1054. He denied itching, but complained of upper left quadrant abdominal pain, sleep disturbance, and feeling poorly. Id. Dr. Willner noted Plaintiff had not started Nexium following the EGD, as it seemed he had not received the prescription from the endoscopy suite. Id. Plaintiff denied frank confusion, but admitted he had difficulty concentrating and processing information. Tr. at 1054-55. He reported lower extremity swelling that resolved with elevating his feet. Tr. at 1055. Dr. Willner noted Plaintiff had mild tenderness in the mid-to-left epigastric area. Id. He stated Plaintiff's hepatic panel was normal, except for continued low albumin at 3.2 g/dL. Id. He questioned whether Plaintiff had primary biliary cholangitis or a drug reaction, but declined to pursue repeat biopsy given his normal liver function tests. Id. He prescribed Nexium 40 mg twice daily for six weeks and instructed Plaintiff to take Benadryl at night. Tr. at 1054.

Plaintiff reported left wrist pain and numbness in his left anterior thigh that was accompanied by tingling and pain on March 3, 2016. Tr. at 1103. Dr. Frye prescribed Gabapentin 300 mg three times a day. Id. Lab studies showed positive ANA, high anti-SSB, and high sedimentation rate. Tr. at 1104-05. Dr. Frye referred Plaintiff to a rheumatologist. Tr. at 1105.

Plaintiff presented to the ER at Conway Medical Center for pain in his left wrist and knee on March 16, 2016. Tr. at 1075. He reported heart palpitations that had occurred off and on for two months. Tr. at 1076. X-rays of Plaintiff's left wrist showed no acute fracture. Tr. at 1078. X-rays of his left knee showed no fracture, but tricompartmental osteoarthritis most pronounced in the medial and patellofemoral compartments. Tr. at 1079. Physician assistant Sarah Benton prescribed Ultram 50 mg and recommended rest, ice, compression, and elevation. Tr. at 1077.

Plaintiff presented to Cashton B. Spivey, Ph.D. (“Dr. Spivey”), for a consultative psychological evaluation on April 8, 2016. Tr. at 1048. Dr. Spivey noted Plaintiff's wife (“Mrs. R.”) drove him to the evaluation and often acted as historian. Id. Plaintiff reported intermittent headaches, short-term memory deficits, misplacing objects, forgetting information in conversations, and forgetting to take medication. Id. He endorsed significant feelings of dysphoria, sleep disturbance, reduction in appetite, low energy level, attention/concentration problems, fluctuating feelings of anxiety and ruminations, and suicidal ideation without plan or intent. Tr. at 1049. Mrs. R. reported having to prompt Plaintiff to bathe and sometimes assisting him with bathing and dressing. Id. Plaintiff indicated he had stopped driving a year prior. Id. He denied performing household chores or duties and attending church. Id. Mrs. R. noted Plaintiff appeared to have changes in intellectual/cognitive functioning. Id. She indicated Plaintiff's typical day included waking, eating, going to the bathroom, taking medication, lying in bed, sleeping, and watching television. Id.

Dr. Spivey observed Plaintiff to be casually dressed and moderately groomed. Id. He considered his findings to represent an accurate assessment of Plaintiff's cognitive functioning. Id. Plaintiff scored 21 of 30 points on the Mini-Mental State Examination (“MMSE”), which suggested cognitive difficulties. Tr. at 1049-50. Dr. Spivey noted Plaintiff was oriented to time, place, and person, but did not know the date. Tr. at 1050. He stated Plaintiff was unable to perform serial sevens, could spell “world” backwards, could not recall any of three objects after a five-minute delay, could not restate a sentence, was unable to write a complete sentence, could not reproduce a drawing, followed one of three steps during a command exercise, had a fair general fund of knowledge, demonstrated poor abstract reasoning ability, had poor insight and judgment, appeared to have an extremely low general intelligence score, showed sad mood and blunted-to-flat affect, displayed confusion and probable cognitive disfluency, showed no evidence of psychosis, had poor attention/concentration, made minimal eye contact, displayed psychomotor retardation and low energy, and had minimal, slow, and halted speech with a stammer. Id.

Dr. Spivey diagnosed major depressive disorder and unspecified anxiety disorder and noted possible unspecified neurocognitive disorder and a need to rule out mild intellectual disability disorder. Id. He stated Plaintiff would display difficulty managing funds independently and accurately, given his inability to perform serial sevens and his estimated general intelligence score. Id. He indicated Plaintiff “would display difficulty understanding simple and complex instructions as well as performing simple and complex tasks in the workplace,” based primarily on his difficulty understanding certain questions and his display of cognitive confusion. Id. He noted Plaintiff “would currently display difficulty relating well to others in the workplace due to the magnitude of his reported dysphoria.” Id. He stated Plaintiff “believes he would have problems with stamina persistence in the workplace due to his report of a low energy level and attention/concentration problems.” Id. He confirmed Plaintiff “did appear to display a low energy level and his attention/concentration functioning was very poor” during the evaluation. Id.

On April 26, 2016, state agency psychological consultant Catherine Blusiewicz, Ph.D. (“Dr. Blusiewicz”), reviewed the record and completed a psychiatric review technique (“PRT”), considering Listings 12.04 for affective disorders and 12.06 for anxiety-related disorders. Tr. at 83, 99. She assessed mild restriction of activities of daily living (“ADLs”), mild difficulties in maintaining social functioning, no repeated episodes of decompensation, and moderate difficulties in maintaining concentration, persistence, or pace. Id. Dr. Blusiewicz completed a mental RFC assessment, noting moderate limitations as to the following abilities: to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; 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; and to respond appropriately to changes in the work setting. Tr. at 88-89, 104-05. She wrote:

Claimant can understand and carry out simple and low level detailed tasks for 2 hr periods during a normal workday.

Claimant can complete a normal work day and week without excessive interference from psychological symptoms.

Claimant can accept supervision and interact with coworkers.

Claimant can adapt to change and avoid hazards.

Tr. at 89, 105.

Plaintiff presented to rheumatologist Gerald Larochelle, M.D. (“Dr. Larochelle”), as a new patient on May 19, 2016. Tr. at 1088. He reported erosive gastritis, joint pain, stiffness, and swelling. Tr. at 1090. He described left knee pain that made it difficult to walk. Id. Dr. Larochelle recorded normal findings on physical exam. Tr. at 1091. He administered a Kenalog and Lidocaine injection to Plaintiff's left knee. Tr. at 1092. He ordered lab studies and referred Plaintiff to a gastroenterologist and an endocrinologist. Tr. at 1093.

On June 2, 2016, a gastric emptying study showed low normal gastric emptying. Tr. at 1073. Plaintiff underwent an EGD with biopsy on June 27, 2016. Tr. at 1080. Prior to the procedure, Plaintiff complained of chronic, sharp left upper quadrant pain that radiated to the epigastrium. Id. Richard H. Eisenman, M.D. (“Dr. Eisenman”), noted impressions of: (1) esophageal varix; (2) primary biliary cirrhosis with cirrhosis noted on liver biopsy; and (3) epigastric pain, unclear etiology. Tr. at 1080-81. The pathology report showed no histopathologic changes and no helical organisms. Tr. at 1118.

Plaintiff continued to endorse abdominal discomfort on June 30, 2016. Tr. at 1086. He endorsed a lot of joint pain. Tr. at 1087. Dr. Larochelle noted Plaintiff's most recent lab studies showed A1C at 7% and his gastric emptying study was only slightly abnormal. Tr. at 1086. He recorded normal findings on physical exam. Tr. at 1087. He indicated there was no warmth or swelling in Plaintiff's left knee, but a little bit of fulness. Id. He assessed osteoarthritis of the left knee. Id. Dr. Larochelle noted Plaintiff's lab studies were more consistent with autoimmune hepatitis than primary biliary cirrhosis. Id. He indicated Plaintiff had positive ANA, as well as positive antismooth muscle antibodies. Id. He prescribed Celebrex 200 mg twice a day. Id.

Plaintiff followed up with nurse practitioner Robin Niederwerfer (“NP Niederwerfer”) to discuss the EGD results on July 11, 2016. Tr. at 1111. He complained of abdominal pain, nausea, and occasional diarrhea and bowel urgency and noted he had been avoiding eating due to pain. Id. NP Niederwerfer recorded normal findings on physical exam. Id. She assessed type 2 diabetes mellitus, hypertensive disorder, primary biliary cirrhosis, and epigastric pain and instructed Plaintiff to follow up with Dr. Eisenman on September 29. Tr. at 1112.

On January 6, 2017, Plaintiff reported he had discontinued the lupus medication the rheumatologist prescribed. Tr. at 1519. He requested medication refills. Id. Dr. Frye assessed diabetes, hypertension, and abdominal pain and prescribed Tramadol, Coreg, Metformin, Phenergan, Gabapentin, and Ursodiol. Id.

Plaintiff presented to June Bartell Jones, M.D. (“Dr. Jones”), for a consultative medical evaluation on October 16, 2017. Tr. at 1496. Dr. Jones observed that Plaintiff had to be helped out of his car by a medical assistant, was brought into the exam by wheelchair, and was accompanied into the exam room by Mrs. R. Id. She noted Plaintiff did not want to talk and wanted Mrs. R. to provide the medical history. Id. Dr. Jones requested that Plaintiff attempt to provide the medical history with Mrs. R.'s assistance as to dates. Id. She noted Plaintiff “complied angrily.” Tr. at 1497. Plaintiff reported problems with liver cirrhosis, type 2 diabetes, fatigue, polyuria, congestive heart failure, persistent abdominal pain, confusion, memory loss, rheumatoid arthritis (“RA”), and lupus. Id. He indicated he was taking hydroxychloroquine for RA, but it provided no relief. Id. Plaintiff denied being able to use a smartphone or text messaging, drive, prepare meals, do housework and laundry, shop on his own, take medications on his own, manage money, and bathe and dress without assistance. Tr. at 1498-99. He stated he used a wheelchair in his home due to left knee pain. Tr. at 1499.

Dr. Jones noted Plaintiff's vision was less than 20/200 in both eyes and his near vision was 20/100. Id. She described Plaintiff as “partially cooperative with the exam.” Id. She stated Plaintiff's abdomen was mildly obese with areas tender to palpation, particularly along his liver edge. Id. She observed no tenderness, cyanosis, or clubbing in Plaintiff extremities and no deformities to his feet, ankles, or knees. Id. She recorded 4/5 strength in the proximal and distal muscle groups of the bilateral upper and lower extremities. Tr. at 1499-50. She stated Plaintiff demonstrated decreased range of motion (“ROM”) in the cervical spine and full ROM of the elbows on initial testing with reduced ROM on subsequent testing due to pain. Tr. at 1450. She noted intact sensation to light touch, pinprick, and vibration in Plaintiff's upper and lower extremities, except that Plaintiff was inconsistent in his responses to pinprick in the left thigh. Id. Plaintiff declined to stand to perform walking tests, as he claimed his left knee pain was too severe. Id. Dr. Jones observed no abnormality to the left knee. Id. She indicated Plaintiff responded to the orientation questions incorrectly, misidentified the President of the United States, erroneously claimed he was in a hospital, as opposed to a doctor's office, could not count backward from 100 to 80 by fives or forward from 80 by sevens, and could not interpret the sayings “don't burn your bridges” and “my heart beats for you.” Id.

Dr. Jones assessed stage 3 primary biliary cirrhosis, type 2 diabetes mellitus, RA, abdominal pain of undetermined etiology, congestive heart failure secondary to liver failure, and confusion. Id. She indicated she would defer to a behavioral specialist as to Plaintiff's confusion and “believe[d] there [was] some dementia present.” Id.

On December 27, 2017, state agency psychological consultant Holly Hadley, Psy.D. (“Dr. Hadley”), reviewed the record and completed a PRT. Tr. at 1194-95. She considered Listings 12.04 and 12.06 and assessed mild restrictions in understanding, remembering, or applying information, interacting with others, and adapting or managing oneself and moderate restrictions in Plaintiff's ability to concentrate, persist, or maintain pace. Id. Dr. Hadley considered Plaintiff's symptoms and impairments severe, but found he was “able to perform simple work tasks with no more than moderate limitations in [concentration, persistence, or pace].” Tr. at 1195. She completed a mental RFC assessment, finding moderate difficulties in Plaintiff's abilities to carry out detailed instructions and to maintain attention and concentration for extended periods. Tr. at 1198-1200. She wrote:

Claimant is able to understand, remember, and carry out simple instructions. The claimant may have difficulty carrying out detailed instructions. Claimant is able to maintain concentration and attention for periods of at least 2 hours with no more than moderate limitations. H[e] is capable of performing simple tasks without special supervision. The claimant can attend work regularly but may miss an occasional day of work secondary to his symptoms. He can interact appropriately with others. He can accept supervisory feedback. He can make simple work-related decisions. He is able to be aware of normal hazards and take appropriate precautions. The claimant is able to adapt to routine changes in the workplace.

Tr. at 1199.

On January 8, 2018, Dr. Lang reviewed the record for a second time and assessed Plaintiff's physical RFC as follows: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of about six hours in an eight-hour workday; and sit for a total of about six hours in an eight-hour workday. Tr. at 1197-98.

Plaintiff requested prescription refills and a referral to a social worker on February 8, 2018. Tr. at 1518. Dr. Frye assessed diabetes, hypertension, and biliary cirrhosis, ordered lab studies, and prescribed Coreg, Metformin, Amaryl, Gabapentin, Ursodiol. Id.

On March 13, 2018, Dr. Frye completed a questionnaire at the request of the Social Security Administration (“SSA”). Tr. at 1524. He noted he had most recently treated Plaintiff on February 8, 2018. Id. He indicated he had not diagnosed Plaintiff with a mental condition, prescribed medication for a mental condition, or recommended psychiatric care. Id. He described Plaintiff's mental status as involving intact thought process, appropriate thought content, normal mood/affect, good attention/concentration, good memory, and orientation to time, person, place, and situation. Id. He was “unable to say” how Plaintiff's mental impairments would affect his abilities to complete basic ADLs, relate to others, and complete simple, routine and complex tasks. Id. He considered Plaintiff capable of managing his own funds. Id.

On March 20, 2018, Plaintiff's lab studies showed significantly-elevated glucose at 438 mg/dL, slightly-low serum chloride, high alkaline phosphatase, high aspartate aminotransferase, high alanine transaminase, high hemoglobin A1C, and alert levels of gamma-glutamyl transferase and plasma ammonia. Tr. at 1528-29.

On March 28, 2018, state agency psychological consultant Michael Neboschick, Ph.D. (“Dr. Neboschick”), completed a PRT, considering listings 12.04 and 12.06 and assessing moderate difficulties in concentrating, persisting, or maintaining pace and mild limitations in understanding, remembering, or applying information, interacting with others, and adapting or managing oneself. Tr. at 1229-30. He considered Plaintiff to be moderately-limited in his abilities to carry out detailed instructions and maintain attention and concentration for extended periods. Tr. at 1235-36.

Plaintiff followed up with Dr. Frye to discuss his lab studies on April 11, 2018. Tr. at 1532. He complained of nausea, vomiting, and joint and abdominal pain and requested Tramadol. Id. Dr. Frye described Plaintiff as having flat affect. Id. He prescribed Tramadol, Omeprazole, Lactulose, and Zofran. Id.

On April 12, 2018, state agency medical consultant Jean Smolka, M.D. (“Dr. Smolka”), found Plaintiff had the physical RFC to occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for six hours in an eight-hour workday, and sit for six hours in an eighthour workday. Tr. at 1232-34.

Dr. Frye provided an undated letter stating Plaintiff had “a medical history of Biliary Cirrhosis with increased Ammonia levels, uncontrolled Diabetes, multiple arthralgia, intermittent nausea, decreased concentration and mood disorder.” Tr. at 1535. He wrote: “All of these have caused his inability to be employed and have led to financial hardship on his family.” Id.

C. The Administrative Proceedings

1. The Administrative Hearing a. Plaintiff's Testimony

i. November 17, 2016

During the first hearing, the ALJ questioned Plaintiff as to his name and social security number (“SSN”). Tr. at 33. Plaintiff stated his name, but was unable to state his SSN. Tr. at 33-34. The ALJ noted the question was “relatively simple,” and indicated “if he can't answer that, I'm not sure he can[] answer anything.” Tr. at 34. Plaintiff's counsel stated that was her concern and her reason for asking that Mrs. R. be present. Id. The ALJ asked Plaintiff's counsel if she would like for Mrs. R. to testify at that time, and Plaintiff's counsel answered in the affirmative. Id.

ii. March 27, 2019

During the second hearing, Plaintiff confirmed his name, his SSN, his address, and his date of birth. Tr. at 1155. He stated he was “sick,” experienced joint and stomach pain, and had difficulty breathing and remembering. Tr. at 1155-56. He indicated he no longer drove. Tr. at 1156. He said Mrs. R. took him to his medical appointments. Id.

b. Witness's Testimony

i. November 17, 2016

At the first hearing, Mrs. R. testified she had been married to Plaintiff for 16 years. Tr. at 34. She explained that before Plaintiff became sick, he was a hard worker, working two full-time jobs as a maintenance man in one hotel and a maintenance director in another. Tr. at 35. She stated Plaintiff had performed the same kind of work for approximately 20 years. Id.

Mrs. R testified Plaintiff visited his doctor due to feeling fatigued in late-2014. Id. She stated Plaintiff's doctor diagnosed him with diabetes and low testosterone and prescribed Axiron gel. Id. She said Plaintiff subsequently developed symptoms that included stomach problems, nausea, fatigue, pain, and slowed activity. Tr. at 36. She noted Plaintiff returned to the doctor, who indicated he was having an adverse reaction to Axiron gel. Id. She said the doctor ordered lab studies that showed elevated liver enzymes and referred Plaintiff to a rheumatologist. Id. Mrs. R. indicated Plaintiff's health continued to decline, as he developed abdominal pain, nausea, vomiting, dark urine, and jaundice. Id. She stated Plaintiff was hospitalized in March 2015 for liver failure. Tr. at 36, 38. She said Plaintiff went to the ER on two more occasions before he was transferred to MUSC. Id.

Mrs. R. noted Plaintiff's mental confusion and memory problems developed as his other symptoms progressed. Tr. at 38. She said Plaintiff began to exhibit forgetfulness, confusion, and irritability, whereas he had previously demonstrated quick and keen thinking skills. Id.

Mrs. R. testified she attended all of Plaintiff's doctors' visits and visited him every day that he was hospitalized. Tr. at 39. She stated Plaintiff was unable to inform his medical providers of his medical history. Id. She indicated Plaintiff's mental problems had worsened since their onset. Id. She said Plaintiff's depression was particularly bad, as he was no longer hopeful. Id.

Mrs. R. stated Plaintiff continued to have problems with bloating, joint pain, chest pressure, nausea, cramping, and abdominal pain. Id. She noted Plaintiff had recently been diagnosed with and prescribed medication for lupus. Id. She said Plaintiff also experienced a sticking pain in his hands, as well as “jumping and jerking” throughout the day due to diabetic nerve pain. Id. She indicated Plaintiff was “always hurting” and moved slowly due to pain throughout his body. Tr. at 40.

Mrs. R. testified Plaintiff's inability to remember his SSN was not surprising, as he had difficulty remembering important things. Id. She stated Plaintiff could not recall the dates and times of his doctors' visits or to take his medication on his own. Id. She indicated Plaintiff's mental confusion began in December 2014. Tr. at 44. She confirmed that Plaintiff had continued to be confused on a regular basis since then. Id. She explained that Plaintiff would attempt to respond to questions from his medical providers during visits, but that she would have to complete the responses because he could not. Tr. at 45.

Mrs. R. said Plaintiff spent most days in bed. Tr. at 40. She indicated Plaintiff's liver failure was not severe enough to require a liver transplant. Tr. at 40-41. She said Plaintiff had undergone multiple tests to determine the cause of his constant stomach pain and nausea, but none of the tests had shown a definitive cause. Tr. at 41. She stated Plaintiff's gastroenterologist had recommended additional testing, but he had been unable to pursue it because his insurance was cancelled. Tr. at 42-43.

Mrs. R. testified Plaintiff was diagnosed with lupus by his rheumatologist on June 30. Tr. at 46-47. She noted his doctor had prescribed medication for it. Tr. at 47. She stated Plaintiff's lupus caused inflammatory joint pain. Id.

ii. March 27, 2019

At the second hearing, Mrs. R. testified she had been married to Plaintiff for 18 years. Tr. at 1157. She stated Plaintiff's abdominal swelling and pain in his abdomen and joints had worsened since the prior hearing. Tr. at 1158. She indicated Plaintiff had difficulty walking and spent most of the time in their house. Tr. at 1159. She said Plaintiff experienced shortness of breath and instability. Id. She confirmed that Plaintiff continued to have difficulty with memory loss and confusion. Tr. at 1160.

Mrs. R. stated she had to assist Plaintiff in bathing, eating, and dressing due to his pain. Id. She said Plaintiff was “very depressed.” Id. She indicated Plaintiff did not yet meet criteria for a liver transplant. Tr. at 1161. She confirmed that Plaintiff had a driver's license, but noted he had not driven since around March 2015. Tr. at 1162. She said Plaintiff spent most days elevating his legs in a recliner to reduce swelling. Id. She stated Plaintiff watched television for an hour or two each day, but performed no household chores. Id. She confirmed Plaintiff was using a cane, but indicated it had not been prescribed by a doctor. Id. She noted Plaintiff's diabetes was uncontrolled, despite use of Metformin, due to complications related to liver disease. Tr. at 1163. She said Plaintiff's doctor would prescribe Lactalose when his ammonia level became elevated. Tr. at 1164. She stated Plaintiff only walked to and from the bathroom on a typical day. Id.

2. The ALJ's Findings

In his decision dated July 9, 2019, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019.

2. The claimant has not engaged in substantial gainful activity since March 24, 2015, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe combination of impairments: hepatitis, polyarthropathy, osteoarthritis of the left knee, cirrhosis, and depressive disorder (20 CFR 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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 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 work²as defined in 20 CFR 404.1567(b) and 416.967(b) except that he can frequently perform postural activities. The claimant can understand, remember, and carry out simple instructions.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on February 14, 1968 and was 47 years old, which is defined as a younger individual on the alleged disability onset date. He is currently an individual closely approaching advanced age (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because applying 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 CFR 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 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the Social Security Act, from March 24, 2015, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

Tr. at 1132-41.

2 The ALJ included the following footnote: “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds, as well as sitting, standing, or walking for 6 hours each in an 8-hour workday.” Tr. at 1135 n.4.

II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ denied Plaintiff procedural due process in admitting and relying on a report from Cooperative Disability Investigations Unit; and

2) the ALJ did not adequately address Plaintiff's physical and mental limitations in the RFC assessment.

The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process

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). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity (“SGA”); (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;³ (4) whether such impairment prevents claimant from performing PRW;⁴ and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

3 The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).

4 In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).

A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

B. Analysis

1. Reliance on CDIU Report

The record contains a summary report of investigation from the Cooperative Disability Investigations Unit (“CDIU report”) dated December 21, 2017. Tr. at 1503-15. An investigation was conducted at the request of South Carolina Disability Determination Services. Tr. at 1504. The investigator obtained records from the South Carolina Department of Motor Vehicles that showed Plaintiff renewed his driver's license on February 13, 2017, and that he had no restrictions on his license. Tr. at 1506. He discovered Plaintiff had seven vehicles registered in his name-three with valid tags and four with expired tags. Id. He noted Plaintiff reported owning only one of the seven vehicles on his SSI application. Tr. at 1507.

The investigator interviewed Plaintiff under the ruse of an ongoing investigation into another matter. Tr. at 1510. He observed Plaintiff burning leaves outside his home. Id. He noted a trailer in Plaintiff's yard that contained lawn equipment. Id. He stated Plaintiff stood and walked without difficulty. Id. He indicated Plaintiff completed a document at his request, but was unable to recall his SSN. Id. He represented Plaintiff “was a good historian of long-term facts speaking about his work history” and “a good historian of short-term facts speaking about his yard work” and “the kind of trees and grass in his yard.” Tr. at 1511.

The investigator interviewed an employee at a Circle K store, Witness #1. Id. Witness #1 reported Plaintiff “frequented the store on a regular basis” and had last been in the store a week-and-a-half prior. Id. He noted Plaintiff visited alone, paid in cash, had no obvious physical or mental limitations, and was friendly. Id.

The investigator interviewed a second employee of the same Circle K store, Witness #2. Tr. at 1512. Witness #2 reported he had last seen Plaintiff in the store during the prior month. Id. He stated Plaintiff usually visited the store “a couple times a week.” Id. He stated Plaintiff visited alone, appeared to have no physical or mental limitations, and was friendly and capable of carrying on a conversation. Id.

The investigator interviewed an employee of a Speedway convenience store, Witness #3. Id. Witness #3 considered Plaintiff a regular customer and noted he had last visited the store the week of the interview. Id. He indicated Plaintiff drove to the store and appeared to be alone, at times, while in the store. Id. He observed no physical or mental limitations and noted Plaintiff was friendly, able to carry on a conversation, and able to pay for items and receive change. Id.

The investigator interviewed a second Speedway employee, Witness #4. Tr. at 1513. Witness #4's reports were the same as those of Witness #3, except that Witness #4 did not observe how Plaintiff arrived at the store. Id.

The investigator interviewed an employee of Scotchman, Witness #5. Id. Witness #5 indicated Plaintiff had last visited the store during the prior week and came in infrequently. Id. He stated Plaintiff appeared to be alone, had no problem paying for items and receiving change, had no obvious physical or mental limitations, was friendly, and was capable of carrying on a conversation. Id.

The investigator interviewed an employee of a different Circle K store, Witness #6. Tr. at 1514. Witness #6 reported Plaintiff had last visited the store “a couple days” prior and shopped there “every now and then.” Id. He stated Plaintiff appeared to be alone, had no problem paying for items and receiving change, had no obvious physical or mental limitations, was friendly, and was capable of carrying on a conversation. Id.

Plaintiff argues the ALJ erred in placing undue emphasis on the CDIU report without providing him a meaningful opportunity to respond to it. [ECF No. 13 at 14-19]. He maintains the ALJ cited the CDIU report throughout his decision and gave it greater weight than the consultative examiners' opinions and Mrs. R.'s testimony. Id. at 14. He contends he received no meaningful notice of the investigation or the report's existence and had no meaningful opportunity to respond to it, as it was only placed in his record the day before the hearing and was not specifically referenced during the hearing. Id. at 14-15. He claims the Commissioner violated his procedural due process rights by failing to disclose the contents of the report, even though it was prepared 15 months prior to the hearing. Id. at 15-17. He asserts CDIU reports contain hearsay evidence and are otherwise inherently flawed. Id. at 17-19. He argues brief activities, including a ten-minute trip to the local convenience store, are not consistent with an ability to work eight hours a day, five days per week. Id. at 19. He further notes the report reflected his functioning 15 months prior to the second hearing. Id.

The Commissioner argues the ALJ properly considered the CDIU report. [ECF No. 14 at 16-19]. She maintains the ALJ did not violate Plaintiff's procedural due process rights, as the CDIU report appeared in the unexhibited electronic record and was referenced in other exhibits, providing Plaintiff and his counsel constructive notice of its existence at least four months prior to the hearing. Id. at 2-3, 16-18 (referencing notations to the CDIU report in the evidence of record section of the January 2018 initial disability determination explanation, summaries of the CDIU report in Drs. Hadley's, Lang's, Neboschick's, and Smolka's explanations, a January 2018 “Claim Communications” note with the subject “CDI Rationale,” a January 2018 Explanation of Determination (“EOD”), a reference to the CDIU report as evidence of record in the April 2018 Notice of Reconsideration, and ECF No. 13-1 at 10 (showing “CDI Investigation Report-ROI” dated 12/21/2017, but indicating no exhibit number)). She further contends Plaintiff's counsel failed to object to any of the exhibits, despite being advised that the record contained Exhibits 1 through 29F, which included the CDIU report at Exhibit 23F and a Determination of Fraud at Exhibit 29F, and requesting and being granted additional time to complete the record. Id. at 18-19. She asserts the record refutes Plaintiff's claim that he lacked knowledge of or access to the CDIU report prior to the hearing. Id. at 19.

In Flatford v. Chater, 93 F.3d 1296, 1303 (6th Cir. 1996), the Sixth Circuit addressed procedural due process, writing:

The procedural protection provided by the Fifth Amendment is in force whenever the United States is taking an individual's life, liberty or property. The guarantee of due process of law does not always prevent deprivations of life, liberty or property, but embodies the promise that no deprivation will occur without notice and fair hearing. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 31370 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950) (every deprivation of life, liberty or property must be “preceded by notice and opportunity for hearing appropriate to the nature of the case); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 94 L.Ed. 494 (1985) (stating that “[w]e have described ‘the root requirement' of the Due Process Clause as being ‘that an individual be given an opportunity for a hearing before he is deprived of any significant property interest'” (quoting Boddie v. Connecticut, 401 U.S. 371, 379, 401 U.S. 371, 379, 91 S.Ct. 780, 787, 28 L.Ed.2d 113 (1971)).

In evaluating whether a claimant was afforded due process, the court must consider:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Courts have relied on the Supreme Court's decision in Richardson v. Perales, 402 U.S. 398 (1971), to find claimants have a “property” interest in social security benefits for which they have not yet been determined to be qualified. See Flatford, 93 F.3d at 1303. Thus, Plaintiff had a property interest in his claim for benefits and in addressing the CDIU report insomuch as it affected his likelihood of realizing that property interest.

The Commissioner has an interest in preventing and addressing fraudulent claims for benefits, and the CDIU process is authorized in accordance with the Commissioner's investigative authority. Pursuant to 42 U.S.C. § 405(b)(1):

The Commissioner of Social Security is further authorized, on the Commissioner's own motion, to hold such hearings and to conduct such investigations and other proceedings as the Commissioner may deem necessary or proper for the administration of this subchapter. In the course of any hearing, investigation, or other proceeding, the Commissioner may administer oaths and affirmations, examine witnesses, and receive evidence.

Having identified Plaintiff's and the Commissioner's interests, the undersigned considers whether the ALJ deprived Plaintiff of his rights through the procedure by which the CDIU report was included in the record. See Mathews, 425 U.S. at 335. The regulations contain procedures for incorporating evidence into the record and for permitting claimants to review the evidence. In cases in which a hearing is scheduled before an ALJ, the claimant “may submit new evidence (subject to the provisions of § 404.935 [416.1535]), examine the evidence used in a making the determination or decision under review, and present and question witnesses.” 20 C.F.R. §§ 404.929, 416.1429. Pursuant to 20 C.F.R. § 404.951(b) and § 416.1451(b):

All evidence upon which the administrative law judge relies for the decision must be contained in the record, either directly or by appropriate reference. The official record will include the applications, written statements, certificates, reports, affidavits, medical records, and other documents that were used in making the decision under review and any additional evidence or written statements that the administrative law judge admits into the record under § 404.929 [§ 416.1429] and 404.935 [§ 416.1435]. All exhibits introduced as evidence must be marked for identification and incorporated into the record. The official record of your claim will contain all of the marked exhibits and a verbatim recording of all testimony offered at the hearing. It will also include any prior initial determinations or decisions on your claim.

The CDIU report was included in the record in accordance with 20 C.F.R. § 404.951(b) and § 416.1451(b), as it appeared in the official record at Exhibit 23F. Nevertheless, Plaintiff maintains the SSA denied him access to the CDIU report because it did not exhibit it in a timely manner such that he could have reviewed and objected to it prior to the hearing.

A review of the record shows the ALJ placed significant emphasis on the CDIU report, repeatedly referencing it throughout his decision. In explaining his assessment of mild limitations in adapting or managing oneself and moderate limitations in understanding, remembering, or applying information and concentrating, persisting, or maintaining pace, the ALJ noted Plaintiff's abilities “to shop independently, drive, apply for and obtain a renewed driver's license, burn leaves outside, do yard work and identify the kinds of trees in his yard, and engage with a variety of store employees (Exhibit 23F).” Tr. at 1133-34. He cited Plaintiff's abilities “to shop independently, drive, live with others, and engage with a variety of store employees (Exhibit 23F)” in concluding Plaintiff had no limitation in interacting with others. Tr. at 1133. The ALJ subsequently cited the CDIU report in addressing Plaintiff's and Mrs. R's statements as to his symptoms and explaining the RFC assessment. See Tr. at 1136, 1138.

Although the ALJ placed significant emphasis on hearsay evidence within the CDIU report, Plaintiff's challenge of the report as inadmissible based on hearsay and unreliability lacks merit. “Evidence may be received at any hearing before the Commissioner of Social Security even though inadmissible under rules of evidence applicable to court procedure.” U.S.C. § 405(b)(1). The regulations further provide: “Subject to the provisions of § 404.935 [§ 416.1435], the administrative law judge may receive any evidence at the hearing that he or she believes is material to the issues, even though the evidence would not be admissible in court under the rules of evidence used by the court.” 20 C.F.R. §§ 404.950(c), 416.1450(c). Because evidence is not subject to the admissibility rules that govern court proceedings, ALJs may accept and rely on hearsay evidence, including the accounts within CDIU reports. See Alaa M.K.A. v. Saul, 2021 WL 3023743, at *5 (D. Minn. July 1, 2021); C/A No. 20-106-SRN-HB, adopted by 2021 WL 3022699 (D. Minn. July 16, 2021); St. Clair v. Berryhill, C/A No. 3:16-5841-TLF, 2017 WL 3866841, at *7 (W.D. Wash. Sept. 5, 2017); Byerly v. Astrue, C/A No. 1:09-cv- 138-RWS-MLM, 2010 WL 4905510 (E.D. Miss. Oct. 29, 2010), adopted by 2010 WL 4901791 (E.D. Mo. Nov. 24, 2010). Therefore, under the applicable rules and regulations, the CDIU report was relevant evidence to be incorporated into the record.

Nevertheless, a claimant generally should be afforded the opportunity to address the evidence in the CDIU report. In Hinck v. Colvin, 90 F.Supp.3d 1217, 1221 (D. Kan. 2015), the court found “[t]he ALJ's acceptance of the CDI report, and his reliance upon that report without first providing notice to plaintiff, and an opportunity to be heard on the issue, constitutes a denial of procedural due process, and requires remand for a hearing at which Plaintiff may refute, explain, deny, or rebut the CDI report.”

Although procedural due process requires a claimant be afforded an opportunity to address all the evidence in his claim, he may waive this right through his inaction. In Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court considered a claimant's challenge to an ALJ's reliance on written reports by physicians who examined him based on the reports' hearsay character, his inability to cross-examine the physicians, and the presence of opposing direct medical testimony and testimony by the claimant. The court found such reports may constitute substantial evidence supportive of the ALJ's finding where the claimant failed to exercise his right to subpoena the physicians and avail himself of the opportunity for cross-examination. Id.

To support his claim that the SSA deprived him of the right to review and object to the CDIU report prior to the hearing, Plaintiff included lists of case documents that appeared in his electronic folder with last changes noted as of November 23, 2018 and March 20, 2019. [ECF No. 13-1 at 6-10, 11-16]. A “CDI Investigation Report-ROI” dated December 21, 2017, consisting of 13 pages, was listed among the case documents, but was not assigned an exhibit number as of November 23, 2018. See id. at 6. Careful review of this list of case documents would have allowed Plaintiff to discover the existence of the CDIU report. However, Plaintiff claims the CDIU report did not appear on the list of case documents in his electronic folder updated on March 20, 2019, and on which his attorney relied in preparing for the hearing. [ECF No. 15 at 2]. This is confirmed upon review of the March 20, 2019 list of case documents, but it is not evident from this or any other document when the CDIU report was exhibited.

While the undersigned sympathizes with Plaintiff's position and agrees that one would reasonably expect a report submitted in December 2017 and included in the case documents updated November 23, 2018, to have been exhibited or at least referenced one week prior to the hearing, the procedures in the Hearing, Appeals, and Litigation Law Manual (“HALLEX”)⁵do not so mandate. Pursuant to HALLEX I-2-1-20: “Prior to the hearing, hearing office (HO) staff will select, arrange in order, and mark proposed exhibits . . . HO staff will also prepare a list of all the proposed exhibits (‘proposed exhibit list') and associate a copy of the proposed exhibit list with the claim(s) file.” Thus, HALLEX only requires that the exhibits be selected, marked, and arranged and that the proposed exhibit list be prepared “[p]rior to the hearing.” HALLEX I-2-1-20. As discussed in further detail below, the CDIU report was selected, marked, arranged, and included on the list of proposed documents prior to the hearing.

5 HALLEX “defines procedures for carrying out policy and provides guidance for processing and adjudicating claims at the Hearing, Appeals Council, and Civil Action levels.” HALLEX § I-1-0-1.

The absence of a hardline rule specifying a timetable for selecting, marking, and arranging documents and including such documents on a proposed exhibit list is not surprising, given that the claimant may submit records up to five business days prior to the hearing without explanation and fewer than five days prior to the hearing if the claimant actively and diligently sought evidence from a source, but received it fewer than five days prior to the hearing. See 20 C.F.R. §§ 404.935, 416.1435. Thus, it is not out of the ordinary for the selecting, marking, and arranging of documents within the record and the preparation of a proposed exhibit list to occur in close proximity to the hearing date. If the court were to find that procedural due process requires that exhibits be selected, arranged, marked and a proposed exhibit list be prepared within a specified period prior to a hearing, it would create an unworkable standard for hearing office staff and potentially compromise claimants who seek to admit additional evidence prior to a hearing. Therefore, the undersigned cannot find that admission of the CDIU report into the record within close proximity to the hearing date violated Plaintiff's procedural due process rights.

Plaintiff presents a valid argument that the Commissioner failed to comply with the provision in HALLEX for notifying him of the existence of the CDIU report.⁶ [ECF No. 15 at 2]. Pursuant to HALLEX I-2-10-2, if the file contains evidence from CDIU, the hearing office is to notify the claimant of the existence of the evidence “by modifying the standard acknowledgment letter as follows: Your file contains investigative evidence submitted by the [CDIU] of the Social Security Administration. You may see this evidence, as well as the other evidence in your file, if you decide to look at the file.” A review of the request for hearing acknowledgment letters dated May 23, 2018, and July 3, 2018, shows they do not include this language. See Tr. at 1312-14, 1325-27.

6 Plaintiff raised this issue for the first time in his reply brief. Therefore, the Commissioner was not afforded an opportunity to respond to it.

The Supreme Court has stated the SSA's “Claims Manual [is] not a regulation,” has “no legal force,” and “d[oes] not bind the SSA.” Schweiker v. Hansen, 450 U.S. 785, 789 (1981). However, it subsequently recognized that “[w]hile these administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect.” Wash. State Dep't of Soc. & Health Servs. V. Guardianship Estate of Keffeler, 537 U.S. 371, 385 (2003) (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944); United States v. Mead Corp., 533 U.S. 218, 228, 234-34 (2001)). Appellate courts have reached differing conclusions as to whether failures to follow provisions outlined in SSA's internal manuals require remand. See Mack v. Colvin, 2014 WL 1366030, at *4 (D.S.C. Mar. 20, 2014) (citing Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000); Bordes v. Comm'r, 235 Fed.Appx. 853, 859 (3d Cir. 2007); Moore v. Apfel, 216 F.3d 864, 868-69 (9th Cir. 2000); Calhoun v. Astrue, 2010 WL 297823 (W.D.V.A. Jan. 15, 2010)). At the very least, a claimant must have been prejudiced by the failure to follow the procedures outlined in the SSA manual in order for the failure to warrant remand. See Newton, 209 F.3d at 448; Brantley v. Commissioner of Social Sec., 637 Fed.Appx. 888, 89496 (6th Cir. 2016); Lee v. Colvin, 631 Fed.Appx. 538 (10th Cir. 2015).

Although the undersigned concedes Plaintiff would have been afforded an opportunity to learn of the existence of the CDIU report if the appropriate language had been included in the hearing acknowledgment letters, the hearing office's failure to follow the procedure in HALLEX did not prejudice Plaintiff, as he would not have been entitled to separate notice of the existence of the CDIU report if it had been entered into the record after his case was transferred to the hearing office. See HALLEX I-2-10-2 (providing that if a referral was made to the CDIU, but no evidence appears in the file prior to its transfer to the hearing office, the hearing office is to “acknowledge receipt of the request for hearing using the usual procedures” in HALLEX I-2-0-20). If an ALJ receives information from the CDIU after the request for hearing has been filed, he “must give the claimant and appointed representative, if any, an opportunity to review the evidence before the hearing,” if he proposes to enter the evidence into the record as an exhibit. HALLEX I-2-10-3. However, the hearing office is not required to provide any written notification of evidence from the CDIU under this circumstance. Thus, the fact that the hearing office “acknowledge[d] receipt of the request for hearing using the usual procedures” in HALLEX I-2-0-20 did not prejudice Plaintiff, as the failure to include the sentences notifying him of the existence of the CDIU report merely placed him in the same position as any claimant whose CDIU report was added after the case was transferred to the hearing office. The CDIU report was exhibited prior to the hearing, meaning Plaintiff had the opportunity to review the evidence as directed by HALLEX I-2-10-3.

Multiple documents throughout the record provided Plaintiff constructive notice of the existence of the CDIU report. It is referenced in several records that were exhibited as of November 23, 2018, and continued to be exhibited as of March 20, 2019, and a review of those exhibits should have reasonably placed Plaintiff on notice of its existence.

Included in the case documents were a Disability Determination Explanation (“DDE”) dated January 10 and an EOD dated January 11, 2018. See ECF No. 13-1 at 6 (reflecting Exhibits 12A (corresponding to Tr. at 11901202) and 13A⁷ (corresponding to Tr. at 1216). The DDE also appears in the exhibit list with a last change of March 20, 2019. See ECF No. 13-1 at 12 (reflecting Exhibit 12A (corresponding to Tr. at 1190-1202)). The January 10, 2018 DDE references “CDI Investigation Report” received December 21, 2017, as part of the evidence of record and discusses “CDI Rationale,” noting:

7 This record appears as Exhibit 16A in the final exhibit list. [ECF No. 12-1 at 4].

His current presentation is inconsistent with the prior file medical information. The claimant has a valid unrestricted driver's license with renewal 2/13/17. Due to lack of insurance, he is not in current treatment. The claimant was directly interviewed with investigators in the process of landscaping his yard. He was [able] to answer all questions posed to him and his mood was upbeat and positive. The claimant had to navigate stairs to get in and out of his home and did not show any deficiencies in ambulation or gait.

Tr. at 1191, 1193. Dr. Lang noted “CDI-VA 20/40, able to do yard work w/o assistance, able to shop/drive by self” and “[f]raud was found in CDI investigation of 12/2017, which disregards many of the findings-inability to ambulate and visual acuity and other in the IMFP of 10/16/17” in explaining her rationale for the physical RFC assessment. Tr. at 1198. Dr. Hadley noted “12/21/17 CDI: active DL. Gait nml. Good historian of short-term and longterm facts. AOx3, very friendly and completed documents. Shops alone. No mental or physical limitations noted per 3Ps. Emphasis given to objective 3P evidence per recent CDI.” Tr. at 1195. She also wrote: “No evidence to support any Neurocog D/O per CDI and objective MER”; “No significant ADL limitations noted per CDI”; and “Clmt's presentation at recent CME appears to be inaccurate representation of his actual fxn, as clmt with no evidence of significant mental/physical limitations per CDI. Presentation at CME not supported by CDI.” Id. The EOD noted “[t]he following evidence, listed with receipt date, was used to decide this claim” and lists “CDI Investigation Report, 12/21/17.” Tr. at 1218.

The case documents sections last changed on November 23, 2018, and March 20, 2019, include a second DDE dated April 13, 2018. See ECF No. 131 at 6 (referencing Exhibits 18A (corresponding to Tr. at 1224-38) and 19A (corresponding to Tr. at 1239-53))⁸; ECF No. 13-1 at 12 (referencing Exhibits 18A and 19A). The DDEs reference “CDI Investigation Report” received December 21, 2017, as a source of evidence in the evidence of record section. Tr. at 1227, 1241-42. Under “Reconsideration Analysis” are the words “CDI in file.” Tr. at 1229, 1244. Dr. Neboschick referenced the CDIU report in explaining the degree of impairment he assessed in the areas of mental functioning pursuant to the PRT. Tr. at 1230, 1245. Dr. Smolka cited the CDIU report in explaining the physical RFC assessment. Tr. at 1233-34, 1248-49. She wrote: “CDI investigation noted current driver's license. Clmt was noted to have several vehicles registered in his name, three of which had current tags, 4 with expired tags. No indication from other CDI findings/witness observations to support vision deficits projected at CE.” Tr. at 1234, 1249. She also wrote: “Msk Initial findings documented above including presentation at 10/17 CE and subsequent CDI investigative findings . . . CDI observations/witness observations . . . no problems walking, standing.” Id. She noted: “No substantiating evidence from CDI investigation for dementia.” Id. She indicated:

8 These records appear as Exhibits 20A and 21A in the final exhibit list. See ECF No. 12-1 at 4.

Cmt's impairments and deficits projected addressed above. Given the relative recency of CE and of the CDI investigation 12/17 significant progression of cmt's impairments would not be expected and not reflected in 2/18 pc clinic visit. With respect to

requirement for an assistive device rpted in FR CDI investigative findings documented above. Issue of significant sx amplification indicated.

Id. Thus, much of the information in the CDIU report was addressed in the January and April 2018 DDEs, and review of those exhibited documents should have reasonably placed Plaintiff on notice of the existence of the CDIU report and its contents.

In addition, Plaintiff's counsel declined to object to the proposed exhibits, which included the CDIU report. The second hearing transcript reflects the following:

ALJ: This is a hearing in the case of Darriel R[] and we're here for a hearing [INAUDIBLE] remanded by District Court for additional proceedings. Ms. Whitten, do you have any objections to any of the exhibits that are in the file?

ATTY: No objections.

(Exhibits 1 through 27A, 1 through 33B, 1 through 26D, 1 through 26E and 1 through 29F, previously identified, were received into evidence and made part of the record.)

Tr. at 1154. The CDIU report appears at Exhibit 23F, falling within the records identified as exhibits. See Tr. at 1503-15. Despite the assertion of Plaintiff's attorney that she relied on the exhibit list last changed on March 20, 2019, which included Exhibits 1-25A, 1-32B, 1-24D, 1-24E, and 1-21F, ECF No. 13-1 at 11-16, she did not request that the ALJ specifically identify the additional two documents added to the “A” section, one document added to the “B” section, two documents added to the “D” section, two documents added to the “E” section, and eight documents added to the “F” section of the record prior to declining to object. See Tr. at 1154.

Plaintiff's attorney also failed to take affirmative steps to address the CDIU report after the hearing, despite the fact that the record remained open. During the hearing, Plaintiff's attorney indicated records from Waccamaw Primary Care remained outstanding, and the ALJ agreed to hold the record open for 14 days for submission of those records. See id. A paralegal in Plaintiff's attorney's office contacted the ALJ on April 9, 2019, to request the record remain open for an additional 20 days, as she had not received the records from Waccamaw Primary Care. Tr. at 1479. Plaintiff's attorney did not object to the CDIU report in this letter. See id. The paralegal submitted a follow up letter on April 19, 2019, informing the ALJ that there were no additional records forthcoming, “submit[ting] that the record [was] complete,” and requesting that the ALJ “make a decision.” Tr. at 1480. She again declined to address the CDIU report. See id.

Although Plaintiff argues fervently to the contrary, the evidence shows he had constructive notice of the CDIU report, as it was referenced in exhibits that were included in the record on November 23, 2018, and March 30, 2019, was arranged and marked prior to the hearing, was included among the evidence admitted into the record without his attorney's objection during the hearing, and was available for review after the hearing, and before the ALJ closed the record. Plaintiff failed to avail himself of the opportunity to subpoena the investigators prior to the hearing or to object to the CDIU report before, during, or after the hearing, despite constructive notice of its existence.

This case is distinguishable from Hinck because, unlike the CDIU report in that case, the CDIU report in this case was prepared and incorporated into the record prior to the hearing and referenced in the exhibits the ALJ noted at the beginning of the hearing. As relevant to this case, in Richardson v. Perales, the court noted in considering the issue that “[n]otice was given” to the claimant, as “[t]he physicians' reports were on file and available for inspection by the claimant and his counsel. And the authors of those reports were known and were subject to subpoena and to the very cross-examination that claimant asserts he has not enjoyed.” Id. at 407.

Although the circumstances differ somewhat, the undersigned finds the following language from Burgin v. Berryhill, 2017 WL 4249729, at *7 (W.D. Okla. Sept. 1, 2017), instructive to the case at hand:

“The fundamental requirement of due process is the opportunity to be heard at meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotation marks omitted). Plaintiff was given the opportunity to be heard-and specifically to object to any exhibits-at her administrative hearings, and was represented by counsel at each hearing. Plaintiff had several chances to challenge the contents of

the CDI Unit report, yet did not avail herself of any of them. Such failure by Plaintiff does not constitute a denial of due process by the Commissioner. See Glass v. Shalala, 43 F.3d 1392, 1396-97 (10th Cir. 1994) (finding no due process violation when plaintiff's attorney was given opportunity to cross-examine witness but chose not to); Rainwater v. Astrue, No. 09-CV-486-PJC, 2011 WL 213460, at *9 (N.D. Okla. 2011) (“Two hearings, with counsel present and given the opportunity to develop the evidence at the hearings, certainly satisfy procedural due process.”).

For the foregoing reasons, the undersigned finds Plaintiff was not denied procedural due process through the inclusion in the record of the CDIU report. To the extent Plaintiff's argument as to the ALJ's consideration of the CDIU report overlaps with his argument as to the RFC assessment, the undersigned considers it in addressing the next issue.

2. RFC Assessment

Plaintiff argues the ALJ's RFC assessment is not supported by substantial evidence. [ECF No. 13 at 19-22]. He maintains the evidence does not show that he could perform a nearly full range of light work. Id. at 19. He claims the ALJ did not explain how the restriction to simple work accommodated his moderate limitations in understanding, remembering, or applying information and concentrating, persisting, or maintaining pace. Id. at 20. He asserts that even if the CDIU report were accurate, the ALJ did not explain how abilities to visit a convenience store, burn leaves in his yard, and hold a conversation about trees and grass demonstrated his ability to perform light work for 40 hours per week. Id. at 21-22.

The Commissioner argues substantial evidence supports the ALJ's RFC assessment. [ECF No. 14 at 20-25]. She maintains the ALJ appropriately considered Plaintiff's subjective statements and testimony, as well as Mrs. R.'s statements and testimony and a report from Susan Carolina,⁹ but noted evidence that contradicted their reports. Id. at 20-21, 23. She contends the ALJ explained how the medical evidence supported the restrictions in the RFC assessment, but indicated no additional limitations. Id. at 21-22. She asserts the ALJ discussed the medical opinions, prior administrative medical findings, and consultative examinations and explained his reasons for adopting and incorporating some of the findings and assigning only partial or little weight to others. Id. at 22-23. She claims the ALJ appropriately explained that he found Plaintiff to have a moderate limitation in concentration, but no significant limitation in persistence or pace, and accounted for the limitation by restricting him to jobs that required no more than understanding, remembering, and carrying out simple tasks. Id. at 24.

9 Ms. Carolina identified herself as a registered nurse and patient advocate in a function report she completed on Plaintiff's behalf. Tr. at 1462. In a separate report, Ms. Carolina is indicated as a “Friend/Neighbor.” Tr. at 1465.

If a claimant is not engaging in SGA and has at least one severe medically-determinable impairment that does not meet a listing, the ALJ is required to assess his RFC to determine whether he can engage in work activity. A claimant's RFC represents the most he can still do, despite limitations imposed by his impairments and symptoms. 20 C.F.R. §§ 404.1545(a), 416.945(a). The RFC assessment must be based on all the relevant evidence in the case record. SSR 96-8p, 1996 WL 374184, at *2. Such evidence includes the claimant's medical history; medical signs and laboratory findings; the effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication); reports of ADLs; lay evidence; recorded observations; medical source statements; effects of symptoms, including pain, that are reasonably attributed to a medically-determinable impairment; evidence from attempts to work; need for a structured living environment; and work evaluations, if available. Id. at *5. The ALJ must be mindful of the claimant's ability to meet the physical, mental, sensory, and other requirements of work on a regular and continuing basis, meaning “8 hours a day, for five days a week, or an equivalent work schedule.” 20 C.F.R. §§ 404.1545(a) (4), (b), 416.945(a)(4), (b); SSR 96-8p, 1996 WL 374184, at *1.

“Under the regulations implementing the Social Security Act, an ALJ follows a two-step analysis when considering a claimant's subjective statements about impairments and symptoms.” Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (citing 20 C.F.R. § 404.1529(b), (c)); see also 20 C.F.R. § 416.929(b), (c). “First, the ALJ looks for objective medical evidence showing a condition that could reasonably produce the alleged symptoms.” Id. at 866 (citing 20 C.F.R. § 404.1529(b)); see also 20 C.F.R. § 416.929(b). If the ALJ concludes the impairment could reasonably produce the symptoms the claimant alleges, he is to proceed to the second step, which requires him to “evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's ability to perform basic work activities.” Id. (citing 20 C.F.R. § 404.1529(c); see also 20 C.F.R. § 416.929(c).

The ALJ is not permitted to “evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled.” SSR 16-3p, 2016 WL 1119029. If the evidence supports a finding that the claimant's medically-determinable impairments could reasonably be expected to cause the symptoms he alleges, he may be “entitled to rely exclusively on subjective evidence to prove” his symptoms are “so continuous and/or so severe that [they] prevent [him] from working a full eight hour day.” Hines v. Barnhart, 453 F.3d 559, 565 (4th Cir. 2006).

The more consistent the claimant's statements about the intensity, persistence, and limiting effects of his symptoms are with the objective medical evidence and other evidence of record, the more likely the ALJ will find those symptoms reduce his capacity to perform work-related functions. SSR 16-3p, 2017 WL 5180304, at *10. The second determination requires the ALJ to consider “whether there are any inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence, including [the claimant's] history, the signs and laboratory findings, and statements by [the claimant's] medical sources or other persons about how [his] symptoms affect [him].” 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Other evidence relevant to evaluation of the consistency between the claimant's statements and the other evidence includes: (1) the claimant's ADLs; (2) the location, duration, frequency, and intensity of the claimant's pain or other symptoms; (3) any factors that precipitate or aggravate the claimant's pain or other symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; (6) any measures the claimant uses or has used to relieve pain or other symptoms (e.g., lying flat on her back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (7) any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

“A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (citing Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984). “The record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence. Id. (citing Hines v. Bowen, 872 F.2d 56, 59 (4th Cir. 1989)). “[A] proper RFC analysis has three components: (1) evidence; (2) logical explanation; and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ is required to provide a narrative discussion explaining the restrictions included in the RFC assessment and referencing specific medical facts, such as medical signs and laboratory evidence, and non-medical evidence, including ADLs and observations. SSR 96-8p, 1996 WL 374184, at *7. The ALJ “must explain how any material inconsistencies or ambiguities in the case record were considered and resolved.” Id. “[R]emand may be appropriate where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015).

The ALJ found Plaintiff had the RFC to perform light work, requiring frequent postural activities and understanding, remembering, and carrying out simple instructions. Tr. at 1135. He noted having considered Plaintiff's symptoms and the opinion evidence in assessing the RFC. Id. He summarized Plaintiff's and Mrs. R.'s testimony. Id. He found Plaintiff's impairments could reasonably be expected to cause some of the alleged symptoms, but that his and Mrs. R.'s statements concerning the intensity, persistence, and limiting effect of his symptoms were not entirely consistent with the medical and other evidence. Tr. at 1136. The ALJ explained:

For example, in a Cooperative Disability Investigation (“CDI”), dated December 21, 2017, the claimant was described by witnesses as able to shop independently, buy cigars, walk with a normal, unassisted gait, and drive. The claimant could carry on a normal conversation with store staff, as well as pay for his purchases without difficulty. Notably, the claimant requested his driver's license renewal on February 13, 2017. To the question on the application that read, “Do you have any mental or physical conditions preventing you from safely operating a motor vehicle at this time,” the claimant answered “no.” Additionally, two SLED Special Agents interviewed the claimant at his residence on December 14, 2017. The claimant was standing outside of his residence burning leaves. No mobility device was seen and the claimant's gait was normal. Of particular note, on the claimant's Supplemental Security Income application he completed, he reported owning a Chrysler 200 sedan, but failed to mention the 6 other vehicles he owns (Exhibit 23F).

Tr. at 1136.

The ALJ summarized the medical evidence, discussing Plaintiff's initial presentation to the hospital with symptoms of abnormal liver function in March 2015, liver biopsy results, hospitalizations in April and May 2015, findings of reduced ejection fraction on echocardiogram with subsequent improvement, improvements in liver function tests, a referral to rheumatology for high sedimentation rate and questionable autoimmune hepatitis, x-rays showing scattered degenerative changes to the left wrist and tricompartmental arthritis in the left knee, and presentations with complaints of back, left knee, left wrist, and abdominal pain. Tr. at 1136-38. He discussed findings from Drs. Spivey's and Jones's consultative exams. Tr. at 1139.

The ALJ considered the medical opinions. Tr. at 1137, 1138-40. He acknowledged Dr. Willner's August 2015 opinion that Plaintiff “was not able to return to work,” but gave it little weight, as “it appear[ed] to be a temporary restriction.” Tr. at 1137. He “generally agree[d]” with the opinions of the first two state agency medical consultants that Plaintiff “was limited to light work activity with frequent climbing, stooping, kneeling, crouching and crawling, and unlimited balancing.” Tr. at 1138. He gave little weight to Dr. Spivey's opinions that Plaintiff “would have difficulty understanding and performing simple work tasks in the workplace” and “would display difficulty relating well to others, due to his reported dysphoria,” as the opinions were “not consistent with the other evidence of the record.” Tr. at 1139. He stated there was “no support in the evidence of record” for the diagnosis of dementia Dr. Jones indicated. Id. The ALJ accorded little weight to Dr. Frye's statement that Plaintiff was “unable to be employed.” Id. He agreed with the exertional limitations assessed by the state agency medical consultants who reviewed Plaintiff's claim pursuant to the second application, but noted he had “assessed greater postural limitations to account for possible aggravating factors.” Id. He stated he had accorded partial weight to the opinions of the state agency psychological consultants in finding Plaintiff was limited to understanding, remembering, and carrying out simple instructions and making simple work-related decisions. Id. Finally, he found Dr. Frye's March 13, 2018 opinion as to Plaintiff's mental status “len[t] support for the claimant not having a severe mental impairment particularly in light of there being no mental health treatment records in the file (Exhibit 25F).” Tr. at 1140.

The ALJ subsequently discussed third party statements provided by Mrs. R. and Ms. Carolina. Tr. at 1140. He noted he gave “little weight” to Mrs. R.'s statements, as they were “not consistent with the medical evidence in the record,” there was “no[] support for the claimant being dependent upon others for his personal needs tasks,” and the function reports were “in stark contrast to the information contained in the CDI report.” Id. He gave no weight to Ms. Carolina's statement. Id. He acknowledged that she had identified herself as a “registered nurse” and “patient advocate,” but stated “[s]he did not report what medical practice she is employed by, or that she has a current nursing license.” Id. He further wrote: “She stated . . . that the claimant diagnosed himself with liver failure after researching his symptoms.” Id. He indicated “the veracity” of her statements could not “be assured” and “the CDI contradict[ed] them.” Id.

The ALJ provided the following summary to support the assessed RFC:

“[T]he above residual functional capacity assessment is supported by the weight of the evidence of record. While the record is replete with the claimant's subjective complaints, his physical and mental status examinations were generally unremarkable. There are no mental health treatment records in the file. The claimant's liver function recovered by November 2015, but for low albumin. By April 2016, his liver function tests were normal. Lactulose was begun in April 2018, due to an elevated serum ammonia level. He has not followed up with the MUSC liver clinic for years. Accordingly, a finding that the claimant was incapable of all work activity is not supported by the evidence of record as a whole, for the reasons explained above.

Id.

The undersigned agrees with Plaintiff that the brief observations in the CDIU report do not prove that he can perform light work over the course of an eight-hour workday and 40-hour workweek. Some courts have held that ALJs erred in relying on observations and lay opinions from CDIU reports to the exclusion of other evidence in assessing claimants' RFCs. See Virgil v. Saul, C/A No. 19-CV-1473-PKC, 2020 WL 5747278, at *10 (E.D.N.Y. Sept. 25, 2020); Holliday v. Colvin, 195 F.Supp.3d 1192 (D. Kan. 2016). However, the observations and findings within the CDIU report in this case refute much of the evidence that suggests Plaintiff could not perform light work on a regular and continuing basis. A review of the ALJ's decision shows that he appropriately considered the evidence in the CDIU report in combination with Plaintiff's medical providers' observations during exams, the objective test results, and the medical and lay opinions of record in assessing the RFC for light work in concluding Plaintiff was capable of performing such work over the course of an eight-hour workday and 40-hour workweek.

The ALJ did not err in citing evidence within the CDIU report as being in direct contrast to Plaintiff's, Mrs. R.'s, and Ms. Carolina's statements as to the intensity, persistence, and limiting effects of Plaintiff's pain and other symptoms. Mrs. R. completed an adult function report on Plaintiff's behalf on June 22, 2017. Tr. at 1429-36. She reported that Plaintiff performed no household chores due to pain, fatigue, nausea, depression, and confusion. Tr. at 1431. She indicated he only went outside if he was attending “appointments or hearings.” Tr. at 1432. She represented that he traveled by riding in a car and required help walking due to dizziness and pain in his legs and body. Id. She stated Plaintiff did not drive, as he was too sick and confused. Id. She indicated Plaintiff did not shop for items and was unable to count change due to pain and mental confusion. Id. She reported Plaintiff could walk only two steps before having to rest for “maybe 2 minutes.” Tr. at 1434. Ms. Carolina indicated in an adult function report that Plaintiff could not walk without a cane or walker. Tr. at 1455. She indicated Plaintiff did no indoor or outdoor chores. Tr. at 1457. She noted Plaintiff only went outside when he had doctors' appointments because he was unable to ambulate. Tr. at 1458. She stated Plaintiff could not drive due to poor control of his feet and legs, poor vision, and memory loss. Id. She represented Plaintiff could walk approximately three feet before needing to rest for 30 to 50 minutes due to extreme shortness of breath. Tr. at 1460. She noted Plaintiff used a cane at all times. Tr. at 1461. Plaintiff testified he had difficulty breathing and remembering and no longer drove. Tr. at 1155-56. Mrs. R. testified that Plaintiff had not driven since around March 2015. Tr. at 1162. She said Plaintiff spent most days elevating his legs in a recliner to reduce swelling. Id. She stated Plaintiff performed no household chores. Id. She said Plaintiff only walked to and from the bathroom on a typical day. Tr. at 1164.

The ALJ noted the following in support of his finding that Plaintiff's ADLs were inconsistent with these allegations, but fully consistent with the assessed RFC:

The evidence of record indicates that despite the claimant's complaints and allegations, he has admitted that he was able to shop independently, drive, apply for and obtain a renewed driver's license, burn leaves outside, do yard work and identify the kinds of trees in his yard, engage with a variety of store employees, activities, which generally reveal functioning at a greater level than alleged (Exhibit 23F).

Tr. at 1138.

The ALJ did not reject medical opinions supporting additional restrictions based solely on their inconsistency with the CDIU report. He found Dr. Spivey's opinion was inconsistent with the other evidence, which included not only the CDIU report, but unremarkable mental status exams (“MSE”) on May 15, 2015, July 11, 2016, and March 13, 2018, evidence that Plaintiff's confusion resolved with daily Lactulose, and Dr. Frye's opinion as to Plaintiff's mental functioning. See generally Tr. at 1136-40. He rejected Dr. Jones's belief that “there was some dementia present” based on the same evidence, and noted she had described Plaintiff as “only partially cooperative.” Tr. at 1139. He accorded little weight to Dr. Frye's impression that Plaintiff was “unable to be employed” because it was inconsistent with treatment notes documenting normalized liver function and it was unclear when the opinion was rendered. See id.

The ALJ relied on Plaintiff's ADLs as observed by the investigator and reported by witnesses, as well as the medical evidence in assessing the RFC for light work. He noted Plaintiff's abilities to shop independently, drive, burn leaves outside, and do yard work as signs of physical functioning. Tr. at 1138. He further referenced Plaintiff's medical providers' observations of grossly normal extremities with no appreciated pain on palpation and 5/5 motor strength in both legs on June 25, 2015, no peripheral edema on November 3, 2015, normal ambulation and motor strength, intact sensation, and normal reflexes on May 19, 2016, normal ambulation and no warmth or swelling in the left knee on June 30, 2016, and normal gait and station on July 11, 2016. Tr. at 1137-388. He noted improvement in Plaintiff's liver function to normal levels by April 2016 and a lack of follow up with the liver clinic for years. Tr. at 1140. He cited the state agency consultants' opinions that Plaintiff had the RFC to perform light work. Tr. at 1138, 1139.

The ALJ accounted for Plaintiff's moderate limitations in understanding, remembering, and applying information and concentrating, persisting, or maintaining pace through the provision in the RFC assessment for understanding, remembering, and carrying out simple instructions. The Fourth Circuit has explained that, in general, “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” because “the ability to perform simple tasks differs from the ability to stay on task” and “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Mascio, 780 F.3d at 638 (internal quotation omitted). This court subsequently explained a “limitation to simple, repetitive work primarily addresses the complexity of the work, not [the claimant's] ability to stay on task.” Jackson v. Berryhill, C/A No. 9:16-1560-TMC-BM, 2017 WL 1133253, at *7 (D.S.C. Mar. 17, 2017), adopted by 2017 WL 1105103 (D.S.C. Mar. 24, 2017) (citing Mascio, 780 F.3d at 328; Salmon v. Colvin, C/A No. 12-1209, 2015 WL 1526020, at *3 (M.D. N.C. Apr. 2, 2015)). However, as relevant to this case, the court also acknowledged in Mascio, 780 F.3d at 638, that an ALJ might be able to explain why a moderate limitation in concentration, persistence, or pace did not translate into a limitation in the RFC.

Here, the ALJ adequately explained why moderate limitations in understanding, remembering, or applying information and concentrating, persisting, or maintaining pace affected only the complexity of the work and not Plaintiff's ability to remain on task. He specified the following as to concentrating, persisting, or maintaining pace:

This category consists of three elements joined by the word “or.” Thus, it is possible to have a moderate limitation for a category when there is a moderate limitation in only one of the three elements. Based on a review of the record, I have determined that the major limitation is in concentration, with no significant limitation in the other two elements. This is consistent with the determination of the State Agency in the mental residual functional capacity assessment which found claimant limited to performing simple, routine repetitive tasks, but found no limitation for persistence or pace. Exhibits 7A and 20A.

Tr. at 1133 n.3. The ALJ further cited the following as supporting the restriction he included in the RFC assessment, but no additional restrictions: Plaintiff's abilities “to shop independently, drive, apply for and obtain a renewed driver's license, burn leaves outside, do yard work and identify the kinds of trees in his yard, and engage with a variety of store employees”; generally unremarkable MSEs; confusion that “cleared with daily lactulose”; Dr. Fritz's impression of normal mental status and indications that he had not assessed a mental diagnosis or recommended Plaintiff pursue psychiatric care; the state agency psychological consultants' opinions, and an absence of mental health treatment records. Tr. at 1133-34, 1136-40. Given this explanation, substantial evidence supports the ALJ's consideration of Plaintiff's moderate limitations in understanding, remembering, and applying information and concentrating, persisting, or maintaining pace in the RFC assessment.

For the foregoing reasons, the undersigned recommends the court find the ALJ adequately considered evidence as to the intensity, persistence, and limiting effects of Plaintiff's symptoms and thoroughly reconciled all the evidence in explaining the RFC assessment.

III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the Commissioner, but to determine whether his decision is supported as a matter of fact and law. Based on the foregoing, the undersigned recommends the Commissioner's decision be affirmed.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

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 901 Richland Street Columbia, South Carolina 29201

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).