Opinion
C/A No. 2:19-cv-02425-MGL-MGB
01-05-2021
JAMES HOWARD, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff James Howard ("Plaintiff") brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the "Administration") regarding his claim for Disability Insurance Benefits ("DIB") under title XVI of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that the Court vacate the Commissioner's decision and remand for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 43 years old on his alleged disability onset date of August 13, 2012. (R. at 30.) Plaintiff alleged disability due to, inter alia, obesity, sleep issues, back damage, and rotator cuff right shoulder damage. (R. at 197.) Plaintiff has past relevant work as a welder. (R. at 29.)
Plaintiff applied for DIB on June 1, 2015, alleging disability beginning August 13, 2012. (R. at 21.) His application was denied initially and on reconsideration. After a hearing before an Administrative Law Judge (ALJ) on March 12, 2018, the ALJ issued an unfavorable decision on June 7, 2018. (R. at 18-35.) The Appeals Council ("AC") denied Plaintiff's request for review. (R. at 1-7). In making the determination that Plaintiff was not entitled to benefits, the Commissioner adopted the following findings from the ALJ's decision:
(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2016.
(2) The claimant did not engage in substantial gainful activity during the period from his alleged onset date of August 13, 2012 through his date last insured of December 31, 2016 (220 CFR 404.1571 et seq.).
(3) Through the date last insured, the claimant had the following severe combination of impairments: morbid obesity, degenerative disc disease (DDD), and status post right rotator cuff-tear and arthroscopic repair (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, I find, that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567 (a) except that he cannot climb ladders, scaffolds, or ropes. The claimant can frequently climb ramps and stairs. He can occasionally stoop, crouch, kneel, and crawl. He can occasionally perform overhead reaching with his right arm. He must avoid concentrated exposure to extreme cold and excessive vibration. The claimant must avoid all exposure to moving machinery and unprotected heights. The work, which he can do, is limited to occupations which involve the performance of simple, routine, repetitive tasks. The claimant is further limited to occupations that do not require complex written communication.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on October 29, 1968 and was 48 years old, which is defined as a younger individual age 18-49, on the date last insured (20 CFR 404.1563).
(8) The claimant has a limited education and is able to communicate in English (20 CFR 404.1564).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, at any time from August 13, 2012, the alleged onset date, through December 31, 2016, the date last insured (20 CFR 404.1520(g)).
(R. at 23-31.)
Plaintiff subsequently filed a civil action in federal court to obtain judicial review of the unfavorable administrative decision. (Dkt. No. 1.) The matter was referred to the undersigned Magistrate Judge for a Report and Recommendation ("R&R") pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). "Disability" is defined in the Act as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant—considering his age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). ALJs can err in their findings by "cherry-picking" and "misstat[ing][and] mischaracterize[ing]" material facts. Arakas v. Comm'r, Soc. Sec. Admin., No. 19-1540, 2020 WL 7331494, at *10 (4th Cir. Dec. 14, 2020).
DISCUSSION
On appeal, Plaintiff contends that the ALJ erred in failing to properly evaluate several aspects of his disability claim. First, Plaintiff argues that the ALJ improperly questioned the Vocational Expert at Plaintiff's hearing. (Dkt. No. 11 at 22.) Specifically, Plaintiff argues that the ALJ did not solicit testimony from the Vocational Expert regarding alternative jobs that Plaintiff could perform, given his limitations. (Id.) Furthermore, Plaintiff submits that the ALJ failed to explain a discrepancy between the Dictionary of Occupational Titles ("DOT") and the Vocational Expert's opinions regarding Plaintiff's ability to perform alternate jobs. (Id. at 20.) Plaintiff argues that the DOT states that he cannot perform jobs the Vocational Expert ultimately suggested. (Id. at 21.) Second, Plaintiff argues that the ALJ improperly rejected the opinions of Plaintiff's treating physicians. (Id. at 23.) Plaintiff specifically asserts that the ALJ discounted the opinion of Brian Loskill, a physician assistant who treated Plaintiff and completed a questionnaire regarding Plaintiff's back and hand impairments. (Id. at 24.) Plaintiff asserts that the ALJ improperly concluded that Loskill's opinions "were beyond his expertise." (Id. at 25). Plaintiff further argues that the ALJ provided little explanation for rejecting Loskill's opinions other than conclusory statements. (Id. at 27.)
Upon review of the parties' arguments, the ALJ's decision, and the record as a whole, the undersigned finds that the ALJ's decision should be reversed. Thus, as set forth in greater detail below, the undersigned finds that the ALJ's decision is not supported by substantial evidence and therefore recommends that the Court reverse his decision.
I. Vocational Expert Testimony
Plaintiff argues that the ALJ erred by failing to solicit testimony from the vocational expert about alternate jobs Plaintiff could perform, and then erred by only using the Medical-Vocational Guidelines (the "Grids") to determine what alternate jobs were available to Plaintiff. (Dkt. No. 11 at 19-20.)
As the undersigned discussed supra, it is the Commissioner's burden to show that alternate jobs are available to plaintiffs, and this burden can be satisfied with vocational expert testimony. See Hall, 658 F.2d at 264. The "purpose of bringing in a vocational expert is to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). Furthermore, for a vocational expert's "opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (emphasis added).
To determine what alternate jobs are available to plaintiffs, ALJs also use the Grids to identify alternate jobs. In so doing, ALJs often encounter plaintiffs with nonexertional limitations. A nonexertional limitation is a "limitation that is present whether a claimant is attempting to perform the physical requirements of the job or not." Gory v. Schweiker, 712 F.2d 929, 930 (4th Cir.1983). Regarding such limitations, the Commissioner has stated:
Some examples of nonexertional limitations or restrictions include the following:20 C.F.R § 404.1569.
(i) You have difficulty functioning because you are nervous, anxious, or depressed;
(ii) You have difficulty maintaining attention or concentrating;
(iii) You have difficulty understanding or remembering detailed instructions;
(iv) You have difficulty in seeing or hearing;
(v) You have difficulty tolerating some physical feature(s) of certain work settings, e.g., you cannot tolerate dust or fumes; or
(vi) You have difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching.
In evaluating cases where plaintiffs suffer both exertional and non-exertional impairments, courts in this Circuit consistently find that an ALJ may not rely solely on the Grids in determining what alternate jobs are available to such plaintiffs. See Smith v. Schweiker, 719 F.2d 723, 725 (4th Cir. 1984)("[i]f a nonexertional condition reduces an individual's residual functional capacity to perform sedentary work, it is inappropriate to [only] apply the grids because the range of jobs available to the impaired claimant is narrower than the grids would indicate."); see also Cindy Gilliam, Plaintiff, v. Comm'r of Soc. Sec., Defendant., No. 8:20-CV-00130-RMG-JDA, 2020 WL 7699703, at *5 (D.S.C. Dec. 21, 2020), report and recommendation adopted sub nom. Cindy Gilliam, Plaintiff, v. Andrew Saul, Comm'r of Soc. Sec. Administration, Defendant., No. 8:20-cv- 130-RMG, 2020 WL 7695957 (D.S.C. Dec. 27, 2020) ("when a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines."); Hess v. Comm'r of Soc. Sec. Admin., No. 8:20-cv-00191-BHH-JDA, 2020 WL 6786251, at *5 (D.S.C. Nov. 4, 2020), report and recommendation adopted sub nom. Hess v. Saul, No. 8:20-cv-191-BHH, 2020 WL 6785646 (D.S.C. Nov. 18, 2020) ("exclusive reliance on the 'grids' is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors.") However, the Fourth Circuit elaborated that "not every malady of a nonexertional nature rises to the level of a nonexertional impairment . . . [t]he proper inquiry . . . is whether a given nonexertional condition affects an individual's residual functional capacity to perform work of which he is exertionally capable." Id.
Here, the ALJ stated the following regarding Plaintiff's limitations:
He can occasionally stoop, crouch, kneel, and crawl. He can occasionally perform overhead reaching with his right arm. He must avoid concentrated exposure to extreme cold and excessive vibration. The claimant must avoid all exposure to moving machinery and unprotected heights. The work, which he can do, is limited to occupations which involve the performance of simple, routine, repetitive tasks. The claimant is further limited to occupations that do not require complex written communication.(R. at 25-26.)
Such limitations clearly fit within the framework for nonexertional limitations as defined in 20 C.F.R. § 404. 1569; therefore, the ALJ found that Plaintiff suffers from significant nonexertional limitations that impact his ability to perform alternate work. Furthermore, the ALJ's decision refences the use of the Grids in conjunction with Vocational Expert testimony. (R. at 30.) The undersigned must therefore evaluate how the ALJ queried the vocational expert, and determine whether the ALJ only applied the Grids in determining whether Plaintiff could perform alternate jobs or whether the ALJ performed the holistic analysis prescribed by Smith. At the hearing, the ALJ queried the vocational expert as follows:
Q: Please assume an individual the same age, education and work experience as the claimant able to do sedentary work. No ladders, ropes, and scaffolds. Frequent climb ramps and stairs. Occasional stoop, crouch, kneel, crawl. Occasional Overhead reaching with the right arm. Avoid concentrated exposure to extreme vibration, extreme cold. Avoid all exposure to moving machinery and unprotected heights. Limited to simple, routine, repetitive tasks. Limited to occupations that do not require complex written communication. Can this individual do the past work of the claimant?(R. at 53-54) (errors in original.)
A: No, Your Honor.
Q: Other jobs?
A: Surveillance system monitor, sedentary, SVP-2, 379.367-010, nationally 185,000. Tube operator, sedentary, SVP-2, 239.687-014, nationally 196,000. Weight tester, sedentary, SVP-2, 539.485-010, nationally 467,000.
Q: Please assume an individual the same age, education, and work experience as the claimant able to do sedentary work. No climb ladders, ropes, and scaffolds. Occasionally climb ramps and stairs. No stoop, kneel, crawl. Occasional crouch. Occasionally overhead reaching with right arm. Same environmental as first hypothetical. Same communication limit and non- exertional. Jobs available for a person of those limits?
A: No, the jobs I cited already are appropriate.
Based on the exchange between the ALJ and the vocational expert, it does not appear that the ALJ solicited sufficient testimony regarding alternate jobs. In fact, in response to the ALJ's short hypotheticals, the vocational expert simply listed jobs available to Plaintiff, without any elaboration. The ALJ then repeated the vocational expert's statements in his opinion, without further discussion. (R. at 30-31.) It therefore appears that the ALJ only used the Grids in performing Plaintiff's residual functional capacity analysis. Accordingly, pursuant to Smith, remand is warranted.
II. Plaintiff's Remaining Arguments
Regarding Plaintiff's additional allegations of error, the undersigned finds that the ALJ's failure to adequately solicit testimony from the vocational expert is a sufficient basis on which to remand the case to the Commissioner and, thus, the undersigned declines to specifically address Plaintiff's additional allegations of error. However, the Commissioner should take into consideration Plaintiff's remaining allegations of error.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REMANDED, in order for the ALJ to properly solicit testimony from the vocational expert regarding alternate jobs.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 5, 2021
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).