Opinion
CIVIL ACTION NO. 9:18-573-BHH-BM
03-13-2019
SELIMA RENEE FERNANDEZ, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI), alleging disability beginning February 3, 2013, due to irritable bowel syndrome, anemia, hemorrhoids, deep thrombophlebitis, anxiety, abdominal pain, and right ear loss. (R.pp. 400-401, 402-413). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on May 24, 2016. (R.pp. 241-279). The ALJ thereafter denied Plaintiff's claims in a decision dated September 15, 2016. (R.pp. 82-102). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-6).
Although the definition of disability is the same under both DIB and SSI; Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at * 1 n. 3 (D.S.D. Feb. 29, 2008); "[a]n applicant who cannot establish that she was disabled during the insured period for DIB may still receive SSI benefits if she can establish that she is disabled and has limited means." Sienkiewicz v. Barnhart, No. 04-1542, 2005 WL 83841, at ** 3 (7th Cir. Jan. 6, 2005). See also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir. 1999)[Discussing the difference between DIB and SSI benefits].
Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for further consideration of her claim. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 98 2-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
Plaintiff, who was thirty two (32) years old on her alleged disability onset date, has some college as well as specialized training in her past work as a fraud investigator for Bank of America. (R.pp. 246-248). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.
After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of post-traumatic stress disorder (PTSD), a major depressive disorder, a borderline personality disorder, right ear hearing loss, and fibromyalgia, (R.p. 87), she nevertheless retained the residual functional capacity (RFC) to perform sedentary work, with the additional limitations that she cannot climb ropes, ladders, and scaffolds; can only occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; and never balance. The ALJ further found that Plaintiff is limited to unskilled, low stress work involving simple, routine, and repetitive tasks, with repetitive tasks defined as being free of fast paced production requirements; involving only simple, work-related decisions; and with few, if any, work place changes. Finally, the ALJ found that Plaintiff could have only occasional interaction with the general public throughout a workday. (R.p. 92). Although the ALJ determined that these limitations precluded Plaintiff from performing her past relevant work, the ALJ concluded that she could still perform other representative occupations with these limitations, such as assembler (DOT # 739.687-086), packer (DOT # 774.684-034), and label cutter (DOT # 585.685-062), and was therefore not entitled to disability benefits. (R.pp. 96-97).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
Sedentary work is defined as lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a) (2005).
Plaintiff argues that the ALJ erred in reaching her decision because she improperly failed to weigh all of the medical opinions of record, and failed to properly account in the assigned RFC for Plaintiff's moderate limitation in concentration, persistence, and pace. After careful review and consideration of the record in this case and the arguments presented, and for the reasons set forth hereinbelow, the undersigned is constrained to agree with the Plaintiff that the ALJ committed reversible error by failing to properly account for her moderate limitation in her ability to maintain concentration, persistence, and pace in compliance with Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), thereby requiring a reversal with remand of this case.
RFC is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's ability to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. Here, as noted, in her RFC determination the ALJ limited Plaintiff to unskilled work with the performance of simple, routine and repetitive tasks, in a low stress environment, which is defined as a work environment free of fast paced production requirements, involving only simple work-related decisions, and with few, if any, workplace changes. (R.p. 92). The ALJ then discussed the medical records and her findings for why these limitations were appropriate. See generally (R.pp. 92-95). However, the ALJ also determined that Plaintiff's mental impairments and other limitations resulted in her having moderate limitations in her ability to maintain concentration, persistence or pace (R.p. 91), and Plaintiff argues that the ALJ failed to properly account for her moderate limitation in CPP, in compliance with Mascio, in reaching her RFC findings. See Plaintiff's Brief, pp. 7-10; Plaintiff's Reply Brief, pp. 3-6. The undersigned agrees.
The Fourth Circuit held in Mascio that "an ALJ does not account 'for a claimant's [moderate] limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio, 780 F.3d at 638, quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). Rather, that restriction only addresses the complexity of the work, not a Plaintiff's ability to stay "on task", as required by Mascio. See Mascio, 780 F.3d at 638; Salmon v. Colvin, No. 12-1209, 2015 WL 1526020, at *3 (M.D.N.C. Apr. 2, 2015) [noting that "the Fourth Circuit made clear that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine, tasks or unskilled work."] (citations and quotations omitted); see also Sanders v. Berryhill, No. 16-3883, 2018 WL 878964, at *10 n. 10 (D.S.C. Jan. 29, 2018)[Finding ALJ's hypothetical to VE that only limited the claimant to simple and routine tasks in low stress environment did not adequately account for claimant's moderate CCP limitations], report and recommendation adopted, No. 16-3883, 2018 WL 835228 (D.S.C. Feb. 13, 2018); Dill v. Berryhill, No. 16-3949, 2018 WL 840103, at *2 (D.S.C. Jan. 26, 2018)[Limitation 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 did not adequately account for claimant's moderate CPP limitation], report and recommendation adopted, No. 16-3949, 2018 WL 826854 (D.S.C. Feb. 12, 2018); cf. Straughn v. Colvin, No. 14-200, 2015 WL 4414275, at *4 n.5 (M.D.N.C. July 20, 2015) [reasoning that the ALJ "did not address how the RFC's limitation to 'simple, routine' tasks addressed his finding of 'mild limitations with concentration, persistence or pace.' Thus, the ALJ's decision may also run afoul of the recent decision in Mascio"] (citation and quotation omitted).
While the Defendant cites to certain medical records (to support the ALJ's decision) showing that Plaintiff's memory and concentration were intact, cognition was normal, and hallucinations and delusions were absent (citing R.pp. 95, 784, 1050, 1056, 1074, 1174, 1181, 1227, 1266)[see Defendant's Memorandum in Support of Summary Judgment, pp. 2, 3-5, 9-10], in Mascio the Fourth Circuit held that the ability to perform simple work (assuming the cited records support this finding) is not the same as having the ability to stay on task during a workday, which is the limitation that would account for a claimant's impairment in concentration, persistence or pace; Mascio, 780 F.3d at 638; and the ALJ does not discuss anywhere in her decision whether Plaintiff's moderate limitations in CPP would restrict her ability to stay on task for an eight (8) hour workday, nor (critically) does she make any findings on this issue. See Mascio, 780 F.3d at 636 ["Remand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review."], citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013). Even though the ALJ specifically noted Plaintiff's fatigue in assigning Plaintiff a moderate limitation in CPP (R.p. 91), cited to Plaintiff's testimony that her fatigue affected her ability to work (R.p. 92), and found that the "medical evidence of record bears . . . out" her complaints of fatigue (R.p. 93), the ALJ failed to analyze or discuss how these specific findings effected her ability to stay on task for an 8-hour workday, as required by Mascio. See also SSR 96-8p [Defining RFC as a claimant's ability to perform work for 8-hours a day, five days a week]. The importance of the ALJ to have made a finding on this issue is demonstrated not just by the 4th Circuit's holding in Mascio, but by the VE's testimony in this case. When the VE was specifically asked whether a person who needed more than three breaks during the day would be able to perform the jobs identified, the VE answered that she would not. (R.pp. 276-277). Therefore, a specific finding on the question of Plaintiff's ability to stay on task was critical. See also Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978) [An ability to work for only a few hours a day on an intermittent basis is not equivalent to an ability to engage in substantial gainful activity].
While the ALJ cited to Plaintiff's fatigue (and pain) as a reason to limit her to sedentary work with various additional postural limitations (R.p. 95), she nowhere discussed how (or whether ) her fatigue would limit Plaintiff's ability to stay on task at a job for a full 8 hour workday.
This case stands in contrast to cases where the decision has been upheld because the claimant's ability to stay on task notwithstanding the claimant's mental limitations was specifically addressed. Cf. Falls v. Colvin, No. 14-195, 2015 WL 5797751, at * 7 (D.S.C. Sept. 29, 2015) [Noting that "[a]s opposed to the hypothetical in Mascio, which said nothing about the claimant's mental limitations, the ALJ's hypothetical in this case accounted for each of Plaintiff's mental limitations. The ALJ also accounted for Plaintiff's limitations in the area of concentration when determining Plaintiff's residual functional capacity. The ALJ noted Plaintiff's mental limitations but found that the Plaintiff could concentrate, persist and work at pace to do simple, routine, repetitive work at 1-2 step instructions for extended periods say 2-hour periods in an 8-hour day"]. Here, the VE testified that someone with the ability to "concentrate, persist in task, keep on pace for two-hour blocks of time" could perform the jobs he identified. (R.p. 276). However, the ALJ never then took the next, necessary, step (i.e., make a finding on whether Plaintiff was able to perform this requirement). Although it could be assumed that the ALJ believed this to be the case - as that is a finding that must be made by the ALJ it would not be proper for this Court to itself make such a finding. Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have thinking."].
Similarly, the ALJ limiting Plaintiff's RFC to no more than occasional contact with the general public along with few, if any, work place changes (R.p. 92) deals largely with workplace adaptation, rather than concentration, pace, or persistence. See McPherson v. Colvin, No. 16-1469, 2016 WL 5404471 at * 8 (E.D.Pa. Sept. 28, 2016)[where the court rejected that moderate restrictions in concentration, persistence, and pace were accommodated by a hypothetical to a VE that only included: 1) the performance of routine, repetitive tasks; 2) a low stress environment (defined as no frequent independent decision making required and no frequent changes in the work setting); and 3) no public interaction and occasional interaction with coworkers and supervisors](citing to Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015)); Knight v. Commissioner, No. 15-1512, 2016 WL 4926072 (D.S.C. Sept. 16, 2016)[Finding that the ALJ's limiting the hypothetical to "unskilled work with no direct interaction with the public; only occasional team type interaction with coworkers; [who] should not be required to adapt to greater than simple, gradual changes in the workplace" did not account for the Plaintiff's moderate limitation in concentration, persistence, or pace].
With respect to the remaining restriction placed on the Plaintiff, that she engage in no "fast-paced production requirements" (R.p. 92), 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 following Mascio. See Bryan-Tharpe v. Colvin, No. 15-272, 2016 WL 4079532 at * (M.D.N.C. July 29, 2016)(collecting cases); see also Wilson v. Colvin, No. 14-3209, 2016 WL 625088 at * 5 (D.S.C. Jan. 15, 2016)(unpublished)[holding restriction to "nonproduction work, no assembly line production, or high speed manner, . . . [s]tanding alone, . . .does not account for a limitation in [CPP]"), recommendation adopted, 2016 WL 613891 (D.S.C. Feb. 16, 2016)(unpublished). However, in this case the ALJ did not limit Plaintiff to non-production work or no assembly line work. Rather, the ALJ's additional limitation (as set forth in her hypothetical to the VE) was that Plaintiff was prohibited from working in a "fast-paced" production environment. (R.p. 92). As such, the hypothetical in this case is similar to the mental restrictions set forth in the hypothetical in Varga, where the ALJ instructed the VE to assume an individual with Varga's vocational profile (age, education, and work experience) who was able to perform
simple, routine, or repetitive tasks in a work environment . . . free of fast paced production requirements, involving only simple work related decisions with few if any work place [sic] changes and no more than occasional interaction with coworkers or supervisors.Varga, 794 F.3d at 812. The Seventh Circuit in Varga held that a restriction from performing "fast paced" production jobs did not account for moderate restrictions in CPP. Varga, 794 F.3d at 815 [A restriction to work "free of fast paced production requirements" did not account for Plaintiff's moderate deficits in CPP, because the ALJ failed to define "fast paced production."]. The ALJ here also did not define "fast paced" work. Therefore, while that limitation may address Plaintiff's concentration problems, it does not appear to address Plaintiff's ability to stay on task for an 8-hour workday. In fact, as noted, when the VE was specifically asked whether a person who needed more than three breaks during the day would be able to perform the jobs identified, the VE answered that she would not. (R.pp. 276-277).
Hence, as neither the ALJ's RFC assessment nor the ALJ's hypothetical question to the VE specifically address Plaintiff's ability to stay on task or ability to maintain a necessary pace for a full 8-hour workday, the court is left to guess how the ALJ accounted for this ability (or inability) despite finding that Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace. Carr v. Colvin, No. 15-685, 2016 WL 4662341, at *10 (D. Md. Sept. 7, 2016)[Finding that the ALJ's inclusion of a limitation in the assessment of Plaintiff's RFC and in the hypothetical questions to the VE to only occasional contact with supervisors, co-workers, and the public accounts for Plaintiff's moderate difficulties in social functioning, but does not account for Plaintiff's moderate difficulties in maintaining concentration, persistence, or pace]; see Miller v. Colvin, No. 15-443, 2016 WL 3679292 at **4-5 (W.D.N.C. July 11, 2016) [Finding remand required where "it is not entirely clear how the evidence aligns with the necessary functions, which is a required showing."] (citing Mascio, 780 F.3d at 636; SSR 96-8p, 1996 WL 374184, at *7). As such, the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). "Remand thus is appropriate." Carr, 2016 WL 4662341, at *10.
The ALJ found that Plaintiff had mild difficulties in social functioning in this case, and accounted for Plaintiff's mild limitations by restricting her to no more than occasional interaction with members of the general public. (R.pp. 91-92).
Of course, the ALJ may be able to find from the evidence that Plaintiff's CPP limitation would not effect her ability to stay on task at a job over the course of an 8 hour work day, or that she would be able to perform either the jobs identified by the VE at the hearing or other jobs even with some defined limitation in her ability to stay on task. However, it is incumbent on the ALJ to make any such findings, and since the ALJ did not make that determination or finding in her decision (see also, n. 5, supra), it would not be proper for this Court to now attempt to do so in the first instance. See Mascio, 780 F.3d at 638 [noting that the ALJ may be able to explain why a concentration, persistence, or pace limitation did not translate into a limitation in the RFC ("[f]or example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the [VE]"), but finding that remand was appropriate because the ALJ gave no explanation]; Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) ["The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court"]; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) [Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision]; Bray, 554 F.3d at 1225 ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have thinking."]. Nor, in light of Mascio, can this Court simply dismiss the ALJ's failure to address this issue as harmless error.
Therefore, the decision should be reversed and remanded for consideration of Plaintiff's RFC in compliance with Mascio. With respect to the remainder of Plaintiff's claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge March 13, 2019
Charleston, South Carolina
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
Post Office Box 835
Charleston, South Carolina 29402
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).