Opinion
Civil Action No.: 4:16-cv-03949-PMD-TER
01-26-2018
DANIEL EDWARD DILL, Plaintiff, v. NANCY A. BERRYHILL, Commissioner of Social Security; Defendant.
REPORT AND RECOMMENDATION
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a "final decision" of the Commissioner of Social Security, denying Plaintiff's claim for disability insurance benefits (DIB). The only issues before the Court are whether the findings of fact are supported by substantial evidence and whether proper legal standards have been applied.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff filed an application for DIB on February 6, 2013, alleging inability to work since January 1, 2004. (Tr. 14). The date last insured is March 31, 2008. (Tr. 14). His claims were denied initially and upon reconsideration. Thereafter, Plaintiff filed a request for a hearing. A hearing was held on February 19, 2015, at which time Plaintiff and a vocational expert (VE) testified. The Administrative Law Judge (ALJ) issued an unfavorable decision on April 16, 2015, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 14-25). Plaintiff filed a request for review of the ALJ's decision, which the Appeals Council denied on October 19, 2016, making the ALJ's decision the Commissioner's final decision. (Tr. 1-4). Plaintiff filed this action on December 19, 2016.
B. Plaintiff's Background and Medical History
1. Introductory Facts
Plaintiff was born November 13, 1973, and was thirty-four years old at the time of the date last insured. (Tr. 23). Plaintiff completed his education through at least high school and has past work experience as a heavy equipment mover and machine operator. (Tr. 23). Plaintiff alleges disability originally due to bulging disc injury, cervical spine impairment, degenerative disc disease, herniated disc, lumbar spine impairment, severe back pain, anxiety, depression, hypertensive cardiovascular disease, and hypertension. (Tr. 133-34). Under the respective issue heading, only medical records pertinent to the issue upon which the court's recommendation for remand is based will be addressed. Likewise, only pertinent hearing testimony will be summarized below.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
On February 19, 2015, Plaintiff appeared, with his attorney representative, at a hearing before ALJ Jerry W. Peace. Benson Hecker testified as an impartial vocational expert (VE). (Tr. 82).
Plaintiff testified he went to college for a semester and took a welding vocational class. (Tr. 91). He can read and write and add and subtract. (Tr. 91). He drives. (Tr. 92). At some point in time, he could not handle a production job physically. (Tr. 97). Plaintiff had not worked since 2004. (Tr. 98). Plaintiff testified that the reasons he cannot work is his back, major depression, and being bipolar. (Tr. 98). He testified his medication for bipolar still has not "straightened [him] out." (Tr. 98). Plaintiff helps his thirteen-year-old son study every evening. (Tr. 101). Plaintiff had an addiction problem in the past, so he keeps his medicine in a lock box at his mother's house. (Tr. 103). He takes several prescriptions for his mental health problems. (Tr. 105-06). The ALJ mentioned a doctor's note in 2014 that stated Plaintiff smoked marijuana twice a week. (Tr. 107). Plaintiff testified that his doctor told him if he wanted his bipolar medicine to work he needed to quit smoking marijuana. (Tr. 108). Plaintiff testified that he had difficulty concentrating sometimes and thinks it is from the bipolar and from the medication side effects. (Tr. 121). Plaintiff testified to suicidal thoughts and having problems staying on task. (Tr. 122).
b. Vocational Evidence
The VE opined that past work was eliminated for an individual of Plaintiff's age, education, and prior work experience who could lift up to 50 pounds occasionally, lift/carry up to 25 pounds frequently, and medium work, but limited to frequent bilateral push/pull, frequent balancing with a handheld assistive device, frequent stooping, occasional crouching, kneeling, or crawling, frequent bilateral overhead reaching, and limited to simple, routine and repetitive tasks performed in a work environment free of fast-paced production requirements involving only simple work-related decisions with few if any workplace changes. (Tr. 127).
The VE opined that a hand packer job existed in significant numbers in the national economy that the hypothetical individual could perform. (Tr. 128). Under hypothetical number two with the same as hypothetical one, but with the following changes: light work, lift up to 20 pounds occasionally, lift/carry up to 10 pounds frequently, stand or walk for 6 hours per workday, sit for 6 hours of workday with normal breaks, the VE opined the following jobs: packer, cashier, and assembler. (Tr. 128-29). Under hypothetical three, the ALJ added the limitation of being off task 20% or more of the day; the VE opined no jobs would be available. (Tr. 129). The VE testified if the hypothetical individual were unable to stay on task for longer than 30 minutes or if asbsent two or more times per month, there would be no work. (Tr. 130).
2. The ALJ's Decision
In the decision of April 16, 2015, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on March 31, 2008.
2. The claimant has not engaged in substantial gainful activity during the period from his alleged onset date of January 1, 2004 through his date last insured of March 31, 2008 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease, affective disorder, and anxiety disorder (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) with additional limitations. The claimant could lift up to 50 pounds occasionally, lift and carry up to 25 pounds frequently, and frequently push or pull bilaterally. He could frequently balance with a hand-held assistive device, and stoop. He could occasionally crouch, kneel, or crawl. He could frequently engage in bilateral overhead reaching. The claimant was limited to simple, routine, and repetitive tasks, performed in a work environment free of fast-paced production requirements, and involving only simple work-related decisions with few, if any, workplace changes.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on November 13, 1973 and was 34 years old, which is defined as a younger individual age 18-49, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the dated last insured, considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from January 1, 2004, the alleged onset date, through March 31, 2008, the date last insured (20 CFR 404.1520(g)).
II. DISCUSSION
Plaintiff argues that the ALJ's RFC analysis does not account for the moderate difficulties in concentration, persistence and pace found at Step Three by the ALJ. Also, Plaintiff argues the ALJ erred in evaluating the opinions of Dr. Milas and Dr. Smith. Plaintiff argues the ALJ did not properly evaluate credibility. The Commissioner argues that the ALJ's decision is supported by substantial evidence.
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: the 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 at least 12 consecutive months. 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting the "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity ("SGA"); (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 SGA. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
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 past relevant work 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).
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); 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 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 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, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir.1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that 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). 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
Mascio : RFC
Plaintiff asserts that the ALJ erred when Plaintiff's RFC accommodated the moderate difficulties in concentration, persistence, and pace found at Step Three solely by limiting Plaintiff "to simple, routine, and repetitive tasks, performed in a work environment free of fast-paced production requirements, and involving only simple work-related decisions with few, if any, workplace changes" at Step Four. (Tr. 19). Under Step Three, the ALJ noted:
With regard to concentration, persistence or pace, the claimant had moderate difficulties. The claimant engages in activities that require a good deal of concentration, such as helping his 13-year old son with homework (Hearing
Testimony). He has assistance taking his medication. Per the claimant's testimony, his mother administers his medication kept in a lockbox at the mother's home. The claimant has stress and anxiety that he takes prescribed medication for (Exhibit 6F/l). Additionally, per the claimant's testimony, his medication makes him "moody". He testified further that he has problems staying on task, but he can read, write, and perform basic math problems. On September 23, 2014, a physical examination showed that the claimant's thought content was remarkable for ruminations, but his short-term and long-term memory were normal (Exhibit 6F /2).(Tr. 18). Under the RFC discussion, the ALJ stated: "Due to []his severe mental impairments, the claimant is limited to simple, routine, and repetitive tasks, performed in a work environment free of fast-paced production requirements, and involving only simple work-related decisions with few, if any, workplace changes." (Tr. 22). Before this conclusion, the ALJ does discuss some mental health treatment that was sporadic and conservative, but the ALJ did not relate this discussion to concentration, persistence, or pace concerns from Step Three.
The Fourth Circuit held that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the RFC or the hypothetical question to the vocational expert to simple, routine tasks or unskilled work. Mascio, 780 F.3d at 638; see also Winschel v. Comm'r of Soc. Sec.,631 F.3d 1176, 1180 (11th Cir. 2011); Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009) (per curiam); Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004); Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996). "As Mascio points out, the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. at 638. The functional area of "concentration, persistence and pace" refers to the "ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate" completion of work. 20 C.F.R. pt. 404, Subpart P, App. 1 § 12.00(c)(3).
In the instant case, at earlier steps, the ALJ found that Plaintiff had moderate limitations in concentration, persistence, or pace (hereinafter "CPP"), but the ALJ did not include a clear limitation in the RFC. Post-Mascio, federal district courts in the Fourth Circuit have split on whether a restriction to non-production work adequately accounts for a moderate limitation in CPP in accordance with Mascio.
The Court notes that the assessment of severity at steps two and three does not equate to a specific RFC finding at steps four and five. See SSR 96-8p ("The adjudicator must remember that the limitations identified in the 'paragraph B' and 'paragraph C' criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments, and summarized on the PRTF.")
Compare Jones v. Colvin, 2015 WL 4773542, at *6 (E.D.N.C. Aug. 13, 2015)(deeming "work in a low production occupation ... which would require no complex decision making, constant change or dealing with crisis situations" insufficient to account for moderate limitation in CPP), Mims v. Berryhill, 2017 WL 3704615, at *7-8 (D. Md. Aug. 28, 2017)(finding inadequacy of ALJ's analysis frustrated meaningful review where RFC limited to "a low stress job defined as occasional interaction with the public, coworkers, or supervisors" and ALJ had found moderate difficulties in maintaining CPP); Biddell v. Colvin, 2016 WL 815300, at *5-6 (W.D.N.C. Feb. 29, 2016)(finding it was unclear how ALJ's finding that Plaintiff could sustain attention and concentration for two hours at a time at a non-production rate translated into ability to perform a full day's work for a full work week) with Hill v. Colvin, 2016 WL 3181762, at *8 (D. Md. June 8, 2016) (finding limitation to "no production rate or piece work" accounted for the plaintiff's moderate difficulties in maintaining CPP); Morris v. Berryhill, 2017 WL 4112365, at *9-11 (E.D. Va. Aug. 30, 2017), adopted, 2017 WL 4108939 (E.D. Va. Sept. 15, 2017)(finding limitation to "nonproduction work" accounted for difficulty in pace and limitation to simple tasks accounted for difficulties in persistence and concentration); Linares v. Colvin, 2015 WL 4389533, at *4 (W.D.N.C. July 17, 2015) (finding nonproduction addressed limitations in pace); and Grant v. Colvin, 2016 WL 4007606, at *6-9 (M.D.N.C. July 26, 2016)(collecting cases and noting that cases within the Middle District of North Carolina have interpreted this aspect of Mascio and reached differing results, but finding in that particular case that a facial limitation to nonproduction work does not require further explanation under Mascio).
In aligning with prior cases in this district finding that a restriction to non-production work or low stress environment without further explanation does not account for a moderate limitation in CPP, the undersigned recommends remand for the ALJ to explain how the RFC accounts for limitations in CPP or to explain why the moderate limitations in CPP the ALJ previously found do not translate into a limitation in the RFC.
The District of South Carolina has more often than not remanded cases in which the RFC includes such limitations without further explanation in regard to how such limitations account for the ability to sustain an 8-hour workday. See Wilson v. Colvin, No. 2:14-CV-3209-TLW-MGB, 2016 WL 625088, at *4-5 (D.S.C. Jan. 15, 2016), adopted, 2016 WL 613891 (D.S.C. Feb. 16, 2016)(finding restriction to "simple one-two step tasks in a low stress work environment, i.e., non-production work, no assembly line production, or high speed manner" standing alone did not account for a limitation in CPP); Bigby v. Colvin, No. 1:16-CV-00890-DCN, 2017 WL 4297449, at *1 (D.S.C. Sept. 28, 2017)(rejecting magistrate judge's report and recommendation and finding restriction to "simple, routine, and repetitive tasks, with occasional interaction with the public and occasional interaction with co-workers" did not account for moderate difficulties in maintaining CPP); Jackson v. Berryhill, No. CV 9:16-1560-TMC-BM, 2017 WL 1133253, at *7-9 (D.S.C. Mar. 15, 2017), adopted, 2017 WL 1105103 (D.S.C. Mar. 24, 2017)(finding restriction to simple repetitive tasks, no contact with the public, no working in a team setting and no work in a fast-paced environment did not account for moderate difficulties in CPP because contact with others dealt largely with workplace adaptation, rather than CPP, and while "fast paced" may address concentration problems it does not address the ability to stay on task for an 8-hour workday); Simpkins v. Berryhill, No. CV 9:16-1710-TMC-BM, 2017 WL 835309, at *3-6 (D.S.C. Feb. 14, 2017), adopted, 2017 WL 819038 (D.S.C. Mar. 2, 2017)(finding restriction to "performance of simple instructions and simple, routine tasks; no high production work, defined as no high volume assembly line work; she could have public contact 10% of the workday or less, but could do no counter sales, or work serving the public; and could occasionally make job related decisions and tolerate work place changes" did not account for moderate difficulties in CPP because many of the limitations dealt with workplace adaptation rather than CPP and no high volume assembly line work may address concentration but does not address the ability to stay on task for an 8-hour workday); see also Helms v. Colvin, No. 1:15-CV-1867-BHH, 2016 WL 2848368, at *2-3 (D.S.C. May 16, 2016)(finding Mascio did not require remand where the ALJ sufficiently explained why she found that difficulties in CPP were accommodated by the limitations in the RFC).
Finally, the court does not in anyway suggest that Mascio creates a per se rule requiring remand when an ALJ fails to account for moderate difficulties in concentration, persistence, and pace in the RFC. The Fourth Circuit noted that the ALJ's error may be cured by an explanation as to why the claimant's moderate difficulties in concentration, persistence, and pace did not translate into a limitation in the claimant's RFC, but that remand is necessary absent such an explanation. Mascio, 780 F.3d at 638. The ALJ's statement about the RFC's limitation in the narrative is conclusory and fails to explain how the RFC actually accounts for the moderate limitations in concentration, persistence and pace, where the RFC limitations and/or narrative do not explain Plaintiff's capacity to sustain an eight hour workday.
See Sizemore v. Berryhill, 878 F.3d 72 (4th Cir. 2017)(where medical evidence clearly showed claimant could perform work on a sustained basis, substantial evidence supported the ALJ's decision). --------
The decision should make clear that the ALJ considered Plaintiff's limitations in concentration, persistence, and pace and provide substantial evidence underlying the determination of the RFC. It does not do so here, and thus precludes this court from meaningful review.
In light of the court's finding that this matter should be remanded for further consideration, the court need not address Plaintiff's remaining issues. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Upon remand, the ALJ should take into consideration Plaintiff's remaining allegations of error in accordance with the applicable laws, rules, and regulations.
RECOMMENDATION
In conclusion, it may well be that substantial evidence exists to support the Commissioner's decision in the instant case. The court cannot, however, conduct a proper review based on the record presented. 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 under sentence four of Sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. Sections 405(g) and 1338(c)(3), it is recommended that the Commissioner's decision be reversed and that this matter be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this opinion.
s/ Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge January 26, 2018
Florence, South Carolina