Summary
finding "the ALJ's specific percentage limitation to being off-task is the type of limitation that properly accounts for a claimant's difficulties in concentration, persistence, and pace in that it accounts for the claimant's ability to stay on task" as required by Mascio v. Colvin, but that "the ALJ erred by failing to explain the source of his finding that Plaintiff would be off task nine percent of the day."
Summary of this case from Marshall v. SaulOpinion
Civil Action No. 5:19-1571-MGL-KDW
06-23-2020
Jerry Brice Roof, Jr., Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings. I. Relevant Background
A. Procedural History
On September 23, 2015, Plaintiff protectively filed for DIB under Title II of the Act, 42 U.S.C. §§ 401-433, alleging he became disabled on March 19, 2013. Tr. 157-58. After being denied initially, Tr. 72, and upon reconsideration, Tr. 88, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 99-100. The ALJ conducted a hearing on March 15, 2018. Tr. 33-61. The ALJ denied Plaintiff's claim in a decision dated May 25, 2018. Tr. 15-28. Plaintiff requested review of this decision from the Appeals Council. Tr. 153-55. After granting Plaintiff's request for an extension, Tr. 9-10, the Appeals Council denied his request on March 29, 2019, making the ALJ's May 2018 decision the Commissioner's final decision for purposes of judicial review, Tr. 1-5. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed May 30, 2019. ECF No. 1.
B. Plaintiff's Background
Plaintiff was born in June 1970 and was 42 years old as of his alleged onset date of March 19, 2013. Tr. 177. In his form Disability Report-Adult dated September 24, 2015, Plaintiff indicated that he completed high school, did not attend special education classes, and had no other specialized job training, trade, or vocational schooling. Tr. 182. He listed his past relevant work ("PRW") as driver for Evans Petroleum (Apr. 2006-Dec. 2007), driver for TNT Trucking (July 2007-Apr. 2008), driver for CTR Transport (Apr. 2008-Sept. 2009), driver for East Coast Towing (Sept. 2008-Apr. 2009), and driver for Propane delivery and service (May 2010-March 2011). Id. Plaintiff indicated he stopped working on March 19, 2011, due to his medical conditions that he listed as depression, anxiety, and back and hips. Tr. 181. Plaintiff indicated that he was 6'1" tall, weighed 275 pounds, and his conditions caused him pain or other symptoms. Id.
In a Disability Report-Appeal dated February 22, 2016, Plaintiff reported changes in his medical conditions which occurred December 10, 2015. Tr. 208. Plaintiff described the changes as follows:
With degenerative disk disease, my disks in my spine have continued to degenerate. I have two that no longer cushion between my vertebrae. Bending is no longer an option. Dr. Cahill (neurologist) has informed me that there is no surgery that can help with pain or give me any movement or range of motion back. My hip limits movement also. My depression is controlled by medication but it is always there. My anxiety is ok as long as I stay away from people and small places. I have driven a truck most of my life. I had to give up my CDL license because I could no longer sit or safely operate a commercial vehicle.Id. Regarding his daily activities Plaintiff indicated: "Loss in range of motion in bending and reaching down. I have to use a cane to walk, I have fallen several times after losing my balance." Tr. 212. In a subsequent Disability Report-Appeal dated May 19, 2016, Plaintiff reported changes to his medical conditions that occurred in Spring 2016. Plaintiff described these changes as follows:
The ability to walk unaided is no longer an option. Sitting is a chore because of my hip and back. My back does not allow me to do any lifting, turning or twisting. I have had to increase my pain medication. I cannot put my shoes and socks on. I have to have help to get dressed daily. I am not able to cut grass on a riding mower. I have stopped driving, because of my reflexes are not as they should be. I would be a danger on the road. My arthritis in my hands is limiting the movement in my fingers and hands.Tr. 231.
C. Administrative Proceedings
On March 15, 2018, Plaintiff appeared with his counsel for an administrative hearing in Charlotte, North Carolina. Tr. 33. Vocational Expert ("VE") Nora Dunn also appeared via telephone. Tr. 35.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff testified that he lived in Gaston, South Carolina, was 47 years old, and was 6'2" tall and weighed 291.5 pounds. Tr. 37. Plaintiff testified that he last worked in 2010 as a driver and service person for T and T Propane Company. Tr. 37-38. The ALJ noted work dates in the record of May 2010 to March 2011, and Plaintiff acknowledged those dates were "probably right." Tr. 38. Plaintiff clarified that he installed logs, gas lines, and tanks for the propane company; before that he was a driver for East Coast Towing and would respond to calls from AAA customers. Id. Plaintiff confirmed that from April 2008 to September 2009 he worked for CPR Transport driving and dispatching dump trucks; from July 2007 to April 2008 he worked for T and T Trucking driving a dump truck, and from April 2006 to December 2007 he delivered propane, fuel, and lubricants for Evans Petroleum. Tr. 38-39.
Plaintiff testified that he was unable to work because he cannot sit for an extended period of time. Tr. 39. Plaintiff stated that he could sit for five-to-seven minutes before becoming uncomfortable, and that first started "about three years ago." Tr. 39. Plaintiff testified that he could stand "maybe six to 10 minutes, give or take a little bit." Tr. 40. Plaintiff stated that he does not put a lot of weight on his right leg. Id. Plaintiff stated that if he could walk 100 feet he was "winning." Id. He testified that he has a cane that was prescribed by his doctor two-and-a-half years ago when he started having problems with falling. Id. Plaintiff stated that he uses the cane to keep himself steady, and he can walk 20-25 feet without the cane. Id. He stated that if he is at home and can put his hand on something, then he was "okay." Id. When asked how many pounds he could lift Plaintiff testified that will not pick up a milk jug without hurting, and he stated that it was "probably 8 to 10 pounds." Tr. 41.
In response to questions from his counsel regarding his back issues Plaintiff testified that he has not had injections in his spine, but he has had injections in his right hip. Tr. 41. The ALJ interrupted to note that with regard to Plaintiff's right hip there were "two pieces of evidence" in the record—one stated osteoarthritis and the other stated labrum tear. Id. Plaintiff explained that the labrum tear is the "root cause" for the arthritis. Id. He testified: "On the ball of the hip, you got the labrum that covers it. You've got a tear in the labrum. . . . And the body wants to get rid of that inflammation, so I've got bone spurs growing. The body's trying to stop the movement of the joint." Tr. 41-42. Plaintiff confirmed that he has both arthritis and a labrum tear, and this was told to him by his orthopedist, Dr. Holmesly. Tr. 42.
Although spelled phonetically in the transcript as "Holmesly" the record indicates the proper spelling of the doctor's name is "Homesley." Tr. 311.
Plaintiff's counsel resumed questioning and asked if Dr. Holmesly had made any recommendations regarding Plaintiff's hip issue. Tr. 43. Plaintiff stated that hip replacement was recommended but because of issues with his spine and pelvis the hip replacement would not be beneficial. Id. Plaintiff testified that he has fallen "a handful of times" and the last time was three months ago. Tr. 44. Plaintiff testified that his wife has to help him with dressing and bathing. Id. Plaintiff stated that he does not sit the bathtub; he sits on a stool in the shower. Tr. 45. Plaintiff stated that his wife has to wash him from the knees down. Id. Plaintiff stated that his wife works full-time, and she leaves for work at 7:00 and returns home at 3:30. Id. Plaintiff testified that he is at home with the dog during the day and he watches TV or plays games on his phone. Tr. 46. Plaintiff stated that he does not do any household chores and heats in the microwave a plate of food prepared the night before by his wife. Id. Plaintiff confirmed that he is not physically capable of doing chores, so his wife does them. Id. Plaintiff testified that his stepson does the yard work. Tr. 47. Plaintiff stated that their dog is a Pomeranian Pug, and his wife takes him out before she goes to work and then takes him out when she returns home from work. Id. Plaintiff testified that he does not drive and no longer has his commercial driver's license ("CDL"). Id. Plaintiff testified that when he attempted to renew his license, he was unable to pass the physical part of the CDL exam. Tr. 48. Plaintiff testified that he does not leave the house much but once a month they go out to eat and to a movie. Id. Plaintiff stated that before the onset of his physical issues they would go to the beach once a month, but he "can't handle that long a ride anymore." Id. Plaintiff stated the ride to the beach was about two-and-a-half hours. Id. Plaintiff testified that the ride to the administrative hearing was about an hour and 45 minutes, and it "was okay" because he took an extra pain pill. Tr. 49. Plaintiff stated that the pain medication "takes the edge off" but nothing takes the pain away totally. Id. Plaintiff testified that he would be unable to bend over to pick up dropped change from the floor, but he had no problems reaching overhead. Id. Plaintiff stated that he also likes to read during the day. Tr. 50. Plaintiff agreed that he has good days and bad days with pain. Id. He stated that on a bad day he would rate his pain at eight on a zero-to-ten pain scale. Id. Plaintiff stated that currently he was having "about three to four bad days out of a week." Id. Plaintiff stated that on a bad day he does not get out of bed. Id. Plaintiff stated that weather affects his pain, and if it rains it will not be a good day. Tr. 51. Plaintiff agreed with counsel that pain affected his ability to get along with people. Id. Plaintiff stated that not liking people was just his personality. He stated that he could "talk and get along with anybody to a certain extent, but [he] just [did not] tolerate . . . stupidity very well." Id. Plaintiff stated that he was "lucky" with his employment because as long as he did his job his coworkers and supervisors did not bother him, and he did not bother them. Id. Plaintiff testified that his pain was currently "running about a five and a half." Id.
The ALJ asked Plaintiff about a reference that he worked as a painter, and Plaintiff testified that he never worked as a painter. Tr. 51-52. Plaintiff confirmed that he owned a shaved-ice business and was self-employed from 2009 until 2013. Tr. 52. The ALJ cited an exhibit from September 2016 that indicated Plaintiff had recently ended his business. Id. Plaintiff confirmed that he "had stepped away at 2014 and then sold it out 2016 to the girl who was working for [him]." Id. The ALJ noted that based on the records Plaintiff had indicated he stopped working in March 2011, but that he should have reported the income made from his shaved ice business. Tr. 53. Plaintiff stated that from 2012 to 2014 he earned "7,000 to $8,000 a year. It wasn't a whole lot. It was seasonal. It only ran in the summertime." Id.
The ALJ indicated there was a statement that Plaintiff was not "always using the hydrocodone or medicine that was prescribed to [him]." Tr. 54. Plaintiff responded that was not correct, and he had used since it was prescribed. Id. The ALJ also questioned Plaintiff regarding the results from a 2015 MRI. Tr. 54-55. Plaintiff testified that he started using his cane in the Fall of 2015. Tr. 55.
2. VE's Testimony
The VE identified Plaintiff's PRW as tow truck driver, Dictionary of Occupational Titles ("DOT") number 919.663-026, medium, skill level of 3; over-the-road truck driver, DOT 904.383-010, medium, skill level of 4; market manager, DOT 186.167-042, sedentary, skill level of 7; propane truck driver, DOT 903.683-018, medium, skill level of 3; dump truck driver, DOT 902.683-010, medium, skill level of 2; and small business owner, DOT 185.167-046, light, skill level of 7. Tr. 58.
The ALJ asked the VE to assume that based on the record, Plaintiff's "demonstrated exertional impairments reflect the residual functional capacity for a full range of light work on a sustained basis." Id. The ALJ added the following limitations:
Assume further that he's demonstrated certain significant non-exertional impairments principally relating to lumbar DDD, lumbar radiculopathy, hypertension, osteoarthritis of the right hip, labrum tear of the right hip, obesity, anxiety and depression, which limits him to work requiring occasional climbing of ladders.Tr. 58-59. The ALJ asked, considering Plaintiff's age, education, and prior relevant work experience, if there were jobs available that he could do. Tr. 59. The VE answered affirmatively and provided the following examples: housekeeping cleaner, DOT 323.687-014, light, skill level of 2, approximately 137,346 jobs in the U.S.; marking clerk, DOT 209.587-034, light, skill level of 2, approximately 303,533 jobs in the U.S.; and routing clerk, DOT 222.687-022, light, skill level of 2, approximately 41,754 jobs in the U.S. Id.
Avoid concentrated exposure to hazards and in parentheses, machinery, simple, routine, competitive tasks in a stable environment at a non-production pace with occasional, interpersonal interaction. He would be off task 9 percent of an eight-hour workday. . . . Concentration is greater than two hours of an eight-hour workday.
The ALJ asked if Plaintiff could return to any of his prior jobs and the VE responded in the negative. Tr. 59-60. The ALJ asked, when comparing his hypothetical to the DOT, if there were any inconsistencies that needed to be explained. Tr. 60. The VE testified that the reduced social functioning, the off-task behavior, and the two hours of concentration were variables that were not addressed specifically in the DOT and for those he relied on his experience. Id. The VE affirmed that his testimony was consistent with the information in the DOT and in the publication, Selected Characteristics of Occupations, except as he noted. Id.
Plaintiff's counsel had no questions for the VE. Tr. 60. II. Discussion
A. The ALJ's Findings
In his May 25, 2018 decision, the ALJ made the following findings of fact and conclusions of law:
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 March 19, 2013 through his date last insured of December 31, 2016 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: lumbar degenerative disc disease and radiculopathy, hypertension, osteoarthritis of the right hip, labrum tear of the right hip, obesity, anxiety and depression (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).Tr. 20, 22, 26-28.
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 light work (lift and carry 20 pounds occasionally and 10 pounds frequently, as defined in 20 CFR 404.1567(b)), except he can occasionally climb ladders, he should avoid concentrated exposure to hazards such as machinery, he is capable of simple routine repetitive tasks in a stable environment at a nonproduction pace with occasional interpersonal interaction, he would be off task 9% of an 8-hour day, and he could concentrate greater than 2 hours in an 8-hour workday.
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 June 16, 1970 and was 46 years old, which is defined as a younger individual age 18-49, on the date last insured (20CFR 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 March 19, 2013, the alleged onset date, through December 31, 2016, the date last insured (20 CFR 404.1520(g)).
B. Legal Framework
1. The Commissioner's Determination-of-Disability Process
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," defined as:
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 12 months[.]42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the listed impairments, found at 20 C.F.R. Part 404, Subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals all criteria of any of the listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if he/she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 404.1520(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his/her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he/she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146, n.5 (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id., Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 428 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings, and that the conclusion is rational. See Vitek, 428 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
C. Analysis
Plaintiff alleges that (1) the ALJ did not explain his RFC finding as required by SSR 96-8p, and (2) the ALJ failed to properly assess medical source opinion evidence. Pl.'s Br. 11, 19, ECF No. 19.
1. The ALJ's RFC Assessment
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most. Id. (emphasis in original). At the administrative hearing level the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. § 404.1546(c). An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3) and (4).
Plaintiff asserts the ALJ did not satisfy SSR 96-8p, which provides:
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.1996 WL 374184, at *7. The court notes, though, that ALJs are not required to specifically discuss and analyze every piece of evidence in the case in their narrative opinions so long as it is possible for the reviewing court to realize that all relevant evidence was considered, though not written about, in reaching the ultimate decision. Phillips v. Barnhart, 91 F. App'x 775, 780 n.7 (3d Cir. 2004) ("[T]he ALJ's mere failure to cite specific evidence does not establish that the ALJ failed to consider it."); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) ("Although required to develop the record fully and fairly, an ALJ is not required to discuss every piece of evidence submitted."); Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (finding that "there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision, so long as the ALJ's decision . . . is not a broad rejection" insufficient to enable the reviewing court to conclude that the ALJ considered the claimant's medical condition as a whole).
Citing to Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), Plaintiff contends that the ALJ did not perform the proper "function-by-function" analysis in making his RFC finding. Pl.'s Br. 12-13.
a. Plaintiff's Use of Cane
Plaintiff contends that the ALJ failed to discuss his use of a cane and how it affected the RFC, and he failed properly evaluate Plaintiff's use of a cane as required by SSR 96-9p. Pl.'s Br. 13. The Commissioner argues that substantial evidence supports the ALJ's determination that an assistive device was not medically required. Def.'s Br. 16, ECF No. 21.
SSR 96-9p explains the policies regarding the capability of a claimant to do other work when the claimant has an RFC for less than the full range of sedentary work, and although the ALJ determined Plaintiff is capable of performing a reduced range of light work both parties cite to the Ruling to support their arguments. Regarding exertional limitations, the Ruling provides:
"SSR 96-9p explains the impact of an assistive device on an RFC for sedentary work, rather than the light work at issue here. However, courts within this circuit have applied this ruling to light work also, since it involves greater lifting than sedentary work." Mazyck v. Saul, No. CV 9:18-2689-TMC-BM, 2019 WL 4575575, at *9, n.8 (D.S.C. Sept. 11, 2019) (citing Timmons v. Colvin, No. 3:12CV609, 2013 WL 4775131, at *8 (W.D.N.C. Sept. 5, 2013) (noting that courts have applied SSR 96-9p to light work as it involves greater lifting than sedentary and because "a plaintiff always bears the burden of proving her RFC, and therefore the standards in SSR 96-9p can be useful in determining if a plaintiff met that burden."), report and recommendation adopted, No. CV 9:18-2689-TMC, 2019 WL 4573423 (D.S.C. Sept. 19, 2019) .
To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information). The adjudicator must always consider the particular facts of a case.SSR 96-9p, 1996 WL 374185, at *7.
The Commissioner contends that the ALJ "provided sufficient attention to the cane in his decision." Def.'s Br. 16. However, the ALJ's only reference to a cane was in his discussion of Plaintiff's testimony at the administrative hearing. The ALJ noted that Plaintiff testified "that his cane was prescribed because he began falling," and "he has had a cane for two and a half years." Tr. 23. The Commissioner argues that the ALJ considered Plaintiff's statement and "contrasted that with the longitudinal treatment records revealing that Plaintiff generally had normal physical examinations, although he had an antalgic gait at times," mild findings of MRIs and x-rays, and conservative treatment. Def.'s Br. 16-17. However, the ALJ did not make any type of analysis relating these findings to Plaintiff's use of a cane. Nor does the ALJ's decision reflect that he considered if a cane was medically required or if he considered Plaintiff's use of a cane in making his RFC assessment. Under 96-9p, the first prong for finding that a hand-held assistive device is medically required is medical documentation establishing the need, and the second prong is documentation providing a description of the circumstances for which the device is needed. As evidence that his cane was medically required Plaintiff cites to records showing he had an antalgic gait and ambulated with a cane, and to his doctor's statement that he needed a cane. Pl.'s Br. 13.
On October 17, 2017, Dr. Philip Hanrahan completed a Physical Medical Source Statement regarding Plaintiff's impairments. Tr. 902-06. His diagnoses were degenerative disc disease, right hip pain, chronic back pain, arthritis, and bilateral low back pain with sciatica. Tr. 902. Among other limitations, Dr. Hanrahan indicated that Plaintiff must use a cane or other assistive device while "engaging in occasional standing/walking." Tr. 905. The ALJ considered Dr. Hanrahan's statement, noting that it was made "well past the date last insured" and gave it "no weight." Tr. 25. In making this finding, the ALJ citing to several of the other functional limitations identified by Dr. Hanrahan noting that they were inconsistent with his treatment records and that the doctor did not provide reasons for his limitations. Id. Notably, however, in his discussion of Dr. Hanrahan's statement the ALJ did not cite to Dr. Hanrahan's limitation regarding use of cane.
Because the ALJ did not address Plaintiff's use of a cane in formulating his RFC assessment or Plaintiff's doctor's opinion regarding his need for a cane, the undersigned is unable to determine if substantial evidence supports the ALJ's RFC finding and recommends remand for consideration of this issue.
b. Plaintiff's Mental Impairments
At Step Two of the sequential evaluation process the ALJ determined that, in addition to physical impairments, Plaintiff had the severe mental impairments of anxiety and depression. Tr. 20. At Step Three the ALJ determined that the "severity of the claimant's mental impairments, considered singly and in combination, did not meet or medically equal the criteria of listings 12.04 and 12.06." Tr. 21. As required by the regulations, the ALJ documented application of the special technique by incorporating pertinent findings and conclusions as to the degree of limitation in each of the functional areas. Id.
As noted previously, an ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(3) and (4). The ALJ's decision must "include a narrative discussion describing how the evidence supports each conclusion," Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), and an ALJ "must build an accurate and logical bridge from the evidence to his conclusion." Id. (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
The regulations provide steps that must be applied in evaluating mental impairments. See 20 C.F.R. § 404.1520a. The ALJ must follow a "special technique" to determine the severity of a claimant's mental impairments. 20 C.F.R. § 404.1520a(a). Under the special technique, the ALJ first evaluates the claimant's pertinent symptoms, signs, and laboratory findings to substantiate the presence of a medically determinable mental impairment. Id. § 404.1520a(b)(1). Then the ALJ rates the claimant's degree of functional limitation resulting from the impairment. Id. § 404.1520a(b)(2). The rating determines whether the claimant's impairment is severe or not severe. Id. § 404.1520a(d). The ALJ considers four broad functional areas in order to rate a claimant's degree of functional limitation: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself. Id. § 404.1520a(c)(3); see id. Pt. 404, Subpt. P, App. 1, § 12.00C. The ALJ considers factors such as "the quality and level of [the claimant's] overall functional performance, any episodic limitations, the amount of supervision or assistance [the claimant] require[s], and the settings in which [the claimant is] able to function." Id. § 404.1520a(c)(2); see id. Pt. 404, Subpt. P, App. 1, § 12.00C-H. The ratings for the functional areas consist of a five-point scale: none, mild, moderate, marked, and extreme. Id. § 404.1520a(c)(4). SSR 96-8p provides that in assessing a claimant's mental RFC the ALJ should consider "[w]ork-related mental activities generally required by competitive, remunerative work [which] include the abilities to: understand, carry out, and remember instructions; use judgment in making work-related decisions; respond appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting. 1996 WL 374184, at * 6.
In his RFC assessment the ALJ determined that Plaintiff is "capable of simple routine repetitive tasks in a stable environment at a nonproduction pace with occasional interpersonal interaction, he would be off task 9% of an 8-hour workday, and he could concentrate greater than 2 hours in an 8-hour workday." Tr. 22.
i. Limitations in Social Interaction
Plaintiff asserts the ALJ failed to explain how his RFC accounts for his moderate limitations in interacting with others. Pl.'s Br. 15. Plaintiff contends that the ALJ's "limitation to 'occasional interpersonal interaction' is not properly explained by the ALJ." Id. The Commissioner contends that the ALJ appropriately accounted for Plaintiff's moderate limitation in interacting with others. Def.'s Br. 11-13.
In the functional area of interacting with others the ALJ found that Plaintiff had a moderate limitation. Tr. 21. The ALJ noted:
He told Dr. Coe that is medication did a fair job of managing his discomfort in social settings and that he was able to tolerate being in small groups but he tended to avoid large, crowded social settings. He described occasionally experiencing problems with irritable mood and anger management. Dr. Coe observed the claimant established rapport easily and readily answered all questions presented. Based on the claimant's reports, Dr. Coe found that the claimant might likely function best at work in a small group environment with familiar peers and limited public interaction (Exhibit 5F).Id. The ALJ noted Plaintiff's hearing testimony that "his pain impacts his ability to get along with others, [and] that he does not like people[.]" Tr. 23. In his discussion of Plaintiff's mental RFC, the ALJ noted that Plaintiff's depression and anxiety had been managed by primary care with Dr. Hanrahan. Tr. 26. The ALJ stated that Dr. Hanrahan "commonly noted that the claimant's depression and anxiety were under control on medication (Exhibit 9F), which is consistent with Dr. Coe's report." Id. The ALJ also gave "great weight to the State Agency finding that the claimant would perform best in a work situation without ongoing public interaction (Exhibit 5A), but giving some weight to the claimant's testimony, the undersigned gave him additional limitations." Id.
On February 3, 2016 psychologist Mark Coe, Ph.D. completed a mental status evaluation of Plaintiff. Tr. 335-37.
The correct exhibit number is 4A. See Tr. 84.
The ALJ's analysis of the evidence provides a logical bridge between the evidence and his RFC findings regarding the limits on Plaintiff's social interaction. The Fourth Circuit has clarified that while the RFC assessment must include a narrative discussion describing how the evidence supports the ALJ's conclusions, there is no particular language or format to follow so long as it permits meaningful judicial review. Monroe v. Colvin, 826 F.3d at 189. Because the ALJ's discussion allows the court to meaningfully review this portion of his RFC conclusion, remand is not necessary.
ii. Limitations in Concentration, Persistence, and Pace
Plaintiff contends that the "ALJ fails to explain the RFC's accommodations for limitations in concentration, persistence, and pace." Pl.'s Br. 16. The Commissioner argues that the ALJ's limitations demonstrate that he considered Plaintiff's ability to complete tasks and stay on task. Def.'s Br. 14.
In the functional area of concentrating, persisting, or maintaining pace the ALJ found that Plaintiff had a mild limitation. Tr. 21. The ALJ noted:
[Plaintiff] stated he was able to manage his financial affairs independently. Dr. Coe observed the claimant's attention and impulse control appeared adequate for tasks presented. He was able to recall 3/3 words immediately but only 2/3 words after a delay. He was able to perform serial 7s and spelled world correctly forward and backward (Exhibit 5F).Id. As discussed above, in his RFC assessment the ALJ determined that Plaintiff was limited to simple, routine, and repetitive tasks performed at a nonproduction pace. Tr. 22. The ALJ specifically determined Plaintiff "would be off task 9% of an 8-hour workday, and he could concentrate greater than 2 hours in an 8-hour workday." Id. Plaintiff asserts that the "off task" portion of the ALJ's assessment "is simply conclusory and does not contain any rationale or reference to the supporting evidence" and the "greater than 2 hours" portion is "confusing." Pl.'s Br. 16-17. The Commissioner attempts to address the two-hour-concentration issue by providing an "obvious interpretation" based on the number of "normal breaks" a worker receives during the workday. Def.'s Br. 14. The Commissioner does not address the nine-percent-off-task issue.
The ALJ's specific percentage limitation to being off-task is the type of limitation that properly accounts for a claimant's difficulties in concentration, persistence, and pace in that it accounts for the claimant's ability to stay on task. Mascio v. Colvin, 780 F.3d at 638. However, the ALJ erred by failing to explain the source of his finding that Plaintiff would be off task nine percent of the day. Carter v. Berryhill, No. 2:17-CV-04399, 2018 WL 4169108, at *3 (S.D.W. Va. Aug. 30, 2018) (remanding the case because "the ALJ settled on a number for the off-task time without tying the finding to the evidence" and therefore "did not build a bridge from the evidence regarding [the plaintiff's] limitations to the conclusion that she would be off-task fifteen percent (15%) of the day, in addition to regular breaks."). The undersigned also finds that the ALJ's discussion of the evidence does not provide as basis for his determination that Plaintiff had the ability to concentrate for "greater than two hours" nor does the ALJ explain the boundaries of the number of hours Plaintiff can concentrate. Accordingly, the undersigned recommends remand because the ALJ's RFC assessment does not contain the necessary explanation that allows for meaningful judicial review. Mascio v. Colvin, 780 F.3d at 636.
2. The ALJ's Consideration of Opinion Evidence
Plaintiff argues that the ALJ failed to properly assess the opinion of his chiropractor. Pl.'s Br. 20-22. The Commissioner contends that "substantial evidence supports the ALJ's assignment of no weight to an extreme checkbox opinion from an unknown author." Def.'s Br. 17.
Social Security regulations require that medical opinions in a case be considered together with the rest of the relevant evidence. 20 C.F.R. § 404.1527(b). "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1). Statements that a patient is "disabled" or unable to work or meets the Listing requirements or similar statements are not medical opinions, but rather, are administrative findings reserved for the Commissioner. SSR 96-5p, 1996 WL 374183 at *2 (July 2, 1996). No special significance will be given to the source of an opinion on an issue reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(3).
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. § 404.1520c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. § 404.1527 is applicable.
The record contains a one-page, undated and unsigned Medical Release/Physician's Statement ("the Statement"). Tr. 454. The Statement is part of the records from Southern States Spine & Muscle Rehabilitation Center ("Southern States"). See Ex. 7F, Tr. 443-524. The Statement was requested from the Lancaster County Department of Social Services ("DSS") and noted that Plaintiff had applied for benefits and claimed to be disabled. Tr. 454. The Statement consists of questions requiring a check-box response. Under Part A - Personal Disability, the respondent indicates that Plaintiff's disability is permanent, and he can work part-time at 10-14 hours a week. Tr. 454. Under Part B-Activity Restrictions, the respondent indicates Plaintiff can sit, walk, climb stairs/ladders, kneel/squat, bend/stoop, push/pull, and lift/carry for two hours per workday; and stand and keyboard for four hours per workday. Id. The respondent indicates Plaintiff may not lift/carry objects more than ten pounds for more than two hours per day. Id.
The ALJ acknowledged that Plaintiff was seen by a chiropractor at Southern States from May 2014 to November 2015; however, the chiropractor's name is not stated in the records and his signature on the documents is illegible. Tr. 23. Citing to the Statement requested from the Lancaster County DSS, the ALJ gave the assessment of disability status "no weight." Id. The ALJ stated:
It is not evident from any of the records what his chiropractor's name is. Furthermore, he is not an appropriate medical source as a chiropractor, and this form
was filled out evidently to determine child support payments. The undersigned also noted the claimant told Dr. Bhagia in March 2015 that chiro treatment was giving him relief but he could no longer afford the treatment (Exhibit 1F).Id.
Plaintiff objects to the ALJ assigning no weight to the opinion because of a missing name and objects to the determination that the form was used in relation to child support payments. Pl.'s Br. 20. Plaintiff contends the ALJ failed to discuss the Statement's consistency with the chiropractor's treatment notes or Dr. Hanrahan's opinion. Id. at 21-22. The Commissioner contends the ALJ was correct to assign no weight to the Statement's disability finding as "[t]he determination of disability is an issue reserved to the Commissioner." Def.'s Br. 18 (citing 20 C.F.R. § 404.1527(d)(1)).
Because the Statement was part of the chiropractor's records, the parties assume it was completed by the chiropractor. While this fact cannot be verified based on the evidence presented—indeed, even in making his arguments Plaintiff does not provide the name of his chiropractor—at the time of Plaintiff's claim a chiropractor was not considered an acceptable medical source, but instead was an "other source." 20 C.F.R. § 404.1513(d)(1). "The evaluation of an opinion from a medical source who is not an 'acceptable medical source' depends on the particular facts in each case. Each case must be adjudicated on its own merits based on a consideration of the probative value of the opinions and a weighing of all the evidence in that particular case." SSR 06-03p, 2006 WL 2329939, at *5.
This version of the regulation was in effect until March 27, 2017 and, therefore, applies to Plaintiff's claim filed in 2015. --------
The regulations also provide that "[t]he better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion." 20 C.F.R. §§ 404.1527(c)(3). Here, no explanation is provided for the responses contained in the Statement. Bishop v. Astrue, No. CA 1:10-2714-TMC, 2012 WL 951775, at *3 n.5 (D.S.C. Mar. 20, 2012) (noting that "[f]orm reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best." See, e.g., Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993). See also O'Leary v. Schweker, 710 F.2d 1334, 1341 (8th Cir. 1993) (observing that checklist forms are entitled to little weight due to lack of explanation)).
While an ALJ is under no obligation to accept any medical opinion, he must nevertheless explain the weight afforded such opinions. See SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). "When, as here, an ALJ denies a claimant's application, the ALJ must state 'specific reasons for the weight given to the treating source's medical opinion,' to enable reviewing bodies to identify clearly the reasons for the ALJ's decision." Sharp v. Colvin, 660 F. App'x 251, 257 (4th Cir. 2016). In Sharp, the Fourth Circuit determined that the "ALJ did not summarily conclude that [the doctor's] opinion merited little weight" because the ALJ explained why he discredited the opinion, remarking that the claimant's limitations were not supported by the doctor's office notes. Id.
The ALJ considered the Statement, noted that it assessed Plaintiff's disability status and, as allowed by the regulations, gave no weight to that opinion. The ALJ duly noted that the chiropractor was not an "appropriate medical source" but the ALJ provided no basis for his finding that the opinion was obtained "to determine child support payments." Tr. 23. The ALJ also did not explain how Plaintiff's statement to Dr. Bhagia regarding his inability to continue chiropractic treatment impacted the weight given to the opinion. See id.
The court is not to re-weigh the evidence or substitute its judgment for that of the Commissioner but is to determine whether the ALJ's weighing of the evidence is supported by substantial evidence in the record. See generally Hays v. Sullivan, 907 F.2d at 1456 (noting judicial review limited to determining whether findings supported by substantial evidence and whether correct law was applied). While the Statement itself is sorely lacking in detail, some of the ALJ's reasoning is unclear. Because remand is recommended on other issues, the ALJ should also revisit his consideration of the Statement. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings as discussed above.
IT IS SO RECOMMENDED. June 23, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge