Opinion
CIVIL ACTION NO. 9:19-1215-DCC-BM
02-28-2020
AMANDA PEARSON, 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 May 13, 2015 (protective filing date), alleging disability beginning April 25, 2013 due to fibromyalgia, bipolar disorder, borderline personality disorder, general anxiety disorder, major depressive disorder, and hypothyroidism. (R.pp. 15, 228-232, 233-243, 296). Plaintiff's claims were denied both initially and upon reconsideration. A hearing before an Administrative Law Judge (ALJ) was then held on November 2, 2017. (R.pp. 30-73). The ALJ thereafter denied Plaintiff's claims in a decision dated February 22, 2018. (R.pp. 15-29). 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 [or he] was disabled during the insured period for DIB may still receive SSI benefits if she [or he] can establish that she [or he] 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 payment of benefits, or for further consideration of her claims. 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, 98 2-983 (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 thirty-five years old on the date of her alleged disability onset date, has a high school education and past relevant work experience as a bartender and office manager. (R.pp. 22-23, 229, 275, 288). 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, affective disorders, PTSD, and borderline personality disorder (R.p. 17), she nevertheless retained the residual functional capacity (RFC) for sedentary work, with additional limitations that she can only occasionally climb ladders, ropes, and scaffolds; frequently climb ramps and stairs; occasionally stoop, crouch, kneel, or crawl; and tolerate occasional exposure to unprotected heights. The ALJ additionally found that Plaintiff could perform simple, routine, and repetitive tasks; performed in a work environment free of fast-paced production requirements, involving only simple, work-related decisions, and with few, if any, work place changes. The ALJ also found that she is capable of learning simple vocational tasks and completing them at an adequate pace with persistence in a vocational setting, and that she could perform simple tasks for two-hour blocks of time with normal rest breaks during an eight-hour day with only occasional interaction with the public and co-workers. (R.pp. 19-20). At step four, the ALJ found that Plaintiff was unable to perform her past relevant work with these limitations. (R.p. 22). 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 production inspector (DOT # 669.687-014), final assembler (DOT # 713.687-018), and office helper (DOT # 239.687-014), and was therefore not entitled to disability benefits. (R.pp. 23-24).
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).
Sedentary work is defined as lifting no more than 10 pounds at a time and occasionally lifting and carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a) (2005).
Plaintiff asserts that the ALJ erred in reaching his decision because he failed to properly account for how he determined Plaintiff's necessary time off task, and by failing to apply the treating physician rule in effect at the time of the issuance of his decision. After careful review and consideration of the arguments presented, and for the reasons set forth hereinbelow, the undersigned is constrained to agree with Plaintiff that the ALJ committed reversible error by failing to properly build an adequate bridge from the medical evidence to account for Plaintiff's limitations in her ability to maintain concentration, persistence, and pace 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 that Plaintiff was moderately limited in her ability to maintain concentration, persistence or pace (R.p. 19), but then failed to properly set forth in his evidentiary findings how he accounted for this limitation in his RFC findings, as required by SSR 96-8p. The Commissioner contends that the ALJ did fully address Plaintiff's moderate concentration, persistence, or pace limitation by restricting Plaintiff to simple, routine, and repetitive tasks, performed in a work environment free of fast-paced production, involving only simple, work-related decisions, and with few, if any, work place changes; and by finding that Plaintiff can perform simple tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday with only occasional interaction with the public and coworkers. See Defendant's Brief, at pp. 13-20. However, while Defendant is correct that the RFC findings themselves 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 he 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).
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); Dill v. Berryhill, No. 16-3949, 2018 WL 840103, at *2 (D.S.C. Jan. 26, 2018)[Limitation to simple, routine and repetitive tasks performed in a work environment free of fast-paced production requirements involving only simple work-related decisions with few if any workplace changes did not adequately account for claimant's moderate CPP limitation], report and recommendation adopted, No. 16-3949, 2018 WL 826854 (D.S.C. Feb. 12, 2018). Therefore, those limitations in the Plaintiff's RFC did not adequately address her CPP limitation.
Similarly, the ALJ limiting Plaintiff's RFC to no more than occasional contact with the public and co-workers (R.p. 20) 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)[Finding that 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]. Nor does the restriction placed on the Plaintiff that she engage in no "fast-paced production requirements" (R.p. 20) adequately account for a moderate limitation in CPP following Mascio. See Bryan-Tharpe v. Colvin, No. 15-272, 2016 WL 4079532 at * (M.D.N.C. July 29, 2016)(collecting cases); see also Wilson v. Colvin, No. 14-3209, 2016 WL 625088 at * 5 (D.S.C. Jan. 15, 2016)(unpublished)[holding restriction to "nonproduction work, no assembly line production, or high speed manner, ... [s]tanding alone, ... does not account for a limitation in [CPP]"], recommendation adopted, 2016 WL 613891 (D.S.C. Feb. 16, 2016)(unpublished); Varga, 794 F.3d at 815 [A restriction to work "free of fast paced production requirements" did not account for Plaintiff's moderate deficits in CPP, because the ALJ failed to define "fast paced production."].
In defending the decision in this case, the Defendant also cites at length to findings in the record that Plaintiff had "good" concentration at various times and appears to imply that Plaintiff perhaps only had a mild limitation in this area. However, the ALJ did not find that Plaintiff's limitation was only mild in her CPP functioning. He found Plaintiff had a "moderate" limitation in this area. (R.p. 19). The issue is therefore how the ALJ addressed the evidence pertaining to Plaintiff's moderate limitation in CPP in determining her RFC. In Mascio the Fourth Circuit 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; and the ALJ did make the finding that Plaintiff's ability to stay "on task" during the workday was that "[s]he is capable of . . . completing them at an adequate pace with persistence in a vocational setting" and "[s]he can perform simple tasks for two-hour blocks of time with normal rest breaks during an eight-hour workday . . . .". The Defendant 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. In this case, however, while the ALJ included a two hour "on task" limitation in his RFC finding and in the hypothetical to the VE, he fails to cite to anywhere in the record where the evidence supports his conclusion that Plaintiff could perform simple tasks for two-hour blocks of time with normal rest periods. 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"].
For example, the undersigned notes that although Dr. Husam Mortada and Dr. Marion Sharpe both opined that Plaintiff's condition would interfere with the attention and concentration needed to perform even simple work tasks occasionally (up to 1/3 of the workday, or up to 2 hours), evidence which the ALJ might have used to support his RFC finding, the ALJ instead gave little weight to these opinions, finding that they were not supported by the evidence and relied too much on the Plaintiff's subjective statements. (R.pp. 22, 689-690). Conversely, it is noted that the state agency medical consultants opined that Plaintiff had the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms, to perform at a consistent pace without an unreasonable number and length of rest periods, and to sustain a typical work routine of at least simple tasks in a work environment with limited contact with the public. (R.pp. 99-100, 115, 136). These findings could conceivably have been used to support a conclusion that no "on-task" limitations (other than for simple tasks) were even needed. Cf. Mascio, 780 F.3d at 638 [Noting that the ALJ may be able to explain why a moderate CPP limitation did not translate into a limitation in RFC]. However, the ALJ instead gave little weight to the state agency medical consultants' opinions because he found "[t]hey did not have the opportunity to examine and treat the [Plaintiff], nor did they have access to the latest evidence, including testimony, as to the current level of severity of the [Plaintiff's] impairments." (R.p. 22). Finally, none of the other evidence cited by the ALJ even addresses Plaintiff's ability to stay on-task, or for what period of time. Therefore, it is simply unclear how, or what evidence the ALJ relied upon, to determine that Plaintiff had the RFC to perform simple tasks for two-hour blocks of time with normal rest breaks. 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). Hence, as the ALJ's RFC assessment fails to properly build a bridge between the evidence and how he determined Plaintiff had the ability to stay on task for two-hour periods of time in a full 8-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].
Dr. Mortada also opined that Plaintiff was permanently disabled and could only work part-time twenty (20) hours a week. (R.p. 707).
The undersigned also notes that the VE testified that if the Plaintiff was off task for twenty (20) percent or more during the workday, there would not be any jobs that she could perform. (R.p. 68-69).
Of course, the ALJ may be able to properly find from the evidence that Plaintiff's CPP limitation would not effect her ability to maintain a necessary pace for a full 8-hour workday, or to perform the jobs listed. Cf. Shinaberry v. Saul, ___ F.3d ___, 2020 WL 908887 at * * 3-5 (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 his 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 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]; 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 v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) ["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 claim 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.
/s/_________
Bristow Marchant
United States Magistrate Judge February 28, 2020
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).