Opinion
Civil Action 5:22-1425-RMG-KDW
04-19-2023
Crystal A. Davis, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
KAYMANI D. WEST, 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 a final decision of the Commissioner of Social Security (“Commissioner”), denying her claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) 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 February 27, 2020,Plaintiff protectively filed for DIB and SSI alleging she became disabled on April 12, 2016. Tr. 209-16. After being denied initially, Tr. 85 and 87, and upon reconsideration, Tr. 126 and 128, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 144. ALJ Tammy Georgian conducted a hearing on September 9, 2021. Tr. 27-58. The ALJ denied Plaintiff's claim in a decision dated September 22, 2021. Tr. 9-21. Plaintiff requested review of this decision from the Appeals Council. Tr. 206-08. After granting Plaintiff an extension, Tr. 7-8, on February 28, 2022 the Appeals Council denied Plaintiff's request, Tr. 15, making the ALJ's September 2021 decision the Commissioner's final decision for purposes of judicial review. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed May 3, 2022. ECF No. 1.
Although the Application Summary is dated March 26, 2020, based on the Disability Determination and Transmittals, Plaintiff's protected filing date is February 27, 2020. Tr. 85, 87.
B. Plaintiff's Background
Plaintiff was born in January 1968 and was 48 years old as of her alleged onset date of April 12, 2016. Tr. 258. In her March 26, 2020 form Disability Report-Adult, Plaintiff indicated that she completed four or more years of college, did not attend special education classes, and had no specialized job training. Tr. 253. She listed her past relevant work (“PRW”) as Assisted Living Facility Caretaker (2007), Military Contractor Steam Operator (March 8, 2008-June 12, 2009), Self-employed Poet (2011-2015), and Staffing Company Substitute Teacher Orientation (Oct. 10, 2013). Id. Plaintiff indicated that she stopped working on April 12, 2016 because of her medical conditions which she listed as: bipolar 2, PTSD, generalized anxiety disorder, depression, and high blood pressure. Tr. 252. Plaintiff indicated that she was 5'6” tall, weighed 330 pounds, and her conditions caused her pain or other symptoms. Id.
In a November 19, 2020 Disability Report-Appeal Plaintiff indicated changes in her medical conditions noting that her bipolar depression and her anxiety were worse, and her depression episodes were very severe. Tr. 285. Plaintiff indicated a change in her daily activities and noted: “It's getting harder to do anything. My depression is so debilitating, I try to do things but I just can't. It's so hard to explain. Please call my counselor.” Tr. 290.
C. Administrative Proceedings
Plaintiff appeared, along with her attorney, for her administrative hearing on September 9, 2021, in Charleston, South Carolina. Tr. 27. Vocational expert (“VE”) Jane Colvin-Roberson also appeared. Id. Due to the extraordinary circumstances of the coronavirus pandemic the hearing was conducted telephonically. Tr. 29-30.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that she lived in a house with her daughter. Tr. 32. Plaintiff testified that aside from the income her daughter earned from working at Walmart, there were no other sources of household income. Tr. 33. Plaintiff stated that she received food stamps and was on Section 8. Id. Plaintiff testified that she does not have a driver's license due to fear of driving, and stated she last had a license in 2016 but she did not get it renewed. Id. Plaintiff testified that her daughter goes to the store and either her daughter or her parents take her to appointments. Tr. 33-34. Plaintiff testified that she graduated from college in 2015 or 2016 with a bachelor's degree in psychology. Tr. 34. Plaintiff confirmed that from 2011-2015 she was self-employed writing poetry that she put into frames and her mother sold. Id. Plaintiff testified that in 2008 and 2009 she worked for KBR, a private contractor company, as laundry foreman supervising 20-30 people. Tr. 35-36. Plaintiff stated that she did not hire and fire, and she did not do scheduling or have any paperwork. She stated that “the men that was working there, they basically governed themselves.” Tr. 36. Plaintiff testified that her job duty was to “make sure that the laundry got done on time, and out on time.” Id. Plaintiff stated that she did not actually do laundry. Id. Plaintiff testified that in 2004-2005 she worked full-time for Barton Protective Services at a gated community and she opened the gate for residents and their visitors. Tr. 37. The ALJ determined the jobs of laundry foreman and security guard were both SGA [substantial gainful activity]. Id.
Section 8 refers to the voucher program administered by the U.S. Department of Housing and Urban Development to provide private housing subsidies to very low-income families, the elderly, and the disabled. See https://www.hud.gov/topics/housing_choice_voucher_program_section_8 (last visited Apr. 19, 2023).
The ALJ asked Plaintiff why she felt she was unable to work and Plaintiff responded that her “depression and anxiety just interrupts [her] daily life.” Tr. 39. Plaintiff testified that “[t]he depression, when it comes on, it will last for weeks, sometimes a month. The anxiety never stops, never. The anxiety never stops. And the depression is just overwhelming.” Id. Plaintiff affirmed that she is taking medication on a regular basis and testified that she takes Trazodone for depression and insomnia, Propranolol for anxiety, Abilify for depression, Lorazepam for severe anxiety, Lamictal for bipolar disorder, Terazadine and Acalopine for blood pressure,Sumatriptan for migraines, and Ibuprofen for back pain. Id. Plaintiff indicated that she does not smoke, drink alcohol, or use recreational drugs. Tr. 39-40. Plaintiff described a typical day as follows:
The court reporter noted these two medications are spelled phonetically. Tr. 39. In Plaintiff's Disability Report she indicated that she takes Amlodipine and Lisinopril for high blood pressure. Tr. 254.
I get up. Sometimes I can come out of my room; sometimes I can't. I cry a lot. I stare sometimes at nothing for hours. And sometimes I'm bouncing off the walls. When mania hits, I'm bouncing off the walls, and doing everything. And I go from one thing to the next without completing anything. And that can last maybe five days, six. And then I'm back in depression. I watch TV.
Tr. 40. Plaintiff testified that her daughter does the grocery shopping. Id. She testified that she uses the internet to look up her symptoms, or to look at pictures of people or animals. Tr. 40-41. Plaintiff stated that she has not participated in outside activities in years, and does not belong to any clubs, groups, or church. Tr. 41. Plaintiff stated she does not have any pets. Id. Plaintiff testified that she does household chores only when she is manic and noted that she has a bad back and the anxiety and depression make her exhausted. Id. She stated that “[e]very now and then” she can do the dishes, but for the most part her daughter does the chores. Id. Plaintiff testified that she is between 5'5” and 5'6” and weighs 357 pounds. Id.
In response to questions from her counsel Plaintiff confirmed that she attended Walden University and she submitted a disability statement to them to address her limitations and her conditions which she identified in the February 24, 2017 statement as PTSD, generalized anxiety, depression, and Bipolar II. Tr. 42. Plaintiff confirmed that she shared these conditions because it would impact her ability to complete assignments on time. Id. Plaintiff stated it took her six years to complete her studies to get her degree. Id. Plaintiff indicated that South Pine Department of Mental Health has been her primary treating physician for her mental illness dating back to 2011. Tr. 42-43.
Exhibit 12F, Tr. 665.
Plaintiff testified that she did not have a violation regarding her driver's license. Tr. 43. She stated that the poems her mother sold for her were poems that she wrote in the late 1990s because she “was suicidal” and when she was trying to “figure out what was wrong” she “just wrote it down, and it came out in poetry.” Tr. 44. Plaintiff confirmed that despite her mental illness she was still able to go to Iraq or Afghanistan. Id. Plaintiff testified that her mental illness did not cease during that time and she had panic attacks and passed out because of the panic attacks, and she had depression. Id. Plaintiff agreed with counsel that back then she was able to function despite her mental illness. Id. Plaintiff stated that she did not know what became the breaking point for her when she became unable to go forward. Id.
Plaintiff's Detailed Earnings Query and Work History Assistant Tool indicates that in 2008-2009 she worked for Service Employees International Inc. in Dubai United Arab Emirates. See exs. 2D, Tr. 217 and 6D, Tr. 225.
Plaintiff testified that her mother lived ten minutes from her and checked on her often. Tr. 45. Plaintiff testified that there are times when she is depressed and then it will “just click off” and she has energy and thinks everything will be ok. Then she will go back into depression. Id. Plaintiff testified it has been like that “off and on all of [her] life” but it has gotten worse and “since 2016, [she] just stop. [She] just can't take it no more.” Id. Plaintiff testified that she could not function six to eight hours a day in any kind of employment although she wished she could. Tr. 46. Plaintiff stated that she has not always weighed 357 pounds but her depression “messes with [her] appetite.” Id. Plaintiff stated that obesity affects her mobility and her “back hurts. It burns. It shoots down [her] legs.” Id. Plaintiff testified she is unable to stand for periods of time and sometimes when she sits it bothers her. Id. Plaintiff stated that she uses a heating pad and her knees hurt and “sometimes it'll go out, and I have to walk around in crutches.” Tr. 47. Plaintiff stated that “it just hurts all the time” and she cannot stand up in the shower and has to “sit down on the tub.” Id. Plaintiff confirmed that she has been participating in various mental health therapies but that she misses a lot due to depression. Id. Plaintiff also confirmed that she did online classes through Columbia Southern University and was given a waiver to get extra time to complete assignments based on her mental health diagnoses. Tr. 47-48.
After the VE's testimony the ALJ resumed questioning of Plaintiff to ask about her education. Tr. 55. Plaintiff clarified that she graduated in 2015 or 2016, but that she was in a master's program when she asked for accommodations in 2018. Tr. 56. Plaintiff stated that she started at Walden, had to drop out and went to Columbia Southern, and then had to drop out of Columbia Southern. Id. Plaintiff testified that she did not complete the master's program and could not complete the assignments even though she was given extra time. Tr. 56-57.
2. VE's Testimony
The VE classified Plaintiff's past work as laundry supervisor, Dictionary of Occupational Titles (“DOT”) number 361.137-010, light, SVP of 6, skilled, performed as light; and gate guard, DOT number 372.667-030, light, SVP of 3, semi-skilled, performed as light. Tr. 49.
The ALJ asked the VE to assume a hypothetical individual of Plaintiff's age, education, and past work experience with the following limitations:
Further assume that this individual can do light work, can frequently sit, stand, and walk, frequently climb ramps and stairs, but never ladders, ropes, and scaffolds. The individual can frequently stoop, kneel, crouch, and crawl. Must avoid concentrated exposure to hazards....Can have occasional superficial contact with co-workers and the public. Can perform and sustain simple, routine tasks for two-hour periods.
Tr. 49-50. The ALJ asked the VE if the individual would be able to do the past jobs and the VE responded in the negative. Tr. 50. The VE gave the following examples of light, SVP 2, unskilled work that would fit the hypothetical: cleaner, DOT code 323.687-014, with approximately 194,000 jobs in the national economy; package sorter, DOT code 222.687-022, with approximately 41,000 jobs in the national economy; and power screwdriver operator, DOT code 699.685-026, with just over 260,000 jobs in the national economy. Id. The VE stated that her testimony contained no inconsistencies with the DOT but noted that the “the DOT does not address contact with coworkers and the public. It also doesn't differentiate the [climbing] of stairs and ramps versus ladders and other types of climbing.” Tr. 50. The VE testified her response was based on her professional experience, education, and her understanding of the jobs she cited. Id. The VE confirmed that the jobs she cited had a GED reasoning level of 1 or 2 which was consistent with simple, routine tasks. Tr. 50-51. The VE noted that the cleaner and power screwdriver operator are reasoning level 1 and the package sorter is level 2. Tr. 51.
Plaintiff's counsel asked the VE for her opinion on Plaintiff's ability to be gainfully employed in the cited positions if off task for 11% of the time. Tr. 51. The VE responded that, generally, if a person is off task more than 10% of a workday, they would be unable to sustain employment. Id. Counsel asked the VE how her opinion would be affected if the individual could never use her extremities to perform the duties in the power screwdriver operator position. Tr. 54. The VE responded that “[i]f a person is not able to use their lower extremities, they would not be able to do that job, sir.” Id. Counsel asked how her opinion would be affected if the hypothetical individual would miss more than two days per month. Id. The VE testified that those jobs “would not be able to be performed on a consistent basis. There would be no sustained employment.” Id. Counsel asked the VE how her opinion would be affected if the individual had issues with using her upper extremities to stack articles as required for the package sorter position. Tr. 55. The VE noted that the job “requires frequent use of the upper extremities for reaching, handling, and fingering. So if a person could not use their upper extremities for two-thirds of the workday, they would not be able to perform that job.” Id.
II. Discussion
A. The ALJ's Findings
In her September 22, 2021 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 December 31, 2020.
2. The claimant has not engaged in substantial gainful activity since April 12, 2016, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: obesity; depressive disorder; anxiety disorder, and post-traumatic stress disorder (PTSD) (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, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that the claimant can frequently stand, walk, and sit. She can frequently climb ramps and stairs, but never ladders, ropes and scaffolds. She can frequently stoop, kneel, crouch and crawl. She should avoid concentrated exposure to hazards. The claimant can perform and sustain simple and routine tasks for two-hour periods. She can have occasional superficial contact with co-workers and the public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on January 11, 1968, and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education (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 April 12, 2016, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)). Tr. 14-15, 17, 19-21.
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); see also 42 U.S.C. § 1382c(a)(3)(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, § 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) and § 416.920(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).
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. Subpart P, § 404.1520(a), (b); § 416.920(a), (b); Social Security Ruling (“SSR”) 82 (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 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 he 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 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, 1157-58 (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); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (explaining that, “whatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high,” as it means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”). 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, 438 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 (1) the ALJ did not explain her findings regarding Plaintiff's residual functional capacity (“RFC”), (2) the ALJ did not properly evaluate her subjective symptomology, and (3) the ALJ failed to properly assess medical opinion evidence. Pl.'s Br. 13, 24, 29; ECF No. 14.
1. The ALJ's RFC Assessment
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. “RFC is not the least an individual can do despite his or her limitations or restrictions, but the most.” Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c). An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(3) and (4), 416.945(a)(3) and (4).
Here, the ALJ considered Plaintiff's hearing testimony, medical records, and the medical opinions of record and concluded Plaintiff had the RFC to perform light work with certain postural and environmental limitations. Tr. 17. The ALJ also determined Plaintiff “can perform and sustain simple and routine tasks for two-hour periods. She can have occasional superficial contact with co-workers and the public.” Id. The ALJ stated that in making this RFC finding she “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p.” Id.
a. Concentration, Persistence, and Pace
Plaintiff asserts the ALJ did not properly evaluate Plaintiff's difficulties maintaining concentration, persistence, and pace and “[t]here are no provisions in the RFC findings for time off task despite record evidence supporting the fact that [Plaintiff's] conditions were worsening.” Pl.'s Br. 18-19. The Commissioner contends that “the ALJ properly evaluated Plaintiff's RFC, and substantial evidence of record supports the ALJ's finding that, despite her impairments, Plaintiff could [do] a range of light work and that Plaintiff could perform and sustain simple and routine tasks for two-hour periods and have occasional superficial contact with co-workers and the public (Tr. 17).” Def.'s Br. 6, ECF No. 17.
At Step Three of her Decision, the ALJ considered whether Plaintiff's mental impairments met or medically equaled the Paragraph “B” criteria of Listings 12.04, 12.06, and 12.15. Tr. 15. The listings for mental disorders are arranged in 11 categories: Neurocognitive disorders (12.02); schizophrenia spectrum and other psychotic disorders (12.03); depressive, bipolar and related. disorders (12.04); intellectual disorder (12.05); anxiety and obsessive-compulsive disorders (12.06); somatic symptom and related disorders (12.07); personality and impulse-control disorders (12.08); autism spectrum disorder (12.10); neurodevelopmental disorders (12.11); eating disorders (12.13); and trauma- and stressor-related disorders (12.15). Paragraph B of each listing (except 12.05)provides the functional criteria to be assessed, in conjunction with a rating scale (see 12.00E and 12.00F), to evaluate how a claimant's mental disorder limits functioning. These criteria represent the areas of mental functioning a person uses in a work setting. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Section 12.00(A)(1) and (2)(b).
The Paragraph B requirements for Listing 12.05 include a finding of significantly subaverage general intellectual functioning and significant deficits in adaptive functioning.
The ALJ found Plaintiff had mild limitations in the area of understanding, remembering, or applying information; moderate limitations in interacting with others; moderate limitations in the functional area of concentrating, persisting, or maintaining pace; and mild limitation in adapting or managing herself. Tr. 15-16. 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:
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.
In explaining her findings of moderate limitations in concentration, persistence and maintaining pace the ALJ noted Plaintiff's contentions about limitations in concentrating and completing tasks but also noted that Plaintiff “said that she is also able to prepare simple meals, use the internet, and handle her own medical care.”Tr. 16. The ALJ also found that “the record fails to show any mention of distractibility.” Id. As previously indicated, in her RFC assessment the ALJ limited Plaintiff to performing and sustaining simple and routine tasks for two-hour periods. Tr. 17.
The Listings provide that when evaluating a claimant's mental disorder an ALJ should “consider the complete picture of [the claimant's] daily functioning, including the kinds, extent, and frequency of help and support” received. See 20 C.F.R., Pt. 404, Subpt. P, Appx. 1, § 12.00 Mental Disorders,(D)(3)(a). “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. 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. You may demonstrate both strengths and deficits in your daily functioning.” Id.
In her discussion of Plaintiff's RFC, the ALJ found that the evidence concerning Plaintiff's mental impairments “fails to demonstrate the presence of disabling limitations” and noted that although her treatment was consistent with “some degree of mental limitation” Plaintiff had not been psychiatrically hospitalized since her alleged onset date and had not been seen in the ER for acute mental symptomology. Tr. 17-18. The ALJ also found that Plaintiff's “mental status exam findings do not support the presence of disabling limitations.” Tr. 18. The ALJ cited to medical records that “revealed depressed, anxious, irritable, and liable mood and mild impairment in recent memory and concentration (8F/121, 124, 129, 133, 143; 9F/10; 11F/11, 19; 13F/3, 12, 21)” and determined the findings were “consistent with some degree of limitation in the ability to sustain concentration or interact with others.” Id. In the next paragraph the ALJ cited to these same records that “revealed no abnormalities, and generally reflect appropriate dress, hygiene, and grooming; normal cognition and memory; cooperative demeanor; normal thought processes, content, and associations, and appropriate affect and speech (5F/8, 22; 8F/121, 124, 129, 133, 143; 9F/10; 11F/11, 14, 19; 13F/3, 12, 21).” Id. The ALJ determined that these “mental status exam findings suggest that the claimant's depression and anxiety are not as persistent or limiting as the claimant's allegations might suggest.” Id. The ALJ concludes this portion of her decision with the following:
The record contains no exhibit 13F/21, exhibit 13F has 13 pages. Additionally, the undersigned notes that some of the records in exhibits 9F through 13F are from examinations in 2020 and 2021 conducted predominately via telephone due to the Covid pandemic.
The ALJ included three additional records in this citation. Exhibits 5F/8 and 5F/22 are records from a gastroenterologist dated March and May 2019 and are not mental health records. However, the records acknowledge Plaintiff's mental health diagnoses but indicate normal affect, Tr. 397, and “no evidence of depression, anxiety or agitation[,]” Tr. 411. Exhibit 11F/14 is from an October 20, 2020 telephonic record with the mental status examination indicating cooperative attitude, calm behavior, normal speech, intact associations, and logical/goal directed thought process. Tr. 657.
In terms of her ability to sustain concentration, her depression and anxiety would preclude her ability to perform complex or detailed tasks. However, the relative normalcy of her mental status exams, including intact memory and cognition, demonstrate that she can perform simple and tasks [sic], consistent with unskilled work activity.Id. As to opinion evidence, the ALJ found the opinions of the State agency psychological consultants that Plaintiff could understand, remember, and follow both simple and complex instructions to be “moderately persuasive.” Tr. 19. However, the ALJ determined that based on the evidence at the hearing level and in the record, Plaintiff was “more limited in concentration due to her chronic depression and anxiety. Thus, limiting the claimant to simple and routine tasks is supported.” Id. The ALJ found the opinions of Tara Campbell-Mingione, MSW and Josh Turner, MS, LPC/I, MAC that Plaintiff's anxiety is debilitating and render her unable to complete simple tasks to be unpersuasive as Ms. Campbell-Mingione's opinion is “inconsistent with her treatment notes and findings” and further found that neither provider stated “any limitations in vocationally relevant terms.” Id.
Plaintiff contends that “given the severity of [her] mental impairments, the ALJ's RFC findings are inadequate to address her limitations and the ALJ['s] rationale is not sufficiently explained to allow meaningful review.” Pl.'s Br. 15. Plaintiff argues that the record documents her “ongoing, worsening mental health struggles. Nevertheless, the ALJ determined that [Plaintiff] would be capable of a range of light, unskilled work with restricted contact with co-workers and the public.” Pl.'s Br. 18.
In her decision, the ALJ addressed the evidence of record regarding Plaintiff's mental health symptoms and mental examination findings. In fact, the ALJ cited specifically to many of the same records Plaintiff cited to in her Brief, and she cited generally to the exhibits containing records identified by Plaintiff. For example, Plaintiff cited to various records in Exhibit 8F related to treatment notes and Plaintiff's reporting of symptoms. Pl.'s Br. 16-17. In her Decision, the ALJ noted Plaintiff's mental health diagnoses, her treatment protocols, and her subjective complaints regarding her symptoms. Tr. 17-18 (citing exs. 8F, 9F, 11F, and 13F). Plaintiff cited to some specific records that the ALJ did not and, vice versa, the ALJ cited to some records that Plaintiff did not. Additionally, some records cited by Plaintiff are not as supportive of her position as she would make out. For example, Plaintiff notes records from her mental health provider indicating that she had not progressed as expected, or that her condition had regressed. Pl.'s Br. 17. However, these same records also noted Plaintiff was not attending therapy sessions, or she was not fully engaging in treatment. Tr. 527-29 (exs. 8F/48-50).
Here, the ALJ appropriately considered records that supported some mental limitations, and she explained why she found these limitations were not disabling. “[A] psychological disorder is not necessarily disabling. There must be a showing of related functional loss.” Gross v. Heckler, 785 F.2d at 1166 (citing Sitar v. Schweiker, 671 F.2d 19, 20-21 (1st Cir. 1982)). The ALJ noted that Plaintiff had “some degree of limitation in the ability to sustain concentration” and that limitation “would preclude her ability to perform complex or detailed tasks.” Tr. 18. The ALJ determined that based on Plaintiff's mental status exams she could perform simple tasks and in her RFC assessment the ALJ found Plaintiff could “sustain simple and routine tasks for two-hour periods.” Tr. 17. Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017) (finding doctors' explanation that an individual who can maintain attention for at least two hours is “‘mentally capable of independently performing basic, routine tasks on a sustained basis'” provided “substantial support for the ALJ's finding that, despite [the claimant's] overall moderate difficulties with concentration, persistence, or pace, he would nonetheless be able to stay on task') (emphasis in original). However, while the ALJ explained this portion of her decision regarding Plaintiff's RFC sufficiently, the ALJ did not account for limitations associated with all of Plaintiff's mental impairments.
b. Mental Health Symptoms Associated with Bipolar Disorder
Plaintiff argues that “the ALJ's reliance on treatment notes that indicate relatively normal mental functioning ignores the cyclical nature of mental health symptoms, particularly those symptoms caused by bipolar disorder (Tr. 18).” Pl.'s Br. 21. While the Commissioner responds to Plaintiff's allegations regarding her moderate limitations in concentration, persistence, and pace, the Commissioner does not respond to this portion of Plaintiff's argument about the impact of her bipolar disorder on her RFC. Instead, the Commissioner simply concludes that based on the ALJ's consideration of the mental status examination findings and the opinions of the State agency psychologists, the “ALJ adequately explained the RFC assessment.” Def's Br. 8-9.
At Step Two, the ALJ found Plaintiff has the severe impairments of obesity, depressive disorder, anxiety disorder, and PTSD. Tr. 14. The ALJ did not identify Plaintiff's bipolar disorder as a severe, or even as a non-severe, impairment despite the medical records indicating Plaintiff's primary diagnosis as Bipolar II Disorder. See, e.g., Tr. 600, 608, 623. The undersigned recognizes that failure to designate an impairment as severe may be considered harmless; however, that is only when the ALJ considers the impairment in subsequent steps. Ethridge v. Comm'r of Soc. Sec. Admin., No. 821CV00091SALJDA, 2022 WL 707203, at *9 (D.S.C. Feb. 22, 2022), report and recommendation adopted sub nom. Ethridge v. Kijakazi, No. 8:21-CV-00091-SAL, 2022 WL 706861 (D.S.C. Mar. 9, 2022) (citing cases). The undersigned has reviewed the ALJ's decision regarding her consideration of Plaintiff's bipolar disorder. The only reference occurs in her discussion of Plaintiff's hearing testimony that her “depression lasts for weeks or months and is overwhelming” and she “only does household chores when she is manic.” Tr. 17. In her RFC discussion the ALJ notes that Plaintiff “has been diagnosed with PTSD, anxiety, and depression” but does not acknowledge her diagnosis for bipolar disorder. Id. Despite the State agency psychologists noting the bipolar II diagnosis (Tr. 77, 114), the ALJ refers only to “chronic depression and anxiety” when addressing their opinions. Tr. 19. In her discussion of social worker Campbell-Mingi one's statement, the ALJ notes only the statement's reference to Plaintiff's anxiety, but the ALJ does not mention Ms. Campbell-Mingione's discussion of Plaintiff's mania and depression symptoms. Id. (citing exs. 14F/16F found at Tr. 683, 700). Furthermore, although the Commissioner notes that Plaintiff “was assessed with bipolar II disorder and generalized anxiety,” Def's Br. 9, nowhere in her decision does the ALJ mention Plaintiff's bipolar disorder diagnosis.
Bipolar II disorder is characterized by at least one major depressive episode and at least one hypomanic episode. “Bipolar II disorder is not a milder form of bipolar I disorder, but a separate diagnosis. While the manic episodes of bipolar I disorder can be severe and dangerous, individuals with bipolar II disorder can be depressed for longer periods, which can cause significant impairment.” See https://www.mayoclinic.org/diseases-conditions/bipolar-disorder/symptoms-causes/syc-20355955 (last visited Apr. 19, 2023).
It is unclear from a review of the ALJ's decision how the ALJ considered Plaintiff's bipolar disorder or if the ALJ factored this disorder in her RFC assessment. Her failure to discuss Plaintiff's bipolar disorder and any associated functional limitations frustrates meaningful review. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015). Accordingly, substantial evidence does not support the ALJ's decision and the undersigned recommends remand so that the ALJ may provide further explanation.
2. ALJ's Consideration of Plaintiff's Subjective Complaints
Plaintiff argues the ALJ “did not properly evaluate [her] subjective symptomology.” Pl.'s Br. 24. Because the undersigned is recommending that the court remand this matter for the ALJ to consider all the evidence in the record concerning the impact Plaintiff's bipolar disorder on her RFC, the ALJ should also use this opportunity to re-evaluate the issues raised in Plaintiff's claim regarding consideration of her subjective symptomology-especially claims related to symptoms associated with bipolar II disorder. Proper development of the record may have a significant impact on the Commissioner's determination of Plaintiff's RFC, subjective symptom evaluation, and the availability of work for Plaintiff in the national economy.
3. ALJ's Consideration of Medical Opinion Evidence
Citing to the recent regulations regarding consideration of medical opinions,Plaintiff contends the ALJ gave “short shrift” to the opinion of Tara Campbell-Mingione, MSW, and seeks remand so that the ALJ can further evaluate the opinion. Pl.'s Br. 30-34. The Commissioner argues that the ALJ appropriately weighed this opinion as the regulations to do not apply to the opinions of social workers as they are not acceptable medical sources.Def.'s Br. 12-13.
For benefits applications filed on or after March 27, 2017 (such as Plaintiff's), the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2 WL 168819 (Jan. 18, 2017). Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or give special deference to treating source opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical opinions using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). The first two factors, supportability and consistency, are the most important in determining the persuasiveness of a medical source's opinion, and the ALJ is not required to explain the consideration of the other three factors. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
The Commissioner cites to two cases in support of her argument that licensed social workers are not considered acceptable medical sources. Def's Br. 13 (citing Wood v. Comm'r of Soc. Sec. Admin., No. 21-1905, 2022 WL 997306, at *2 (4th Cir. Apr. 4, 2022) and Brandee B. v. Comm'r, Soc. Sec. Admin., No. CV SAG-20-3139, 2021 WL 4864373, at *1 (D. Md. Oct. 19, 2021)). However, both these cases involved claims that were evaluated under the old version of the regulations.
The undersigned disagrees with the Commissioner's argument. The regulations in effect for Plaintiff's claim no longer refer to “acceptable medical sources” and instead refer to categories of evidence, including medical opinions. 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). The definition of medical opinion cited by the Commissioner, 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1), applies to claims filed before March 27, 2017. The new regulations define a “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions” in the abilities to perform the physical, mental, or other demands of work activity or to adapt to environmental conditions. 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2) (emphasis added). A medical source is defined as “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law[.]” 20 C.F.R. §§ 404.1502(d), 416.902(d). The Commissioner does not dispute Ms. Campbell-Mingione's credentials and, as she should have, the ALJ considered her opinion statement under the new version of the regulations.
The ALJ did not find Ms. Campbell-Mingione's opinion persuasive, noting that it was inconsistent with her treatment notes and findings. However, as Plaintiff argues, “the ALJ does not specify which treatment notes are inconsistent” with her opinion. Pl.'s Br. 33. As indicated in the regulations, when considering the persuasiveness of a medical opinion, the ALJ is required to “explain” how she considered the supportability and consistency factors. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Here, the ALJ's reasoning does not provide sufficient explanation for the undersigned to determine how she arrived at her findings regarding the supportability and consistency factors which frustrates meaningful review. Mascio v. Colvin, 780 F.3d at 636 (finding that remand may be appropriate where “‘inadequacies in the ALJ's analysis frustrate meaningful review.'”). Furthermore, as discussed above, the ALJ refers only to the opinion statement's reference to Plaintiff's anxiety, but the ALJ does not mention Ms. Campbell-Mingione's discussion of Plaintiff's mania and depression symptoms or bipolar II diagnosis. Accordingly, the undersigned recommends remand for further consideration of this medical source opinion.
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 ALJ's decision 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.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”