Opinion
Civil Action No. 6:17-3358-MBS-KFM
02-14-2019
Ralph Chavis, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil 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 brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on May 10, 2013. In both applications, the plaintiff alleged that he became unable to work on September 6, 2009. Both applications were denied initially and on reconsideration by the Social Security Administration. On June 16, 2014, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff, who was represented by counsel, and Carey A. Washington, Ph.D., an impartial vocational expert, appeared on June 23, 2016, considered the case de novo, and on July 21, 2016, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 38-52). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on November 1, 2017 (Tr. 1-3). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through March 31, 2016.
(2) The claimant has not engaged in substantial gainful activity since September 6, 2009, the alleged onset date (20 C.F.R §§ 404.1571 et seq., 416.971 et seq.).
(3) The claimant has the following severe impairments: COPD, osteoarthritis, depression and anxiety (20 C.F.R. §§ 404.1520(c), 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925, 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than the full range of medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c). Specifically, the claimant can lift and carry up to 50 pounds occasionally and 25 pounds frequently. He can sit for six hours in an eight-hour day and stand and/or walk for six hours in an eight-hour day. The claimant can only frequently climb ramps and stairs and only occasionally climb ladders, ropes, and scaffolds. He can frequently stoop, kneel, crouch, and crawl, and he can frequently handle and finger bilaterally. The claimant can have no exposure to pulmonary irritants. He can perform and sustain simple, routine and repetitive tasks. He is limited to only occasional changes in the work setting and only simple work-related decisions. The claimant can have only occasional superficial contact with the general public and coworkers.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on June 20, 1959, and was 50 years old, which is defined as an individual of advanced age, on the alleged disability onset date (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 C.F.R. §§ 404.1564, 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 transferable job skills (See SSR 82-41 and 20 C.F.R. 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 C.F.R. §§ 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 September 6, 2009, through the date of this decision (20 C.F.R. §§ 404.1520(g), 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security 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 that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id. In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
EVIDENCE PRESENTED
The plaintiff was 50 years old on his alleged disability onset date (September 6, 2009) and 57 years old at the time of the ALJ's decision (July 21, 2016). He has a seventh grade education and has past relevant work as an electrician's helper and a loom technician (Tr. 51, 67-68).
On May 3, 2011, Anne C. Dibasta, M.D., evaluated the plaintiff for his complaints of anxiety, poor sleep, irritability, decreased memory and concentration, and hallucinations. She prescribed Valium for one month to help him get off narcotics and continued his prescriptions for Celexa, Depakote, and Neurontin (Tr. 565-67).
On May 6, 2011, the plaintiff sought treatment for anxiety and depression at Tri-County Mental Health Center ("TCMHC") in Bennettsville, South Carolina. He had an initial clinical assessment due to increased anxiety. On examination, he was positive for anxiety, had poor immediate memory, day dreamed, and reported auditory hallucinations. He was admitted for treatment. He reported having at least one panic attack per day. He reported frequent worry, shakiness, and racing thoughts. He reported that his anxiety had recently worsened to the point that he did not feel comfortable in some more-crowded community settings. He also reported significant sleep difficulties. The plaintiff reported that his anxiety symptoms began when he was seven years old when he witnessed his father shoot and kill their next door neighbor. He indicated that his anxiety level had increased since an automobile accident in 2001 and since being laid off from his job in 2009. He had lost his house and his truck as a result of being laid off. The plaintiff reported physical difficulties including headaches, trouble breathing, and trouble with the left side of his body due to the automobile accident. He was noted to be neat and clean. He was appropriately oriented and cooperative. His mood was anxious and his speech, thought process, and thought content were normal. He admitted to having auditory hallucinations such as hearing voices off in the distance and having a noise like a cricket in his ear. He was noted to have poor immediate memory. He admitted to being easily distracted. It was estimated that the plaintiff had an average fund of knowledge. He was diagnosed with bipolar I disorder, most recent episode manic, unspecified and a Global Assessment of Functioning ("GAF") score of 55. Outpatient psychiatric treatment was recommended (Tr. 568-72).
A GAF score is a number between 1 and 100 that measures "the clinician's judgment of the individual's overall level of functioning." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32-34 (Text Revision 4th ed. 2000) ("DSM-IV"). A GAF score between 51 and 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id. The court notes that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V").
Also on May 6, 2011, Praven Patel, M.D., performed a consultative examination of the plaintiff at the Commissioner's request for allegations of breathing problems. He reported shortness of breath for many years. He reported that he had not seen any medical doctor except a psychiatrist at TCMHC, but he had gone to the emergency room the year prior and had been given some oxygen and was advised to follow up with the physician. The plaintiff complained of left hip pain and dyspnea on exertion and indicated that he could not walk due to a car accident in 2001. Dr. Patel noted that he also had a history of generalized anxiety disorder for the last few years and was being followed by mental health. Dr. Patel indicated that the plaintiff had a third grade education and was illiterate. Dr. Patel noted that the plaintiff worked in a cotton mill for over 30 years. The plaintiff reported smoking for about nine years and quitting a few months prior to the examination. Dr. Patel found him to be appropriately oriented and in no acute distress. Dr. Patel indicated that he observed the plaintiff to have a hacking cough and that he was coughing constantly. Dr. Patel indicated that he appeared somewhat nervous. Dr. Patel indicated that the plaintiff's lung fields were clear to auscultation, and there were no rales, rhonchi, or crepitations noted. Dr. Patel indicated that the plaintiff was very shaky and nervous. He was able to use all four extremities, but favored the left upper and lower extremities. Dr. Patel indicated that the plaintiff's motor power in the left upper and lower extremity was 4/5, and his right upper and lower extremity was 5/5. His left hand grip was 4/5. His cranial nerves II through XII were intact, and there was no other gross motor or sensory deficits noted. Dr. Patel indicated that the plaintiff's deep tendon reflexes were +2, plantars were down, and cerebellar signs were intact. Dr. Patel found him to have a well-developed musculature with a body mass index ("BMI") of 26. His lumbar spine was tender, and his paraspinous muscles were nonspastic. Straight leg raising supine on the left was 30 degrees and on the right was 50 degrees. Straight leg raising sitting on the left was 80 degrees and on the right was 90 degrees. Dr. Patel indicated that the plaintiff's left hip was tender, and his left lower extremity was weak. Dr. Patel indicated that he had some trouble walking, although his gait was normal. The plaintiff could not perform the tandem walk, could not walk on the heels or the toes, and could not squat. Dr. Patel noted that the plaintiff did not use any ambulatory or assistive device. Dr. Patel indicated that mentally, the plaintiff was clear and coherent, and although he was poorly literate, it was believed that he was able to handle his own funds, if provided. Dr. Patel diagnosed pneumoconiosis, secondary to working in a cotton gin; generalized anxiety disorder; left eye fracture, by history; shortness of breath, secondary to number pneumoconiosis; and chronic bronchitis/chronic obstructive pulmonary disease ("COPD") (Tr. 573-76).
On May 18, 2011, James Haynes, M.D., a medical consultant on contract to the Administration completed a physical residual functional capacity ("RFC") assessment indicating that the plaintiff was capable of performing medium work with postural and environmental limitations (Tr. 578-85).
A psychiatric review technique questionnaire and mental RFC assessment were completed by Anna P. Williams, Ph.D., a non-examining consultant on contract to the Administration, on June 1, 2011, indicating that the plaintiff's medically determinable mental impairments caused moderate limitations (Tr. 586-603).
On June 3, 2011, James G. Gibbs, M.D., of TCMCH, evaluated the plaintiff for followup. The plaintiff reported that since starting medication his anger attacks were less intense and fewer, that his activity had increased, and that he felt less irritable with a significant decrease in depression. Dr. Gibbs diagnosed bipolar I disorder, social phobia, panic disorder with agoraphobia, post-traumatic stress disorder ("PTSD"), generalized anxiety disorder, obsessive-compulsive disorder ("OCD"), and a GAF score of 65 (Tr. 723-24).
A GAF score between 61 and 70 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well. See DSM-IV, 32-34.
On July 28, 2011, the plaintiff entered into a plan of care with TCMHC for continued treatment of generalized anxiety disorder, OCD, and major depressive disorder (Tr. 687-88). On this date, he reported that he continued to feel "terribly anxious" most of the day. He reported that as result of his anxiousness he felt more depressed, had poor sleep patterns, and had ongoing problems with racing thoughts. He also reported that the Celexa he was prescribed was not working well for him, but it was noted that he likely was not taking his currently prescribed medications appropriately. It was also noted that the plaintiff frequently requested to be placed on Klonopin, but the psychiatrists had not deemed this medication appropriate for him. It was stated that noncompliance with prescribed medication and frequent requests for benzodiazepines made it questionable if the plaintiff was simply drug seeking, which would be monitored at upcoming sessions (Tr. 689).
On August 11, 2011, the plaintiff was treated at CareSouth Carolina for left hip and arm pain as well as pain across his lower back. He reported being in a motor vehicle accident in 2001. He admitted to overuse of pain medication in the past requiring detoxification. He reported shortness of breath at night. He had decreased hearing in his left ear. He had obvious pain with bent over posture. He was advised to quit smoking. He was prescribed albuterol, Mobic, Flexeril, and a Medrol Dose Pak (Tr. 655).
Also on August 11, 2011, a psychiatric review technique questionnaire and mental RFC assessment were completed by Leslie Burke, Ph.D., a non-examining consultant on contract to the Administration, who indicated that the plaintiff's medically determinable mental impairments caused moderate limitations (Tr. 617-34).
On September 1, 2011, the plaintiff was treated at CareSouth Carolina for back and hip pain. He reported problems with right buttock and posterior thigh areas since his injection at his last visit. He also reported being dizzy. The plaintiff was informed that he may need an MRI since his x-rays were normal (Tr. 616, 653).
On September 20, 2011, Elva Stinson, M.D., a medical consultant on contract to the Administration completed a physical RFC assessment indicating that the plaintiff was capable of performing medium work with postural and environmental limitations (Tr. 635-42). On the same date, the plaintiff underwent a progress summary with TCMHC. He was inconsistent with his appointments, and his participation at CareSouth had also been variable. His primary complaints were associated with anxiety. He complained of worry, nervousness, racing thoughts, and sleep difficulties. He was encouraged to be more consistent with his appointments (Tr. 690).
On September 21, 2011, the plaintiff was treated at TCMHC for followup. He reported that he continued to have anxiety around crowds and was still depressed and anxious. He also reported continued pain. He had an anxious mood and was continued on Celexa, Depakote, Neurontin, and trazodone (Tr. 721-22).
On November 17, 2011, the plaintiff was treated at CareSouth Carolina for increased left hip and leg pain as well as left-sided facial numbness. He was noted to be slow moving with a limp. He was found to have tenderness across his lower back. He was advised that it was urgent that he quit smoking. His medications were refilled, and tramadol was added (Tr. 651).
On December 15, 2011, the plaintiff was treated for left-sided facial numbness and medication side effects. He had a new onset of tremors and underlying anxiety. He had decreased tactile sensation along his left cheek but no facial asymmetry. On the same date, Asha S. Davis, M.D., evaluated the plaintiff for followup. He complained of irritability, sleep problems, and occasional wishes to be dead. Dr. Davis noted that the plaintiff had cancelled or no showed for therapy appointments in the last two months. His mood was anxious, and his affect was congruent. He appeared to have trembling episodically. His mental status examination was normal. Dr. Davis diagnosed bipolar I disorder, social phobia, panic disorder with agoraphobia, PTSD, generalized anxiety disorder, OCD, and a GAF score of 55. He was referred to 12-step program. Dr. Davis continued the plaintiff's medications (Tr. 649, 718-20). On December 22, 2011, the plaintiff underwent a progress summary with TCMHC. He was noted to have poor attendance patterns, which prevented individual treatment from occurring. He was stable overall. His primary complaints were of anxiety-related issues. He complained of frequent worry and some panic attacks. The importance of improved attendance patterns was discussed (Tr. 691).
On February 23, 2012, Simi Sachdev, M.D., evaluated the plaintiff for followup of depression and anxiety. He reported hallucinations, but otherwise, his mental status examination was normal with intact concentration and attention. Dr. Sachdev noted the plaintiff's history of witnessing his father murder another man and of being involved in a severe motor vehicle accident. He reported that he felt stressed out and anxious so much that he felt numb in his face, shook at night, and urinated on himself. He reported feeling overwhelmed, depressed, and tired. The plaintiff had problems with affording medications in the past. His mood was depressed anxious, and his affect was anxious. Dr. Sachdev diagnosed generalized anxiety disorder, OCD, major depressive disorder, recurrent moderate, and a GAF score of 50. Dr. Sachdev discussed ways to improve his coping skills. Dr. Sachdev continued the plaintiff's medications, but tapered him off trazadone and added Remeron (Tr. 715-17).
A GAF score between 41 and 50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning. DSM-IV, 32-34.
On March 28, 2012, the plaintiff entered into a plan of care with TCMHC for continued treatment of generalized anxiety disorder, obsessive-compulsive disorder, and major depressive disorder. A progress summary on this date showed that he had only received a medical assessment during this time frame and that he had a history of poor compliance with appointments. Improved attendance was noted to be required in order for services to continue (Tr. 685-686, 692).
On June 7, 2012, Dr. Davis evaluated the plaintiff for followup. Dr. Davis noted that the plaintiff had several no shows and cancellations due to trouble with transportation. Dr. Davis observed that the plaintiff had poor compliance with treatment and was possibly medication seeking. He reported numerous stressors including losing his house and job. He admitted to being more sad and crying about his situation. He relayed being unable to attend his granddaughter's kindergarten graduation due to anxiety. He reported poor sleep due to chronic pain and having difficulty adjusting to not working. He denied current suicidal ideation and indicated that he did not want to act on his thoughts. He reported that he had run out of his Depakote but did not feel like it was working anyway. He reported that he still felt anxious all the time and got nauseated. On examination, he had slightly restless psychomotor activity. He had fair insight and judgment and a sad and anxious mood. Otherwise, his mental status examination was normal, with intact concentration and attention. Dr. Davis diagnosed generalized anxiety disorder, OCD, major depressive disorder, recurrent moderate, and a GAF score of 50. Dr. Davis increased the plaintiff's doses of Neurontin and Remeron (Tr. 712-14).
On June 19, 2012, the plaintiff underwent a progress summary with TCMHC. It was noted there had been difficulty contacting and scheduling appointments with the plaintiff, though he was more compliant with personal medical appointments. He was advised to attend therapy services at least monthly (Tr. 693). On July 5, 2012, Dr. Davis reevaluated the plaintiff. He reported not being able to tell any difference with his last medication change. The plaintiff complained of ringing in his ears at night and having auditory hallucinations, though he could not make out what they were saying. He reported feeling depressed about his health and finances. He indicated that he felt anxious all the time and could not stand to be around other people. Dr. Davis indicated that the plaintiff's judgment and insight were fair and his mood was anxious. Otherwise, his mental status examination was normal with intact concentration and attention. Dr. Davis restarted him on trazodone and added a trial of Geodon (Tr. 709-11).
On September 17, 2012, the plaintiff underwent a progress summary with TCMHC. It was noted that he was inconsistent with therapy appointments. At his last appointment, he reported being anxious and still feeling depressed. He indicated that his medications were not working well. It was noted that it was appropriate for the plaintiff to receive mental health treatment for symptoms related to depression and anxiety, but that he would need to improve his attendance (Tr. 694). On October 5, 2012, Dr. Davis evaluated the plaintiff for followup. Dr. Davis commented that he "[h]asn't been compliant with MH visit recently." Dr. Davis noted that he had developed symptoms suggestive of a cardiac event after starting Geodon. He reported having poor sleep and anxiety. He also reported continued struggles with COPD, cough, and shortness of breath. On examination, Dr. Davis again observed that the plaintiff was possibly medication seeking. Dr. Davis indicated that his judgment and insight were fair and his mood was anxious. Otherwise, his mental status examination was normal; specifically, his attention and concentration were intact. Dr. Davis diagnosed generalized anxiety disorder, OCD, major depressive disorder, and GAF of 50. Dr. Davis stressed the importance of compliance and restarted the plaintiff on Depakote and prazosin. Dr. Davis also continued him on trazodone and Celexa. Dr. Davis indicated that his anxiety was likely precipitated by chronic COPD (Tr. 706-08). On December 18, 2012, the plaintiff underwent a progress summary with the TCMHC staff. He had not received therapy during the time frame, and his last personal medical appointment was on October 5, 2012. He had not attended a therapy appointment since December 2011. The plaintiff explained that he frequently cancelled appointments because he was nervous (Tr. 695).
On January 3, 2013, Dr. Davis evaluated the plaintiff for followup and a medication check. He reported increased irritability and continued anxiety attacks in addition to running out of Depakote. The plaintiff reported that he had so much anxiety that he "can't stay anywhere too long." He reported being interested in additional treatment but not being able to be seen due to a lack of transportation. Dr. Davis noted that he only had fair judgment, noting his lack of compliance, and fair insight into his illness. Otherwise, his mental status examination was within normal limits. His mood was anxious, but his breathing was less labored. Dr. Davis diagnosed generalized anxiety disorder, OCD, major depressive disorder, and GAF of 50 (Tr. 703-05). On March 19, 2013, the plaintiff underwent a progress summary with the TCMHC. He continued to be noncompliant with therapy services, but it was difficult to close his case since he did attend personal medical appointments (Tr. 696). On March 27, 2013, the plaintiff was treated for an anxiety attack at the emergency room. He had elevated blood pressure. He was diagnosed with acute anxiety and advised to seek followup treatment. He was discharged in stable condition (Tr. 676-80).
On April 3, 2013, the plaintiff was treated at TCMHC for followup. He complained of left leg pain and right arm pain. He was started on hydrochlorothiazide ("HTCZ") and prescribed Mobic for pain. He was ordered to obtain blood work (Tr. 777-80). On April 17, 2013, the plaintiff reported right shoulder pain that radiated to his fingers. He received refills of Mobic for right shoulder and left leg pain (Tr. 775-76). On May 15, 2013, he was prescribed an increased dose of HTCZ and Mobic for his right shoulder and left leg pain (Tr. 773-74).
On June 4, 2013, Dr. Sachdev evaluated the plaintiff for followup. He had run out of his Depakote. His moods had been more irritable, and his anxiety attacks continued. He complained of hand jerks and noises buzzing in his left ear. He was shaking to the point that he thought he was having a seizure. He indicated that his sleep was poor and that he had only left home once since the last time he was there. On examination, the plaintiff had fair insight and judgment. His mood was anxious. Dr. Sachdev diagnosed generalized anxiety disorder; OCD; major depressive disorder, recurrent moderate; and a GAF score of 50. Dr. Sachdev referred the plaintiff for a physical evaluation due to his health concerns and lack of primary care in more than one year. Dr. Sachdev indicated that his anxiety was likely exacerbated by inadequately treated COPD. Dr. Sachdev stressed the importance of the plaintiff complying with his treatment plan and discussed ways to reduce his anxiety. His mental health medications were continued (Tr. 700-02). On June 18, 2013, the plaintiff underwent a progress summary with TCMHC. He continued to be poorly compliant with therapy, though it was noted that it was appropriate for him to receive mental health treatment for his symptoms related to depression and anxiety. It was recommended that appointments continue to occur on a regular basis (Tr. 697).
On September 11, 2013, the plaintiff was treated at TCMHC for followup and medication refills. He complained of pain in his left leg and a swollen stomach. He was diagnosed with hypertension, hyperlipidemia, left leg pain, and abdominal pain (Tr. 771-72).
On September 13, 2013, Dr. Patel performed a consultative examination of the plaintiff at the Commissioner's request for allegations of anxiety, left leg problems, left and right arm problems, COPD, tremors, and bipolar disorder. The plaintiff reported a long history of COPD, which required inhaler and nebulizer treatment. He indicated that he had quit smoking six years prior but now smoked a "puff here and there." He reported a history of high blood pressure for a few years with occasional headache and precordial chest pain. He also reported leg pain from an automobile accident in 2000 where he suffered a right tibia fracture and right femur fracture. He also reported pain with numbness in both arms as well as tremors that had developed in his right hand. Dr. Patel noted that the plaintiff had been diagnosed with generalized anxiety disorder and bipolar disorder in 2011. He reported that the medication for his mental health symptoms did not help. On examination, the plaintiff was appropriately oriented and in no acute distress. He acted somewhat nervous and had fine tremors in his hands. He was very shaky and nervous and slow to perform the finger-to-nose test bilaterally. His left upper extremity power was 4/5, left hand grip was 4/5, the right upper extremity power was 5/5, and lower extremity power was 5/5. The plaintiff managed to get on and off the examination table very slowly. He performed the tandem walk and managed to walk on the heels and the toes slowly. He managed to squat about 30%. The plaintiff had a slightly obese musculature with a BMI of 30.21. He kept his left hand fingers in a semi-flex position, but was able to extend the small joints and fingers with his right hand. His lumbar spine was nontender. Straight leg raising was supine 20 degrees on the left and 45 degrees on the right. Seated straight leg raising was 80 degrees on the left and sitting 90 degrees on the right. The plaintiff complained of pain and weakness in his left arm and left leg. His left hip was tender, and his right hip was normal. He managed to bend forward to touch the ankle with some difficulty, and he had shaking of the upper extremity. The plaintiff's right hand at times shook more than the left hand, and he walked dragging his left leg a little bit. Mentally, the plaintiff was clear, coherent, and he was able to handle his own funds if provided. Dr. Patel diagnosed history of pneumoconiosis secondary to cotton fiber exposure, COPD, generalized anxiety disorder, bipolar disorder, tremors of the upper extremities, history of right leg fracture, left leg weakness, and gastroesophageal reflux disease (Tr. 734-38).
On October 16, 2013, the plaintiff was treated at TCMHC for followup of hypertension and medication refills. He complained of trouble breathing. He had decreased air movement. Blood work was ordered, and his medications were refilled (Tr. 769-70). The plaintiff was evaluated by Dr. Sachdev. He reported problems with anxiety and his breathing. He indicated that his anxiety was the reason that he had not been able to come in for his appointments. On examination, the plaintiff had fair and partial insight, an anxious mood, and a shaky affect. Dr. Sachdev diagnosed generalized anxiety disorder; OCD; major depressive disorder, recurrent moderate; and a GAF score of 50. Dr. Sachdev stressed compliance and ways to deal with anxiety. Dr. Sachdev indicated that he would taper the plaintiff off of Celexa and start a trial of Pristiq (Tr. 755-57).
On October 21, 2013, the plaintiff underwent spirometry testing. He also had a left leg x-ray that showed no acute findings and lumbar x-rays that showed mild degenerative changes (Tr. 743-46).
On October 22, 2013, Mary Lang, M.D., a medical consultant on contract to the Administration completed a physical RFC assessment indicating that the plaintiff was capable of performing medium work with postural, manipulative, visual, and environmental limitations (Tr. 123-26).
On October 31, 2013, Katherine J. Kelly, Ph.D., performed a mental status examination of the plaintiff at the Commissioner's request. Dr. Kelly reviewed the plaintiff's records, which showed treatment for anxiety, left leg bad nerve, left and right arms going numb, COPD, tremors, bipolar disorder, and mental impairments. The plaintiff reported being unable to work mainly due to his breathing, his leg, and anxiety. He reported that his anxiety problems began in his childhood. He reported that he usually did not leave his house. He explained that he felt like he was going to die or have a heart attack and that some days were worse than others. He reported that little sounds make him jump and that he could not be in crowds. He reported memory problems and sleep problems. He admitted to suicidal thoughts but indicated that he would not commit suicide because "God doesn't forgive you for that." He had not been hospitalized for mental health symptoms. The plaintiff was unable to perform serial sevens. He was able to write a sentence, but his handwriting was quite shaky. He was able to read and comprehend directions. He was unable to copy an interlocking pentagon designs over two attempts. He was able to recall three words immediately but only one of the three words after a five minute delay. When asked to draw a clock face with the numbers, he began to draw a digital clock. He had planning errors in the drawing of the clock face, and he had to look at his fingers as he increased in numbers. The plaintiff was able to give the motions for cutting a loaf of bread or log of wood. He was driven to the assessment by his ex-wife, and he was concerned that the door was not ajar. The plaintiff's right hand shook in tremor. He was appropriately groomed. He described his mood as very anxious. His affect was blunted, and he made poor eye contact. He was appropriately oriented but confused while answering some questions. His sentences were quite lengthy and occasionally tangential, but he was capable of being redirected to being goal oriented. He appeared to understand all questions asked of him, as his responses to questions were in context to the conversation. He emphasized his anxiety, pain in his legs, and not being outside the house. In addition to tremor, the plaintiff would hold his right arm straight up and would occasionally stand up. He coughed very deeply on a frequent basis. The plaintiff's concentration was poor during the interview, and he frequently added more information from sections of the interview previously discussed. His gait was such that it appeared that he was in pain. His voice was low in volume and in a slight monotone, but unpressured and of good speed. He talked incessantly, and he was not able to provide reliable historical information. His level of intelligence was estimated to be within the borderline to extremely low range based on presentation. He appeared to be forthright with all questions and willing to admit shortcomings. Dr. Kelly diagnosed generalized anxiety disorder, severe; major depressive disorder, moderate, rule out neurocognitive disorder, mild; rule out agoraphobia; unspecified personality disorder; and, COPD, tremors, nerve damage in left arm and right shoulder, rule out neurocognitive disorder. The plaintiff endorsed symptoms associated with generalized anxiety disorder and possibly agoraphobia. His poor planning and memory issues were suggestive of a neurocognitive disorder, but testing would be necessary to determine if the issues were organic or a symptom of his severe generalized anxiety disorder. Judgment and insight were poor. He completed all activities of daily living independently and appeared capable of personal safety. His social functioning was quite restricted. He appeared to have borderline average intelligence, and his attention and concentration could be considered below normal limits. His stream of thought was "scattered," and he was focused on his physical and mental health issues. He was oriented in all spheres, cooperative, exhibited a normal mood with no perceptual abnormalities, and denied suicidal and homicidal ideations. Dr. Kelly indicated that it appeared that the plaintiff's results were a fair evaluation of his current functioning (Tr. 748-52).
On November 26, 2013, Michael Neboschick, Ph.D., a non-examining consultant on contract to the Administration, evaluated the record evidence and opined that the plaintiff had mild restrictions in activities of daily living and maintaining social functioning. He also opined that the plaintiff had moderate limitations in maintaining concentration, persistence, or pace. Dr. Neboschick explained that the plaintiff "would be capable of performing simple, unskilled types of work." He opined that the plaintiff was moderately limited in maintaining attention and concentration for extended periods, but could "[s]ustain attention for simple, structured tasks for periods of 2 hour segments" (Tr. 121-28).
On December 16, 2013, the plaintiff underwent a progress summary with TCMHC personnel. He had made minimal progress toward his goals and objectives, and he was inconsistent with appointment attendance. Frequent treatment would "likely bring more progress with appropriate attendance patterns." He continued to complain of depression and anxiety, and he reported that his anxiety made keeping his appointments difficult. He was encouraged to attend therapy services on a least a monthly basis (Tr.763).
On January 15, 2014, Dr. Sachdev evaluated the plaintiff and noted that he had missed all of his therapy appointments. He reported taking Pristiq for about 20 days but stopping due to chest pains. He did not believe the medications were helping. He reported having some forgetfulness. Dr. Sachdev indicated that the plaintiff had partial insight. His mood was anxious, and his affect was shaky. His concentration and attention were intact. Dr. Sachdev diagnosed generalized anxiety disorder; OCD; major depressive disorder, recurrent moderate; and a GAF score of 50. Dr. Sachdev discontinued Pristiq and started a trial of Viibryd (Tr. 760-62). The plaintiff was treated at TCMHC on the same date for followup of shortness of breath and chest pain that came and went. He was found to have decreased air movement. He had limited range of motion in his right shoulder and tenderness in his right hip. His diagnoses included COPD, hypertension, gastroesophageal reflux disease ("GERD"), and right hip pain (Tr. 767-68).
On March 7, 2014, Lindsey Crumlin, M.D., a medical consultant on contract to the Administration completed a physical RFC assessment indicating that the plaintiff was capable of performing medium work with postural, manipulative, visual, and environmental limitations (Tr. 157-60).
On March 12, 2014, Dr. Sachdev evaluated the plaintiff for reports of feeling anxious and having panic attacks. He had missed more therapy appointments before this evaluation. He reported that Vistaril was helping, but he had not started Viibryd yet since he did not have a way to get samples. On examination, the plaintiff was anxious but otherwise normal. Dr. Sachdev's diagnoses included generalized anxiety disorder, OCD, and a GAF of 50. Dr. Sachdev ordered a trial of Viibryd. Dr. Sachdev again stressed the importance of compliance (Tr. 858-60). On May 6, 2014, Paul Robbins, M.D., evaluated the plaintiff for a medication check. The plaintiff reported lifelong anxiety and a traumatic childhood. He reported being unable to sleep for several days due to leg pain and anxiety. He reported that multiple medications had not been helpful. On examination, Dr. Robbins noted that the plaintiff had bilateral hand tremors. He indicated that the plaintiff's mood was depressed and his affect was congruent. The plaintiff had hallucinations and concentration problems. Staff reported that he smelled like alcohol. Dr. Robbins' diagnoses included PTSD, major depressive disorder, and a GAF of 60 (Tr. 855-57).
On May 8, 2014, Dr. Kelly conducted a second consultative examination of the plaintiff at the Commissioner's request. Dr. Kelly reviewed information from the record and conducted diagnostic testing. The plaintiff reported trying to get disability for his breathing and memory. He reported that he got angry for little reason and that he had memory problems. He was appropriately oriented. He was unable to perform serial sevens or serial threes. He made multiple errors writing his sentences but was able to read and comprehend directions. He was unable to copy the interlocking pentagon designs. Dr. Kelly noted that the plaintiff was able to recall three words immediately but only one word after a five minute interval. He was appropriately groomed, and he made fair eye contact. His sentences were very lengthy, and although initially goal oriented, would become tangential, usually related to his health or anxiety. The plaintiff appeared to understand all questions as his responses were initially in context to the conversation. He talked almost incessantly, emphasizing his anxiety, ringing in ears, breathing issues, and other health issues. His right hand trembled throughout, but he kept his left arm in his lap, rarely lifting it. He had a very frequent phlegm filled cough, and his breathing could be heard throughout the interview in spite of his using an inhaler twice. The plaintiff also gagged several times. He stood up every seven to ten minutes for a minute to either walk around or rub his back. His concentration was poor, and he had to be redirected throughout the interview. He was unable to provide historical information with certainty except for his work history. She estimated his level of intelligence to be within the extremely low to borderline range based on presentation. He appeared to be forthright with all questions and willing to admit shortcomings. She stated, "It was noted that his description of anxiety and his not wanting to be around people was more detailed in the October 31, 2013, meeting than at this one, but offered more information about symptoms of PTSD at this meeting." Dr. Kelly indicated that the plaintiff appeared to give appropriate effort on testing, but frequently commented about having no education. The plaintiff's Wide Range Achievement Test-4 ("WRAT4") showed a reading grade level equivalent of 2.1, a sentence comprehension grade equivalent of 3.2, and an arithmetic grade equivalent of 3.5. Wechsler Adult Intelligence Scale-IV ("WAIS-IV") testing showed a full scale IQ of 63. Dr. Kelly found the plaintiff's test results to be valid. She diagnosed learning disorder, generalized anxiety disorder, ADHD, personality disorder NOS, and COPD, sciatic nerve issues, left arm movement issues, high blood pressure, ringing in the ears, rule out vision issues. Dr. Kelly indicated that he would have no difficulty remaining on task, but it appeared that he would be very slow at accomplishing the tasks. It appeared that he would be able to remember and carry out simple, but not complex instructions and that he was able to sustain concentration and persist in work-related activity at less than a reasonable pace. Dr. Kelly indicated that the plaintiff would be incapable of managing financial affairs. It appeared that he had deficits in expressive language due to his poor reading skills though his receptive language was fair. Dr. Kelly indicated that the plaintiff's judgment appeared that he would be able to make simple decisions (Tr. 784-89).
On May 23, 2014, Samuel Goots, Ph.D., considered Dr. Kelly's second consultative examination and re-evaluated Dr. Neboschick's opinion on May 23, 2014. He confirmed that the plaintiff had mild restrictions in activities of daily living and moderate difficulties in maintaining concentration, persistence, or pace. Dr. Goots also opined that the plaintiff was moderately limited in maintaining social functioning. Dr. Goots explained that the plaintiff "could concentrate well enough to complete simple tasks with ordinary supervision. He would have moderate difficulty with more detailed instructions and complex tasks. He could complete a normal workweek with an occasional interruption due to his mental condition" (Tr. 154-62).
On May 29, 2014, Edmund Higgins, M.D., evaluated the plaintiff for followup. The plaintiff reported that he was doing a little better despite having a number of stressors. Dr. Higgins noted that the plaintiff had a long history of anxiety. His mental status examination was completely normal. Dr. Higgins observed that the plaintiff was improved but still anxious Dr. Higgins' diagnoses included PTSD; major depressive disorder, recurrent, moderate; and a GAF score of 60. Dr. Higgins noted that it was not clear that the plaintiff needed or benefitted from Depakote, and he lowered the dose in anticipation of discontinuing it. Dr. Higgins also increased the dose of Neurontin, advised the plaintiff to taper off of Klonopin, and restarted Vistaril and trazodone (Tr. 852-54).
On June 25, 2014, Sylvia Watts, NP, with TCMHC, completed a medical statement regarding the plaintiff. Ms. Watts stated, that in a work day, the plaintiff could work two hours. Ms. Watts indicated that he could stand two hours at one time, stand 60 minutes in a workday, sit 30 minutes at one time, and sit two hours in a workday. He could lift five pounds frequently and occasionally. He could frequently use his hands and arms; occasionally bend, stoop, balance, tolerate heat, tolerate cold, and tolerate noise exposure; and could never tolerate dust, smoke, or fume exposure. He did not need to elevate his legs and suffered from moderate pain. The plaintiff's diagnoses were chronic COPD, chronic anxiety, sciatica, and hypertension. His medications were reviewed and continued (Tr. 791-813).
On July 10, 2014, Dr. Higgins evaluated the plaintiff for numerous complaints including anxiety, trouble sleeping, shortness of breath due to COPD, and depression. He was not doing well following the medication change. He stopped taking trazodone after one week and had not taken Neurontin in two weeks. On examination, the plaintiff was nervous and reported auditory hallucinations. Otherwise, examination findings were normal. He was cooperative and appropriately oriented. His mood was anxious, and his affect was appropriate. He required monitoring of his medication side effects as well as supportive and rehabilitative interventions to improve his level of functioning. Dr. Higgins provided the plaintiff with one more month of Klonopin and started him on Elavil. He recommended the plaintiff return in two weeks (Tr. 850-51).
The plaintiff returned twelve weeks later on October 2, 2014. Dr. Higgins noted that the plaintiff had missed four appointments and was out of his medications. He complained of anxiety, depression, crying, being easily angered, not sleeping good, shaking, and having low energy. On examination, the plaintiff was nervous and reported auditory hallucinations. He was appropriately oriented, his mood was anxious, and his affect was appropriate. His memory, attention, and concentration were intact. Dr. Higgins' diagnoses included PTSD, major depressive disorder, history of alcohol and drug dependence, rule out cognitive disorder secondary to traumatic brain injury, cluster B traits, multiple physical conditions, and a GAF score of 55. Dr. Higgins renewed his Vistaril, Neurontin, and Elavil (Tr. 848-49). On March 16, 2015, the plaintiff admitted to being out of his medications for several months and taking his father's Neurontin. He complained of anxiety and depression. He reported that his sleep was not good and that his COPD was a big problem. Dr. Higgins explained, the plaintiff "does better when he stays on his medications - getting him to return for [follow-up] appointments has been a big problem." The plaintiff's mood was anxious, his judgment was fair to poor, and his insight was fair. Dr. Higgins stopped his Vistaril and renewed his Elavil and Neurontin (Tr. 846-47). On May 18, 2015, the plaintiff reported that he was doing "about same." He complained of some depression and feeling like he had a "hangover" in the morning from his medications. His mood was euthymic, and his insight and judgment were fair. Dr. Higgins noted that he had slight improvement and would do even better if he got on Neurontin (Tr. 844-45).
On July 14, 2015, the plaintiff underwent an initial clinical assessment update at TCMHC. It was noted that he had a trauma history of his father shooting and killing a man when he was about seven years old. He reported nightmares and flashbacks for years with some nightmares recently. He reported seeing Sylvia Watts for his physical problems. The plaintiff was neat in appearance and appropriately oriented. His affect was appropriate to situation, and his mood was hopeless, anxious, and angry. He admitted to some auditory and visual hallucinations. His judgment was marked as poor decision making adversely affected himself and others. He had a poor remote and recent memory. His fund of knowledge was average (Tr. 841-43). On August 17, 2015, Dr. Higgins evaluated the plaintiff for followup and a medication check. He reported that his COPD and breathing continued to be a problem. He reported getting more anxious with Symbicort. He reported that he did not feel depressed but instead felt useless. Dr. Higgins increased his dose of Neurontin and continued his Elavil (Tr. 839-40).
On September 14, 2015, the plaintiff was treated at CareSouth Carolina for complaints of fatigue and weakness. He was diagnosed with hypertension, COPD, hyperlipidemia, and anxiety disorder. He was prescribed propranolol, omeprazole, clonazepam, tramadol, baclofen, and Pravachol (Tr. 822-30). On October 20, 2015, the plaintiff reported having anxiety issues related to his mother-in-law's death. He appeared sad and anxious. He also complained of increased pain in his left leg, cough, and shortness of breath. He was prescribed multiple medications including Symbicort, hydrocodone-acetaminophen, Nexium, clonazepam, and baclofen (Tr. 814-21).
On November 9, 2015, Dr. Higgins reevaluated the plaintiff. He reported that his anxiety had improved some with an increased dose of Neurontin. He reported feeling sad but not depressed. Dr. Higgins noted that he was getting treatment through CareSouth for his COPD. Dr. Higgins continued Elavil and Neurontin (Tr. 837-38).
On November 20, 2015, the plaintiff was treated at CareSouth Carolina for followup. He complained of fatigue, weakness, cough, joint pain, back pain, stiffness, muscle weakness and aches, numbness, tingling, and anxiety. He had tenderness in his left leg and a limping gait (Tr 800-13).
On February 11, 2016, Martha Smith, M.D., at TCMHC, evaluated the plaintiff for complaints of anxiety. He reported that his anxiety had affected his life, his relationships, and his ability to relax in a social setting. Dr. Smith noted that his mood was anxious, his attitude was guarded, and his affect was constricted. Other examinations were within normal limits. Dr. Smith diagnosed PTSD; major depressive disorder, recurrent episode, moderate; social anxiety disorder; agoraphobia; and generalized anxiety disorder. Dr. Smith discontinued his Neurontin and started him on a trial of Xanax (Tr. 835-36).
On February 29, 2016, the plaintiff was treated at CareSouth Carolina for following of multiple conditions including anxiety and back pain. He reported that he was unable to schedule an appointment with pain management because it was going to cost him over $400.00, and he just could not afford it. He had a noticeable limp and used a cane. He had tenderness in his left leg and left hip region. He was diagnosed with hypertension, COPD, anxiety disorder, and left leg pain. He was prescribed cyclobenzaprine, clonazepam, and ProAir Respiclick (Tr. 794-99).
On March 17, 2016, Dr. Smith reevaluated the plaintiff. He reported doing much better with his anxiety on Xanax XR, and he was pleased with his progress. Dr. Smith's examinations report was entirely normal. The plaintiff's mood was euthymic, he denied hallucinations, and he had good insight and judgment. The plaintiff "report[ed] a significant improvement on his anxiety" following an increase in his Xanax prescription. Dr. Smith stated that the plaintiff was "able to go out in social gatherings without feeling overwhelmed. His daily anxiety is improved. . . ." Dr. Smith noted that the plaintiff had an unsteady gait and continued his current treatment regimen (Tr. 833-34).
On April 1, 2016, the plaintiff underwent a progress summary with TCMHC. He had made progress towards his goal, and continued treatment was needed (Tr. 832).
At the hearing on June 23, 2016, after identifying the plaintiff's past relevant work (Tr. 93), the ALJ asked the vocational expert the following hypothetical:
Let's assume a hypothetical individual of the claimant's age and education and with those past jobs that you've described. All right, let's assume this individual, to start with, can do medium work, can frequently sit, stand and walk, can frequently climb ramps and stairs and occasionally climb ladders, ropes and scaffolds. Can frequently stoop, kneel, crouch and crawl. Occasional- let's say frequently handle and finger bilaterally, no exposure to pulmonary irritants, can perform and sustain simple, routine, repetitive asks, can make simple work-related decisions, can have occasional changes in the work setting and occasional superficial contact with the general public and coworkers. Would that hypothetical individual be able to do either of the past jobs?(Tr. 95). The vocational expert responded that the plaintiff's past relevant work would be precluded, but there would be other medium exertional level jobs available such as a hand packager or a linen room attendant. The ALJ asked the vocational expert if there would be any light jobs available with the remaining limitations, and the vocational expert indicated that there would be work such as a flagger or a shipping and receiving weigher (Tr. 95-96).
The plaintiff's attorney asked about a limitation of needing to use a breathing machine at least two to three times a day in addition to lunch or breaks, and the vocational expert responded that this would not allow for any of the identified jobs on a sustained basis. The vocational expert also indicated that there would be no work if, when standing or walking, he had to hold a cane in his right hand for balance; if due to headaches or pain, he would miss three or more days of work a month; or if, due to his psychological problems, he was off task 20% of the day or more; or if he had to elevate his left leg about waist high at least occasionally throughout the workday (Tr. 97).
ANALYSIS
The plaintiff argues that the ALJ erred in (1) improperly relying on vocational expert testimony and (2) presenting an improper hypothetical to the vocational expert (doc. 14 at 30-37).
The plaintiff argues that remand is warranted because the ALJ failed to obtain an explanation for the apparent conflict between the mental limitations in the RFC assessment and the requirements in the Dictionary of Occupational Titles ("DOT") for the jobs identified by the vocational expert (doc. 14 at 30-35). The undersigned agrees.
Social Security Ruling 00-4p provides in pertinent part:
When a [vocational expert ("VE")] . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE . . . evidence and information provided in the DOT. In these situations, the adjudicator will:2000 WL 1898704, at *4.
Ask the VE . . . if the evidence he or she has provided conflicts with information provided in the DOT; and
If the VE's . . . evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.
When vocational evidence provided by a VE . . . is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE . . . evidence to support a determination or decision that the individual is or is not disabled. The adjudicator will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified.
In Pearson v. Colvin, which was decided prior to the ALJ's decision in this case, the Court of Appeals for the Fourth Circuit ruled that an "ALJ independently must identify conflicts between the expert's testimony and the [DOT]" and that merely asking the vocational expert if there are any conflicts is insufficient. 810 F.3d 204, 209 (4th Cir. 2015). In addition, the court held that a vocational expert's testimony that apparently conflicts with the DOT can only provide substantial evidence if the ALJ receives an explanation from the vocational expert explaining the conflict and determines both that the explanation is reasonable and that it provides a basis for relying on the testimony rather than the DOT. Id. at 209-10 (citing SSR 00-4p, 2000 WL 1898704, at *2). The court further decided that "[a]n ALJ has not fully developed the record if it contains an unresolved conflict between the expert's testimony and the [DOT]" and that an ALJ errs if he "ignores an apparent conflict because the expert testified that no conflict existed." Id. at 210. In Pearson, the court concluded that, because there was no explanation regarding the apparent conflict, there was no reasonable basis in that case for relying on the vocational expert's testimony, and therefore the testimony could not provide substantial evidence for a denial of benefits. Id. at 211.
In the RFC assessment in this case, the ALJ limited the plaintiff to "simple, routine and repetitive tasks . . . only occasional changes in the work setting and only simple work-related decisions . . . [and] only occasional superficial contact with the general public and coworkers" (Tr. 43). In response to the ALJ's hypothetical, the vocational expert testified that the following medium, unskilled jobs would be available: hand packager, DOT no. 920.587-018, and linen room attendant, DOT no. 222.387-030 (Tr. 95-96). At step five of the sequential evaluation process, the ALJ relied on this testimony in finding that there are jobs that exist in significant numbers in the national economy that the plaintiff can perform (Tr. 51-52).
In the step five finding, the ALJ identified the hand packager occupation as "hand packer" (Tr. 52). --------
The plaintiff argues that there is an apparent conflict between the vocational expert's testimony and the DOT, which provides that the linen room attendant occupation has a General Educational Development ("GED") Reasoning Development Level of 3 and the hand packager occupation has a GED Reasoning Development Level of 2. See linen room attendant, DOT no. 222.387-030, 1991 WL 672098; hand packager, DOT no. 920.587-018, 1991 WL 687916. The GED "embraces those aspects of education (formal and informal) [that] are required of the worker for satisfactory job performance. This is education of a general nature [that] does not have a recognized, fairly specific occupational objective. . . ." DOT, app. C (4th ed. Rev. 1991), 1991 WL 688702. "The GED Scale is composed of three divisions: Reasoning Development, Mathematical Development, and Language Development." Id. A GED Reasoning Development Level of 2 indicates that the job requires a worker to be able to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations." Id. A GED Reasoning Development Level of 3 indicates that the job requires a worker to "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations." Id.
The Commissioner does not challenge the plaintiff's argument as to the linen room attendant position (doc. 15 at 10 n.2), but argues that the hand packager position, with a GED Reasoning Development Level of 2, is not inconsistent with an RFC limitation to "simple, routine and repetitive tasks" (id. at 12-16). While the Commissioner is correct that the Court of Appeals for the Fourth Circuit has not spoken on this issue in a published case, the court recently held in an unpublished case that there was an apparent conflict between the vocational expert's testimony that the claimant could perform certain specified jobs, each of which had a GED Reasoning Development Level of 2, and an RFC that limited him to performing simple one to two-step tasks with low stress. Henderson v. Colvin, 643 F. App'x 273, 276-77 (4th Cir. 2016). The court explained, "Unlike GED reasoning Code 1, which requires the ability to '[a]pply commonsense understanding to carry out simple one-or-two-step instructions,' GED Reasoning Code 2 requires the employee to '[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.'" Id. (citing DOT , app. C, 1991 WL 688702; Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1003-04 (9th Cir. 2015) (holding that GED Reasoning Development Code 2 requires additional reasoning and understanding above the ability to complete one to two-step tasks)). Accordingly, the court found that the ALJ erred in relying on the vocational expert's conclusory testimony and in failing to inquire further. Id. at 277-78 (citing Pearson, 810 F.3d at 209-10).
This case is similar to Henderson in that the RFC assessment limited the plaintiff to "simple" tasks, but it differs from Henderson in that the ALJ did not specify that the plaintiff was limited to one-to-two step tasks. Rather, he was limited to "simple, routine and repetitive tasks" (Tr. 43). The Commissioner argues that, based on this distinction, Henderson does not apply in this case (doc. 15 at 13-14). However, the majority of courts in this District have applied Henderson to hold that there is an apparent conflict between jobs that require Reasoning Development Levels of 2 and 3 and RFC limitations like the plaintiff's. See, e.g., Mathis v. Berryhill, C.A. No. 6:17-2242-TLW-KFM, 2018 WL 7099004, at *14 (D.S.C. Nov. 28, 2018), R&R adopted by 2019 WL 283643 (D.S.C. Jan. 22, 2019) (finding apparent conflict between RFC limiting the plaintiff to "simple, routine, repetitive tasks" and DOT's description of the identified jobs as having Reasoning Development Level of 2); Pack v. Berryhill, C.A. No. 9:17-2271-BHH, 2018 WL 5023608, at *3-4 (D.S.C. Oct. 17, 2018) (finding apparent conflict between RFC limiting the plaintiff to "simple routine tasks in an environment free of fast-paced production requirements" and DOT's description of the identified jobs as having Reasoning Development Level of 2); Williams v. Comm'r of Soc. Sec., C.A. No. 2:17-864-DCC, 2018 WL 4501239, at *3 (D.S.C. Sept. 20, 2018) (finding apparent conflict between RFC limiting the plaintiff to "simple, routine, and repetitive tasks" and the Reasoning Development Levels of 2 and 3 in the three jobs identified at the hearing); Rogers v. Berryhill, C.A. No. 1:17-1317-TMC-SVH, 2018 WL 1474429, at *12-14 (D.S.C. Mar. 9, 2018), R&R adopted by 2018 WL 1471905 (Mar. 26, 2018) (finding apparent conflict between RFC limiting the plaintiff to "simple routine tasks" and DOT's description of the identified jobs as having Reasoning Development Level of 2).
The Commissioner also notes that the court in Henderson relied on Rounds v. Comm'r of Soc. Sec., 807 F.3d 996, 1004 (9th Cir. 2015), in which the Court of Appeals for the Ninth Circuit explained that the ALJ "did not merely restrict Rounds to 'simple' or 'repetitive' tasks," but instead "expressly limited her to 'one to two step tasks.' " In Rounds, the Ninth Circuit ultimately determined that remand was in order because the ALJ did not recognize the apparent conflict between Rounds' RFC and the demands of a Reasoning Development Level of 2. 807 F.3d at 1004. The court in Rounds also cited other appellate authority holding that an "RFC limitation to 'simple' or 'repetitive' tasks is consistent with Level Two reasoning." See id. at 1004 n.6 (citing Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010); Abrew v. Astrue, 303 F. App'x 567, 569 (9th Cir. 2008); Lara v. Astrue, 305 F. App'x 324, 326 (9th Cir. 2008); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005); and Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004)).
In considering this same argument in a recent case, the Honorable Donald C. Coggins, Jr., United States District Judge, stated:
There is authority from other circuits supporting a finding of no apparent conflict [between an RFC that limits a claimant to "simple, routine, and repetitive tasks" and GED Reasoning Development Level 2]. For example, the Fourth Circuit favorably cited Rounds v. Commissioner Social Security Administration, 807 F.3d 996 (9th Cir. 2015) in Henderson. The Ninth Circuit in Rounds noted in a footnote that "[u]npublished decisions of panels of this Court and opinions from some of our sister circuits have concluded that an RFC limitation to 'simple' or 'repetitive' tasks is consistent with Level Two reasoning." Rounds, 807 F.3d at 1004 n.6 (collecting cases) . . . . However,
in light of the absence of authority from the Fourth Circuit and given the overwhelming weight of authority from district courts in the District of South Carolina, the Court agrees there is an apparent conflict in this case warranting a remand.Williams, 2018 WL 4501239 at *3. See also Pack, 2018 WL 5023608, at *3-4 ("[W]hile Defendant is correct that other courts, including other district courts in the Fourth Circuit, have reached different conclusions on this issue, the Court finds that the Magistrate Judge's recommendation is consistent with this District's application of Henderson, and that remand is therefore in order so the ALJ can resolve the apparent conflict between Plaintiff's RFC and the VE's explanation of jobs available to her.").
The issue presented in this case is one that has troubled district courts within the Fourth Circuit. . . . [C]onsistency among the courts of this district is important to litigants and counsel, and absent contrary authority from the Fourth Circuit, the Court . . . reverses and remands to the Commissioner.
In accordance with the reasoning of the above-cited cases, the undersigned finds that there is an apparent conflict between the DOT's Reasoning Development Levels of 2 and 3 of the identified jobs and the vocational expert's testimony that the plaintiff could perform the identified jobs with the RFC limitation to "simple, routine and repetitive tasks." While there may be a reasonable explanation for the apparent conflict, the ALJ never identified and resolved it. Accordingly, it would be speculation for the court to assume the vocational expert realized the conflict and necessarily considered it. Therefore, this action should be remanded for the ALJ to obtain vocational expert testimony in compliance with Social Security Ruling 00-4p with respect to the apparent conflict between the reasoning level for the jobs identified by the vocational expert and the limitations imposed by the ALJ in the RFC assessment.
To the extent the Commissioner argues that the plaintiff's attorney was required to point out the conflict between the vocational expert's testimony and the DOT at the administrative hearing (doc. 15 at 12), the undersigned recommends the district court reject the argument. The ALJ's affirmative duties to resolve conflicts between the DOT and the vocational expert's testimony and to identify jobs at step five cannot be shifted to the claimant. See Pearson, 810 F.3d at 210 (providing that an ALJ "has a duty to investigate the facts and develop the record independent of the claimant or his counsel" and has "not fully developed the record if it contains an unresolved conflict between the expert's testimony and the [DOT]"). See also Watson v. Colvin, C.A. No. 0:15-4935-RBH, 2017 WL 694645, at *4 (Feb. 22, 2017) (stating that SSR 00-4p "puts the onus of identifying and obtaining a reasonable explanation of any conflicts between the vocational expert's testimony and the DOT on the ALJ") (citation omitted).
The plaintiff also argues that the ALJ erred in failing to account for his moderate limitation in concentration, persistence, and pace in the hypothetical to the vocational expert in violation of Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015) (doc. 14 at 35-37). Because the court recommends that this matter be remanded to the ALJ for resolution of an apparent conflict at step five of the sequential evaluation process, this remaining allegation of error will not be further addressed. 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 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo ). Accordingly, on remand, the ALJ should consider and address this allegation of error.
CONCLUSION AND RECOMMENDATION
Based upon the foregoing, this court recommends that the Commissioner's decision be reversed under sentence four of 42 U.S.C. § 405(g), with a remand of the cause to the Commissioner for further proceedings as discussed above.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge February 14, 2019
Greenville, South Carolina