Opinion
CIVIL ACTION NO. 9:18-2727-BHH-BM
12-03-2019
BAYLEY D. VINSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).
Plaintiff applied for Disability Insurance Benefits (DIB) on May 14, 2014 (protective filing date), alleging disability beginning November 6, 2011, due to broken CI and C2 vertebra in the spine, a broken left shoulder, a broken right shoulder, a broken left forearm, broken pelvic bone in two places, depression and anxiety. (R.pp. 232-242). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on August 1, 2017. (R.pp. 36-77). The ALJ thereafter denied Plaintiff's claim in a decision issued September 20, 2017. (R.pp. 15-30). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-6).
Plaintiff was involved in a motor vehicle accident in November 2011. (R.p. 328). As a result of that accident, Plaintiff was previously found disabled and entitled to a closed period of disability from the date of her automobile accident, November 26, 2011, through February 27, 2013. (R.pp. 97-110). Plaintiff was determined not to be disabled after that date, through May 3, 2013, the day of the decision in Plaintiff's previous case. (R.p. 233). The issue in this case is whether Plaintiff is entitled to an award of disability benefits beginning May 4, 2013. (R.p. 298)
Plaintiff's hearing had originally been scheduled for November 1, 2016, but was postponed to allow Plaintiff to consult with counsel. (R.pp. 78-85).
Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for an award of benefits, or in the alternative for further consideration of her claim. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
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 refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
Plaintiff, who was only twenty-four years old on her original alleged disability onset date, has a high school education and past relevant work experience as a Certified Nurse Assistant (CNA), a fast food worker, and a retail cashier. (R.pp. 28, 232, 237). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months. After a review of the evidence and testimony in the case the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of status- post motor vehicle accident with bilateral shoulder, pelvic, and C1-2 fractures; DeQuervain's tenosynovitis, left greater than right; obesity; major depressive disorder; mild neurocognitive disorder due to traumatic brain injury; obsessive compulsive disorders; and personality changes, thereby rendering her unable to perform any of her past relevant work, she nevertheless retained the residual functional capacity (RFC) to perform a range of light work with certain specified limitations, and was therefore not entitled to disability benefits. (R.pp. 18, 20, 28-29).
Plaintiff was twenty-five (25) years old on May 4, 2013, the onset date at issue in this Report.
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
A condition affecting the tendons on the thumb side of your wrist. https://www.mayoclinic.org/diseases-conditions/de-quervains-tenosynovitis/symptoms-causes/syc-20371332. Nov. 14, 2019.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b) (2005).
Plaintiff asserts that in reaching this decision the ALJ erred by improperly weighing the medical opinion evidence of Dr. Randolph Waid (an examining psychologist), by improperly relying on the opinions of the state agency medical consultants with respect to Plaintiff's physical limitations, by failing to properly consider and assess Plaintiff's subjective complaints as to the extent of her pain and limitations, and by failing to sustain his burden of establishing that there is other work in the national economy that Plaintiff can perform with her limitations. After careful review and consideration of the record and arguments presented, the undersigned is constrained to agree with the Plaintiff that the ALJ failed to properly evaluate Dr. Waid's opinion in conjunction with the other medical evidence relating to Plaintiff's mental impairments in fashioning Plaintiff's RFC, thereby requiring a remand of Plaintiff's claim for further consideration.
RFC is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. During his examination of the Plaintiff in August 2012, Dr. Waid noted that Plaintiff reported experiencing a decreased capacity for attention/concentration and memory, and that Plaintiff had stated that she "cannot do anything very long". On objective testing, Dr. Waid found that Plaintiff demonstrated a good ability to sustain her vigilance to "the demands of the task", although "[n]europsychological evaluation revealed variability in [Plaintiff's] capacity to sustain attention/concentration with slow mental processing speed". (R.pp. 748, 751, 753). When Dr. Waid saw Plaintiff again in July 2017, his clinical presentation notes indicate that Plaintiff continued to experience cognitive impairments involving attention/concentration difficulties and memory problems including an easy distractability, while on testing her results were classified as poor and consistent with attention problems. Dr. Waid concluded that Plaintiff's mental and functional difficulties compromised her capacities to sustain attention/concentration and process information in her day to day pursuits. (R.pp. 786-787, 789, 794). Dr. Waid also completed a Mental Impairments check sheet provided by Plaintiff's attorney in which he found, inter alia, that Plaintiff had a marked limitation in her ability to concentrate, persist, or maintain pace. (R.p. 799).
In fashioning Plaintiff's RFC, the ALJ gave little weight to Dr. Waid's opinion, finding that his conclusions were heavily based on Plaintiff's subjective reports, and tended to ignore Plaintiff's almost across the board test scoring in the average to low average range. (R.p. 28). The undersigned agrees that many of Dr. Waid's own test results reflect test scores in only the average to low average range, calling into question Dr. Waid's finding of "marked" limitations. (R.pp. 788-791). Even so, substantial evidence in the case record does not support the ALJ's finding that the Plaintiff would not have difficulty with stamina and persistence in the work place due to her complaints of low energy and attention and concentration problems. (R.p. 28). In reaching that conclusion, the ALJ specifically found that the " record does not demonstrate that [Plaintiff] has complained of low energy levels or problems with attention and concentration to her primary care providers". Id. However, the ALJ himself (in his decision) cites to Plaintiff's medical records wherein Plaintiff complained of attention and concentration problems. Plaintiff discussed her attention problems with P. A. Josephine Redman (at Palmetto Primary Care Physicians) on May 29, 2013, she discussed her attention and concentration problems with Dr. Cashton Spivey on July 25, 2014, and complained to Dr. Waid of difficulties sustaining attention and concentration in July 2017, all as noted by the ALJ himself in his decision. See (R.pp. 24-26, 514-515, 609-611, 784-794). The ALJ also noted that Plaintiff testified at the hearing that she has limitations in concentrating and completing tasks. (R.pp. 20, 22). As such, that finding was clear error. Similarly, the ALJ states that "the record fails to show any mention of distractability". (R.p. 20). However, in addition to Plaintiff's own testimony on this subject, Dr. Spivey found that Plaintiff's attention and concentration functioning was only fair and that Plaintiff would have difficulty in the work place due to her attention and concentration problems , while Dr. Waid found that Plaintiff had marked limitations in interacting with others; concentrating, persisting and maintaining pace; and would have moderate difficulty working in coordination with or proximity to others without being distracted by them. (R.pp. 25-27, 609-611, 784-794).
Moreover, while the ALJ did not accept Dr. Waid's finding that Plaintiff had "marked" limitations in the area of concentration, persistence and pace, the ALJ did find that Plaintiff was moderately limited in this area (R.p. 20), but then failed to account for this limitation in Plaintiff's RFC, as required by SSR 96-8p. Rather, the ALJ only limited Plaintiff in his RFC finding to "brief and incidental contact with the general public and no more than occasional decision making or changes in the work setting". (R.p. 20). However, these limitations do not address Plaintiff's ability to stay on task at a job for eight hours a day, five days a week. In Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit held that a restriction that only addresses the complexity of the work does not address a Plaintiff's ability to stay "on task" during the work day, which is the limitation that would account for a claimant's moderate impairment in concentration, persistence or pace. Mascio, 780 F.3d at 638; cf. Salmon v. Colvin, No. 12-1209, 2015 WL 1526020, at *3 (M.D.N.C. Apr. 2, 2015) [noting that "the Fourth Circuit made clear 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."] (citations and quotations omitted); see also Sanders v. Berryhill, No. 16-3883, 2018 WL 878964, at *10 n. 10 (D.S.C. Jan. 29, 2018)[Finding ALJ's hypothetical to VE that only limited the claimant to simple and routine tasks in low stress environment did not adequately account for claimant's moderate CPP limitations], report and recommendation adopted, No. 16-3883, 2018 WL 835228 (D.S.C. Feb. 13, 2018); Dill v. Berryhill, No. 16-3949, 2018 WL 840103, at *2 (D.S.C. Jan. 26, 2018)[Limitation to simple, routine and repetitive tasks performed in a work environment free of fast-paced production requirements involving only simple work-related decisions with few if any workplace changes did not adequately account for claimant's moderate CPP limitation], report and recommendation adopted, No. 16-3949, 2018 WL 826854 (D.S.C. Feb. 12, 2018).
The remainder of the ALJ's RFC findings address Plaintiff physical limitations.
The ALJ's only direct reference to Plaintiff's ability to stay "on task" in his decision was where, after noting that Plaintiff contended she has limitations in concentrating and completing tasks, he opined that Plaintiff had nonetheless said that "she is also able to prepare simple meals, watch television, manage funds, and handle her own medical care". (R.p. 20). However, it is unclear how Plaintiff's ability to participate in such activities would result in a conclusion that Plaintiff can work full time at an eight hour a day, five day a week job. Certainly the ALJ does not explain how or why this would be the case. Dr. Waid opined that Plaintiff was moderately limited in her ability to perform activities within a schedule and sustain an ordinary routine (findings consistent with the ALJ's own determination that Plaintiff has a moderate limitation in these areas), and even the state agency psychological consultants, whose opinions the ALJ gave some weight, found that Plaintiff was moderately limited in her ability to maintain attention and concentration for extended periods, complete a normal work day and work week without interruptions from psychologically based symptoms, or perform at a consistent pace without an unreasonable number and length of rest periods or perform activities within a schedule. (R.pp. 126, 142-143). Based on this evidence, and the ALJ's own resulting conclusion that Plaintiff was moderately limited in this area, the ALJ was required to account for those deficiencies in Plaintiff's RFC. Mascio, 780 F.3d at 638. However, the ALJ failed to address Plaintiff's ability to stay "on task" or how long Plaintiff could stay "on task" during the work day in his decision. Cf. Wyatt v. Berryhill, No. 17-1988, 2019 WL 1416878, * 2-3 (D.S.C. March, 2019).
Although the ALJ did limit Plaintiff's RFC to brief and incidental contact with the general public and no more than occasion decision making or changes in the work setting, those limitations deal largely with workplace adaptation, not concentration, pace, or persistence. See McPherson v. Colvin, No. 16-1469, 2016 WL 5404471 at * 8 (E.D.Pa. Sept. 28, 2016)[where the court rejected that moderate restrictions in concentration, persistence, and pace were accommodated by a hypothetical to a VE that only included: 1) the performance of routine, repetitive tasks; 2) a low stress environment (defined as no frequent independent decision making required and no frequent changes in the work setting); and 3) no public interaction and occasional interaction with coworkers and supervisors](citing to Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015)); Knight v. Commissioner, No. 15-1512, 2016 WL 4926072 (D.S.C. Sept. 16, 2016)[Finding that the ALJ's limiting the hypothetical to "unskilled work with no direct interaction with the public; only occasional team type interaction with coworkers; [who] should not be required to adapt to greater than simple, gradual changes in the workplace" did not account for the Plaintiff's moderate limitation in concentration, persistence, or pace]. The importance of the ALJ to have made a finding on this issue is demonstrated not just by the 4th Circuit's holding in Mascio, but by the VE's testimony in this case. The VE testified that if Plaintiff had an inability to sustain focus for mental reasons or any other complications arising per a diagnosed condition that caused her to be off task or absent from work for any significant amount of time, such a person would be unable to sustain competitive employment. (R.p. 69). See Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978)[An ability to work for only a few hours a day on an intermittent basis is not equivalent to an ability to engage in substantial gainful activity]. Therefore, the ALJ needed to address how, or whether, Plaintiff's moderate limitation in CPP would affect her RFC in these areas. Mascio, 780 F.3d at 636 ["Remand 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."], citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
As previously noted, in establishing Plaintiff's RFC, the ALJ found that Plaintiff was able to maintain sufficient concentration to prepare simple meals, watch television, manage funds, and handle her own medical care. (R.p. 20); see also (R.p. 27). However, the ALJ does not explain how Plaintiff having such short-term abilities would support a finding that Plaintiff would be able to stay on task at a job for a full 8 hour workday.
Of course, the ALJ may be able to properly find from the evidence that Plaintiff's CPP limitation would not effect her ability to maintain and stay on task for a full 8-hour workday or to perform the jobs listed. However, it is incumbent on the ALJ to do so, and since the ALJ did not make a proper determination or specifically address this issue in his decision, it would not be proper for this Court to now do so in the first instance. See Mascio, 780 F.3d at 638 [noting that the ALJ may be able to explain why a concentration, persistence, or pace limitation did not translate into a limitation in the RFC ("[f]or example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the [VE]"), but finding that remand was appropriate because the ALJ gave no explanation]; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) [Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision]; Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have thinking."]. Hence, as neither the ALJ's RFC assessment nor the ALJ's hypothetical question to the VE properly address the question of Plaintiff's ability to stay on task for a full 8-hour workday in light of her moderate limitation in CPP, remand is required. See Miller v. Colvin, No. 15-443, 2016 WL 3679292 at **4-5 (W.D.N.C. July 11, 2016) [Finding remand required where "it is not entirely clear how the evidence aligns with the necessary functions, which is a required showing."] (citing Mascio, 780 F.3d at 636; SSR 96-8p, 1996 WL 374184, at *7); Perry v. Berryhill, No. 18-1076, 2019 WL 1092627 at * 2 (4th Cir. Mar. 8, 2019)[Finding that the ALJ had not made findings necessary bridge the evidence between plaintiff's moderation limitations in CPP and his RFC].
Therefore, the decision should be reversed and remanded for consideration of Plaintiff's RFC in compliance with Mascio. With respect to the remainder of Plaintiff's claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (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].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge December 3, 2019
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).