Opinion
CIVIL ACTION NO. 9:19-1390-BHH-BM
06-03-2020
DOROTHY BYERS MORGAN, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action 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 Civil Rule 73.02(B)(2)(a)(D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on December 21, 2017, alleging disability beginning on August 28, 2017, due to blindness or low vision, lupus, rheumatoid arthritis, severe migraines, depression, and bipolar disorder. (R.pp. 10, 272, 274, 345). Plaintiff's claims were denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on November 27, 2018. (R.pp. 40-66). The ALJ thereafter denied Plaintiff's claims in a decision issued December 13, 2018. (R.pp. 10-20). 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. 1-6).
Although the definition of disability is the same under both DIB and SSI; Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at * 1 n. 3 (D.S.D. Feb. 29, 2008); "[a]n applicant who cannot establish that she was disabled during the insured period for DIB may still receive SSI benefits if she can establish that she is disabled and has limited means." Sienkiewicz v. Barnhart, No. 04-1542, 2005 WL 83841, at ** 3 (7th Cir. Jan. 6, 2005). See also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir. 1999)[Discussing the difference between DIB and SSI benefits].
Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for further proceedings. 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, 907 F.2d at 1456; 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)[Nothing 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-four years old on the date of her alleged disability onset date, and forty-five years old on the date of the ALJ's decision, has a high school education (plus two years of college) and past relevant work experience as a medical assistant, general duty nurse, and masseuse. (R.pp. 18, 45, 274, 346). 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 a continuous period of not less than twelve (12) months.
After a review of the evidence and testimony in the case the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of fibromyalgia, degenerative joint disease of her bilateral knees, anxiety disorder, obesity, an affective disorder, anxiety disorder, and PTSD (R.p. 12), she nevertheless retained the residual functional capacity (RFC) for medium work with limitations of frequent climbing, balancing, stooping, kneeling, crouching, and crawling; frequent exposure to workplace hazards; simple, routine tasks performed two hours at a time; a limitation to occasional interaction with the public, co-workers, and supervisors; and no performance of tandem tasks (R.p. 14). At step four, Plaintiff was found to be unable to perform her past relevant work with these limitations. (R.p.18). However, the ALJ obtained testimony from a vocational expert (VE) and found at step five that Plaintiff could perform other representative occupations with these limitations, such as laundry worker (DOT 361.685-018), industrial cleaner (DOT 381-687-018), and machine feeder (DOT 699.686-010) and was therefore not entitled to disability benefits. (R.pp. 19, 63).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 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 contends that the ALJ erred in reaching her decision because the ALJ failed to properly evaluate Plaintiff's impairment of fibromyalgia in accordance with SSR 12-2p; failed to properly account for her moderate limitation in concentration, persistence, or pace (CPP) in the hypothetical to the VE; and failed to properly consider the effect of her electroconvulsive therapy (ECT). At the hearing, the ALJ asked the VE to consider a claimant who was "limited to simple, routine tasks performed two hours at a time, and occasional interaction with the public, coworkers, and supervisors, but no tandem tasks." (R.p. 63). These are the same limitations the ALJ included in her RFC findings. (R.p. 14). Therefore, it appears that Plaintiff's argument is actually that the ALJ improperly accounted for her CPP limitations in her RFC (which then resulted in an improper hypothetical), and that therefore the ALJ's finding that Plaintiff could perform the jobs identified (which was based on this improper RFC) is error. Plaintiff further argues that in making the RFC determination the ALJ improperly considered the opinion of psychologist Dr. Ron O. Thompson, who performed a consultative examination of Plaintiff in February 2018 at the Commissioner's request. (R.pp. 667-668). After careful review and consideration of the arguments presented, and for the reasons set forth hereinbelow, the undersigned is constrained to agree with the Plaintiff that the ALJ committed reversible error by failing to explain or quantify her findings relating to Plaintiff's diminished ability to maintain CPP in compliance with the Fourth Circuit's decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), thereby requiring a reversal with remand of this case.
RFC is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. Here, the ALJ found at step three that Plaintiff was moderately limited in her ability to maintain CPP, and then stated that "the assessment below limits her to simple routine tasks to account for any problems with concentration." (R.p. 13). However, the Fourth Circuit held in Mascio 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). Rather, that restriction only addresses the complexity of the work, not Plaintiff's ability to stay on task as required by Mascio. 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); see also Sanders v. Berryhill, No. 16-3883, 2018 WL 878964, at *10 n. 10 (D.S.C. Jan. 29, 2018)[Finding ALJ's hypothetical to VE that only limited the claimant to simple and routine tasks in low stress environment did not adequately account for claimant's moderate CPP limitations], report and recommendation adopted, No. 16-3883, 2018 WL 835228 (D.S.C. Feb. 13, 2018). Therefore, such a limitation fails to adequately address Plaintiff's CPP limitation.
The Commissioner nonetheless argues that the ALJ properly evaluated Plaintiff's mental impairments and properly accounted for Plaintiff's limitations in CPP by limiting her to simple, routine tasks in two-hour increments with occasional interactions with others, an RFC which addresses Plaintiff's ability to stay on task during the workday. However, while it is true that the RFC contains the additional limitation that Plaintiff was limited to simple, routine tasks "performed two hours at a time" (R.p. 14), no where in her opinion does the ALJ explain, in accordance with SSR 96-8p, how she arrived at this CPP limitation. Indeed, the ALJ never discusses, or even mentions, Plaintiff's ability to stay on task, or how she determined that Plaintiff could do so for two hour increments, anywhere in the decision. Therefore, while the Commissioner is correct that a finding that Plaintiff could perform tasks for two hours at a time might otherwise serve to address Plaintiff's limitation in CPP as required by Mascio, the ALJ failed to connect the bridge between the evidence in the record and how she determined the RFC assigned. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) [Case reversed where ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion."] (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)); Woods v. Berryhill, 888 F.3d at 686, 694 (4th Cir. 2018) ["[T]he ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from the evidence to his conclusion"], citing Monroe, 826 F.2d at 189 (internal quotations omitted).
As part of his argument, the Commissioner cites to other cases where similar pace findings regarding performance of tasks for two-hour blocks of time with normal breaks were found to be sufficient. However, as just noted, while the ALJ included an ability to perform simple, routine tasks for two hours at a time in her RFC finding and in the hypothetical to the VE, she fails to explain, or cite to anywhere in the record where the evidence supports, her conclusion that Plaintiff could perform simple tasks for two-hour blocks of time with normal rest periods, as opposed to, say, three hour blocks of time, or one hour blocks of time. Without knowing the reason for the ALJ's decision, or what this finding is based on, there is simply no way for this Court to determine whether it is supported by substantial evidence. Cf. Mellon v. Astrue, No. 08-2110, 2009 WL 2777653, at * 13 (D.S.C. Aug. 31, 2009) [Finding that for ALJ's articulation to be adequate under SSR 96-8p, the ALJ's logic and reasoning on the ultimate issue must be supported by substantial evidence in the record]; Quinones v. Saul, No. 18-3561, 2019 WL 7461669, at * 14-15 (D.S.C. Dec. 18, 2019) [Decision reversed where a review of the decision showed no specific support for the ALJ's "finding that Plaintiff could maintain pace for two-hour periods"], adopted by 2020 WL 42860 (D.S.C. Jan. 3, 2020); see also Mascio, 780 F.3d at 637 [Holding that courts cannot meaningfully review decision where they "are left to guess how the ALJ arrived at his conclusions"].
In addition to the above, it is also unclear whether the ALJ properly considered all of the opinion evidence in determining Plaintiff's RFC (and posing a hypothetical to the VE). Dr. Thompson opined:
[Plaintiff] would tend to block due to anxiety and the neurovegetative symptoms of a severe major depressive disorder with complex instructions in following through with them as well as maintaining concentration and persistence and could not keep reasonable pace in a typical work related activity.(R.p. 668). However, in assigning only partial weight to Dr. Thompson's opinion, the ALJ stated that "Dr. Thompson noted that claimant was capable of carrying out simple tasks but might have problems with more complex ones but could keep a reasonable pace." (R.p. 17). That is not what Dr. Thompson said. Rather, he opined that Plaintiff would tend to "block" in maintaining concentration and persistence and could not keep reasonable pace in typical work-related activity. (R.p. 668).
The rules in 20 C.F.R. § 404.1520c apply to the consideration of medical opinions for claims filed on or after March 27, 2017 (as noted above, the claims in this case were filed on December 21, 2017). ALJs are to articulate in their decisions "how persuasive [they] find all of the medical opinions" and to explain how they considered the supportability and consistency factors in evaluating a medical source's opinion. 20 C.F.R. § 404.1520c(b)(2). "The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion ... the more persuasive the medical opinion ... will be." 20 C.F.R. § 404.1520c(c)(1). "The more consistent a medical opinion ... is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion ... will be." 20 C.F.R. § 404.1520c(c)(2).
If the ALJ finds "medical findings about the same issue" to be "equally persuasive," he must articulate how he "considered the other most persuasive factors" in the decision. 20 C.F.R. § 404.1520c(b)(3). Those other factors include relationship between the medical provider and the claimant, the specialization of the medical provider offering the opinion, and other factors that tend to support or contradict the medical opinion. 20 C.F.R. § 404.1520c(c)(3), (4), (5).
In his Brief, the Commissioner fails to address Plaintiff's argument on this issue.
Therefore, it is simply unclear how, or what evidence the ALJ relied upon, to determine that Plaintiff had the RFC to perform tasks for two hours at a time and to maintain CPP for a full eight-hour day. Additionally, the ALJ failed to correctly consider Dr. Thompson's opinion that Plaintiff could not keep pace in typical work-related activity and the possible affect of this limitation on Plaintiff's RFC in reaching her decision. See Mascio, 780 F.3d at 636 ["Remand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions . . . or where other inadequacies in the ALJ's analysis frustrate meaningful review."], citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013). As the ALJ's decision fails to show how the ALJ arrived at her mental RFC findings or how she determined Plaintiff had the ability to stay on task sufficient to work a full eight-hour workday in light of her moderate limitation in CPP, remand is required. See Miller v. Colvin, No. 15-443, 2016 WL 3679292 at **4-5 (W.D.N.C. July 11, 2016) [Finding remand required where "it is not entirely clear how the evidence aligns with the necessary functions, which is a required showing."] (citing Mascio, 780 F.3d at 636; SSR 96-8p, 1996 WL 374184, at *7); Perry v. Berryhill, No. 18-1076, 2019 WL 1092627 at * 2 (4th Cir. Mar. 8, 2019)[Finding that the ALJ had not made findings necessary to bridge the evidence between plaintiff's moderate limitations in CPP and his RFC]. See also Mascio, 780 F.3d at 637 [Holding that courts cannot meaningfully review decision where they "are left to guess how the ALJ arrived at his conclusions"].
Of course, the ALJ may be able to properly discount Dr. Thompson's opinion that Plaintiff cannot maintain a reasonable pace and may also be able to explain why Plaintiff can perform tasks for two hours at a time and otherwise stay on task for a full eight-hour day and to perform the jobs listed. Cf. Shinaberry v. Saul, 952 F.3d 113, 119-122 (4th Cir. Feb. 26, 2020) [Affirming where the ALJ tied the claimant's RFC to evidence in the record including, but not limited to, psychological mental assessments]. However, it is incumbent on the ALJ to do so, and since the ALJ did not make a proper determination or finding on this issue in her decision, it would not be proper for this Court to try to now do so in the first instance. See Mascio, 780 F.3d at 638 [noting that the ALJ may be able to explain why a CPP 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]; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) [Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision]; Bray, 554 F.3d at 1225 ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have thinking."].
Therefore, the decision should be reversed and remanded for consideration of Plaintiff's RFC in compliance with Mascio. With respect to Plaintiff's remaining claims of error, 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 reevaluation of the evidence 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. June 3, 2020
Charleston, SC
/s/_________
Bristow Marchant
United States Magistrate Judge
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).