Opinion
2:23-cv-00001-BHH-MGB
12-12-2023
SHIRLEY H.,[1] Plaintiff, v. KILOLO KIJAKAZI, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Shirley H. (“Plaintiff”) brought this action pursuant to Section 205(g) of the Social Security Act, as amended, (42 U.S.C. Section 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding her claim for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”). See Section 205(g) of the SSA, as amended, 42 U.S.C. § 405(g). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned RECOMMENDS that the Commissioner's decision be REVERSED, and that the case be REMANDED for further consideration in accordance with this Report and Recommendation.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 57 years old on her date last insured, December 31, 2022. (R. at 74, 85.) She alleges a disability onset date of October 15, 2017. (R. at 74, 85.) Plaintiff originally claimed disability due to arthritis, depression, chronic pain in her hips, carpal tunnel in her hands, degenerative disc disease, hearing loss, asthma, severe memory loss, and peptic ulcer disease. (R. at 75, 86.) Plaintiff has past relevant work as a quality assurance coordinator, nurse assistant, and landscape supervisor. (R. at 25-26.)
Plaintiff filed an application for DIB on June 26, 2020. (R. at 84, 101.) Her application was denied initially and upon reconsideration. (R. at 84, 101.) After a telephonic hearing before an Administrative Law Judge (“ALJ”) on March 24, 2022, the ALJ issued a decision on April 15, 2022, in which the ALJ found that Plaintiff was not disabled. (R. at 14-52.) The Appeals Council denied Plaintiff's request for review, (R. at 1-7), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.
In making the determination that the Plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2022.
(2) The claimant has not engaged in substantial gainful activity since October 15, 2017, the alleged onset date (20 CFR 404.1571 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease, mild arthritis in hips, carpal tunnel syndrome, arthritis, and asthma (20 CFR 404.1520(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except no climbing ladders, ropes, or scaffolds; no crawling; occasional climbing ramps and stairs, balancing, stooping, kneeling, and crouching; frequent handling and fingering objects; and no concentrated exposure to atmospheric conditions such as fumes, odors, dust, gases, and poor ventilation.
(6) The claimant is capable of performing past relevant work as a quality assurance coordinator. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
(7) The claimant has not been under a disability, as defined in the Social Security Act, from October 15, 2017, through the date of this decision (20 CFR 404.1520(f)).(R. at 19-26.)
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). “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.” 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. 20 C.F.R. § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof with respect to the first four steps of the analysis. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017). 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, 699 F.2d at 191; Pass, 65 F.3d at 1203; 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 Commissioner supported his findings with substantial evidence and applied the correct law. 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); Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 94 (4th Cir. 2020); 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); Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012); Mascio, 780 F.3d at 640; Dowling v. Comm'r of Soc. Sec. Admin., 986 F.3d 377, 383 (4th Cir. 2021); 42 U.S.C. § 405(g).
“Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Dowling, 986 F.3d at 383 (citing Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015)). It is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson, 810 F.3d at 207 (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].” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Hancock, 667 F.3d at 472; Arakas, 983 F.3d at 95; Dowling, 986 F.3d at 383. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled,” the reviewing court must defer to the ALJ's decision. Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (citing Hancock, 667 F.3d at 472).
However, the court does not “reflexively rubber-stamp an ALJ's findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherrypick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge' from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).
DISCUSSION
Plaintiff argues that the ALJ committed reversible error by: (1) failing to adopt mental limitations that he found credible, or to explain why such limitations were omitted from Plaintiff's residual functional capacity (“RFC”); and (2) failing to properly analyze Plaintiff's ability to perform her past relevant work. (Dkt. No. 9 at 3-13.) The Commissioner counters that the ALJ's decision-including his analysis of Plaintiff's mental limitations and past relevant work-is supported by substantial evidence and free from legal error. (See generally Dkt. No. 11.) The Commissioner therefore contends that the ALJ's decision should be affirmed. (Id.) For the reasons set forth in greater detail below, the undersigned finds that the ALJ erred in failing to explain why he omitted mental limitations from Plaintiff's RFC. The undersigned therefore RECOMMENDS that the Court REVERSE the Commissioner's decision and REMAND the case for further consideration of this issue.
I. ALJ's Consideration of Plaintiff's Mild Limitations in Understanding, Remembering or Applying Information
A. Arguments
Plaintiff first claims that “the ALJ completed the [requisite psychiatric review technique] and found that [Plaintiff] had a mild limitation in understanding, remembering, or applying information” but “[d]espite the ALJ's own findings, . . . the ALJ adopted absolutely ZERO mental limitations in his RFC” and “fail[ed] to explain why the limitations he found credible at step two would not impact [Plaintiff's] ability to work.” (Dkt. No. 9 at 3-4.) In response, the Commissioner argues that “[w]hile the ALJ must consider severe and non-severe impairments when formulating the RFC, there is no requirement that the RFC reflect a claimant's non-severe impairments to the extent the ALJ reasonably determines such impairments do not create functional limitations on a claimant's ability to work.” (Dkt. No. 11 at 10.) In her reply, Plaintiff asserts that the Commissioner's arguments miss the point, noting that she “has not challenged the ALJ's finding of non-severe mental impairments ....Rather, she has argued, consistent with SSA's own policy, that an ALJ must include all credible limitations in his RFC, regardless of whether they arise from severe or non-severe impairments.” (Dkt. No. 12 at 1.) Plaintiff further clarifies that she “has not argued that an ALJ must always include mild limitations found credible at steps two or three in the RFC. Instead, she has argued that an ALJ must either accommodate such limitations or explain why he has chosen not to do so.” (Id. at 3.) According to Plaintiff, this contention is “entirely consistent” with Social Security Ruling 96-8p.
B. Legal Standard
Social Security Ruling 96-8p provides:
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, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545
and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling continues on to explain:
In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not “severe.” While a “not severe” impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may-when considered with limitations or restrictions due to other impairments-be critical to the outcome of a claim. For example, in combination with limitations imposed by an individual's other impairments, the limitations due to such a “not severe” impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual still may be able to do.SSR 96-8p, 1996 WL 362207, at *5. The ruling also notes that ALJs “must remember that the limitations identified in the ‘paragraph B' . . . criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) . . .,” and that “[t]he mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C....” Id. at *4.
C. ALJ Decision
Here, the ALJ considered Plaintiff's mental limitations at step two of the sequential evaluation process. (R. at 20.) He first evaluated Plaintiff's depression, stating:
On June 21, 2018, the claimant was seen by Dr. Weirick with several complaints including depression. On examination, she was alert and oriented with normal mood, affect, speech, behavior, thought content, and judgment. Dr. Weirick diagnosed mild episode of recurrent major depressive disorder, and he prescribed medication (Paxil). When seen for follow-up on October 23, 2018, she reported that she was not taking her medication. Examination remained unchanged, and the claimant made no specific complaints related to depression. On October 14, 2020, the claimant again reported depression; however, it was noted that she was off medication. She denied suicidal ideation. Paxil was restarted. On February 3, 2021, the claimant made no mention of mental health complaints. When seen by Dr. Weirick on February 15, 2021, the claimant reported that her depression was adequately controlled with medication. Examination was unremarkable, and her medication was continued with no changes (Exhibits 1F, 3F, 5F, & 6F.)(R. at 20.) The ALJ then concluded that Plaintiff's depression did not cause more than minimal limitation in her ability to perform basic mental work activities and was therefore non-severe. (R. at 20.) The ALJ explained:
In making this finding, the undersigned has considered the broad functional areas of mental functioning set out in the disability regulations for evaluating mental disorders and in the Listing of Impairments ....
The first functional area is understanding, remembering or applying information. In this area, the claimant has mild limitation. The claimant alleged that she has difficulty remembering and completing tasks. However, the claimant also stated that she could prepare meals, performs household chores and yard work, go to doctor's appointments, shop, swim, and drive (Exhibit 4E). In addition, the record shows that the claimant was able to provide information about her health, describe her prior work history, follow instructions from healthcare providers, respond to questions from medical providers, and there is no mention of any issues with her short- or long-term memory.(R. at 20.)
The ALJ moved on to step three, determining that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (R. at 21.) The ALJ then determined that Plaintiff had the RFC to perform light work with several physical limitations. (R. at 22.) The ALJ did not include any mental limitations in the RFC. (R. at 22.) The ALJ's four-page explanation supporting the RFC did not mention Plaintiff's depression, nor her mild limitations in understanding, remembering, or applying information. (R. at 22-25.) Ultimately, the ALJ concluded that Plaintiff's RFC allowed her to perform past relevant work as a quality assurance coordinator. (R. at 26.)
D. Analysis
At the outset, the undersigned notes that the SSA rules do not require ALJs to include specific RFC restrictions connected to mild limitations associated with non-severe impairments. See Camille B. v. Kijakazi, No. 2:20-cv-262, 2021 WL 5179197, at *8 (E.D. Va. July 16, 2021) (finding no error when ALJ did not include mental limitations in RFC after concluding plaintiff had mild limitations in area of mental functioning), adopted, 2021 WL 4205341 (E.D. Va. Sept. 15, 2021), vacated and remanded on other grounds sub nom. Brooks v. Kijakazi, 60 F.4th 735 (4th Cir. 2023); see also Shinaberry, 952 F.3d at 121 (declining to extend holding in Mascio to cases involving only mild mental limitations). However, as Plaintiff correctly notes, the rules do require ALJs to consider “limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'” SSR 96-8p, 1996 WL 362207, at *5. In this case, the ALJ's RFC focuses exclusively on Plaintiff's physical impairments. (R. at 22-25.) Indeed, the RFC analysis makes absolutely no mention of Plaintiff's depression, nor the mild limitations it imposed on Plaintiff's ability to understand, remember, or apply information. (R. at 22-25.) Accordingly, the ALJ's decision does not comply with Social Security Ruling 96-8p.
Further, the ALJ's failure to reference Plaintiff's depression (and/or her mental health records, mental capacity, etc.) leaves the Court to wonder whether the ALJ considered Plaintiff's non-severe mental impairment of depression and concluded that it did not impact her ability to work such that mental limitations were not required in the RFC. As noted, the ALJ was not obligated to include mental limitations in Plaintiff's RFC, but he was obligated to explain why mental limitations were not included. The ALJ failed to provide any such explanation. (R. at 22-25.) The undersigned is therefore left to guess as to how and why the ALJ determined that Plaintiff's depression and the mild limitations in understanding, remembering, and applying information that her depression caused did not impact her ability to perform her past relevant work.
This gap in the ALJ's analysis is particularly troubling because the ALJ concluded that Plaintiff could perform only one job-quality assurance coordinator-which is considered skilled work and has a DOT reasoning level of 5. (R. at 26.) Plaintiff's limitations in understanding, remembering, and applying information are thus directly relevant to her ability to perform this work. See Dictionary of Occupational Titles, 1991 WL 688702 (defining Level 5 reasoning as the ability to “apply principles of logical or scientific thinking to define problems, collect data, establish facts, and draw valid conclusions,” “interpret an extensive variety of technical instructions in mathematical or diagrammatic form,” and “deal with several abstract and concrete variables”). What is more, Plaintiff was an individual of advanced age on the date of her DIB application and has limited education with no evidence of transferable skills, meaning that she would be disabled pursuant to the Medical-Vocational Guidelines (Grid Rules) if she could not perform her past relevant work. (R. at 37, 49, 74, 85.)
Based on the above, the undersigned cannot conclude that the ALJ's decision is supported by substantial evidence and free from legal error. See, e.g., Lindsay v. Kijakazi, No. 6:20-cv-02607-KFM, 2021 WL 9583495, at *4 (D.S.C. Sept. 17, 2021) (remanding where ALJ failed to consider plaintiff's depression in the RFC assessment after concluding it was a non-severe impairment that imposed mild limitations in areas of mental functioning at step two); Cox v. Saul, No. 4:19-cv-02717-TER, 2021 WL 973345, at *5 (D.S.C. Mar. 16, 2021) (remanding when an ALJ failed to consider the effects of a plaintiff's non-severe impairment of migraines when assessing the plaintiff's RFC and thus, “the RFC narrative and determination [were] unsupported by substantial evidence as the ability to sustain work given the impairment of migraine headaches was not discussed by the ALJ”); Anderson v. Saul, No. 4:19-cv-00846-MGL-TER, 2020 WL 3579745, at *5 (D.S.C. June 25, 2020) (remanding “where mental impairments, regardless of severity, were not discussed in formulating the RFC”), adopted, 2020 WL 3548810 (D.S.C. June 30, 2020); Anthony M. v. Comm'r, Soc. Sec. Admin., No. CV SAG-19-651, 2020 WL 434581, at *3 (D. Md. Jan. 28, 2020) (remanding because “the ALJ was required to consider the combined effect of Plaintiff's severe and nonsevere impairments in his RFC discussion, including his nonsevere depression and anxiety”). The undersigned therefore RECOMMENDS that the Commissioner's decision be REVERSED and that the case be REMANDED for further consideration.
II. Remaining Allegations of Error
Plaintiff also argues that the ALJ also erred by failing to properly consider her past relevant work. (Dkt. No. 9 at 8-13.) More specifically, Plaintiff contends that the ALJ improperly assumed that she had worked as a quality assurance coordinator long enough to learn the occupation, and that he failed to recognize that her work as a quality assurance coordinator was a composite job. (Id.) The undersigned need not address this remaining allegation of error, as it may be rendered moot on remand. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). Nonetheless, the ALJ should, if necessary, also take into consideration Plaintiff's remaining allegation of error as part of the overall reconsideration of this claim upon remand.
CONCLUS ION
It is therefore RECOMMENDED, for the foregoing reasons, that the Commissioner's decision be REVERSED and that the case be REMANDED for further proceedings in accordance with this Report and Recommendation.
IT IS SO RECOMMENDED.
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).