Opinion
C/A 1:23-3107-RBH-SVH
01-05-2024
John R.,[1] Plaintiff, v. Martin O'Malley, Commissioner of Social Security Administration,[2] Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Disability Insurance Benefits (“DIB”). The parties agree the court should reverse the Commissioner's final decision pursuant to sentence four of 42 U.S.C. § 405(g). The sole issue before the court is whether to remand the case for further administrative proceedings or for an award of benefits. For the reasons that follow, the undersigned recommends the court reverse the Commissioner's decision pursuant to sentence four of 42 U.S.C. § 405(g) and remand the case for an award of benefits.
I. Relevant Background
A. Procedural History
On October 3, 2011, Plaintiff protectively filed an application for DIB in which he alleged his disability began on October 2, 2009. Tr. at 98, 210-16. His application was denied initially and upon reconsideration. Tr. at 119-22, 125-26. On July 24, 2013, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Edward Morriss. Tr. at 52-72 (Hr'g Tr.). The ALJ issued an unfavorable decision on August 30, 2013. Tr. at 99-114. The Appeals Council subsequently remanded the claim. Tr. at 115-18. Plaintiff appeared for a second hearing on May 6, 2015. Tr. at 27-51 (Hr'g Tr.). The ALJ issued a second unfavorable decision on June 25, 2015. Tr. at 9-26. The Appeals Council denied Plaintiff's request for review. Tr. at 1-5.
Plaintiff subsequently amended his alleged disability onset date to July 31, 2011. Tr. at 230.
Plaintiff filed a complaint seeking judicial review of the Commissioner's decision on December 27, 2016. Tr. at 635. On November 17, 2017, this court issued an order reversing the Commissioner's decision pursuant to 42 U.S.C. § 405(g), and remanding the case for further administrative action. Tr. at 633-50.
On April 16, 2018, the Appeals Council issued an order remanding the case with instruction that it be assigned to a different ALJ. Tr. at 627-30. Plaintiff appeared before ALJ Nicole Forbes-Schmitt for his third hearing on November 8, 2018. Tr. at 605-26. The ALJ issued an unfavorable decision on December 12, 2018. Tr. at 674-95. The Appeals Council remanded the case to the ALJ on June 3, 2019. Tr. at 695-701. Plaintiff appeared before ALJ Forbes-Schmitt for his fourth hearing on November 7, 2019. Tr. at 583-604. The ALJ issued another unfavorable decision on December 3, 2019. Tr. at 702-27. On January 21, 2021, the Appeals Council issued another order remanding the claim and directing that it be assigned to a third ALJ. Tr. at 728-34. Plaintiff appeared before ALJ Richard LaFata for his fifth hearing on May 12, 2021. Tr. at 523-80. The ALJ issued an unfavorable decision on June 16, 2021. Tr. at 489-522. Plaintiff's counsel filed exceptions to the ALJ's decision with the Appeals Council, but the Appeals Council declined to assume jurisdiction. Tr. at 471-77, 484-88. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on June 29, 2023. [ECF No. 1].
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 48 years old on his alleged disability onset date and 53 years old on his date last insured (“DLI”) for DIB. Tr. at 210, 494. He completed eleventh grade. Tr. at 531-32. His past relevant work (“PRW”) was as a carpenter and a daycare maintenance worker. Tr. at 511. He alleges he has been unable to work since July 31, 2011. Tr. at 230.
2. Brief Medical History
Plaintiff presented to psychiatrist Marshall A. Staton, M.D. (“Dr. Staton”), for a psychiatric evaluation on October 2, 2009. Tr. at 369-70. Dr. Staton diagnosed bipolar disorder. Tr. at 370. Plaintiff maintained regular visits with Dr. Staton through October 2010, and Dr. Staton adjusted his medications as needed. Tr. at 271, 371-75.
In June 2011, Plaintiff reported a recent manic period, and Dr. Staton again adjusted his medications. Tr. at 375. Plaintiff reported stable mood and sleep disturbance in October 2011. Tr. at 373. Dr. Staton prescribed Trazodone. Id. In December 2011, Plaintiff reported he had stopped Trazodone, and Dr. Staton prescribed Celexa. Tr. at 402.
Plaintiff attended a consultative exam with Douglas Ritz, Ph.D. (“Dr. Ritz”), on January 5, 2012. Tr. at 395-98. Dr. Ritz observed that Plaintiff maintained intermittent eye contact; had fair grooming and good hygiene; spoke clearly and at a normal pace; maintained relevant conversation; demonstrated a euthymic mood and congruent affect; had coherent and logical thoughts; was alert and responsive; appeared to be in no distress; and had fair insight and judgment. Tr. at 396. Plaintiff made no effort to perform serial threes testing, but was capable of performing simple calculations “quite easily.” Tr. at 396-97. Dr. Ritz stated Plaintiff “for the most part was able to maintain his concentration during the interview.” Tr. at 397. He indicated Plaintiff had good remote memory and was able to remember two of four items after a five-minute delay. Id. He estimated Plaintiff's cognitive skills were in the low-average to average range. Id. Dr. Ritz noted that Plaintiff's anger and irritability had “the possibility of intruding in his ability to perform in a work-related setting particularly if there was a job that would involve frequent interaction with co-workers or the public.” Id. He stated Plaintiff “might be able to handle an unskilled more solitary type work setting.” Id. He assessed a diagnosis of bipolar I disorder, moderate, most recent episode of hypomania, and a global assessment of functioning (“GAF”)score of 52.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 (“DSM-IV-TR”). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 51-60 indicates “moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or coworkers).” DSM-IV-TR.
State agency consultant Judith Von, Ph.D. (“Dr. Von”), reviewed the record and completed a psychiatric review technique (“PRT”) and a mental residual functional capacity (“RFC”) assessment on January 20, 2012. Tr. at 78-79, 80-81. She indicated Plaintiff was “[n]ot suited to work w/ the public” and “may not be responsive to supervisory feedback” based on his reported difficulty with authority. Tr. at 81. She stated Plaintiff was “best suited to solitary-type positions” that would limit the need to interact with coworkers. Id. She indicated Plaintiff was moderately limited in abilities to: work in coordination with or in proximity to others without being distracted by them; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 80-81.
On May 1, 2012, Dr. Staton completed a form at the state agency's request. Tr. at 405. He stated he saw Plaintiff on October 25, 2011, and February 7, 2012. Id. He identified Plaintiff's diagnosis as bipolar I disorder with a most recent episode of mania. Id. He noted he had prescribed Lamictal 200 mg twice a day and Celexa 40 mg. Id. He stated the medication had helped Plaintiff's condition. Id. He indicated Plaintiff was fully oriented, had a racing and distractible thought process and suspicious thought content, demonstrated worried/anxious mood/affect, and had poor concentration and good memory. Id. He opined that Plaintiff demonstrated serious work-related limitation in function due to the mental condition. Id. He did not consider Plaintiff capable of managing his own funds. Id.
On May 31, 2012, state agency medical consultant Michael Neboschick, Ph.D. (“Dr. Neboschick”), completed a PRT and a mental RFC assessment. Tr. at 89-90. He found Plaintiff moderately limited in the following abilities: to maintain attention and concentration for extended periods; to work in coordination with or proximity to others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; and to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 92-93.
Plaintiff followed up with Dr. Staton for medication management in February, August, and September 2012. Tr. at 410-11. Dr. Staton noted Plaintiff's treatment was limited by his finances. Tr. at 410. Plaintiff reported increased irritability during the August visit. Id. Dr. Staton prescribed Ambien and recommended Plaintiff decrease Celexa, but Plaintiff declined. Id. On September 4, 2012, Plaintiff indicated Ambien was ineffective and declined Seroquel due to financial concerns and his family history of diabetes. Tr. at 411.
On September 4, 2012, Dr. Staton completed a form identifying Plaintiff's signs and symptoms as: anhedonia or pervasive loss of interest in almost all activities; sleep disturbance; decreased energy; feelings of guilt or worthlessness; and difficulty concentrating or thinking. Tr. at 406. He noted mild restriction of activities of daily living (“ADLs”), marked difficulty in maintaining social functioning, and deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely manner, and repeated episodes of deterioration or decompensation. Tr. at 406, 408. He indicated Plaintiff was markedly impaired in the following abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to work in coordination with and proximity with others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; to get along with coworkers or peers without districting them or exhibiting behavioral extremes; and to be aware of normal hazards and take appropriate precautions. Tr. at 465-66.
On July 8, 2013, Dr. Staton described Plaintiff as having a depressed affect, and Plaintiff noted he continued to struggle with irritability, depression, variable mood, and financial burdens. Tr. at 443. Dr. Staton maintained Plaintiff on the same medications. Id.
On December 10, 2013, Plaintiff reported mood swings, mostly low mood, irritability, and teeth grinding. Tr. at 468. Dr. Staton observed Plaintiff to be well-groomed, to have normal speech, to have intact insight, to demonstrate impaired judgment, to be properly oriented, to have intact memory, to demonstrate fair attention and concentration, and to have a depressed mood and affect. Id.
On July 29, 2014, Plaintiff reported grief over the loss of his brother, anger, irritability, and increased spending. Tr. at 469. Dr. Staton prescribed Celexa, Lamictal, Ambien, and Risperdal. Id.
Plaintiff reported episodes of road rage and denied having started Risperdal on January 29, 2015. Tr. at 469. Dr. Staton described Plaintiff as having an irritable affect, intact association, and normal speech and indicated he denied suicidal and homicidal ideation. Id.
On March 24, 2015, Plaintiff reported that Seroquel had been helpful, but that he was unable to tolerate more than 50 mg because of its sedative effect. Tr. at 470. Dr. Staton indicated Plaintiff appeared to be tolerating his medications well, except for the sedation and possible weight gain. Id. He completed a form identifying Plaintiff's signs and symptoms as: anhedonia or pervasive loss of interest in almost all activities; sleep disturbance; decreased energy; feelings of guilt or worthlessness; and difficulty concentrating or thinking. Tr. at 464. He noted mild restriction of ADLs, marked difficulty in maintaining social functioning, deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely manner, and repeated episodes of deterioration or decompensation. Tr. at 464-65. He indicated Plaintiff was markedly impaired in the following abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to work in coordination with and proximity with others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; to maintain socially-appropriate behavior and to adhere to basic standards of neatness and cleanliness; to be aware of normal hazards and take appropriate precautions; and to set realistic goals or make plans independently of others. Tr. at 465-66. He noted extreme impairment in Plaintiff's ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 466. He indicated he only saw Plaintiff every six months for medication monitoring “[d]ue to financial limitations.” Id.
On July 28, 2015, Plaintiff reported having stopped Seroquel due to sedation, but indicated he was tolerating his other medications well and they were helpful. Tr. at 1136. Dr. Staton recorded normal findings, aside from depressed mood. Id. He continued Celexa 40 mg, Lamictal 200 mg, and Ambien 10 mg. Id.
Dr. Staton noted depressed affect and continued Plaintiff's same medications on February 9, 2016. Tr. at 1137. On May 24, 2016, Plaintiff indicated he had recently been hypomanic and had been charged with assault following a road rage incident. Tr. at 1137. Dr. Staton prescribed Risperdal 1 mg. Id.
On August 4, 2016, Plaintiff reported he had discontinued Risperdal because he did not like its effects. Tr. at 1138. Dr. Staton noted Plaintiff's labile affect, anger, and spending problems. Id. He continued Celexa, Lamictal, and Ambien. Id.
Plaintiff presented to licensed independent social worker Ruth Lyons (“SW Lyons”) for a court-ordered biopsychosocial assessment and counseling on August 30, 2016. Tr. at 1115. SW Lyons assessed persistent mood disorder. Id. Plaintiff followed up with SW Lyons on September 6, 13, 20, and 29. Tr. at 1111-14.
Plaintiff continued to treat with Dr. Staton approximately every three to six months in 2017 and 2018. See Tr. at 1138-40. On October 23, 2018, and October 31, 2019, Dr. Staton completed medical opinion forms in which his responses were similar to those indicated on prior forms. See Tr. at 1141-44, 1145-48. Plaintiff continued to follow up with Dr. Staton in February, August, and October 2019, January and July 2020, and January and April 2021. Tr. at 1149-52.
On April 28, 2021, Dr. Staton completed a mental medical opinion form. Tr. at 1153-58. He stated he treated Plaintiff for 15 to 30 minutes every six months. Tr. at 1153. He identified Plaintiff's impairment as bipolar I disorder, mixed, severe, and non-psychotic. Id. He noted he had treated Plaintiff with medication management that had provided minimal response. Id. He identified Plaintiff's medications as Celexa 40 mg and Ambien 10 mg. Id. He stated Plaintiff's impairment was characterized by mood swings from manic to depressed, spending binges, angry outbursts, inability to relate, and irritability. Id. He identified Plaintiff's symptoms as depressed mood, diminished interest in almost all activities, restlessness, sleep disturbance, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, recurrent, impulsive, and aggressive behavioral outbursts, frequent distractibility, difficulty sustaining attention, difficulty organizing tasks, irritability, disregard for and violation of the rights of others, detachment from social relationships, distrust and suspiciousness of others, and instability of interpersonal relationships. Tr. at 1154. He considered Plaintiff seriously limited in his abilities to: maintain attention for a two-hour segment; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted; respond appropriately to changes in a routine work setting; deal with normal work stress; understand and remember detailed instructions; set goals or make plans independently of others; deal with stress of semiskilled and skilled work; and use public transportation. Tr. at 1155-56. He considered Plaintiff unable to meet competitive standards with respect to abilities to: maintain regular attendance and be punctual within customary, usually strict tolerances; complete a normal workday and workweek without interruption from psychologically-based symptoms; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes; carry out detailed instructions; interact appropriately with the general public; and maintain socially-appropriate behavior. Id. He noted the restrictions were supported by labile mood, anger, irritability, depression, and lack of motivation. Tr. at 1156. He considered Plaintiff likely to develop increased stress based on the following demands of work: speed; precision; complexity; deadlines; working within a schedule; making decisions; completing tasks; working with other people; dealing with the public; dealing with supervisors; being criticized by supervisors; and getting to work regularly. Tr. at 1157. Dr. Staton estimated Plaintiff would likely be absent from work about four days per month due to his impairments. Id. He did not consider Plaintiff capable of managing funds in his own best interest. Tr. at 1158.
C. The ALJ's Findings
In his decision dated June 16, 2021, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on June 30, 2016.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of July 31, 2011,
through his date last insured of June 30, 2016 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: bipolar disorder and personality disorder (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: the claimant could never operate a vehicle as an occupational requirement. The claimant had to avoid concentrated exposure to humidity, extreme cold and extreme heat. The claimant was able to perform simple, routine and repetitive tasks but not a production rate pace (i.e. assembly line work). The claimant could not perform any jobs where the demand levels on the scale of general educational development would exceed a level of 2 as to mathematics, reasoning and language. The claimant was limited to simple work-related decisions as to use of judgment and dealing with change in a routine work setting. He could interact with supervisors on a greater than an incidental basis but less than an occasional basis. The claimant was able to interact with coworkers on an occasional basis but could not perform tandem or teamwork tasks. The claimant could not perform any public contact work. The claimant's time off tasks could be accommodated by normal breaks. The claimant may have required an occasional absence from work that would not exceed on a cumulative and consistent basis up to 1 day per month.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CR 404.1565)
7. The claimant was born on March 14, 1963 and was 53 years old, which is defined as an individual closely approaching advanced age, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from July 31, 2011, the amended alleged onset date, through June 30, 2016, the date last insured (20 CFR 404.1520(g)).Tr. at 494-512.
II. Discussion
The Commissioner argues further administrative proceedings are required for the ALJ to obtain medical expert evidence from a psychologist or psychiatrist, take further action to complete the administrative record, if necessary, and issue a new decision. [ECF No. 12 at 1].
Plaintiff asserts the claim should be remanded for payment of benefits because remand for additional administrative proceedings will further prolong the case.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process 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). Section 423(d)(1)(A) defines disability 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 at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). “The court shall have power to enter, upon the pleadings and transcript of record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” Id.
B. Analysis
The Commissioner argues the court should remand this case for further administrative proceedings because the record does not compel a decision that Plaintiff was disabled. [ECF No. 12-1 at 3-6]. He maintains unresolved factual issues concerning the analysis of Plaintiff's mental RFC require testimony from a medical expert. Id. He relies significantly on the Fourth Circuit's decision in Carr v. Kijakazi, No. 20-2266, 2022 WL 301540 (4th Cir. Feb. 1, 2022), and asserts this case is not the rare one in which remand for an award of benefits is required. Id. at 2-5.
Plaintiff argues the combination of medical opinions, ALJ findings, and vocational testimony legally require he be found disabled. [ECF No. 15 at 2]. He specifically claims a finding of disability was directed based on the ALJ's finding of “marked” limitation in interaction with others and the vocational expert's (“VE's”) testimony that a marked limitation in interacting with supervisors would render him unemployable. He cites Arakas v. Commissioner, SSA, 983 F.3d 83, 111-12 (4th Cir. 2020), and maintains the length of time the case has taken and the number of prior opportunities the Commissioner had to correct the error are significant factors in determining whether a case should be remanded for further administrative proceedings or an award of benefits. Id. at 3-5. He points out he filed his application for benefits in 2011 and his case has been ongoing for a few years longer than Arakas's case. Id. at 5.
The Fourth Circuit has provided some guidance to courts considering whether remand for further administrative proceedings or an award of benefits is the appropriate choice of remedy. In Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974), the court explained it is appropriate for a court to reverse a case without remanding the cause for rehearing “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 useful purpose.” In a subsequent case, the court reversed the Commissioner's decision and remanded the case for an award of benefits where “the ALJ's decision contained numerous fundamental errors and was not supported by substantial evidence” and the plaintiff “presented clear and convincing proof . . . as a matter of law.” Veeney ex rel. Strother v. Sullivan, 973 F.2d 326, 333 (4th Cir. 1992) (citing Sahara Coal Co. v. Director, OWCP, 946 F.2d 554, 558 (7th Cir. 1991) (“If the outcome of a remand is foreordained, we need not order one.”)).
However, in Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013), the Fourth Circuit found the district court had chosen the “wrong remedy” in remanding the case with instruction to award benefits. It explained: “If the reviewing court has no way of evaluating the basis for the ALJ's decision, then ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'” Id. at 295 (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). It concluded the district court had abused its discretion in directing an award of benefits and considered remand for further proceedings appropriate “[g]iven the depth and ambivalence of the medical record and “the ALJ's failure to adequately explain his reasoning.” Id. at 295-96.
More recently, the court issued Carr-an unpublished opinion-in which it affirmed the district court's decision finding remand for further administrative proceedings, as opposed to an award of benefits, to be the appropriate remedy. The court explained:
Only in the “unusual case” will it be clear on review, despite the absence of an explanation from the ALJ, that the record does not contain substantial evidence that could support the ALJ's determination. See Travis X. C., 2019 WL 4597897, at *4 (quoting Seavey v. Barnhart, 276 F.3d 1, 10-12 (1st Cir. 2001)). And it is only in those cases-where it is clear that there is no account on which substantial evidence would support a denial of coverage- that a court may exercise its discretion to direct the award of benefits as a remedy for a failure to explain. See Radford, 734 F.3d at 296 (vacating award of benefits in light of “ambivalence” of record and “conflicting evidence” as to disability); see also, e.g., Arakas v. Comm'r Soc. Sec. Admin., 983 F.3d 83, 111 (4th Cir. 2020) (explaining that awarding benefits without remand may be appropriate “where the record clearly establishes the claimant's entitlement to benefits and another ALJ hearing on remand would serve no useful purpose”).Carr, 2022 WL 301540, at *4. The court further noted the record contained conflicting evidence, as two experts had reached differing conclusions as to Carr's ability to work without special accommodations. Id. at 5. It cautioned against directing awards of benefits for equitable reasons, such as the length of time the case had “dragged on,” multiple prior remands, and concerns over the claimant's health and ability to participate in further proceedings, in the “absence of a finding that a claimant is indeed disabled.” Id. (citing Radford, 734 F.3d at 296 (holding that district court abused its discretion in directing the award of benefits based in part on length of the proceedings); Bush v. Shalala, 94 F.3d 40, 46 (2d Cir. 1996) (“[A]bsent a finding that the claimant was actually disabled, delay alone is an insufficient basis on which to remand for benefits.”)).
Despite its caution against awarding benefits in Radford and Carr, the Fourth Circuit has issued three recent decisions finding remand for an award of benefits to be the proper remedy. In Arakas, 983 F.3d at 112, the court found that once the evidence was properly credited, “it bec[ame] evident that Arakas could not sustain any type of full-time work, including her past work,” and held “that the record as a whole clearly establishe[d] Arakas's disability and thus her entitlement to disability benefits.” It further explained:
Given our finding of Arakas's disability, remanding the case for yet another ALJ hearing would be not only pointless, but also just unjust. Despite having a meritorious claim, Arakas has been denied disability benefits and forced to undergo costly litigation for ten years, solely because of the agency's errors. After multiple denials and reconsideration requests, two ALJ hearings, and two federal suits, we simply cannot delay justice any longer. Therefore, we reverse and remand the case to the Commissioner for a calculation of disability benefits.Id.
In Bilotta v. Saul, 850 Fed.Appx. 162, 171 (4th Cir. 2021), the court found the record clearly established that the claimant was illiterate and limited to light work during the relevant period, which rendered him disabled. It further noted: “Moreover, despite his meritorious claim, Bilotta has been waiting for his disability benefits for almost ten years, during which he has endured three ALJ hearings.” Id. It awarded the claimant “his long overdue benefits” because “remanding the case for yet another ALJ hearing would be not only pointless, but also unjust.” Id. (quoting Arakas, 983 F.3d at 111).
In Shelley C. v. Commissioner of Social Security Administration, 61 F.4th 341, 368 (4th Cir. 2023), the court found the ALJ “erred in assigning ‘little weight' to [the long-time treating psychiatrist's] opinion and in disregarding [the claimant's] subjective complaints.” It “reversed the Commissioner's decision and remand[ed] with instructions to grant disability benefits,” as “substantial evidence in the record clearly establishe[d]” the claimant's disability and “remanding for a rehearing would only ‘delay justice.'” Id. at 369.
In light of the foregoing, the undersigned has considered whether remand for further administrative proceedings would serve any useful purpose and whether substantial evidence “clearly establishes” that Plaintiff is disabled.
The Commissioner argues that despite the expiration of Plaintiff's disability insured status on June 30, 2016, further administrative proceedings are required to solicit an expert medical opinion from a psychologist or psychiatrist. [ECF No. 12 at 1]. He maintains “the claimant's subjective complaints would be better understood and evaluated by a medical professional who has reviewed the record.” [ECF No. 12-1 at 4]. However, he acknowledges that the record contains opinions from a consultative examiner, who examined Plaintiff, and non-examining state agency consultants, who reviewed the record, prior to the DLI. Id. at 3. The record also contains testimony from five hearings, opinions from Plaintiff's treating psychiatrist, and observations from the treating psychiatrist and other examining providers as to his functioning prior to and following his DLI. The Commissioner has failed to present a persuasive argument that a remand for the purpose of obtaining testimony from a medical expert would serve a useful purpose, as he has not explained, and the undersigned cannot discern, how a non-examining medical expert's opinion rendered more than seven-and-a-half-years after Plaintiff's DLI would resolve any specific issue of contention or reasonably serve as more compelling evidence than that already included in the record.
The undersigned issued a text order directing Plaintiff to file a response to the Commissioner's motion to remand addressing the choice of remedy. [ECF. No. 13]. Plaintiff filed a response on December 19, 2023, and the Commissioner had until December 27, 2023 to file a reply. [ECF No. 15]. The Commissioner did not file a reply.
Plaintiff argues the record clearly established he was disabled because the evidence showed his mental impairments would not allow for sufficient interaction with others to perform job-related tasks. [ECF Nos. 11 at 21-26 and 15 at 2-3]. He points out the ALJ found he had a marked limitation in interacting with others and two VEs testified a “substantial loss of ability to respond appropriately to supervision and co-workers” would preclude all work. [ECF No. 11 at 23 (citing Tr. at 49, 577)]].
Regulatory guidance as to the ability to interact with others is found in section 12.00(E)(2) of the introduction to the listings for mental disorders. It provides:
This area of mental functioning refers to the abilities to relate to and work with supervisors, co-workers, and the public. Examples include: cooperating with others; asking for help when needed; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness. These examples illustrate the nature of this area of mental functioning. We do not require documentation of all of the examples.20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(E)(2).
Several medical professionals opined as to Plaintiff's ability to interact with others in a work setting. Dr. Von stated Plaintiff was “[n]ot suited to work w/ the public,” “may not be responsive to supervisory feedback” based on his reported difficulty with authority, and was “best suited to solitary-type positions” that would limit the need to interact with coworkers. Tr. at 81. She considered Plaintiff moderately limited in his abilities to: work in coordination with or in proximity to others without being distracted by them; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 80-81.
Dr. Neboschick indicated Plaintiff “[w]ork[ed] best in uncrowded settings that do not involve direct, ongoing interaction with the public.” Tr. at 93. He assessed moderate limitations in Plaintiff's abilities to work in coordination with or proximity to others without being distracted by them; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; and to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 92-93.
Dr. Ritz surmised that Plaintiff's “anger and irritability ha[d] the possibility of intruding in his ability to perform in a work-related setting particularly if there was a job that would involve frequent interaction with co-workers or the public.” Tr. at 397. He felt Plaintiff “might be able to handle an unskilled more solitary type work setting.” Id.
On September 4, 2012, Dr. Staton indicated Plaintiff was markedly impaired in his abilities to: work in coordination with and proximity with others without being distracted by them; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 465-66. On March 24, 2015, he indicated Plaintiff was markedly impaired in the following abilities: to work in coordination with and proximity with others without being distracted by them; to interact appropriately with the general public; to accept instructions and respond appropriately to criticism from supervisors; and to maintain socially-appropriate behavior and to adhere to basic standards of neatness and cleanliness. Tr. at 465-66. He noted extreme impairment in Plaintiff's ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. at 466. Dr. Staton reported similar responses to forms on October 23, 2018, and October 31, 2019. See Tr. at 1141-44, 1145-48.
On April 28, 2021, Dr. Staton identified Plaintiff's symptoms as depressed mood, diminished interest in almost all activities, restlessness, sleep disturbance, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, recurrent, impulsive, and aggressive behavioral outbursts, frequent distractibility, difficulty sustaining attention, difficulty organizing tasks, irritability, disregard for and violation of the rights of others, detachment from social relationships, distrust and suspiciousness of others, and instability of interpersonal relationships. Tr. at 1154. He considered Plaintiff seriously limited in his abilities to: work in coordination with or proximity to others without being unduly distracted; respond appropriately to changes in a routine work setting; and deal with normal work stress. Tr. at 1155-56. He considered Plaintiff unable to meet competitive standards with respect to abilities to: accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes; interact appropriately with the general public; and maintain socially-appropriate behavior. Id. He noted the restrictions were supported by labile mood, anger, irritability, depression, and lack of motivation. Tr. at 1156. He considered Plaintiff likely to develop increased stress in response to working with other people, dealing with the public, dealing with supervisors, and being criticized by supervisors, in addition to other work demands and expectations. Tr. at 1157.
At the first hearing, VE Dixon Pearsall, Ph.D., testified the marked limitations identified by Dr. Staton would eliminate employment. Tr. at 69. He explained the GAF score of 52 provided by Dr. Ritz was “indicative of an inability to work in a competitive environment.” Id. He stated “the inability to work with the public, inability to work with supervisors, [and] significant authority issues” cited by Dr. Von “would not eliminate all work but it would certainly so diminish any work at any exertion or skill level to make it functionally impossible to work.” Tr. at 69-70. He further expounded: “And certainly Dr. [Von's] comments in combination multiple or cumulative with Dr. Ritz and Dr. Staton's opinion would render Mr. R[] unable to work with pretty much all standards that I'm aware of regarding vocational assessment and work capacity.” Tr. at 70.
During the hearing on May 6, 2015, the ALJ asked VE Tonetta Watson-Coleman to consider an individual of Plaintiffs vocational profile who was limited as follows: understanding, remembering, and carrying out simple instructions; unable to work in close proximity or in coordination with coworkers; occasional interaction with supervisors; no ongoing public interaction; and “substantial loss of ability to respond appropriately to supervision and co-workers.” Tr. at 48-49. The VE testified the individual could perform some jobs with the other restrictions, but would be unable to perform any jobs based on his “substantial loss of ability to respond appropriately to supervision and co-workers.” Id.
During the most recent hearing, the ALJ asked VE Stephen Schnacke if a restriction to no greater than incidental contact with supervisors, in addition to other restrictions included in the hypothetical question, would eliminate all jobs. Tr. at 572-73. The VE testified it would. Tr. at 573. The ALJ subsequently asked the following:
If I was to find that this hypothetical individual had what we would call a marked loss, meaning a substantial loss in the ability to perform even just one of the basic mental demands for unskilled work which requires understanding, remembering, carrying out simple instructions, using judgment, responding appropriate to supervisors, coworkers, usual work situations, dealing with change in a routine work setting, is that a marked loss in even just one, meaning a substantial loss in just one of the basic mental demands for unskilled work would that also result in the elimination of all the work you've identified to this point as well as all work in the national economy and render that individual unemployable?Tr. at 576-77.
The VE responded: “In a very meaningful sort of a way it does, Your Honor. And we almost got to that in the-in the earlier hypotheticals when you said they couldn't even have incidental interaction with their supervisors. That basically says they can't deal with anybody at the jobsite, you know.” Tr. at 577.
After asking a few follow up questions, the ALJ then stated: “Okay. And it doesn't have to be all of those. If just-any one of those focused areas of demand would-with a substantial loss, a marked loss defined as a substantial loss, that individual becomes unemployable?” The VE responded in the affirmative.
In the most recent decision, the ALJ found Plaintiff had marked limitation in interacting with others based on his “subjective reports of angermanagement problems, road rage and difficulty maintaining employment due to his social issues.” Tr. at 496. The introduction to Listing 12.00 provides that a marked limitation means “[y]our functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.” 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(F)(2)(d). Thus, the assessment of a marked limitation in interacting with others would result in there being no jobs available to Plaintiff in the national economy, according to the VEs.
Given the evidence of record and specifically the medical opinions, testimony of three VEs, and the ALJ's finding of a marked limitation in interacting with others, the undersigned is compelled to find substantial evidence “clearly establishes” that Plaintiff is disabled within the meaning of the Social Security Act.
Plaintiff's claim has been pending for over 12 years. He has appeared for five hearings before three different ALJs and had his case reviewed and remanded by the Appeals Council on four prior occasions and by this court on one prior occasion. Although the undersigned recognizes that remand for an award of benefits should not be ordered based merely on the length of time a case has been pending or a history of prior remands, where, as here, the evidence clearly establishes the claimant's disability, it would be unjust to further delay resolution of the matter by requiring further administrative proceedings. See Arakas, 983 F.3d at 112. Accordingly, the undersigned recommends the court reverse the Commissioner's final decision and remand the case for an award of benefits.
III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for a calculation of benefits.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and 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
901 Richland Street
Columbia, South Carolina 29201
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).