Opinion
Civil Action No: 8:20-cv-00093-MGL-JDA
11-06-2020
Donna Hull, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). 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 ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner's decision be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In June 2018, Plaintiff filed an application for DIB alleging disability beginning November 13, 2012. [R. 249-50.] Plaintiff later amended the alleged onset date to January 9, 2018. [R. 258.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 135-42.] Plaintiff requested a hearing before an administrative law judge ("ALJ"), and on April 11, 2019, ALJ Edward T. Morriss conducted a de novo hearing on Plaintiff's claim. [R. 32-52.]
The ALJ issued a decision on August 26, 2019, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 13-31.] At Step 1, the ALJ found Plaintiff last met the Act's insured-status requirements on June 30, 2018, and had not engaged in substantial gainful activity during the period from her alleged onset date of January 9, 2018, through her date last insured of June 30, 2018. [R. 18, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: fibromas of the bilateral feet, status post surgery; degenerative disc disease of the cervical and lumbar spine; depression; and anxiety. [R. 18, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of headaches, obstructive sleep apnea, and obesity. [R. 18-19.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 19, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
[T]hrough the date last insured, the claimant had the [RFC] to perform less than the full range of light work as defined in 20 CFR 404.1567(b). Specifically, the claimant could lift and carry up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk for 6 hours in an 8-hour day, and sit for 6 hours in an 8-hour day. The claimant could only occasionally push and pull with the left upper extremity. She could never climb ladders, ropes or scaffolds, and she could only occasionally climb ramps and stairs, balance, stoop, kneel, crouch and
crawl. The claimant could only frequently handle with the left upper extremity. The claimant had to avoid concentrated exposure to extreme cold and extreme heat. Additionally, the claimant could have no frequent public interaction.[R. 21, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was incapable of performing her past relevant work as a stocker. [R. 26, Finding 6]. Upon considering Plaintiff's age, education, work experience, and RFC, however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 26, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act at any time from January 9, 2018, the amended alleged onset date, through June 30, 2018, the date last insured. [R. 27, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Appeals Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on January 8, 2020. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ's decision should be reversed and remanded because the ALJ failed to meet his burden at Step 5, failed to properly consider the prior ALJ decision under Albright, and failed to account for all of the evidence in his RFC evaluation. [Doc. 10 at 6-14]. The Commissioner, on the other hand, contends the ALJ did not commit reversible error by relying on the GRIDS in determining Plaintiff was not disabled and properly weighed the sedentary RFC finding from the previous ALJ's decision, and that substantial evidence supports the ALJ's finding that Plaintiff could perform a range of light work through the date last insured. [Doc. 12 at 10-21.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963))("Substantial evidence, it has been held, is 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 a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four may be appropriate to allow the Commissioner to explain the basis for the decision. See Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
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 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 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches Step 5, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Use of the GRIDs
The GRIDs consist of three "Tables," each representing a different RFC, including sedentary—Table 1, light—Table 2, and medium work—Table 3. 20 C.F.R. Pt. 404, Subpt. P, App. 2. Each table consists of a matrix of the four factors identified by Congress—physical ability, age, education, and work experience—and sets forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy. Id. Where a Plaintiff's qualifications correspond to the job requirements identified by a rule, the guidelines direct a conclusion as to whether work exists that the claimant could perform. Id. If such work exists, the claimant is not considered disabled. Id. Each GRID, however, "considers only the strength or exertional component of a claimant's disability in determining whether jobs exist that the claimant is able to perform in spite of his disability." Walker, 889 F.2d at 49.
An ALJ, in certain situations, can use the GRIDs to meet his burden at Step 5. See Hays v. Sullivan, 907 F.2d 1453, 1458 (4th Cir. 1990). However, the GRIDs apply only as guidelines for claimants who suffer from severe nonexertional impairments, or who cannot perform the full range of work activity within a GRID category. Walker, 889 F.2d at 49; see Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983) (holding that the GRIDs may satisfy the Commissioner's burden at Step 5, but only when the claimant suffers solely from exertional impairments). Indeed, when a claimant demonstrates the presence of nonexertional impairments, the Commissioner, to carry his or her burden, must prove that specific jobs exist in the national economy that the claimant can perform in spite of the claimant's combination of exertional and nonexertional impairments by utilizing testimony from a VE. Grant, 699 F.2d at 192.
The Fourth Circuit has found, however, that not every nonexertional malady rises to the level of a nonexertional impairment. Smith v. Schweiker, 719 F.2d 723, 725 (4th Cir. 1984). The Smith court provided that "[t]he proper inquiry, under Grant, is whether a given nonexertional condition affects an individual's [RFC] to perform work of which he is exertionally capable. If the condition has that effect, it is properly viewed as a 'nonexertional impairment,' thereby precluding reliance on the [GRIDs] to determine a claimant's disability." Id.
Additionally, SSR 83-14 acknowledges that certain nonexertional limitations may have very little effect on the range of work that an individual can perform. SSR 83-14, 1983 WL 31254 (Jan. 1, 1983). SSR 83-14 lists the three situations that should be considered in evaluating the sufficiency of the remaining exertional job base for a claimant found to be suffering from both exertional and nonexertional impairments:
1. Where it is clear that the additional limitation or restriction has very little effect on the exertional
occupational base, the conclusion directed by the appropriate rule in Tables No. 1, 2, or 3 would not be affected.Id. at *6.
2. Where it is clear that additional limitations or restrictions have significantly eroded the exertional job base set by the exertional limitations alone, the remaining portion of the job base will guide the decision.
3. Where the adjudicator does not have a clear understanding of the effects of additional limitations on the job base, the services of a [VE] will be necessary.
The ALJ's Analysis
In evaluating Plaintiff's mental impairments at Step 3, the ALJ determined that Plaintiff had mild limitations in understanding, remembering, or applying information; moderate limitations in interacting with others; mild limitations in concentrating, persisting, or maintaining pace; and mild limitations in adapting or managing oneself. [R. 20.] At Step 4, the ALJ determined that Plaintiff was capable of performing less than the full range of light work with the following limitations: lifting and carrying up to 20 pounds occasionally and 10 pounds frequently; standing and/or walking for 6 hours in an 8-hour day and sitting for 6 hours in an 8-hour day; only occasionally pushing and pulling with the left upper extremity; never climbing ladders, ropes or scaffolds; only occasionally climbing ramps and stairs, balancing, stooping, kneeling, crouching and crawling; only frequently handling with the left upper extremity; avoiding concentrated exposure to extreme cold and extreme heat; and having no frequent public interaction. [R. 21.] The ALJ noted that his finding that Plaintiff could have no frequent public interaction properly accounted for Plaintiff's depression, anxiety, and subjective reports that she had difficulty interacting with others. [R. 24.]
In making his Step 5 determination, whether Plaintiff could make a successful adjustment to other work, the ALJ, relying on the GRIDS, concluded as follows:
Through the date last insured, if the claimant had the residual functional capacity to perform the full range of light work, considering the claimant's age, education, and work experience, a finding of "not disabled" would be directed by Medical-Vocational Rule 202.14. The additional limitations had little or no effect on the occupational base of unskilled light work. Specifically, the postural limitations would leave the light occupational basis virtually intact pursuant to Social Security Ruling 85-15. Additionally, the limitations on ladders would not significantly erode the light occupational base, pursuant to Social Security Ruling 83-14. The pushing and pulling limitations of the left upper extremity would not significantly erode the light occupational base. Social Security Ruling 83-14. Moreover, the limitation on manipulation with the left upper extremity would not preclude light work, pursuant to Social Security Ruling 83-10. The environmental limitations would not significantly erode the light occupational base, as these are not present in most occupations, especially at concentrated levels. Social Security Ruling 85-15. Additionally, the limitation to no frequent public interaction would not preclude unskilled work, which primarily involves working with objects rather than people. Social Security Ruling 85-15. A finding of "not disabled" is therefore appropriate under this rule.[R. 26-27.]
Discussion
Upon review, the Court notes that the ALJ provided no discussion regarding his conclusion that Plaintiff's mental limitations had little or no effect on the occupational base of unskilled light work. The ALJ did not provide an explanation regarding the connection between Plaintiff's specific mental limitations and the erosion of the occupational base; instead, he stated that "the limitation to no frequent public interaction would not preclude unskilled work" because such work "primarily involves working with objects rather than people." [R. 27.] This Court has previously remanded cases based on similar conclusory statements, holding that "the ALJ in effect became a vocational expert." Meyer v. Berryhill, No. 8:16-cv-03310-JMC, 2018 WL 1531560, at *3 (D.S.C. Mar. 29, 2018) (reversing and remanding where the ALJ found the plaintiff's bipolar disorder was a severe impairment; he had moderate limitations in interacting with others and in concentration, persistence, or pace; and the RFC assessment included limitations to "understanding, remembering, and carrying out simple instructions with no ongoing public interaction" but the ALJ relied on the GRIDs and merely stated that "Plaintiff's social interactions would not preclude unskilled work because unskilled labor primarily deals with 'objects rather than people'"); see also Haselden v. Astrue, No. 9:10-545-CMC-BM, 2011 WL 2036457, at *3 (D.S.C. May 23, 2011) (reversing and remanding in part because the ALJ "fail[ed] to fully address how [the limitation to only limited social interaction] would affect the occupational base of unskilled work"). Moreover, here, the ALJ also found other manipulative and postural limitations. And, although the ALJ addressed each limitation individually, the decision fails to explain how the ALJ reached the conclusion that all of these nonexertional limitations would not erode the occupational base such that VE testimony was required. Accordingly, the undersigned is unable to conclude that the ALJ's decision is supported by substantial evidence.
Remaining Allegations of Error
Because the Court finds that the Commissioner's failure to carry his burden at Step 5 is a sufficient basis for remand, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge November 6, 2020
Greenville, South Carolina