Opinion
Civil Action No. 2:19-cv-01836-BHH-MGB
07-15-2020
STEVEN L. ROBERTS, Plaintiff, v. ANDREW SAUL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This case is before the Court for a Report and Recommendation pursuant to Local 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). Plaintiff Steven Roberts 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 Administration (the "Administration") regarding Plaintiff's claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"). For the reasons set forth below, the undersigned recommends that this matter be remanded for further consideration and analysis by the Commissioner.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 49 years old on his alleged disability onset date of May 5, 2010. (R. at 24, 86, 95, 200, 232, 242.) He alleged disability due to, inter alia, post-traumatic stress disorder, skin rashes, migraine headaches, back injury, arthritis, depression, joint pain, tinnitus, ankle injury, and wrist injury. (Id. at 86, 95.) He has past relevant work as a swimming instructor, maintenance worker, pool attendant, and cabana renter. (Id. at 213-18, 249, 258, 802.)
Plaintiff filed an application for DIB on July 13, 2012. (Id. at 24, 169-75.) His application was denied initially on August 2, 2012 and upon reconsideration on October 15, 2012. (Id. at 24, 94, 109-12, 253.) He requested a hearing before an Administrative Law Judge ("ALJ") on November 6, 2012. (Id. at 24, 113-14.) The hearing was held on January 8, 2014. (Id. at 24, 41-67.) On March 31, 2014, the ALJ issued a decision and found that Plaintiff was not disabled. (Id. at 7, 24-36, 579.) The Appeals Council denied Plaintiff's request for review on April 13, 2016, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (Id. at 7-11, 599.) He filed a civil action, and his claim was remanded for further proceedings on February 27, 2017. (Id. at 604-19.) A second hearing was held on July 17, 2018. (Id. at 539-71, 673, 680, 698, 702, 709, 727, 734, 736.) Plaintiff testified at the hearing, as did a vocational expert. (Id.) The ALJ issued a second unfavorable decision on August 29, 2018 and this civil action followed. (Id. at 505, 511-32.)
In making the determination that Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ's decision:
(1) The claimant last met the insured status requirements of the Social Security Act on June 30, 2011.
(2) The claimant did not engage in substantial gainful activity during the period from his alleged onset date of May 5, 2010 through his date last insured of June 30, 2011. (20 CFR 404.1571 et seq).
(3) Through the date last insured, the claimant had the following severe impairments: obesity; osteoarthritis; bilateral foot impairments (including "minimal" loss of the plantar arch of each foot, calcaneal spurs, and hallux valgus deformities); low back pain secondary to mild scoliosis and mild arthritic changes; skin impairments (dermatitis; Darier's disease; eczema);
mood disorder; panic disorder; post-traumatic stress disorder (PTSD); and alcohol and cannabis abuse (20 CFR 404.1520(c)).
(4) Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform a limited range of sedentary work as defined in 20 CFR 404.1567(a). He needs a sit/stand option at 30-minute intervals. He can occasionally climb ladders, ropes, and scaffolds. He can frequently climb ramps and stairs. He can frequently stoop, kneel, crouch, and crawl. He must avoid concentrated exposure to vibrations and skin irritants such as dust, gases, chemicals, perfumes, cosmetics, and cleaning supplies. The claimant is able to understand, remember, and carry out simple instructions. He can only work in a low-stress job (defined as a job that requires only occasional decision making and has only occasional changes in the work setting). He can have no interaction with the public. He can have occasional interaction with co-workers. He can have occasional, non-confrontational interaction with supervisors.
(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
(7) The claimant was born on April 4, 1962 and was 49 years old, which is defined as a younger individual age 45-49, on the date last insured (20 CFR 404.1563).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 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 and 20 CFR 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 CFR 404.1569 and 404.1569(a)).
(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from May 5, 2010, the alleged onset date, through June 30, 2011, the date last insured (20 CFR 404.1520(g)).(Id. at 514-32.)
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). The Act also provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. See 42 U.S.C. § 1381 et seq. "Disability" is defined in the Act as the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Social Security Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). Once the claimant has established an inability to return to his past relevant work, the burden shifts to the Commissioner to show that the claimant—considering his age, education, work experience, and residual functional capacity—can perform alternative jobs and that such jobs exist in the national economy. SSR 82-62, 1982 WL 31386, at *3; Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).
The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner "are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires that the court uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g) and Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640.
Substantial evidence is "more than a mere scintilla of evidence but may be less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
On appeal, Plaintiff contends that the ALJ erred by failing to properly evaluate several aspects of Plaintiff's disability claim. First, Plaintiff contends that the ALJ did not properly consider Plaintiff's difficulties in concentration, persistence, and pace, and limitations in his ability to interact with others. (Dkt. No. 14 at 15-23.) Plaintiff also claims that the ALJ failed to properly assess the medical source opinions provided by Plaintiff's Veteran's Administration ("VA") physicians. (Id. at 23-29.) For the reasons set forth below, the undersigned recommends that the District Court Judge remand this matter for further consideration and analysis by the Commissioner.
I. ALJ's Residual Functional Capacity ("RFC") Analysis
"[R]esidual functional capacity is the most [a claimant] can still do despite [her] limitations." Felton-Miller v. Astrue, 459 F. App'x 226, 230 (4th Cir. 2011) (quoting 20 C.F.R. §§ 404.1545(a)). "The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis. . . ." SSR 96-8p (S.S.A. July 2, 1996); accord Mascio, 780 F.3d at 636 (internal quotations omitted). The RFC must be based upon all relevant medical evidence and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3). The ALJ "must consider all the evidence and explain on the record the reasons for his findings, including the reason for rejecting relevant evidence in support of the claim." King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). "Even if legitimate reasons exist for rejecting or discounting certain evidence, the [ALJ] cannot do so for no reason or for the wrong reason." Id. However, "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision." Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). As the party attacking the Commissioner's decision, the claimant carries the burden to show that prejudice resulted from any error. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
Plaintiff argues that the ALJ failed to properly account for his moderate difficulties in maintaining concentration, persistence, and pace under Mascio v. Colvin, 780 F. 3d 632, 637-38 (4th Cir. 2015), by limiting Plaintiff to "understand[ing], remember[ing], and carry[ing] out simple instructions" and "only work[ing] in a low-stress job (defined as a job that requires only occasional decision making and has only occasional changes in the work setting)." (Dkt. No. 14 at 17-21; R. at 520.) More specifically, Plaintiff alleges that the ALJ "fail[ed] to build a logical bridge between the evidence and his conclusion that Roberts could understand, remember, and carry out detailed instructions" and "fail[ed] to include any limitations associated with Roberts's inability to maintain pace and production." (Dkt. No. 14 at 19-21.) The Court agrees.
In Mascio, the ALJ found that the claimant had moderate difficulties in concentration, persistence, and pace at step three of the sequential analysis, but failed to include this limitation in the claimant's RFC assessment or in the hypothetical to the vocational expert ("VE"). 780 F.3d at 634-35, 637-38. Specifically, the ALJ concluded that the claimant had the capacity to perform light work, but was further limited to changing between sitting and standing every thirty (30) minutes; only occasional climbing, balancing, bending, stooping, crouching or crawling; and "due to her adjustment disorder, only unskilled work." Id. at 635. Although the VE provided a list of "unskilled" jobs based on these limitations, the Fourth Circuit found the ALJ's decision "sorely lacking" in the analysis needed for the court to conduct a meaningful review of his conclusions. Id. at 636.
Notably, the Fourth Circuit concluded 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.'" See id. at 638 (citing Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits). The court explained that "the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. Accordingly, the ALJ committed reversible error in failing to explain why a moderate limitation in concentration, persistence, or pace did not translate into a specific limitation in the claimant's RFC:
Perhaps the ALJ can explain why Mascio'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.Id. Since the Fourth Circuit's holding in Mascio, district courts within the Fourth Circuit have followed suit and found that a limitation to simple, unskilled work is "insufficient to address moderate limitations in concentration, persistence, and pace absent further explanation." See Beytes v. Berryhill, No. 8:18-CV-00297-CMC-JDA, 2019 WL 404864, at *10 (D.S.C. Jan. 17, 2019), adopted, No. 8:18-CV-297-CMC, 2019 WL 405609 (D.S.C. Jan. 31, 2019) (collecting cases).
In the instant case, the ALJ determined that Plaintiff had mild limitations in his ability to understand, remember, and apply information, and moderate limitations with respect to his ability to concentrate, persist, or maintain pace. (R. at 519-20, 525.) In support of his Step Three finding that Plaintiff had such mild and moderate limitations, the ALJ stated:
In understanding, remembering, or applying information, the claimant has mild limitations. The evidence indicated the claimant has a Bachelor's Degree. He has reported that he had no difficulty understanding written or oral instructions and he noted that he had no difficulty completing forms (Exhibit B4F). The claimant reported he is able to make change and go shopping by himself, but he usually went with his sister. Also, treatment records indicate the claimant was able to attend doctor's appointments by himself and he provided accurate information about his health. . . .(Id. at 518-19.) The ALJ found that, despite his limitations, Plaintiff was able to understand, remember, and carry out simple instructions so long as he worked in a low-stress job (defined as a job that requires only occasional decision making and has only occasional changes in work setting). (Id. at 525.) To connect these limitations with his Step Three findings, the ALJ cited to his Step Three determination, stating only:
[With respect to] claimant's ability to concentrate, persist, or maintain pace [. . .] claimant had moderate limitations. The evidence indicates the claimant has complained of trouble concentrating, remembering and completing tasks. He stated he needed occasional reminders to bathe and take his medication. In April 2010, the claimant reported that he "does some yard work at times, watches tv, likes music" (Exhibit B4F). A psych exam indicates the claimant "endorse[d] mild to moderate symptoms with memory and concentration (Id.)." The claimant listed "[t]elevision" and "the computer" as recreational activities (Id).
As discussed above, the claimant has a mild limitation in the ability to understand, remember, and apply information; and has a moderate limitation in the ability to concentrate, persist, and maintain pace. Therefore, the undersigned finds he can perform simple tasks in a low stress environment.(Id. at 525.)
Plaintiff contends that this explanation is insufficient, while the Commissioner argues that "the ALJ explained how the evidence supported [the limitations included in Plaintiff's RFC]" and cites to several facts from the record. (Dkt. No. 14 at 17-21; Dkt. No. 15 at 16-18.) Specifically, the Commissioner states:
As the ALJ noted, Plaintiff endorsed only mild to moderate symptoms with regard to memory and concentration during his April 19, 2010 mental health compensation and pension examination (Tr. 380, 519). Furthermore, Plaintiff was able to attend church, keep appointments, perform yard work, watch television, listen to music, and use the internet without difficulty concentrating on these tasks (Tr. 524, 377-78). At his administrative hearing, Plaintiff testified that he was able to live independently and drive a car (Tr. 546). These facts supported the ALJ's finding that Plaintiff was able to understand, remember, and carry out simple instructions in a low stress work environment.(Dkt. No. 15 at 16-18.)
The Commissioner is correct that the ALJ mentioned these facts in his RFC analysis. (R. at 520-30.) However, the Commissioner neglects that the ALJ failed to connect these facts to Plaintiff's mild and moderate limitations or to explain how this evidence supported a finding that Plaintiff was capable of understanding, remembering, and carrying out simple instructions in a low-stress work environment. (Id. at 519-30.) While the ALJ cited to evidence in the record, he did so only in support of his general RFC finding; there is no discussion of Plaintiff's mild and moderate limitations in the ALJ's RFC analysis beyond the cursory statement that "claimant has a mild limitation in the ability to understand, remember, and apply information; and has a moderate limitation in the ability to concentrate, persist, and maintain pace." (Id.) In fact, the ALJ did not connect a single piece of evidence in the record to Plaintiff's ability to understand, remember, and carry out simple instructions in a job requiring occasional decision making with occasional changes in the work setting. As more fully described above, the ALJ provided only the conclusory statement that Plaintiff could "perform simple tasks in a low stress environment" based on his limitations. (Id. at 525.) As a result, the Court is left to wonder how the ALJ determined that Plaintiff's mild and moderate limitations left him capable of "performing simple tasks in a low stress environment." Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015) (stating that the Fourth Circuit's precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record"). In turn, the ALJ failed to provide a logical bridge between the evidence and his conclusion that Plaintiff was capable of the limitations included in Plaintiff's RFC. Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) ("[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. The second component, the ALJ's logical explanation, is just as important as the other two.").
More importantly, Plaintiff correctly notes that the ALJ acknowledged Plaintiff's moderate impairments with respect to his ability to concentrate, persist, and maintain pace, yet did not include limitations associated with that impairment. (Dkt. No. 14 at 20-21; R. at 525.) The Commissioner argues that the ALJ "explained that he accounted for Plaintiff's moderate limitation in concentrating, persisting, or maintaining pace by limiting him to work with simple instructions in a low stress environment, which he defined as requiring only occasional decision making and only occasional changes in the work setting." (Dkt. No. 15 at 16.) However, our precedent makes clear that such a restriction is insufficient to account for Plaintiff's limitations in concentrating, persisting, and maintaining pace absent further explanation. See, e.g., Phillips v. Berryhill, No. 9:17-CV-01945-DCN, 2018 WL 6604228, at *4 (D.S.C. Dec. 17, 2018) (under Mascio and other cases, limitations to simple, routine, repetitive tasks, simple work-related instructions and decisions, few workplace changes, and occasional interactions do not address a claimant's limitations in concentration, persistence, or pace and his ability to work a full day); Carter v. Berryhill, No. 8:17-CV-01277-PMD-JDA, 2018 WL 3353069, at *9 (D.S.C. June 18, 2018) (remanding where ALJ failed to explain how a limitation to "simple, routine, repetitive tasks not performed in a fast paced production environment; involving only simple work-related instructions and decisions and relatively few work place changes" and to "occasional interaction with co-workers and members of the general public" addressed claimant's moderate difficulties in concentration, persistence, and pace because it did not discuss his ability to stay on task), adopted, No. 8:17-CV-1277-PMD, 2018 WL 3344649 (D.S.C. July 9, 2018); Desilets v. Colvin, No. 2:14-CV-1693-RBH, 2015 WL 5691514, at *4-5 (D.S.C. Sept. 28, 2015) (finding a limitation in the RFC to "simple, repetitive tasks that are low stress and require no major decision-making or changes in the work setting" did not "sufficiently address the claimant's limitations in concentration, persistence, or pace as they relate to the RFC"). As noted above, the ALJ concluded that Plaintiff did, in fact, have moderate impairments with respect to concentrating, persisting, or maintaining pace, but provided no additional explanation as to how the limitations included in Plaintiff's RFC accounted for those moderate impairments. (R. at 520-530.) As in Mascio, "the ALJ may find that the concentration, persistence, or pace limitation does not affect [Plaintiff's] ability to work . . . [b]ut because the ALJ here gave no explanation, a remand is in order." 780 F.3d at 638.
II. Remaining Allegations of Error
The undersigned finds the ALJ's failure to accommodate Plaintiff's moderate limitations with respect to concentration, persistence, and pace is a sufficient basis on which to remand the case to the Commissioner and, thus, the undersigned declines to specifically address Plaintiff's additional allegations of error. However, upon remand, the Commissioner should take into consideration Plaintiff's remaining allegations of error, including the ALJ's failure to properly consider Plaintiff's limitations in his ability to interact with others and to properly assess the medical source opinions provided by Plaintiff's VA physicians. (Dkt. No. 14 at 15-29.)
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 15, 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).