Opinion
Civil Action No. 2:17-cv-00362-TMC-MGB
07-18-2018
Kenneth Stanfield, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
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).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
The Plaintiff, Kenneth Stanfield, 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 his claim for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act.
RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS
Plaintiff was 30 years old on his amended alleged disability onset date of March 19, 2014. (R. at 20.) He alleged disability due to, inter alia, depression, intellectual disability, and anxiety. (R. at 14.) Plaintiff has a limited education; he testified that he dropped out of school at age 18 after having completed the ninth grade in special education classes. (R. at 20, 34.) Plaintiff has past relevant work as a car crusher, a machine operator, a cart pusher, and a laborer. (R. at 20.)
Plaintiff originally alleged disability beginning December 30, 2011. (R. at 12.) At the hearing, Plaintiff amended his alleged onset date to March 19, 2014, (see R. at 33, 335), although the ALJ erroneously noted an amended alleged disability onset date of March 9, 2014 in his decision, (see R. at 12). Additionally, although the ALJ indicated that Plaintiff was 33 years old on his amended alleged disability onset date, as Plaintiff was born on January 27, 1984, it appears Plaintiff was actually 30 years old on March 19, 2014. (R. at 20, 34.)
Plaintiff protectively filed an application for DIB and SSI on October 28, 2015. (R. at 12.) His applications were denied initially and on reconsideration. (R. at 12.) After a hearing before an Administrative Law Judge (ALJ) on August 12, 2016, the ALJ issued a decision on September 20, 2016, in which the ALJ found that Plaintiff was not disabled. (R. at 12-22.)
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 September 30, 2015.
(2) The claimant has not engaged in substantial gainful activity since March 9, 2014, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: history of cannabis use disorder, depression versus major depressive disorder, mild intellectual disability, and unspecified anxiety disorder (20 CFR 404.1520(c) and 416.920(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, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to basic 1-2 step tasks, he must avoid tandem work or other work done in close coordination with others in a team type approach, he must avoid work that requires any interaction with the general public, and he can have no more than occasional decision-making or changes in the work setting.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on January 27, 1984 and was 33 years old, which is defined as a younger individual age 18-49, on the amended alleged disability onset date (20 CFR 404.1563 and 416.963).(R. at 14-21.)
(8) The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(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 transferrable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from March 9, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
As noted above, the correct amended alleged onset date is March 19, 2014. (See supra n.2.)
See supra n.2.
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 supplemental security income (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) (definition used in the DIB context); 42 U.S.C. § 1382c(a)(3)(A) (definition used in the SSI context).
"[T]he definition of disability is the same under both DIB and SSI . . . ." Mason v. Colvin, Civ. A. No. 9:12-1157-TLW-BM, 2013 WL 4042188, at *2 n.2 (citing Emberlin v. Astrue, Civ. A. No. 06-4136, 2008 WL 565185, at *1 n.3 (D.S.D. Feb. 29, 2008)).
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 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 (DIB context); 20 C.F.R. § 416.920 (SSI context); see also Brown v. Comm'r, 873 F.3d 251, 254-55 (4th Cir. 2017). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4) (DIB context); 20 C.F.R. § 416.920(a)(4) (SSI context); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).
A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); 42 U.S.C. § 1382c(a)(3)(H)(i). He must make a prima facie showing of disability by showing that he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Grant, 699 F.2d at 191; see also Brown, 873 F.3d at 255. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. See Grant, 699 F.2d at 191-92.
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); see also Richardson v. Perales, 402 U.S. 389 (1971); 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 the court to 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); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).
Thus, it is the duty of this Court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that her conclusion is rational. 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. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
DISCUSSION
The Plaintiff contends that the Commissioner erred in failing to find him disabled. More specifically, Plaintiff contends that "harmful error occurred when the ALJ failed to properly evaluate Listing 12.05 for intellectual disability." (Dkt. No. 19 at 15.) In addition, Plaintiff asserts the ALJ "erred in the weight afforded to an examining physician and a licenced professional counselor" and that the ALJ "failed to provide an accurate residual functional capacity." (Dkt. No. 19 at 18, 21.) The undersigned addresses Plaintiff's arguments below. A. Listing 12.05
Plaintiff asserts that "harmful error occurred when the ALJ failed to properly evaluate Listing 12.05 for intellectual disability." (Dkt. No. 19 at 15 of 23.) Although the ALJ evaluated whether Plaintiff met Listing 12.05, Plaintiff asserts the ALJ erred in analyzing whether Plaintiff had adaptive functioning deficits. (Dkt. No. 19 at 15-18.) Plaintiff points to the following in support of his allegation of error:
(a) "the ALJ discusses Mr. Stanfield's ability to 'access community resources' as a means of discrediting Mr. Stanfield's satisfaction of the Second Prong,"(Dkt. No. 19 at 16-17.)
(b) "the ALJ cites Mr. Stanfield's attempt at 'manipulation' as another factor in denying his benefits," and
(c) "the ALJ wrongly classifies Mr. Stanfield's work as 'supervisory.'"
To determine whether the Plaintiff's impairments meet or equal a listed impairment, the ALJ must identify the relevant listed impairments and compare the listing criteria with the evidence of the plaintiff's symptoms. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). At the time of the ALJ's decision, Listing 12.05 provided as follows:
12.05 Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such that the use of standardized measures of intellectual functioning is precluded;
OR
B. A valid verbal, performance, or full scale IQ of 59 or less;
OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function;
OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, resulting in at least two of the following:
20 C.F.R. Pt. 404, Subpart P, App'x 1, § 12.05. As explained by the Fourth Circuit in Jackson v. Astrue, 467 F. App'x 214 (4th Cir. 2012),1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
Listing 12.05 requires a showing of "deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22." 20 C.F.R. Pt. 404, Subpt. P, App'x 1, § 12.05. Listing 12.05 also requires the satisfaction of one of four additional requirements identified as Requirements A-D.Jackson, 467 F. App'x at 217.
As noted by the Commissioner, the Plaintiff cites the current version of Rule 12.05 in her brief. (Dkt. No. 20 at 14; see also Dkt. No. 19 at 15.) The current version of Rule 12.05 provides, in relevant part,
1. Significantly subaverage general intellectual functioning evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or
b. A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:
a. Understand, remember, or apply information (see 12.00E1); or
b. Interact with others (see 12.00E2); or
c. Concentrate, persist, or maintain pace (see 12.00E3); or
d. Adapt or manage oneself (see 12.00E4); and
3. The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22.20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.05. This version of the listing was effective on January 17, 2017, but because the ALJ in the case sub judice issued his decision on September 20, 2016, the new version does not apply. See Neville v. Berryhill, Civ. A. No. 6:16-cv-6, 2017 WL 3909735, at *3 n.5 (W.D. Va. Aug. 22, 2017), adopted at 2017 WL 3911022 (W.D. Va. Sept. 6, 2017); see also Revised Medical Criteria for Evaluating Mental Disorders, 81 FR 66138-01, available at 2016 WL 5341732 ("We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions.").
In the case sub judice, the ALJ evaluated whether Plaintiff met Listing 12.05. As to the "paragraph D" criteria of Listing 12.05, the ALJ found Plaintiff had a moderate restriction as to activities of daily living; mild difficulties maintaining social functioning; moderate difficulties maintaining concentration, persistence, or pace; and no episodes of decompensation that have been of extended duration. (R. at 15.) Specifically, the ALJ stated,
In activities of daily living, the claimant has moderate restriction. In the claimant's adult function report he stated that he is able to cook for himself. (Exhibit 5E). At the time, the claimant was living in a homeless shelter and stated that he was able to clean the bathroom and dining area, that he went outside daily, and that he was able to use public transportation. The claimant shops for groceries approximately twice per week. Regarding hobbies, the claimant stated that he enjoys playing soccer and Frisbee, and bowling.(R. at 15.)
In social functioning, the claimant has mild difficulties. Although the claimant described himself as a loner, he did state in his function report that he hung out with other men at the shelter.
With regard to concentration, persistence or pace, the claimant has moderate difficulties. The claimant is able to shop for needed items, to use public transportation, and said that he can pay bills, count change, and handle a savings account. (Exhibit 5E). A consultative examiner indicated that the claimant would have marked limitations in this area (Exhibit 9F), but the undersigned gives little weight to this finding because it does not take into consideration his work history, which includes supervisory experience.
The ALJ also discussed his findings with respect to the other paragraphs of Listing 12.05. The ALJ stated,
Turning back to Listing 12.05, the requirements in paragraph A are met when there is mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such that the use of standardized measures of intellectual functioning is precluded.
As for the "paragraph B" criteria, they are not met because the claimant does not have a valid verbal, performance, or full IQ scale of 59 or less. The claimant has been assessed with a valid full scale IQ of 71 at age 16 (Exhibit 6E).
Finally, the "paragraph C" criteria of Listing 12.05 are not met although the claimant does have a valid verbal, performance, or full scale IQ of 60 through 70. His full scale IQ was measured at 66 per Exhibit 9F. He also had a verbal IQ of 69 measured while he was a minor, which indicates that the condition existed before he attained the age of 22. He also has a physical or other mental impairment imposing an additional and significant work-related limitation of function. However, in this case, the requirements for the listing are not met because the claimant does not have adaptive functioning deficits as discussed in the prefatory language of the
listing. The claimant has worked at substantial gainful activity levels, has accessed community resources, and has been suspected of manipulating an examination to avoid going to jail, which indicates a significant reasoning ability. Additionally, the claimant testified that he worked in a supervisory position for a landscaping business, would transport others to the work site, and would oversee other workers on the job site.(R. at 16 (emphasis added).)
As noted above, Plaintiff asserts error in the ALJ's analysis concerning deficits in adaptive functioning. "Deficits in adaptive functioning can include limitations in areas such as communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety." Jackson v. Astrue, 467 F. App'x 214, 218 (4th Cir. 2012) (citing Atkins v. Virginia, 536 U.S. 304, 309 n. 3 (2002)). "[C]ase law shows that the issue of whether a claimant manifested deficits in adaptive functioning during the developmental period is a fact-specific inquiry with few bright-line rules." Weedon v. Astrue, Civ. A. No. 0:11-2971-DCN, 2013 WL 1315311, at *5 (D.S.C. Jan. 31, 2013), adopted at 2013 WL 1315206 (D.S.C. Mar. 28, 2013). However, courts have generally found the following factors instructive: the plaintiff's "diagnosis, if there is one"; whether the plaintiff is illiterate; whether the plaintiff has ever lived independently; "whether the [plaintiff] has ever provided care for others, or, conversely, whether she herself is dependent on others for care"; school records and past academic performance; work history; and "tasks a [plaintiff] is able to undertake." Id. at *5-7.
The undersigned concludes the ALJ's analysis of Plaintiff's adaptive functioning is not supported by substantial evidence. Here, the ALJ pointed to the following to support his conclusion that Plaintiff did not have deficits in adaptive functioning: (a) Plaintiff "has worked at substantial gainful activity levels"; (b) Plaintiff "has accessed community resources"; (c) Plaintiff "has been suspected of manipulating an examination to avoid going to jail, which indicates a significant reasoning ability," and (d) Plaintiff "testified that he worked in a supervisory position for a landscaping business, would transport other workers to the work site, and would oversee other workers on the job site." (R. at 16.) However, as detailed below, the evidence to which the ALJ points is not a fair characterization of the evidence.
To the extent the ALJ finds no deficits in adaptive functioning due to the Plaintiff's accessing community resources, Plaintiff was-at the time of the hearing-living in a homeless shelter. However, Plaintiff testified that it was his father-in-law who took him to the shelter. (R. at 56.) In addition, Ms. Williams, a licenced professional counselor at the shelter, indicated that Plaintiff had difficulty keeping his appointments; she gave an example that, in January of 2016, he made three appointments in one day ("unaware and unable to remember that he had already made an appointment"), and he did not show up for any of those three appointments. (R. at 492.) Plaintiff testified that he has gotten several write-ups at the shelter and that the shelter made special arrangements for him. (R. at 48.) Plaintiff testified he has trouble keeping his appointments at the shelter and that his case manager "has to come find [him] to get [him] to those appointments." (R. at 49.)
To the extent the ALJ notes that Plaintiff was "suspected of manipulating an examination to avoid going to jail," (R. at 16), the record to which this refers is a record dated May 15, 2014 from the Colleton Medical Center. (R. at 367-71.) According to that record, Plaintiff was transported to the emergency room by police "for aggressive behavior" and suicidal ideation. (R. at 367.) The record states, inter alia, "30 yo male brought in to the ER under custody of local PD for aggressive behavior and SI. Pt reports that he got into an altercation with his uncle. Pt denies SI and says that 'I really just don't want to go to jail.' Pt also denies HI." (R. at 367.) The "primary impression" section of the record states: "MANIPULATIVE BEHAVIOR TO AVOID INCARCERATION." (R. at 370.) The undersigned agrees with Plaintiff that it is difficult to see how Plaintiff's behavior is manipulative when he admits outright that he "really just d[id not] want to go to jail." (R. at 367.)
The ALJ also used Plaintiff's "supervisory position" to conclude Plaintiff did not have deficits in adaptive functioning. Plaintiff did testify that he was the "foreman" of a landscaping company, supervising three individuals. (R. at 38-39.) When asked whether the other three workers knew how to do landscaping work or whether Plaintiff had to show them, Plaintiff stated, "Show them, train them a little." (R. at 39.) However, Plaintiff also testified that these three individuals generally spoke Spanish and only spoke a "little" English, and that he did not speak Spanish. (R. at 53.) When asked how he communicated with these three individuals, Plaintiff stated, "Hand gestures." (R. at 53.) Thus, while Plaintiff testified that he was the "foreman," in the opinion of the undersigned, characterizing this work as "supervisory" is a simplification and mischaracterization of the evidence.
Plaintiff testified that he worked for the landscaping company (Cooper Dowdy) from 2002 to 2004. (R. at 38.) Although Plaintiff represents in his brief that he only earned $5,945.00 from this job, (Dkt. No. 19 at 17), it appears that he may have actually earned $11,973.00, (R. at 248-49).
Work history can indicate lack of deficits in adaptive functioning. See Cheatum v. Astrue, 388 F. App'x 574, 576 n. 3 (8th Cir. 2010) ("[E]vidence of [the claimant's] ability to perform gainful activity is not relevant if she otherwise meets the requirements of Listing 12.05. It is relevant, however, to whether she has shown the deficits in adaptive functioning necessary to meet that listing." (internal citations omitted)); Richardson v. Colvin, Civ. A. No. 8:12-cv-3507-JDA, 2014 WL 793069, at *12 (D.S.C. Feb. 25, 2014) ("[W]ork history, while it cannot preclude benefits where the Listing 12.05C criteria are otherwise met, . . . can be relevant in determining whether a claimant manifested deficits in adaptive functioning. . . . "). However, Plaintiff's prior work history appears to include mostly, if not all, unskilled work. (R. at 57-58.) In fact, the only semi-skilled work is the same job (groundskeeper) that the ALJ classified as supervisory. (R. at 58.)
In addition, Plaintiff testified that he has not lived on his own in "quite a while." (R. at 44.) He testified that he had lived with an ex-girlfriend, grandmother, and mother, staying in a tent in his mother's backyard at times. (R. at 45.) He testified that he tried to get a GED, but he never "g[ot] the outcome." (R. at 41.) Notes indicate that although Plaintiff attended GED classes, he made no progress. (R. at 288-90.) Plaintiff testified that he dropped out of school when he was in the 9th grade; he testified that he was in "resource classes" when he dropped out at age 18. (R. at 34.) There is evidence that Plaintiff "would display difficulty managing funds independently and accurately." (R. at 488.) Furthermore, the ALJ found that Plaintiff had a moderate restriction as to activities of daily living as well as moderate difficulties with regard to concentration, persistence, and pace. (R. at 15.)
Here, although the ALJ listed several reasons for concluding the Plaintiff did not have deficits in adaptive functioning, there are-as detailed above-significant errors and mischaracterizations of the evidence in the record. In light of these errors, and the other evidence in the record indicating that Plaintiff does have deficits in adaptive functioning, the undersigned recommends remand for further consideration of Listing 12.05. See Pickett v. Berryhill, Civ. A. No. 7:17-cv-00024-FL, 2018 WL 935405, at *4 (E.D.N.C. Jan. 25, 2018), adopted at 2018 WL 934821 (E.D.N.C. Feb. 16, 2018) ("[M]oderate difficulties in concentration, persistence, or pace . . . may be evidence of deficits in adaptive functioning."); Johnson v. Berryhill, Civ. A. No. 6:16-cv-2669-RMG-KFM, 2017 WL 1653248, at *7 (D.S.C. Apr. 13, 2017), adopted at 2017 WL 1592428 (D.S.C. Apr. 28, 2017) ("[T]he plaintiff's ability to perform the clearly unskilled work described above, without more, does not provide substantial evidence in support of the ALJ's finding that the plaintiff lacked deficits in adaptive functioning."); Rivers v. Astrue, Civ. A. No. 8:10-cv-00314-RMG, 2011 WL 2581447, at *3 (D.S.C. June 28, 2011) (rejecting ALJ's conclusion "that the record lacked evidence of adaptive deficits" where, inter alia, (a) "[t]he record is replete with evidence that Plaintiff had a deficit in the area of functional academic skills," such as the fact that the plaintiff was a "special needs student," dropped out of school in the ninth grade, had a non-competitive GED from the Job Corps, and was classified as "functionally illiterate," and (b) "there is evidence that Plaintiff had deficiencies in two other areas: social/interpersonal skills and communication"). Cf. Brown v. Comm'r, 873 F.3d 251, 269 (4th Cir. 2017) (finding the ALJ did not "build an accurate and logical bridge from the evidence to his conclusion that the claimant's testimony was not credible," stating, "[I]n support of the adverse credibility finding, the ALJ declared that Brown's statements about the limiting effects of his pain were inconsistent with his testimony about his activities of daily living. The ALJ noted various of Brown's activities—such as 'cooking, driving, doing laundry, collecting coins, attending church and shopping'—but did not acknowledge the limited extent of those activities as described by Brown or explain how those activities showed that he could sustain a full-time job."). B. Other Allegations of Error
The undersigned notes the Fourth Circuit's opinion in Hancock v. Astrue, 667 F.3d 470 (4th Cir. 2012), wherein the Fourth Circuit assessed whether an ALJ's finding of no deficits in adaptive functioning was supported by substantial evidence. In reaching this conclusion, the ALJ noted that (a) "the claimant has worked several jobs and performed a variety of tasks which would be expected to be beyond the capacity of a mentally retarded person"; (b) that the plaintiff "has the ability to shop, pay bills, and make change"; (c) that the plaintiff "takes care of three small grandchildren at a level of care that satisfies the Department of Social Services"; (d) that the plaintiff "does the majority of her household's chores, including cooking and baking"; and (e) that she is attending school to obtain a GED and does puzzles for entertainment. Hancock, 667 F.3d at 475-76. On appeal, the plaintiff "argue[d] that the ALJ gave too much weight to this evidence," noting that she "attended GED classes only because the Department of Social Services would agree to pay for daycare for her grandchildren" and that she "was unable to successfully take any of the GED tests." Id. at 476. In affirming the ALJ's decision, the Fourth Circuit stated, "The ALJ had the duty to find facts and consider the import of conflicting evidence. [The plaintiff] already presented these arguments to the ALJ, and the ALJ concluded that they did not change his view of [the plaintiff's] adaptive functioning. We are not at liberty to reweigh conflicting evidence . . . or substitute our judgment for that of the [ALJ]." Id. (internal quotation marks and citations omitted). Hancock is distinguishable from the case sub judice, as the plaintiff's past jobs in that case were both semi-skilled, and, unlike the Plaintiff in the case sub judice, the plaintiff in Hancock was able to take care of three children.
Plaintiff also argues the ALJ "erred in the weight afforded to an examining physician and a licenced professional counselor." (Dkt. No. 19 at 18.) Plaintiff contends the ALJ "failed to give proper weight to both Dr. Greer-Simmons and Ms. Williams, LPC," which caused the ALJ to "improperly analyze . . . Listing 12.05 and caused a faulty" finding as to Plaintiff's residual functional capacity. (Dkt. No. 19 at 21.)
In light of the errors discussed above, the undersigned recommends concluding the ALJ's evaluation of Dr. Greer-Simmons' opinion is not supported by substantial evidence. Dr. Greer-Simmons examined Plaintiff on March 14, 2016. (R. at 513-16.) She opined that Plaintiff's "[e]ffort was good" and that "average examiner encouragement and commendation were required." (R. at 513.) She indicated that Plaintiff's "attention span was adequate" and he "readily responded to the examiner's questions and directions and often initiated conversation." (R. at 513.) Dr. Greer- Simmons assessed Plaintiff as having a Full Scale IQ of 66, "which indicates that his overall intellectual functioning lies within the Extremely Low range and is equal to or better than 1% of individuals the same age." (R. at 513.) Dr. Greer-Simmons stated, inter alia,
Mr. Stanfield's ability to think and solve problems in nonverbal, abstract, and conceptual terms was found to lie within the lower limits of the Low Average range with a corresponding Perceptual Reasoning Index Score of 82 (12th percentile).(R. at 514.)
The Working Memory scale is comprised of two core subtests: Digit Span and Arithmetic. Digit Span Forward involves rote learning and memory, attention, encoding, and auditory processing. Digit Span Backwards involves working memory, transformation of information, and mental manipulation. Digit Span Sequencing is designed to measure working memory and mental manipulation. The Arithmetic subtest involves mental manipulation, concentration, attention, numerical reasoning ability, and mental learning. on this factor, Mr. Stanfield's performance suggests that he has marked difficulty with tasks involving sustained attention, short-term memory, and concentration, as he has earned a Working Memory Index Score of 69 within the Extremely Low range (2nd percentile).
The Processing Speed scale is comprised of two core subtests: Symbol Search and Coding. The Symbol Search subtest involves short-term visual memory, cognitive flexibility, visual discrimination, attention, concentration, and speed of mental operation. Coding measures short-term visual memory, learning ability, psychomotor speed, visual-motor coordination, attention, concentration, visual scanning ability, and cognitive flexibility. Mr. Stanfield's performance was in the Extremely Low range of ability as he earned a Speed of Mental Processing Index Score of 62 (1st percentile). This suggests that Mr. Stanfield will require substantially more time and review in order to grasp and retain new material, compared with others his age.
Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of medical sources. See 20 C.F.R. § 404.1527; 20 C.F.R. § 416.927. In considering the medical opinion of an examining source, the ALJ considers a broad range of factors "in deciding the weight to give" to that medical opinion, including the examining relationship, the nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the medical opinion was from a specialist. See 20 C.F.R. § 404.1527(c); 20 C.F.R. § 416.927(c).
The ALJ noted Dr. Greer-Simmons' evaluation as follows:
Dr. Margaret Greer-Simmons, Ph.D., also performed a psychological evaluation of the claimant in March 2016. (Exhibit 9F). She concluded that the claimant would have marked difficulty with sustaining attention, short term memory, and concentration. Additionally, he would require extra time to grasp new concepts, and would perform at a lower level. The undersigned accords limited weight to these opinions to the extent that they are not specific as to the degree of limitation the claimant would encounter. The undersigned accords little weight to the opinion that the claimant has marked limitations in his ability to sustain concentration because it is drawn only from the claimant's test scores and his self report, and does not take into account other evidence showing that the claimant has been able to work in a supervisory position in the past and has accessed community health care and shelter resources.(R. at 20.) Plaintiff asserts the ALJ "wrongly" gave Dr. Greer-Simmons' opinion that Plaintiff "would have marked difficulty with sustaining attention, short term memory, and concentration" and "would require extra time to grasp new concepts, and would perform at a lower level" little weight where "the ALJ's assessment that [Plaintiff] acted as a supervisor is without substantial evidence, as he did not perform SGA with that employer and the record as a whole does not reflect the work of a supervisor." (Dkt. No. 19 at 19.) Plaintiff also asserts that Dr. Greer-Simmons was "most likely aware of [Plaintiff's] residency at the homeless shelter," as Plaintiff "was referred to her by One80 Place and the assessment was sent back to One80 Place." (Dkt. No. 19 at 19.)
The undersigned agrees with Plaintiff that Dr. Greer-Simmons was likely aware that Plaintiff lived at the homeless shelter, and, as detailed above, it is not clear that it was Plaintiff initiating his access to shelter and community resources, as Plaintiff testified a family member took him to the shelter and that he had difficulty using the resources offered to him. Furthermore, as discussed above, the ALJ mischaracterized the evidence about Plaintiff's position with the landscaping company. In light of these errors, the undersigned recommends remand for further evaluation of Dr. Greer-Simmons' opinion.
On February 2, 2016, Ms. Williams, a licenced professional counselor, wrote a letter noting that she works with Plaintiff as his Case Manager at One80 Place, and that her "job is to provide linkages to services and support that will result in his self-sufficiency, as well as get him into permanent housing to end his homelessness." (R. at 492.) She stated, inter alia,
I have been working with Mr. Stanfield since his initial entry into our shelter in October of 2015. Since that time, I have witnessed his inability to keep appointments, follow simple directions, remember details, and his need for constant reminders in order for him to be able to complete minor tasks. As an example of this, in January, Mr. Stanfield made three appointments with me in one day in order to ask me a simple question. Each time he went to the front desk to schedule, he was unaware and unable to remember that he had already made an appointment. He did not show to any of the three appointments that he made, and the next morning saw me and attempted to schedule with me once again.(R. at 492.)
Although Mr. Stanfield may be physically capable, from my experiences with him, I believe that he is mentally incapable of following even simple directions as would be required for employment. During short conversations with him, he is often unable to summarize what we have discussed, and I often have entire conversations with him multiple times in an attempt to solidify an understanding from him, with limited progress.
Mr. Stanfield is generally pleasant and cooperative, but for the reasons above, I have serious reservations whether he is . . . able to successfully obtain or keep employment. . . .
As noted by the Commissioner, Ms. Williams is not an acceptable medical source. See SSR 06-03P, 2006 WL 2329939; Cline v. Colvin, Civ. A. No. 2:13-cv-23194, 2015 WL 1133631, at *13 (S.D.W. Va. Mar. 12, 2015) ("Licensed professional counselors are not 'accepted medical sources' but qualify as 'other sources' . . . . " (citing SSR 06-03p)); Ward v. Chater, 924 F. Supp. 53, 56 (W.D. Va. 1996) (noting that a counselor is "not an acceptable medical source"); see also 20 C.F.R. 404.1513(a), (d) (prior version); 20 C.F.R. § 416.913(a), (d) (prior version). Although "non-acceptable medical sources cannot be used to establish the existence of a medically determinable impairment[,] . . . such sources may provide evidence, including opinion testimony, regarding the severity of the claimant's impairments and [how] such impairment[s] affect the individual's ability to function." Sodders v. Colvin, Civ. A. No. 6:14-cv-57, 2016 WL 1065837, at *2 (W.D. Va. Mar. 16, 2016) (citations omitted). As noted in Sodders,
To determine the weight given to the opinion of a source who is not an "acceptable medical source" as defined by the Act, the ALJ must consider: (1) the length of time the source has known the claimant and the frequency of their contact; (2) the consistency of the source's opinion with the other evidence; (3) the degree to which the source provides supportive evidence; (4) how well the source explains his or her
opinion; (5) whether the source has an area of specialty or expertise related to the claimant's impairments; and (6) any other factors tending to support or refute the opinion.Id. at *2 (citation omitted).
The ALJ assigned "little weight" to the Ms. Williams' assessment. The ALJ stated,
The undersigned has given little weight to the assessment submitted in February 2016 by Brooke Williams, M.A., L.P.C., a non-acceptable medical source. (Exhibit 7F). Ms. Williams stated that she has worked with the claimant since his entry into the shelter in October 2015. She indicated that she has witnessed the claimant's inability to keep appointment[s], follow simple directions, and remember details, as well as to keep appointments [sic]. As the claimant testified that he has only recently stopped abusing alcohol, the undersigned does not have knowledge as to whether the claimant was intoxicated on these occasion[s] and, as such, does not find that Ms. Williams' statement that she has reservations regarding his ability to obtain or keep employment to be supported by treatment notes, his activities, and the remaining medical evidence of record.(R. at 20.) Plaintiff asserts the ALJ "interjects his bias in this analysis to discredit Ms. Williams" because Ms. Williams states that she had worked with Plaintiff since October of 2015, and at the hearing in August of 2016, Plaintiff testified that he had been sober for about a year. (Dkt. No. 19 at 20-21.) Plaintiff asserts the ALJ's "opinion that Mr. Stanfield was intoxicated while at the homeless shelter is based on no fact." (Dkt. No. 19 at 21.)
The undersigned agrees with Plaintiff that the ALJ's reason for discrediting Ms. Williams' opinion constitutes reversible error. It appears that the ALJ used nothing more than conjecture to discredit this opinion. As Plaintiff notes, Ms. Williams stated that she had worked with Plaintiff since October of 2015. (R. at 492.) At the hearing on August 12, 2016, Plaintiff testified that he stopped drinking a year ago, (R. at 40), meaning he would have stopped drinking in August of 2015. Nowhere did Ms. Williams indicate that Plaintiff used alcohol while he was at the shelter, nor does Plaintiff's testimony support such an inference. In the opinion of the undersigned, this analysis cannot stand.
Because the Court finds the ALJ's analysis with respect to Plaintiff's adaptive functioning, Dr. Greer-Simpson's opinion, and Ms. Williams' opinion to be sufficient bases to remand the case to the Commissioner, the undersigned does not specifically address Plaintiff's remaining allegations of error. However, on remand, the Commissioner should consider Plaintiff's allegations that the ALJ erred in "fail[ing] to provide an accurate residual functional capacity." (Dkt. No. 19 at 18, 21.)
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. Section 405(g) for further proceedings as set forth above.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE July 18, 2018
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised thatthey may file specific written objectionsto this Report and Recommendation with the DistrictJudge. Objectionsmust 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 thatthere is no clear error on the face of the record in order to acceptthe recommendation.'" Diamond v. ColonialLife & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72, Advisory Committee's note).
Specific written objectionsmust 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 pursuantto FederalRule of Civil Procedure 5 may be accomplished by mailing objectionsto:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objectionsto this Report and Recommendation will result in waiver of the rightto appeal from a judgment of the DistrictCourt 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).