Opinion
C. A. 9:23-cv-01469-JDA-MHC
07-24-2024
Jennifer C.R.,[1] Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Plaintiff Jennifer C.R. (Plaintiff) filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Administrative Law Judge's (ALJ's) final decision denying her claim for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under the Social Security Act (Act). This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
Citations to the record refer to the page numbers in the Social Security Administration Record. See ECF No. 9.
In January 2017, Plaintiff filed applications for DIB and SSI under Titles II and XVI, respectively, of the Act, alleging disability beginning on January 27, 2017. R.pp. 98, 100, 220. The state agency denied her claims initially and on reconsideration. R.pp. 68-139, 148-51. After a hearing, an ALJ also denied her claims. R.pp. 28-65, 1617-61, 1654-73. Plaintiff appealed that decision, and the Court remanded the case for further proceedings. R.pp. 1639-44, 1647-53.
On remand, a different ALJ held a telephonic hearing on April 18, 2022, at which Plaintiff, who was represented by counsel, and an impartial vocational expert appeared and testified. R.pp. 1559-98. On August 10, 2022, that ALJ issued the decision at issue in this case, finding that Plaintiff was not disabled under the Act. R.pp. 1522-58.
Plaintiff filed exceptions to the ALJ's decision before the Appeals Council. R.pp. 190711. On March 2, 2023, the Appeals Council considered Plaintiff's reasons but found no basis to disturb the new ALJ decision, rendering the ALJ's decision final. R.pp. 1510-16. This appeal followed.
Because this Court writes primarily for the parties who are familiar with the facts, the Court dispenses with a lengthy recitation of the medical history from the relevant period. To the extent specific records or information are relevant to or at issue in this case, they are addressed within the Discussion section below.
II. APPLICABLE LAW
A. Scope of Review
Jurisdiction of this Court is pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Under § 405(g), judicial review of a final decision regarding disability benefits is limited to determining (1) whether the factual findings are supported by substantial evidence, and (2) whether the correct legal standards were applied. 42 U.S.C. § 405(g); Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Accordingly, a reviewing court must uphold the final decision when “an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Brown v. Comm r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017) (internal quotation marks omitted).
“Substantial evidence” is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019). A reviewing court does not reweigh conflicts in evidence, make credibility determinations, or substitute its judgment for that of the ALJ. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ].” Id. (alteration in original) (internal quotation marks and citation omitted). However, this limited review does not mean the findings of an ALJ are to be mechanically accepted, as the “statutorily granted review contemplates more than an uncritical rubber stamping of the administrative action.” Howard v. Saul, 408 F.Supp.3d 721, 725-26 (D.S.C. 2019) (quoting Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969)).
B. Social Security Disability Evaluation Process
To be considered “disabled” within the meaning of the Social Security Act, a claimant must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve months. See 42 U.S.C. § 423. The Social Security Administration established a five-step sequential procedure in order to evaluate whether an individual is disabled for purposes of receiving benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (outlining the questions asked in the five-step procedure). The burden rests with the claimant to make the necessary showings at each of the first four steps to prove disability. Mascio, 780 F.3d at 634-35. If the claimant fails to carry his burden, he is found not disabled. Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017). If the claimant is successful at each of the first four steps, the burden shifts to the Commissioner at step five. Id.
At the first step, the ALJ must determine whether the claimant has engaged in substantial gainful activity since his alleged disability onset date. 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the ALJ determines whether the claimant has an impairment or combination of impairments that meet the regulations' severity and duration requirements. Id. §§ 404.1520(c), 416.920(c). At step three, the ALJ considers whether the severe impairment meets the criteria of an impairment listed in Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”) or is equal to a listed impairment. If so, the claimant is automatically eligible for benefits; if not, before moving on to step four, the ALJ assesses the claimant's residual functional capacity (RFC). Id. §§ 404.1520(d), (e), 416.920(d), (e); Lewis, 858 F.3d at 861.
The RFC is “the most the claimant can still do despite physical and mental limitations that affect her ability to work.” Mascio, 780 F.3d at 635 (internal quotation marks and citations omitted).
At step four, the ALJ determines whether, despite the severe impairment, the claimant retains the RFC to perform his past relevant work. 20 C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). If the ALJ finds the claimant capable of performing his past relevant work, he is not disabled. Id. §§ 404.1520(f), 416.920(f). If the requirements to perform the claimant's past relevant work exceed his RFC, then the ALJ goes on to the final step.
At step five, the burden of proof shifts to the Social Security Administration to show that the claimant can perform other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and RFC. Id. §§ 404.1520(g), 416.920(g); Mascio, 780 F.3d at 634-35. Typically, the Commissioner offers this evidence through the testimony of a vocational expert answering hypotheticals that incorporate the claimant's limitations. Mascio, 780 F.3d at 635. “If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.” Id.
III. ADMINISTRATIVE FINDINGS
The ALJ employed the statutorily-required five-step sequential evaluation process to determine whether Plaintiff was disabled from the alleged onset date of January 27, 2017. R.pp. 1525-49. The ALJ found, in pertinent part:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.
2. The claimant has not engaged in substantial gainful activity since January 27, 2017, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.)....
3. The claimant has the following severe impairments: fibromyalgia; chronic migraine headaches with vertigo; mild intermittent asthma; chronic obstructive pulmonary disease; diabetic peripheral neuropathy; seizure disorder and/or pseudoseizure disorder; obesity; obstructive sleep apnea; diabetes mellitus; spina bifida; scoliosis; osteoarthritis; mild bilateral acromioclavicular degenerative changes; cervical spine degenerative disc disease; and lumbar spine degenerative disc disease (20 CFR 404.1520(c) and 416.920(c))....
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926)....
5. After careful consideration of the entire record, I find 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 she could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never climb ropes, ladders, or scaffolds; frequently reach overhead with the bilateral upper extremities; have no exposure to unprotected heights or work around dangerous moving machinery; and have no concentrated exposure to extreme cold, extreme heat, humidity, wetness, fumes,
gases, dusts, odors, and other pulmonary irritants, vibration, or flashing lights, with “concentrated exposure” defined as five minutes or more at any one time....
6. The claimant is capable of performing past relevant work as a project manager, Dictionary of Occupational Titles (DOT) # 189.167-030, sedentary exertional level as generally performed, light exertional level as actually performed, skilled (SVP-8). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965)....
7. The claimant has not been under a disability, as defined in the Social Security Act, from January 27, 2017, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).R.pp. 1528-50.
The ALJ found the following physical conditions to be non-severe because “they have all either resolved with no persuasive allegations of continued limitation to the claimant's activities, or the limitations produced are minor, infrequent, or of short duration”: ocular hypertension, glaucoma, myopia, cataracts, allergic rhinitis, gastroesophageal reflux disease, and benign essential tremor. R.p. 1539. The ALJ further found that Plaintiff's “medically determinable mental impairment of depression does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore nonsevere.” R.p. 1540.
IV. DISCUSSION
Plaintiff presents two arguments in support of remand. First, she argues that the ALJ erred at Step 4 in relying on the vocational expert's testimony to find that Plaintiff was capable of performing her past relevant work. ECF No. 10 at 34-35. Second, she contends that the ALJ erred by failing to properly evaluate Plaintiff's mental conditions at Step 2. Id. at 36-38. For the reasons that follow, the undersigned recommends that the ALJ's decision be affirmed.
A. Past Relevant Work
At step four of the sequential evaluation process, the ALJ determines whether a claimant's impairments prevent her from performing past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). “Past relevant work” is work that that the claimant has done within a prescribed amount of time “that was substantial gainful activity and that lasted long enough for [the claimant] to learn to do it.” See 20 C.F.R. §§ 404.1560(b)(1)(i), 416.960(b)(1)(i).
A claimant retains the ability to perform her past relevant work if she retains the capacity to perform either (1) “the particular functional demands and job duties peculiar to an individual job as he or she actually performed it,” or (2) “the functional demands and job duties of the job as ordinarily required by employers throughout the national economy.” Social Security Ruling (SSR) 82-61, 1982 WL 31387, at *2 (S.S.A. Jan. 1, 1982). ALJs may rely on a vocational expert or other resources, such as the Dictionary of Occupational Titles (“DOT”), to obtain evidence to help determine whether a claimant can do her past relevant work, given her RFC. 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). Pursuant to SSR 82-62, in finding that a claimant has the capability to perform past relevant work, an ALJ's decision must contain the following findings of fact: (1) the individual's RFC; (2) the physical and mental demands of the past job/occupation; and (3) that the individual's RFC would permit a return to his or her past job or occupation. SSR 82-62, 1982 WL 31386, at *4.
Social Security Rulings, or “SSRs,” are “interpretations by the Social Security Administration of the Social Security Act.” Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th Cir. 1995). They do not carry the force of law but are “binding on all components of the Social Security Administration,” 20 C.F.R. § 402.35(b)(1), as well as on ALJs when they are adjudicating Social Security cases. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
A claimant will be found “not disabled” if she can perform her past relevant work either as she “performed it in the past or as it is generally required by employers in the national economy.” Riley v. Colvin, No. 9:14-CV-3229-DCN, 2016 WL 1253187, at *3 (D.S.C. Mar. 31, 2016). If a decision regarding disability cannot be made at step four, the ALJ moves to step five and considers whether the claimant's impairments prevent him from engaging in substantial gainful employment. See 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v).
As an initial matter, the ALJ followed the procedure for determining Plaintiff's ability to perform past relevant work as outlined in SSR 82-62, and Plaintiff makes no arguments to the contrary. The ALJ first made a finding of fact as to Plaintiff's RFC:
After careful consideration of the entire record, I find 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 she could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never climb ropes, ladders, or scaffolds; frequently reach overhead with the bilateral upper extremities; have no exposure to unprotected heights or work around dangerous moving machinery; and have no concentrated exposure to extreme cold, extreme heat, humidity, wetness, fumes,
gases, dusts, odors, and other pulmonary irritants, vibration, or flashing lights, with “concentrated exposure” defined as five minutes or more at any one time.R.p. 1545. The ALJ then made findings of fact as to the physical and mental demands of Plaintiff's past relevant work and determined that Plaintiff's RFC would permit a return to her past relevant work:
The claimant is capable of performing past relevant work as a project manager, Dictionary of Occupational Titles (DOT) # 189.167-030, sedentary exertional level as generally performed, light exertional level as actually performed, skilled (SVP-8). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565 and 416.965).R.pp. 1548-49.
On appeal, Plaintiff argues that the ALJ's analysis at step 4 was flawed because the ALJ did not resolve conflicts between the vocational expert's testimony and the DOT, as required by SSR 04-p. ECF No. 10 at 34-35. Plaintiff also contends that the ALJ failed to resolve a conflict between a prior administrative finding and the ALJ's finding. Id. at 35.
The Social Security Administration promulgated SSR 00-4p to clarify the standards for the use of vocational experts (“Ves”) at ALJ hearings. SSR 00-4P, 2000 WL 1898704, at *1 (S.S.A. Dec. 4, 2000). When a VE provides testimony about the requirements of a job, SSR 00-4p places an affirmative responsibility on the ALJ to ask about any possible conflict between the VE's testimony and the information provided in the DOT. Id. at *4. In these situations, the ALJ is required to: (1) ask the VE if the evidence he or she has provided conflicts with the DOT, and (2) if the VE's evidence does appear to conflict with the DOT, the ALJ must obtain a reasonable explanation for that apparent conflict. Id. Furthermore, when a VE's evidence is not consistent with the DOT, the ALJ must resolve the conflict before relying on the VE's evidence to support a determination that the claimant is or is not disabled. Id. “The [ALJ] will explain in the determination or decision how he or she resolved the conflict.” Id. The ALJ “must explain the resolution of the conflict irrespective of how the conflict was identified.” Id.
The Fourth Circuit has clarified that merely asking the VE if there are any conflicts is insufficient to satisfy the ALJ's affirmative duty under SSR 00-4p. Pearson v. Colvin, 810 F.3d 204, 209 (4th Cir. 2015). Rather, a VE's testimony that apparently conflicts with the DOT can provide substantial evidence only if the ALJ receives an explanation from the VE explaining the conflict and determines both that the explanation is reasonable and that it provides a basis for relying on the testimony rather than the DOT. Id. at 209-10. Consequently, “[a]n ALJ has not fully developed the record if it contains an unresolved conflict between the [VE's] testimony and the [DOT].” Id. at 210. Likewise, an ALJ fails to fulfill his duty if he ignores an apparent conflict because the expert testified no conflict existed. Id.
At the administrative hearing, the ALJ explored the demands of Plaintiff's past relevant work. R.pp. 1570-74. The ALJ then received testimony from the vocational expert, who classified Plaintiff's past relevant work as a “project manager” and testified that it “is classified by the DOT as sedentary work, skilled, SVP-8, DOT code 189.167-030, probably light as performed.” R.p. 1588. In response to a hypothetical question from the ALJ, the vocational expert testified that a hypothetical individual with the same age, education, work background, and RFC (a range of light exertional work) as Plaintiff could perform Plaintiff's past relevant work. R.pp. 1592-93. When asked by the ALJ to clarify whether that would be as the work was actually performed or as it is generally performed, the vocational expert testified, “At the light level as she performed and it's actually performed at the light level[.]” R.p. 1594. In response to a question from Plaintiff's hearing counsel, the vocational expert testified that the project manager position is “normally performed at sedentary. She performed it at light. She did some site visits and walked around and checked on things, that would make the job light rather than sedentary as performed.” R.p. 1595. When asked if site visits are “consistent with how the typical job is performed as project manager,” the vocational expert responded, “Yes.” R.p. 1595.
Before ending the hearing, the ALJ asked the vocational expert, “[I]s your testimony consistent with the Dictionary of Occupational Titles?” R.p. 1597. The vocational expert responded no and identified “several differences,” including testimony related to the number of jobs available, transferability of skills, absenteeism, off-task behavior, and overheard reaching. R.p. 1597. The vocational expert did not identify any other inconsistencies.
Upon review, the undersigned concludes that the ALJ satisfied its obligations under SSR 00-4p. Specifically, at the hearing, the ALJ inquired into conflicts between the vocational expert's testimony and the DOT. The ALJ also asked for clarification from the VE as to his testimony about whether Plaintiff could perform the job as she actually performed it or as generally performed. Notably, the VE consistently testified that someone with Plaintiff's background and RFC could perform the job as project manager at the light exertion level. The VE also consistently testified that Plaintiff actually performed the job at the light exertion level because she went on site visits. With respect to how the job is generally performed, the VE testified that the DOT classifies the job as sedentary and that it is “normally performed at sedentary,” but the VE also testified that site visits are “consistent with how the typical job is performed as project manager,” suggesting that the job may generally be performed at the light level.
In her decision, the ALJ first found that Plaintiff is capable of performing past relevant work as a project manager at the “sedentary exertional level as generally performed, light exertional level as actually performed.” R.p 1548. She further recognized that the conflict between the VE's testimony regarding how the job is generally performed and the DOT's definition of how the job is generally performed, and she explained that she reconciled this conflict by adopting the DOT's definition:
In comparing the claimant's residual functional capacity with the physical and mental demands of this work, I find that the claimant can perform it as generally performed according to the Dictionary of Occupational Titles. In making this finding, I relied on the testimony of the vocational expert, who classified the claimant's past relevant work as performed at the light exertional level due to her making site visits, which is consistent with how that job is now generally performed, though not as it is described in the DOT. When asked if the claimant was able to perform that job as actually performed or as generally performed, the vocational expert testified it was “a bit of both,” so I have limited her to performing that job as it is generally performed according to the DOT, which is the most limited description of that work. Pursuant to SSR 00-4p, the vocational expert's testimony on the claimant's past work was consistent with the information contained in the Dictionary of Occupational Titles, except for his report of how that job is now performed in the national economy, which differs from the description provided in the DOT. That testimony was based on the vocational expert's observations and experience and is thus a reliable source of occupational information appropriate for consideration under Social Security Ruling 00-4p.R.pp. 1548-49. On this record, the undersigned finds that the ALJ satisfied her duty to affirmatively ask about any conflicts between the vocational expert's testimony and the information provided in the DOT and to explain in her decision how she resolved any apparent conflicts. See SSR 00-4P, 2000 WL 1898704, at *3-4 (“Although there may be a reason for classifying the exertional demands of an occupation (as generally performed) differently than the DOT (e.g., based on other reliable occupational information), the regulatory definitions of exertional levels are controlling.”).
The undersigned is not persuaded by Plaintiff's assertion that the ALJ was obligated to discuss the prior ALJ decision, which assessed a different RFC and found her past relevant work to be eliminated. See R.pp. 35-40. Because the Appeals Council vacated that prior decision and remanded the case for further administrative review, R.p. 1649, the ALJ was obligated to consider all pertinent issues de novo. See HALLEX I-2-8-18 A (“If the Appeals Council (AC) remands a case to the hearing level after a court remand, it generally vacates the entire administrative law judge (ALJ) decision, and the ALJ must consider all pertinent issues de novo.”). Plaintiff has not pointed to any authority requiring the ALJ to discuss and reconcile any conflict between the prior vacated decision and her own decision.
Notably, Plaintiff does not challenge her assessed RFC, nor does she allege that her assessed RFC is incompatible with the DOT definition of how her past relevant work is generally performed. The Commissioner's regulations explain that the ability to perform light exertion work means that an individual can also perform sedentary work unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time, see 20 C.F.R. §§ 404.1567(b), 416.967(b), and Plaintiff has not argued that any evidence in the record supports such additional limiting factors. Thus, substantial evidence in the record supports a finding that the assessed RFC permits performance of Plaintiff's past relevant work as actually performed (light exertion), as defined in the DOT (sedentary exertion), and as the vocational expert testified the work is generally performed currently (light exertion).
The ALJ's finding that Plaintiff was capable of returning to her past relevant work was supported by substantial evidence, and all relevant inconsistencies between the DOT and vocational expert testimony were reasonably explained at the hearing. Accordingly, remand on this basis is not warranted. See Biestek, 587 U.S. at 103 (noting substantial evidence is an evidentiary standard that is not high: it is “more than a mere scintilla” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).
B. Step 2 Finding on Mental Health Impairments
Plaintiff argues that the ALJ erred in finding that Plaintiff's mental impairments were non-severe. ECF No. 10 at 36; see also ECF No. 12 at 3-6. She contends that her “mental impairments had more than a minimal effect on her ability to work,” and she points to her hearing testimony as support. ECF No. 10 at 36-37 (citing R. 1584-85). She also argues that the medical evidence supports limitations for depression and anxiety, although she does not cite any specific medical evidence to support this contention. Id. at 37. She further contends that “the ALJ's discussion of the B criteria does not provide adequate explanation for finding [Plaintiff's] impairments non-severe.” Id. She maintains that “the ALJ's evaluation of [her mental] impairments ended at step 2 and no consideration was given to these impairments in [her] RFC findings.” Id. Finally, Plaintiff maintains that these errors cannot be considered harmless. Id. at 38.
In response, the Commissioner argues that the ALJ properly evaluated Plaintiff's mental impairment using the special psychiatric review technique set forth in the regulations and that the ALJ's findings were supported by substantial evidence and reasonably articulated. ECF No. 11 at 13-16. The Commissioner further argues that “the ALJ explicitly stated that she considered Plaintiff's depression [in assessing the RFC] and found that no additional accommodations were required.” Id.at 16. The Commissioner notes that the ALJ specifically discussed Plaintiff's reports of “confusion, fatigue, and forgetfulness” in assessing the RFC, such that it is clear that “the ALJ considered Plaintiff's depression and associated symptoms in formulating the [RFC], contrary to Plaintiff's assertion.” Id.
A severe impairment is one that “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic mental work activities include: understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a work setting. See 20 C.F.R. §§ 404.1522(b), 416.922(b).
ALJs are required to use a special technique to evaluate the severity of alleged mental impairments. See 20 C.F.R. §§ 404.1520a, 416.920a. After determining a claimant has a medically-determinable mental impairment, the ALJ must rate the degree of the claimant's functional limitation as none, mild, moderate, marked, or extreme based on “the extent to which [her] impairment(s) interfere with [her] ability to function independently, appropriately, effectively, and on a sustained basis” in the broad functional areas of understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. 20 C.F.R. §§ 404.1520a(b), (c)(2), (3), (4); 416.920a(b), c(2), (3), (4). If the ALJ rates the degree of the claimant's limitations as “none” or “mild,” the ALJ will generally conclude the impairment is non-severe, unless the evidence otherwise indicates there is more than a minimal limitation in the claimant's ability to do basic work activities. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). If the ALJ rates the degree of Plaintiff's limitations as moderate, marked, or extreme, the ALJ should conclude the impairment is severe and assess whether it meets or equals a listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). If the claimant has a severe impairment but does not meet or equal a listing, the ALJ will then assess the RFC. 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).
The ALJ is required to show in her decision “the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s).” 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4). The ALJ's “decision must include a specific finding as to the degree of limitation in each of the functional areas.” Id.
Because an ALJ's recognition of any severe impairment at step two ensures that the ALJ will proceed to subsequent steps, courts in this District have found no reversible error in ALJs' erroneous assessments of impairments as non-severe, provided the impairments were considered at subsequent steps. See Washington v. Astrue, 698 F.Supp.2d 562, 580 (D.S.C. 2010) (collecting cases); Singleton v. Astrue, C/A No. 9:08-1982-CMC, 2009 WL 1942191, at *3 (D.S.C. July 2, 2009).
In discussing her assessment of severe impairments at step two, the ALJ wrote:
The claimant's medically determinable mental impairment of depression does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and is therefore nonsevere.
In making this finding, I have considered the broad functional areas of mental functioning set out in the disability regulations for evaluating mental disorders and in the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1). These four broad functional areas are known as the “paragraph B” criteria.
The first functional area is understanding, remembering, or applying information. The next functional area is interacting with others. The third functional area is concentration, persistence, or maintaining pace. The fourth functional area is adapting or managing oneself.
I find the claimant has a mild limitation in concentrating, persisting, or maintaining pace and no limitations in the remaining three areas. In making this finding, I gave great weight to the assessments of the DDS psychological consultants (Exhibits 1A; 2A; 7A; 8A) because they were prepared by acceptable medical sources with significant program knowledge who also had the opportunity to review significant portions of the record before reaching conclusions that were consistent with each other and observations in the claimant's mental health treatment notes and that were supported by her mental status examinations and other statements in the record.
I gave some weight to the claimant's mental health treatment notes since the alleged onset of disability date of January 27, 2017, (Exhibits 12F; 13F; portions of 29F) because they were prepared by mental health professionals with some treating relationship with the claimant and reached conclusions that were largely consistent with the functional limitations assessed by the DDS psychological consultants and that were supported by the findings on her mental status examinations, but because these records were prepared for a purpose far different from a disability assessment, they provided only limited insight into many of the matters at issue here.
I gave some weight to the hearing testimony and other statements of the claimant (e.g., Exhibits 5D, page 3; 3E; 15E; 21E) to the extent that I accept she genuinely believes herself to be so limited, but I note these are purely subjective layperson assessments that are not fully consistent with the professional opinions of record that were based in part on objective criteria or supported by the overall record.
I gave some weight to the statement from the claimant's employer (Exhibit 5D, pages 1 to 2), which is another lay assessment. The signs and symptoms mentioned in this report are generally consistent with those reported by the claimant, though
this report is not supported by any references to the overall record, provides no meaningful discussion of any function-by-function limitations, and tends to address an issue reserved to the Commissioner.
I gave little weight to the claimant's mental health treatment notes from 2014 (Exhibits 23F, pages 95 to 99; 26F), which provided almost no useful insight into the matters at issue here because they were prepared for a purpose far different from a disability assessment and significantly predated the period currently at issue.
I did not directly assess the weight of the disability form reportedly prepared by the claimant's primary care physician in June 2017 (Exhibit 25F, pages 58 to 82) because the actual report does not appear in the record. However, the symptoms mentioned in the discussion of that report appear to be based primarily on the claimant's self-reports rather than on any examination findings or other objective evidence, do not distinguish between the effects of the claimant's physical and mental health issues, and appear to address an issue reserved to the Commissioner.
The claimant has no limitation in understanding, remembering, or applying information. In a Function Report dated April 4, 2017, the claimant reports needing reminders of appointments, to groom, and to take her medications. She follows short written and spoken instructions well but has difficulty with longer or more complex instructions. She also reports generalized confusion and being forgetful of conversations (Exhibit 3E). A second Function Report dated July 29, 2021 is similar, though the claimant denies needing reminders of appointments and reports little if any ability to follow spoken instructions (Exhibit 15E). At the initial hearing, the claimant testified she stopped work because seizures and migraine headaches that affected her short-term memory and prevented her from completing her assigned duties in a timely manner. Her testimony at the later hearing reported frequent brain fog, forgetting what she is doing, and confusion, and short-term memory loss following seizures. The claimant has also reported memory loss, confusion, and brain fog at several medical appointments, though the mental status examinations performed by Dr. Wiley consistently report she was alert, oriented, and had intact memory (Exhibits 12F; 13F). The counseling sessions with Dr. O'Hara do not include detailed mental status examinations, but the claimant is consistently described as being fully oriented and having no problems with speech, presentation, or perceptions other than one mention of hallucinations, needing to be redirected at her initial visit, and sometimes closing her eyes when discussing her problems (Exhibit 29F). The above factors are generally consistent with the assessments of the DDS psychological consultants finding no limitation in this functional area (Exhibits 1A; 2A; 7A; 8A), which I have adopted. While a mild limitation is also colorable, either finding supports my conclusion that the claimant has no severe mental impairment.
The claimant has no limitation in interacting with others. Both Function Reports state the claimant spends time with others and deny problems getting along with family, friends, and neighbors. She generally gets along well with authority figures and never lost a job due to problems getting along with others. Although she has
reported social anxiety, relationship issues, and difficulty trusting men at some of her counseling sessions, the claimant also reported attending church, participating in a disability support group, a writing group, and participating in an online gaming site. Her treatment notes also report improvement in the claimant's relationship with her daughter. These factors support the DDS assessments finding no limitation in the claimant's ability to interact with others, which agrees with my evaluation of the record.
The claimant has a mild limitation in concentrating, persisting, or maintaining pace. A January 2017 statement from the claimant's employer reported her ability to perform her job tasks had declined over the prior year due to forgetfulness, confusion, poor focus, and missed deadlines (Exhibit 5D). In June 2017, her primary care physician reportedly completed a disability form regarding the claimant's complaints of being unable to perform her job duties due to inattention, confusion, fatigue, general malaise, and inability to complete tasks, though the actual form was not provided (Exhibit 25F, pages 58 to 82). Both Function Reports state the claimant has an attention span of no more than thirty minutes and is unable to complete tasks. The claimant's concentration was listed as poor at her first follow-up visit with Dr. Wiley but was rated as fair at her five subsequent visits. Dr. O'Hara does not specifically comment on the claimant's focus and concentration, though her visit notes report the claimant has made Christmas presents using needlepoint, sewing, and embroidery, engaged in several writing projects, and was working on a project for her father's birthday. These activities are consistent with the mild limitation assessed by the DDS psychological consultants, while there is no substantial corroboration of the more significant limitations asserted by the claimant.
The claimant has no limitation in adapting or managing oneself. The two Function Reports both state the claimant has experienced a decline in her ability to handle stress and changes in routine and no longer handles either well. She does not drive due to seizures. The claimant was living alone at the time of her first Function Report and later lived with her daughter. She initially reported attending to her selfcare, cooking, shopping, doing household chores, and managing her finances, though she later reported she was no longer physically able to do all these things. At the April 18, 2022 hearing, the claimant stated she now lives with her two adult children. She usually relies on her children for transportation because seizures prevent her from driving. She sees a counselor and a psychologist for depression and takes several medications. She first saw a counselor at the Free Clinic and has seen someone else for the last month or so since she got insurance. I agree with the DDS psychological consultants that the record as a whole supports finding no limitation in this functional area. As noted above, the claimant has engaged in a variety of hobbies and social activities and reports primarily physical restrictions to performing household chores and other activities of daily living. She has adapted to different living arrangements during the period at issue, has repeatedly recognized the need for medical treatment, has changed medical providers as her circumstances have required, obtained a new dog after her initial service animal died, and reports assisting her attorney with her disability claim.
I have also considered whether the “paragraph C” criteria are satisfied. In this case, the evidence fails to establish the presence of the “paragraph C” criteria. Although there is medical documentation that the claimant's mental disorder has existed over a period of at least two years and the evidence shows that the claimant relies, on an ongoing basis, upon medical treatment, mental health therapy, psychosocial supports, or a highly structured setting to diminish the symptoms and signs of this mental disorder, the C2 criterion is not established in this case because the evidence does not show that, despite diminished symptoms and signs, the claimant has achieved only marginal adjustment. Although she needed inpatient mental health treatment in 2014 (Exhibits 23F, pages 95 to 99; 26F), the record during the period at issue does not show that the claimant has only minimal capacity to adapt to changes or demands not already part of the claimant's daily life, either by evidence showing that changes or increased demands have led to exacerbation of the claimant's symptoms and signs and to deterioration in functioning necessitating a significant change in medication or other treatment, a showing of inability to function outside of home or a more restrictive setting without substantial psychosocial supports, or documented episodes of deterioration that have required the claimant to be hospitalized or absent from work such that it is difficult to sustain work activity over time. Accordingly, the “paragraph C” criteria are not established.
Because the claimant's medically determinable mental impairment causes no more than “mild” limitation in any of the functional areas and the evidence does not otherwise indicate that there is more than a minimal limitation in the claimant's ability to do basic work activities, it is non-severe (20 CFR 404.1520a(d)(1) and 416.920a(d)(1)).
The limitations identified in the “paragraph B” criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation. The mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation requires a more detailed assessment. The following residual functional capacity assessment reflects the degree of limitation I have found in the “paragraph B” mental function analysis.R.pp. 1540-43.
Prior to this discussion, the ALJ had summarized Plaintiff's hearing testimony and the medical evidence in the record, including the records of a 2014 in-patient hospitalization, of Plaintiff's many primary care visits, and Plaintiff's mental health counseling visits that the ALJ references in the above discussion. See R.pp. 1529-39. Notably, the ALJ discusses all the mental health records Plaintiff discusses in the medical summary section of her brief, and Plaintiff has not identified any records not considered by the ALJ. See ECF No. 10 at 3-30, R.pp. 1529-39; see e.g., R.pp. 532, 569-80, 590-94, 599-601, 692-94, 1203-05, 1294-97, 2087-88, 2091-93, 2097, 2099, 2100-10, 2116-36, 2141-43. Moreover, upon review of the cited records, the undersigned finds substantial evidence supports the ALJ's discussion of them. See id.
The undersigned finds no merit in Plaintiff's argument that “the ALJ's evaluation of [her mental] impairments ended at step 2 and no consideration was given to these impairments in [her] RFC findings.” ECF No. 10 at 37. Indeed, before proceeding to step 4, the ALJ expressly explained that she considered Plaintiff's non-severe medically determinable impairment of depression in the RFC assessment: “I have previously found the claimant's depression and several of her physical impairments non-severe, and though they were considered in drafting her residual functional capacity I found they did not require any additional accommodations.” R.p. 1546. Moreover, the ALJ also noted Plaintiff's reports of “confusion, fatigue, and forgetfulness,” but the ALJ explained that the treatment record reflected a higher level of functioning:
I did not adopt other limitations asserted by the claimant due to lack of support from the record. For example, her testimony that she cannot watch television or use a computer more than briefly conflicts with her reports of belonging to an online writing group, playing online Dungeon and Dragons, and attending Zoom meetings, and she does not assert a need for limited screen time to any of her treating sources....Further, despite her reports of recurrent, at times daily, severe pain and other symptoms such as confusion, fatigue, and forgetfulness, she has successfully engaged in various forms of needlework, entered writing competitions, done online gaming, and expressed interest in joining a book club or other social group. Her counseling notes reflect improved mood and enjoyment of multiple activities, many of which were done online, during times she reports recurrent migraine headaches and seizures, which is inconsistent with her hearing testimony.R.p. 1547.
Notably, Plaintiff has not challenged the ALJ's RFC assessment on appeal. See generally ECF No. 10; see also Robinson v. Colvin, No. 4:13-CV-00823-DCN, 2014 WL 4954709, at *14 (D.S.C. Sept. 29, 2014) (“However, Plaintiff must show that any alleged error in finding Plaintiff's depression to be non-severe harmed her.”). Thus, even if the ALJ erred in finding Plaintiff's depression non-severe, such error was harmless. See Collier v. Colvin, No. 9:13-cv-3323-DCN, 2015 WL 1519796, at *7 n.3 (D.S.C. Mar. 30, 2015) (“To the extent [claimant] argues that the ALJ erred in finding her [impairment] non-severe at step two, such an error is harmless because the ALJ considered the [impairment] in subsequent steps.”).
Upon review, the undersigned finds that the ALJ properly applied the special technique in 20 C.F.R. § 404.1520a and 416.920a, specifying the evidence she considered in reaching her conclusion as to the severity of Plaintiff's mental impairments and setting forth specific findings as to the degree of limitation in each of the functional areas. Moreover, substantial evidence in the record supports her conclusions. To the extent Plaintiff may be arguing that the evidence supports a contrary finding, this Court “must sustain the ALJ's decision, even if [it] disagree[s] with it, provided the determination is supported by substantial evidence.” See Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). The substantial evidence standard is clear: it is the job of the ALJ to weigh evidence and resolve any evidentiary conflicts, not this Court. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].” (citation omitted)).
As the ALJ evaluated Plaintiff's mental impairments in accordance with the applicable regulations and the record supports the ALJ's explanations and conclusions, the undersigned finds that substantial evidence supports the ALJ's findings. Moreover, the ALJ expressly considered Plaintiff's depression in assessing the RFC, such that any error at step 2 is harmless. Accordingly, Plaintiff has not shown reversible error at step 2, and remand is not warranted on this basis.
V. CONCLUSION
It is RECOMMENDED that the decision of the Commissioner be AFFIRMED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).