Opinion
C/A No. 0:19-1918-RBH-PJG
09-30-2020
Cheri Davis, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Cheri Davis, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and that the case should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), 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); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In January 2014, Davis applied for DIB, alleging disability beginning July 1, 2011. Davis's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on October 15, 2014, at which Davis appeared and testified and was represented by Weston Merck, a non-attorney representative. After hearing testimony from a vocational expert, the ALJ issued a decision on October 26, 2016 finding that Davis was not disabled from the alleged onset date of July 1, 2011 through the date last insured of June 30, 2016. (Tr. 20-31.) The Appeals Council denied Davis's request for review on August 24, 2017, and Davis sought further review at the United States District Court for the District of South Carolina. However, the Commissioner moved for and was granted an order of reversal pursuant to sentence four of 42 U.S.C. § 405(g) remanding the matter for further administrative proceedings. The Appeals Council issued an order on October 15, 2018 vacating the ALJ's October 26, 2016 decision and remanding the case for further proceedings. (Tr. 799-801.) The Appeals Council instructed the ALJ to resolve the following issues:
• Further evaluation of the opinion evidence and the residual functional capacity is warranted. The residual functional capacity does not reflect any limitation regarding interaction with supervisors, yet the Administrative Law Judge assigned significant weight to three opinions that included such limitations. Specifically, the Administrative Law Judge assigned significant weight to the opinion of psychological consultative examiner, Joseph K. Hammond, who opined the claimant has moderate to severe limitations in terms of her ability to relate to a co-worker or to a supervisor on a consistent basis (Decision, page 10; Exhibit 7F, page 4). Further, the Administrative Law Judge assigned significant weight to State agency psychological consultants Richard Waranch, Ph.D., and Silvie Kendall, Ph.D., who opined the claimant should only have intermittent and not prolonged contact with supervisors (Decision, page 1O; Exhibits 1A, pages 12-13 and 4A, page 11). The decision does not explain why a limitation regarding interaction with supervisors was not incorporated into the residual functional capacity. Therefore, further evaluation of this opinion evidence and the claimant's residual functional capacity is necessary.
• The residual functional capacity does not correspond with the hypothetical question presented to the vocational expert. At the hearing, the Administrative Law Judge asked the vocational expert to assume the claimant was limited to "unskilled work," involving
"two-to-three step instructions" (Hearing Recording at 11:50:20am). In response, the vocational expert identified three jobs the claimant could perform. However, the residual functional capacity reflects the limitation to simple one-to-two, rather than two-to-three step instructions (Decision, page 6). The decision does not explain this discrepancy.(Tr. 799-800.) The Appeals Council also directed the ALJ as follows:
• The Administrative Law Judge found the claimant capable of performing work as an industrial cleaner (DOT #381.687-018); laundry worker (DOT #361.685-018); and an electronics worker (DOT #726.687-010). However, these jobs require a GED reasoning level of 2, and the residual functional capacity limits the claimant to simple one-to-two step instructions (Decision, page 6). Although the Agency does not rely on GED reasoning levels to conclude whether a claimant can perform a particular occupation, such levels should still be considered to ensure there are no conflicts between a residual functional capacity finding and occupations listed at step five (20 CFR 404.1564). The decision does not reflect such consideration occurred.
• Give further consideration to the non-treating and non-examining opinions pursuant to the provisions of 20 CFR 404.1527, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the sources provide additional evidence and/or further clarification of the opinions and medical source statements about what the claimant can still do despite the impairments (20 CFR 404.1520b).(Tr. 800.) A second hearing was held on March 27, 2019, at which Davis appeared and testified and was represented by Pati Hirak, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on May 6, 2019 finding that Davis was not disabled from the alleged onset date of April 1, 2011 through the date last insured of June 30, 2016. (Tr. 623-640.)
• Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 416.945 and Social Security Ruling 96-8p).
• Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p ).
Davis was born in 1967 and was forty-nine years old on her date last insured. She has a high school education and specialized training as a certified nursing assistant, with past relevant work experience as a florist. (Tr. 232.) Davis alleged disability due to bipolar disorder, post-traumatic stress disorder, anxiety, and depression. (Tr. 231.)
In applying the five-step sequential process, the ALJ found that Davis had not engaged in substantial gainful activity during the period from her alleged onset date of April 1, 2011 through her date last insured of June 30, 2016. The ALJ also determined that, through the date last insured, Davis's anxiety, affective disorder, bipolar disorder, obesity, asthma, and bilateral carpal tunnel syndrome were severe impairments. However, the ALJ found that, through the date last insured, Davis did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that, through the date last insured, Davis retained the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) with normal breaks. She can occasionally climb ladders and crawl. She can frequently balance, stoop, kneel, and crouch. She can frequently engage in bilateral fine manipulation. She should avoid concentrated exposure to cold, humidity and pulmonary irritants. The claimant is able to interact with the public and get along with coworkers and supervisors as long as the contact is intermittent and not prolonged, meaning no more than frequent interaction for up to a third of the day, further defined as casual interaction. Additionally, she can no more than occasionally engage in high volume, fast paced production jobs.(Tr. 634.) The ALJ found that, through the date last insured, Davis was unable to perform any past relevant work, but that considering Davis's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Davis could perform. Accordingly, the ALJ found that Davis was not disabled from April 1, 2011 through June 30, 2016.
This action followed.
STANDARD OF REVIEW
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); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "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." Craig, 76 F.3d at 589; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). "Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains 'sufficien[t] evidence' to support the agency's factual determinations." Biestek, 139 S. Ct. at 1154 (citation omitted). 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]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Davis raises the following issues for this judicial review:
Issue 1 Improper hypothetical to the VE. In order to rely on the testimony of a vocational expert, the ALJ must present a hypothetical which precisely sets forth all of Davis's impairments. The ALJ failed to include Davis's moderate limitation in concentration, persistence, or pace, therefore proposing an incomplete hypothetical. Can an ALJ decision based on an incomplete hypothetical be considered a decision based upon substantial evidence?(Pl.'s Br., ECF No. 11.)
Issue 2 Opinion evidence. The ALJ must provide an accurate evaluation of the opinion evidence. In this case the ALJ made multiple errors when evaluating the opinion evidence. Where the ALJ evaluated the opinion evidence and offered reasons for the weight assigned to various opinions that were not logically or legally sound, have legal errors been committed that are not harmless?
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claim was filed before that time, all references in the instant Report and Recommendation are to the prior versions of the regulations and SSRs in effect at the time Davis's application for benefits was filed, unless otherwise specified.
Davis, relying on the decision by the United States Court of Appeals for the Fourth Circuit in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), argues that the ALJ erred by finding "moderate limitations" with regard to Davis's concentration, persistence, or pace at Step Three of the sequential evaluation process, but failing to account for these limitations in the residual functional capacity. In Mascio, the Fourth Circuit held that remand was warranted in part because the ALJ's hypothetical question to the vocational expert was legally insufficient in that it failed to include— without any explanation by the ALJ—the ALJ's finding of moderate limitation on the claimant's ability to maintain concentration, persistence, or pace at Step Three. Mascio, 780 F.3d at 638. The Fourth Circuit stated that it "agree[d] with other circuits that an ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.' " Id. (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). However, the Court continued, stating:
Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For 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 vocational expert. But because the ALJ here gave no explanation, a remand is in order.Mascio, 780 F.3d at 638 (citation omitted). However, the Fourth Circuit further determined not to impose a categorical or per se rule that a finding of moderate limitations at Step Three would always result in a specific limitation in the residual functional capacity and held that the determinations would need to be made on a case-by-case basis. See Shinaberry v. Saul, 952 F.3d 113, 121 (4th Cir. 2020).
The Commissioner argues that the ALJ's analysis satisfactorily explains why Davis's moderate limitations in concentration, persistence, or pace at Step Three did not translate into further limitations in Davis's residual functional capacity and, in fact, the ALJ fashioned a more detailed residual functional capacity than the one in Mascio. Upon careful review of the ALJ's decision, the court is constrained to disagree. Here, the ALJ found that Davis retained the ability "to interact with the public and get along with coworkers and supervisors as long as the contact is intermittent and not prolonged, meaning no more than frequent interaction for up to a third of the day, further defined as casual interaction," and that Davis could "no more than occasionally engage in high volume, fast paced production jobs." (Tr. 634.) At issue here appears to be the ALJ's consideration of Davis's ability to stay on task in light of her determination that Davis was moderately limited in concentration, persistence, or pace. See Mascio, 780 F.3d at 638 (stating that "the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace."). It is unclear how the ALJ arrived at this limitation, especially in light of the contradictory evidence in the record, which the ALJ appears to have acknowledged. For example, the ALJ's opinion acknowledges the following competing evidence:
Although the Commissioner suggests that the ALJ also limited Davis to unskilled work, no such limitation appears in the residual functional capacity as stated in the decision or as presented to the vocational expert during the hearing. Nonetheless, it appears that the representative jobs identified by the vocational expert and accepted by the ALJ were all categorized as light, unskilled work.
• "The Function Report at 5E states she has problems with concentration, but she does not have problems with her memory, completing tasks, understanding and following instructions." (Tr. 633.)
• Davis reported to Dr. Joseph K. Hammond, a psychological consultative examiner, that she feels she can concentrate. (Id.)
• Davis testified that she had problems with attention and concentration. (Tr. 635.)
• The overall records indicate that Davis "has experienced some severe problems with social interaction and concentration. Also, Dr. Hammond and her treating doctors have expressed some concern about her ability to interact socially and her ability to concentrate." (Tr. 636.)
• Dr. Patrick Mullen, Davis's treating psychiatrist, opined that "[w]hile the tests were recent, they documented problems that were longstanding. I have seen her, and her other doctors have seen her struggle to concentrate and perform in the protective environment of a physician's office. She is not going to be able to reliably do either in a competitive work environment." (Tr. 631.)
Although the ALJ discounted Davis's subjective reports as well as Dr. Mullen's opinion evidence, it is unclear how the ALJ determined that limiting Davis to "no more than occasionally engage in high volume, fast paced production jobs" accounted for her moderate limitations in concentration, persistence, or pace. This is especially so in light of the ALJ's own recognition and apparent finding that Davis "has experienced some severe problems with social interaction and concentration. Also, Dr. Hammond and her treating doctors have expressed some concern about her ability to interact socially and her ability to concentrate." (Tr. 636.) The ALJ summarily concluded that Davis "has had the mental acumen to engage in decision-making, and that she has had the ability to handle a significant number of daily activities." (Tr. 636.) At no point in the decision does the ALJ explain how limiting Davis to "no more than occasionally engage in high volume, fast paced production jobs" would sufficiently account for her moderate limitations. Nor does any evidence in the record suggest a nexus between that restriction and Davis's limitation. Thus, it is unclear how the ALJ arrived at Davis's residual functional capacity or how she reconciled the above evidence with her determination not only that Davis was moderately limited in her ability to maintain concentration, persistence, or pace but also that Davis has some severe problems with concentration without providing an explanation for how she arrived at the above limitations or an explanation for omitting further limitations. Thus, the court is constrained to recommend remanding this matter for the ALJ to explain how the evidence reveals that, with her moderate difficulties, Davis can stay on task such that she can maintain substantial gainful activity. As the court found in Mascio, "the ALJ may find that the concentration, persistence, or pace limitation does not affect [Davis]'s ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here gave no explanation, a remand is in order." Mascio, 780 F.3d at 638.
Further complicating this court's review is the ALJ's evaluation of Dr. Mullen's opinion evidence, which as indicated above includes significant limitations in Davis's ability to concentrate. See 20 C.F.R. § 404.1527(c) (providing factors for considering and weighing opinion evidence); (see also Tr. 637-38) (discussing the weight afforded to Dr. Mullen's opinions). For example, as argued by Davis, in weighing Dr. Mullen's opinions the ALJ observed that Dr. Mullen is a treating source but did not acknowledge that Dr. Mullen is in fact a treating specialist, which would weigh in favor of according Dr. Mullen's opinions greater weight. Moreover, it is unclear how the ability to engage in preparing meals, housekeeping, watching television, caring for her personal needs, and independently taking her medications is inconsistent with Dr. Mullen's limitations. Further, the court observes that the ALJ indicated that Dr. Mullen's June 16, 2016 opinion was not entitled to controlling weight; however, she fails to specify what weight it was entitled to and which aspects of this opinion the ALJ found unsupported as it offers numerous limitations. (See Tr. 597-601.) In summary, while the ALJ appears to have articulated several reasons to discount Dr. Mullen's opinions, it is unclear whether the ALJ considered Dr. Mullen's specialty; what weight the ALJ afforded to Dr. Mullen's June 2016 opinion; and which aspects of Dr. Mullen's opinions were unsupported or inconsistent with the records. Accordingly, combined with the above issue, the court is unable to determine whether the ALJ's evaluation of this opinion evidence is supported by substantial evidence, and meaningful review is frustrated. See 20 C.F.R. § 404.1527(c); Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted); cf. Mastro v. Apfel, 270 F.3d 117, 178 (4th Cir. 2001) (stating that "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight") (internal quotation marks and citation omitted). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of the opinion evidence.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. September 30, 2020
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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
901 Richland Street
Columbia, South Carolina 29201
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).