Opinion
7:21-CV-176-FL
01-10-2023
DARRIN M. LONG, II, Plaintiff/Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Torres, Jr. United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-14, -20] pursuant to Fed.R.Civ.P. 12(c). Claimant Darrin Long (“Claimant”) filed this action, pro se, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the denial of his applications for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) payments. Plaintiff filed a response in opposition to Defendant's motion, [DE-22], and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded for further proceedings.
I. STATEMENT OF THE CASE
Claimant protectively filed applications for a period of disability and DIB and for SSI on May 15, 2019, alleging disability beginning January 1, 2018. (R. 15, 237-43). Both claims were denied initially and upon reconsideration. (R. 15, 95-146). A hearing before the Administrative Law Judge (“ALJ”) was held on March 12, 2021, at which Claimant, represented by counsel, Claimant's mother, and a vocational expert (“VE”) appeared and testified. (R. 38-94). On April 1,2021, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-27). On August 19, 2021, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
The SSI application does not appear in the record; however, there is no dispute that it was filed and adjudicated.
At an earlier hearing on December 11, 2020, Plaintiff was not represented by counsel and elected to postpone the hearing in order to retain counsel. (R. 30-37).
II STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform .. . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473,475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(3), 416.920a(e)(3).
In this case, Claimant alleges the ALJ erred in (1) evaluating Claimant's subjective 3 symptoms and limitations, (2) failing to consider the cause of Claimant's medication noncompliance, (3) evaluating the opinion evidence, (4) failing to account for Claimant's moderate limitation in concentration, persistence, and pace in the RFC, and (5) failing to accurately set forth all of Claimant's limitations in the hypothetical to the VE. Pl.'s Mot. [DE-15] at 11-27.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since January 1, 2018, the alleged onset date. (R. 17). Next, the ALJ determined Claimant had the severe impairments of bipolar disorder and attention deficit hyperactivity disorder. (R. 17-18). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18-19). Applying the special technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in a moderate limitation in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 18).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform a full range of work at all exertion levels with the following nonexertional limitations:
can concentrate sufficiently in two-hour increments to perform simple, repetitive tasks; no contact with the general public; no work in a team setting; and occasional changes in work setting/procedure.(R. 19-22). In making this assessment, the ALJ found Claimant's statements about his limitations not entirely consistent with the medical and other evidence of record. (R. 20).
At step four, the ALJ concluded Claimant had no past relevant work. (R. 22). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 22-23).
V. DISCUSSION
Claimant, who was 19 years old on the alleged onset date and 23 years old at the time of the hearing, contends that manic and depressive episodes and side effects from his medications result in a severe lack of motivation and an inability to complete tasks, to consistently attend work, to maintain organization, and to care for himself. Claimant asserts that the ALJ erroneously discounted his hearing testimony, as well as the opinion of his treating mental health provider, and misevaluated or failed to consider material evidence that supports his claim that he is unable to work due to his poor mental health.
A. The RFC Assessment
The RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. “[T]he 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.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide “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. (quoting S.S.R. 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
1. Subjective Symptoms and Limitations
Claimant contends the ALJ erred in evaluating Claimant's statements regarding his subjective symptoms and limitations, namely his severe lack of motivation that limited his ability to complete tasks, attend work or school, or care for himself independently. Pl.'s Mem. [DE-15] at 11-17.
Federal regulations 20 C.F.R. §§ 404.1529(a) and 416.929(a) provide the authoritative standard for the evaluation of subjective complaints of pain and symptomology, whereby “the determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *3 (Mar. 16, 2016); Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). If the ALJ makes that determination, he must then evaluate “the intensity and persistence of the claimant's pain[,] and the extent to which it affects her ability to work,” Craig, 76 F.3d at 595, and whether the claimant's statements are supported by the objective medical record. S.S.R. 16-3p, 2016 WL 1119029, at *4; Hines, 453 F.3d at 564-65.
Objective medical evidence may not capture the full extent of a claimant's symptoms, so where the objective medical evidence and subjective complaints are at odds, the ALJ should consider all factors concerning the “intensity, persistence and limiting effects” of the claimant's symptoms. S.S.R. 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (showing a complete list of factors). The ALJ may not discredit a claimant solely because his or 6 her subjective complaints are not supported by objective medical evidence, Craig, 76 F.3d at 59596, but neither is the ALJ required to accept the claimant's statements at face value; rather, the ALJ must “evaluate whether the statements are consistent with objective medical evidence and the other evidence.” S.S.R. 16-3p, 2016 WL 1119029, at *6; see Taylor v. Astrue, No. 5:10-CV-263-FL, 2011 WL 1599679, at *4-8 (E.D. N.C. Mar. 23, 2011), adopted by 2011 WL 1599667 (E.D. N.C. Apr. 26, 2011).
The ALJ summarized Claimant's hearing testimony, including that he cannot work due to an inability to organize or to keep his schedule, he experiences crippling depression with periods of manic episodes that are better controlled with Seroquel, he is nervous around people, he needs reminders for practically everything, he plays video games and skateboards but has an otherwise passive lifestyle, and he lives with his mother and sister. (R. 19). The ALJ also noted Claimant's mother's testimony that Claimant is unreliable, cannot complete any task, and has minimal motivation. Id. The ALJ found the testimony of Claimant and his mother reflected that Claimant “consistently displayed a lack of motivation” dating back to when Claimant was in school. (R. 20). However, the ALJ found it difficult to differentiate between a lack of motivation due to Claimant's mental health impairment and “simple laziness,” noted Claimant's medication noncompliance, and stated that, as a result, the ALJ relied primarily on the mental status examinations from hospital and treatment notes. Id.
Claimant argues that his severe lack of motivation is a psychiatric symptom that cannot be confirmed by an objective test, such as the mental status examinations focused on by the ALJ, and that the ALJ applied an improper burden of proof and engaged in character evaluation in violation of S.S.R. 16-3p and Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 109 (4th Cir. 2020). Pl.'s Mem. [DE-15] at 12-14. Claimant also argues that the ALJ compounded this error by 7 mischaracterizing the treatment notes, impermissibly cherry picking evidence, failing to consider that lack of motivation was a side effect of Claimant's medication, and failing to consider evidence in the record that corroborates Claimant's testimony, such as his educations records and failed employment attempts. Id. at 14-17. Defendant argues that Claimant mischaracterizes the ALJ's decision and misapplies the caselaw and that the ALJ considered all the relevant evidence and thoroughly explained his decision. Def.'s Mem. [DE-21] at 5-12.
The ALJ did not err in considering Claimant's mental status examinations in assessing Claimant's testimony regarding the intensity, persistence, and limiting effects of his bipolar disorder. In Arakas, the Fourth Circuit held that the “ALJs may not rely on objective medical evidence (or the lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” 983 F.3d at 97 (emphasis added). Here, symptoms from a mental impairment, such as mood swings, anxiety, mania, lack of energy and motivation, and isolating are not “entirely subjective” and can be validated by the objective observations associated with a mental status examination. See Vaughn v. Kijakazi, No. L.21CV1, 2022 WL 604257, at *11 (M.D. N.C. Mar. 1, 2022) (citing Fedornakv. Commissioner of Soc. Sec., No. 8:20-CV-416, 2021 WL 397353, at *5 (M.D. Fla. Jan. 19, 2021) (classifying “mental status examinations” as a “form of objective evidence” and holding that “[w]hile psychological diagnoses will depend in part on the subjective allegations by the patient, there is no precedent for relying solely on a patient's selfreporting of psychological limitations”), recommendation adopted, 2021 WL 391268 (M.D. Fla. Feb. 4, 2021); Blessing v. Astrue, No. 12-CV-5275, 2013 WL 316153, *7 (W.D. Wash. 2013) (“Like the physical examination, the Mental Status Examination is termed the objective portion of the patient evaluation.” (quoting Paula T. Trzepacz and Robert W. Baker, The Psychiatric Mental Status Examination, 3-4 (Oxford Univ. Press 1993))); Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (“When mental illness is the basis of a disability claim, clinical and laboratory data may consist of the diagnosis and observations of professionals trained in the field of psychopathology.”)), report and recommendation adopted, (M.D. N.C. Mar. 31, 2022). In Vaughn, the court explained that “mental health practitioners objectively verified through mental status examinations whether Plaintiff's [mental impairments] impacted her orientation, appearance, behavior, speech, thoughts, affect, concentration, attention, memory, judgment, and insight.” Id.
The ALJ considered Claimant's April 2019 hospitalization for a manic episode, noting that on admission Claimant had poor insight and reluctance to take medications, but that after Claimant was started on Seroquel he was calmer, was able to discuss his illness, and he was discharged with an improved mental status examination. (R. 20, 385-415). Post-discharge, Claimant began receiving mental health treatment from Geoff Holland, PA, at Physician Alliance for Mental Health, and the ALJ noted Claimant's treatment history with different medications over time. (R. 20). The ALJ observed that Claimant had “fairly consistent mental status examinations” with euthymic mood, appropriate affect, normal speech, normal thought process, normal associations, and normal thought content with no suicidal ideation and that Claimant was routinely found to be well-oriented with intact memory, concentration and attention, and insight. (R. 20, 474-81, 484-89, 519-21). The ALJ also noted that the more recent treatment records indicated Claimant's manic episodes were controlled with medication but that he remained “occlusive” and playing online video games was his only social activity. (R. 20, 506-11, 519-21). The ALJ discussed emergency room visits on February 28,2020 for evaluation after Claimant had an argument with his mother, but his mental status examination was normal and he was discharged; and again on April 26, 2020 after experiencing a manic episode and threatening to kill himself, he admitted he was not taking his medication as prescribed but that after taking his mediation he was feeling much better, and he was discharged after an initial evaluation. (R. 20, 587-91).
While the treatment notes reflect that Claimant experienced at times unstable mood and sleep issues, (R. 468-73, 513-15), the ALJ accurately noted that Claimant's mental status examinations were “fairly consistently]” within normal limits, (R. 20). Therefore, the ALJ did not cherry pick or mischaracterize the treatment notes and did not improperly shift the burden in considering whether Claimant's mental status examinations were consistent with Claimant's reported symptoms. See Vaughn 2022 WL 604257, at *11 (finding no error in the ALJ's consideration of objective evidence in the form of mental status exams in discounting the effects of a claimant's mental health symptoms where “[Plaintiff] had generally normal findings including normal orientation, typically normal attention and concentration, cooperative, normal speech, logical, normal judgment, future oriented, and normal thought content.”); Craig, 76 F.3d at 595 (“Although a claimant's allegations about her pain may not be discredited solely because they are not substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment.”).
Notwithstanding the ALJ's appropriate consideration of the mental status examinations, the ALJ should have also considered other material factors that were left unexplored, namely the side effects of Claimant's medications and whether Claimant's medication noncompliance was attributable to his mental illness.
The ALJ, in assessing Claimant's and his mother's testimony, found it difficult to determine the cause of Claimant's severe lack of motivation. (R. 20). However, the ALJ failed to address the side effects of Claimant's medications, which the record indicates may contribute to Claimant's 10 lack of motivation. Claimant's mother testified that Seroquel controls Claimant's mania but that since taking Seroquel he does not go anywhere, do anything, or get up. (R. 81). PA Holland indicated the side effects of Claimant's medications were drowsiness, lethargy, and low motivation. (R. 593). “[A]n ALJ's failure to consider medication side effects prejudices the claimant only if the claimant has provided evidence that the side effects caused some limitation in the claimant's RFC.” Sharon J. v. Kijakazi, No. 5:20-CV-00079, 2022 WL 945601, at *6 (W.D. Va. Mar. 29. 2022) (citation omitted). Here, Claimant argued that his most significant and persistent symptom of his bipolar disorder is his depression and severe lack of motivation that limits his ability to complete tasks, attend work or school, or care for himself independently. Pl.'s Mem. [DE-15] at 11; (R. 54-55, 81). PA Holland opined that Claimant would miss more than four days of work a month due to his impairment, (R. 597), and treatment records repeatedly note Claimant's reports of low energy and motivation, (R. 468, 471, 484, 487, 490, 506, 509, 519). Accordingly, because here Claimant's medication side effects were material, the ALJ's failure to consider them in assessing Claimant's testimony regarding the limiting effects of his lack of motivation was error requiring remand.
The ALJ also cited Claimant's failure to follow recommendations in taking his medications in the RFC discussion without discussing the reasons for Claimant's noncompliance. (R. 20). The undersigned agrees with Plaintiff that this was error. Pl.'s Mem. [DE-15] at 18-20. “If a symptom can be reasonably controlled by medication or treatment, it is not disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). However, “treatment [n]on-compliance may be intentional or a symptom of mental illness[,]... [s]o citing ... non-compliance, without exploring the reasons underlying it, offers little in the way of substantial evidence to uphold the RFC determination.” Turner v. Saul, No. 5:19-CV-190-D, 2020 WL 3866669, at *7 (E.D. N.C. June 9, 2020) (citing Pate-Fires v. Astrue, 564 F.3d 935, 945-46 (8th Cir. 2009) (“[N]oncompliance with psychiatric medications can be, and usually is, the result of the mental impairment itself, and, therefore, neither willful nor without a justifiable excuse . . . Courts considering whether a good reason supports a claimant's failure to comply with prescribed treatment have recognized psychological and emotional difficulties may deprive a claimant of the rationality to decide whether to continue treatment or medication.”)), report and recommendation adopted, 2020 WL 3840510 (E.D. N.C. July 8, 2020). Furthermore, S.S.R. 16-3p requires the ALJ to consider possible reasons for failure to comply with treatment before finding an individual's symptoms inconsistent with the evidence of record on that basis. 2017 WL 5180304, at *9-10 (Oct. 25, 2017).
The record reflects, and the ALJ acknowledged, that Claimant experienced manic episodes and more severe symptoms without medication. (R. 20-21). As the ALJ noted, when Claimant was first hospitalized during a manic episode in April 2019, although he was initially resistant, he demonstrated improvement with medication, (R. 20, 595), when he was taken to the emergency department in April 2020 it was due to a manic episode when he was not taking his medication as prescribed, (R. 20, 588), and in December 2020, it was noted Claimant was no longer manic (one of the few records that does not mention Claimant's failure to take his medications as prescribed), (R. 20, 519). In fact, throughout Claimant's treatment at Physician Alliance, he was routinely not taking his medications as prescribed and reporting worsening symptoms, and his medications were frequently adjusted. (R. 468,471,474,484,487,490, 506,508, 509, 512). The record also reflects that Claimant's mother attempts to assist in administering Claimant's medications but is often met with resistance. For example, she testified that Claimant was taking both his medications and doing “okay” but then inexplicably started taking a half dose of Wellbutrin, which resulted in a manic episode that lasted several months; he misses doses because he sometimes sleeps 18-20 hours a day, and she cannot get him up to take his medication; at times he refuses to take his medication because he does not believe it works as the doctor indicated it would; and when he is manic he does not comply with his medications. (R. 88-89). It is also noteworthy that in the treatment note indicating Claimant was no longer manic but seclusive, it states that Ability was added to his medication regimen, but his mother later testified that the Abilify made him manic and he had to stop taking it, so it seems Claimant still suffered from manic episodes. (R. 89, 519). It is not apparent whether the ALJ considered whether Claimant's medication noncompliance was willful or a result of his bipolar disorder, and the ALJ's failure to do so is error requiring remand. See McKoy v. Saul, No. 7:19-CV-00223-FL, 2020 WL 8084961, at *9 (E.D. N.C. Nov. 22, 2020) (finding that citing a mental health patient's medication non-compliance, without exploring the reasons underlying it, offered little in the way of substantial evidence to support the ALJ's RFC assessment), report and recommendation adopted, 2021 WL 76956 (E.D. N.C. Jan. 8, 2021).
2. PA Holland's Opinion
Claimant contends the ALJ erred in evaluating PA Holland's opinion. Pl.'s Mem. [DE-15] at 20-22. Defendant argues that the ALJ correctly determined the opinion was not persuasive because it was not supported by or consistent with other medical evidence. Def.'s Mem. [DE-21] at 11.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Because Claimant protectively filed his applications on or after March 27, 2017, 20 C.F.R. §§ 404.1520c and 416.920c governed how the ALJ considered the medical opinions in Claimant's case. The applicable regulation provides the ALJ “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [Claimant's] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the ALJ must consider the persuasiveness of medical opinions using five factors: (1) supportability, meaning that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions or prior administrative medical fmding(s) will be”; (2) consistency, meaning that the more consistent an opinion is with other evidence in the record, the more persuasive the medical opinion will be; (3) the medical source's relationship with the claimant, which considers the length of the treating relationship, frequency of examinations, purpose of the treating relationship, extent of the treatment relationship, and whether the medical source examined the claimant; (4) specialization, meaning that “a medical source who has received advanced education and training to become a specialist may be more persuasive”; and (5) other factors that tend to support or contradict a medical opinion.” Id. §§ 404.1520c(c)(1)-(5), 416.920(c)(1)-(5). The most important factors are supportability and consistency. Id. §§ 404.1520c(a), 416.920c(a).
On February 16, 2021, PA Holland completed a mental medical source statement noting Claimant's Bipolar I Disorder, guarded prognosis, history of manic episodes last requiring hospitalization in April 2019, and medication side effects of drowsiness, lethargy, and low motivation. (R. 593). Claimant's symptoms were noted to include, among other things, loss of interest in activities, decreased energy, mood disturbance, emotional isolation, hallucinations, perceptual or thinking disturbances, hyperactivity, easy distractibility, manic syndrome, and sleep disturbance. (R. 594). As for Claimant's mental abilities needed to do unskilled work, he was rated seriously limited or unable to meet competitive standards in all categories, and it was noted that during Claimant's manic episode in April 2019, he was unable to sleep, his thoughts were disorganized, and he was delusional, and during current depressive episodes Claimant has low energy and motivation and is seclusive. (R. 595). Claimant was also noted to become overwhelmed and to withdraw from social settings, to have a history of unstable mood making it difficult to predict his social behavior, and to find stressful essentially all demands of work. (R. 596-97). Holland opined that Claimant would miss more than four days of work per month and explained that Claimant would have difficulty working due to the unpredictability of a manic or depressive episode during which he is unable to work. (R. 597).
The ALJ found Holland's opinion unpersuasive noting that Claimant's mental status examinations had been fairly benign and that treatment notes indicate “when properly medicated, the claimant does not have debilitating manic episodes” and that “medications have been effective at times to allow the claimant to perform part-time work in a clothing store,” which the ALJ found to be inconsistent with Holland's opinion regarding Claimant's concentration and ability to work in proximity to others. Claimant's medication noncompliance was significantly featured in the ALJ's finding that PA Holland's opinion was inconsistent with the evidence of record and his own findings. As explained above, it was error for the ALJ to not consider whether Claimant's medication noncompliance was attributable to his bipolar disorder. Accordingly, because this error impacted the ALJ's consideration of PA Holland's opinion, the ALJ should reassess the opinion on remand.
3. The State Agency Consultant's Opinions
Claimant contends the ALJ erred in summarily finding the opinions of the state agency medical consultants to be persuasive without the requisite analysis. Pl.'s Mem. [DE-15] at 22. However, Claimant fails to make any argument that these opinions were favorable to his claim or explain how the ALJ's error prejudiced Claimant. Accordingly, this assertion of error should be rejected.
4. Moderate Limitation in Concentration, Persistence, or Pace
Claimant contends that the ALJ did not properly account for his moderate limitation in concentration, persistence, or pace in the RFC and did not sufficiently explain how he determined Claimant could stay on task for two hour increments. Pl.'s Mem. [DE-15] at 23-26.
The Fourth Circuit held in Mascio v. Colvin 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.'” 780 F.3d at 638 (quoting Winschel v. Comm 'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). The court explained that “the ability to perform simple tasks differs from the ability to stay on task” and that “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Id. The court acknowledged there could be instances where a moderate limitation in concentration, persistence, or pace at step three does not require a limitation in the RFC; however, the failure to explain such a result is error requiring remand. Id. (“Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. . . . But because the ALJ here gave no explanation, a remand is in order.”); see also Shinaberry v. Saul, 952 F.3d 113, 122 (4th Cir. 2020) (holding that ALJ decision comported with Mascio where the ALJ explained why evidence supported mental limitation to simple, routine, repetitive tasks and included limitations in the hypothetical to the VE); Iva K. v. Soc. Sec. Admin., No. 1:19-CV-02954-JMC, 2020 WL 3060752, at *4 (D. Md. June 9, 2020) (“[P]ursuant to Mascio, once the ALJ made a step three finding that a claimant suffers from moderate difficulties in concentration, persistence, or pace, the ALJ must either include a corresponding limitation in the RFC assessment, or explain why no such limitation is necessary.”).
The ALJ found that Claimant had a moderate limitation in concentrating, persisting or maintaining pace. (R. 18). In so finding, the ALJ noted that Claimant reported difficulty concentrating but that he played video games daily, and his mental status examination routinely indicated that concentration and attention were intact. Id. The ALJ determined Claimant could concentrate sufficiently in two-hour increments to perform simple, repetitive tasks; have no contact with the general public; perform no work in a team setting; and have only occasional changes in work setting/procedure. (R. 19). None of these limitations address Claimant's ability to stay on task, and the ALJ does not explain why further limitation was unnecessary. The Fourth Circuit in Mascio made clear that the ability to perform a task is distinct from the ability to stay on task. See Wooten v. Kijakazi, No. 4:20-CV-50-D, 2021 WL 4270181, at *5 (E.D. N.C. Sept. 7, 2021) (finding remand warranted where the ALJ failed to “explain how limitations to simple routine tasks not requiring interaction with the public, work in proximity to co-workers, and only occasional interaction with supervisors, ‘enable [Plaintiff] to stay on task and concentrate throughout the workday.'”) (quoting Taylor v. Saul, No. 4:19-CV-66-FL, 2020 WL 6389835, at *4 (E.D. N.C. July 9, 2020)), report and recommendation adopted, 2021 WL 4269872 (E.D. N.C. Sept. 20, 2021); cf. Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. Oct. 17, 2017) (holding that limitations to working in a low stress, non-production job with no public contact were sufficient to account for moderate limitations in concentration, persistence, or pace); Lee v. Colvin, No. 5:15-CV-142-D, 2016 WL 816784, at * 1-2 (E.D. N.C. Feb. 29, 2016) (finding a hypothetical limiting the individual to no fast paced or quota based work and limiting contact with supervisors, co-workers, and the public comported with Mascio and the claimant's mental restrictions in concentration, persistence, or pace). Accordingly, the ALJ committed reversible error by failing to sufficiently account for Claimant's moderate limitation in the ability to maintain concentration, persistence, or pace, or alternatively to explain why further limitation was unnecessary.
B. The VE's Testimony
Claimant contends the VE's testimony does not support the decision at step five because the ALJ's hypothetical to the VE did not accurately set forth Claimant's limitations, particularly off task behaviors and absenteeism. Pl.'s Mem. [DE-15] at 26-27. Defendant argues that the ALJ properly relied on the VE's testimony. Def.'s Mem. [DE-21] at 12-13.
The ALJ may utilize a VE at steps four and five “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 E2d 47, 50 (4th Cir. 1989). For a VE's opinion to be “relevant or helpful,” it must be given in response to a proper hypothetical question. Id. A proper hypothetical question “fairly set[s] out all of claimant's impairments” that are supported by the record as found by the ALJ. Id.', Russell v. Barnhart, 58 Fed.Appx. 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question “adequately contemplated all of [claimant's] impairments and resulting limitations” as evidenced by the record).
Here, as explained above, the hypothetical to the VE failed to include limitations sufficient to account for Claimant's limited ability to stay on task pursuant to Mascio, and the ALJ failed to explain why no limitation was required. Accordingly, the hypothetical did not “fairly set out” all of Claimant's impairments, and ALJ committed reversable error at step five by relying on the VE's testimony in response to an insufficient hypothetical.
VI. CONCLUSION
For the reasons stated above, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, [DE-14], Defendant's Motion for Judgment on the Pleadings be denied, [DE-20], and the matter be remanded for further proceedings.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 24,2023 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).