Opinion
2:21-cv-04099-DCC-MGB
11-08-2022
TIMOTHY ALEXANDER JOHNSON, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY0QRDON BAKER UNITED STATES MAGISTRATE JUDGE
Plaintiff Timothy Alexander Johnson (“Plaintiff”), brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disabled Adult Child (“DAC”) benefits and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends the court reverse the Commissioner's decision and remand the case for further proceedings.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff initially filed applications for DACon December 6, 2019, and for SSI on November 8, 2019, alleging a disability onset date of August 21, 2019. (R. at 12, 65, 81, 97, 100, 101, 131.) Plaintiff was nineteen years old on his alleged disability onset date. (R. at 19, 65, 81, 101, 131.) Plaintiff claimed disability due to autism and asthma. (R. at 65, 81, 101-02, 131-32.) Plaintiff has a high school education and no past relevant work. (R. at 19.) His applications were denied initially and on reconsideration. (R. at 12, 91, 100, 161-62.) After a hearing before an Administrative Law Judge (“ALJ”) on July 8, 2021, the ALJ issued a decision on August 13, 2021, in which the ALJ found that Plaintiff was not disabled. (R. at 12-20.) The Appeals Council denied Plaintiff's request for review, (R. at 1-5), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
An adult disabled before age twenty-two may be eligible for child's benefits if a parent is deceased or starts receiving old-age or disability benefits. The agency considers this a child's benefit because it is paid on a parent's Social Security earnings record. See 20 C.F.R. § 404.350. Here, it appears Plaintiff's father is disabled. (R. at 54.)
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) Born on August 3, 2000, the claimant had not attained age 22 as of August 21, 2019, the alleged onset date (20 CFR 404.102, 416.120(c)(4) and 404.350(a)(5)).
(2) The claimant has not engaged in substantial gainful activity since August 21, 2019, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: autism, asthma, and hand tremors (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, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: that he can frequently handle; he can occasionally finger bilaterally with the hands; he should avoid moderate exposure to workplace hazards, pulmonary irritants, as well as concentrated exposure to extreme temperatures and humidity; he can perform and sustain simple, routine, and repetitive tasks of no more than SVP2 with no more than reasoning level of 2; he can perform nonproduction-pace work; he can frequently interact with supervisors and occasionally interact with coworkers and the general public; and he would be off task no more than 10% of the workday with absences of no more than 1 day every 2 months due to [his] impairments.
(6) The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on August 3, 2000 and was 19 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from August 21, 2019, through the date of this decision (20 CFR 404.350(a)(5), 404.1520(g) and 416.920(g)).(R. at 14-20.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). The Act allows a claimant to receive DAC benefits where the claimant can show that he is the unmarried child of an individual who was entitled to old-age or disability benefits, that he was dependent on the insured individual, that he is eighteen years or older, and that he has a disability that began before he became twenty-two years old. 20 C.F.R. § 404.350(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. “Disability” is defined in the Act as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. 20 C.F.R. § 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 416.920(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant-considering his age, education, work experience, and residual functional capacity-can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant, 699 F.2d at 191; Pass, 65 F.3d at 1203; Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the Commissioner supported his findings with substantial evidence and applied the correct law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). In reviewing for substantial evidence, the court does not undertake to “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff asserts that the ALJ's decision is not supported by substantial evidence. (Dkt. No.10.) Specifically, Plaintiff contends that the ALJ (1) improperly analyzed whether Plaintiff's Autism Spectrum Disorder met or medically equaled Listing 12.10, and (2) erred in formulating Plaintiff's residual functional capacity (“RFC”) because she incorrectly discounted certain medical opinions. (Id.) The Commissioner responds that substantial evidence supports the ALJ's finding that Plaintiff's limitations do not preclude all work activity. (Dkt. No. 11.) For the reasons set forth in further detail below, the undersigned recommends that the court reverse the Commissioner's decision and remand the case for further administrative proceedings.
I. The ALJ's Decision
The ALJ issued a nine-page decision, in which she considered Plaintiff's alleged impairments. (R. at 12-20.) The ALJ began by explaining that Plaintiff was under the age of twenty-two at his alleged onset date and that he had not engaged in substantial gainful activity since that date. (R. at 14.) The ALJ then stated that Plaintiff's severe impairments included autism, asthma, and hand tremors. (R. at 15.)
Because Plaintiff's brief argues only that the ALJ erred in evaluating Plaintiff's autism, the undersigned focuses the discussion on this impairment. (See generally Dkt. No. 10.)
The ALJ next determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (R. at 15.) Specifically, the ALJ considered whether Plaintiff's autism met or medically equaled the criteria of listing 12.10. (R. at 15.) The ALJ explained that Plaintiff needed one extreme limitation or two marked limitations in a broad area of functioning to satisfy the “paragraph B” criteria of this listing. (R. at 15.) The ALJ concluded that Plaintiff had moderate limitations in all areas of functioning, stating:
In understanding, remembering or applying information, the claimant has a moderate limitation. In his Function Report submitted to the Social Security Administration, he indicated that he needs reminders to take his medication and to take care of personal needs and grooming. (Exhibit 5E). He also noted that he needs assistance to pay bills, count change, handle a savings account, and use a checkbook. The claimant indicated that he has problems with his memory and ability to understand.
In interacting with others, the claimant has a moderate limitation. He indicated that he spends time with friends and family. (Exhibit 6E). He regularly goes to church, the grocery store, and doctors' appointments. He noted problems getting along with family, friends, neighbors, or others.
With regard to concentrating, persisting or maintaining pace, the claimant has a moderate limitation. He noted problems with his concentration and ability to complete tasks. (Exhibit 6E). He stated that he can only pay attention for “a short while.”
As for adapting or managing oneself, the claimant has experienced a moderate limitation. He is independent in his personal care. (Exhibit 6E). He occasionally needs help preparing meals. He does not follow written instructions very well. He can occasionally follow spoken instructions. He does not handle stress or changes in routine very well.(R. at 15.) Because the ALJ concluded that Plaintiff did not have one extreme or two marked limitations, the ALJ found that Plaintiff's impairments did not meet or medically equal the criteria of Listing 12.10. (R. at 16.)
The ALJ moved on to evaluate Plaintiff's RFC. (R. at 16-19.) In doing so, the ALJ noted that she had considered all of Plaintiff's symptoms and the extent to which those symptoms could reasonably be accepted as consistent with the objective medical and other evidence in the record. (R. at 16.) The ALJ also noted that she considered the medical opinion(s) and prior administrative medical finding(s) in accordance with the regulations. (R. at 16.) After recounting the requisite two-step process for evaluating Plaintiff's RFC, the ALJ noted Plaintiff's hearing testimony. (R. at 16.) She explained that Plaintiff was in special education classes throughout school, that he attended vocational rehabilitation but did not complete the program, and that he believes he cannot work because he is easily stressed out, does not understand things well, and is easily frustrated. (R. at 16-17.) She mentioned that Plaintiff typically spends the day helping his mom around the house, running errands, and watching television. (R. at 17.) The ALJ then noted that Plaintiff's mother testified that Plaintiff needs frequent breaks. (R. at 17.)
The ALJ determined that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that his statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely consistent with the medical evidence and other evidence in the record. (R. at 17.) The ALJ then recounted evidence in the record to support this determination. (R. at 17-18.) Specifically, the ALJ noted that Plaintiff was referred to the South Carolina Department of Disabilities and Special Needs Eligibility Division in August of 2019 “to determine his eligibility under the Autism Spectrum Disorder classification for purposes of DDSN services” and that Plaintiff scored a fourteen on his diagnostic “ADOS-2” test, which was well over the cut-off score of seven. (R. at 18.) Nonetheless, the ALJ explained that the record demonstrated “significant repetitive and stereotyped behaviors, as well as significant deficits within the areas of social emotional reciprocity” and that Ashley Wieszkowiak, Ed.S., NCSP, found Plaintiff to meet the diagnostic criteria for autism. (R. at 17.)
The ALJ noted Plaintiff's March 2020 psychological evaluation with Dr. Mark McClain. (R. at 17.) At this evaluation, Dr. McClain diagnosed Plaintiff with autism, but found that Plaintiff understood the spoken word and could accurately follow three-step directions. (R. at 17-18.) Further, Plaintiff was cooperative, able to establish rapport, responded when questions were posed to him, and did not report depressed mood or anxiety. (R. at 18.) His thought processes were considered logical, coherent, and organized. (R. at 18.) He could repeat correctly three words immediately after their presentation and could repeat two of three words correctly after a five- minute delay. (R. at 18.) He scored twenty-five out of thirty possible points on the Folstein Mini Mental State Examination. (R. at 18.)
The ALJ then considered the medical opinion evidence, stating:
Mr. Phillips submitted a medical source statement dated February 2020 in which he noted mild impairment in memory and mild inattentiveness. (Exhibit 10F). He further indicated that the claimant was only slightly overactive, anxious, agitated, oppositional, and withdrawn. The undersigned is persuaded by Mr. Phillips's opinion as it is consistent with the claimant's presentation upon examination and is well supported by the weight of the evidence of record.
Dr. McClain indicated that the claimant would benefit from a structured and supportive work setting with a job coach in place. (Exhibit 14F). He added that the claimant exhibited problems with pace and performance in his school-based vocational program and predicted that he would have significant difficulty understanding and focusing on more complex work-related tasks. The undersigned is only partially persuaded by Dr. McClain's opinions as the evidence demonstrates that the claimant is independent in his activities of daily living, has never tried working, and has normal cognitive and low average intelligence. Likewise, the undersigned has accommodated the claimant's impairments by limiting him to simple, routine, and repetitive tasks of no more than SVP2 and non production-pace work.
The residual functional capacity conclusions reached by the physicians employed by the State Disability Determination Services also found that the claimant was not disabled albeit using a different rationale. Although these physicians were nonexamining, and therefore their opinions do not as a general matter deserve as much weight as those of examining or treating physicians, these opinions do deserve some weight as they are supported by the objective medical evidence of record. The physical residual functional capacities submitted by Dr. Isabella McCall and Dr. James Upchurch concluded that the claimant is able to perform work related activity at all exertional levels over an 8-hour workday, 5 days per week, with additional limitations. (Exhibits 1A, 2A, 7A, and 8A). Likewise, the mental residual functional capacities submitted by Dr. Kendra Werden and Dr. Ruth Ann Lyman concluded that the claimant is able to understand and remember simple instructions and likely some low-level detailed instructions; he is capable of performing simple, routine tasks for at least 2-hour periods without supervision; he is capable of appropriate social interaction with coworkers and supervisors, but would do best in an environment with low social demands and that does not require ongoing public contact; and he is able to adapt to routine changes and respond to directions from others. The undersigned is persuaded by the opinions of Drs. McCall, Upchurch, Werden, and Lyman as their opinions are consistent with the claimant's presentation upon examination and are well supported by the weight of the evidence of record. As such, the undersigned has accommodated the limitations in the
residual functional capacity by providing for certain social and environmental restrictions.(R. at 18-19.)
Before concluding her RFC evaluation, the ALJ mentioned that she considered the opinions and testimony of Plaintiff mother. (R. at 19.) The ALJ explained that these statements provided some insight into the severity of Plaintiff's impairments and their impact on his ability to function, but that she was not persuaded by them because “they are inconsistent with the claimant's presentation upon examination and are unsupported by the weight of the evidence of record.” (R. at 19.) The ALJ ultimately concluded that even after giving Plaintiff the benefit of the doubt and reducing his RFC to include all limitations described, the record did not support Plaintiff's allegations that he is incapable of all work activity. (R. at 19.)
Thus, after noting that Plaintiff has no past relevant work and is a younger individual with a high school education, the ALJ found that “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” (R. at 19.) For this reason, the ALJ concluded that Plaintiff was not under a disability from August 21, 2019 through the date of her decision. (R. at 20.)
II. Listing 12.10
Plaintiff first contends that the ALJ incorrectly concluded that Plaintiff had only moderate limitations in all four “paragraph B” areas and, therefore, that Plaintiff's impairments did not meet or medically equal the criteria of Listing 12.10. (Dkt. No. 10 at 9.) The Commissioner counters that the ALJ supported these conclusions with substantial evidence and argues that an autism diagnosis, without more, is insufficient to demonstrate disability. (Dkt. No. 11 at 15.) The undersigned considers these arguments, below.
A. Legal Standard
The Listing of Impairments “is a catalog of various disabilities, which are defined by ‘specific medical signs, symptoms, or laboratory test results.'” Bennett v. Sullivan, 917 F.2d 157, 160 (4th Cir. 1990) (quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). A claimant's impairment meets a Listing if “it satisfies all of the criteria of that listing, including any relevant criteria in the introduction, and meets the duration requirement.” 20 C.F.R. § 416.925(c)(3). Where a claimant's impairment is not described in the Listing of Impairments, the claimant may establish equivalency if the findings related to such impairment are at least of equal medical significance to those of a closely analogous listed impairment. 20 C.F.R. § 416.926(b)(2). A claimant whose impairment meets or equals the criteria of a listing is automatically entitled to disability benefits, regardless of his actual ability to work. 20 C.F.R. § 416.920(d).
To determine whether a claimant's impairments meet or equal a listed impairment at Step Three of the sequential analysis, the ALJ must identify the relevant listed impairments and compare the listing criteria with the evidence of the claimant's symptoms. See Peck v. Colvin, No. 8:12-cv-02594-DCN, 2014 WL 994925, at *12 (D.S.C. Mar. 13, 2014) (stating that without identifying the relevant listings and comparing the claimant's symptoms to the listing criteria, it is simply impossible to tell whether there was substantial evidence to support the determination). “In cases where there is ‘ample factual support in the record' for a particular listing, the ALJ must provide a full analysis to determine whether the claimant's impairment meets or equals the listing.” See id. (citing Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986)).
B. Analysis
As the ALJ correctly notes, Plaintiff's impairments must result in one extreme limitation or two marked limitations in the areas of mental functioning in order to satisfy the “paragraph B” criteria of Listing 12.10. See 20 C.F.R. Pt. 404, Subpt. P, App'x. 1, § 12.10. The areas of mental functioning include: (1) difficulties in understanding, remembering, or applying information; (2) difficulties in interacting with others; (3) difficulties in maintaining concentration, persistence, or pace; or (4) difficulties in adapting or managing oneself. Id. A “marked limitation” occurs when “functioning in [an] area independently, appropriately, effectively, and on a sustained basis is seriously limited.” Id. at § 12.00(F)(2)(d). An “extreme limitation” occurs when a claimant is “not able to function in this area independently, appropriately, effectively, and on a sustained basis.” Id. at § 12.00(F)(2)(e). Here, the ALJ concluded that Plaintiff had “moderate” limitations in each of the four areas of mental functioning. (R. at 15.)
Plaintiff argues that the ALJ did not support this conclusion with substantial evidence and, in fact, ignored evidence that contradicted her conclusion. (Dkt. No. 10 at 9-12.) For example, Plaintiff contends that the ALJ's conclusion that he was only moderately limited in his ability to understand, remember, and apply information is incongruent with the evidence in the record that he does not have a driver's license, does not drive, does not perform household chores without assistance, and required full-time special education services in school. (Id. at 10.) Similarly, Plaintiff contends that the ALJ ignored evidence indicating that Plaintiff was more than moderately limited in interacting with others. (Id. at 10-11.) As support, Plaintiff notes that:
the evidence indicates that [Plaintiff] had great difficulty responding to social cues, and keeping interactions free of excessive irritability. For example, during his vocational training in school, he was noted to have communication needs (TR 358361). It was noted that his impulsive behavior and inability to follow directions impacted his academic achievement. He was working as a greeter in his internship and exhibited professional communication in eight of 12 observed interactions. During his exam with DDSN, he was noted to rarely speak, and only when asked a specific question (TR 405). His mother reported he had difficulty recognizing the facial expressions of others. He was observed to use poorly modulated eye contact to initiate, terminate, or regulate social interactions, and his responses were limited and socially awkward (TR 408). There was no social chat or give-and-take. Dr. McClain noted that his vocabulary and communication skills were below average
and he exhibited an articulation weakness that made it difficult to understand his words at times (TR 678).(Id. at 10-11.) Plaintiff argues that the ALJ was required to acknowledge this evidence and resolve any conflicts between the evidence and her conclusion that Plaintiff was only moderately limited in this area of mental functioning. (Id. at 11.) Plaintiff further states “[t]he ALJ's brief observation that Mr. Johnson could leave the house and accompany his family members a variety of places was not a sufficient discussion or consideration of his functioning in [t]his realm.” (Id.) With respect to Plaintiff's ability to concentrate and adapt, Plaintiff asserts that the ALJ declined to consider Dr. McClain's assessment that Plaintiff would perform best with a job coach in place. (Id.) Plaintiff further asserts that the evidence to which the ALJ cited in support of her determination that Plaintiff was moderately limited-a function report completed by Plaintiff's mother-actually contradicted the ALJ's conclusion. (Id.)
The Commissioner argues that the ALJ's evaluation of the “paragraph B” criteria balanced the record as a whole against Plaintiff's subjective complaints. (Dkt. No. 11 at 13.) The undersigned agrees with the Commissioner. (R. at 15, 279-98.) While the ALJ cited exclusively to function reports from Plaintiff and his mother when supporting her analysis of Plaintiff's mental impairments, her decision makes clear that she considered the record evidence, including the evidence mentioned above. (R. at 15-18, citing to Exhibits 1A, 2A, 7A, 8A, 5E, 3F, 7F, 8F, 10F, 12F, 14F.)
It is, generally, the responsibility of the ALJ to decide the legal question of whether a listing is met by a claimant's impairments. See SSR 96-6p. In this case, the ALJ followed the appropriate procedure for explaining her listing determination. In other words, she set forth the criteria for meeting Listing 12.10, compared the Listing 12.10 criteria with Plaintiff's symptoms, and stated her reasons for finding that Plaintiff's mental impairments did not meet the criteria of Listing 12.10. See Cook, 783 F.2d at 1173. The ALJ provided sufficient discussion of the medical evidence throughout her decision to allow the court to understand her reasoning at Step Three and to determine that her Step Three conclusions are supported by substantial evidence. See McCarty v. Apfel, 28 Fed.Appx. 277, 279-80 (4th Cir. 2002) (finding that “the ALJ need only review medical evidence once in his decision” and therefore, the ALJ's thorough analysis of the medical evidence at step four was sufficient to determine whether claimant satisfied Step Three).
Notably, Plaintiff does not point the court to medical evidence or opinions that clearly support more limited mental functions, and the record does not contain medical opinions indicating that Plaintiff had two marked or one extreme limitation in any of the “paragraph B” criteria. Indeed, Dr. McClain's psychological evaluation does not state that Plaintiff is more than moderately impaired in any area of mental functioning. (R. at 677-80.)
Plaintiff otherwise cites to subjective testimony that he contends should be interpreted or credited differently than it is in the ALJ's decision. (Dkt. No. 10 at 9-12.) However, this court does not make credibility determinations, nor resolve conflicts in the evidence. See Lemon v. Saul, No. 5:18-cv-2910-KDW, 2020 WL 428193, at *9 (D.S.C. Jan. 28, 2020) (considering the same issue and noting “[t]he court's function is not to try these cases de novo or resolve mere conflicts in the evidence. Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence-that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” (internal quotation marks and citations omitted)).
III. Opinion Evidence
Plaintiff next contends that the ALJ also erred at the fourth step of the sequential evaluation process and that his RFC is not supported by substantial evidence. (Dkt. No. 10.) More specifically,
Plaintiff contends that the ALJ improperly discounted opinion evidence from Ms. Wieszkowiak and Dr. McClain. (Id. at 12-13.) The undersigned considers this argument, below.
A. Legal Standard
“[R]esidual functional capacity is the most [a claimant] can still do despite [his or her] limitations.” Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230 (4th Cir. 2011) (quoting 20 C.F.R. §§ 404.1545(a)). “The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis ....” SSR 96-8p (S.S.A. July 2, 1996); accord Mascio, 780 F.3d at 636 (internal quotations omitted). The RFC must be based upon all relevant medical evidence and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3). The ALJ “must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim.” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). “Even if legitimate reasons exist for rejecting or discounting certain evidence, the [ALJ] cannot do so for no reason or for the wrong reason.” Id.
With respect to opinion evidence, the ALJ must consider each medical opinion and prior administrative medical finding in the record when evaluating a claimant's RFC. 20 C.F.R. §§ 404.1520c, 416.920c (“We will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record.”). For benefits applications filed on or after March 27, 2017 (such as Plaintiff's), the SSA has enacted substantial revisions to the regulations governing the evaluation of opinion evidence and prior administrative medical findings. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new regulations, ALJs need not assign an evidentiary weight to medical opinions or prior administrative findings and need not give special deference to treating source opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (providing that ALJs “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [a claimant's] medical sources”). Instead, ALJs consider medical opinions and prior administrative findings using five factors: (1) supportability; (2) consistency; (3) the medical source's relationship with the claimant; (4) the medical source's specialization; and (5) other factors, such as the medical source's familiarity with the other evidence in the claim or understanding of the disability program's policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c).
20 C.F.R. § 416.920c has replaced the “Treating Physician Rule” for claims filed after March 27, 2017; see also Marshall v. Berryhill, Case No. 16-cv-00666-BAS-PCL, 2017 WL 2060658, at *3 n.4 (S.D. Cal. May 12, 2017). Under the Treating Physician Rule, a treating physician “opinion must be given controlling weight unless it is based on medically unacceptable clinical or laboratory diagnostic techniques or is contradicted by the other substantial evidence in the record.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 107 (4th Cir. 2020) (emphasis in original).
Supportability and consistency are the most important of the factors, and the ALJ must explicitly address how she considered these factors in evaluating each medical opinion and prior administrative finding. 20 C.F.R. §§ 404.1520c(a), (b)(2), 416.920c(a), (b)(2). The ALJ is not required to explain the consideration of the other three factors. 20 C.F.R. §§ 404.1520c(b)(2), 426.920c(b)(2). For supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are,” the “more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). Similarly, for consistency, “[t]he more consistent a medical opinion(s) or prior administrative medical findings(s) is with evidence from other medical sources and nonmedical sources,” the “more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
Although these amended regulations do away with the idea of assigning “weight” to medical opinions, the ALJ's reasons for finding the opinion of a medical source unpersuasive still must be supported by substantial evidence. The Fourth Circuit has repeatedly stated that “[a]n ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis, 858 F.3d at 869 (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)); see also Arakas, 983 F.3d at 98. Moreover, “an ALJ continues to have an obligation to include a narrative discussion describing how the evidence supports each conclusion.” Pearce v. Saul, No. CV 0:20-1623-PJG, 2020 WL 7585915, at *3 (D.S.C. Dec. 22, 2020) (internal quotations omitted); see also SSR 96-8p, 1996 WL 374184 at *7 (S.S.A. July 2, 1996) (“The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).”). Similarly, remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated. Mascio, 780 F.3d 636-37. The ALJ must “build an accurate and logical bridge from the evidence to [her] conclusion.” Monroe, 826 F.3d at 189 (citation omitted).
B. Analysis
Plaintiff argues that the ALJ improperly discounted opinion evidence provided by Ms. Wieszkowiak and Dr. McClain. (Dkt. No. 10 at 12.) He argues that the ALJ did not explain how or why such evidence was unsupported or inconsistent with the record. (Id.) He therefore contends that the ALJ's decision is not supported by substantial evidence and must be remanded. (Id. at 13.) The undersigned agrees.
In evaluating Dr. McClain's opinion, the ALJ stated only:
Dr. McClain indicated that the claimant would benefit from a structured and supportive work setting with a job coach in place. (Exhibit 14F). He added that the claimant exhibited problems with pace and performance in his school-based vocational program and predicted that he would have significant difficulty understanding and focusing on more complex work-related tasks. The undersigned is only partially persuaded by Dr. McClain's opinions as the evidence demonstrates that the claimant is independent in his activities of daily living, has never tried working, and has normal cognitive and low average intelligence. Likewise, the undersigned has accommodated the claimant's impairments by limiting him to simple, routine, and repetitive tasks of no more than SVP2 and non production-pace work.(R. at 18.) This analysis is flawed. Indeed, the ALJ makes no mention of supportability or consistency. (R. at 18.) The Commissioner attempts to argue that:
the ALJ highlighted that despite the relatively benign findings in all four categories of functioning, Dr. McClain nevertheless suggested that Plaintiff would benefit with the assistance of a job coach (Tr. 18, citing Tr. 679-80). The ALJ recognized that Dr. McClain's suggestion that Plaintiff would benefit from a job coach was not supported by his own findings that Plaintiff could accurately follow instructions, was cooperative, had no cognitive impairments, and could maintain concentration, persistence, or pace to perform simple household chores (Tr. 18, citing Tr. 678-80). In terms of consistency, the ALJ explained that, although Dr. McClain found that Plaintiff would benefit from a job coach, the record showed that Plaintiff was independent in all of his activities of daily living, had never had a job, exhibited normal cognition, and had low average intelligence (Tr. 18, comparing Tr. 679-80 with Tr. 405, 502, 510, 517, 677, 679).(Dkt. No. 11 at 18.) However, these explanations are simply not present in the ALJ's limited discussion of Dr. McCain's opinion. (R. at 12-20.) Rather, this is the Commissioner's post hoc reasoning for the ALJ's conclusion. (Dkt. No. 11 at 18.) Post hoc rationalizations do not constitute substantial evidence. See Brown v. Kijakazi, No. 4:21-cv-04051-TER, 2022 WL 12350625, at *8 (D.S.C. Oct. 21, 2022) (noting that the court cannot consider post-hoc reasoning relating to ALJ's assessment of opinion evidence).
Indeed, the undersigned cannot logically make the connections that the Commissioner attempts here. A plain reading of the ALJ's opinion leaves the undersigned guessing as to why the ALJ discounted portions of Dr. McCain's opinion and accepted others. Thus, the ALJ has failed to “build an accurate and logical bridge” from the evidence to her conclusions, warranting remand. See Monroe, 826 F.3d at 189.
As for the ALJ's consideration of Ms. Wieszkowiak's opinion, the undersigned need not address this allegation of error, as it may be rendered moot on remand. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). The undersigned notes, however, that the ALJ's consideration of Ms. Wieszkowiak's findings may impact Plaintiff's RFC assessment. Thus, as part of the overall reconsideration of the claim upon remand, the ALJ should, if necessary, also take into consideration this allegation of error.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED.
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).