Opinion
C/A No. 2:17-cv-02663-TLW-MGB
01-22-2019
JAMES HARDY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B). Plaintiff James Hardy ("Plaintiff") brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration (the "Administration") regarding his claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 53 years old on his amended alleged disability onset date of January 2014. (R. at 52, 76; Dkt. No. 12 at 6.) His original alleged disability onset date was May 3, 2013. (R. at 26, 76; Dkt. No. 12 at 6.) Plaintiff alleged disability due to, inter alia, arthritis in his back; herniated disc; high blood pressure; depression; and restless leg syndrome. (R. at 76.) Plaintiff has past relevant work as a restaurant manager and fast food cook. (Id. at 38, 209.)
During the hearing before the Administrative Law Judge, (infra p. 2), Plaintiff clarified that he drew unemployment benefits for the "last quarter of 2013." (R. at 52.) Consequently, the Administrative Law Judge amended Plaintiff's disability onset date to January 2014. (Id.) Despite amending the onset date to January 2014, however, the Administrative Law Judge continued to refer to May 3, 2013, as the onset date throughout the decision. (Id. at 26, 28, 38.)
Plaintiff filed an application for DIB on June 30, 2014. (Id. at 26, 163.) His application was denied initially on August 11, 2014, and on reconsideration on October 2, 2014. (Id. at 26, 87, 102.) After a hearing before the Administrative Law Judge ("ALJ") on July 19, 2016, (id. at 45-75), the ALJ issued a decision on September 28, 2016, in which the ALJ found that Plaintiff was not disabled (id. at 26-39). The Appeals Council denied Plaintiff's request for review, (id. at 1-3), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the decision:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2017.
(2) The claimant has not engaged in substantial gainful activity since May 3, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: lumbar degenerative disc disease, right wrist, obesity, and restless leg syndrome (20 CFR 404.1520(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 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand, walk, and sit six hours in an eight hour workday. The claimant can occasionally climb
ladders, ropes, and scaffolds, stoop, and crawl. He can frequently climb ramps and stairs, balance, kneel, and crouch. He can frequently handle with the right upper extremity.(Id. at 28-38.)
(6) The claimant is capable of performing past relevant work as a restaurant manager and cook, fast food. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from May 3, 2013, through the date of this decision (20 CFR 404.1520(f)).
APPLICABLE LAW
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). "Disability" is defined in the Act 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 a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant—considering his age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. See SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). The Commissioner may satisfy this burden by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); see also Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
Plaintiff presents two issues on appeal. First, Plaintiff argues that "[t]he ALJ erred in failing to properly evaluate the demands of [Plaintiff's] past relevant work." (Dkt. No. 11 at 22.) More specifically, Plaintiff claims that the ALJ failed to explain how he resolved conflicting evidence regarding the requirements of Plaintiff's past job as a restaurant manager and fast food cook in determining that Plaintiff had the capacity to perform past relevant work. (Id. at 22-25.) Plaintiff further claims that the ALJ erred in failing to evaluate Plaintiff's past work experience as a composite job. (Id. at 25-26.) Next, Plaintiff argues that the ALJ "did not give logically or legally sufficient reasons for discounting" the medical opinions of Plaintiff's treating physician, Dr. Eric P. Loudermilk. (Id. at 26-28.) Plaintiff claims that the ALJ improperly relied on isolated instances of stability in according minimal weight to Dr. Loudermilk's opinions, and erroneously evaluated Dr. Loudermilk's second opinion as the opinion of another doctor, "Dr. Eric Caldwell." (Id. at 26-30; R. at 36.)
Upon review of the parties' arguments, the decision, and the record as a whole, the undersigned finds that the ALJ failed to adequately evaluate and explain the physical demands of Plaintiff's previous job as a restaurant manager and fast food cook pursuant to Social Security Ruling 82-62 ("SSR 82-62") and, consequently, the determination that Plaintiff was capable of performing past relevant work was not supported by substantial evidence. For the reasons set forth below, this matter should be remanded for further consideration and analysis by the Commissioner.
A. Plaintiff's Capacity to Perform Past Relevant Work
As a general rule, a claimant is "not disabled" if his residual functional capacity ("RFC") demonstrates that he is able to perform his past relevant work. See 20 C.F.R. § 404.1520(a)(4)(iv); see also Pass v. Chater, 65 F.3d 1200, 1207 (4th Cir. 1995) ("[U]nder the fourth step of the disability inquiry, a claimant will be found 'not disabled' if he is capable of performing his past relevant work either as he performed it in the past or as it is generally required by employers in the national economy.") Thus, after completing a claimant's RFC assessment, the ALJ must compare the RFC with the physical and mental demands of the claimant's past relevant work and "then determine if the claimant's impairments prevent his performance" of that work. See Parker v. Astrue, 664 F. Supp. 2d 544, 555-56 (D.S.C. 2009) (referencing 20 C.F.R. § 404.1520(f)).
In evaluating the demands of a claimant's past relevant work, SSR 82-62 provides,
The claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work. Determination of the claimant's ability to do [previous relevant work] requires a careful appraisal of (1) the individual's statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally performed in the economy.SSR 82-62, 1982 WL 31386, at *3 (emphasis added).
If the ALJ determines, based on this evidence, that the claimant has the capacity to perform a past relevant job, SSR 82-62 requires that the ALJ's decision contain the following: (1) a finding of fact as to the claimant's RFC; (2) a finding of fact as to the physical and mental demands of the past job; and (3) a finding of fact that the claimant's RFC would permit a return to his past job. Id. at *4. Indeed, "the rationale for that decision 'must be written so that a clear picture of the case can be obtained' and 'must follow an orderly pattern and show clearly how specific evidence leads to a conclusion.'" See Adams v. Barnhart, 445 F. Supp. 2d 593, 595 (D.S.C. 2006) (citing SSR 82-62).
The ALJ in this case satisfied the first requirement of SSR 82-62 by making the following findings of fact regarding Plaintiff's RFC:
[T]he claimant can perform a limited range of light exertional activity. He can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand, walk, and sit six hours in an eight hour workday. The claimant can occasionally climb ladders, ropes, and scaffolds, stoop, and crawl. He can frequently climb ramps and stairs, balance, kneel, and crouch. He can frequently handle with the right upper extremity.(R. at 38.) Based on this RFC, the ALJ concluded that Plaintiff was able to return to his past job as a restaurant manager and fast food cook, and provided the following explanation:
The vocational expert testified that [Plaintiff] has past relevant work as a restaurant manager (SVP-7, light) and cook, fast food (SVP-5, medium). The vocational expert testified that [Plaintiff's] past relevant work would not be precluded by the residual functional capacity assessed herein. The vocational expert stated that [Plaintiff] could still perform his past relevant work even if he were restricted exertionally, to light work. The undersigned finds this testimony credible. [Plaintiff's] work as a restaurant manager and cook, fast food is relevant in that it was performed within the past 15 years, was performed long enough to learn it, and was performed at the substantial gainful activity [sic]. Thus, in comparing [Plaintiff's] residual functional capacity with the physical and mental demands of this work, the undersigned finds that [Plaintiff] is able to perform it as actually and generally performed.(Id.)
Plaintiff argues that the ALJ's conclusion failed to adequately explain the physical demands of Plaintiff's past job in relation to his RFC and, thus, did not satisfy the second requirement under SSR 82-62. (Dkt. No. 11 at 22-25.) More specifically, Plaintiff points to the inconsistencies between his hearing testimony and the statements in his Work History Report, and the ALJ's failure to explain how he resolved these conflicting statements in evaluating Plaintiff's ability to perform past work. (Dkt. No. 13 at 2.) In his Work History Report, Plaintiff stated that his past work as a restaurant manager required him to lift up to 75 pounds and carry an average weight of 25 to 50 pounds. (R. at 182.) At the hearing before the ALJ, however, Plaintiff testified that during his time as a "cook/manager," he had other employees do the "heavy lifting," because he "couldn't do it." (Id. at 69.) He further testified that although his job required standing and walking frequently, he "would sit down a lot," and "managed people to do what [he] needed to do." (Id. at 69-70.) The undersigned notes that there are also inconsistencies in the record regarding the maintenance of Plaintiff's barbeque business. Indeed, although some of Plaintiff's treatment records noted Plaintiff was working long hours trying to restart and maintain his barbeque business, Plaintiff testified during the hearing that he was not working on his business and cooked barbeque only for himself on occasion. (Id. at 52-53, 404, 412-13, 419, 421, 423, 426-28.)
After reviewing the decision in its entirety, the undersigned agrees with Plaintiff that the ALJ failed to properly develop and explain a factual basis for his determination regarding the physical demands of Plaintiff's past work as a restaurant manager and fast food cook. As stated above, SSR 82-62 requires that the ALJ "show clearly how specific evidence leads to a conclusion" that the claimant was able to return to past relevant work. Adams, 445 F. Supp. 2d at 595 (citing SSR 82-62). Here, the ALJ brushed past conflicting evidence regarding the demands of Plaintiff's past work without any explanation whatsoever as to how he resolved the inconsistencies, or why he chose to credit one statement over another. For example, the ALJ appeared to credit the hearing testimony regarding Plaintiff's lifting capacity over Plaintiff's statements in the Work History Report, referencing Plaintiff's testimony that he "did not perform significant lifting," and restricting Plaintiff's RFC to lifting and carrying only 10 pounds frequently. (R. at 32, 38.) The ALJ did not explain, however, why he disregarded the statements in Plaintiff's Work History Report noting the higher lifting requirements. Similarly, while the decision referenced the various treatment notes reflecting Plaintiff's ongoing business as evidence that Plaintiff was capable of continuing work as a restaurant manager, the ALJ failed to discuss Plaintiff's conflicting hearing testimony that he had not been maintaining his barbeque business. (Id. at 30, 34, 36.) Although the Commissioner acknowledges these conflicting statements in her memorandum in support of the ALJ's decision, she makes no attempt to explain how the ALJ reconciled such evidence in his determination regarding Plaintiff's past relevant work; instead, the Commissioner relies exclusively on the vocational expert's conclusory testimony in arguing that the decision was supported by substantial evidence. (Dkt. No. 12 at 11-12.)
The ALJ's failure to explain his consideration and resolution of the conflicting evidence above simply does not satisfy the "careful appraisal" approach required under SSR 82-62. See e.g., Malachi v. Colvin, No. 214-CV-03334-TMC-MGB, 2016 WL 551828, at *4 (D.S.C. Jan. 25, 2016), adopted, No. 2:14-CV-03334-TMC, 2016 WL 540729 (D.S.C. Feb. 11, 2016) (finding that ALJ's conclusion that plaintiff was capable of performing past relevant work was not supported by substantial evidence where ALJ failed to explain how he credited and resolved conflicting statements between plaintiff's work history report and hearing testimony); Parker, 664 F. Supp. 2d at 556-57 (concluding that ALJ failed to develop factual basis for determining that plaintiff could return to past work where decision relied largely on conclusory testimony from vocational expert); see also SSR 82-62, 1982 WL 31386, at *3 (noting that past work experience is "an important and, in some instances, a controlling issue," and thus, "every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit"). Accordingly, without further explanation as to why the ALJ credited only certain portions of Plaintiff's testimony in establishing the physical demands of Plaintiff's job as a restaurant manager, the undersigned finds that the ALJ's determination that Plaintiff could return to past relevant work was not supported by substantial evidence.
Plaintiff argues that the ALJ's evaluation of Plaintiff's past relevant work was further flawed in that he failed to consider Plaintiff's past work as a composite job. "In the event the main duties of past relevant work can only be described by considering multiple DOT occupations, a [claimant] may be considered to have performed a composite job." Shealy v. Colvin, No. CIV.A. 8:13-2383-RMG, 2015 WL 467726, at *12 (D.S.C. Feb. 4, 2015). Pursuant to the Administration's Program Operations Manual System ("POMS"), DI § 25005.020B, when comparing a claimant's RFC to a composite job as the claimant performed it, the ALJ "must find the claimant capable of performing the composite job only if he or she can perform all parts of the job." (Social Security Administration, Program Operations Manual System, DI 25005.020, Past Relevant Work (PRW) as the Claimant Performed It (effective April 13, 2017), available at https://secure.ssa.gov/poms.nsf/lnx/0425005020) (emphasis added); see also Shealy, 2015 WL 467726, at *13 (noting that an ALJ may not find a claimant capable of performing past relevant work by dividing the demands of a composite job into two separate jobs and finding him capable of performing the less demanding of the two jobs). "This court has generally considered remand appropriate where substantial evidence suggests the plaintiff might have performed a composite job and the ALJ failed to resolve the issue." See Parker v. Berryhill, No. CV 1:16-3852-TMC- SVH, 2017 WL 4075128, at *12 (D.S.C. Aug. 24, 2017), adopted, No. 1:16-CV-3852-TMC, 2017 WL 4037680 (D.S.C. Sept. 13, 2017) (collecting cases).
Here, Plaintiff testified that his job as a restaurant manager also involved cooking. (R. at 68.) The ALJ reiterated these dual responsibilities in the decision, noting that as manager of a barbeque restaurant, Plaintiff "cooked some and made sure meals were prepared according to his recipes." (Id. at 32.) In evaluating this past work experience, the vocational expert suggested that Plaintiff's job as a restaurant manager should be broken into two separate DOT titles to accurately capture the cooking component of his job:
Q: Can you identify past relevant work identifying the job, the exertional level and the skill level, please?(Id. at 69.) Pursuant to DOT 313.374-010, "medium work" as a fast food cook requires exerting 20 to 50 pounds of force occasionally and/or 10 to 25 pounds of force frequently. DOT 313.374-010, 1991 WL 672716. Thus, "[p]hysical demand requirements are in excess of those for Light Work." Id.
A: He was employed as a Manager, Restaurant. DOT 187.167-106. The DOT places this in the light duty work category providing an SVP of 7. That is all, Your Honor.
Q: Okay. And does that include cooking?
A: Yes.
Q: I can provide a second DOT title which I feel would identify cooking in a barbeque restaurant better.
A: Okay.
Q: Cook, Fast Food. DOT 313.374-010. Medium per the DOT. SVP of 5.
Notwithstanding the vocational expert's testimony that the cooking-related component of Plaintiff's job required medium work, the ALJ inexplicably determined that Plaintiff's RFC of "limited . . . light exertional activity" did not preclude Plaintiff from performing his past work as a restaurant manager. (R. at 38.) Indeed, despite testimony that two DOT titles were necessary to accurately capture the demands of Plaintiff's past work experience, the ALJ did not treat Plaintiff's past work as a composite job or demonstrate that Plaintiff could perform all parts of the two jobs identified by the vocational expert. As a result, it is difficult to understand how the ALJ found that Plaintiff, who was limited in his RFC to light exertional work and carrying only 10 pounds frequently, could perform the cooking-related duties under DOT 313.374-010, which require medium work and lifting up to 25 pounds frequently. 1991 WL 672716. Thus, once again, the undersigned is not persuaded that substantial evidence supports the ALJ's finding that Plaintiff can return to work as a restaurant manager. See, e.g., Plumb v. Astrue, C/A No. 8:10-3090-RBH, 2012 WL 768058, at *6 (D.S.C. March 7, 2012) (remanding for consideration of whether plaintiff's past work as liquor store owner/operator was a composite job where vocational expert classified job as involving managerial duties under one DOT title, and stock clerk duties under a second DOT title); Shealy, 2015 WL 457726 (finding the ALJ erred in failing to assess whether plaintiff's past relevant work was a composite job where she performed job duties of an order clerk in conjunction with duties of a material handler or store laborer).
The Commissioner argues that the ALJ's errors in evaluating Plaintiff's past relevant work were harmless, given that the vocational expert identified "other light jobs that Plaintiff could perform that exist in significant numbers in the national economy including inspector and hand packager and cafeteria attendant." (Dkt. No. 12 at 12.) The ALJ's decision, however, does not adopt—or even discuss—the additional jobs identified by the vocational expert, and the undersigned is not at liberty to determine that such jobs are not precluded by Plaintiff's RFC on behalf of the ALJ. Accordingly, on remand, the ALJ should make factual findings, and fully explain his reasoning, to determine whether Plaintiff's past relevant work was a composite job and, if so, whether Plaintiff has the RFC to perform the exertional demands of all the tasks of the composite job. To the extent the ALJ finds that Plaintiff cannot perform his past relevant work, the ALJ must proceed to Step 5 of the sequential analysis and determine whether the other jobs identified by the vocational expert are precluded by Plaintiff's RFC.
B. Remaining Allegations of Error
The undersigned finds the ALJ's analysis of Plaintiff's past relevant work to be a sufficient basis on which to remand the case to the Commissioner and, thus, the undersigned declines to specifically address Plaintiff's additional allegations of error. However, upon remand, the Commissioner should take into consideration Plaintiff's remaining allegations of error, including Plaintiff's assertion that the ALJ failed to properly weigh the opinion of Plaintiff's treating physician, Dr. Loudermilk. (Dkt. No. 11 at 26-30.) The Commissioner should further consider the ALJ's references to "Dr. Eric Caldwell" when citing an opinion authored by Dr. Loudermilk, and determine whether such references were scrivener's errors or mistakes of fact. (Dkt. No. 13 at 5, referencing R. at 36.)
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE January 22, 2019 Charleston, South Carolina