Opinion
C/A No.: 1:18-424-RMG-SVH
06-10-2019
Christopher Andrew Suber, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether she applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On March 7 and 12, 2014, Plaintiff filed applications for DIB and SSI, respectively, in which he alleged his disability began on February 27, 2012. Tr. at 228-39. His applications were denied initially and upon reconsideration. Tr. at 99-100, 129-40, 149-54. On October 21, 2016, Plaintiff had a hearing scheduled before Administrative Law Judge ("ALJ") Colin Fritz. Tr. at 71-74. The ALJ identified a potential issue regarding Plaintiff's cognitive capacity, as it appeared he had obtained a certificate through special education classes, rather than a high school diploma. Id. The ALJ determined it prudent to obtain a mental status examination and relevant high school records and rescheduled the hearing. Id.
The ALJ's decision reflects Plaintiff's DIB and SSI applications were filed on March 6 and 7, 2014, but his applications reflect they were filed on March 7 and 12, 2014, respectively. Compare Tr. at 12, with Tr. at 229, 231.
On April 21, 2017, Plaintiff had a hearing before the ALJ. Tr. at 32-70. (Hr'g Tr.). The ALJ issued an unfavorable decision on May 3, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 9-25. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on February 14, 2018. [ECF No. 1].
B. Plaintiff's Background, Medical, and Educational History
1. Background
Plaintiff was 24 years old at the time of the hearing, attended an alternative school, and received a certificate. Tr. at 34-38. His past relevant work ("PRW") was as an assembly line worker. Tr. at 40-41. He alleges he has been unable to work since February 27, 2012. Tr. at 228-39.
Unrelated medical records predating the alleged onset date were reviewed, but are not discussed in detail. See, e.g., Tr. at 441-43 (providing a visit for cough, ear pain, and nasal symptoms on March 8, 2011); 435-40, 444-45, 474-77 (providing visits for urinary hesitancy and similar issues on September 26 and 27, 2011).
On February 27, 2012, Plaintiff was admitted to Self Regional Healthcare ("Self Regional") due to suicidal ideation. Tr. at 478-504, 573. A head computerized tomography ("CT") scan and chest radiograph were unremarkable, but Plaintiff tested positive for marijuana. Tr. at 495, 502-04. Gregory Givens, M.D. ("Dr. Givens"), diagnosed depressive disorder and discharged Plaintiff on February 29, 2012. Tr. at 480.
On May 29, 2012, Plaintiff was transported by law enforcement pursuant to a court order and admitted to Self Regional for evaluation. Tr. at 505-28. Plaintiff reported he did not "know why he [was] [t]here," and the sheriff reported Plaintiff's mother had requested assistance when he began making threats that he was going to kill someone. Tr. at 518-19. The attending physician noted Plaintiff was cooperative upon arrival, but became irate the following day while on the phone with family members and made several accusations and threats. Id. The attending physician administered medication, and Plaintiff became more cooperative and polite. Tr. at 521-26. A hand x-ray was unremarkable, but Plaintiff tested positive for tetrahydrocannabinol ("THC") or marijuana. Tr. at 514, 516-17. Dr. Givens diagnosed paranoid state and discharged Plaintiff on June 2, 2012. Tr. at 507.
On July 13, 2012, Plaintiff presented to Self Regional with complaints of high blood pressure, but "left after triage." Tr. at 529-31.
On October 20, 2012, Plaintiff presented to John Baker, M.D. ("Dr. Baker"), at the Family Healthcare Ware Shoals Self Medical Group ("SMG"), for a mental consultation. Tr. at 432-34. Dr. Baker noted Plaintiff had been walking around, having conversations with himself, going into rages, and knocking on doors for keys to a vehicle at 1:00 a.m. Id. Plaintiff was "very paranoid" and had been employed by several different employers. Id. Dr. Baker found Plaintiff's mood and affect were normal, but assessed acute paranoid disorder and referred him for a mental health "urgent visit." Id.
Additional information regarding the visit was not provided in the record.
On December 30, 2013, Plaintiff was admitted to Self Regional for evaluation. Tr. at 532-40, 561-72. Plaintiff's mother, Angela Martin ("Ms. Martin"), initiated involuntary commitment paperwork after he burned his clothes, ran into the woods, and stated he would shoot others. Tr. at 535. Amanda B. Salas, M.D. ("Dr. Salas"), noted Plaintiff had a two-year history of "indolent, but progressively worsening psychotic symptoms, and paranoia who now present[ed] on probate pick up through the emergency department for bizarre behavior and ongoing paranoia." Tr. at 535. Dr. Salas also noted Plaintiff appeared to be "rather self protective and paranoid." Id.
Ms. Martin reported Plaintiff had "been walking around in the rain conversing with himself for hours on end, and responding to internal stimuli," he walked around that morning stating he smelled blood, and held a tire jack like a gun to protect himself. Tr. at 536. Ms. Martin was concerned "because his thinking ha[d] been so bizarre and unlike himself, that he perhaps could be at increased risk of harming others due to his disorganization" and noted he had been wandering the streets in a confused state for a period of time. Id. Ms. Martin reported incidents when Plaintiff accused others of "talking about him" or "pulling guns on him," noted he threw out a television because he believed it was "talking about him," lost his job working on refrigerators due to a failed drug screen, and lost four jobs in 2012 "due to his disorganization." Id. Ms. Martin also reported members in the community and family members had contacted her to voice concerns and she feared "for the safety of people in the family as well as in the community." Id.
Dr. Salas noted it was Plaintiff's first formal hospitalization in a psychiatric facility, but he had two evaluations at a behavioral health holding unit in 2012 after using synthetic marijuana, with Ms. Martin reporting Plaintiff had "not been right in his thinking ever since." Tr. at 537. Ms. Martin reported she moved Plaintiff out of her home in October 2012 because she "no longer fe[lt] safe with him." Tr. at 537-38. After a failed attempt to live with his grandparents, Plaintiff moved to a trailer alone and his mother paid his expenses. Id. Plaintiff had failed attempts to quit smoking marijuana and cigarettes, but he did not drink alcohol. Tr. at 538.
Dr. Salas found Plaintiff had increased latency to speech onset, diminished psychomotor activity and impoverished thought content and was guarded, suspicious, paranoid, and malodorous, with blunted affect and narrowed insight and judgment, but he reported a normal mood and was alert. Id. Dr. Salas noted Plaintiff was not responding to internal stimuli, but "his avoidance of stimuli suggest[ed] that it [was] difficult for him to manage being in an overly stimulating environment." Tr. at 538-39. Dr. Salas also noted Plaintiff was "willing to take medications, as he recogniz[ed] his thinking [was] off." Tr. at 539. A brain CT scan from February 2012 showed "an incidental finding of left mastoid effusion, but no evidence of mass shift, herniation or intracranial hemorrhage for calvarial fracture." Tr. at 538. Dr. Salas diagnosed chronic paranoid-type schizophrenia and cannabis and nicotine dependence, with a Global Assessment of Functioning ("GAF") score of 25. Tr. at 534, 539. Dr. Salas involuntarily committed Plaintiff and noted,
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 21-30 reflects behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). DSM-IV-TR.
I have reviewed the case records from February and May of 2012 as well as obtained collateral information from his mother Angela Martin as noted per above. This appears to be in an indolent yet chronic and progressively worsening onset of psychosis with positive and negative symptoms now congruent with the pattern of schizophrenia, despite previous treatment. He has attempted to abstain from marijuana, but now appears to be dependent on this substance which perhaps contributes to his worsening of psychiatric symptoms. Nonetheless, the chronicity of his symptomatology suggest exacerbation of primary severe mental illness, that is in need of antipsychotic treatment. Historically [Plaintiff] has been minimally cooperative and compliant with recommendations for treatment.Tr. at 539. Dr. Salas prescribed Invega and anticipated a two-week hospitalization. Tr. at 539-40.
On January 1-3, 2014, Dr. Salas and Emile A. Barrouk, M.D. ("Dr. Barrouk"), completed various progress notes. Tr. at 545-51, 559-60.
On January 6, 2014, Dr. Salas noted Plaintiff had a guarded demeanor, blunted affect, narrow-to-poor insight and judgment, and increased latency to onset of speech with possible thought blocking and cognitive dulling. Tr. at 552-53. Dr. Salas also noted Plaintiff denied auditory and visual hallucinations, but staff had observed him responding to internal stimuli. Id. Plaintiff agreed to receive Invega Sustenna injections. Id.; Tr. at 463-67.
On January 7 and 8, 2014, Dr. Salas completed progress notes. Tr. at 554-58. Dr. Salas noted Plaintiff had a court hearing scheduled the following day and she would recommend discharge with mandated outpatient mental health and substance abuse treatment. Tr. at 558.
On January 9, 2014, Dr. Barrouk and Dr. Salas discharged Plaintiff and prescribed Trazodone. Tr. at 468-72. Dr. Salas diagnosed chronic paranoid-type schizophrenia and cannabis dependence and assessed a GAF score of 45 to 50. Tr. at 542. Dr. Salas noted,
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
These last several days of time in the inpatient setting, he has been at least 48 hours without active symptoms of psychosis, although it is noted that his negative symptoms appear to persist at a level that is not congruent with where he was functioning in
high school; however, they are not interfering with his ability to engage in daily activities or relationships that would otherwise warrant ongoing inpatient stay.Tr. at 543. Dr. Salas noted an improved condition and discharged Plaintiff with mandated outpatient treatment at Beckman Mental Health Center ("BMHC") and substance abuse treatment and scheduled monthly Invega injections. Id.
On February 20, 2014, Plaintiff presented to Alfred R. Ebert, M.D. ("Dr. Ebert"), at BMHC. Tr. at 447-48. Plaintiff denied hallucinations or feelings that others were "out to get him" and reported his "mood [wa]s 100%." Id. Plaintiff also reported he had not smoked cannabis or used any illicit drugs since discharge from the hospital and he felt "good about himself." Id. Dr. Ebert found Plaintiff was alert, oriented, and cooperative and had good judgment and insight, euthymic mood, appropriate affect, logical or goal-directed thought process, and intact attention, concentration, and memory, with no psychomotor abnormalities. Tr. at 447-48. Dr. Ebert assessed paranoid-type schizophrenia and cannabis dependence with migraine headaches and prescribed Invega Sustenna shots every month with Trazodone. Tr. at 448.
On February 23, 2014, Plaintiff presented to Self Regional via ambulance after a motor vehicle accident, with complaints of headaches, lacerations, contusions, swelling, and lower extremity pain. Tr. at 575-600. The attending nurse found Plaintiff was alert and oriented, with developmentally age-appropriate responses, but had pain and swelling over his left orbit. Tr. at 579. The attending physician found Plaintiff's left eye was swollen shut and his right lower leg was swollen, with ankle and foot tenderness, but his mood and affect were normal. Tr. at 580. Head and cervical spine CT scans reflected no evidence of acute intracranial abnormality, calvarial fracture, or malalignment, but reflected a left orbital blowout fracture. Tr. at 462, 596-97. A face CT scan reflected fractures of the left orbit involving the medial wall and floor, mild enlargement of the inferior rectus muscle, hemorrhage within the left maxillary sinus, left periorbital soft tissue swelling, and left mastoid effusion. Id.; Tr. at 595. A right ankle x-ray reflected moderate soft tissue swelling above the entire right ankle with a small joint effusion, and a foot x-ray reflected mild soft tissue swelling, but a leg x-ray reflected no tibial or fibular injury. Tr. at 598-600, 609-11. The attending physician assessed orbital and foot fractures, prescribed medications, discharged Plaintiff in stable condition, and recommended follow up with an orthopedist and Greenwood Eye Clinic. Tr. at 584-91.
On February 26, 2014, Plaintiff presented to Jennifer Hershberger, M.D. ("Dr. Hershberger"), at Greenwood Eye Clinic, with complaints of pain, swelling, and blurry vision in his left eye. Tr. at 628-30. Dr. Hershberger assessed a left orbital floor fracture, tissue contusion, and conjunctival hemorrhage and scheduled a return visit in three weeks. Id.
Also on February 26, 2014, Plaintiff presented to Charles D. Gray, M.D. ("Dr. Gray"), at Lakelands Orthopaedic and Sports Medicine Clinic ("Lakelands Orthopaedic"). Tr. at 612-14. Dr. Gray found swelling and tenderness along the medial and lateral aspect of the ankle and dorsum aspect of the midfoot and noted Plaintiff was unable to flex his ankle due to pain. Tr. at 613. X-rays revealed an avulsion fracture of the right foot's dorsum navicular. Tr. at 612. Dr. Gray assessed an avulsion fracture, with a large amount of swelling. Tr. at 613. Dr. Gray provided a splint, instructed Plaintiff not to place weight on his foot, and scheduled a follow-up visit. Id.
On March 7, 2014, Plaintiff presented to Douglas F. Powell, M.D. ("Dr. Powell"), at Lakelands Orthopaedic, with continued complaints of pain and swelling. Tr. at 615-16. Dr. Powell found significant ankle and foot swelling with tenderness. Tr. at 616. Dr. Powell noted he could not rule out a medial malleolus or talus fracture, ordered a magnetic resonance image ("MRI"), and provided a walker. Id.
On March 10, 2014, an MRI reflected multifocal osteo-edema, but no distinct fracture. Tr. at 617.
On March 19, 2014, Plaintiff presented to Dr. Hershberger at Greenwood Eye Clinic for follow up. Tr. at 625-27. Dr. Hershberger performed an exam and noted Plaintiff's orbital floor fracture was doing well, his orbital tissue contusion and edema had improved, and his conjunctival hemorrhage was "almost resolved." Id.
On April 1, 2014, Dr. Hershberger noted Plaintiff had been seen twice for his left orbital fracture and swelling, there was "no treatment," his injury was "healing well," and he "should have no lasting effects." Tr. at 623-24.
On June 23, 2014, Aroon Suansilppongse, M.D. ("Dr. Suansilppongse"), a state agency physiatrist, reviewed the record and provided a psychiatric review technique ("PRT") assessment. Tr. at 79-81, 92-93. Dr. Suansilppongse opined Plaintiff had mild restrictions in activities of daily living (ADLs"), moderate difficulties in maintaining social functioning, concentration, persistence, or pace, and one or two episodes of decompensation of extended duration. Id. Dr. Suansilppongse also completed a mental residual functional capacity ("RFC") assessment. Tr. at 81-83, 93-95. Dr. Suansilppongse opined Plaintiff was moderately limited in his abilities to understand, remember, or carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or in proximity to others without being distracted by them, or complete a normal workday without interruptions from psychologically-based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. Id. Dr. Suansilppongse explained,
[Plaintiff] is able to carry out simple instructions. His depressive reaction and alleged hallucinatory experience would interfere with his ability for sustained concentration and persistence or for task completion. However, [Plaintiff] would be able to complete tasks at an acceptable pace.Tr. at 82.
Dr. Suansilppongse opined Plaintiff would be moderately limited in his abilities to interact appropriately with the general public, accept instructions and respond appropriately to criticism, or get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 82-83. Dr. Suansilppongse explained, "[h]is social withdrawal and paranoid tendencies would interfere with his ability to interact appropriately with supervisors, coworkers or the public. However, he would be able to complete tasks with infrequent contact with others." Tr. at 83. Dr. Suansilppongse opined Plaintiff would be moderately limited in his ability to respond appropriately to changes in the work setting or set realistic goals or make plans independently of others. Id. Dr. Suansilppongse explained Plaintiff's "transient cognitive dysfunction and marijuana abuse would occasionally interfere with his adaptability in a routine work setting." Id. Dr. Suansilppongse provided an additional explanation for his overall mental RFC assessment, noting, "[Plaintiff] has [the] mental capacity for simple work related activity (1-2 steps tasks) with infrequent interactions with coworkers and the public. . . . [Plaintiff's] allegations are supported by [the medical evidence record] and credible." Id.
On June 24, 2014, Sonia Williams, M.D. ("Dr. Williams"), a state agency physician, reviewed the record and opined Plaintiff had no lasting effects from any physical injuries. Tr. at 78-79.
On July 28, 2014, Plaintiff presented to Dr. Ebert for follow up. Tr. at 637-38. Plaintiff reported he took Trazodone, slept well, and his Invega shot kept him calm. Tr. at 637. Plaintiff also reported he felt "better about himself," went out more, and got along well with others. Id. Plaintiff denied using illicit drugs or drinking alcohol, having hallucinations and paranoia, or possessing any special powers. Id. Dr. Ebert found Plaintiff's appearance and eye contact were within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal for him, his associations, memory, attention, and concentration were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented to time, place, person, and circumstance, and his judgment and insight were good. Id. Dr. Ebert assessed a GAF score of 58 and noted Plaintiff's migraine headaches and diagnoses of paranoid-type schizophrenia and cannabis dependence. Id.
A GAF score of 51-60 indicates "moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR.
On August 15, 2014, Douglas Robbins, Ph.D. ("Dr. Robbins"), a state agency psychologist, reviewed the record upon reconsideration and affirmed Dr. Suansilppongse's initial PRT and mental RFC assessments, noting Plaintiff's mental impairment was severe, but he had the capacity to perform "simple work related activity (1-2 steps tasks) with infrequent interactions with coworkers and the public." Tr. at 107-12, 121-26.
On August 20, 2014, George Walker, M.D. ("Dr. Walker"), a state agency physician, reviewed the record upon reconsideration and affirmed Dr. Williams' opinion, noting Plaintiff had no lasting effects from any injuries and did not allege physical limitations. Tr. at 106-07, 120-21.
On January 21, 2015, Plaintiff presented to Dr. Ebert and reported he was "doing all right." Tr. at 644-45. Dr. Ebert noted Plaintiff was compliant with medication and treatment, his sleep and appetite were normal, he denied mood lability, hallucinations, or delusional thoughts, and continued "to live independently and [was] looking for employment." Tr. at 644. Dr. Ebert found Plaintiff's appearance and eye contact were within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, attention, and concentration were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment and insight were good. Id. Dr. Ebert assessed a GAF score of 60 and noted Plaintiff's migraine headaches and diagnoses of paranoid-type schizophrenia and cannabis dependence. Id. Dr. Ebert ordered bloodwork and noted Plaintiff's treatment goals were symptom reduction, medication adherence, maintenance of therapeutic gains, and restoration of functioning. Id. Dr. Ebert recommended follow up with a mental health clinician for psychotherapy interventions. Tr. at 645.
On June 8, 2015, Plaintiff presented to Dr. Ebert and reported he was "working" and "doing well." Tr. at 649-50. Plaintiff also reported his mood was good and denied hallucinations, paranoia, or marijuana use. Tr. at 649. Dr. Ebert noted counseling had been exhausted, Plaintiff was "busy," and he requested medical management only. Id. Dr. Ebert approved his request, with the understanding that Plaintiff would notify the nurse when he received his injection if he had any issues. Id. Dr. Ebert found Plaintiff's appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, attention, and concentration were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment and insight were good. Id. Dr. Ebert assessed a GAF score of 60. Id.
On July 8, 2015, Plaintiff presented to Dr. Ebert and reported he was "doing well," he thought the "shot help[ed] a lot" and kept the hallucinations away, and he felt "better." Tr. at 647-48, 660-61. Plaintiff also reported he continued to live by himself with no suicidal or homicidal thoughts. Id. Dr. Ebert noted Plaintiff was pleasant, logical, showed no evidence of decompensation, and denied use of alcohol or drugs. Tr. at 647. Dr. Ebert found Plaintiff's appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, attention, and concentration were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment and insight were good. Id. Dr. Ebert assessed a GAF score of 60. Id. Dr. Ebert noted Plaintiff agreed to continue his medication and understood why it was necessary. Tr. at 648.
On February 29, 2016, Plaintiff presented to Dr. Ebert and reported he was "generally doing well," but sometimes heard voices or his name being called and saw shadows, with paranormal feelings. Tr. at 654-55, 658-59. Plaintiff also reported he received the Invega injection every month and had not consumed alcohol or used illicit drugs. Id. Dr. Ebert found Plaintiff's appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, concentration, and attention were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, and his judgment and insight were good, but he had delusions and "special thoughts." Id. Dr. Ebert assessed schizophrenia and noted Plaintiff would remain in medical management only, but increased Plaintiff's dosage to 234 mg of Invega Sustenna, with instructions to contact him if there were any issues. Id.
On June 20, 2016, Plaintiff presented to Dr. Ebert and reported he was "[t]rying to get a job." Tr. at 652-53, 656-57, 670-71. Plaintiff explained he lost his last job after one month and was not told why, but later acknowledged he had been late three times. Id. Plaintiff stated he had an interview scheduled for a local plant job. Id. Plaintiff denied hallucinations or paranoia and acknowledged he missed injections, but reported he was still "calm [with] stable mood." Id. Dr. Ebert found Plaintiff's appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, and attention were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment was good. Id. Dr. Ebert assessed schizophrenia and noted Plaintiff would remain in medical management. Id.
On November 14, 2016, Plaintiff presented to Dr. Ebert and reported he felt "better now." Tr. at 672-73. Plaintiff also reported he worked part- time cleaning during the weekend and denied consuming alcohol or illicit drugs or having hallucinations, but admitted his deceased grandfather occasionally spoke to him. Id. Dr. Ebert noted Plaintiff "appeared pleasant, cooperative, logical, and easy to talk to." Id. Dr. Ebert found Plaintiff's appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, concentration, and attention were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment and insight were good. Id. Dr. Ebert assessed schizophrenia and prescribed Trazodone, Invega Sustenna, Cogentin, and Benadryl. Id.
On November 28, 2016, Plaintiff presented to Ron O. Thompson, Ph.D. ("Dr. Thompson"), at the request of the ALJ for a consultative examination. Tr. at 662-65. Dr. Thompson noted Plaintiff was accompanied by his mother and grandmother, his appearance was casually dressed and clean, and he maintained good eye contact, but he appeared "moderately medicated and somewhat sluggish, with overall psychomotor activity level falling in the lethargic range." Tr. at 662. Dr. Thompson noted Plaintiff took psychotropic medication and his mother reported these symptoms were the side effects. Id. Dr. Thompson provided the following mental status:
As noted above, the ALJ identified a potential issue regarding Plaintiff's cognitive capacity and determined it prudent to obtain a mental evaluation and school records. Tr. at 71-74.
[Plaintiff] presents with a medicated mood and affect is congruent to mood. He describes his mood as "sleepy." He is alert and appropriately oriented, but was 1 day off on the day of the month. He knew the president and the president-elect's name. Insight and judgment did appear somewhat limited. Stream of mental activity was goal-directed and he was rather talkative at times and speech was coherent. He displayed adequate fine and gross motor skills, but tended to give up rather easily on tasks during testing. Also he was a bit inattentive and lacked concentration, likely due to his medicated affect. His main worries are about death and he states that his [grand]father died 3 weeks ago at the age of 83 and he was very close to him. . . . [Plaintiff] does endorse rather vaguely auditory hallucinations "hearing [his] name called, hearing strange noises like popping sounds, some voices telling [him] to do something bad or quit doing a job that [he] was doing." He did not appear in any acute psychiatric distress today, but clearly moved and thought very slowly and I believe test scores did reflect that to some extent.Tr. at 663. Plaintiff reported he slept adequately with his medication, his mother cooked his meals, and he took care of his mobile home with his family's assistance. Id. He also reported "he [was] generally independent in all of his daily activities and ha[d] a 12-hour 1-day a week job," occasionally working two days a week, and "depend[ed] on family to take him to work." Id. Plaintiff stated he attended school through the twelfth grade, but had been in learning-disabled classes and received a certificate of attendance. Id. Plaintiff also stated he presented to the mental health center once a month for an Invega shot and took Cogentin for extrapyramidal effects and Trazodone to sleep, but he did not bring his medications or know their strengths. Id. Dr. Thompson administered the Weschler Adult Intelligence Scale, Fourth Edition ("WAIS-IV") and Wide Range Achievement Test, Fourth Edition ("WRAT-4"). Id. Dr. Thompson noted Plaintiff had a full-scale IQ score of 66 on the WAIS-IV and 67 and 68 for reading and math on the WRAT-4. Id. Dr. Thompson opined,
[o]n the basis of performance, effort, motivation, and test taking attitude, scores obtained on the test battery appeared to be reliable and reflective of his current medication side effects. Given a history of special education, current scores appear to be reasonably consistent with his vocational history and native intellectual capacity, probably somewhat less than normal but still within the confidence interval.Tr. at 664. Dr. Thompson assessed learning, reading, and mathematic disorders, schizophrenia, and mild or borderline mental deficiency. Id. Dr. Thompson concluded,
This 24-year-old was pleasant and polite, but appeared quite heavily sedated. It appears that Christopher is living at or near his pinnacle of ability, given the medications he is taking and his overall intellectual ability. He is working one 12-hour shift a day and states that he likes his job, which appears to be, in this clinician's view, admirable and consistent with his current ability. I do not believe him competent to manage benefits in his own best interest however. He is quite dependent on family members who assist him in his basic [activities of daily living ("ADLs")].Tr. at 664.
On February 6, 2017, Plaintiff presented to Dr. Ebert and reported he was "doing ok." Tr. at 674-75. Plaintiff also reported he went out every day, tried not to get upset with others, visited his mother "who cook[ed] for him and help[ed] him," and did odd jobs once a week, which he felt he could handle without too much stress. Id. Plaintiff denied having hallucinations or paranoia, using illicit drugs, or consuming alcohol. Id. Dr. Ebert found Plaintiff's appearance was within normal limits, his attitude was cooperative, his behavior was calm, his speech was normal, his associations, memory, concentration, and attention were intact, his thought process was logical or goal directed, his mood was euthymic, his affect was appropriate, he was oriented, and his judgment and insight were good. Id. Dr. Ebert assessed schizophrenia and prescribed Trazadone, Invega Sustenna, Cogentin, and Benadryl. Id.
3. Educational History
A scholastic record from Ware Shoals High School showed Plaintiff failed several classes and the exit requirements for high school and received a "District Non-Diploma Document." Tr. at 395-407, 419-21. However, the district office reported Plaintiff "d[id] not have special education records or evaluation reports." Tr. at 395, 420.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on April 21, 2017, Plaintiff testified he was 24 years old, attended an alternative school and received a certificate, and had lived in a mobile home by himself for four or five years. Tr. at 34-38. He stated he repeated second grade. Tr. at 47. His PRW was as an assembly line worker. Tr. at 40-41. Plaintiff stated his mental health treatment began when he was 17 or 18, he saw Dr. Ebert every four months, received a monthly shot of Invega for paranoia, and took medication for tremors. Tr. at 45-46. He testified his medications helped his auditory hallucinations, but he continued to have tremors. Tr. at 46. He stated he had difficulty obtaining his permit, but had a driver's license, although he did not drive because his mother did not trust him due to his conditions. Tr. at 47. He testified he was paranoid, did not cook, did not maintain a bank account, never wrote a check, and never went to the store by himself, but his mother prepared his meals, paid his bills, picked out items he needed at the store, took him to doctor appointments, and administered his medications every day. Tr. at 47-52. He testified he lived alone because his mother was scared after he jumped through a glass table when he was around 17 and she said he needed his own place. Tr. at 49-50, 52. He stated he spent his time watching television or sleeping because his medications caused drowsiness, difficulty focusing, cramping, and aching. Tr. at 48-51. Plaintiff testified Dr. Ebert prescribed his medications and had increased his Invega dosage within the last year. Tr. at 51.
During his testimony, Plaintiff discussed various positions he attempted to perform. Tr. at 39-44 (describing positions as a night cleaner at Plastic Omni, refrigerator worker at Electrolux, bagger at Piggly Wiggly, rack loader at Greenwood Metal Plant, mover at Atlas Moving Company, packager at Rem Pro, and presser at Flakeville Technology). However, Plaintiff explained he used a placement agency for these positions and the ALJ only found his assembly line work constituted PRW. Tr. at 43.
He stated he had cramps and daily headaches for two hours. Tr. at 49-50. He also stated he was involved in a car accident in 2014 in which he fractured his ankle and broke his right foot, but he did not have any current issues from the incident. Tr. at 50.
b. Plaintiff's Mother's Testimony
Plaintiff's mother, Ms. Martin, testified at the hearing. Tr. at 53. She explained she saw Plaintiff every day, but he lived by himself because he had tried to kill her. Tr. at 54-55. She testified he had stayed with her parents briefly, then with her brother in Atlanta, then back with her parents, and then back with her. Tr. at 55. She stated that when he tried to commit suicide with some pills, she called law enforcement and he jumped onto a glass table. Id. She also testified he would have ongoing conversations of 15-20 minutes with himself, fight the air, and run through the woods. Id. She stated he had been in and out of mental health facilities and was eventually diagnosed as paranoid schizophrenic and prescribed Invega. Tr. at 55-56. She noted he received an Invega shot once a month at BMHC, to which she or her father took him. Tr. at 56. She explained Plaintiff had increasingly heard voices within the prior year and was prescribed an Invega pill, as well. Id. She stated she provided Plaintiff's meals and medications and he did not cook because he had a problem with setting things on fire. Tr. at 56-57. She said the medications caused him to be solemn, with droopy eyes, an open mouth, and unhappy. Tr. at 57-58. She stated he complained of headaches, but he did not have insurance for treatment. Tr. at 58.
She explained Plaintiff went to an alternative school to avoid repeating the twelfth grade and received a certificate, not a diploma from high school. Tr. at 53-54. She testified he worked at Piggly Wiggly after school in eleventh grade for 10 to 16 hours per week. Tr. at 58. She stated he had never worked a full-time job and attempted a 32-hour per week temporary job through Marathon Staffing in 2012 or 2013, but his hallucinations interfered. Id. She said a family member got him a job at Electrolux putting stickers on refrigerators and he would stay to himself and work well until he would get around a lot of people and had a panic attack. Tr. at 59. She said he could not handle the full-time job after three months, and she did not believe he could handle a job because he did not like to be around people and wanted to be taken home. Tr. at 59-60. For example, Plaintiff requested she take him home from a family gathering for Easter because he was nervous and did not want to be around others. Tr. at 60. She testified he was a good person and had never been in trouble, but was paranoid others were out to get him. Tr. at 60-61. She said the medication helped his paranoia, but caused him to move slowly and continuously look around or move. Tr. at 61-62. She constantly had to remind him to bathe and collect his clothes for her to launder. Tr. at 62. She stated she tried unsuccessfully to obtain vocational rehabilitation for Plaintiff, and the ALJ confirmed the record reflected some earnings from Greenwood Rehabilitation Center. Tr. at 61-63.
c. Vocational Expert's Testimony
Vocational Expert ("VE") Robert E. Brabham, Jr., reviewed the record and testified at the hearing. Tr. at 63-69, 422. The VE categorized Plaintiff's PRW at Electrolux as an assembly line worker, semiskilled, and generally performed at the medium exertion level, with specific vocational preparation ("SVP") of 3, Dictionary of Occupational Titles ("DOT") No. 827.684-010. Tr. at 64-65. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could occasionally be exposed to hazards associated with unprotected machinery or unprotected heights; had sufficient concentration, persistence, and pace to understand, remember and carry out simple, routine tasks in a low stress work environment free of fast-paced or team-dependent production requirements involving simple work-related decisions, occasional independent judgment skills and occasional work place changes; could perform jobs largely isolated from the general public, involving data and things rather than people, that needed to be completed independently from coworkers, but physical isolation was not required; and could respond appropriately to reasonable and customary supervision. Tr. at 65-66. The VE testified the hypothetical individual could perform unskilled, medium work, with an SVP of 2 as: (1) a dishwasher, DOT No. 318.687-010; (2) a janitor, DOT No. 323.687-010; and (3) a laundry worker, DOT No. 369.687-026, with more than 155,000 positions, 122,000 positions, and 280,000 positions available nationally, respectively. Tr. at 66.
The ALJ modified the first hypothetical to, instead of physical isolation not being required, one who would perform best with little coworker contact or interaction. Id. The VE stated there were jobs that allowed for an individual to work independently of others, as provided for the first hypothetical, but there were no jobs at the unskilled level that would accommodate inability to work in proximity to others. Tr. at 67-68. The VE clarified that his response to the first hypothetical accounted for an individual who could not work in conjunction or coordination with others. Id.
In response to Plaintiff's counsel's questioning, the VE responded that if the hypothetical person were off task 10% or more of an average day or would miss two or more days a week per month, there would not be available employment. Tr. at 68-69.
The VE testified his opinions regarding time off task, absenteeism, and coworker contact, interaction, or proximity were based upon his experience. Tr. at 69.
2. The ALJ's Findings
In his decision dated May 3, 2017, 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 June 30, 2015 (Exhibit 11D).
2. The claimant has not engaged in substantial gainful activity since February 27, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: schizophrenia, learning disorder, and mild/borderline mental deficiency (20 CFR 404.1520(c) and 416.920(c)).
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, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: the claimant can only occasionally be exposed to hazards associated with unprotected dangerous machinery or unprotected heights; over the course of an eight-hour workday, in two-hour increments with normal and acceptable work breaks, the claimant has sufficient concentration, persistence, and pace to understand, remember, and carry out simple, routine tasks, in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-
related decisions, occasional independent judgment skills, and occasional work place changes; the claimant can perform jobs where the worker is largely isolated from the general public, dealing with data and things rather than people; the claimant can perform jobs where the work duties can be completed independently from coworkers, however, physical isolation is not required; and the claimant can respond appropriately to reasonable and customary supervision.Tr. at 14-25. II. Discussion
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on May 20, 1992 and was 19 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. 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, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from February 27, 2012, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ failed to properly explain his Listings analysis to show substantial evidence supported his decision;
2) the ALJ incorrectly determined Plaintiff did not meet Listing 12.05;
3) the ALJ erroneously assigned only some weight to the consultative examiner;
4) the ALJ failed to comply with SSR 16-3p when assigning weight to witness statements; and
5) the ALJ did not properly consider medication side effects.
The Commissioner counters substantial evidence supports the ALJ's findings and the ALJ committed no legal error in his decision.
A. 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." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability 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 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he 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 him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. 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), 416.920(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and 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, 416.925. 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), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if he 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. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his 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 the claimant can perform alternative work and such work exists in the national 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 he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (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, 296 F.3d at 290 (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, 438 F.2d 1157, 1157 (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. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citation omitted); see also 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 her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). 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).
B. Analysis
Plaintiff argues the ALJ's analysis of the Listings was not supported by substantial evidence as he failed to address the limited extent of Plaintiff's activities or conflicting evidence, while finding he had only moderate limitations in his mental functioning. [ECF No. 17 at 21-29].
The Commissioner responds that substantial evidence supports the ALJ's decision to find moderate limitations, rather than marked or extreme, in each of the relevant areas, as Plaintiff improved with treatment, could perform certain activities, lived alone, and worked one day a week. [ECF No. 21 at 15-20].
Plaintiff reiterates the ALJ improperly relied on activities to support a moderate restriction without considering their limited extent. [ECF No. 25 at 3-4]. Plaintiff contends he lives alone because his family is "too scared to live with him" and, despite living alone, he is dependent on his family, as his mother prepares most of his meals, manages his finances, and reminds him to take his medications, shower, and change clothes. Id.
"When there is 'ample evidence in the record to support a determination' that the claimant's impairment meets or equals one of the listed impairments, the ALJ must identify 'the relevant listed impairments' and compare 'each of the listed criteria to the evidence of [the claimant's] symptoms.'" Ezzell v. Berryhill, 688 F. App'x 199, 200 (4th Cir. 2017) (quoting Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986)); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (noting that "full explanation by the ALJ is particularly important" when "there is probative evidence strongly suggesting that [the claimant] meets or equals" a Listing).
"The Listings for mental disorders are arranged in 11 categories." 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, Listing 12.00A1 (eff. Mar. 27, 2017 to Aug. 21, 2017). In this case, the ALJ evaluated whether Plaintiff met Listings 12.02 (neurocognitive disorder), 12.03 (schizophrenia spectrum and other disorders), 12.05 (intellectual disorder), and 12.11 (neurodevelopmental disorders). Tr. at 16-17. As the Agency explains, "[p]aragraph B of each listing (except 12.05) provides the functional criteria we assess, in conjunction with a rating scale . . . to evaluate how your mental disorder limits your functioning." 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, Listing 12.00A2b. "These criteria represent the areas of mental functioning a person uses in a work setting": (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. Id. "We will determine the degree to which your medically determinable mental impairment affects the four areas of mental functioning and your ability to function independently, appropriately, effectively, and on a sustained basis." Id.
All citations to the Listings are to the version in effect at the time of the ALJ's decision on May 3, 2017. See, e.g., Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138-01 ("[W]e will use these final rules on and after their effective date, in any case in which we make a determination or decision. We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the effective date of these final rules, we will apply these final rules to the entire period at issue in the decision we make after the court's remand.).
"To satisfy the paragraph B criteria, your mental disorder must result in 'extreme' limitation of one, or 'marked' limitation of two, of the four areas of mental functioning." Id. An extreme limitation means you "are not able to function in this area independently, appropriately, effectively, and on a sustained basis," a marked limitation means your functioning is seriously limited, and a moderate limitation means your functioning is fair. Id. at Listing 12.00F. "The degree of limitation of an area of mental functioning also reflects the kind and extent of supports or supervision you receive and the characteristics of any structured setting where you spend your time, which enable you to function." Id. "The more extensive the support you need from others or the more structured the setting you need in order to function, the more limited we will find you to be." Id.
Here, the ALJ only found Plaintiff had moderate limitations in each paragraph B criteria. Tr. at 16-17.
In understanding, remembering, or applying information, the ALJ acknowledged Plaintiff alleged he had difficulty understanding and remembering information and the record reflected he had a mild or borderline mental deficiency with a low full-scale IQ score and hospital notes indicated he was a poor historian. Tr. at 16. However, the ALJ reasoned Plaintiff's memory improved with treatment based on mental status exams indicating he had intact recent and remote memory. Id. In doing so, the ALJ failed to acknowledge Plaintiff's ability to understand information continued to be impacted.
In interacting with others, the ALJ acknowledged Plaintiff alleged he had difficulty getting along with others and the record showed he had a history of responding to internal stimuli, making threats, paranoia, irritability, and unsuccessful attempts to live with several family members. Tr. at 16. However, the ALJ found Plaintiff remained in close contact with his family, was able to interact appropriately with medical staff, and "able to at least function in public, as he shops in stores, attends church, and obtained employment." Id. In doing so, the ALJ failed to consider that Plaintiff's unsuccessful efforts to live with family were due to his condition and behavior, including failed attempts to kill his mother and himself, such that he was involuntarily committed for a period of time, with court-mandated outpatient treatment upon discharge, and his mother testified she could not live with him, such that she paid for his expenses to live in a trailer alone. See, e.g., Tr. at 54-55, 532-72. The ALJ also failed to consider Plaintiff's family remained in close contact to assist him with his medications, food, ADLs, bills, and transportation to various places. See, e.g., Tr. at 303-10 (providing Plaintiff's function report in April 2014 that noted his mother or family reminded him to wash, clean, or take his medicine, brought him food, paid his bills, and brought him to the store, church, or doctor's appointments), 348-55 (similar in August 2014), 329-36 (providing Plaintiff's sister's third-party function report in April 2014 stating similar activities were observed), 357-64 (similar in August 2014), 664 (providing Dr. Thompson's notation that Plaintiff was "quite dependent on family members who assist him in his basic ADLs" in November 2016), 674-75 (noting Plaintiff's report to Dr. Ebert that his mother cooked for him and helped him in February 2017), 47-52 (providing Plaintiff's testimony regarding his mother's assistance, stating she prepared his meals, paid his bills, picked out items he needed at the store, took him to doctor appointments, and administered his medications every day in April 2017). Also, while Plaintiff had been able to obtain employment for brief periods, he was unable to maintain it and the ALJ found his only PRW was as an assembly line worker. See, e.g., Tr. at 40-41 (providing discussion during hearing), 64-65 (providing VE's testimony), 296 (listing various positions held for intermittent periods since 2012), 314 (similar), 58-63 (providing Plaintiff's mother's testimony regarding various employment attempts).
In concentration, persistence, and pace, the ALJ acknowledged Plaintiff alleged he had difficulty focusing, concentrating, and following instructions, and Dr. Thompson noted there were attention and concentration issues at his November 2016 consultative examination. Tr. at 16-17. However, the ALJ found Plaintiff's mental status exams showed intact attention and concentration and he was "able to perform a variety of simple tasks, such as driving a vehicle, preparing meals in the microwave, mowing the lawn, making a sandwich, washing dishes, sweeping, and counting change." Tr. at 17. The ALJ failed to explain how these simple activities supported Plaintiff was not more than moderately limited by his mental disorder in concentration, persistence, or pace. See 20 C.F.R., Pt. 404, Subpt. P, Appx. 1 ("We will consider the complete picture of your daily functioning, including the kinds, extent, and frequency of help and support you receive, when we evaluate your mental disorder . . . the fact that you have done, or currently do, some routine activities without help or support does not necessarily mean that you . . . are not disabled. For example, you may be able to take care of your personal needs, cook, shop, pay your bills, live by yourself, and drive a car."); see also Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 269 (4th Cir. 2017) ("The ALJ noted various of Brown's activities—such as 'cooking, driving, doing laundry, collecting coins, attending church and shopping'—but did not acknowledge the limited extent of those activities as described by Brown or explain how those activities showed that he could sustain a full-time job."). Moreover, Plaintiff testified that he did not drive due to his mother's concerns regarding his condition and his mother or another family member transported him places. Tr. at 47-52.
In adapting or managing himself, the ALJ acknowledged Plaintiff alleged he required reminders to take his medications or do other tasks, but found Plaintiff's limited insight and judgment improved with treatment and noted he had lived by himself for several years, attended to his personal care, prepared simple meals, washed dishes, swept, tended to the yard, and worked on and off since the alleged onset date. Tr. at 17. Again, the ALJ failed to explain how these activities supported Plaintiff was only moderately limited or showed he could work on a sustained basis when Plaintiff's family had to remind him to complete these tasks, he was unable to maintain employment, and he lived alone due to his family's safety concerns.
The Listings specifically provide, "when we evaluate the effects of your mental disorder and rate the limitation of your areas of mental functioning, we will consider the kind and extent of supports you receive, the characteristics of any structured setting in which you spend your time, and the effects of any treatment." 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, Listing 12.00D. "This evidence may come from reports about your functioning from you or third parties who are familiar with you, and other third-party statements or information." Id. For example, you may "receive help from family members or other people who monitor your daily activities and help you to function," such as "administer your medications, remind you to eat, shop for you and pay your bills, or change their work hours so you are never home alone." Id. "We will consider the complete picture of your daily functioning, including the kinds, extent, and frequency of help and support you receive, when we evaluate your mental disorder and determine whether you are able to use the four areas of mental functioning in a work setting." Id. "The fact that you have done, or currently do, some routine activities without help or support does not necessarily mean that you do not have a mental disorder or that you are not disabled." Id. "You may receive various kinds of help and support from others that enable you to do many things that, because of your mental disorder, you might not be able to do independently. Your daily functioning may depend on the special contexts in which you function." Id. In addition, "[y]our ability to complete tasks in settings that are highly structured, or that are less demanding or more supportive than typical work settings does not necessarily demonstrate your ability to complete tasks in the context of regular employment during a normal workday or work week." Listing 12.00C. "We must assess your ability to complete tasks by evaluating all the evidence, such as reports about your functioning from you and third parties who are familiar with you, with an emphasis on how independently, appropriately, and effectively you are able to complete tasks on a sustained basis." Id.
The ALJ did not adhere to these instructions in this case. As discussed, he did not address the limited extent of Plaintiff's activities or the structured environment and support that his family provided daily, which showed, although Plaintiff lived alone, his mother arranged for him to live in the trailer after he tried to kill her and himself and she saw him every day to administer his medications, reminded him to bathe and clean, cooked or provided food for him, took him to the store, doctor's office, or church, and paid his bills. See, e.g., Tr. at 53-62.
Elsewhere in his decision, while providing the RFC assessment, the ALJ discounted the reports and testimony by Plaintiff's sister and mother of their interactions with Plaintiff and his activities. Tr. at 22-23. The ALJ found they were focused upon Plaintiff's mental condition prior to his improvement, inconsistent with the evidence showing "fairly normal mental status exams," "based on casual observation, rather than objective medical examination" or "not medically trained to make exacting observations," and "potentially influenced by the dynamics of family." Id.
However, Plaintiff's mother testified regarding various issues that included events as recent as the prior week when he was unable to be around family for Easter or the prior year when Plaintiff heard voices and his Invega dosage was increased. Tr. at 56, 60. The medical records also reflected Plaintiff reported to Dr. Ebert that he was "doing ok," tried not to get upset with others, and felt he could do odd jobs once a week without too much stress, but his mother "cook[ed] for him and help[ed] him" in February 2017. Tr. at 674-75.
The Commissioner asserts "the types of symptoms that would qualify as marked or extreme limitations in this area simply are not present in the record after Plaintiff's inpatient treatment." [ECF No. 21 at 17]. However, even if Plaintiff sufficiently improved after his inpatient treatment in 2014, the consistency of his sister and mother's statements regarding his status between his alleged onset date of disability on February 27, 2012, through 2014 should have been considered, as Dr. Salas opined Plaintiff's symptoms progressively worsened over the course of two years before he was involuntarily committed. Tr. at 535. In addition, the ALJ assigned only some weight to his own requested consultative examiner's opinion from 2016, which stated:
It appears that [Plaintiff] is living at or near his pinnacle of ability, given the medications he is taking and his overall intellectual ability. He is working one 12-hour shift a day and states that he likes his job which appears to be, in this clinician's view, admirable and consistent with his current ability. I do not believe him competent to manage benefits in his own best interest however. He is quite dependent on family members who assist him in his basic ADLs.Tr. at 664. Furthermore, while the ALJ assigned significant weight to both state agency psychological consultants who reviewed the record in 2014, he failed to recognize that even they opined "[Plaintiff] has [the] mental capacity for simple work related activity (1-2 steps tasks) with infrequent interactions with coworkers and the public. . . . [Plaintiff's] allegations are supported by [the medical evidence record] and credible." Tr. at 83, 126.
Although not raised by either party, the undersigned notes there appears to be an unresolved apparent conflict between the VE's testimony and the DOT regarding the positions that the ALJ found Plaintiff was capable of performing. As the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") and other circuits have recognized, a limitation to "1-2 step tasks" equates to a General Educational Development ("GED") reasoning level of 1, which requires the ability to "[a]pply commonsense understanding to carry out simple one- or two-step instructions" and conflicts with a GED reasoning level of 2, which requires the ability to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions." See Henderson v. Colvin, 643 F. App'x. 273, 277 (4th Cir. 2016) (holding "there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions"); Austin v. Berryhill, No. 1:17-cv-1797-JMC-SVH, 2018 WL 2392209, at *19 (D.S.C. Apr. 24, 2018), adopted by 2018 WL 2389595 (D.S.C. May 24, 2018) ("Following the Fourth Circuit's decision in Henderson, this court considered restrictions to simple, routine tasks in several cases and found that a conflict existed between the restrictions and GED reasoning level two."); see also Thomas v. Berryhill, 916 F.3d 307 (4th Cir. Jan. 15, 2019), as amended (Feb. 22, 2019) (holding there was an "'apparent conflict' between a limitation to 'short, simple instructions' . . . and a need to carry out 'detailed but uninvolved . . . instructions' (as found in jobs requiring Level 2 reasoning"); DOT, App'x C ("Components of the Definition Trailer"), § III G.E.D., 1991 WL 688702. Here, the ALJ found Plaintiff was limited by his severe impairments of schizophrenia, learning disorder, and mild or borderline mental deficiency to "simple, routine tasks . . . involving simple work-related decisions, occasional independent judgment skills, and occasional work place changes," but found he was capable of performing work as a dishwasher, janitor, or laundry worker, which all require a GED reasoning level of 2, not 1. See 318.687-010 Kitchen Helper (Dishwasher), DOT (4th ed., revised 1991), 1991 WL 672755; 323.687-010 Cleaner (Janitor), DOT (4th ed., revised 1991), 1991 WL 672782; 369.687-026 Marker (Laundry Worker), DOT (4th ed., revised 1991), 1991 WL 673074. "Recall that at this step, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant is capable of doing other work that exists in significant supply in the national economy." Thomas, 916 F.3d at 313 (citing Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015)). Accordingly, the undersigned recommends the Commissioner failed to meet her burden at step five, as well.
Furthermore, the Listings provide the ALJ will consider certain evidence to evaluate a mental disorder, including general objective medical evidence, evidence from medical sources, evidence from "you and people who know you" regarding "your daily functioning," evidence from school and vocational training, and evidence of functioning in "supportive situations." 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, Listing 12.00. In particular, "when we evaluate the effects of your mental disorder and rate the limitation of your areas of mental functioning, we will consider the kind and extent of supports you receive, the characteristics of any structured setting in which you spend your time, and the effects of any treatment." 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, Listing 12.00D. "This evidence may come from reports about your functioning from you or third parties who are familiar with you, and other third-party statements or information." Id. Thus, the ALJ's decision to discount Plaintiff's sister and mother's statements because they were "based on casual observation, rather than objective medical examination," "not medically trained to make exacting observations," and "potentially influenced by the dynamics of family" runs counter to the Listings' instructions and undermines the purpose of this type of source.
Thus, in this case, the ALJ noted other evidence that is pertinent to his conclusions, but he did not address the extent of the support that Plaintiff received or conflicting evidence. "Looking at the ALJ's decision, the most we can say is that he appears to have at least partially examined the correct evidence, and began the correct evaluation," but failed to fully explain his decision and properly evaluate the evidence. Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 662 (4th Cir. 2017). Therefore, the undersigned recommends this matter be remanded. III. Conclusion and Recommendation
The ALJ may also consider that "Listing 12.05 has two paragraphs, designated A and B, that apply to only intellectual disorder. Each paragraph requires that you have significantly subaverage general intellectual functioning; significant deficits in current adaptive functioning; and evidence that demonstrates or supports (is consistent with) the conclusion that your disorder began prior to age 22." 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, Listing 12.00A3. The ALJ acknowledged Plaintiff's low full-scale IQ score met the requirements in Paragraph B1a, but found Plaintiff did not have significant deficits in functioning because he "lived alone for several years and works part-time" and there was "no evidence that [Plaintiff's] intellectual disorder began prior to his attainment of age 22" because school records did not reflect special education classes or a learning disability. See Tr. at 17. However, Plaintiff lived alone due to safety concerns, was assisted daily by family members to ensure he took his medication, bathed, cleaned, and ate, and only worked one to two 12-hour shifts a week. See, e.g., Tr. at 47-52, 56-58, 303-10, 329-36, 348-55, 357-64, 537-38, 664, 674-75. The Listings provide "[t]he fact that you engage in common everyday activities, such as caring for your personal needs, preparing simple meals, or driving a car, will not always mean that you do not have deficits in adaptive functioning as required by 12.05B2" and "[t]he fact that you have engaged in work activity, or that you work intermittently or steadily in a job commensurate with your abilities, will not always mean that you do not have deficits in adaptive functioning as required by 12.05B2." 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, Listing 12.00H. Likewise, although the record reflects the district office reported Plaintiff did not have "special education records or evaluation reports," he appears to have failed the exit requirements, only received a "District Non-Diploma Document" from high school, and Dr. Salas noted his negative symptoms appeared to persist at a level that was not congruent with where he was functioning in high school in January 2014, which was months before he turned 22 years old. Tr. at 14, 395-407, 404-06, 420, 543.
Plaintiff requests an outright reversal with an award of benefits or remand in this case. [ECF No. 25 at 6]. "If the reviewing court decides that the ALJ's decision is not supported by substantial evidence, it may affirm, modify, or reverse the ALJ's ruling 'with or without remanding the cause for a rehearing.'" Radford, 734 F.3d at 295 (quoting 42 U.S.C. § 405(g)). "If the reviewing court has no way of evaluating the basis for the ALJ's decision, then 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Id. (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); contra Breeden v. Weinberger, 493 F.2d 1002, 1011-12 (4th Cir. 1974) (reversing for award of benefits where case was quite old, the record had no need to be reopened, and the case had already been on appeal once before). As this case does not present the rare circumstances to support outright reversal and it requires the ALJ to provide an additional explanation of the basis for his decision, the undersigned recommends the court remand the case.
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 court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, 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 under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. June 10, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).