Opinion
5:20-CV-00109-FL
07-12-2021
Kilolo Kijakazi, Plaintiff, v. Acting Commissioner of Social Security, Defendant.
MEMORANDUM &RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Plaintiff Donald Sills challenges Administrative Law Judge (“ALJ”) Paula Wordsworth's denial of his application for social security income. Sills claims that ALJ Wordsworth erred in determining his residual functional capacity (“RFC”) and identifying other work he could perform. Both Sills and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for a judgment on the pleadings in their favor. D.E. 23, 30.
After reviewing the parties' arguments, the court has determined that ALJ Wordsworth erred in her determination. ALJ Wordsworth's RFC determination sufficiently accounts for Sills's moderate limitations in concentration, persistence, or pace found at step three. But ALJ Wordsworth's erred at step five in leaving unresolved a conflict between the testimony of the Vocational Expert (“VE”) and the Dictionary of Occupational Titles (“DOT”). So the undersigned recommends that the court grant Sills's motion, deny the Acting Commissioner's motion, and remand this matter to the Acting Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In June 2016, Sills applied for disability benefits and supplemental security income. In both applications, he alleged a disability that began in December 2009. After the Social Security Administration denied his claim at the initial level and upon reconsideration, Sills appeared before ALJ Wordsworth for a hearing to determine whether he was entitled to benefits. ALJ Wordsworth determined Sills had no right to benefits because he was not disabled. Tr. at 10-22.
Sills later amended his disability onset date to October 2015. Tr. at 10.
ALJ Wordsworth found that Sills's status post right ankle fracture, degenerative joint disease of the left knee with total left knee replacement, low back pain/sciatica, and major depressive disorder were severe impairments. Tr. at 12. ALJ Wordsworth also found that Sills's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 13.
ALJ Wordsworth then determined that Sills had the residual functional capacity (“RFC”) to perform light work with other limitations. Tr. at 15. He needs the opportunity to alternate between sitting and standing every two hours at the workstation, while standing and walking four hours in an eight-hour workday. Id. Sills can occasionally climb stairs, ramps, ladders, ropes, and scaffolds. Id. He can balance, stoop, and crouch frequently. Id. Sills cannot use foot pedals or push and pull with his bilateral lower extremities. Id.
Sills must avoid concentrated exposure to workplace hazards that include unprotected heights and moving machinery. Id. He can perform simple, routine, repetitive tasks involving short, simple instructions, and simple, work-related decisions. Id. And Sills can have few workplace changes. Id.
ALJ Wordsworth concluded that Sills could not perform his past work as a cook, kitchen helper, or greens keeper. Tr. at 21. But considering his age, education, work experience, and RFC, ALJ Wordsworth found that jobs existed in significant numbers in the national economy that Sills could perform. Tr. at 21-22. These include small parts assembler, laundry folder, and hand packager. Id. Thus, ALJ Wordsworth found that Sills was not disabled. Tr. at 22.
After unsuccessfully seeking review by the Appeals Council, Sills began this action in March 2020. D.E. 6.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Acting Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Acting Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Acting Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry but shifts to the Acting Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Sills's claim challenges the consideration of his mental health conditions so the court will limit its recapitulation of the medical evidence to those impairments.
In additional to physical ailments including a history of ankle fracture and repair surgery, degenerative joint disease leading to total left knee replacement, and lower back pain and sciatica, Sills suffers from major depressive disorder. Tr. at 12.
In November 2015, Sills visited the emergency department reporting depression and hallucinations with thoughts of self-harm. Tr. at 16. He remained a patient at Rex Hospital for two days with sleep disturbance, fear of being hurt, and feeling suicidal. Id. Providers noted his constricted affect, depressed mood, and impaired judgment and insight. Id. They transferred him to Johnston Psychiatric Center where he remained for five days. Id.
Sills had worsening depression, auditory and visual hallucinations, sleep disturbance, and thoughts of self-harm. Id. A mental status examination was generally unremarkable aside from a flat affect. Id. Sills responded well to treatment and medication. Id. Upon discharge, his diagnosis was unspecified bipolar disorder, and schizophrenia could not be ruled out. Id.
In August 2016, Sills underwent a consultative psychological examination with Lori Downing, Psy.D. Tr. at 17. He had no mental health treatment before his hospitalization a year earlier. Id. Sills discontinued the medications prescribed because he did not think they helped his symptoms. Id.
Sills reported occasional visual hallucinations as well as sad mood, crying spells, decreased energy and motivation, increased isolation and irritability, poor sleep, and reduced frustration tolerance. Id. A mental status examination found Sills was pleasant, engaged, and oriented, with a wide range of affect, unremarkable thought content, and normal judgment. Id.
Dr. Downing diagnosed moderate to severe major depressive disorder, with possible psychotic symptoms. Id. She found that Sills could understand, retain, and follow instructions, perform simple, repetitive tasks, and relate appropriately to others. Tr. at 17-18. Because of his decreased ability to tolerate stress, he would function best in a low-stress environment. Tr. at 18.
In a September 2016 consultative physical examination, Sills reported that he had anhedonia and decreased motivation, and providers had assessed depression. Tr. at 16-17. He also spoke of past suicidal ideation. Tr. at 17.
At visits for treatment of his physical conditions in April and August 2018, providers noted that Sills had an appropriate mood and affect. Tr. at 18-19.
Sills alleges severe depression with hallucinations, low energy, poor concentration, and occasional suicidal ideation. Tr. at 15. He has trouble performing daily activities. Id.
D. Residual Functional Capacity
Sills contends that ALJ Wordsworth erred in determining his RFC by ignoring the limiting effects resulting from his mental impairments. The Acting Commissioner asserts, and the undersigned agrees, that the RFC sufficiently reflects all Sills's well-supported limitations.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe, ” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Acting Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory findings) and nonmedical evidence (e.g. daily activities, observations).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he 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.” Radford v. Colvin, 734 F.2d 288, 295 (4th Cir. 2013). Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the residual functional capacity “assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[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.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p.” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
In Mascio, the Fourth Circuit found that a limitation to simple, routine tasks, or unskilled work may fail to address a moderate limitation in concentration, persistence, or pace. 780 F.3d at 638. The Fourth Circuit “agree[d] with other circuits that an ALJ does not account for a claimant's limitation 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.” Id. (quotation omitted). Because the ALJ failed to explain why the plaintiff's “moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in [plaintiff's] residual functional capacity, ” the Fourth Circuit remanded Mascio. Id.
Although an ALJ's findings at step three may not require any additional limitations for concentration, persistence, or pace in the RFC, the ALJ must at least provide a sufficient explanation in the decision to allow the court to conduct meaningful review of the RFC determination. See Scruggs v. Colvin, No. 3:14-CV-466-MOC, 2015 WL 2250890, at *5 (W.D. N.C. May 13, 2015); Reinhardt v. Colvin, No. 3:14-CV-00488-MOC, 2015 WL 1756480, at *3 (W.D. N.C. Apr. 17, 2015).
At step three, ALJ Wordsworth noted that Sills's mental impairments caused moderate limitations in concentrating, persisting, and maintaining pace. Tr. at 14. The RFC found that Sills could perform simple, routine, repetitive tasks involving no more than short, simple instructions and make simple, work-related decisions with few workplace changes. Tr. at 15.
The question presented is whether the RFC's nonexertional limitations adequately reflect Sills's moderate limitation in concentration, persistence, and pace found at step three. The undersigned finds that ALJ Wordsworth's decision clarifies how the evidence supports the nonexertional restrictions in the RFC determination.
ALJ Wordsworth's narrative discussion of the evidence corroborates the nonexertional limitations she assessed. Sills stated that he had low energy, poor concentration, and trouble with daily activities. Tr. at 15. But mental status examinations were generally normal, and most recently noted that Sills had an appropriate mood and affect. Tr. at 18-19.
ALJ Wordsworth discussed Sills's 2015 inpatient mental health treatment. Tr. at 16. His symptoms included depression, hallucinations with thoughts of self-harm, sleep disturbance, and suicidal feelings. Id. Sills displayed a constricted affect, depressed mood, and impaired judgment and insight. Id. After transfer to another facility, providers noted Sills's worsening depression, auditory and visual hallucinations, sleep disturbance, and thoughts of self-harm. Id. Yet except for a flat affect, his mental status examination was unremarkable. Id. And Sills responded well to treatment and medication. Id.
ALJ Wordsworth remarked that Sills had no significant mental heath treatment since his 2015 hospitalization. Tr. at 20. He took no medications and received no therapy. Id. She also observed that Sills's mental status examinations have been generally unremarkable. Id. And ALJ Wordsworth noted that Sills could perform household chores and tend to his personal needs. Id. This evidence suggests that Sills's mental impairments are not as limiting as he claims.
ALJ Wordsworth also considered Dr. Downing's psychological evaluation. Sills's mental status examination found him pleasant, engaged, and oriented, with a wide range of affect, unremarkable thought content, and normal judgment. Tr. at 17. Despite his major depressive disorder, Dr. Downing concluded that Sills could understand, retain, and follow instructions, perform simple, repetitive tasks, and relate appropriately to others. Tr. at 17-18. But his reduced ability to tolerate stress suggested Sills would require a low stress environment. Tr. at 18.
State agency psychological consultants noted Sills's moderate limitations in concentration, persistence, or pace. Tr. at 69-70, 107-08. But both consultants found that Sills could perform simple, routine, repetitive tasks, interact appropriately with others, and respond to changes in a low-stress workplace setting. Tr. at 75-76, 112-14.
Other courts have found similar restrictions to be consistent with Mascio. See Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. 2017) (rejecting the plaintiff's argument under Mascio where ALJ relied on opinions of consultative examiner and state agency psychologist that, despite moderate deficit in CPP, the plaintiff could sustain attention sufficiently to perform SRRTs); Sheri S. v. Saul, No. 1:19-CV-01924-GLS, 2020 WL 4579871, at *5 (D. Md. Aug. 7, 2020) (RFC limiting plaintiff to simple, routine, repetitive tasks and simple, work-related decisions accounted for her moderate limitations in concentration, persistence, or pace and ALJ's narrative adequately explained the facts supporting the mental functional limitation); Davis v. Berryhill, No. 1:17-CV-432, 2018 WL 3942089, at *6 (M.D. N.C. Aug. 16, 2018) (ALJ adequately explained why restrictions to simple, routine tasks involving simple, short instructions, and simple, work-related decisions with few work place changes and occasional interactions sufficiently accounted for plaintiff's moderate limitation in CPP), adopted by, 2018 WL 4565888 (M.D. N.C. Sept. 6, 2018).
In sum, ALJ Wordsworth reviewed the evidence and explained how it supported the RFC, including Sills's nonexertional limitations. The RFC determination sufficiently addresses Sills's moderate limitations in concentration, persistence, and pace found at step three. Thus, the court should reject Sills's argument on this issue.
E. Step Five
Sills argues that ALJ Wordsworth's step five finding is flawed. For other jobs he can perform, Sills contends there is an apparent conflict between the testimony of the Vocational Expert (“VE”) and the Dictionary of Occupational Titles (“DOT”). Because ALJ Wordsworth failed to resolve a discrepancy between her RFC and the jobs identified by the VE, Sills asserts that remand is warranted. The Acting Commissioner contends that there is no conflict or error in ALJ Wordsworth's step five determination. The undersigned disagrees.
As noted above, while a claimant has the burden at steps one through four, it is the Acting Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). “The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert to testify.” Aistrop v. Barnhart, 36 Fed.Appx. 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Acting Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker, 889 F.2d at 49; Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F.Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h).
The Regulations permit testimony from a VE to determine “whether [a claimant's] work skills can be used in other work and the specific occupations in which they can be used[.]” 20 C.F.R. §§ 404.1566(e), 416.966(e). For a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker, 889 F.2d at 50; Burnette v. Astrue, No. 2:08-CV-0009-FL, 2009 WL 863372, at *4 (E.D. N.C. Mar. 24, 2009) (relevant hypothetical question should adequately reflect claimant's RFC and fairly set out a claimant's limitations). If limitations are omitted, the VE's testimony is of limited value, and may not constitute substantial evidence. See Johnson, 434 F.3d at 659 (citing Walker, 889 F.2d at 50).
Before relying on a VE's testimony an ALJ must “[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), . . . and [e]xplain in the determination or decision how any conflict that has been identified was resolved.” SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000). “Occupational evidence provided by a VE . . . generally should be consistent with the occupational information supplied by the DOT.” Id. “When there is an apparent unresolved conflict between VE . . . and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE . . . to support a determination or decision about whether the claimant is disabled.” Id. “At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.” Id.
The Fourth Circuit has interpreted SSR 00-4p as placing an “affirmative duty” on the ALJ to independently “identify conflicts between the [VE's] testimony and the [DOT].” Pearson, 810 F.3d at 208-09. “An ALJ has not fully developed the record if it contains an unresolved conflict between the [VE's] testimony and the [DOT].” Id. at 210.
Each of the three positions the VE identified at step five as suitable for Sills's RFC-small parts assembler, laundry folder, and hand packager-has a Reasoning Level of 2. Sills contends that this work exceeds his abilities because the RFC limits him to jobs that involve short, simple instructions, and simple, work-related decisions. Tr. at 15.
The DOT Reasoning Level functions are part of the General Educational Development (“GED”), which range from Level 1 (lowest reasoning ability) to Level 6 (highest reasoning ability). Reasoning level 1 involves “[a]pply[ing] commonsense understanding to carry out simple one- or two-step instructions.” A reasoning level of 2 suggests that the job requires the person to be able to, “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.”
The Court of Appeals has found that an apparent conflict exists between an RFC limitation to “short, simple instructions” and a need to carry out “detailed but involved . . . instructions” as found in jobs requiring a reasoning level of two. Thomas v. Berryhill, 916 F.3d 307, 313 (4th Cir. 2019), as amended (Feb. 22, 2019).
The Acting Commissioner argues that Thomas is distinguishable and that a more recent decision controls. In Lawrence v. Saul, the Court of Appeals found that there is no apparent conflict between a limitation to “simple, routine, repetitive tasks” and reasoning level two occupations. 941 F.3d 140, 144 (4th Cir. 2019). Under Lawrence, a hypothetical question limiting one to simple, instructions, tasks, or decisions does not create an apparent conflict with jobs the DOT classifies as reasoning level two. Id.
But the Acting Commissioner's reliance is misplaced. ALJ Wordsworth's RFC included a limitation for short, simple instructions. Tr. at 15. And a limitation to simple instructions, simple, routine tasks, and simple, work-related decisions, is materially different from similarly restricting a claimant to short tasks, instructions, or decisions. Lawrence, 941 F.3d at 143; Ilioff v. Saul, No. 1:19-CV-1226, 2021 WL 848204, at *8 (M.D. N.C. Mar. 5, 2021) (RFC's limitation to simple, short instructions apparently conflicts with the jobs that require reasoning level of two). Limiting Sills to short instructions contradicts work that involves detailed instructions as reasoning level two work contemplates. Id.
So there is a conflict between a finding that Sills was limited to simple, routine, repetitive tasks with short, simple instructions, and simple, work-related decisions and concluding, at step five, that he could perform jobs involving detailed instructions. ALJ Wordsworth needed to explain this conflict. Having failed to do so, her reliance on the VE's testimony about the availability of other work lacks the support of substantial evidence.
ALJ Wordsworth asked the VE if her testimony tracked the DOT. Tr. at 74. The VE responded affirmatively. Id. The VE noted that the DOT did not address issues of production pace, interacting with others, and overhead reaching, Id. On those issues, she based her testimony on her knowledge, education, experience, and training. Id. But the VE did not address the conflict between Sills's RFC and the DOT job descriptions for the positions she identified at step five.
The Acting Commissioner has not met her burden of identifying other work that Sills could perform. So the undersigned recommends that the court remand this matter for further consideration of this issue.
III. Conclusion
For these reasons, the undersigned recommends that the court grant Sills's Motion for Judgment on the Pleadings (D.E. 23), deny Kijakazi's Motion for Judgment on the Pleadings (D.E. 30), and remand this matter to the Acting Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the pally will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Coiut of Appeals.