Opinion
Civil Action No. 8:18-cv-02125-RMG-JDA
07-26-2019
Gray Helms Jackson, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB") and supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for an award of benefits for the relevant time period at issue in this matter.
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In March 2011, Plaintiff filed applications for DIB and SSI, alleging disability beginning February 25, 2011. [R. 192-201.] The claims were denied initially and upon reconsideration by the Social Security Administration ("the Administration"). [R. 68-79, 82-109.] Plaintiff filed a request for hearing before an administrative law judge ("ALJ"), and, on June 20, 2013, ALJ Clinton C. Hicks conducted a hearing on Plaintiff's claims. [R. 35-65.]
On September 13, 2013, the ALJ issued his decision, finding Plaintiff not disabled. [R. 18-28.] Plaintiff filed a request for review of the ALJ's decision with the Appeals Council, which denied review on November 13, 2014. [R. 1-6.] Plaintiff commenced an action for judicial review in this Court on December 31, 2014, and, on January 27, 2016, this Court remanded the matter to the Commissioner. [R. 585-616.] Plaintiff filed a subsequent application for a period of disability and DIB as well as SSI on August 9, 2015. [R. 457.]
On December 8, 2015, the Commissioner issued a favorable determination finding Plaintiff's disability began on August 1, 2015. [R. 581-84.] The State agency medical consultant in this subsequent claim opined that Plaintiff could perform a range of simple, unskilled, light work that does not involve ongoing interaction with the general public. [R. 545-80.] The State agency noted Plaintiff turned 55 on January 27, 2016, and applied the borderline age regulation to find Plaintiff was disabled beginning August 1, 2015. [R. 561.] Thus, the relevant period of adjudication is from Plaintiff's alleged onset date of February 25, 2011, through July 31, 2015. [R. 457.]
The Appeals Council issued an Order remanding the case to the ALJ for further proceedings, directing the ALJ to evaluate Plaintiff's mental impairments and the opinions of Dr. Goldsmith, Dr. Waller, and Dr. Mika, as well as Lisa Fowler, a clinical social worker. [R. 619-23.] Plaintiff testified before the ALJ in a subsequent hearing on December 7, 2016, [R. 482-511], and, on March 8, 2017, the ALJ issued a second unfavorable decision finding Plaintiff had not been under a disability within the meaning of the Act from February 25, 2011, through July 31, 2015. [R. 457-72.]
At Step 1, the ALJ found Plaintiff last met the insured status requirements of the Social Security Act ("the Act") on September 30, 2017, and had not engaged in substantial gainful activity since February 25, 2011, the alleged onset date. [R. 460, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had the following severe impairments: viral hepatitis, possible hepatic encephalopathy, grade II, stage II to III septal fibrosis, osteoarthritis of the bilateral knees, status post right total knee arthroplasty, chronic GERD, atrial fibrillation, status post pacemaker implantation, sick sinus syndrome, chronic hypertension, as well as depression, generalized anxiety disorder, and a bipolar disorder. [R. 460, Finding 3.] At Step 3, the ALJ determined Plaintiff's impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments. [R. 460-62, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
In the prior decision, the ALJ also found Plaintiff had the following non-severe impairments: other conditions mentioned in the Plaintiff's medical records and Plaintiff's medically determinable mental impairments of generalized anxiety disorder, major depressive disorder, and bipolar disorder. [R. 20.] The ALJ did not appear to address Plaintiff's bipolar disorder in this decision.
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found that Plaintiff retained the following residual functional capacity ("RFC"):
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform "light" work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is to have a sit/stand option with the ability to change position twice an hour. He is not to climb any ladders, ropes or scaffolds, but he can occasionally climb ramps and stairs. He is to avoid concentrated exposure to unprotected heights. Further, he can stay on task for two hours at a time and he is limited to simple, routine, repetitive tasks in a low stress environment, defined as no constant change in routine with no crisis situations and no complex decision-making.[R. 462, Finding 5.] Based on this RFC, at Step 4, the ALJ determined Plaintiff was unable to perform any of his past relevant work. [R. 470, Finding 6.] The ALJ found that, considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert ("VE"), there were jobs that exist in significant numbers in the national economy that Plaintiff could perform. [R. 471, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability, as defined by the Act, from February 25, 2011, through July 31, 2015. [R. 472, Finding 11.] Additionally, the ALJ found that, based on the application for SSI protectively filed on March 31, 2011, Plaintiff was not disabled under § 1614(a)(3)(A) of the Act. [Id.] The ALJ directed that the finding of disability as of August 1, 2015, was not disturbed. [Id.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 434-40.] Plaintiff filed an action for judicial review on August 2, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting the reversal and remand of the case. [Doc. 12.] Specifically, Plaintiff contends the ALJ failed to properly weigh the medical evidence of record in determining Plaintiff's RFC. [Id. at 10-15.] Plaintiff also argues that the ALJ failed to properly evaluate Plaintiff's testimony that he is unable to work due to his mental impairments in accordance with SSR 16-3p. [Id. at 16-18.] Lastly, Plaintiff contends that there is conflict between the VE's testimony and the DOT based on a flawed hypothetical that failed to include Plaintiff's moderate limitations in interacting with others and a moderate limitation in concentration, persistence, or pace. [Id. at 18-21.] Plaintiff requests that this Court reverse this matter solely for a calculation and award of benefits for the period at issue in this case, February 25, 2011, through July 31, 2015. [Id. at 21.]
Plaintiff contends that the ALJ gave "significant weight" to Dr. Mika's opinion which included: limitations to simple, routine, repetitive tasks in a low stress environment, defined as no constant change in routine with no crisis situations and no complex decision-making; marked limitations in (1) maintaining attention and concentration for extended periods; (2) completing a normal workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; and (3) traveling to unfamiliar places or use public transportation; as well as moderate limitations in his ability to (1) remember locations and work-like procedures; (2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; (3) work in coordination with or proximity to others without being distracted by them; (4) interact appropriately with the general public; and (5) respond appropriately to changes in the work setting. [Doc. 12 at 12 (citing R. 410-13).] Plaintiff argues that the ALJ did not explain why these restrictions from Dr. Mika were not included in his RFC finding, despite purporting to give all the opinions from this treating specialist "significant weight." This is reversible error. See Social Security Ruling ("SSR") 96-8p (1996 WL 374184) (explaining the ALJ's RFC determination "must consider and address medical source opinions" and that "[i]f the RFC conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted").
The Commissioner contends the ALJ's decision should be affirmed because there is substantial evidence of record that supports the Commissioner's final decision that Plaintiff's mental impairment did not preclude him from performing other light work in the national economy. [Doc. 14.] Specifically, the Commissioner contends the ALJ adequately considered the medical opinions in determining Plaintiff's RFC and, to the extent the ALJ made an error in discussing the evidence and assigning weight to the medical opinions, remand is not warranted because the ALJ's determination would not change. [Id. at 10-13.] The Commissioner also argues that the ALJ adequately considered Plaintiff's testimony. [Id. at 13-14.] Lastly, the Commissioner contends there is no conflict between the VE's testimony and Plaintiff's ability to perform simple, routine, and repetitive tasks because it is compatible with the mental demands of a laundry sorter. [Id. at 15-17.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575, 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1521, 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see also SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see also 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
The ALJ's Consideration of Plaintiff's Moderate Difficulties
In Mascio v. Colvin, the Fourth Circuit held that "the ability to perform simple tasks differs from the ability to stay on task" and that "only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." 780 F.3d 632, 638 (4th Cir. 2015). The Court in Mascio found it reversible error when the ALJ did not explain her consideration of Plaintiff's limitations in concentration in the RFC or present the limitation to the VE in a hypothetical, opining that
In Mascio, the claimant asserted that the hypothetical to the VE was legally insufficient in failing to include her mental limitations. 780 F.3d at 637. The ALJ found that the claimant had an adjustment disorder and that she also had moderate difficulties with concentration, persistence, or pace as a side effect of her pain medication. Id. at 638. However, the ALJ did not include in his hypothetical to the VE any mention of the mental limitations. Id. at 637. The Fourth Circuit agreed with other circuits that have held that "an ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work,'" and remanded the case because the ALJ gave no explanation as to why the claimant's moderate limitation in concentration, persistence, or pace did not translate into a limitation in her RFC. Id. at 638 (citing Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (noting that the Eleventh Circuit joined the Third, Seventh, and Eighth Circuits)).
Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here gave no explanation, a remand is in order.Id. at 638 (internal citation omitted). Following Mascio, several cases in this District and in other Districts within the Fourth Circuit have found that a limitation to simple, unskilled work is insufficient to address moderate limitations in concentration, persistence, and pace absent further explanation. See Herren v. Colvin, No. 1:15-cv-00002-MOC, 2015 WL 5725903, at *6 (W.D.N.C. Sept. 30, 2015) (finding a hypothetical containing a restriction to "simple, routine, repetitive tasks" failed to address the claimant's ability to stay on task); Desilets v. Colvin, No. 2:14-cv-1693-RBH, 2015 WL 5691514, at *4-5 (D.S.C. Sept. 28, 2015) (finding a limitation in the RFC to "simple, repetitive tasks that are low stress and require no major decision-making or changes in the work setting in crediting some of her complaints of increased mental symptoms with stress" did not "sufficiently address the claimant's limitations in concentration, persistence, or pace as they relate to the RFC"); Jones v. Colvin, No. 4:14-cv-200-RN, 2015 WL 4773542, at *6 (E.D.N.C. Aug. 13, 2015) ("[T]he hypothetical question to the VE contemplated an individual 'limited to simple, routine, repetitive tasks; should work in a low production occupation, one which would require no complex decision making, constant change or dealing with crisis situations.' The majority of courts in North Carolina, including this court, have held that such restrictions do not adequately address a claimant's moderate limitations in concentration, persistence and pace."); Bailey v. Colvin, No. 5:14-cv-248-DCN, 2015 WL 2449044, at *13 (D.S.C. May 21, 2015) (finding a limitation in the RFC to "only simple, routine, repetitive tasks; he must work in a static work environment (which I define as an environment with few work place changes)" did not account for the claimant's "limitations in concentration, persistence, or pace as to his ability to stay on task") (emphasis in original); Scruggs v. Colvin, No. 3:14-cv-00466-MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015) (finding that an ability to perform simple, routine, repetitive tasks in a non-production environment, without more, does not account for claimant's moderate difficulties in concentration, persistence, and pace); cf. Falls v. Colvin, 8:14-cv-00195-RBH, 2015 WL 5797751, at *7 (D.S.C. Sept. 29, 2015) (finding remand was not required because the ALJ adequately addressed claimant's ability to stay on task by including the limitation "she could concentrate, persist, and work at pace to do simple, routine, repetitive tasks at one and two step instructions for extended periods, say two hour periods in an eight hour day").
Here, the ALJ determined at Step 3 that the "totality of the evidence substantiates" that Plaintiff has a "moderate limitation with regard to concentrating, persisting, or maintaining pace." [R. 461.] The ALJ recognized that the criteria used to identify Plaintiff's limitations in concentrating, persisting, and maintaining pace at Step 3 must be assessed in more detail at Steps 4 and 5 of the sequential process. [R. 462.] Upon review, however, it is unclear how the ALJ further considered Plaintiff's alleged limitations in concentrating, persisting, and maintaining pace in Steps 4 and 5, or how the ALJ weighed the evidence of record substantiating the additional mental limitations described by Dr. Mika, whose opinion was given significant weight the ALJ. [Doc. 12 at 12 (citing R. 410-413).] Furthermore, it is unclear from the ALJ's decision how a limitation to "simple, routine, repetitive tasks in a low stress environment, defined as no constant change in routine with no crisis situations and no complex decision-making" [R. 462], addresses Plaintiff's moderate difficulties in concentration, persistence, or pace. This is particularly true in light of the fact that this limitation was not presented to the VE. As the Fourth Circuit in Mascio made clear, remand is warranted when an ALJ "g[ives] no explanation" for why the "moderate limitation in concentration, persistence, or pace at step three does not translate to a limitation in [the claimant's RFC]." 780 F.3d at 638.
In the hearing before the ALJ, the ALJ presented the VE with a hypothetical person who is 50 to 53 with the same physical and mental health background as Plaintiff, who can do a full range of light work, except that he is limited to a sit/stand option with the ability to change position twice per hour; limited to no climbing of ropes, scaffold and ladders; occasional climbing of stairs; would need to avoid concentrated exposure to unprotected heights; and could stay on tasks for two hours at a time. [R. 506-07.] The VE testified regarding jobs that such a person could perform at the light strength level. [R. 507-08.] In a second hypothetical, the ALJ limited Plaintiff to simple, routine, repetitive tasks of unskilled work with low stress, which was defined as no constant change in routine, no complex decision-making, and no crisis situations. [R. 508.] The VE testified that the hypothetical person would still be able to perform those jobs. [Id.]
On cross examination by Plaintiff's counsel, the VE was presented with a hypothetical person with the limitations of the first RFC, but with a sit/stand option where the person could sit or stand at will. [R. 509.] The VE testified that this would eliminate employment. [Id.] Plaintiff's counsel then presented a hypothetical person with mental limitations that were moderate; that is, up to a third of the day, the hypothetical person would be moderately limited in his ability to maintain attention and concentration, to complete a normal work week or work day, and perform at a consistent pace without an unreasonable number and length of rest periods, and be limited in his ability to interact with the general public. [R. 509-10.] The VE testified that such limitations would eliminate all employment. [R. 510.]
Upon consideration of the ALJ's decision in light of the evidence of record, the Court notes that the ALJ's failure to explain his consideration of Plaintiff's moderate limitations in concentration, persistence, and pace in Steps 4 and 5 of the sequential process, as well as his failure to include the limitations in his hypothetical to the VE, dictates a finding that the RFC is not supported by substantial evidence, particularly in light of the VE's testimony that work would be precluded if the hypothetical individual would be moderately limited in his ability to maintain attention and concentration, to complete a normal work week or work day, perform at a consistent pace without an unreasonable number and length of rest periods, and be limited in his ability to interact with the general public. All of these limitations were found by Dr. Mika; and, his opinion was given substantial weight by the ALJ, but the ALJ failed to include these limitations in the RFC or present them to the VE.
In developing the RFC, the ALJ does not appear to rely on any medical opinion to support the exclusion of these limitations by Dr. Mika. "It may be that a vocational expert can identify unskilled light jobs that would not be affected by Plaintiff's moderate mental and social limitations. It may also be that a vocational expert would find that limitations in the area of concentration, persistence and pace, would affect such jobs and further erode the number of unskilled, light jobs available. Reversal and remand is required so a vocational expert can be called and can address the issue." Meyer v. Berryhill, 8:16-cv-03310-JMC-JDA, 2018 WL 3133422, at *10 (D.S.C. Jan. 4, 2018), (quoting Bonds v. Astrue, No. 6:07-cv-1135-JFA-WMC, 2008 WL 2952446 at *11 (D.S.C. July 29, 2008)).
Where an ALJ does not offer an explanation, the district court should not attempt to supply one. See Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013). This legal principle is certainly applicable in cases, such as this one, that fit the circumstances faced by the Fourth Circuit in Mascio, which held that "remand is in order" precisely "because the ALJ . . . gave no explanation." 780 F.3d at 638. Accordingly, the Court cannot find the ALJ's RFC determination is supported by substantial evidence.
Plaintiff's Remaining Arguments and Request for Award of Benefits
Because the Court finds the ALJ's failure to properly present Plaintiff's moderate limitations in concentration, persistence, and pace to the VE in developing Plaintiff's RFC is a sufficient basis to remand the case to the Commissioner, the Court declines to specifically address Plaintiff's remaining allegations of error by the ALJ.
Additionally, Plaintiff has requested that the Court remand this action for an award of benefits rather than for additional hearings. The decision on whether to reverse and remand for an award of benefits or remand for a new hearing rests within the sound discretion of the district court. Edwards v. Bowen, 672 F.Supp. 230, 237 (E.D.N.C. 1987). An award of benefits by the district court is appropriate where the record is fully developed and it is clear the Commissioner would be required to award benefits on remand. Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001); Williams v. Comm'r of Soc. Sec., 104 F. Supp. 2d 719, 721 (E.D. Mich. 2000). This is particularly true where there has been a significant lapse of time in the administrative processing of the claim. Holohan, 246 F.3d at 1210; Podedworny v. Harris, 745 F.2d 210, 223 (3rd Cir. 1984) ("If it would not be impossible for the Secretary to repair the record, it would at least be grossly unfair to give her another chance to do so under these circumstances. Where further administrative proceedings would simply prolong appellant's waiting and delay his ultimate receipt of benefits, reversal is especially appropriate.").
After a review of the entire record, the Court notes that the medical evidence clearly supports a finding that Plaintiff suffers from moderate limitations in concentration, persistence, and pace; limitations in his ability to interact with the public; and limitations in his ability to complete a normal work week. In a 2011 Mental RFC Assessment, Dr. Edward Waller noted that Plaintiff has sustained concentration and persistence limitations, is moderately limited in his ability to maintain concentration and attention for extended periods, and is moderately limited in his ability to complete a normal work day and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. [R. 93.] Dr. Waller also found Plaintiff was moderately limited in his ability to interact with the general public. [Id.] Dr. Waller further opined that Plaintiff was capable of maintaining a regular work schedule but would miss an occasional work day due to depression. [R. 94.] In a November 2011 mental evaluation, Dr. Joseph Goldsmith concluded that Plaintiff suffered form bipolar disorder, not otherwise specified, and alcohol dependence. [R. 332.] Dr. Goldsmith concluded that, while Plaintiff's reasoning ability was excellent, he was not sure Plaintiff could stay abstinent and that he would have a difficult time making occupational, personal, and social adjustments dealing with the world of work. [Id.] In a Psychiatric Review Technique conducted in January 2012, it was determined that Plaintiff had moderate difficulties in social functioning and in maintaining concentration, persistence, and pace. [R. 103.] In February 2013, Dr. Brian Mika found that Plaintiff was markedly limited in his ability to maintain attention and concentration for extended periods, to complete a normal work week without interruptions form psychologically based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods. [R. 411-12.] Dr. Mika also found Plaintiff's symptoms were persistent and that the limitations he outlined were present since his initial evaluation of Plaintiff in November 2012. [R. 414-15.]
After the relevant time period, in October 2015, Dr. Chad Ritterspach noted that Plaintiff lacked motivation to engage in daily activities due to depression, that he may not be suited to work with the public due to anxiety, and that he may do best in situations in which he is not required to interact much with others. [R. 878.] Dr. Ritterspach also found that Plaintiff had the ability to understand, retain, and follow simple, work-related directions but, due to anxiety and depression, would have problems tolerating work-related stressors and may be somewhat easily distracted from work tasks, particularly if they were detailed and complex. [Id.] In December 2015, Dr. Joseph Moore found that Plaintiff suffered moderate difficulties in social functioning and in maintaining concentration, persistence, and pace. [R. 551, 557.]
The ALJ, in developing Plaintiff's RFC, completely ignored medical evidence of record, which appears to be consistent throughout the time period, with respect to Plaintiff's moderate limitations in concentration, persistence, and pace; in social functioning; and in working with others. Further, the ALJ failed to include limitations in social functioning or in concentration, persistence, and pace in his hypothetical to the VE. When counsel for Plaintiff presented these limitations to the VE, however, the VE testified that work for Plaintiff would be precluded.
Consequently, in light of the evidence of record supporting a finding that Plaintiff suffers from moderate limitations in social functioning and in concentration, persistence, and pace; the ALJ's own finding that Plaintiff suffers from moderate limitation in interacting with others and in concentration, persistence and pace; and the VE's testimony that a person with these limitations would be precluded from all work, a finding of disability should have been made by the ALJ. Under these circumstances, reversal and remand to the agency to address for a third time the issues raised in this appeal would be futile. After nearly eight years of administrative processing, enough is enough. The proper remedy is an award of benefits.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED and the case be REMANDED to the Commissioner for an award of benefits.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge July 26, 2019
Greenville, South Carolina