Kevin F. McDonald United States Magistrate Judge

REPORT OF MAGISTRATE JUDGE

This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).

The plaintiff, who is proceeding pro se, brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for disability insurance benefits under Title II of the Social Security Act.

PROCEDURAL HISTORY

The plaintiff filed an application for disability insurance benefits ("DIB") on January 27, 2015, alleging that he became unable to work on June 1, 2013. The application was denied initially and on reconsideration by the Social Security Administration. On October 14, 2015, the plaintiff requested a hearing. On September 25, 2017, an administrative hearing was held at which the plaintiff, his non-attorney representative, and Tonetta Watson-Coleman, an impartial vocational expert, appeared and testified in North Charleston, South Carolina. On February 27, 2018, the ALJ concluded that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 17-31). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on January 16, 2019 (Tr. 1-4).

In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant last met the insured status requirements of the Social Security Act on December 31, 2016.

(2) The claimant did not engage in substantial gainful activity during the period from his alleged onset date of June 1, 2013, through his date last insured of December 31, 2016 (20 C.F.R. § 404.1571, et seq.).

(3) Through the date last insured, the claimant had the following severe impairments: cervical degenerative disc disease, rotator cuff tear status-post repair of the left shoulder, superior glenoid labrum tear of the right shoulder with mild rotator cuff tendinitis of the right shoulder, osteoarthritis of the right acromioclavicular joint, post-traumatic stress disorder, and depression not otherwise specified (rule out substance induced)(20 C.F.R. § 404.1520(c)).

(4) Through the date last insured, the claimant does not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).

(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except he must be allowed to alternate between sitting and standing at will provided he remains on task. He can push or pull as much as he can lift or carry. He can never climb ladders, ropes, or scaffolds. He can frequently climb ramps and stairs. He can occasionally balance on flat, dry, and level surfaces, but he can never balance on wet or uneven surfaces. He can occasionally stoop, crouch, kneel, and crawl. He can frequently reach bilaterally. He should never be exposed to open, moving, mechanical parts or hazardous machinery. He should never be exposed to unprotected heights. He can concentrate sufficiently in two-hour increments to perform simple, routine tasks, but not

at a production rate pace. He can occasionally interact with supervisors and the public, and he can occasionally interact with coworkers but never in a tandem or team setting. He can respond appropriately to changes in the routine work setting provided they are introduced slowly.

(6) Though the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).

(7) The claimant was born on February 5, 1968, and was 48 years old, which is defined as a younger individual age 18-49, on the date last insured. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. § 404.1563).

(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).

(9) Transferability of job skills is not material to the determination of disability because using 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, 20 C.F.R. 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 C.F.R. §§ 404.1569, 404.1569(a)).

(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from June 1, 2013, the alleged onset date, through December 31, 2016, the date last insured (20 C.F.R. § 404.1520(g)).

APPLICABLE LAW

Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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 12 months." 20 C.F.R. § 404.1505(a).

To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. § 404.1520(a)(4).

A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.

Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

EVIDENCE PRESENTED

The plaintiff was 45 years old on his alleged disability onset date (June 1, 2013) and 48 years old on the date last insured (December 31, 2016). He completed the eleventh grade (Tr. 244). He has past work as a correctional officer, a laborer, a machine operator, and a specialist in the military (Tr. 231).

The Department of Veterans Affairs issued a disability rating of 80% for the plaintiff. The rating is based on his post-traumatic stress disorder ("PTSD") (70%), flat foot condition (30%), and a loss of sense of smell (10%) (Tr. 281).

On August 6, 2013, the plaintiff was admitted to the Ralph H. Johnson VA Medical Center ("VAMC") in Charleston for acute onset chronic pancreatitis. His physical examination included a gross tremor in his face and hands. He had a coarse baseline tremor throughout, which was worse with movement. He also suffered from depression, PTSD, and insomnia (Tr. 301-07). On August 7, 2013, an x-ray of the plaintiff's right foot showed a hallux valgus deformity with early bunion formation on the head of the great toe metatarsal (Tr. 520). On August 13, 2013, he reported right upper extremity pain due to a right C6-7 disc osteophyte complex. He continued to have right-sided neck pain that radiated down his right upper extremity to the second and third digits of his hand, which were numb. He had right-sided tricep weakness (Tr. 865-66). On August 30, 2013, Jan Helton, Director of Berkeley County Office of Veterans Affairs, wrote that the plaintiff was a service connected disabled veteran rated 100% permanently and totally disabled effective October 21, 2011 (Tr. 495).

On September 15, 2013, the plaintiff requested a referral to a neurosurgeon for his right upper extremity pain (Tr. 601). On September 20, 2013, he was seen for blurred vision. He had possible glaucoma (Tr. 859-60). On November 5, 2013, an MRI of his cervical spine showed a C6-C7 right-sided hypertrophy with moderate to severe stenosis of the right neural foramen (Tr. 433). On November 18, 2013, the plaintiff was treated for pancreatitis (Tr. 787). On November 22, 2013, he noted an exacerbation of his chronic back pain (Tr. 778).

On November 26, 2013, the plaintiff saw Temisan L. Etikerentse, M.D., and reported some paresthesia and numbness and tingling down his arms. He experienced back pain. He had flat feet and a history of chronic pancreatitis and hypertension. The plaintiff had a reduction in range of motion of his cervical spine. He also had reduced range of motion of both shoulders because of pain radiating from his neck. The plaintiff stated that he was not taking any medication and that his PTSD was "doing fine" (Tr. 499-502).

On December 16, 2013, the plaintiff reported left knee pain (Tr. 773).

On January 14, 2014, John V. Custer, M.D., conducted a consultative mental status examination of the plaintiff. According to Dr. Custer, the plaintiff was an unreliable historian. He reported problems with PTSD, although he could not describe any specific symptoms aside from feeling jittery. The plaintiff was "extremely vague" when asked about any nightmares or bad dreams that he had experienced, and he stated that he did not get along with people. When asked about alcohol, the plaintiff minimized his usage. He also endorsed problems with anger and with occasional thoughts of suicide. The plaintiff had a sullen affect, but no evidence of psychosis, bizarre content, or loose associations. During a cognitive examination, the plaintiff was alert and fully oriented, failed to give full effort during recall exercises, and rushed through other portions of testing. Dr. Custer noted that the mental status examination was an invalid indicator of cognitive functioning. Dr. Custer diagnosed the plaintiff with alcohol use disorder, nicotine dependence, probable malingering, possible antisocial personality traits, status post neck surgery, arthritis, and other musculoskeletal complaints. Dr. Custer felt that even if the plaintiff's functioning improved with abstinence from alcohol use, he may still have personality issues (Tr. 503-07).

On February 19, May 5, and September 5, 2014, the plaintiff was seen for abdominal pain (Tr. 515, 764, 770). On September 10, 2014, an MRI of his right knee showed chondromalacia of the medial aspect of the medial compartment with an eight millimeter cartilage defect and an underlying subchondral cyst (Tr. 438). On September 16, 2014, he was diagnosed with PTSD, insomnia, and depression. He also had right knee pain and was using an over the counter knee brace (Tr. 423-25).

On February 5, 2015, the plaintiff was seen for a followup of his glaucoma (Tr. 408-10). On March 5, 2015, he was diagnosed with gout in his right foot (Tr. 403-06). On April 3, 2015, he underwent a mental health diagnostic assessment. He reported that his mood was depressed most of the time. He did not sleep much and awoke frequently during the night. He had nightmares and night sweats. His muscles jumped. His energy was low, and his attention span was short. He forgot things easily and did not enjoy many activities. Karen J. Hartwell, M.D., a psychiatrist, noted that the plaintiff was limping due to his back pain. His mood was depressed, and his affect was mildly constricted. He had limited judgment and limited insight. Dr. Hartwell diagnosed the plaintiff with alcohol use disorder, PTSD, and depression (Tr. 284-91). On the same date, the record shows that he had a sleep study that showed excessive wake time after sleep onset and decreased REM sleep. The sleep study indicated that the plaintiff should consider treatment for insomnia (Tr. 387).

On April 27, 2015, licensed clinical psychologist LaShonda Y. Smith, Ph.D., consultatively evaluated the plaintiff. Dr. Smith observed that the plaintiff appeared alert, attentive, and oriented during her examination. Dr. Smith found that the plaintiff had multiple health conditions that resulted in chronic pain. In addition, he had symptoms of PTSD, depressive symptoms, and an alcohol use disorder. Although his cognitive ability appeared to be average, his mental health disorders and substance use appeared to have had a negative effect on his overall cognitive functioning. He also had deficits in his social functioning. Dr. Smith wrote that the plaintiff was not likely to be successful in a workplace environment. His insight was lacking, and his prognosis was considered poor to fair. The plaintiff would likely have difficulty acquiring new knowledge and performing tasks that required sustained mental efforts. His overall social functioning appeared impaired. He had notable ambulatory problems and walked with a limp. His eye contact was limited, and his affect was very flat. He showed no emotion during the evaluation. The plaintiff's thought processes appeared clear, linear, and without evidence of hallucinations or delusions. Dr. Smith found the plaintiff to be cooperative throughout the evaluation, with attention span within normal limits. He had some difficulty with serial number exercises. His insight and judgment were limited. His attempt to copy a geometric design was poor due to his shaking hands. The plaintiff reported not sleeping well at night, causing him to feel sleepy during the day. His hands shook visibly throughout the session. He had difficulty rising from his chair at the end of the session. He tended to be terse in his responses. Following her examination, Dr. Smith diagnosed PTSD, unspecified depressive disorder, and severe alcohol use disorder (Tr. 1197-1201).

On April 29, 2015, the plaintiff was examined by Dr. Etikerentse. He reported back pain, bilateral knee pain, and pancreatitis. He had a history of a left rotator cuff repair. On examination, the plaintiff's mood and affect were appropriate. A straight leg raising test was positive on the right. He had an antalgic gait and squatted with some difficulty. Dr. Etikerentse assessed PTSD and alcohol abuse (Tr. 1194-95).

On April 30, 2015, the plaintiff was treated for a depressed mood. He reported that he drank alcohol regularly and, in the opinion of his girlfriend, to excess. Dr. Hartwell observed that the plaintiff had calm and cooperative behavior, depressed mood, mildly constricted affect, and good attention and concentration during the interview. Dr. Hartwell's diagnoses were alcohol use disorder, PTSD, and depression. She continued the plaintiff on medication for his PTSD and depression (Tr. 284-90).

On May 12, 2015, the plaintiff went to the emergency department with pancreatitis and lower back pain. He related difficulties sleeping and ambulating. He was visibly shaking (Tr. 375-83).

On May 19 and September 1, 2015, state agency psychologists, Ruth Ann Lyman, Ph.D., and Michael Neboschick, Ph.D. - giving specific consideration to Listings 12.04 (Affective Disorders), 12.06 (Anxiety-Related Disorders), 12.08 (Personality Disorders), and 12.09 (Alcohol, Substance Addiction Disorders) - each opined that the plaintiff did not meet any Listings and was not disabled (Tr. 98-108, 115-16).

During a followup psychiatric examination at the VAMC on May 28, 2015, the plaintiff had an improved mood, and he endorsed good appetite, energy, and concentration. Upon examination, he was calm, cooperative, and had a good mood, mildly constricted affect, good thought content and memory, and good attention and concentration. He endorsed difficulties sleeping. He continued to have PTSD related nightmares. He had a mild limp due to back pain. He was continued on medication following the examination (Tr. 358-60).

On November 19, 2016, the plaintiff was seen for left knee pain with limited range of motion (Tr. 1309). On November 27, 2016, it was noted that he had edema in his left knee. He received an injection (Tr. 1307-08). On March 31, 2017, the plaintiff underwent sinus surgery (Tr. 1284-85).

On February 8, 2017, an MRI of the plaintiff's right shoulder showed osteoarthritis of the acromioclavicular joint. He had edema in the distal clavicle and acromion process. There was degenerative fraying of the superior and anteroinferior labrum. There was trace fluid along the chondral labral junction of the posterior labrum suggesting a possible labral tear (Tr. 1215). On February 17, 2017, the plaintiff was seen by Steven Book, D.C., after a motor vehicle accident. He experienced pain and discomfort in his lower back, neck, and right shoulder (Tr. 1220).

On March 21, 2017, the plaintiff received an injection in his right shoulder from James Spearman, M.D. (Tr. 1245-47). On May 2, 2017, he had reduced range of motion and decreased strength of his right shoulder (Tr. 1249).

On September 25, 2017, at the administrative hearing, the plaintiff's representative stated that she felt the plaintiff met Listings 1.04, 12.04, 12.06, and 12.08. He had been in full combat in Iraq and experienced PTSD. He also used a cane. He had suicidal tendencies, irritable bowel syndrome ("IBS"), pancreatitis, rotator cuff tear, insomnia, and glaucoma. He had a 100% disability rating from the VA (Tr. 41).

The ALJ noted that a doctor who performed a mental status examination listed probable malingering. The ALJ also noted another mental status examination that mentioned alcohol abuse was exacerbating cognitive abilities. The plaintiff was wearing a knee brace that he received from the VA. He was also wearing a brace around his rib cage that helped him when he had to sit for long periods of time (Tr. 42-44).

The plaintiff's past work included work as a correctional officer. While performing that job, he had a left shoulder rotator cuff repair. He also installed communications systems in military vehicles and guided railroad cars (Tr. 45-51). The plaintiff was right-handed, five feet nine inches tall, and weighed 195 pounds. He was divorced. He lived in a house with his brother. The plaintiff had a driver's license, but he did not drive because he had blurry vision. Driving hurt his back and his rib cage. He did not have a good attention span, and he drifted off. His friend brought him to the hearing. The plaintiff testified that he went to the twelfth grade and served in the military, but he did not have any specialized training. His job in the military was refueling aircraft. He performed combat services and experienced PTSD as a result of his military service (Tr. 52-54).

The plaintiff stated that he did not have any hobbies or activities. He mostly kept to himself. The ALJ asked him why a doctor might have indicated that he was malingering. He said the doctors he met with were making him angry because they wanted him to do something that hurt him. They wanted him to squat, but squatting would cause him more pain. The ALJ said it was a mental health doctor that indicated that the plaintiff was malingering. The plaintiff did not know why the doctor would have said that. The plaintiff reported that he no longer drank alcohol. He stopped drinking after his last hospitalization for pancreatitis. Previously, he drank a half pint a day. The plaintiff said his drinking affected his pancreatitis and his IBS (Tr. 55-58).

The plaintiff testified that he could not work because he could not stand for too long before his feet swelled and hurt. He did not wear shoes due to his gout. He had knee pain, worse on the right than on the left. He hurt his hip and right shoulder in a car accident. His back hurt if he sat for too long. His insomnia caused him to sleep off and on all day. He had to alternate between sitting, standing, and lying down. He was in pain, and he was distracted most of the time (Tr. 58-59). The plaintiff took medication for gout, and he changed his diet. He had an attack of gout once a week. His doctor changed his medication, and his symptoms improved slightly. His gout issues began two or three years prior to the hearing. His right knee went limp while he was walking, and his knees swelled. He wore a compression sleeve on his left knee (Tr. 59-61).

In December 2016, the plaintiff was in a car accident. He went to the hospital with injuries to his right hip and right shoulder. He had problems bending over. His shoulder constantly hurt. The plaintiff did not take any medications for his insomnia. He slept for 15 to 20 minutes before he woke up again. Trazodone did not help. He tried Benadryl, but he still slept for a bit and then was wide awake again. The plaintiff said his lower back hurt constantly. If he sat or walked around too much it hurt. He had surgery on his neck to remove a bone spur, which caused his right thumb and right first and second fingers to go numb. He had pain with sitting after ten to 20 minutes (Tr. 62-66).

The plaintiff did not know why he was distracted and had a short attention span. He just drifted off. He did not watch television or read. His eyes hurt if he tried to read. He spent his day changing positions and trying to endure the pain. He could walk 30 yards. The plaintiff did not think he could perform a job that allowed him to alternate between sitting and standing and was not overly complicated. He said he did not get along with people because his PTSD was getting worse. His medicine gave him the jitters so bad that he could not pick up a fork. He did not go to counseling because he did not want to be around people. He became angry when people pressured him to talk about things. His own children would not talk to him. He had a friend who drove him to the hearing, and she came to his house to fix him a meal, but she left if she saw he was getting agitated. His brother lived with him, but they did not interact with each other. The plaintiff said no one wanted to deal with him (Tr. 67-69).

The plaintiff said he could not do a job that allowed for him to sit and stand and did not involve interaction with other people because he could not perform the sitting and standing requirements. He would be limited by pain, gout, and IBS, which kept him going back and forth to the bathroom. He took medication for the IBS, but it did not really help. He could not concentrate to do the job, and he drifted off. The ALJ asked the plaintiff if he told anyone about his concentration problems, and the plaintiff replied that he had not (Tr. 70-71).

The plaintiff stated that he had thought about suicide quite a few times. He felt he could not work due to a combination of factors. His pain and his social difficulties prevented him from working and being with other people (Tr. 77).

The vocational expert classified the plaintiff's past relevant work as that of corrections officer, communications electronic equipment installer, and railcar traffic controller (Tr. 80). The ALJ proposed the following hypothetical individual:

Assume an individual of the claimant's age, education, and past work experience, who was able to perform a full range of medium work but should never climb ladders, ropes, or scaffolds; frequently climb ramps and stairs; occasionally balance on flat, dry, or level surfaces and never balance on wet or uneven surfaces; occasionally stoop, crouch, kneel, and crawl; frequently reach with his right upper extremity; never be exposed to open, moving, mechanical parts, or hazardous machinery; never be exposed to unprotected heights, can concentrate sufficiently in two-hour increments to perform simple, routine tasks, but not at a production rate pace; who can occasionally interact with supervisors; occasionally interact with the general public; and occasionally interact with co-workers, but never in a tandem or team setting; and who can respond appropriately to changes in a routine work setting provided they were introduced slowly.

The vocational expert testified the hypothetical individual could not perform the plaintiff's past relevant work. The individual could perform work as a hospital cleaner, specific vocational preparation ("SVP") of 2, unskilled, medium, Dictionary of Occupational Titles ("DOT") No. 323.687-010, with 926,240 jobs nationally; lamination assembler, SVP of 2, medium, DOT No. 726.687-026, with 212,170 jobs nationally; and coffee maker, SVP of 2, medium, DOT No. 317.684-010, with 862,740 jobs nationally (Tr. 82).

The ALJ proposed a second hypothetical individual: "Assume the same individual as the first hypothetical, but with a limitation to light work, frequently reaching with both upper extremities, and a need to alternate between sitting and standing at will, provided they remain on task" (Tr. 82). The vocational expert testified the individual could perform work as a merchandise labeler, SVP of 2, light, DOT No. 209.587-034 with 1,934,060 jobs nationally; final inspector, SVP of 2, light, DOT No. 727.687-054, with 508,590 jobs nationally; and order caller, SVP of 2, light, DOT No. 209.667-014, with 2,944,420 jobs nationally. The vocational expert testified that there would be no work for an individual who was off task 15 percent of the workday in addition to normal breaks due to their symptoms and there would be no work for an individual who was absent from work two days per month (Tr. 82-83).

Because the ALJ had included a limitation to "never balance on wet or uneven surfaces," the vocational expert substituted the job of hospital cleaner with sign poster, SVP of 2, medium, DOT No. 299.667-010, with 439,000 jobs nationally. Because of the sit/stand option limitation, the vocational expert substituted the job of merchandise labeler with work ticket distributor, SVP of 2, light, DOT No. 221.667-010, with 309,110 jobs nationally (Tr. 84). The ALJ asked the vocational expert if she understood that if she provided an opinion that conflicted with information in the DOT or its companion publications, she needed to identify the conflict and provide the basis for her opinion. The vocational expert confirmed that she understood and did not identify any such conflict. The vocational expert stated that her testimony was consistent with the DOT, with the exception of the use of one extremity versus another, the sit/stand option, absenteeism, and time off task, which was based on her professional experience, education, and training. (Tr. 83-85).

ANALYSIS

The plaintiff argues that the ALJ erred in failing to (1) properly consider his mental impairments; (2) provide a function-by-function analysis in the residual functional capacity ("RFC") assessment; and (3) identify and resolve a conflict between the DOT and the vocational expert's testimony (doc. 16 at 15-23).

Mental Impairments

The plaintiff argues that the ALJ erred in the RFC assessment by failing to account for his moderate limitations in concentrating, persisting, or maintaining pace (doc. 16 at 20-21). The regulations provide that a claimant's RFC is the most that he can still do despite his limitations. 20 C.F.R. § 404.1545(a). It is the ALJ's responsibility to make the RFC assessment, and the ALJ does so by considering all of the relevant medical and other evidence in the record. Id. §§ 404.1545(a)(3), 404.1546(c). Social Security Ruling ("SSR") 96-8p provides in pertinent part:

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). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.

Here, at step three of the sequential evaluation process, the ALJ found that the plaintiff had moderate limitations in concentrating, persisting, or maintaining pace (Tr. 24). Thereafter, in the RFC assessment, the ALJ found as follows with regard to the plaintiff's mental limitations:

[The plaintiff] can concentrate sufficiently in two-hour increments to perform simple, routine tasks but not at a production rate pace. He can occasionally interact with supervisors and the public, and he can occasionally interact with coworkers but never in a tandem or team setting. He can respond appropriately to changes in the routine work setting provided they are introduced slowly.

In response to the plaintiff's allegation of error, the Commissioner does not argue that the ALJ adequately accounted in the RFC assessment for the plaintiff's moderate limitations in concentrating, persisting, or maintaining pace. Rather, the Commissioner argues that "[a]n assessment of the paragraph B criteria of the listings is an evaluation at step three . . . . As such, it is not an [RFC] assessment . . . . The ALJ, therefore, appropriately did not include a limitation to moderate difficulties in concentration, persistence, or pace in her [RFC] determination" (doc. 18 at 9). However, in Mascio v. Colvin, the Court of Appeals for the Fourth Circuit held that remand was warranted in part because the ALJ's hypothetical question to the vocational expert was legally insufficient in that it failed to include—without any explanation by the ALJ—the ALJ's finding at step three of moderate limitation in the claimant's ability to maintain concentration, persistence, or pace. 780 F.3d 632, 638 (4^th Cir. 2015). The court stated that it agreed "with other circuits 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.'" Id. (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). Rather, the restriction to simple tasks only addresses the complexity of the work, not the plaintiff's ability to stay on task. Id. The court further stated:

Perhaps the ALJ can explain why [the claimant's] moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For 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 vocational expert. . . . But because the ALJ here gave no explanation, a remand is in order.

In a recent case in this district, the ALJ similarly limited the claimant to simple, routine tasks in two-hour increments and "no production or pace work," along with social interaction limitations. Posey v. Berryhill, C.A. No. 0:18-1189-RMG-PJG, 2019 WL 242451, at * 2 (D.S.C. May 7, 2019), R&R adopted by 2019 WL 2422596 (D.S.C. June 10, 2019). The court found that remand was required, relying on two recent decisions by the Fourth Circuit. Id. at *4. Specifically, the court explained as follows:

First, in Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), the Fourth Circuit found that meaningful appellate review of an ALJ's residual functional capacity evaluation was frustrated, in part, where an ALJ limited Thomas to no work "requiring a production rate or demand pace." The Fourth Circuit found that the ALJ did not provide "enough information to understand what those terms mean." Specifically, it found that this lack of definition

makes it difficult, if not impossible, for us to assess whether their inclusion in Thomas's RFC is supported by substantial evidence. The Commissioner contends that "production rate" and "demand pace" are "common vocationally relevant functional limitations." But those terms appear in a vanishingly small number of Social Security cases involving RFC evaluations. Of the cases in which the terms do appear, several originated with the same ALJ as the one who denied Thomas's application. We therefore disagree with the Commissioner: the terms do not seem to be especially common—certainly not common enough for us to know what they mean without elaboration.

Thomas, 916 F.3d at 312.

Following Thomas, the Fourth Circuit found in Perry v. Berryhill, No. 18-1076, 2019 WL 1092627 (4th Cir. 2019), that remand was required where a residual functional capacity assessment limited Perry to unskilled work in "non-production oriented work setting." The Perry Court found that "non-production oriented work setting" was not defined in the regulations or by case law and was not otherwise self-explanatory. Further, the ALJ failed to offer an explanation for that phrase, and therefore the Court found that it remained "uncertain as to what the ALJ intended" and could not "meaningfully assess whether there was a logical bridge between the evidence in the record and the ALJ's conclusion." Id. at *3. The court observed that the explanation was particularly important because the ALJ found that Perry had moderate limitations in concentration, persistence, and pace, and those limitations were addressed in Perry's residual functional capacity, if at all, through the ALJ's reference to a "non-production oriented work setting."

In the decision at issue here, the ALJ found that the treatment notes for the plaintiff's PTSD and depression supported the RFC finding (Tr. 26). The ALJ further noted that state agency psychological consultant Dr. Neboschick concluded that the plaintiff was able to understand and carry out simple routine tasks, and state agency psychological consultant Dr. Lyman stated that the plaintiff could persist at simple tasks for at least two-hour periods with usual breaks and should generally be able to complete a normal workweek (Tr. 28) (citing Tr. 106, 121). However, the ALJ gave the opinions limited weight, noting that later evidence showed greater limitations (Tr. 28). The ALJ did not further discuss the plaintiff's ability to stay on task during a workday.

The importance of the ALJ's failure to specifically address the plaintiff's ability to stay on task notwithstanding his moderate limitation in concentrating, persisting, or maintaining pace is demonstrated by the vocational expert's testimony in this case. Specifically, the vocational expert testified that if the plaintiff was off task in addition to normal breaks for 15 percent of the workday, he would not be able to perform any of the jobs identified or any other work (Tr. 83). See Hobbs v. Saul, C.A. No. 9:18-3114-TLW-BM, 2020 WL 847491, at *4 (D.S.C. Jan. 6, 2020), R&R adopted by 2020 WL 832892 (D.S.C. Feb. 19, 2020). As in the cases discussed above, without further explanation by the ALJ, it is unclear whether the ALJ adequately accounted for the plaintiff's moderate limitations in concentrating, persisting, and maintaining pace in the RFC assessment. See Posey, 2019 WL 2424051, at *4. See also Hobbs, 2020 WL 847491, at *3-5; Spitz v. Berryhill, C.A. No. 0:18-1084-MGL-PJG, 2019 WL 2177909, at *3-5 (D.S.C. May 9, 2019), R&R adopted by 2019 WL 2177432 (D.S.C. May 20, 2019). Accordingly, the undersigned recommends that this matter be remanded for further analysis and explanation of the plaintiff's RFC as explained above. See, e.g., Mascio, 780 F.3d at 636-37 (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe v. Colvin, 826 F.3d 176, 189 (4^th Cir. 2016)(remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted).

Remaining Allegations of Error

Because the undersigned recommends that this matter be remanded because the ALJ failed to explain how the RFC assessment accommodates that plaintiff's moderate limitations in concentrating, persisting, or maintaining pace, the plaintiff's remaining arguments will not be addressed as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir.2003) (remanding on other grounds and declining to address claimant's additional arguments). On remand, the ALJ will be able to reconsider and re-evaluate the evidence as part of the reconsideration. 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). Accordingly, as part of the overall reconsideration of this claim upon remand, the ALJ should also consider and address the additional allegations of error raised by the plaintiff if appropriate.

CONCLUSION AND RECOMMENDATION

Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.

IT IS SO RECOMMENDED.

s/Kevin F. McDonald

United States Magistrate Judge March 17, 2020
Greenville, South Carolina

The attention of the parties is directed to the important notice on the following page.

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

300 East Washington Street

Greenville, South Carolina 29601

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).