Opinion
CIVIL ACTION NO. 9:17-2125-BHH-BM
07-23-2018
ZENAIDA I. MCFADDEN, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
Report and Recommendation
Plaintiff files this pro se Complaint pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).
The federal court is charged with liberally construing complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519 (1972). Therefore, the undersigned has liberally construed Plaintiff's Complaint, Brief, and attachments to her Complaint in evaluating her claims.
The record reflects that Plaintiff applied for Disability Insurance Benefits (DIB) on August 29, 2013 (protective filing date), alleging disability as of May 9, 2013 due to chondromalacia patella of the left knee, high blood pressure, and a tendon rupture. (R.pp. 105, 181-187, 207). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held August 21, 2015. (R.pp. 55- 103). The ALJ thereafter denied Plaintiff's claim in a decision dated March 2, 2016. (R.pp. 40-50). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 2-8).
Plaintiff later raised the additional issue of mental impairments. See discussion, infra.
The Plaintiff then filed this action in United States District Court. Construed liberally, Plaintiff asserts in her Complaint that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed for an award of DIB benefits. See generally Complaint; Plaintiff's Brief. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
Plaintiff, who was forty-three years old on her alleged disability onset date, has a tenth grade education and past relevant work experience as a cook, construction worker, customer service representative, and nurse's assistant. (R.pp. 48, 63, 208). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months.
After a review of the evidence and testimony in this case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of obesity, left knee arthropathy, hypertension, affective mood disorder, and anxiety disorder, (R.p. 42), she nevertheless retained the residual functional capacity (RFC) for a limited range of medium work with the following restrictions: occasionally push and pull with the left lower extremity; occasionally climb ladders, ropes, and scaffolds; frequently balance and stoop; occasionally kneel, crouch, and crawl: must avoid concentrated exposure to wetness, unprotected heights, and unguarded moving machinery; no driving motor vehicles; can understand, remember, and carry out simple, routine tasks; can occasionally interact with the general public; can tolerate gradual, infrequent workplace changes; and can make simple workplace decisions but not executive level decisions. (R.pp. 44-45). Although these limitations precluded Plaintiff from performing her past relevant work, the ALJ concluded that she could perform other representative occupations with these limitations such as a hand packager (DOT # 920.587-018), order puller (DOT # 922.687-058), and salvage laborer (DOT # 929.687-022), and was therefore not entitled to disability benefits. (R.p. 49-50, 96-97).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. §§ 404.1567(c), 416.967(c).
Plaintiff asserts that in reaching this decision the ALJ erred because her medications cause her problems including affecting her ability to focus and cause dizziness. She also argues that her mental afflictions cause her total confusion and she discusses her osteoarthritis and other impairments and why she believes they are disabling. See generally Plaintiff's Complaint and Brief, pp. 1-2. After careful review and consideration of the evidence and arguments presented, and for the reasons set forth and discussed hereinbelow, the undersigned is constrained to agree with the Plaintiff that the ALJ committed reversible error in his evaluation of Plaintiff's mental RFC, thereby requiring a remand for further consideration of Plaintiff's claims.
In his decision, the ALJ found that Plaintiff had moderate limitations with respect to concentration, persistence, and pace as a result of her mental impairments. (R.p. 44). However, as noted by the ALJ, there is no opinion evidence from any medical source discussing the effects Plaintiff's severe mental impairments (affective disorder and anxiety disorder) have on her ability to engage in gainful employment. (R.pp. 42, 48). While the state agency psychological consultants opined that Plaintiff had no severe mental impairments, the ALJ gave no weight to those opinions because Plaintiff did not seek mental health treatment until after those state agency reviews were completed. (R.p. 48). Instead, in finding that Plaintiff did have severe mental impairments, the ALJ cited mental progress records from the Centerstone Medical Clinic stating that Plaintiff was diagnosed on September 2, 2014, with bipolar disorder (current or most recent episode depressed, Moderate), posttraumatic stress disorder, and generalized anxiety disorder. (R.pp. 44, 480, 482). These records also include a medication log which lists Sertraline being prescribed on November 5, 2014, Ativan being prescribed on December 31, 2014, and ZyPREXA being prescribed on March 17, 2015. (R.p. 482). The record also contains a progress note from October 2014 discussing anger issues. (R.p. 492).
Sertraline hydrochloride is "a selective serotonin reuptake inhibitor, used to treat depressive, obsessive-compulsive, and panic disorders." Czarnionka v. U.S. Soc. Secu. Admin., Com'r, No. 12-CV-417-JL, 2013 WL 4048507, at *2, n. 6 (D.N.H. Aug. 8, 2013) (citing Dorland's Illustrated Medical Dictionary 1724 (32nd 2012).
"Ativan is the trademark name for Lorazepam. Dorland's Illustrated Medical Dictionary 173 (31st ed. 2007). Lorazepam is used to treat anxiety disorders, including depression. Lorazepam (Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/lorazepam-oral-route/description/drg-20072296 (last accessed on Feb. 2, 2018)." Combs v. Sec'y of Health & Human Servs., No. 14-878V, 2018 WL 1581672, at *4, n. 6 (Fed. Cl. Feb. 15, 2018).
"Zyprexa is used for short-term treatment of manic episodes in bipolar disorder." Brown v. Colvin, No. 14-CV-51-PB, 2014 WL 6670637, at *1 (D.N.H. Nov. 24, 2014) (citing Dorland's Illustrated Medical Dictionary 1317, 2097 (32nd 2012).
As a result of these findings, the ALJ concluded that Plaintiff did have the severe mental impairments noted and that she was moderately limited in her social functioning and with respect to concentration, persistence and pace. However, the only limitations addressing Plaintiff's mental impairments the ALJ included in the RFC and in the hypothetical to the VE were that she is restricted to simple, routine work with only occasional interaction with the general public and only gradual, infrequent workplace changes. (R.p. 45, 96-97). Based on the ALJ's findings, and after careful consideration of the record and relevant case law, the undersigned concludes that the ALJ's hypothetical to the VE (on which he relied to determine that there were jobs Plaintiff could perform) was flawed because it failed to fully account for Plaintiff's mental RFC, and that the decision must therefore be reversed and remanded for further consideration of Plaintiff's claims.
As noted, the federal court is charged with liberally construing complaints filed by pro se litigants to allow them the opportunity to fully develop potentially meritorious cases. See Shelton v. Colvin, No. 15-27, 2016 WL 6915286, at * 3 n. 3 (D.S.C. Nov. 23, 2016)["In recognition of [Plaintiff's] pro se status the court will attempt to cast his arguments in the most meritorious possible light"]; see also Erickson, 551 U.S. at 94 [liberally construing pro se complaints; Haines, 404 U.S. at 519 [same]. In this case, the pro se Plaintiff raised the issue of whether her mental impairments had been fully accounted for by the Defendant; see Plaintiff's Filing, pp. 1-6; and the Defendant addressed the issue of whether substantial evidence supports the final decision of the Commissioner, including whether the ALJ reasonably accounted for Plaintiff's mental function limitations. See Defendant's Memorandum in Support, pp. 7-8. Therefore, in light of the ALJ's finding that Plaintiff was moderately limited in concentration, persistence, and pace due to her mental impairments, the question of whether the ALJ failed to account for Plaintiff's mental impairments in his hypothetical to the VE (see, discussion, infra) is properly before the Court for review.
Concededly, restricting a claimant like the Plaintiff to simple, routine work in order to account for mental impairments, to include a moderate restriction with respect to concentration, persistence or pace, was an RFC formula that had generally found support in the case law prior to 2015. Cf. Wood v. Barnhart, No. 05-432, 2006 WL 2583097 at * 11 (D.Del. Sept. 7, 2006) [Finding that by restricting plaintiff to jobs with simple instructions, the ALJ adequately accounted for plaintiff's moderate limitation in maintaining concentration, persistence or pace]; McDonald v. Astrue, 293 F. App'x 941, 946-47 (3d Cir. 2008) [noting that the ALJ properly accounted for his finding that the claimant had moderate limitations in concentration by limiting him to simple, routine tasks]. However, before the ALJ issued his decision in this case, the Fourth Circuit held in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), that "an ALJ does not account 'for a claimant's [moderate] limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio, 780 F.3d at 638, quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). Mascio held that the ability to perform simple work is not the same as having the ability to stay on task during a workday, which is the limitation that would account for a claimant's impairment in concentration, persistence or pace. Mascio, 780 F.3d 638.
Therefore, in light of Mascio, it is now the law in this Circuit that an ALJ's limitation of a Plaintiff's RFC to simple, routine tasks does not by itself take into account an inability "to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(3). Rather, the ALJ's limitation to simple, routine work primarily addresses the complexity of the work, not Plaintiff's ability to stay on task. See Mascio, 780 F.3d at 638; Salmon v. Colvin, No. 12-1209, 2015 WL 1526020, at *3 (M.D.N.C. Apr. 2, 2015) [noting that "the Fourth Circuit made clear that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine, tasks or unskilled work."] (citations and quotations omitted); cf. Straughn v. Colvin, No. 14-200, 2015 WL 4414275, at *4 n.5 (M.D.N.C. July 20, 2015) [reasoning that the ALJ "did not address how the RFC's limitation to 'simple, routine' tasks addressed his finding of 'mild limitations with concentration, persistence or pace.' Thus, the ALJ's decision may also run afoul of the recent decision in Mascio"] (citation and quotation omitted).
Listing 12.00 explains, in part:
Concentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings. Limitations in concentration, persistence, or pace are best observed in work settings, but may also be reflected by limitations in other settings. In addition, major limitations in this area can often be assessed through clinical examination or psychological testing. Wherever possible, however, a mental status examination or psychological test data should be supplemented by other available evidence.20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(3).
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In work evaluations, concentration, persistence, or pace is assessed by testing your ability to sustain work using appropriate production standards, in either real or simulated work tasks (e.g., filing index cards, locating telephone numbers, or disassembling and reassembling objects). Strengths and weaknesses in areas of concentration and attention can be discussed in terms of your ability to work at a consistent pace for acceptable periods of time and until a task is completed, and your ability to repeat sequences of action to achieve a goal or an objective.
The ALJ failed to address this limitation (Plaintiff's ability to "stay on task") in either his RFC finding or in his hypothetical to the VE. (R.pp. 44-48, 95-97). Therefore, in light of Mascio, the ALJ's reliance on the VE's testimony that Plaintiff could perform the jobs identified was error, as the hypothetical on which this testimony was based did not address this limitation. (R.pp. 96-97); see Walker v. Bowen, 889 F.2d 47, 50-51 (4th Cir. 1989) [In order for a vocational expert's opinion to be helpful and relevant, it must be "in response to proper hypothetical questions which thoroughly set out all of claimant's impairments"]; Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) [hypothetical question submitted to the VE must state the claimant's impairments with precision]. Similarly, limiting Plaintiff's interaction with the general public to no more than occasional along with limitations on workplace changes and job related decisions deals largely with workplace adaptation, rather than concentration, pace, or persistence. See McPherson v. Colvin, No. 16-1469, 2016 WL 5404471 at * 8 (E.D.Pa. Sept. 28, 2016)[where the court rejected that moderate restrictions in concentration, persistence, and pace were accommodated by a hypothetical to a VE that only included: 1) the performance of routine, repetitive tasks; 2) a low stress environment (defined as no frequent independent decision making required and no frequent changes in the work setting); and 3) no public interaction and occasional interaction with coworkers and supervisors](citing to Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015)); Knight v. Commissioner, No. 15-1512, 2016 WL 4926072 (D.S.C. Sept. 16, 2016)[The ALJ's limiting the hypothetical to 'unskilled work with no direct interaction with the public; only occasional team type interaction with coworkers; [who] should not be required to adapt to greater than simple, gradual changes in the workplace' did not account for the Plaintiff's moderate limitation in concentration, persistence, or pace].
Hence, as neither the ALJ's RFC assessment nor the ALJ's hypothetical question to the VE addressed Plaintiff's ability to stay on task, the court is left to guess how the ALJ accounted for this ability (or inability) despite the ALJ's finding that Plaintiff had moderate difficulties in her ability to maintain concentration, persistence, or pace. As such, "it is not entirely clear how the evidence aligns with the necessary functions, which is a required showing." See Miller v. Colvin, No. 15-443, 2016 WL 3679292 at **4-5 (W.D.N.C. July 11, 2016)(citing Mascio, 780 F.3d at 636; SSR 96-8p, 1996 WL 374184, at *7). "Remand thus is appropriate." Carr v. Colvin, No. 15-685, 2016 WL 4662341, at *10 (D. Md. Sept. 7, 2016)[Finding that the ALJ's inclusion of a limitation in the assessment of Plaintiff's RFC and in the hypothetical questions to the VE to only occasional contact with supervisors, co-workers, and the public accounts for Plaintiff's moderate difficulties in social functioning, but does not account for Plaintiff's moderate difficulties in maintaining concentration, persistence, or pace].
As noted, the ALJ also found that Plaintiff had moderate difficulties in social functioning in this case, and accounted for Plaintiff's moderate social limitations by restricting her to no more than occasional interaction with the general public. (R.pp. 44-45).
This case therefore stands in contrast to cases where the decision has been upheld because the ALJ specifically addressed the claimant's ability to stay on task notwithstanding the claimant's mental limitations. Cf. Falls v. Colvin, No. 14-195, 2015 WL 5797751, at * 7 (D.S.C. Sept. 29, 2015) ["As opposed to the hypothetical in Mascio, which said nothing about the claimant's mental limitations, the ALJ's hypothetical in this case . . . accounted for Plaintiff's limitations in the area of concentration when determining Plaintiff's residual functional capacity. The ALJ noted Plaintiff's mental limitations but found that the Plaintiff could concentrate, persist and work at pace to do simple, routine, repetitive work at 1-2 step instructions for extended periods say 2-hour periods in an 8-hour day"].
While it may be that the ALJ will find, based on the evidence and facts of this case, that Plaintiff's moderate impairment in being able to concentrate and stay on task would not affect her ability to perform the work identified in the decision; see Mascio, 780 F.3d at 638 [noting that the ALJ may be able to explain why a moderate concentration, persistence, or pace limitation did not translate into a limitation in the RFC ("[f]or example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the [VE]"), but finding that remand was appropriate because the ALJ gave no explanation]; he did not make that determination or finding in his decision, and this Court may not do so in the first instance. Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) [Court cannot affirm a decision on a ground that the ALJ did not herself invoke in making the decision].
Therefore, the decision should be reversed and remanded for a proper consideration of Plaintiff's RFC in compliance with Mascio. With respect to any remaining claims of error asserted by the Plaintiff, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (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].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for a reconsideration of Plaintiff's application as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge July 23, 2018
Charleston, South Carolina
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).