Opinion
Civil Action No. 8:17-cv-02321-MGL-JDA
09-27-2018
Frank Wayne Thomassie, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
PROCEDURAL HISTORY
In March 2013, Plaintiff filed an application for DIB, alleging an onset of disability date of March 3, 2013. The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 69-86, 88-107.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and, on March 24, 2016, ALJ Clarence Guthrie conducted a de novo video hearing on Plaintiff's claims. [R. 38-68.]
The undersigned was unable to locate Plaintiff's disability application in the file. A report of contract document, however, indicates a DIB claim was filed. [See R. 88, 216.] The record also indicates that a claim for Social Security Insurance ("SSI") benefits was filed and reviewed by the Agency, however, Plaintiff does not appear to challenge the rejection of SSI benefits.
The ALJ issued a decision on May 10, 2016, finding Plaintiff has not been under a disability within the meaning of the Act from March 3, 2013, the alleged onset date, through his date last insured of December 31, 2014. [R. 10-23.] At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2014, and had not engaged in substantial gainful activity during the period from her alleged onset date of March 3, 2013, through her date last insured of December 31, 2014. [R. 12, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease of the cervical and lumbar spines, tinnitus, Asperger's syndrome, affective disorder (depression), anxiety disorder, and obsessive-compulsive disorder. [R. 12, Finding 3.] At Step 3, the ALJ determined that Plaintiff 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. [R. 15, Finding 4.] With respect to Plaintiff's mental limitations, the ALJ found that Plaintiff suffered from moderate limitations in his activities of daily living, social functioning and concentration, persistence, and pace, but had no episodes of decompensation. [R. 16.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, the ALJ determined Plaintiff had the following residual functional capacity:
[T]hrough the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), except that he could frequently stoop, kneel, crouch, or crawl but never climb ladders, ropes, or scaffolds. He could work in job environments where the noise intensity level did not exceed moderate, as defined in the Selected Characteristics of Occupations. He could work in a low stress environment, defined as: tasks that are simple and routine in nature, no inflexible or fast-paced production requirements (such as assembly line work), and no more than occasional changes in the work setting. He could tolerate occasional interaction with co-workers but no interaction with the public. Finally, he could accept instructions and respond appropriately to supervisors, where the interaction occurred occasionally throughout the day.[R. 17, Finding 5.] At Step 4, the ALJ determined that Plaintiff was unable to perform his past relevant work as a computer programmer. [R. 22, Finding 6.] Considering Plaintiff's age, education, work experience, residual functional capacity, and the testimony of the vocational expert ("VE"), however, the ALJ found that, through the date last insured, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 22, Finding 10.] Consequently, the ALJ determined that Plaintiff had not been under a disability as defined by the Act at any time from March 3, 2013, the alleged onset date, through December 31, 2014, the date last insured. [R. 23, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision and the Council declined review. [R. 1-6.] Plaintiff filed this action for judicial review on August 30, 2017. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff seeks to have this Court reverse "the Commissioner's decision and award benefits" to Plaintiff or, in the alternative, remand this case so that the proper legal standards may be applied. [Doc. 20 at 18.] Plaintiff argues that the ALJ committed reversible error by failing to properly weigh the medical opinions of Plaintiff's treating psychiatrist [id. at 12-14]; failing to find Plaintiff met Listing 12.06 [id. at 14-16]; failing to account for Plaintiff's non-exertional limitations in the RFC [id. at 16-17]; and failing to consider the Medical Source Statement of Dr. Vaughn contained at Exhibit 13F [id. at 17].
The Commissioner contends, however, that the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 22 at 3-4.] The Commissioner argues that the ALJ properly evaluated the medical opinions of record [id. at 4-7]; properly found Plaintiff did not meet Listing 12.06 [id. at 7-10]; and incorporated all of Plaintiff's non-exertional limitation which were supported by the record into the RFC [id. at 10-11]. The Commissioner also contends that Dr. Vaughn's check-mark form did not undermine the ALJ's decision and, thus, Plaintiff suffered no prejudice. [Id. at 11.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
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 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 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. § 404.1520. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. § 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. § 404.1521. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. § 423(d)(2)(B). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. § 423(d)(2)(B).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. § 404.1509, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(d).
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. § 404.1560(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545(a).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20 C.F.R. § 404.1520(f)-(g). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); see also Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. § 404.1569a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. § 404.1569a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. § 404.1569a(c)(1). --------
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. § 404.1527(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. § 404.1527(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. § 404.1527(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. § 404.1517; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. § 404.1517. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." SSR 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see 20 C.F.R. §§ 404.1528, 416.928 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
VI. Credibility
The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").
APPLICATION AND ANALYSIS
Accounting for Mental Limitation in RFC
In accordance with the regulations, the RFC assessment must include a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ must determine Plaintiff's ability to perform work-related physical and mental abilities on a regular and continuing basis. Id. at *2. He must explain how any material inconsistencies or ambiguities in the record were resolved. Id. at *7. "[R]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2nd Cir. 2013)).
Plaintiff contends that his anxiety, depression, OCD, and Asperger's seriously interferes with his ability to maintain the attention and concentration necessary to perform work as would be required by an employer and that the ALJ erred in not considering these limitations when finding he could perform work. [Doc. 20 at 17.] Plaintiff also argues that his psychiatrist Dr. Vaughn opined that his non-exertional symptoms were severe enough to interfere with the Plaintiff's ability to engage in substantial work. [Id.] The Commissioner contends, however, that the ALJ accounted for Plaintiff's deficiencies in attention and concentration by including significant nonexertional limitations in the RFC assessment. [Doc. 22 at 10.] The Court finds the Commissioner's argument unpersuasive.
When assessing a claimant's RFC, the ALJ must account for all of the claimant's medically determinable limitations of which the ALJ is aware, including those not labeled severe in step two. See Mascio, 780 F.3d at 635 (citing 20 C.F.R. § 416.945(a)(2)). In Mascio, the Fourth Circuit ruled that "an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work." Id. at 638 (internal quotation marks omitted). The Mascio Court reasoned that "the ability to perform simple tasks differs from the ability to stay on task," explaining that "[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. The Mascio Court also recognized that, on remand, "the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work . . . [b]ut because the ALJ here gave no explanation, a remand is in order." Id. Thus, the Fourth Circuit stressed the requirement for ALJs to translate impairments in functional areas into meaningful functional limitations in RFC assessments and in hypothetical questions presented to vocational experts.
At step 2 of the sequential evaluation process, the ALJ determined that Plaintiff suffered moderate difficulties in activities of daily living; in social functioning; and in concentration, persistence in pace. [R. 15-16.] Presumably, in light of Plaintiff's mental limitations, the ALJ reduced the Plaintiff's RFC assessment to simple, routine work in a work environment where there are no inflexible or fast-paced production requirements and no more than occasional changes in the work setting. [R. 17.] In the hypothetical to the vocational expert ("VE"), the ALJ presented an individual with the following limitations: capable of light work; cannot climb ladders, ropes, or scaffolds; limited to frequent stooping, kneeling, crouching, and crawling; noise intensity level in work environment does not exceed moderate; limited to low stress environment, meaning simple and routine in nature with no inflexible or fast-paced production requirements; no more than occasional changes in work setting; no interaction with the public an d occasional interaction with coworkers; interaction with supervisors occurs occasionally throughout work day. [R. 64-65.] A person with these limitations would be able to perform light unskilled work in the national economy per the VE. [R. 65.] In response to questions by Plaintiff's counsel, the VE testified that the most a person could be off task is 5% of the work day and the person could miss no more than 2 work days per month in order to be employed in the national economy. [R. 66.] The ALJ never presented the VE with reference to Plaintiff's moderate limitations in activities of daily living, social functioning or concentration, persistence, or pace. Thus, it is unclear to the Court whether the ALJ took these limitations into consideration in formulating the RFC.
In several recent cases, Courts in this District have considered the implications of Mascio and has interpreted it to require remand when (1) the RFC does not account for an ALJ's finding of a limitation in concentration, persistence, or pace; (2) where that limitation was not incorporated in the hypothetical tendered to the VE; and (3) where the ALJ did not adequately explain the exclusion of the limitation from the RFC or the hypothetical. See, e.g., Gordon v. Colvin, No. 1:15-cv-3736-BHH-SVH, 2016 WL 4578342, at *15 (D.S.C. Aug. 3, 2016), Report and Recommendation adopted by 2016 WL 4555965 (D.S.C. Sept. 1, 2016); Wilson v. Colvin, No. 2:14-cv-3209-TLW-MGB, 2016 WL 625088, at *4 (D.S.C. Jan. 15, 2016), Report and Recommendation accepted by 2016 WL 613891 (D.S.C. Feb. 16, 2016); Worthy v. Colvin, No. 1:15-cv-3555-MBS-SVH, 2016 WL 3102121, at *19 (D.S.C. May 6, 2016) (collecting cases) ("The court has consistently held that an ALJ accounts for moderate limitations in concentration, persistence, or pace by explaining how this functional limitation was considered as part of the RFC assessment."), Report and Recommendation adopted 2016 WL 3079689 (D.S.C. Jun. 1, 2016). A review of cases from the District of South Carolina also reveals that an RFC that limits an individual to only non-production pace work does not account for an ability to stay on task as required in Mascio. See Worthy, 2016 WL 3102121, at *19; see also Wilson v. Colvin, No. 2:14-3209-TLW-MGB, 2016 WL 625088 at *5 (D.S.C. Jan. 15, 2016). And, an ALJ's limitations on Plaintiff's contact with the public deals largely with workplace adaptation, not concentration, pace, or persistence. Wilson, 2016 WL 625088 at *5.
Courts within the Fourth Circuit have also consistently found that a hypothetical limitation restricting an individual to simple, gradual changes in the working environment does not adequately account for a limitation in concentration, persistence, or pace because it does not clearly speak to an individual's ability to stay on task. See Jones v. Colvin, No. 4:14-cv-00200, 2015 WL 4773542, at *6 (E.D.N.C. Aug. 13, 2015) ("[T]he hypothetical question to the [vocational expert] contemplated an individual 'limited to simple, routine, repetitive tasks; should work in a low production occupation, one which would require no complex decision making, constant change or dealing with crisis situations.' The majority of courts in North Carolina, including this court, have held that such restrictions do not adequately address a claimant's moderate limitations in concentration, persistence and pace."); Bailey v. Colvin, No. 5:14-cv-0248, 2015 WL 2449044, at *4, 13 (D.S.C. May 21, 2015) (explaining that inclusion in hypothetical of "static work environment . . . define[d] as an environment with few work place changes" does not sufficiently account for ability to stay on task).
Upon consideration of the ALJ's decision in light of the evidence of record, the Court notes that the ALJ's failure to present the VE with Plaintiff's moderate limitations in concentration, persistence, and pace, dictates a finding that the RFC is not supported by substantial evidence, particularly in light of the VE's testimony that being off task more than 5% of the day would preclude work. The ALJ does not address his consideration of how many days per week Plaintiff might miss work, or how much of the day he may be off task in light of these limitations. The law is clear that, where an ALJ does not offer an explanation, the district court should not attempt to supply one. See Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013). This legal principle is certainly applicable in cases, such as this one, that fit the circumstances faced by the Fourth Circuit in Mascio, which held that "remand is in order" precisely "because the ALJ . . . gave no explanation." Mascio, 780 F.3d at 638. Because the ALJ failed to explain his consideration of this material evidence, the Court finds that remand is appropriate.
Remaining Allegations of Error
With respect to the remainder of Plaintiff's arguments concerning the decision below, on remand the ALJ will be able to reconsider and re-evaluate the medical evidence, specifically the opinions provided by Plaintiff's treating physicians and the hypothetical to the VE as part of its reconsideration of this claim. Harris v. Asture, No. 9:09-cv-0028-HFF-BM, 2009 WL 5125215, *4 (D.S.C. Dec. 28, 2009), (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-764 (W.D. Va. 2002) (explaining, on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and that the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge September 27, 2018
Greenville, South Carolina