Opinion
Civil Action No. 5:19-2339-RMG-KDW
09-29-2020
Melissa Smith, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action. I. Relevant Background
A. Procedural History
On August 12, 2013, Plaintiff protectively filed for DIB under Title II of the Act, 42 U.S.C. §§ 401-433, alleging she became disabled on August 5, 2013. Tr. 243. After being denied initially, Tr. 82, 152, and upon reconsideration, Tr. 93, 154, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 195-97. ALJ Jerry W. Peace conducted Plaintiff's first administrative hearing on April 16, 2015, taking testimony from Plaintiff and Vocational Expert ("VE") Dr. Vincent Hecker. Tr. 47-80. Representing Plaintiff at that hearing was her attorney, Blake Cummings. Tr. 47. The ALJ denied Plaintiff's claim in a decision dated May 22, 2015. Tr. 17-39. Plaintiff requested review of this decision from the Appeals Council, Tr. 16, which denied her request on August 11, 2015, Tr. 2-7, making the ALJ's May 22, 2015 decision the Commissioner's final decision for purposes of judicial review.
After the Appeals Council denied her request for review, on October 9, 2015 Plaintiff appealed the unfavorable decision to the United States District Court for the District of South Carolina arguing that the ALJ failed to properly assess the VA's disability ratings; erred in dismissing the opinions of Plaintiff's treating physicians; and failed to properly account for her limitations in concentration, persistence, and pace. See Smith v. Berryhill, C/A No. 5:15-cv-4195-RMG, ECF No. 8. Plaintiff obtained an Order, filed February 8, 2017, reversing the Commissioner's decision and remanding the case for further proceedings based on the findings in the Report and Recommendation ("R&R") of the Magistrate Judge. Tr. 1034-35, Order in C/A No. 5:15-cv-4195-RMG. The R&R recommended remand for the sole issue of the ALJ's consideration of Plaintiff's limitations in concentration, persistence, and pace. Tr. 1071. On October 24, 2017, the Appeals Council issued an Order remanding the case to the ALJ "for further proceedings consistent with the order of the court." Tr. 1078.
ALJ Peace conducted a second administrative hearing on March 29, 2018, Tr. 971-96, and on April 11, 2018 he issued his decision denying Plaintiff's claim, Tr. 1081-1104. On April 18, 2018 Plaintiff requested review of the ALJ's decision from the Appeals Council. Tr. 967-68. On June 1, 2018 Plaintiff submitted written Exceptions to the ALJ's final decision again arguing that the ALJ failed to provide limitations for her moderate difficulties in concentration, persistence, and pace; the ALJ erred to follow the Treating Physician Rule; and the ALJ failed to give substantial weight to the disability rating by the Department of Veterans Affairs. Tr. 1180-81. On September 5, 2018, the Appeals Council assumed jurisdiction of the case and again remanded the case to the ALJ. Tr. 1115-17. The Appeals Council ordered that on remand the ALJ should obtain evidence from a psychological or psychiatric expert related to the nature and severity of Plaintiff's functional limitations; further evaluate Plaintiff's mental impairments; give further consideration to Plaintiff's maximum residual functional capacity ("RFC"); and obtain supplemental evidence from a VE to clarify the effect of the assessed limitations on Plaintiff's occupational base. Tr. 1116. The Appeals Council directed that the case should be assigned to a different ALJ. Id.
ALJ Alice Jordan conducted Plaintiff's third administrative hearing on February 27, 2019. Tr. 905-59. ALJ Jordan issued her decision denying Plaintiff's claim on April 15, 2019. Tr. 867-95. On May 2, 2019 Plaintiff requested review of the ALJ's decision by the Appeals Council. Tr. 864-66; 1236-37. The Appeals Council granted Plaintiff's request for an extension to submit written exceptions to the ALJ's decision, Tr. 857-58; however, Plaintiff did not file specific exceptions, Tr. 851. On August 7, 2019 the Appeals Council found no basis to change the ALJ's April 15, 2019 decision and declined to assume jurisdiction of the case. Tr. 851. This made the ALJ's April 2019 decision the final decision of the Commissioner after remand. Tr. 852. Plaintiff was instructed that if she wanted a federal court to review the Commissioner's final decision after remand by the court, she would need to file a new civil action. Id. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on August 19, 2019. ECF No. 1.
B. Plaintiff's Background
Plaintiff was born in March 1972 and was 41 years old as of her alleged onset date of August 5, 2013. Tr. 264. Plaintiff completed two years of college and her past relevant work ("PRW") included post office city mail carrier (1998-2002) and airport security screening officer (2002-2013). Tr. 269. Plaintiff previously served in the military. She entered active duty in August 1990, left active duty in 1994, and joined the National Guard in 1996. Tr. 60. Plaintiff then switched to the Reserves in 2002 and received a medical discharge on November 7, 2014. Id. In her form Disability Report-Adult, Plaintiff indicated she stopped working on August 5, 2013 due to her conditions of post-traumatic stress disorder ("PTSD"), four knee surgeries, gastroesophageal reflux disease ("GERD"), anxiety attacks, and depression. Tr. 268.
C. Administrative Proceedings
On February 27, 2019, Plaintiff appeared with counsel in Greenville, South Carolina for her third administrative hearing. Tr. 905-59. VE Celena Earl also appeared via telephone. Id.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that she was 46 years old, 5'11" tall and weighed 230 pounds, right-handed, divorced, and has a 21-year old daughter. Tr. 909-10. Plaintiff stated that she lived alone in her one-story house with her dog. Tr. 910. Plaintiff testified that her cousin drove her to the hearing. Id. Plaintiff testified that she was in the Army from 1990 until 2014 and, when she was on active duty, she served as a petroleum supply specialist refueling helicopters. Tr. 910-11. Plaintiff stated that she joined the National Guard in 1996 and was a C-switch Operator (she explained that was similar to a telephone operator), and in 2002 she transferred to the Army Reserves where she had several jobs. Tr. 911. Plaintiff stated that she was an Arms NCO [non-commissioned officer] and was responsible for all of the weapons, and her last job was as a Training NCO and she set up training for the personnel in her unit and sometimes for the battalion. Id. Plaintiff confirmed that she received an honorable discharge from the military. Id. Plaintiff further stated that it was a medical discharge. Tr. 912. Plaintiff confirmed that her last job was in 2014 in the military. Id. She noted that at that time the military was her part-time job and she worked fulltime as a TSA screener at the Greenville- Spartanburg Airport for the U.S. Department of Agriculture. Id. Plaintiff stated that she worked for TSA from 2002 until 2013. Tr. 913. Plaintiff testified that she screened passengers and luggage that weighed up to 70 pounds. Tr. 914. Plaintiff stated that she stopped working because of her anxiety level and PTSD. Tr. 915.
When asked about her daily activities Plaintiff testified that she is "mainly just home." Tr. 917. She stated that she takes care of her dog and "may do some daily chores, maybe sweeping, mopping, cleaning up after [her] dog." Id. Plaintiff stated that she has family and friends that check on her, but she does not "go out a lot and visit." Id. Plaintiff testified that she does not attend clubs, organizations, or church regularly. Id. She stated that her TV is on 24 hours a day as a distraction, but she watches TV for only two or three hours a day. Id. Plaintiff stated that she does not do any reading and she uses the Internet to check her email and "[e]very now and then" she will check Facebook. Tr. 917-18. Plaintiff stated that she could buy a crossword book with the intention of doing crosswords but that it would take her "two or three years just to finish one book" because she loses interest in it. Tr. 918. She stated that she likes to fish but does not go fishing that often. She testified that she last went fishing in July and "fished maybe three times last year." Id. Plaintiff testified that she does very little cooking and she prepares light meals. Id. She stated that she does laundry, dishes, vacuuming, mopping, sweeping, and dusting. Tr. 918-19. Plaintiff testified that she asks her younger sister to pick up grocery items, but when Plaintiff shops she usually shops after midnight when there are not a lot of people out. Tr. 919. Plaintiff stated that she has a "lawn care guy" to cut her grass. Id. Plaintiff confirmed that she has a driver's license and had driven the day before the hearing to take her car for an oil change. Id. When asked about other hobbies Plaintiff testified that she used to ride a motorcycle but because it needs repairs she no longer rides. Tr. 920. She confirmed that she takes care of her own personal hygiene. Id. She stated that she does not smoke, occasionally drinks alcohol, does not do any street drugs, and has never had a problem with alcohol or drugs in the past. Id. Plaintiff testified that her anxiety is the most severe impairment that keeps her from working. Id. She stated that she does not like to be around a lot people, and she does not like to go places where she has not been in the past. Id. Plaintiff confirmed that she has panic attacks. Tr. 921. Plaintiff testified that she receives treatment from the VA [Veterans Administration] in Greenville where she sees her psychiatrist every three months for medications. Id. Plaintiff stated that she also did one-on-one and group counseling, but she has not been contacted to set up additional counseling. Tr. 921-22. Plaintiff testified that she has "a lot of nightmares" and she does not sleep well at night. Tr. 922. She stated that she gets three hours of sleep at night and has night sweats along with "a lot of anxiety and depression." Id. When asked about physical problems that keep her from working Plaintiff testified that she has had two surgeries on each knee, she had heart surgery in 2003, she has sciatica, and lower back pain and "[m]ost all of it stems from the Military." Id. Plaintiff confirmed that she is on 100 percent disability through the VA. Id. She also stated that she had a workers' compensation settlement for a back injury due to picking up luggage at the airport. Id. Plaintiff indicated that injury occurred in 2012 or 2013. Tr. 923. Plaintiff stated that she has not drawn unemployment after a layoff. Id. Plaintiff testified that she has medical insurance through the VA and through Tricare. Id. She stated that she graduated from high school in 1990 and has completed about 70 college credits or about two years of college. Tr. 923-24.
Returning to her knee surgeries, Plaintiff testified that her first knee surgery was in 1991, and the second surgery on the same knee (the right knee) was done in 1992. Tr. 924. The surgeries were an ACL and a lateral meniscus, and Plaintiff noted that she has two screws in her knee. Id. She testified that the first surgery on her left knee was in 2004, and the second surgery was in 2005 or 2006 for a meniscal tear and partial ligament tear. Id. Plaintiff confirmed that she played a lot of basketball and was on her company's basketball team when she was in the military. Tr. 924-25. Plaintiff stated that she also played basketball throughout junior high and high school. Tr. 925. She stated that she has a lot of arthritis in her knees and wears two knee braces. Id. As to her heart, Plaintiff testified that she had an SVT [supraventricular tachycardia] and her "heart would just start racing for no apparent reason." Id. She stated that she had a heart ablation done in 2003. Id. Plaintiff testified that she has not had any stents placed. Tr. 926. Plaintiff testified that the sciatica in her lower back was because of her knees and when she "started favoring one knee and the way that [she] was walking. And it caused to pinch a nerve in [her] lower back." Id. Plaintiff testified that her sciatica is "not that bad" and she will have flare-ups from sleeping wrong in the bed or stepping in the wrong way, but that does not occur often. Tr. 927. Plaintiff testified that she also has acid reflux and a hiatal hernia. She was also started on blood pressure medication the prior month. Id. Plaintiff stated that her blood pressure is not yet controlled, and they are tweaking the medication. Tr. 928. She stated that the medication makes her feel sick to the stomach. Id. She also testified that the medication she takes for her anxiety "feels like it's slowing me down. Like I'm moving in slow motion." Id. Plaintiff stated that she takes Citalopram and Duloxetine which is "supposed to help with [her] nightmares but it doesn't." Id.
Plaintiff testified that she was in pain from sitting and the pain was in her lower back below the belt line—more in the right hip than in the left. Tr. 929. Plaintiff stated that if she sits too long her leg and foot will go numb. Id. Plaintiff testified that she can stand for 15-20 minutes before she has the same reaction. Tr. 930. She stated that she can walk 15 minutes at a time and then she would need to stop. Id. She testified that she does not normally lift anything, but she may carry a few groceries that "amount to 10 pounds." Id. Plaintiff testified that she would have to hold onto something if she needed to pick up something that she dropped. She stated that she "can do steps" as long as there is a handrail. Id.
In response to questions from her attorney Plaintiff testified that once she got off active military duty, she received a percentage of disability from the VA in 1996. Tr. 931. She stated that she was diagnosed with PTSD in 2007, and after filing claims "a couple of times" she was awarded 100 percent disability benefits in 2013 with an effective date of July 1, 2012. Id. Plaintiff confirmed that she also had disability ratings for other parts of her body. Tr. 931-32. Plaintiff explained that her VA disability rating of "[p]ermanent and total means that [she] can't hold a job . . . [and] even though [she] get[s] medical care from the VA they would never try to downgrade [her] 100 percent." Tr. 932. Plaintiff confirmed that she stopped working in 2013 and that is the date she is alleging that she became disabled. Id. Plaintiff confirmed that after that date she was still part of the Army Reserves which typically requires one weekend a month of service. Id. Plaintiff stated that she was medically discharged from the Reserves on November 7, 2014. Tr. 933. Plaintiff testified that her duties in the Reserves changed before 2013 because they were aware of her PTSD symptoms. Id. She stated that in 2012 they started her medical discharge paperwork and she was placed on light duty. Tr. 933-34. Plaintiff testified that she "would have to show up just to be in good standings until [her] medical discharge was approved." Tr. 934. Plaintiff stated that meant she had to show up four hours once a month and her duties were to answer the phone, and take notes for four hours. Id. Plaintiff testified that her last physical fitness test was "probably in 2012." Id.
Plaintiff testified that although doctors said they have corrected the problem with her heart, she will have "scares" because "every now and then it'll race, and I know it's not supposed to happen." Tr. 935. Plaintiff stated that with those episodes she will have "some mild chest pain, tightness of [her] chest, shortness of breath. Might break out into a sweat." Id. Plaintiff stated that she experiences these "scares" once every six-to-seven months. Id. Plaintiff stated that she has swelling in her knees every two or three months. Tr. 935-36. She testified that when her knees swell she will prop up her feet to elevate them above her heart, and use ice or a heating pad. Tr. 936. Plaintiff stated that those episodes last "a couple of days." Id. Plaintiff confirmed that her sciatic flares can be triggered by being more active, and although she had her hiatal hernia a long time, it was only recently diagnosed and treated. Id. Plaintiff stated that her GERD was painful and flares up if she eats too much or has a beer or mixed drink. Tr. 937. Plaintiff testified that she had nerve block injections in her lower back in 2012 or 2013 but stated she did not receive any benefit from them. Id. She also confirmed that she had been prescribed a back brace by her VA doctor several years ago. Tr. 937-38. Plaintiff testified that she has been using a brace on her right knee since 1996, and on her left knee since 2004, because of knee instability. Tr. 938. She confirmed that the knee braces were prescribed for her. Id. Plaintiff testified that in addition to medication and other previously mentioned modalities she also tries to do meditation to ease or to help her tolerate her pain. Id. Plaintiff confirmed that she is lethargic when taking her medications. Id. Plaintiff stated that her medications also cause drowsiness and sometimes she falls asleep for 30 minutes to an hour. Tr. 939. Plaintiff stated that she has crying spells two or three times a week. Id. She stated that she experiences nightmares at least four times a week and never feels well rested during the day. She stated that she takes 30-minute naps during the day. Tr. 940. Plaintiff confirmed that she spends six-to-seven hours in bed during the day and stated that was because she did not have the energy or motivation to do anything. She indicated that she thought it might be due to her depression. Id. Plaintiff stated that she has lost interest in a lot of the activities that she used to do and now she stays to herself all the time. Id. Plaintiff testified that when she goes out she usually takes her younger sister with her. Tr. 941. She also described having memory lapses. Id. Plaintiff testified that she does not trust people and she experiences paranoia whenever she goes out. Tr. 942. When asked about panic attacks Plaintiff stated that she felt she was about to have one. Id. Plaintiff confirmed that her emotional problems have compromised her ability to concentrate, focus, and work on pace. Tr. 943. Plaintiff affirmed that she experiences racing thoughts and flashbacks several times a month. Id. Plaintiff stated that she leaves the TV on to "drown out the outside noises." Tr. 944. She stated that she takes a three-minute shower because she is afraid someone might come in her house and she will not hear them. Id. She stated that it is hard for her to put shoes on and she usually wears shoes that she can slip on. Tr. 944-45. Plaintiff testified that her mental health impairments had not improved since her last hearing. Tr. 945. She also stated that she has difficulty completing household tasks because she loses interest. Id. She stated that she usually shops at a 24-hour Walmart after midnight because there are less people there and she can get out of the store within 10 minutes. Tr. 945-46.
The ALJ resumed questioning and asked Plaintiff about a game that she attended with her nephew where a fight broke out. Tr. 946. Plaintiff stated that she was "on edge" but because her nephew had never seen her lose control, she "felt like as long as he was safe that [she] was okay." Id. Plaintiff also testified that when her daughter graduated from high school they went on a cruise. Id. Plaintiff stated that the first night she stayed in the cabin, and she stayed in the cabin 60 percent of the time. Id. She testified that her daughter spent "the whole time" with her friend and her friend's family. Tr. 947. Plaintiff stated that she used to go to church, but for the past three years the services have been live-streamed on the internet so she watches from home. Id. Plaintiff stated that prior to that she went to church regularly on Sunday and for an hour on Wednesday for a mid-week church service. Id.
2. VE's Testimony
The ALJ asked the VE identify the work performed previously by Plaintiff and the VE identified the following positions: protective officer (after 9/11 referred to as TSA screening agent), Dictionary of Occupational Titles ("DOT") number 372.363-010, medium but performed by Plaintiff as heavy, SVP of 4, semi-skilled; and munitions worker, DOT number 632.261-018, medium, SVP of 6, skilled. Tr. 949-50. The ALJ asked to VE to assume a "hypothetical person of 46, 14 years of education, past relevant work the same as the claimant's." Tr. 950. The ALJ placed her at light level due to the problems with her knees, and added the following limitations:
Ten pounds frequently. Twenty pounds occasionally. Sit for up to six hours of a day. Stand and walk within up to six hours for a total of eight hours with normal and usual breaks every two hours. No ladders. Occasional steps. Frequent balance. Frequent stooping. Occasional crouching, kneeling, and crawling. . . . avoid concentrated exposure to cold and humidity and concentrated exposure to hazards. I'm going to find the claimant is capable of concentration, persistence, and pace and could maintain that concentration for at least two hours for simple, routine, repetitive tasks instructions. As she would be able to understand the instructions and carry them out for at least two-hour periods. Of course, there would be with the two-hour, a break every two hours and do that again, but I think she could do that with the breaks given. I'm going to also say that due to her ability to stay with the concentration, persistence, and pace I think that we're going to need to avoid any high volume, fast-paced production jobs for her because I think that if she got behind, she'd get upset, frustrated. So, I just believe that the better thing to do is just remove that as a problem. She's done much better with her interaction with the public but I still don't think that she's ready to have ongoing constant interaction with anybody. So, I'm going to put her at occasional interaction with general public. . . . Frequent interaction with coworkers. Most comfortable, you know, people that she was familiar with.Tr. 950-52.
The VE testified that for an individual with those limitations, Plaintiff's past work would be eliminated and there would not be any transferable skills. Tr. 952. The ALJ asked if he could identify any other jobs and the VE identified the following: electronics worker, DOT number 726.687-010, light, SVP of 2, with 29,800 positions in the U.S.; inspector and hand packager, DOT number 559.687-074, light, SVP of 2, with 313,600 positions in the U.S.; and shipping and receiving weigher, DOT number 222.387-074, light, SVP of 2, with 71,600 positions in the U.S. Tr. 952-53. The VE confirmed there were no conflicts with the DOT. Tr. 953.
Plaintiff's counsel modified the ALJ's hypothetical to change interaction to "less than occasional interaction with the public, with coworkers, and supervisors" and asked the VE what would be the impact on the jobs identified. Tr. 953-54. The VE testified that would eliminate all employment. Tr. 954. Counsel asked if there would be any jobs available in the national economy for the individual in the first hypothetical if they were off task more than 10 percent, and the VE responded in the negative. Id. Counsel asked how many absences would be tolerated for entry-level unskilled work, and the VE responded no more than one day per month. Id. Counsel added to the first hypothetical the limitation that the absences would exceed one day per month, and the VE responded that would not be compatible with competitive employment. Id.
After a closing statement from Plaintiff's counsel, Tr. 955-58, the hearing adjourned, Tr. 959. II. Discussion
A. The ALJ's Findings
In her April 15, 2019 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2019.
2. The claimant has not engaged in substantial gainful activity since August 5, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: disorder of back, dysfunction of major joints, anxiety and posttraumatic stress disorder (hereinafter PTSD) (20 CFR 404.1520(c)).
The claimant has the following non-severe impairments: coronary artery disease, hypertension, and gastroesophageal reflux disease (hereinafter GERD).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined 20 CFR 404.1567(b) except the claimant can lift 10 pounds frequently and 20 pounds occasionally; she can sit, stand, or walk, each, for 6 hours in an 8-hour workday. The claimant can never climb ladders, ropes, or scaffolds; she can occasionally climb ramps and steps; she can occasionally crouch, kneel, and crawl; she can frequently balance and stoop. The claimant should avoid concentrated exposure to cold and humidity. The claimant can maintain concentration, persistence and pace for simple, routine, repetitive tasks and instructions. She can have occasional contact with the public; she can have frequent contact with coworkers. She should avoid high volume, fast-paced production work jobs.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 29, 1972 and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school 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).Tr. 872-73, 878, 893-95.
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from August 5, 2013, through the date of this decision (20 CFR. 404.1520(g)).
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are "under a disability," defined as:
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 12 months[.]42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the listed impairments, found at 20 C.F.R. Part 404, Subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 428 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 428 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff alleges that the ALJ erred by (1) failing to properly account for Plaintiff's moderate limitations in concentration, persistence, and pace; and (2) failing to properly account for Plaintiff's mental impairments in the RFC. Pl.'s Br. 7, 14; ECF No. 14. The Commissioner argues that substantial evidence supports the ALJ's evaluation of Plaintiff's RFC in light of her moderate limitations in concentrating, persisting and maintaining pace and in light of her moderate limitations in interacting with others. Def.'s Br. 8, 13; ECF No. 17.
1. Plaintiff's Limitations in Concentration, Persistence, and Pace
Once again, Plaintiff argues that the ALJ failed to account for her moderate limitations in concentration, persistence, and pace in her RFC. Pl.'s Br. 7. Plaintiff contends the ALJ failed to explain how her RFC determination "takes into account Plaintiff's ability or inability to stay on task, or 'to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings.'" Pl.'s Br. 8 (quoting 20 C.F.R. Pt. 404 Subpt. P, App. 1, § 12.00(C)(3); Jackson v. Berryhill, No. CV 9:16-1560-TMC-BM, 2017 WL 1133252, at *8 (D.S.C. Mar. 15, 2017)). The Commissioner argues that under the revised regulations, a moderate rating means the individual has a "fair" ability sustain concentration, persistence, and pace on a sustained basis. Def.'s Br. 9 (citing 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00(F)(2)). The Commissioner argues that this new moderate rating addresses the concerns under Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) regarding a claimant's ability to stay on task. The undersigned disagrees. The regulation provides the following definitions under the five-point rating scale:
a. No limitation (or none). You are able to function in this area independently, appropriately, effectively, and on a sustained basis.20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00(F)(2). The only rating that assures a claimant can function on a sustained basis is if the individual has "no" limitations—all other ratings provide limitations in the ability to function. The Paragraph B criteria for maintaining concentration, persistence, and pace provides specific examples of a claimant's ability "to focus attention on work activities and stay on task at a sustained rate." See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(E)(3). The examples include:
b. Mild limitation. Your functioning in this area independently, appropriately, effectively, and on a sustained basis is slightly limited.
c. Moderate limitation. Your functioning in this area independently, appropriately, effectively, and on a sustained basis is fair.
d. Marked limitation. Your functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.
e. Extreme limitation. You are not able to function in this area independently, appropriately, effectively, and on a sustained basis.
Initiating and performing a task that you understand and know how to do; working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; changing activities or work settings without being disruptive; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; and working a full day without needing more than the allotted number or length of rest periods during the day.Id.
The ALJ provided in her RFC assessment that Plaintiff "can maintain concentration, persistence and pace for simple, routine, repetitive tasks and instructions. She can have occasional contact with the public; she can have frequent contact with coworkers. She should avoid high volume, fast-paced production work jobs." Tr. 878.
This court remanded this case three years ago so that ALJ Peace could reconsider his findings regarding Plaintiff's ability to maintain concentration, persistence, and pace over an eight-hour workday. Tr. 1034-35. Two additional hearings and one additional ALJ later, the Commissioner has still failed to provide an RFC that accomplishes that directive. The undersigned notes that, unlike the ALJ in Mascio, in her first hypothetical to the VE, ALJ Jordan provided specific limitations which addressed Plaintiff's ability to stay on task. Her hypothetical included the following:
I'm going to find the claimant is capable of concentration, persistence, and pace and could maintain that concentration for at least two hours for simple, routine, repetitive tasks instructions. As she would be able to understand the instructions and carry them out for at least two-hour periods.Tr. 951 (emphasis added). With those limitations the VE identified three exemplar jobs that could be performed—electronics worker, inspector/hand packager, and shipping and receiving weigher. Tr. 953. One could presume that the ALJ's failure to include the limitations from the hypothetical in her RFC assessment is harmless error because the same three jobs identified by the VE in response to the hypothetical at the hearing are included in the ALJ's decision. Tr. 894. However, it is unclear whether the ALJ's failure to incorporate into her RFC assessment the time limitations from the hypothetical regarding Plaintiff's ability to stay on task was inadvertent or intentional. Although the ALJ discussed opinion evidence that found Plaintiff had a poor ability to maintain attention and concentration, unlike the ALJ in Shinaberry v. Saul, 952 F.3d 113, 121-22 (4th Cir. 2020), ALJ Jordan gave little weight to these opinions. Tr. 891-93. Furthermore, nowhere in her decision does the ALJ address Plaintiff's ability to stay on task for only two-hour blocks of time. See Patterson v. Comm'r, Soc. Sec. Admin., 846 F.3d 656, 658 (4th Cir. 2017) ("Where an insufficient record precludes a determination that substantial evidence supported the ALJ's denial of benefits, this court may not affirm for harmless error.") (citing Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011)). Regrettably, the undersigned must once again recommend remand on this issue.
In Shinaberry v. Saul the Fourth Circuit observed that Mascio "[does] not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC." 952 F.3d at 121. The court upheld the ALJ's RFC because "the ALJ's findings and the mental limitation included in the RFC are sufficiently explained and supported by substantial evidence in the record." Id. at 121-22. --------
2. Plaintiff's Remaining Allegation of Error
Plaintiff also argues that the ALJ failed to address her moderate limitations in interacting with others by not including a limitation with regard to her ability to interact with supervisors. Pl.'s Br. 14. The Commissioner contends that "the ALJ specifically considered the medical opinion evidence relating to Plaintiff's social functioning in determining that Plaintiff did not require any specific limitation with respect to supervisors (Tr. 888-93)." Def.'s Br. 13. However, as noted by the Commissioner, the medical providers gave conflicting opinions on Plaintiff's ability to interact with supervisors. Id. at 14. Accordingly, the undersigned recommends that on remand the ALJ should address the issue of Plaintiff's ability to interact with supervisors. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the undersigned cannot determine that the Commissioner's finding is supported by substantial evidence or is without legal error.
Accordingly, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions, it is recommended that the Commissioner's decision be reversed and remanded for further administrative action as detailed within.
IT IS SO RECOMMENDED. September 29, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge