Opinion
C/A No. 0:18-411-MGL-PJG
04-04-2019
Teresa Rogers, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Teresa Rogers, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In February 2014, Rogers applied for DIB, alleging disability beginning December 24, 2012. Rogers's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A video hearing was held on January 20, 2017, at which Rogers appeared and testified, and was represented by Philip Kearns, Esquire, and Heather Rogers, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on February 15, 2017 finding that Rogers was not disabled from December 24, 2012 through the date of the decision. (Tr. 18-31.)
Rogers was born in 1962 and was fifty years old on her alleged disability onset date. She has a ninth-grade education and has past relevant work experience as a laser printer, a forklift operator, and an open end spinner. (Tr. 29, 258-59.) Rogers alleged disability due to osteoarthritis, anxiety, pain in her knees and feet, bipolar disorder, and high blood pressure. (Tr. 257.)
In applying the five-step sequential process, the ALJ found that Rogers had not engaged in substantial gainful activity since her alleged onset date of December 24, 2012. The ALJ determined that Rogers's bilateral knee arthritis, foot pain, obesity, agoraphobia, and major depressive disorder were severe impairments. However, the ALJ found that Rogers had not had 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 ("the "Listings"). The ALJ found, after consideration of the entire record, that Rogers retained the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b), except that the claimant can occasionally climb ramps and stairs, kneel, crouch, and crawl, can frequently stoop and balance, but can never climb ladders, ropes, and scaffolds. The claimant can sit, stand or walk for six hours in an eight hour workday. The claimant can frequently work from unprotected heights, around moving mechanical parts, and in extreme cold. The claimant can sustain concentration, persistence and pace sufficient to perform simple, routine tasks. The claimant's use of judgment is limited to simple,
work-related decision. The claimant can frequently interact with coworkers, but can never interact with the public. The claimant is limited to tolerating few changes in a routine work setting, defined as change that should be infrequent, and introduced gradually.(Tr. 24.) The ALJ found that Rogers was unable to perform any past relevant work, but that considering Rogers's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Rogers could perform. Therefore, the ALJ found that Rogers had not been disabled from the alleged onset date of December 24, 2012 through the date of the decision.
The Appeals Council denied Rogers's request for review on December 22, 2017, making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Rogers raises the following issues for this judicial review:
Issue 1 Improper reliance on vocational expert testimony. The ALJ is specifically required to elicit an explanation when a potential conflict exists in the VE's testimony. Can a decision based on improper reliance of VE testimony be found to be based upon substantial evidence?(Pl.'s Br., ECF No. 11.)
Issue 2 Application of the "grid" rules. When a claimant fits into one of the categories of Social Security's medical-vocational guidelines (known as the "grids") a finding of disability [is] warranted as a matter of law. Where the ALJ fails to follow the grids, and that failure affects the outcome, should the case be remanded for him to follow those rules?
DISCUSSION
Although Rogers raises two issues for this judicial review, the court finds that remand is warranted for further consideration of the second issue and therefore addresses it first. Specifically, Rogers argues that the ALJ erred in failing to find Rogers disabled in light of the fact that a little over four months after the ALJ's decision Rogers reached the age of fifty-five. Rogers argues that based on the medical-vocational guidelines, located at 20 C.F.R. Part 404, Subpart P, appendix 2 (the "Grids"), she would be found to be disabled with the ALJ's restriction to light work. Therefore, Rogers argues that the ALJ should have considered the older age category, and based on the older age category found Rogers disabled, relying on Grid Rule 202.02.
When the ALJ's sequential evaluation reaches Step Five, the Commissioner bears the burden of providing evidence of a significant number of jobs in the national economy that a claimant could perform. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). To improve both the uniformity and efficiency of this determination, the Commissioner promulgated the Grids. Heckler v. Campbell, 461 U.S. 458, 461 (1983). The Grids consist of three "Tables," each representing a different residual functional capacity, including sedentary (Table 1), light (Table 2), and medium work (Table 3). Id. Each table then accounts for other vocational factors, including age, education, and previous work experience. For each combination of factors, the Grids provide whether the claimant is "Disabled" or "Not disabled." Id. Additionally, the regulations establish particular age categories to consider in combination with an individual's residual functional capacity, including: (1) a younger person (under age 50), (2) a person closely approaching advanced age (age 50-54), and (3) a person of advanced age (age 55 or older). 20 C.F.R. § 404.1563(c)-(e). Section 404.1563(b) instructs claimants that
[w]hen we make a finding about your ability to do other work under § 404.1520(f)(1), we will use the age categories in paragraphs (c) through (e) of this section. We will use each of the age categories that applies to you during the period for which we must determine if you are disabled. We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case.20 C.F.R. § 404.1563(b).
In this case, Rogers was 54 years old in February 2017 (the date of the ALJ's decision) and turned 55 in June 2017; therefore, as of the date of the ALJ's decision, Rogers was less than five months from the older age category. Case law within the Fourth Circuit suggests that this time frame presents a borderline situation. See, e.g., Tanner v. Colvin, No. 4:15-CV-27-FL, 2016 WL 626493, at *6 (E.D.N.C. Jan. 26, 2016) (collecting cases), adopted by 2016 WL 617431 (Feb. 16, 2016). However, "[t]he circuits are split as to whether the ALJ is required to make express findings in every borderline age case, with the Third, Eighth, and Tenth Circuits requiring express findings, and the Sixth, Ninth, and Eleventh Circuits not requiring express findings." Pittard v. Berryhill, Action No. 2:17cv71, 2018 WL 4677831, at *12 (E.D. Va. June 8, 2018) (collecting cases). Although the Fourth Circuit has not reached this issue, numerous district courts in the Fourth Circuit have found some discussion is required when a claimant presents a borderline age situation. See id., at *13; see also Pickett v. Astrue, 895 F. Supp. 2d 720, 724 (E.D. Va. 2012); Steen v. Colvin, No. 4:13-3027-BHH, 2016 WL 536743, at *3 (D.S.C. Feb. 11, 2016) (collecting cases).
As stated above, the ALJ's decision was issued less that five months from Rogers's fifty-fifth birthday; however, the ALJ did not acknowledge or otherwise recognize Rogers's borderline age. The ALJ failed to provide any explanation or discussion for his reliance on Rogers's chronological age in applying the Grids, and in fact, it appears that contrary to 20 C.F.R. § 404.1563(b) and the above law, the ALJ applied the Grids mechanically. The Commissioner concedes that "the ALJ should have stated whether he applied Plaintiff's chronological age and the factors he considered," but she argues that the error is harmless because Rogers "has not demonstrated any additional factors that would warrant the application of the higher age category." (Def.'s Br. at 15 n.6, ECF No. 13 at 15) (citing The Social Security Administration's Hearings, Appeals, and Litigation Law Manual ("HALLEX") I-2-2-42, 2016 WL 1167001). As argued by Rogers, the ALJ did include additional factors that may be considered vocational adversities, such as limiting Rogers to only occasional climbing of ramps and stairs, kneeling, crouching, and crawling, as well as frequent stooping and balancing. (Tr. 24); see Ash v. Colvin, No. 2:13-CV-47, 2014 WL 1806771, at *9 (N.D.W. Va. May 7, 2014) (providing that examples of additional vocational adversities may include "[f]requent postural limitations, as frequent is a limitation" and "[f]requent stooping limitations for a claimant with a sedentary RFC") (citing Program Operations Manual System ("POMS"), § DI 25015.005). Because the ALJ's decision contains no discussion on this issue, the court is unable to conduct a meaningful review of this decision, as it is not apparent whether the ALJ considered applying the higher age category or even if he recognized this was a borderline situation.
Accordingly, this matter should be remanded for further consideration and explanation. Cf. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015) (finding that "precedent makes clear that it is not our role to speculate as to how the ALJ applied the law to its findings or to hypothesize the ALJ's justifications that would perhaps find support in the record").
The court notes that the Appeals Council stated in its review that it "considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category." (Tr. 1.) However, the Appeals Council did not explain its reasoning in sufficient detail to permit review of this issue. Further, the Appeals Council explicitly stated that it denied Rogers's request for review and that the ALJ's decision is the final decision of the Commissioner in this case. (Id.)
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Rogers's remaining arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Rogers may present her remaining arguments concerning the ALJ's alleged errors on remand.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. April 4, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
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).