Opinion
C. A. 5:23-4475-MGL-KDW
07-08-2024
Shakima Jackson, Plaintiff, v. Martin O'Malley, Commissioner of Social Security,[1] Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Kaymani D. West United States Magistrate Judge
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff, appearing pro se, brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for continuing Supplemental Security Income (“SSI”) pursuant to the Social Security Act (“the Act”). Because Plaintiff is proceeding pro se the court is bound to construe her pleadings liberally. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded.
I. Relevant Background
A. Procedural History
Plaintiff filed an application for SSI on August 30, 2002. See Tr. 146. Her application was denied initially and upon reconsideration and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Id. A hearing was held on October 27, 2004 in New Haven, Connecticut. Id. In his November 10, 2004 decision, the ALJ determined that Plaintiff was disabled, finding the severity of Plaintiff's mental impairments met the requirements for Listing 12.04. Tr. 149.
The Social Security Administration (“SSA”) sent Plaintiff a Notice of Disability Cessation on October 12, 2018 finding her no longer disabled as of August 2018 and informing Plaintiff of her right to appeal. Tr. 198. The Explanation of Determination (“EOD”) indicated that review of the 2004 decision was “now necessary as medical improvement was felt possible.” Tr. 200. The EOD also noted:
Medical records are insufficient to determine if you are still disabled so two consultative exams were scheduled and you failed to attend either exam. Due to your failure to attend either exam, we cannot establish disability so your benefits will be ceased. Your benefits will cease August 2018 the month you missed the second exam and terminate September 2018.
We need information to decide if you are still disabled. Although you have been asked to take a special examination at our expense, you have not done so. Therefore, based on the evidence we have, we cannot determine that your disability continued beyond 08/2018.Id. Plaintiff filed a Request for Reconsideration on October 19, 2018. Tr. 203. Plaintiff failed to attend a disability hearing scheduled for June 3, 2019, Tr. 204, and the Disability Hearing Officer issued a decision on June 7, 2019 finding Plaintiff was “not disabled.” Tr. 216-26. On June 25, 2019 Plaintiff requested a hearing by an ALJ. Tr. 231. A hearing was scheduled for December 11, 2019. Tr. 236. Plaintiff appeared pro se; however, after being advised of her right to seek representation, Plaintiff requested a postponement of the hearing so that she could obtain counsel. Tr. 132-37. A second hearing was scheduled for June 2, 2021. Tr. 279. Plaintiff again appeared without representation; however, because Plaintiff did not offer a reason for not proceeding, the hearing went forward before ALJ Paul Elkin. Tr. 84-87. ALJ Elkin issued an unfavorable decision on July 22, 2021 finding that Plaintiff's disability ended on August 9, 2018, and Plaintiff had not become disabled again since that date. Tr. 163-82. On July 30, 2021 Plaintiff requested review of the ALJ's decision from the Appeals Council. Tr. 292-93. On July 21, 2022 the Appeals Council issued an order remanding the case to the ALJ finding the ALJ evaluated the opinion evidence using the wrong rules. Tr. 191. The Appeals Council instructed the ALJ to also evaluate whether medical improvement had occurred. Tr. 192.
ALJ Elkin conducted an administrative hearing on March 23, 2023, Tr. 40-83, and issued an unfavorable decision on April 21, 2023 finding once again that Plaintiff's disability ended on August 9, 2018, and she had not become disabled again since that date. Tr. 11-30. Plaintiff requested review of the decision from the Appeals Council on April 25, 2023, Tr. 432-33, and on July 13, 2023 the Appeals Council denied the request for review, Tr. 1-6. Plaintiff filed a Complaint in this court on September 6, 2023, ECF No. 1, and later filed an Amended Complaint dated September 11, 2023, ECF No. 1-2. On September 14, 2023, the undersigned notified Plaintiff of her obligation to file a written brief setting out her arguments in support of her claim that her benefits were improperly denied. ECF No. 13. On October 16, 2023 Plaintiff filed a one-page letter stating that she remains mentally disabled. ECF No. 15. The court provided Plaintiff additional time to submit a full brief as outlined in the court's previous order and notified her that failing a submission, the court would consider the record without benefit of Plaintiff's argument. ECF No. 21. Plaintiff failed to submit a brief, and the court determined it appropriate to consider her October 2023 letter as her argument and instructed the Commissioner to respond. ECF No. 24. The Commissioner filed his brief on February 12, 2024. ECF No. 29. Plaintiff notified the court on March 19, 2024 that she intended to file a response to the Commissioner's brief. ECF No. 32. To date, nothing else has been filed by Plaintiff.
B. Plaintiff's Background
Born in August 1974, Plaintiff was 28 years old when she filed her application for SSI on August 30, 2002. See Tr. 146. Plaintiff indicated in her June 29, 2018 Continuing Disability Review Report that she has the following medical conditions: bipolar disorder, anxiety/depression, bulging discs, torn ACL, and metal rod in femur. Tr. 487. She indicated that she was 5'3” tall and weighed 150 pounds. Id. In a November 2018 Disability Report-Field Office, the interviewer indicated that Plaintiff had difficulty concentrating, and noted that “she is very excitable she was all over the place[] and [you] had to continuously reel her back in. She constantly moved around and could not stay still.” Tr. 512.
C. The Administrative Hearings
1. Plaintiff's 2019 Administrative Hearing
On December 11, 2019, Plaintiff appeared pro se for an administrative hearing in Columbia, SC before ALJ Elkin. Tr. 129. After being advised of her right to seek representation, Plaintiff requested a postponement of the hearing so that she could obtain counsel. Tr. 132- 37.
2. Plaintiff's 2021 Administrative Hearing
Plaintiff appeared without representation for her administrative hearing on June 2, 2021 before ALJ Elkin. Tr. 85. Plaintiff did not offer a reason for not proceeding with the hearing. Tr. 87. Due to the extraordinary circumstance of the Coronavirus pandemic, the hearing was conducted by telephone with Plaintiff's consent. Tr. 88, 90.
a. Plaintiff's Testimony
Plaintiff testified that she lived alone in a third-floor apartment that she accesses via an elevator. Tr. 95. Plaintiff stated that she has a friend that comes over four times a week for four or five hours a day to help her with shopping and cleaning. Tr. 95-96. Plaintiff testified that she currently weighed 130 pounds and she “lost so much weight because of the gastro.” Tr. 96. Plaintiff stated that she “can only eat five meals a day, and they have to be small meals. Because [her] food don't digest right.” Tr. 97-98. Plaintiff testified that she is in physical therapy for her hand. Tr. 98. She testified that she cut her hand, it got infected, and she had to get plastic surgery. Id. Plaintiff stated that she is no longer getting physical therapy for her knee and hip; she gets injections for arthritis in her left knee. Tr. 99. Plaintiff affirmed that she has been recommended to do home exercises and testified that she does the exercises three times a week. Id. Plaintiff also stated that she tries to walk when she can. Id. Plaintiff stated that twice a week she walks her dog for half a mile. Tr. 100. Plaintiff stated that she is on a special diet and she can eat only certain types of food and she cannot eat salads or fruits. Id. Plaintiff stated that she is right-handed, does not have a driver's license, but she recently got her learner's permit. Tr. 101. Plaintiff stated that in the past she did not use public transportation; her friend would take her or she would walk to the store. Tr. 102. Plaintiff testified that she was still receiving monthly disability payments, and she receives food stamps. Id. Plaintiff affirmed that she graduated from high school and she did not attend college. Tr. 102-03. The ALJ noted that after Plaintiff was found disabled in 2004, she worked at several different jobs from 2010 through 2012 through a temporary placement service. Tr. 103. The ALJ noted she worked at Premier Graphics, Miracle House, and had some self-employment earnings; however, Plaintiff did not work long enough or earn enough to have gainful activities. Id. When asked what were the circumstances that allowed her to work for those years, Plaintiff stated that at that time she had just gotten out of jail, she was not back on disability, and she had no money so she “had to survive.” Id. Plaintiff testified that she was in jail for four months on assault and burglary charges. Tr. 104. She stated that after her incarceration she went to a halfway house, then she started working in the halfway house. Id. Plaintiff stated that she had not worked any jobs since 2012. Id. Plaintiff testified that she attempted to work at a gas station, but after a day and a half of training she got into an argument with the clerk who was training her so she was not hired. Tr. 104-05. The ALJ informed the VE there was no past work to classify. Tr. 105.
The ALJ noted that Plaintiff was previously found disabled due to depression and Plaintiff affirmed that she believed depression still prevents her from working. Tr. 106. Plaintiff stated she thinks she is bipolar, but the ALJ indicated that he was not interested in labels but he was focused on how her mental health issues affected her currently. Tr. 106-07. Plaintiff testified that she “can't function in society.” Tr. 107. She stated that society makes her “want to hurt somebody” because people always want to fight and argue with her. Id. She said her “nerves are bad when [she's] not taking [her] medication - [she's] not focused[.]” Id. She stated that she does not like people and does not like dealing with people. Id. Plaintiff testified that when she is taking her medication “most of the time [she's] asleep,” because the medication makes her sleepy. Tr. 108. She stated that sometimes the medicine helps, and sometimes it does not help. Id. Plaintiff affirmed that she is seen at the mental health clinic every two months, and there are no plans to change the medicines she is currently taking. Id. Other than not dealing with people Plaintiff stated that she tries to avoid going anywhere. Id. Plaintiff stated that she gets nervous, gets anxiety, and has panic attacks when she is around people. Tr. 109.
Aside from her mental issues, Plaintiff testified that her knees also prevent her from working. Tr. 109. The ALJ noted that Plaintiff fractured her right femur and a rod had to be put in, and that a few months ago Plaintiff was seen by an orthopedist and was given an injection for bursitis in her hip. Id. Plaintiff also noted that she has arthritis in her left knee and stated that she has “real bad pain.” Id. When asked about the pain Plaintiff testified that “[m]ost of the time it's okay, it depends on how I sleep at night.” Tr. 110. The ALJ noted that in the last six months Plaintiff had two injections in her left knee and an injection in her right hip. Id. Plaintiff testified that the injections “helped” and the lasted for three or four months. Id. Plaintiff stated that when she had surgery on her knee in 2019 the doctor “didn't know it was as bad as it was.” Id. The ALJ indicated that according to the treatment notes the doctor wants to continue with the injections. Tr. 111. Plaintiff stated that the doctor was “going to operate . . . to see if the injections work. But they said that's not good to keep getting injections because it takes your bone marrow or something like that.” Id. Plaintiff testified that she has a knee brace that she wears whenever her leg starts hurting. Id. She testified that she also has a back brace that she wears “all the time.” Tr. 111-12. Plaintiff stated she was supposed to go to Hope Health for treatment but since the pandemic she has not been able to find a ride. Tr. 112. Plaintiff stated that she cannot go “until the Corona go away” because she is “not getting Corona.” Id. Plaintiff stated that her back hurts every day. Id. Plaintiff stated that she does not want to take narcotics so she has been taking Ibuprofen that she was given for her knee and “that does the job okay[.]” Id. The ALJ discussed treatment records noting that in December Plaintiff had cut her left index finger, the finger later got infected and Plaintiff was given antibiotics. Tr. 113. He noted that in February Plaintiff had to undergo a procedure to drain the infection, and in March she was given different antibiotics. Id. Plaintiff testified that her finger is healing but she has to go to therapy because she cannot make a closed fist. Id. She stated her finger is “tingly still.” Id. Plaintiff stated that she is able to hold a glass or water bottle with her left hand, but she does not use her left hand. Tr. 113-14. Plaintiff clarified that if she had to push buttons, she could not use her “pointer finger” but she could use other fingers on her left hand. Tr. 114.
The ALJ noted treatment records indicating Plaintiff lost 30 or 40 pounds in the last year and that Plaintiff underwent an endoscopy. Tr. 114-15. Plaintiff stated she has been prescribed Nexium and Motegrity to help her move her bowels because of her digestive and stomach issues. Tr. 115. Plaintiff testified that doctors told her there is nothing else they can do. Id. Plaintiff testified that she has chronic asthma and takes medication that is helpful. Tr. 115-16. Plaintiff confirmed that she is still taking Clonazepam, buspirone, fluoxetine, olanzapine, and oxcarbazepine for her bipolar and mental health issues. Tr. 116. Plaintiff confirmed that she is not taking hydrocodone or other narcotic medicine for pain. Tr. 116-17.
Plaintiff testified that when she goes to the grocery store her friend carries the bags, but she stated that she could help him if he could not, but she has a bad back. Tr. 117. Plaintiff testified that if she sits in a chair with her feet on the floor for more than 10-15 minutes her legs go numb. Tr. 118. She stated that two or three times a week she has days where she does not get out of bed all day due to pain or mental issues. Id. Plaintiff stated she is able to do some household chores. Id. Plaintiff testified that before the pandemic she would go to the movies or to the zoo, but now she does not leave the house. Id. Plaintiff stated that she watches TV, does her exercises, and cleans up. Id. Plaintiff testified that she does not get together with family members or friends, and she does not “socialize with many people.” Tr. 119. When asked if there was anything else she wanted to tell the ALJ, Plaintiff stated “[w]e got it all, Judge.” Id.
b. VE's Testimony
The ALJ reviewed VE Williams' resume and Plaintiff had no objection to the VE testifying. Tr. 120-21. The ALJ explained to Plaintiff the process of obtaining the VE's testimony, and explained to her the vocational terms and acronyms that would be used. Tr. 121-22.
The ALJ asked the VE to assume a hypothetical worker of Plaintiff's age, education, and no past relevant work with the following limitations:
This worker is limited to the light exertional level as defined by the regulations. With no more than occasional stooping, kneeling, crouching, crawling, balancing. And balancing is, as defined by the DOT and SCO. No more than occasionally climbing ramps and stairs. No climbing ladders, ropes, or scaffolds. No more than frequent exposure to hazards such as unprotected
heights and dangerous machinery. No more than frequent exposure to dust, fumes, gases, odors, and pulmonary irritants.
This worker is limited to simple, routine tasks, but is able to maintain concentration, persistence, and pace for periods of at least two hours, perform activities within a schedule, maintain regular attendance, and complete a normal workday and workweek. No jobs that require more than occasional close team type interactions with coworkers and no jobs that require any interactions with the general public.Tr. 123. The ALJ asked if there would be any available unskilled work and the VE testified that there would and provided the following examples: housekeeping cleaner, light, unskilled, SVP:2, DOT number 323.687-014, with 270,000 available full-time positions; bottling line attendant, light, unskilled, SVP:1, DOT number 290.687-042, with 103,000 jobs; and marker, light, unskilled, SVP:2, DOT number 209.587-034, with 335,000 jobs in the U.S. economy. Tr. 123-24.
For his second hypothetical the ALJ asked if a worker is “going to be off task 20 percent or more of the workday, does this allow for any work at gainful levels at any exertional level?” Tr. 124. The ALJ defined off task as being “for any reason, including, but not limited to, the worker is not able to maintain concentration, persistence, and pace for periods of at least two hours. Or for any other reason, like the worker has to lay down, sit down, elevate their feet, take unscheduled breaks. Essentially that takes that worker out of the job that they're hired to do.” Id. The VE testified that does not allow for work. Id. The ALJ asked what the threshold would be for when being off task becomes work preclusive for unskilled work. Id. The VE testified that it “could be no more than ten percent per hour throughout the workday.” Tr. 125. The VE confirmed that anything “above 10 percent collectively for the workday is work preclusive[.]” Id.
For his third hypothetical the ALJ asked what would be “the threshold where absences become[] work preclusive, especially for unskilled, entry level work?” Tr. 125. The VE responded that according to publications “made by the Department of Labor, as well as large human resources calculations . . . on average, no more than three to five unplanned absences per calendar year.” Id. The VE affirmed that her testimony was consistent with the DOT but pointed out that the DOT does not divide climbing into different categories according to surfaces, and it does not discuss off-task time. Id. The VE stated that her testimony was based on her experience, and wage and hour rules and regulations. Tr. 125-26.
Plaintiff had no questions for the VE and had nothing further to tell the ALJ. Tr. 126. The ALJ informed Plaintiff that she would be sent the evidentiary file to review, and she would have ten days to contact the ALJ with any questions or issues. The ALJ explained that after that period, he will begin the process of deciding the case. Tr. 126-27. With nothing further the hearing concluded. Tr. 127.
3. Plaintiff's 2023 Administrative Hearing
Plaintiff appeared with counsel, Attorney Susan Firimonte, for her administrative hearing in Columbia, SC on March 23, 2023 before ALJ Elkin. Tr. 40. VE Patsy Bramlett also appeared and testified. Id.
a. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that since the last hearing she has moved to a different apartment. Tr. 45. She stated that the apartment is on the second floor and she has to use the stairs. Tr. 45-46. Plaintiff testified that she lived alone but an ex-boyfriend comes over four times a week for two hours to help her with chores, cleaning, and cooking. Tr. 46. Plaintiff stated that she has a washer and dryer in her apartment but her friend does the laundry. Tr. 47. Plaintiff stated that she can sometimes do the laundry but it “depends on how [her] body feels.” Id. She also stated that she can prepare little meals. Id. Plaintiff testified that she weighed 169 pounds and to her knowledge her providers were not concerned with her weight. Id. Plaintiff testified that she was in physical occupational therapy for her back and stated that it started in 2018 or 2019. Id. Plaintiff clarified that she was no longer in physical therapy but she does stretching exercises at home three times a week and she also goes to a chiropractor twice a week. Tr. 48. Plaintiff stated that she does not do any type of aerobic activities such as walking or biking. Tr. 49. Plaintiff testified that she receives food stamps and Section 8 housing support. Id. Plaintiff confirmed that since the last hearing in 2021 she has not started or completed any type of educational training, and no one has recommended that she go to the Department of Vocational Rehabilitation. Tr. 49-50. The ALJ noted that since June 2021 Plaintiff worked for Uber and Instacart. Tr. 50. Plaintiff stated that she worked 20-25 hours a week, she has a driver's license and is using a car, and she earns about $150 a week. Id. Plaintiff testified that her “body won't allow” her to do the work full-time and she “can hardly do it now.” Id. Plaintiff testified that in the past two years her joints are worse. Tr. 51. She stated that she has been getting cortisone shots and she cannot do a lot, but she guessed that because she was getting older her “bones are not good.” Id. The ALJ noted that Plaintiff got an injection in her knee the previous April, and Plaintiff testified that she has not gotten any injections since then. Id. Plaintiff confirmed that aside from the chiropractor she has not gotten any other treatment. Id. Plaintiff testified that her doctor told her in November 2022 that she may need to have surgery on her back. Tr. 52. Plaintiff testified that she wears a back brace when her back is hurting and stated that she wears it five times a week. Id. She stated that her back “hurts the most” when she gets up in the morning. Id. Plaintiff also noted that it is “difficult to sleep at times.” Tr. 53.
When asked about her mental health since June 2021, Plaintiff responded that she was “[d]efinitely no better” and thought that she was worse. Tr. 53. When asked for examples Plaintiff recounted an incident from June when she had a physical altercation with her nephew and she poured bleach on him. Id. Plaintiff stated that she had to go to the hospital because some of the bleach burned her and she had to get two stitches where her nephew hit her in the head with a glass. Id. Plaintiff stated that her head was better but was still tender. Id. Plaintiff testified that she goes to the mental health clinic at Santee Wateree every two months. Tr. 54. She stated that they are suggesting therapy because of the incident with her nephew and want to put her on medication. Id. Plaintiff identified her current medications as Lorazepam, Buspirone, and generic Depakote. Id. Plaintiff reviewed her medication list found at Exhibit 26E and confirmed that she is taking all of the medication listed. Id. Plaintiff stated that as a side effect the medications make her tired. Tr. 55. She testified that they keep her “calm for the most part. They just make [her] drowsy. They give [her] a little bit of peace.” Tr. 55. The ALJ asked Plaintiff if she could still walk a half mile. Plaintiff stated that she could not; she can walk five or ten minutes before needing to sit down. Id. Plaintiff stated she could stand for maybe 15 minutes before needing to sit or lie down. Id. Plaintiff stated she could sit in a chair for 30 minutes. Tr. 56. Plaintiff stated she would then need to stand up to adjust her legs because of hip and knee pain. Id. Plaintiff testified that when she was delivering groceries, she was sometimes able to lift and carry grocery bags and sometimes she would have to cancel an order because she could not do it. Id. Plaintiff testified that if she does deliveries for Instacart for a couple of hours she would have to rest for maybe three hours once she got home. Tr. 57. Plaintiff testified she is able to take care of her personal needs but her friend would come and help her if her back and legs were hurting. Id.
Exhibit 26E is a November 21, 2022 listing of Plaintiff medications that includes the following: Oxcarbazepine 150 mg. twice daily for anxiety and irritability, side effects of dizziness, nausea, fatigue; Olanzapine 15 mg. two at bedtime for bipolar disorder and schizophrenia, side effects of fatigue, dizziness, weakness, depression; Buspirone 30 mg. twice daily for anxiety, side effect depression; Hydrocodone-Acetaminophen 7.5-325 twice daily for back pain/scoliosis, side effect drowsiness, lightheaded; Cyclobenzaprine 10 mg once daily for muscle spasms, side effect sleepy, tired; Atorvastatin 10 mg once daily for cholesterol; Esomeprazole Mag. 40 mg. once daily for GERD; Albuterol HFA Ventolin two puffs every 4-6 hours for asthma; Vitamin D2 1.25 mg. 50000 u. once weekly for vitamin deficiency; and Cortisone shots one every 4-6 months for arthritis in knee. Tr. 565-66.
In response to questions from her attorney Plaintiff testified that she was in special education classes throughout her school career and did not think that she graduated. Tr. 57. The ALJ interjected that Plaintiff testified at the last hearing that she graduated with a high school diploma. Id. Plaintiff confirmed that she did not receive a diploma. Tr. 58. Plaintiff's attorney indicated that Plaintiff worked so she could keep her Section 8 housing and Plaintiff confirmed that “I do what I have to do.” Id. Plaintiff stated that she works for an hour or two, and then she takes a break. Id. Plaintiff testified that the work is “aggravating” because change orders confuse her, she is impatient, and she gets frustrated very quickly. Tr. 59. Plaintiff confirmed that she has been trying to make sure she does not get to the point where she would have to go to a mental hospital. Id. Plaintiff stated that she can “check” herself when she feels as though she will harm someone, and she noted that she admitted herself in 2019. Id. She testified that the argument with her nephew occurred in Connecticut when she was there for a funeral. She said the fight started because he was drinking and she suggested he “tone it down” and “he wanted to put his hands on” her. Tr. 59-60. Plaintiff testified that she is on medication but when she is around people “it just don't go well[.]” Tr. 60. Plaintiff stated that she does not like people and cannot get along with people. Id. Plaintiff stated that she sometimes has a problem nodding her head too fast, and she talks to herself. When she gets frustrated, she gets louder. Id. Plaintiff stated that when people do not understand her it is frustrating, aggravating, and stressful. Tr. 61. Plaintiff stated that she sometimes gets road rage when people cut her off. Id. She stated that she does not drive a lot; she stays in her house and isolates herself in her room because she does not want to hurt anyone. Id. Plaintiff stated that if she gets angry when driving she will “just try to breathe” and take it easy. Tr. 62. She testified that if someone raged at her then there “would probably be a fight” because she never backs down. Id. Plaintiff testified that she worries a lot about everything and thinks people are out to get her. Id. She stated that she has “a lot of enemies.” Tr. 63. Plaintiff testified that even though her ex-boyfriend is helping her they still “argue and it gets physical.” Id. Counsel indicated that Plaintiff does things spontaneously and when asked for clarification from Plaintiff counsel noted that Plaintiff called the Appeals Council when she had been instructed not to call. Tr. 63-64. Plaintiff stated that she called because she was frustrated because she did not think it was right that they were saying she could be mentally ill one day and fine the next day. Tr. 64. Plaintiff's attorney informed the ALJ that she had submitted a journal of Plaintiff's self-assessment of her exertional and non-exertional abilities. Id. The ALJ stated he reviewed the journal. Id. Plaintiff's attorney asked Plaintiff about her journal entry about nightmares. Tr. 65. Plaintiff stated that she has nightmares three or four times a week. Id. Plaintiff affirmed that she had a prior surgery on her left knee and her knee still bothers her three or four times a week. Id. Plaintiff stated that the pain sometimes lasts a day and she sometimes has to elevate her leg. Tr. 66. Plaintiff stated that she has to elevate her leg for a half hour to an hour five times a week. Id. Plaintiff stated that elevating her leg helps, and the medication she takes for her back also helps because it is “a pretty strong medication.” Id. Plaintiff testified that the pain in her knee is worse if she moves around too much or from going up and down stairs. Tr. 67. Plaintiff testified that her asthma was “all right” but “[s]ometimes it's bad.” Id. She stated that she gets short of breath when she goes up and down stairs and has to take a puff from her inhaler. Id. Plaintiff stated, on average, she has to use her emergency inhaler three or four times a week. Then she sits down to rest for 10-15 minutes. Id. Plaintiff confirmed she is on medication for GERD and it still bothers her and affects her eating habits. Tr. 67-68. She stated that sometimes she cannot eat, or she does not have an appetite. She stated that if she does not eat, she has no energy and she has to force herself to eat because she cannot take her medication on an empty stomach. Tr. 68. Plaintiff stated that she takes 7.5 mg of hydrocodone. She testified that she started at 5 mg, then it went to 10 mg, then back to 5 mg, and then increased back to 7.5 mg. Tr. 68-69. Plaintiff testified that Dr. Browning prescribed lidocaine patches for her low back which she uses every day. Tr. 69. Plaintiff testified that she can do light household chores and she can sweep for five minutes. Tr. 69-70. She stated that her friend does the vacuuming and heavier chores. Tr. 70. Plaintiff testified that she eats a lot of microwave dinners and her friend can cook light meals. Id. Plaintiff testified that she sometimes will “get stuck” if she does too much repetitive bending and getting up. Id. She stated that one day when doing laundry she got stuck and had to call an ambulance to be taken to the emergency room because of back pain. Tr. 70-71. She stated that she has a stackable washer and dryer. Plaintiff said this incident happened four or five months prior. Tr. 71. Plaintiff stated her friend does the grocery shopping for her because he can carry the bags. Id. She stated that she does not like to shop and tries to avoid people as much as she can. Id. Plaintiff testified that she does not go out to eat, and she does not attend church because she does not like to be around people. Tr. 71-72.
The ALJ acknowledged to Plaintiff how hard it was for her to share her personal information with strangers, and that he appreciated it. Tr. 72.
After questioning the VE, Plaintiff's attorney asked Plaintiff additional questions regarding her work. Tr. 80. Plaintiff testified that she quit the jobs listed as past work because she did not have patience with people. Tr. 81. Upon prompting by counsel, Plaintiff testified that she was fired by Uber Eats because she refused to wait on an order for an hour or two. Id.
b. VE's Testimony
The ALJ noted that based on testimony Plaintiff had limited education and no past relevant work. Tr. 73. The ALJ asked the VE to assume a hypothetical worker of Plaintiff's age, limited education, and no past relevant work with the following limitations:
This worker is limited to the light exertion level as defined by the Regulations with no more than occasional stooping, kneeling, crouching, crawling and balancing and balancing as defined by the DOT and SCO. No more than occasional climbing ramps and stairs, no climbing ladders, ropes or scaffolds. No more than frequent exposure to hazards such as unprotected heights and dangerous machinery. No more than frequent exposure to dusts, fumes, gases, odors and pulmonary irritants.
No more than frequent exposure to extremes of humidity, heat or cold. . . . This worker is limited to simple, routine tasks, but is able to maintain concentration, persistence and pace for periods of at least two hours at a time, perform activities within a schedule, maintain regular attendance and complete a normal workday and workweek. No jobs that require more than occasional close team type interaction with coworkers. Sometimes that's referred to as tandem work. And, no job that requires any interactions with the general public.Tr. 73-74. The ALJ asked if any unskilled work would be available and the VE affirmed there would be and provided examples of sorter, DOT number 788.687-106, light, unskilled, SVP:2, approximately 68,000 jobs nationally; inspector, DOT number 739.687-102, light, unskilled, SVP:2, approximately 80,000 jobs nationally; and garment bagger, DOT number 920.687-018, light, unskilled, SVP:1, with approximately 77,000 jobs nationally. Tr. 74.
For his second hypothetical, the ALJ asked the VE what percentage of being off task would be work preclusive in all exertional levels, especially for unskilled entry level work. Tr. 75. The VE testified that “anything ten percent or below would allow work, but anything above ten percent off task would not allow work. It would be work preclusive.” Id.
For his third hypothetical the ALJ asked the VE's opinion on the threshold number of absences that would become work preclusive for unskilled entry level work. Tr. 75. The VE testified that “one day per month would be tolerated and would allow work. But, anything above one day a month would be work preclusive.” Id. The VE testified her testimony was consistent with the DOT, but climbing, occasional team interaction, time off task, and absences are not specifically addressed in the DOT. Tr. 75-76. The VE testified that for questions of that type she will read the DOT job description to get a feel for the type of work setting those jobs would involve and she would also use her “training, education and experience in job placement[.]” Tr. 76. The VE confirmed that she has done work in job placement in the last 24 months and in her career she has placed workers in positions of sorters, inspectors, or garment baggers. Id. The VE testified that her sources for job numbers came from the “Occupational Employment date by the Department of Labor and Bureau of Labor Statistics.” Id. She also stated that she used business patterns and current population survey information and extrapolated the jobs numbers from the total cumulative numbers from the sources. Id. The VE confirmed that she uses SkillTran and Job Browser Pro for her number information. Id. The VE also confirmed that the job numbers she gave are specific to the DOT number that she gave. Id.
Plaintiff's counsel asked the VE what the impact on the jobs identified in response to the first hypothetical would be if the person had to elevate their legs every day for one to two hours. Tr. 77. The VE testified that the “elevation of the legs would be work preclusive.” Id. Counsel asked if it would be work preclusive if the person was unable to tolerate routine changes in the work place and the VE testified that it would. Tr. 77-78. Counsel asked if the ability to perform any of the work outlined would be affected if the person was unable to work around coworkers. Tr 78. The VE testified that would reduce the number of jobs in the overall job market for the jobs, but there was no tandem work in the job titles she gave. Id. The VE testified the individual would be in the room with other people but would have her own workstation. Tr. 78-79. The VE testified that the jobs would require the ability to work with a supervisor at least occasionally. Tr. 79. The VE stated that if someone is “not able to work with a supervisor at all, that would not permit any competitive type of work.” Id.
The attorney had no other questions for the VE. Tr. 80. In her closing statement Plaintiff's counsel stated that she believed Plaintiff continued to meet the criteria of Listing 12.04 as indicated in the prior favorable decision noting Plaintiff's bipolar disorder and anxiety. Tr. 82.
II. Discussion
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
Under the Social Security Act, 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 months[.]” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 416.905(a). “Ordinarily, the SSA employs a five-step sequential evaluation process” to assess disability. Figgs v. Saul, No. JMC-20-334, 2021 WL 3930708, at *1 (D. Md. Sept. 2, 2021) (citing Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015)). “However, where the SSA granted a claimant benefits and subsequently terminated same, an eight-step continuing disability review evaluation process (for disability insurance benefits claims) and a seven-step continuing disability review evaluation process (for supplemental security income claims) guides the ALJ's analysis.” Id.
The seven-step evaluation process for SSI claims is as follows:
At step one, the ALJ must determine whether the claimant has an impairment or combination of impairments which meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CRF 416.920(d), 416.925 and 416.926). If the claimant does, her disability continues (20 CFR 416.994(b)(5)(i)).
At step two, the ALJ must determine whether medical improvement has occurred (20 CFR 416.994(b)(5)(ii)). Medical improvement is any decrease in medical severity of the impairment(s) as established by improvement in symptoms, signs and/or laboratory findings (20 CFR 416.994(b)(1)(i)). If medical improvement has occurred, the analysis proceeds to the third step. If not, the analysis proceeds to the fourth step.
At step three, the ALJ must determine whether medical improvement is related to the ability to work (20 CFR 416.994(b)(5)(iii)). Medical improvement is related to the ability to work if it results in an increase in the claimant's capacity to perform basic work activities (20 CFR 416.994(b)(1)(iii)). If it does, the analysis proceeds to the fifth step.
At step four, the ALJ must determine if an exception to medical improvement applies (20 CFR 416.994(b)(5)(iv)). There are two groups of exceptions (20 CFR 416.994(b)(3) and (b)(4)). If one of the first group exceptions applies, the analysis proceeds to the next step. If one of the second group exceptions applies, the claimant's disability ends. If none apply, the claimant's disability continues.
At step five, the ALJ must determine whether all the claimant's current impairments in combination are severe (20 CFR 416.994(b)(5)(v)). If all current impairments in combination do not significantly limit the claimant's ability to do basic work activities, the claimant is no longer disabled. If they do, the analysis proceeds to the next step.
At step six, the ALJ must assess the claimant's residual functional capacity based on the current impairments and determine if she can perform past relevant work (20 CFR 416.994(b)(5)(vi)). If the claimant has the capacity to perform past relevant work, her disability has ended. If not, the analysis proceeds to the last step.
At the last step, the ALJ must determine whether other work exists that the claimant can perform, given her residual functional capacity and considering her age, education, and past work experience (20 CFR 416.994(b)(5)(vii)). If the claimant can perform other work, she is no longer disabled. If the claimant cannot perform other work, her disability continues. In order to support a finding that an individual is not disabled at this step, the SSA is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the residual functional capacity, age, education, and work experience.
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. The ALJ's Findings
In his April 21, 2023 decision, the ALJ made the following findings of fact and conclusions of law:
1. The most recent favorable medical decision finding that the claimant was disabled is the decision dated November 10, 2004. This is known as the “comparison point decision” or CPD.
2. At the time of the CPD, the claimant had the following medically determinable impairments: bipolar disorder; impulse control disorder; intermittent explosive disorder, anti-social personality disorder; history of substance abuse; and status post left knee injury. These impairments were found to meet section(s) 12.04 of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d)).
3. The medical evidence establishes that, since August 9, 2018, the claimant has had the following medically determinable impairments: bipolar disorder; left knee degenerative joint disease; lumbar spine scoliosis and radicular pain; right hip trochanteric bursitis; and asthma. These are the claimant's current impairments.
4. Since August 9, 2018, the claimant has not had an impairment or combination of impairments which meets or medically equals the severity of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.925 and 416.926).
5. Medical improvement occurred on August 9, 2018 (20 CFR 416.994(b)(1)(i)).
6. The medical improvement is related to the ability to work because, by August 9, 2018, the claimant's CPD impairments(s) no longer met or medically equaled the same listing(s) that was met at the time of the CPD (20 CFR 416.994(b)(2)(iv)(A)).
7. Since August 9, 2018, the claimant has continued to have a severe
impairment or combination of impairments (20 CFR 416.994(b)(5)(v)).
8. Since August 9, 2018, based on the current impairments, the claimant has had the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except she is able to occasionally stoop, kneel, crouch, crawl, and balance (as defined by DOT and SCO); occasionally climb ramps and stairs, but no ladders, ropes, or scaffolds; no more than frequent exposure to hazards such as unprotected heights and dangerous machinery; no more than frequent exposure to dust, fumes, gasses, odors, or other pulmonary irritants; no more than frequent exposure to extremes of humidity, heat, and cold; able to perform simple, routine tasks; maintain concentration, pace, and persistence for periods for at least 2 hours at a time; perform activities within a schedule, maintain regular attendance, complete a normal workday and work week; no more than occasional close, “team type,” interacts with coworkers; and, no interaction with the general public.
9. The claimant has no past relevant work (20 CFR 416.965).
10. On August 9, 2018, the claimant was a younger individual age 18-49 (20 CFR 416.963).
11. The claimant has a limited education (20 CFR 416.964).
12. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
13. Since August 9, 2018, considering the claimant's age, education, work experience, and residual functional capacity based on the current impairments, the claimant has been able to perform a significant number of jobs in the national economy (20 CFR 416.960(c) and 416.966).
14. The claimant's disability ended on August 9, 2018, and the claimant has not become disabled again since that date (20 CFR 416.994(b)(5)(vii)).Tr. 16-17, 20-22, 29-30.
C. Analysis
In both her Amended Complaint and letter to the court Plaintiff asserts that she has been on SSI since 2002 and remains in mental health treatment. ECF No. 1-2 at 4; ECF No. 15. Plaintiff argues that she takes “medication for mental health and also for [her] health situations that are serious.” ECF No. 15. The Commissioner asserts that the ALJ correctly determined that Plaintiff's previously disabling impairment medically improved as of August 9, 2018, and she was no longer disabled. Def.'s Br., ECF No. 29 at 10.
As discussed above in the procedural history for this case, even after being provided extensions, Plaintiff failed to file a formal brief. Accordingly, the undersigned determined that Plaintiff's October 16, 2023 letter should be considered her argument in support of her case. See ECF No. 24. Plaintiff also failed to file a response to the Commissioner's Brief.
Plaintiff also argues that the ALJ “was very rude” and she contends that a review of her appeals will show that the way she was treated was “unconstitutional and very unfair.” ECF No. 15. The undersigned has reviewed the transcript from both administrative hearings and finds that the record does not support these allegations.
1. The ALJ's Consideration of Plaintiff's Past Finding of Disability
There is no presumption of continuing disability. 20 C.F.R. § 416.994(b)(1)(vi) (“Our decisions under this section will be made on a neutral basis without any initial inference as to the presence or absence of disability being drawn from the fact that you have previously been determined to be disabled.”). Plaintiff's argument boils down to that she was found disabled in the past and was granted SSI benefits based on mental health issues, and she remains disabled. The Commissioner contends that “Plaintiff's claims of error are insufficiently developed to preserve review in this Court.” Def's Br. 20 (citing Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307, 316 (4th Cir. 2017); Harleyv.Comm'r of Soc. Sec., No. 8:19-cv-01547-MGL-JDA, 2020 WL 7231127, at *7 (D.S.C. June 3, 2020), adopted2020 WL 7021706 (D.S.C. Nov. 30, 2020)). However, despite the failures on Plaintiff's part to cite to the record or case law to support her argument, the undersigned is mindful that this court's “statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative action.” Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). “[T]he courts must not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is a sound foundation for the [Commissioner's] findings, and that his conclusion is rational.” Vitek, 438 F.2d at 1157-58. The court must uphold the Commissioner's decision as long as it is supported by substantial evidence and reached through the application of the correct legal standard. See Johnson, 434 F.3d at 653. Upon review, the undersigned finds that the ALJ failed to apply the correct legal standard.
In this case, ALJ Elkin made a number of preliminary findings before beginning the sevenstep evaluation for determining whether a claimant's disability continues. First, he found that the most recent favorable decision finding Plaintiff was disabled was the determination dated November 10, 2004, which, consequently, became the comparison point decision (“CPD”). Tr. 16. The ALJ noted that, at the time of the CPD, Plaintiff had the following medically determinable impairments: bipolar disorder, impulse control disorder, intermittent explosive disorder, antisocial personality disorder, history of substance abuse, and status post left knee injury. Id. The ALJ recognized that these impairments were found to meet Listing 12.04. Id. As a final preliminary matter, the ALJ determined that since August 9, 2018, and currently, Plaintiff had the following medically determined impairments: bipolar disorder, left knee degenerative joint disease, lumbar spine scoliosis and radicular pain, right hip trochanteric bursitis, and asthma. Id.
At Step One of the seven-step evaluation process the ALJ found that since August 9, 2018, Plaintiff has not had an impairment or combination of impairments which meets or medically equals the severity of a listed impairment. Tr. 17. As to Plaintiff's mental impairments, the ALJ specifically found that “the severity of the claimant's mental impairments, considered singly and in combination, does not meet or medically equal the criteria of listings 12.04 or any other listing under 12.00 of the listings.” Tr. 18. The ALJ indicated that in making this finding he considered whether the Paragraph B criteria were satisfied by finding mental impairments resulting in one extreme limitation or two marked limitations in the four areas of mental functioning. Id. The ALJ listed the four areas of mental functioning as: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. Id. The ALJ did not find that Plaintiff had an extreme or marked limitation in any of the four areas. Tr. 18-20.
ALJ Elkin refers to the version of Listing 12.04 in effect at the time of his decision in April 2023 that relates to depressive, bipolar and related disorders described as follows:
a. These disorders are characterized by an irritable, depressed, elevated, or expansive mood, or by a loss of interest or pleasure in all or almost all activities, causing a clinically significant decline in functioning. Symptoms and signs may include, but are not limited to, feelings of hopelessness or guilt, suicidal ideation, a clinically significant change in body weight or appetite, sleep disturbances, an increase or decrease in energy, psychomotor abnormalities, disturbed concentration, pressured speech, grandiosity, reduced impulse control, sadness, euphoria, and social withdrawal.
b. Examples of disorders that we evaluate in this category include bipolar disorders (I or II), cyclothymic disorder, major depressive disorder, persistent depressive disorder (dysthymia), and bipolar or depressive disorder due to another medical condition.20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00(B)(3)(version effective April 2, 2021 to October 5, 2023). Listing 12.04 is satisfied by meeting Paragraph A and B, or A and C:
A. Medical documentation of the requirements of paragraph 1 or 2:
1. Depressive disorder, characterized by five or more of the following:
a. Depressed mood;
b. Diminished interest in almost all activities;
c. Appetite disturbance with change in weight;
d. Sleep disturbance;
e. Observable psychomotor agitation or retardation;
f. Decreased energy;
g. Feelings of guilt or worthlessness;
h. Difficulty concentrating or thinking; or
i. Thoughts of death or suicide.
2. Bipolar disorder, characterized by three or more of the following:
a. Pressured speech;
b. Flight of ideas;
c. Inflated self-esteem;
d. Decreased need for sleep;
e. Distractibility;
f. Involvement in activities that have a high probability of painful consequences that are not recognized; or
g. Increase in goal-directed activity or psychomotor agitation.
AND
B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):
1. Understand, remember, or apply information (see 12.00E1).
2. Interact with others (see 12.00E2).
3. Concentrate, persist, or maintain pace (see 12.00E3).
4. Adapt or manage oneself (see 12.00E4).
OR
C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:
1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and
2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c).20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.04 (version effective April 2, 2021 to October 5, 2023).
In his decision of November 10, 2004-the CPD-ALJ Liberman determined that Plaintiff's impairment met the criteria of Listing 12.04. Tr. 149. The version of Listing 12.04 in effect at that time and detailed in the CPD is described as follows: !
12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.
A. Medically documented persistence, either continuous or intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking;
OR
3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture of both manic and depressive syndromes (and currently characterized by either or both syndromes);
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
OR
C. Medically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by medication or psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.04 (cited at Tr. 147-148).
In determining that Plaintiff met the criteria for Listing 12.04, ALJ Liberman concluded that “the medical evidence establishes that the following portions of the listings are met: 12.04(A)(1) a, c, f, g, h, and I, and (3), and is at the ‘marked' in categories B2, 3, and 4.” Tr. 149. Category B2 is maintaining social functioning; B3 is maintaining concentration, persistence, or pace; and B4 is repeated episodes of decompensation, each of extended duration.
In the version of the listing used by ALJ Liberman, under the “Assessment of severity” for the criteria in Paragraph B of the 12.00 Listings it outlines the following for finding “marked” limitations in social functioning and maintaining concentration, persistence, or pace:
We do not define “marked” by a specific number of different behaviors in which social functioning is impaired, but by the nature and overall degree of interference with function. For example, if you are highly antagonistic, uncooperative, or hostile but are tolerated by local storekeepers, we may nevertheless find that you have a marked limitation in social functioning because that behavior is not acceptable in other social contexts.
We do not define “marked” by a specific number of tasks that you are unable to complete, but by the nature and overall degree of interference with function. You may be able to sustain attention and persist at simple tasks but may still have difficulty with complicated tasks. Deficiencies that are apparent only in performing complex procedures or tasks would not satisfy the intent of this paragraph B criterion. However, if you can complete many simple tasks, we may nevertheless find that you have a marked limitation in concentration, persistence, or pace if you cannot complete these tasks without extra supervision or assistance, or in accordance with quality and accuracy standards, or at a consistent pace without an unreasonable number and length of rest periods, or without undue interruptions or distractions.20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.00(C)(2)-(3). This assessment of severity is not found in the version used by ALJ Elkin in April 2023.
When determining whether a claimant's impairment continues to meet a listing, SSA regulations direct an ALJ to consider the impairment under “the same Listing used to make [the most recent favorable] determination or decision as it was written at that time, even if it has since been revised or removed from the Listings of Impairments.” 20 C.F.R. § 416.994a(b)(2) (emphasis added). Therefore, the ALJ should have evaluated Plaintiff's mental impairments under the criteria of Listing 12.04 as it existed in 2004. See Tr. 16 (noting Plaintiff's CPD was dated November 10, 2004). However, here, the ALJ evaluated Plaintiff s impairment under the subsequently revised mental impairment listings. Tr. 18; see Revised Medical Criteria for Evaluating Mental Disorders, 81 FR 66138-01, 2016 WL 5341732 (Sept. 26, 2016) (explaining the revised rules became effective January 17, 2017). Therefore, ALJ Elkin's decision is based on an improper legal standard. Although the court is not to reweigh the evidence considered, the ALJ's findings are not binding where they are based on an improper legal standard. See Coffman v. Bowen, 829 F.2d 514, 518-19 (4 th Cir. 1987). Accordingly, the undersigned recommends remand. On remand, the ALJ should follow the requirements of 20 C.F.R. § 416.994a(b)(2) and evaluate Plaintiff s claim under the version of the listing present when she last received a favorable decision.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court finds that the Commissioner's decision was reached through application of an incorrect legal standard. But see Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (holding that under the SSA, courts “must uphold the factual findings of the Secretary if they are supported by substantial evidence and were reached through application of the correct legal standard.”). Therefore, it is hereby recommended that the Commissioner's decision be reversed and remanded.
IT IS SO RECOMMENDED.