Opinion
5:21-CV-288-M
08-25-2022
WESTERN DIVISION ADRIAN L. INGRAM SR., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MAYERS UNITED STATES MAGISTRATE JUDGE
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-10, -16] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Adrian L. Ingram, Sr. (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits (“DIB”). Both parties submitted memoranda in support of their respective motions. [DE-12, -17]. The time for filing responsive briefs has expired and the pending motions are ripe for adjudication. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings [DE-10] be allowed, Defendant's Motion for Judgment on the Pleadings [DE-16] be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability and DIB on October 9, 2019, alleging disability beginning March 31, 2015. Transcript of Proceedings (“Tr.”) 83, 101, 187-93. His claim was denied initially. Tr. 83-100, 121-29. Plaintiff filed a request for reconsideration (Tr. 130), and was denied upon reconsideration on May 6, 2020 (Tr. 101-18, 13133). On July 9, 2020, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 134-35. A hearing before the ALJ was held on February 26, 2021, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 40-76. On March 19, 2021, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 12-39.
On April 6, 2021, Plaintiff requested a review of the ALJ's decision by the Appeals Council. Tr. 185-86. On May 13, 2021, the Appeals Council denied Plaintiff's request for review. Tr. 1-6. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”],” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 33-34. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since March 31, 2015, the alleged onset date. Tr. 17.
Next, at step two, the ALJ determined Plaintiff had the following severe impairments: degenerative disc disease; obesity; osteoarthritis; sleep apnea; hernias; and asthma. Tr. 17. The ALJ also found Plaintiff had a non-severe impairment of depressive, bipolar, and related disorders. Tr. 18. However, at step three, the ALJ concluded these impairments both physical and mental, were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 19.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in mild limitation in understanding, remembering, or applying information; mild limitation in interacting with others; mild limitation in concentrating, persisting, or maintaining pace; and mild limitation in adapting or managing oneself. Tr. 18.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with the following limitations:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. § 404.1567(b). “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or 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); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. “Sitting” generally totals about 6 hours of an 8-hour workday. Id. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.
He could lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand and walk in combination six hours in an eight-hour workday; sit six hours in an eight-hour workday; frequently reach overhead bilaterally; frequently climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds; frequently balance, stoop; crouch; and crawl; and occasionally kneel. He could occasionally work at unprotected heights; around moving mechanical parts; and in dusts, odors, fumes, and pulmonary irritants.Tr. 20. In making this assessment, the ALJ found Plaintiff's statements about his limitations not entirely consistent with the medical evidence and other evidence in the record. Tr. 22.
At step four, the ALJ concluded Plaintiff had the RFC to perform the requirements of his past relevant work as a personnel manager, as actually and generally performed. Tr. 32. Although the ALJ found Plaintiff capable of performing past relevant work, the ALJ specifically made alternative findings for step five. The ALJ found in the alternative, upon considering Plaintiff's age, education, work experience, and RFC, there are other jobs that exist in significant numbers in the national economy that Plaintiff can also perform. Tr. 32-33.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the following errors: (1) the ALJ erred in his application of the de minimis severity standard at step two; (2) the ALJ's RFC finding and dispositive hypothetical question failed to include any mental functional limitations, despite the ALJ's prior findings to the contrary; (3) the ALJ failed to consider Plaintiff's required use of a cane; and (4) that the appointment of Commissioner Andrew Saul violated separation of powers, rendering the decision in this case by an ALJ and Appeals Council, who derived their authority from Commissioner Saul, constitutionally defective. Pl.'s Mem. [DE-12] at 3. Each will be discussed below. Plaintiff's second and third assignments of error will be discussed together, as they both involve the ALJ's evaluation and assessment of Plaintiff's RFC.
Except for citations to the Transcript of Proceedings (“Tr.”), all citations to documents using the docket entry number [DE-] provided in the court's docket will specify the page number automatically assigned by the CM/ECF system, rather than the page number, if any, specified in the original document.
VI. DISCUSSION
A. Evaluation of Plaintiff's RFC
Plaintiff contends that the ALJ erred in his evaluation of Plaintiff's RFC. Pl.'s Mem. [DE-12] at 6-15. Specifically, at issue is whether the ALJ errs by failing to include an adequate explanation of Plaintiff's RFC, and by providing an RFC that is not supported by substantial evidence. Id. Plaintiff argues that the ALJ does err. Plaintiff argues that the ALJ fails to account for either Plaintiff's mental limitations or need for an assistive device, such as a cane, in assessing and formulating Plaintiff's RFC. Id. For the reasons discussed below, the undersigned recommends that remand is required for this issue.
“A Social Security claimant's RFC represents ‘the most [he] can still do despite [his] limitations.'” Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). In assessing an individual's RFC, an ALJ considers that person's “ability to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R. § 404.1545(a)(4). Further, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 178 (4th Cir. 2016)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Indeed, “the ALJ's logical explanation is just as important as the other two [components] . . . and our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas, 916 F.3d at 311 (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). The ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, where a court is “left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
Additionally, “[r]emand 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.” McNeill v. Saul, No. 5:20-CV-244-M, 2021 WL 3701348, at *3 (E.D. N.C. June 2, 2021) (alterations in original) (quoting Mascio, 780 F.3d at 636). And while there is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[,]” courts have found remand warranted where the ALJ fails to assess a “contested” function that is “critically relevant to determining [a claimant's] disability status ....” Dowling, 986 F.3d at 388-89 (remanding case where the ALJ failed to evaluate the plaintiff's ability to sit when it was a contested function critical to determining the plaintiff's disability status, and stating that the ALJ should have included “an analysis [of plaintiff's ability to sit] that was separate from the ALJ's appraisal of [the plaintiff's] ability to perform other functions, and [this analysis] should have been accompanied by ‘a narrative discussion describing' the evidence supporting it”).
Here, the ALJ found that Plaintiff had the following RFC:
After careful consideration of the entire record, the undersigned finds that, through the date last insured, [Plaintiff] had the residual functional capacity to perform less than the full range of light work as defined in 20 CFR 404.1567(c). He could lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand and walk in combination six hours in an eight-hour workday; sit six hours in an eight-hour workday; frequently reach overhead bilaterally; frequently climb ramps and stairs; occasionally climb ladders, ropes, and scaffolds; frequently balance, stoop; crouch; and crawl; and occasionally kneel. He could occasionally work at unprotected heights; around moving mechanical parts; and in dusts, odors, fumes, and pulmonary irritants.Tr. 20.
Plaintiff alleges two specific errors related to the ALJ's RFC assessment. First, Plaintiff contends that the ALJ erred in his RFC evaluation of Plaintiff's need for an assistive device. Pl.'s Mem. [DE-12] at 13-15. Second, Plaintiff contends that the ALJ erred in his RFC evaluation of Plaintiff's mental impairments. Id. at 6-13. For each issue, Plaintiff argues that the ALJ fails to either include an RFC limitation to account for Plaintiff's impairments, or alternatively, explain why no such limitations are required.
Regarding the use of a cane, Plaintiff contends that “the ALJ failed to account for [Plaintiff's] need to use a cane in his determination of RFC, despite noting his use of a cane at the hearing, and despite citing to record evidence from multiple sources documenting [Plaintiff's] cane use.” Id. at 13. Plaintiff argues that the evidence of record establishes that Plaintiff has difficulty walking and consistently documents Plaintiff's cane usage. Id. at 13-14.
In assessing a claimant's RFC, an “ALJ must consider the impact of a ‘medically required' hand-held assistive device on a claimant's functional capacity.” Williams v. Berryhill, No. 5:17-CV-408-D, 2018 WL 4576781, at *3 (E.D. N.C. May 17, 2018) (citing Taylor v. Berryhill, No. 5:17-CV-78-FL, 2018 WL 852396, at *3 (E.D. N.C. Jan. 10, 2018); S.S.R. 96-9p, 1996 WL 374185, at *7 (July 2, 1996)). “The requirement to use a hand-held assistive device may . . . impact . . . [an] individual's functional capacity by virtue of the fact that one or both upper extremities are not available for such activities as lifting, carrying, pushing, and pulling.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00J(4). To determine whether a hand-held assistive device is required, an ALJ must follow the guidance set forth in Social Security Ruling 96-9p. In relevant part, SSR 96-9p provides that for an ALJ “[t]o find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).” S.S.R. 96-9p, 1996 WL 374185, at *7.
In evaluating Plaintiff's RFC here, the ALJ discusses evidence of record relating to Plaintiff's potential need for the use of a hand-held assistive device. For example, the ALJ discusses Plaintiff's testimony that he “ha[s] been using a cane for years, since he hurt his knee” and that “he has to use the cane if he leaves the house.” Tr. 21. The ALJ also discusses treatment records in which Plaintiff's use of an assistive device is noted by medical providers. See, e.g., Tr. 24 (“He had an antalgic gait with flexed trunk and poor arm swing when walking with a single point cane.”); Tr. 25 (“He used a cane and was slightly unsteady.”); Tr. 28 (“He walked with a very slow, shuffling, limping gait with the aid of a cane. He said had [sic] been using the cane off and on for three or four years.”). The written decision references treatment records indicating that an assistive device may have been prescribed to Plaintiff by a medical provider. See, e.g., Tr. 21 (“He stated his doctor told him not to depend on the walker and to use the cane if needed.”); Tr. 23 (“On September 17, 2016, [Plaintiff] received a roller walker for low back pain.”); Tr. 24 (“On March 13, 2017, Brittany Cant, PT, gave [Plaintiff] a rolling walker with seat and basket for a diagnosis of difficulty walking (Ex. 1F/72).... Brittany Cant, PT, trained [Plaintiff] in the use of a single point cane and wrap-around hinged knee brace (Ex. 1F/62).”). Finally, although the ALJ contests the frequency of falls, the ALJ notes evidence supporting that Plaintiff may have fallen multiple times due to being unsteady when walking and standing. See, e.g., Tr. 21 (“She [sic] stated his leg gives out sometimes, causing him to fall.... He indicated the nerves in his leg go numb, and he fell and broke his ankle.... He reported the VA modified his bathroom two years ago to help him with the shower and toilet. He indicated he needed help, because he kept falling.”); Tr. 23 (“Mr. Holmes stated the knee giving way may be from lumbar radiculopathy rather than an actual knee problem.”); Tr. 24 (“He had experienced left ankle pain since June 6, 2017, following a give way ankle twist at home.”).
Defendant argues that “[g]iven the evidence [cited to by the ALJ], the ALJ's ‘decision not to consider the impact of [the] cane on [the] ability to work has substantial evidentiary support.'” Def.'s Mem. [DE-17] at 24 (second and third alterations in original) (quoting Wimbush v. Astrue, 4:10CV00036, 2011 WL 1743153, at *3 (W.D. Va. May 6, 2011)). However, despite discussing evidence relating to Plaintiff's cane use, the ALJ fails to include any narrative discussion or analysis in the RFC of whether a cane or other hand-held assistive device was “medically required,” pursuant to the regulations. That is, the ALJ includes no discussion of whether there is “medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).” S.S.R. 96-9p, 1996 WL 374185, at *7. In light of the evidence discussed above, which may support that Plaintiff medically requires the use of an assistive device, the ALJ errs by omitting any RFC discussion of whether an assistive device was medically required. Indeed, the ALJ fails to include any relevant discussion of how Plaintiff's RFC may be impacted by the use of a hand-held assistive device.
Next, regarding Plaintiff's mental impairments, Plaintiff contends that despite finding that Plaintiff was limited by his mental impairments at step two of the sequential evaluation process, “the ALJ here included precisely zero mental functional limitations in his RFC finding and dispositive hypothetical questions to the VE.” Pl.'s Mem. [DE-12] at 9 (emphasis omitted) (internal citation omitted). Plaintiff argues that “mental functional limitations found in the [psychiatric review technique at step two] must be accounted for in some way in the RFC finding or the ALJ must explain why they are not accounted for.” Id. And, the ALJ here fails to do this. Id.
At step two of the sequential evaluation process, the ALJ here evaluates the “paragraph B” criteria, finding that that Plaintiff suffers from mild limitations in understanding, remembering or applying information; interacting with others; concentrating, persisting or maintaining pace; and adapting or managing oneself. Tr. 18. The ALJ states that “[b]ecause [Plaintiff's] medically determinable mental impairment caused no more than ‘mild' limitation in any of the functional areas and the evidence does not otherwise indicate that there is more than a minimal limitation in [Plaintiff's] ability to do basic work activities, it was nonsevere [sic] (20 CFR 404.1520a(d)(1)).” Tr. 19. However, the ALJ clarifies that his evaluation of the “paragraph B” criteria is not an RFC assessment, and “[t]he mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment.” Tr. 19.
In subsequently evaluating Plaintiff's RFC, the ALJ discusses evidence of record relating to Plaintiff's mental impairments and potential mental limitations. For example, the ALJ discusses Plaintiff's testimony that “he struggles with depression and anxiety.” Tr. 21. The ALJ also discusses treatment records noting that Plaintiff “had other specified depressive disorder that worsened in 2005 or 2006 when his pain worsened[,] . . . [and] declined participation in social activities and reported anxiety, detachment from his children, mood changes, and anxious distress.” Tr. 27. Treatment records cited by the ALJ further note that Plaintiff “described sad moods, irritability, concentration difficulties, diminished self-esteem, and social withdrawal ....” Tr. 28. And, that Plaintiff's “affect appeared apathetic to depressed and tense,” and he was “diagnosed with major depressive disorder, recurrent, with anxious distress ....” Tr. 29 (internal citation omitted).
Finally, the ALJ discusses opinions addressing Plaintiff's potential mental limitations. The ALJ first discusses the October 10, 2018 opinion of Michael Griffin, Ph.D. Dr. Griffin opines that “as it directly relates to work, if [Plaintiff] were to return to work, he would not likely experience substantial interference from mental health symptoms in the workplace, although his current social isolation could impact his ability to interact with his coworkers.” Tr. 30. Dr. Griffin further opines that Plaintiff's “mental health symptoms result in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication ....” Tr. 30 (internal citation omitted). The ALJ finds parts of Dr. Griffin's opinion to be persuasive, noting that the opinion “is supported by his in-person evaluation but is vague ....” Tr. 30-31. The ALJ also discusses the January 20, 2020 opinion of Christopher M. Ricci, Ph.D. Dr. Ricci opines that Plaintiff “appeared capable of following and understanding some simple directions and instructions and performing some simple tasks independently.” Tr. 31. Dr. Ricci further opines that Plaintiff “appeared capable of maintaining basic attention and concentration, but may have some difficulty maintaining a regular schedule[;]” that Plaintiff “appeared capable with significant training and supervision of learning to perform some complex tasks[;]” and that Plaintiff “may have difficulty relating adequately with coworkers and supervisors, as well as dealing with the stress of daily work activities.” Tr. 31. The ALJ again finds Dr. Ricci's opinion to be partially persuasive, noting that “[i]t is supported by his in-person examination but is unsigned[,] . . . [and] [i]t is difficult to determine if it is consistent with the medical evidence, because some limitations are inconclusive ....” Tr. 31.
Defendant argues that “[a]bsent a showing that the ALJ applied the law incorrectly or did not support the RFC conclusions with more than a ‘scintilla of evidence,' this court must affirm” the ALJ's decision as to Plaintiff's mental limitations. Def.'s Mem. [DE-17] at 22-23 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). However, the issue here is that the ALJ fails to adequately discuss Plaintiff's mental limitations and any conclusions reached regarding these limitations. Despite discussing evidence relating to Plaintiff's mental impairment and limitations, the ALJ does not include any narrative discussion or analysis in the RFC of whether Plaintiff required mental RFC limitations. In light of the evidence discussed above and the ALJ's own finding that Plaintiff's mental impairment causes mild limitations, which may support that Plaintiff required mental RFC limitations, the ALJ errs by failing to “include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Monroe, 826 F.3d at 189 (quoting Mascio, 780 F.3d at 636). Indeed, “our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” Thomas, 916 F.3d at 311 (citing Woods, 888 F.3d at 694). An adequate explanation of Plaintiff's mental impairments by the ALJ here is particularly important given the ALJ's failure to properly assess Plaintiff's need for an assistive device discussed above. As explained further below, the inclusion of mental impairments could be work preclusive if the ALJ finds that Plaintiff requires a hand-held assistive device.
Although Plaintiff's mental limitations were only deemed mild, as highlighted by Plaintiff, a “mild limitation” is not “no limitation.” Pursuant to the regulations a “mild limitation” still impacts a claimant's ability to function. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00F(2)(b).
In sum, while the ALJ may ultimately conclude that no additional RFC limitations for the use of an assistive device or to account for Plaintiff's mental impairments are needed, the ALJ is still required to “include a narrative discussion describing how the evidence supports [this] conclusion ....” Monroe, 826 F.3d at 189. The ALJ must “show [his] work.” Harrison v. Berryhill, No. 4:16-CV-227-FL(2), 2017 WL 3669630, at *5 (E.D. N.C. Aug. 7, 2017) (alteration in original) (quoting Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017)). Here, the ALJ does not do so. This lack of explanation and analysis regarding Plaintiff's limitations frustrates meaningful review by the court and the court is left to guess about how the ALJ came to his apparent conclusion that no additional RFC limitations were needed.
Finally, the undersigned finds that the ALJ's error here is not harmless. The inclusion of additional mental limitations and a limitation for the use of an assistive device could limit or eliminate the jobs that Plaintiff was found able to do by the ALJ. In particular, a limitation for the use of an assistive device, such as a cane, may limit Plaintiff's ability to perform the jobs cited by the ALJ at step five of the sequential evaluation process. At Plaintiff's hearing, the VE testified that the “[u]se of a cane would preclude all work, unless it's at the exertion level of sedentary.” Tr. 74. Although the VE testifies that Plaintiff could perform his past relevant work at the sedentary level, the VE did not offer testimony at step five about other jobs that could be performed at the sedentary level by an individual with Plaintiff's limitations. See Tr. 72-74. And, the ALJ bears the burden at step five to “provide evidence about the existence of work in the national economy that [a claimant] can do (see §§ 404.1560 through 404.1569a), given [the claimant's] residual functional capacity . . ., age, education, and work experience.” 20 C.F.R. § 404.1512(b)(3).
Furthermore, additional mental RFC limitations may also limit Plaintiff's ability to perform his past relevant work at step four of the sequential evaluation process. The VE testified that an individual with Plaintiff's limitations would be unable to perform Plaintiff's past relevant work if he had difficulty with concentration and focus and was forced to be off-task greater than fifteen percent of the day. Tr. 74-75. Plaintiff was specifically found by the ALJ to be impaired in his ability to concentrate, persist, or maintain pace. Tr. 18. The VE further testified that Plaintiff's past relevant work as a personnel manager, DOT code 166.117-018, has a specific vocational preparation (“SVP”) time of 8. Tr. 70-71. As noted by Plaintiff, this is considered to be “skilled work.” Pl.'s Mem. [DE-12] at 10 (citing S.S.R. 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000)). Although Plaintiff's mental impairments were only found to be mild at step two, it is possible that even mild limitations could impact Plaintiff's ability to perform his past skilled work.
Accordingly, the undersigned RECOMMENDS this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should make findings and provide sufficient explanation in order to permit meaningful judicial review for substantial evidence, if necessary.
B. Evaluation of Plaintiff's severe impairments at step two
Next, Plaintiff contends that the ALJ erred in his application of the de minimis severity standard at step two of the sequential evaluation process. [DE-12] at 3. Specifically, at issue is whether “[t]he ALJ's conclusion that [Plaintiff's] depression was non-severe was in clear disregard of the step two de minimis standard.” Id. at 4. Plaintiff argues that it was, as “[t]he evidence supports that [Plaintiff] was undoubtedly experiencing a mental impairment that had more than a minimal effect on his functioning and met the de minimis standard.” Id. Plaintiff further argues that because the ALJ “illogically concluded” that Plaintiff's mental impairment was not severe, remand is warranted. Id. at 5. The court disagrees.
At step two of the sequential evaluation process, an ALJ must “consider the medical severity of [a claimant's] impairment(s)” and determine whether they “have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets the duration requirement.” 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is “severe” if it significantly limits a claimant's ability to do work related activities. 20 C.F.R. § 404.1522(a); see also S.S.R. 96-3p, 1996 WL 374181, at *1 (July 2, 1996). To the contrary, “[a]n impairment or combination of impairments is not severe if it does not significantly limit [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522(a); see also S.S.R. 96-3p, 1996 WL 374181, at *1 (“[A]n impairment(s) that is ‘not severe' must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.”). Basic work activities include physical functions; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. § 404.1522(b).
The step two inquiry is used as “a de minimis screening device to dispose of groundless claims.” Flowers v. Saul, No. 7:18-CV-00183-FL, 2020 WL 522015, at *3 (E.D. N.C. Jan. 9, 2020) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)), adopted by 2020 WL 520895 (E.D. N.C. Jan. 31, 2020); see also Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230 (4th Cir. 2011) (“Step two of the sequential evaluation is a threshold question with a de minimis severity requirement.”). If the ALJ determines that a claimant does not have a severe medically determinable physical or mental impairment than the claimant will be found not disabled, and the ALJ does not proceed to step three of the sequential evaluation process. 20 C.F.R §§ 1520(a)(4); (a)(4)(ii). However, if the claimant has at least one severe impairment or combination of impairments, the ALJ proceeds to the third step. Id. Therefore, an ALJ's omission of a single severe impairment at step two does not automatically require remand. “As long as the ALJ determines that the claimant has at least one severe impairment and proceeds to discuss all of the medical evidence, any error regarding failure to list a specific impairment as severe at step two is harmless.” Flowers, 2020 WL 522015, at *3 (quoting McClain v. Colvin, No. 1:12CV1374, 2014 WL 2167832, at *4 (M.D. N.C. May 23, 2014)).
Here, at step two of the sequential evaluation process, the ALJ determines that Plaintiff's mental impairment is not a severe impairment. See Tr. 17-18. The ALJ explains this finding, stating that Plaintiff's “medically determinable mental impairment of depressive, bipolar and related disorders, did not cause more than minimal limitation in [Plaintiff's] ability to perform basic mental work activities and was therefore nonsevere [sic].” Tr. 18. Even accepting Plaintiff's argument that the ALJ erred by failing to conclude that Plaintiff's mental impairments were severe as true, this error would be harmless.
Although the ALJ deems Plaintiff's mental impairments not severe, the ALJ does determine that Plaintiff suffers from the severe impairments of “degenerative disc disease; obesity; osteoarthritis; sleep apnea; hernias; and asthma.” Tr. 17. The ALJ then proceeds through the remaining steps of the sequential evaluation process. See Tr. 19-34. The ALJ also fully considers and discusses evidence of Plaintiff's impairments, including his non-severe mental impairment, in the remainder of his written decision. Therefore, because “the ALJ [here] determines that [Plaintiff] has at least one severe impairment and proceeds to discuss all of the medical evidence, any error regarding failure to list [Plaintiff's mental impairment] as severe at step two is harmless.” Flowers, 2020 WL 522015, at *3 (quoting McClain, 2014 WL 2167832, at *4); see also Richardson v. Kijakazi, No. 4;20-CV-71-M, 2021 WL 3478211, at *4 (E.D. N.C. July 20, 2021) (citing Jones v. Astrue, No. 5:07-CV-452-FL, 2009 WL 455414, at *2 (E.D. N.C. Feb. 23, 2009)).
An in-depth discussion of the ALJ's consideration of the medical evidence at subsequent steps is located in Section VI.A above. Additionally, to the extent that Plaintiff also attempts to argue here that the ALJ's RFC evaluation was deficient (see, e.g., Pl.'s Mem. [DE-12] at 5 (“Moreover, the ALJ found Dr. Ricci's opinion to be partially persuasive in the hearing decision, yet did not include any mental limitations in [Plaintiff's] residual functional capacity (Tr. 20, 31).”), this discussion is also addressed in Section VI.A above.
Accordingly, the undersigned recommends that remand is not required for this issue. Even if accepting Plaintiff's argument here, any error by the ALJ in finding that Plaintiff's mental impairment was not severe at step two is harmless.
C. Constitutionality of the structure of the Social Security Administration
Finally, Plaintiff contends that the structure of the Social Security Administration (“SSA”) violates the separation of powers. Pl.'s Mem. [DE-12] at 3, 15. Specifically, Plaintiff argues that “[t]he United States Supreme Court has held that it is unconstitutional for an executive agency to be led by a single head who serves for a longer term than the President and can only be removed from his position for cause.” Id. at 15 (citing Seila Law LLC v. CFPB, 140 S.Ct. 2183 (2020)). And, “[t]he Commissioner of SSA is the singular head of the Agency, serves for six years, and cannot be removed by the President except for cause (‘neglect of duty or malfeasance in office').” Pl.'s Mem. [DE-12] at 15 (quoting 42 U.S.C. § 902(a)(3)). Therefore, the “SSA's structure is unconstitutional as it violates separation of powers . . . [and] [t]he case should be remanded for a de novo hearing before a new ALJ ....” Pl.'s Mem. [DE-12] at 15, 17.
Defendant “agree[s] that 42 U.S.C. § 902(a)(3) violates the separation of powers to the extent it is construed as limiting the President's authority to remove the Commissioner without cause.” Def.'s Mem. [DE-17] at 5. However, Defendant argues that “even where an unconstitutional statutory removal restriction exists, a plaintiff seeking relief on that basis must show that the restriction actually caused him harm.” Id. at 5-6 (citing Collins v. Yellen, 141 S.Ct. 1761, 1787-89 (2021)). Defendant argues that Plaintiff here cannot show harm, and thus, remand is not required for this issue. Def.'s Mem. [DE-17] at 6.
Because remand has been recommended above, the undersigned does not address Plaintiff's constitutional argument. See Norfolk S. Ry Co. v. City of Alexandria, 608 F.3d 150, 157 (4th Cir. 2010) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)) (stating that “the principle of constitutional avoidance . . . requires the federal courts to strive to avoid rendering constitutional rulings unless absolutely necessary”); see also Johnson v. Kijakazi, No. 5:20-cv-000143-BO, 2021 WL 4295132, at *2 n.1 (E.D. N.C. Sept. 21, 2021) (“Because this case is remanded for further proceedings, the Court does not reach the constitutional issue raised in plaintiff's supplemental briefing.”).
VII. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-10] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-16] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until September 7, 2022 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).