Devonta P. v. Kijakazi

Full title: Devonta P., [1] Plaintiff, v. Kilolo Kijakazi, [2] Acting Commissioner of…

Court: United States District Court, District of South Carolina

Date published: Jul 19, 2021

C/A 1:20-3900-BHH-SVH (D.S.C. Jul. 19, 2021)

Opinion

C/A 1:20-3900-BHH-SVH

07-19-2021

Devonta P., [1] Plaintiff, v. Kilolo Kijakazi, [2] Acting Commissioner of Social Security Administration, Defendant.

Shiva V. Hodges, United States Magistrate Judge.

REPORT AND RECOMMENDATION

Shiva V. Hodges, United States Magistrate Judge.

This appeal from a denial of social security benefits is before the court for a Report and Recommendation (“Report”) pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his claim for Supplemental Security Income (“SSI”). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background

A. Procedural History

On or about March 19, 2013, the Social Security Administration (“SSA”) found that Plaintiff's impairments met childhood Listing 112.05, rendering him disabled under the meaning of the Social Security Act. Tr. at 81-88. The SSA subsequently determined Plaintiff was no longer eligible for benefits in a decision dated January 4, 2019. Tr. at 106-08. His request for reconsideration was denied. Tr. at 138-41. On February 24, 2020, Plaintiff had a hearing before Administrative Law Judge (“ALJ”) Walter C. Herin, Jr. Tr. at 27-80. (Hr'g Tr.). The ALJ issued an unfavorable decision on April 3, 2020, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 9-26. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on November 6, 2020. [ECF No. 1].

B. Plaintiff's Background and Medical History

1. Background

Plaintiff was 19 years old at the time of the hearing. Tr. at 37. He attended high school through the twelfth grade and received a certificate of attendance. Tr. at 38. He worked through vocational rehabilitation as a stocker and a cart retriever and bagger, although his earnings in these jobs were not consistent with work qualifying as past relevant work (“PRW”) under the SSA's definition. Tr. at 45-46.

2. Medical, Educational, and Functional History

On December 7, 2005, Plaintiff underwent testing using Wechsler Preschool and Primary Scale of Intelligence, Third Edition. Tr. at 421. His scores were: 74 for verbal intelligence quotient (“IQ”), 61 for performance IQ, 71 for processing speed quotient, and 65 for full-scale IQ. Id.

On October 6, 2008, Plaintiff underwent testing using Wechsler Intelligence Scale for Children-Fourth Edition (“WISC-IV”). Tr. at 424. His scores were: 67 for verbal comprehension index; 49 for perceptual reasoning index; 62 for working memory index; 50 for processing speed index; and 48 for full-scale IQ. Id.

On August 6, 2012, Plaintiff was deemed eligible for services from the Department of Disability and Special Needs based on a diagnosis of “mental retardation, ” with an IQ score of 48 on the WISC-IV test and 63 on the Vineland Adaptive Behavior Scale, Second Edition. Tr. at 379.

Plaintiff presented to Cashton B. Spivey, Ph.D. (“Dr. Spivey”), for a psychological evaluation on February 28, 2013. Tr. at 428-31. He was enrolled in a seventh-grade self-contained classroom at the time of the evaluation. Tr. at 428. He endorsed dysphoria over the death of his grandfather and was participating in counseling to address his loss. Id. He reported attention/concentration problems and crying spells. Id. He indicated he could bathe and dress independently and use a microwave oven. Tr. at 429. He denied being able to read a newspaper or perform simple arithmetic calculations. Id. He indicated his chores included cleaning his room, taking out the trash, letting the dog outside, and helping with the dishes. Id. He reported hobbies that included playing video games and with his dog. Id. Dr. Spivey observed Plaintiff to be shy; to have slightly blunted affect; to demonstrate a simple and concrete thought process; to have fair attention and concentration; to speak softly, but at a normal rate and rhythm; and to show minimal eye contact. Id. His scores on the WISC-IV were: 61 for verbal comprehension, 55 for perceptual reasoning, 56 for working memory, 56 for processing speed, and 48 for full-scale IQ. Tr. at 430. On the Wide Range Achievement Test, Fourth Revision (“WRAT-4”), Plaintiff's word reading score was equivalent to the seventh month of third grade; his sentence comprehension score was equivalent to the fifth to sixth month of kindergarten; his spelling was equivalent to the eighth month of kindergarten; and his math computation was equivalent to the fourth month of first grade. Id. He stated Plaintiff appeared to be “an individual of mentally retarded general intelligence with significant academic achievement deficits.” Id.

On May 23, 2017, Plaintiff underwent an annual review of his individualized education program (“IEP”) for his twelfth-grade year. Tr. at 433. His primary area of disability was indicated as mild intellectual disability. Id. The review indicated Plaintiff was making As in some of his classes, but had Ds in math and English. Tr. at 434, 435. On the American Guidance Service (“AGS”) math grade level assessment, he “showed strength in whole number operations (addition/subtraction) answering 5 of 9 questions correctly” and weakness in word problems and concepts and communication, answering just one of 13 problems correctly in each section. Tr. at 434. On the Study Island Math objective-based fourth grade level assessment, his highest score of 33.3% was in real-world measurement. Id. On the AGS reading assessment, Plaintiff placed at a second grade, second month level for instructional reading and less than a first grade, ninth month level for independent reading. Id. He showed significant weakness in vocabulary, answering only three of 20 questions correctly, and sentence comprehension, answering two of 20 questions correctly. Tr. at 435. On the Measure of Academic Performance (“MAP”) test, Plaintiff's math score was consistent with that of a beginning-of-the-year kindergarten student, his reading score was consistent with that of an end-of-the-year fourth grade student or beginning-of-the-year fifth grade student, and his language usage score was consistent with that of less-than-a-second-grade student. Id. The review states: “Devonta participates in a modified curriculum at his level of functioning and learns at a rate slower than that of his peers. He receives his instruction within a self-contained setting.” Id. Although Plaintiff expressed interest in working as a construction laborer, he answered only two of 10 questions correctly relative to the career choice. Tr. at 436. His high school objective was indicated to be “District Credential (non-diploma).” Tr. at 437. Plaintiff was to receive accommodations to include oral test administration and use of a calculator. Tr. at 438. The review notes: “Davonta currently struggles with maintaining skills taught from day to day.” Tr. at 441.

South Carolina Vocational Rehabilitation (“SCVR”) counselor Alicia M. Jackson (“Ms. Jackson”) met with Plaintiff to provide job counseling and guidance on February 12, 2018. Tr. at 451. Ms. Jackson noted Plaintiff was involved and maintained eye contact during the interview, but was not sociable. Id. She indicated Plaintiff had no driver's license and impaired reading ability. Id. They discussed possible work as a stock clerk, landscaper, or freight mover. Id.

Plaintiff maintained contact with Ms. Jackson and completed classes at SCVR on April 26 and 27 and May 4, 2018. Tr. at 453. Ms. Jackson assisted Plaintiff in completing applications for jobs as a stock clerk and cart attendant at Piggly Wiggly on April 27. Id.

Plaintiff's high school transcript dated June 5, 2018, reflects the following grades for his ninth grade year: 78 (C) in physical education I, 70 (D) in math I, 86 (B) in basic science I, 86 (B) in basic science II, 92 (B) in academic enrichment, 76 (D) (first quarter) and 93 (A) (fourth quarter) in family/community health, and 75 (D) (second quarter) and 96 (A) (third quarter) in personal health/wellness. Tr. at 506. His grades in tenth grade were: 65 (F) in biology, 77 (C) in English I, 84 (C) in math II, 90 (B) in geography, 82 (C) in English II, 93 (A) in academic enrichment, 71 (D) in community living, and 70 (D) in work skills development. Id. His grades in eleventh grade were: 100 (A) in introduction to horticulture/environmental resource management; 100 (A) in introduction to building construction; 64 (D) in math III, 73 (C) in English III, 92 (A) in current events, 87 (B) in community-based training experience, and 93 (A) in academic enrichment. Id. He achieved the following grades during his twelfth grade year: 37 (F) in family/community health; 61 (D) in personal health/wellness; 86 (B) in government; 85 (B) in math IV; 77 (C) in English IV; 70 (C) in employment transition; and 80 (B) in introduction to computers.³ Id. Plaintiff's transcript reflects a weighted scale grade point average (“GPA”) of 2.153 under the South Carolina Uniform Grading Policy and a GPA of 1.875 on a 4.0 South Carolina GPA scale. Id.

3 Plaintiff's transcript reflects a change in the grading scales between academic years 2015-2016 and 2016-2017. Tr. at 506.

On June 12, 2018, Ms. Jackson spoke with the produce manager at Food Lion, who indicated Plaintiff could begin a work-based learning experience (“WBLE”) the following Monday. Tr. at 454. She counseled Plaintiff on completing an online general educational development (“GED”) program. Tr. at 455.

Ms. Jackson followed up with Plaintiff's employer on June 26, 2018, and learned that he had completed 32 hours of training and was doing well. Tr. at 456. She followed up with Plaintiff's employer again on July 10, 2018, and learned that Plaintiff was doing well and had completed 40 hours of job training between July 1 and 7. Id. Ms. Jackson confirmed that Plaintiff continued to do well on the job at Food Lion, completing 34 hours of job training during the week of July 8 and 32 hours during the weeks of July 15, 22, and 29. Id. Ms. Jackson received positive feedback from Plaintiff's employer, who confirmed that he completed 34 hours of job training during the week of August 5. Tr. at 457.

On August 22, 2018, Plaintiff's employer informed Ms. Jackson that Plaintiff had difficulty counting money to make his own purchases in the store and often asked his coworkers for money even if he had enough money on his person to pay for his purchases. Tr. at 458. He explained that Plaintiff would purchase a drink for $1 and change, but would only pull out a dollar and ask a coworker for the change instead of using a second dollar in his pocket to cover the purchase. Id. Ms. Jackson discussed the matter with Plaintiff's mother, who expressed her understanding that Plaintiff could not be asking for money from his coworkers. Id.

During the week of August 19, Plaintiff's employer reported that his work increased in quality and productivity and he worked 35.5 hours. Id. His employer reported Plaintiff continued to do well the following week, completing 33 hours of job training. Id. Plaintiff completed 32 hours of job training the week of September 2 and 24 hours the week of September 9, and his employer reported he was a great help to the store following a hurricane. Tr. at 459. During the week of September 16, Plaintiff's employer reported he completed 25.5 hours of job training, met all performance expectations, and was doing well. Id.

During the week of September 30, Plaintiff completed 34 hours of job training. Id. His employer reported he needed improvement in appearance, relationships, teamwork, safety, quality, and productivity. Id. He indicated Plaintiff had “trouble focusing and staying on tasks” and “need[ed] to understand [he] must be flexible when asked to do work that he doesn't necessarily want to do.” Id. He noted Plaintiff had scared a customer by slamming the carts too hard and had complained about having to get the carts. Id.

During the week of October 7, Plaintiff completed 25.5 hours of job training. Tr. at 460. His employer indicated he required improvement in relationships and teamwork, “need[ing] consistent improvement when taking directions and understanding constructive criticism.” Id. Plaintiff's employer reported he completed 34 hours of job training during the week of October 14 and was “doing well.” Id.

On October 31, 2018, Plaintiff's employer reported his behavior toward customers and property had improved. Tr. at 461. However, he indicated Plaintiff had only filled in one of his three shifts on his time sheet. Id. Plaintiff completed job training and met performance expectations during the week of October 28. Id.

Plaintiff's mother completed a function report on his behalf on November 1, 2018. Tr. at 270-77. She reported Plaintiff lived with family; was unable to read and understand above a second-grade level; did not provide care for other people or pets; required reminders to bathe and perform chores; did not prepare meals; cleaned his room, took out trash, and made his bed; assisted his grandmother with yardwork; could not drive or go out alone; shopped with his mother and grandmother; and could not pay bills, count change, handle a savings account, or use a checkbook or money orders. Tr. at 270-73. She indicated Plaintiff was planning to attend adult school to obtain a GED and was receiving assistance in reading. Tr. at 270. She stated Plaintiff watched television, went to movies, went out to eat, played games, and attended family events and football games with others. Tr. at 274. She noted Plaintiff's impairments affected his memory, ability to complete tasks, concentration, understanding, and ability to follow directions. Tr. at 275. She indicated Plaintiff required assistance from others to read and explain things. Id. She stated Plaintiff did not handle stress well when he did not understand something and did not handle change well if it resulted in difficulty understanding. Tr. at 276.

On November 14, Plaintiff's employer reported he needed improvement in relationships, teamwork, quality, and productivity. Tr. at 461. His employer commented: “Davonta has consistent trouble adjusting to a changing environment, and is consistently unable to complete time sheets.” Id. Ms. Jackson expressed concern that Plaintiff might not be able to renew his participation in the WBLE because his literacy problems prevented him from completing adult education. Tr. at 461-62. During a SCVR team meeting, the team concluded that Plaintiff's participation in the Literacy Council's program did not meet the educational setting requirement for the WBLE. Tr. at 462. However, after a meeting with Plaintiff and his parents, he was permitted to continue in the WBLE. Id.

During the week of November 18, Plaintiff's time sheet was illegible, but multiple managers confirmed that he worked no more than 25.5 hours. Tr. at 463. Plaintiff completed 33 hours of job training and met performance expectations during the week of November 25. Id.

On December 12, 2018, Plaintiff's employer reported his inconsistent completion of time sheets presented a safety concern, as he could not account for his whereabouts. Tr. at 464.

Plaintiff returned to Dr. Spivey for a psychological evaluation on December 13, 2018. Tr. at 516-19. He reported living with his mother and grandmother and being capable of bathing and dressing independently and using a microwave. Tr. at 517. He denied having a driver's license and being able to operate a motor vehicle, read a newspaper, or perform simple arithmetic calculations. Id. Plaintiff reported chores that included letting the dog outside, cleaning his room, taking out the trash, and doing the dishes. Id. He denied attending church and shopping for groceries. Id. He said he maintained contact with friends from school and his neighborhood, spent time with friends, and played basketball and video games. Id.

Dr. Spivey observed Plaintiff to be appropriately dressed and groomed; cooperative and compliant; pleasant; to have mood within normal limits; to demonstrate appropriate affect; to have logical and coherent thought processes; and to demonstrate fair to poor attention and concentration. Id. On the Wechsler Adult Intelligence Scale-Fourth Edition (“WAIS-IV”), Plaintiff obtained the following index scores: 70 for verbal comprehension; 63 for perceptual reasoning; 60 for working memory; 71 for processing speed; and 60 for full-scale IQ. Tr. at 518. Dr. Spivey noted Plaintiff's verbal comprehension and processing speed scores fell in the borderline range and his perceptual reasoning, working memory, and full-scale IQ scores fell in the extremely-low range. Id. He was 95% confident Plaintiff's full-scale IQ score fell between 57 and 65. Id. He considered Plaintiff to have extremely-low general intelligence with significant academic achievement deficits. Id. He indicated a diagnosis of “Rule Out Intellectual Disability Disorder, Mild.” Id. He stated Plaintiff was incapable of managing funds independently and accurately. Id. He noted “Davonta would be capable of understanding simple instructions and performing simple tasks in the workplace.” Tr. at 519.

On December 19, his employer noted Plaintiff met expectations in all areas and commended him for coming to work on time, working an entire shift, and leaving when he was scheduled to leave. Tr. at 464. On December 28, 2018, Ms. Jackson commended Plaintiff for improved legibility of his time sheets. Id.

Plaintiff completed 17 hours of job training during the week of December 30. Tr. at 503. His employer reported he completed his time sheet with 95% accuracy. Id.

On January 4, 2019, state agency psychological consultant Jennifer Steadham, Ph.D. (“Dr. Steadham”), reviewed the record, considered Listing 12.05 for intellectual disorder, and assessed mild limitation in interacting with others and moderate limitations in understanding, remembering, or apply information, concentrating, persisting, or maintaining pace, and adapting or managing oneself. Tr. at 93-94. She concluded:

[Claimant's medically-determinable impairments] reasonably account for the alleged s[ymptoms] and f[unctional] limitations. Allegations of impaired memory, concentration, understanding & following instructions are partially consistent, but are not fully supported by the available evidence. Dr. Spivey's [medical source opinions] are persuasive, as these opinions are supported by available evidence. Cl[aimant] w[ith] h[istory] o[f] sp[ecial] ed[ucation] for [intellectual disability]. Cl[aimant] has been working around 32 h[ours per] w[eek] since [June 2018] as a stock clerk [and] bagger. Some supervisor feedback forms reflect need for improvement which is reasonable given the cl[aimant] is in a training program, but most forms from [June 2018 through December 2018] indicate the cl[aimant] meets all job expectations. WAIS scores may underestimate the cl[aimant's] true ability, given all evidence. Given the [totality of the evidence], cl[aimant's] adaptive fu[nctioning] is more c[onsistent] w[ith] b[orderline] i[ntellectual] f[unctioning]. While his

impairments are severe, resulting limitations do not preclude the performance of simple, unskilled tasks.

Tr. at 94. She assessed Plaintiff as moderately-limited in the following abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruption from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and to respond appropriately to changes in the work setting. Tr. at 95-97. She felt that Plaintiff could perform simple, unskilled work in a low-demand environment. Tr. at 97.

Plaintiff completed 35 hours of job training during the week of January 6. Tr. at 503. His employer reported he was doing well and was consistent and reliable. Id. He completed 32 hours of job training during the week of January 13. Id. Plaintiff's employer indicated he was consistent, but his counselors noted he had not completed time sheets for the prior week. Id.

On January 16, 2019, Debbie Winchester, program coordinator of the Florence Area Literacy Council, indicated she had been working with Plaintiff since November 2018. Tr. at 286. She noted her agency's goal was to help students improve reading and math skills. Id. She stated Plaintiff had been attending classes twice a week. Id. She attached a Test of Adult Basic Education (“TABE”) and explained that it showed Plaintiff to have extremely low reading comprehension indicators. Id. She noted Plaintiff's basic math skills were “a bit better, ” but he was unable to understand how to apply those skills to problem-solving situations. Id. She felt Plaintiff needed to remain in the program “until he achieve[d] a manageable level of self-reliance in basic life skills.” Id.

The TABE results showed Plaintiff's scores to be in the first national percentile for reading, the twenty-second national percentile for mathematics computation, and the first national percentile for applied mathematics. Tr. at 290. Plaintiff's reading subtest scores were 3/10 for interpreting graphics, 0/5 for understanding words in context, 5/14 for recalling information, 4/14 for construing meaning, and 0/7 for evaluating and extracting meaning. Id. On mathematics computation, he demonstrated mastery with adding, subtracting, and multiplying whole numbers; partial mastery with dividing whole numbers; and non-mastery with decimals. Id. On applied mathematics, Plaintiff demonstrated partial mastery on data analysis and statistics/probability. Id. He scored 0/10 on number operations, 2/7 on computations context, 2/5 on estimation, 1/5 on measurement, 0/5 on geometry, 0/4 on pre-algebra and algebra, and 0/4 on problem solving. Id.

Plaintiff completed 34 hours of job training during the week of January 27, 2019, meeting all requirements. Tr. at 504.

On February 4, 2019, state agency psychological consultant Janet Boland, Ph.D. (“Dr. Boland”), completed a mental residual functional capacity (“RFC”) assessment. Tr. at 522-23. She considered Plaintiff to be moderately limited with respect to the following abilities: to understand and remember detailed instructions; to carry out detailed instructions; to maintain attention and concentration for extended periods; to complete a normal workday and workweek without interruption from psychologically-based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and to respond appropriately to changes in the work setting. Tr. at 521-23.

Dr. Boland completed a psychiatric review technique on February 11, 2019, and considered Listing 12.05. Tr. at 525-40. She considered statements about Plaintiff's condition to be partially-consistent with the record, as his mother reported he had not been gainfully employed, but SCVR records showed that he had worked 30+ hours a week at times. Tr. at 529. She rated Plaintiff as having moderate limitation in understanding, remembering, or applying information; mild limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and moderate limitation in adapting or managing oneself. Tr. at 537.

On September 23, 2019, Julia K. Myers (“Ms. Myers”), Plaintiff's supervisor at Dollar General, indicated that during his period of employment, he had fewer or easier duties, special supervision, lower production, fewer hours, and extra help from coworkers. Tr. at 344. She stated Plaintiff worked at a slower pace, had three other employees and a supervisor working to assist him, and had difficulty reading and understanding shelf tags for items. Id. She noted Plaintiff worked at ¶ 95% percent efficiency rate. Id. She denied that Plaintiff continued to work for her. Id.

C. The Administrative Proceedings

1. The Administrative Hearing a. Plaintiff's Testimony

At the hearing on February 24, 2020, Plaintiff testified he lived with his mother and grandmother, was unmarried, and had no children. Tr. at 37. He denied being able to read a newspaper and indicated he could read “[a] little bit” of the hearing reminder notice he received from the SSA. Tr. at 38. He denied being able to complete an application for employment. Tr. at 39. He said he was in a self-contained classroom setting while enrolled in school and received additional resource help. Id. He indicated he did well on his school exams because his resource teachers practiced taking the tests with him beforehand. Id. He said he was able to read some of the questions and write answers. Tr. at 40.

Plaintiff testified he was 5'9” tall and right-handed. Id. He denied having received a driver's license or learner's permit and indicated his mother drove him to the hearing. Tr. at 41. He said he rode in a car daily. Id. He indicated he went to stores, the gym to work out, the park, the library, the basketball court, church, restaurants, and movie theaters. Tr. at 41-42. He said he visited family and friends. Id. He indicated he could bathe, dress, and use the bathroom without assistance. Tr. at 42-43. He said he could prepare some foods, including eggs, hot dogs, and ramen noodles, and could reheat leftovers and microwave frozen foods. Tr. at 43. He stated he could wash, dry, fold, and put away his laundry, sweep and vacuum the floor in his room, dry dishes, take out the trash, clean his bathroom, make his bed, and perform yard work. Tr. at 43-44. He denied working at the time of the hearing, but admitted he had worked as a stocker at Dollar General on Monday through Friday from 11:00 AM to 8:00 PM. Tr. at 45-46. He said he worked with others. Tr. at 46. Plaintiff testified he had previously worked as a cart retriever at Food Lion. Id. He stated he preferred to collect the carts by hand, as opposed to using a machine. Tr. at 47. He said he performed the job fulltime. Id.

In response to his attorney's questioning, Plaintiff admitted someone from SCVR had come over to assist him in performing his jobs at Food Lion and Dollar General. Tr. at 48. He indicated he had fewer duties and received accommodations in his jobs. Id. He stated he had difficulty matching the numbers on the boxes to the item numbers on the shelves in performing the stocking job. Id. He said he also bagged groceries at Food Lion. Tr. at 49. He denied having difficulty performing the bagging job. Tr. at 50. He said he left Food Lion because he wanted to work in the frozen food department, but they would not let him. Id. He stated he would become distracted and stare off into space while he was working at Food Lion. Id. He said his manager would tell him what to do each day and he would have difficulty if she gave him more than two or three instructions. Tr. at 51. He indicated he would forget things and have to return to his manager to receive instructions again. Id. He said he was not very good at counting change and denied having the ability to operate a cash register. Tr. at 52.

Plaintiff testified he would go outside and play basketball when he felt frustrated. Id. He denied taking any medications. Tr. at 54. He said his daily routine included washing his face, brushing his teeth, eating breakfast, doing his chores, and watching television. Id. He said his mother and grandmother usually prepared his breakfast. Id. He said he sometimes forgot to perform all his chores and his mother and grandmother would have to remind him. Tr. at 55. He denied visiting stores alone, as he might not understand everything he was supposed to pick up. Tr. at 55-56. He said he would have some difficulty following a grocery list. Tr. at 56. Plaintiff admitted he was able to play basketball and video games and watch television. Id. He indicated he enjoyed playing football and basketball games on an Xbox 360. Tr. at 57.

b. Witness Testimony

Plaintiff's mother, Ms. S., testified at the hearing. Tr. at 58-70. She stated Plaintiff had little contact with and had received no financial support from his father. Tr. at 58. She stated Plaintiff had worked at Food Lion for nearly a year, working 36 hours a week at one point, but having his hours subsequently reduced because he was attending literacy counseling. Tr. at 59. She confirmed that Plaintiff continued to struggle with reading. Tr. at 60. She said she typically had to read to him. Id.

Ms. S. stated Plaintiff worked at Dollar General for about a month and stopped worked because he was struggling to meet the reading requirements for the stocking job. Tr. at 61. She said Plaintiff's counselor at SCVR went in to help him, but he still did not understand how to perform the job. Id. She indicated Plaintiff had developed alopecia because of the stress from the job. Id.

Ms. S testified she transported Plaintiff to and from his job at Food Lion. Tr. at 63. She said she would review Plaintiff's job responsibilities prior to him getting out of the car. Id. She indicated she would fill in his start and stop times on his time sheets for each day. Id. She stated Plaintiff's counselor at SCVR had let her know he was incorrectly recording his time. Tr. at 64. She said she had reminded Plaintiff not to go into other areas of the store because his boss at Food Lion had complained of him doing so. Tr. at 63, 64. She indicated Plaintiff ended up leaving his job at Food Lion because of a conflict with the front-end manager over a request to change jobs. Tr. at 65.

Ms. S. stated Plaintiff was unable to stay on task. Tr. at 66. She said she had to check behind Plaintiff to make sure he completed tasks. Id. She explained that, for example, if she asked Plaintiff to clean his room, he would do some cleaning, but she might have to remind him to fold and put away clothing sitting on top of his dresser. Id. She indicated Plaintiff was only capable of completing two steps at a time. Tr. at 66-67. She stated Plaintiff could be distracted by nearly anything and had to be redirected following each distraction. Tr. at 67. She said Plaintiff became frustrated and “had an attitude” when she reminded him to do something repeatedly. Tr. at 68-69. She stated Plaintiff continued to receive services through the literacy council. Tr. at 69. She said she had completed applications for Plaintiff to obtain other work since he left Food Lion. Tr. at 70. She indicated Plaintiff would require help to keep a job. Id.

c. Vocational Expert Testimony

Vocational Expert (“VE”) Jesse Ogren reviewed the record and testified at the hearing. Tr. at 71-79. The VE testified \ Plaintiff worked at Dollar General and Food Lion as a store clerk, Dictionary of Occupational Titles (“DOT”) No. 211.462-010, requiring light exertion and having a specific vocational preparation (“SVP”) of 2. Tr. at 73-74. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform simple tasks with a reasoning level of one or two; maintain concentration, persistence, and pace in order to perform tasks for at least two hours at a time; complete an eight-hour workday without special supervision; should work in a lower stress environment, defined as one requiring no complex decisions; make simple decisions at the workstation; adapt to routine changes at the workstation; and should not be required to keep up with a high-speed assembly line or production-type work or piece-rate work. Tr. at 74. The VE testified the hypothetical individual would be unable to perform Plaintiff's prior jobs because they required more interaction with the public than contemplated in the hypothetical question. Tr. at 75. The ALJ asked whether there were any other medium or light jobs the hypothetical person could perform. Id. The VE identified jobs at the medium exertional level with an SVP of 2 as a cleaner, DOT No. 381.687-018, a laundry worker, DOT No. 361.684-010, and an industrial washing machine operator, DOT No. 599.687-030, with approximately 500, 000, 220, 000, and 330, 000 positions available nationally, respectively. Id.

The ALJ asked the VE to further assume the individual would be unable to read or write above a third-grade level. Id. He asked if the additional restriction would still allow the individual to perform the jobs the VE previously identified. Id. The VE testified the additional restriction would not affect the jobs the VE previously identified. Tr. at 76.

The ALJ asked the VE to assume the individual, because of borderline intellectual functioning or mild intellectual disability, would be unable to maintain concentration, persistence, or pace on even simple, routine reasoning level one or two tasks for two hours at a time and would be off task for at least 15% to 20% of the workday. Id. He asked the VE to indicate the impact of the restriction. Id. The VE stated there would be no jobs at the unskilled level. Id.

The ALJ asked the VE to consider the individual would require one-on-one supervision and asked whether the restriction would allow for competitive employment. Id. The VE stated it would not, as the restriction was more consistent with supported employment. Id.

Plaintiff's attorney asked the VE if the jobs he identified required more than one or two steps. Id. The VE responded the jobs required multiple tasks, but that each task would require few steps. Tr. at 77. He stated it would depend on how you define a step. Id. Plaintiff's attorney asked the VE how he defined a step. Id. The VE explained the task of mopping would require steps of getting out the bucket, filling it with water, putting in soap, and wringing out the mop, such that it would depend on whether Plaintiff's attorney were asking about component tasks of each job or the steps to complete each component task. Id. Plaintiff's attorney asked the VE if the cleaner job would require more tasks than mopping. Id. The VE confirmed that it would. Id. Plaintiff's attorney asked how many individual tasks the cleaner job required. Id. The VE testified it would likely be “quite a few” and would depend on the type of cleaning setting. Id. He confirmed the job of cleaner would require more than two tasks. Id.

Plaintiff's attorney asked if the laundry worker position would also require more than two steps. Tr. at 78. The VE stated the laundry worker position would be more routine and would likely involve either putting laundry into machines or folding it. Id.

Plaintiff's attorney asked the VE if the individual would be able to perform the jobs he previously identified if he would require lower production, fewer hours, fewer and easier duties, and extra help from coworkers. Id. The VE testified those work supports would preclude performance of the jobs he previously identified. Id.

The ALJ asked the VE to consider the individual could perform 100% of the work of his peers, but was five percent less efficient. Id. He asked the VE to indicate the impact. Id. The VE stated performance that was five percent below the average would likely be tolerated. Id.

Plaintiff's attorney asked the VE if it would matter that the five percent reduction in productivity would be the case, despite assistance from others. Tr. at 79. The VE stated if the individual were getting more support to perform the job, he would not be performing it on a competitive basis. Id. 2. The ALJ's Findings In his decision dated April 3, 2020, the ALJ made the following findings of fact and conclusions of law:

1. The claimant attained age 18 on June 5, 2018, and was eligible for supplemental security income benefits as a child for the month preceding the month in which he attained age 18. The claimant was notified that he was found no longer disabled as of January 1, 2019, based on a redetermination of disability under the rules for adults who file new applications.

2. Since January 1, 2019, the claimant has had the following severe impairments: learning disorder in reading and math and borderline intellectual functioning/mild intellectual disability (20 CFR 416.920(c)).

3. Since January 1, 2019, the claimant did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925, 416.926).

4. After careful consideration of the entire record, I find that since January 1, 2019, the claimant has had the residual functional capacity to perform a full range of work at all exertional levels, but with the following nonexertional limitations: the claimant can perform simple tasks having a reasoning level of 1 or 2 as defined in the Dictionary of Occupational Titles (DOT) and can maintain concentration, persistence and pace on such tasks for at least 2 hours at a time and complete an 8 hour workday without special supervision. The claimant can perform tasks with no reading or writing required above third grade level, in a lower stress environment, defined as one having no requirement to meet a rigid, inflexible production or pace requirement, no complex decisions, and no requirement to adapt to frequent changes at the work station. He is able to make simple decisions and adapt to routine changes.

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on June 6, 2000 and is a younger individual age 18-49 (20 CFR 416.963).

7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).

9. Since January 1, 2019, considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969a).

10. The claimant's disability ended on January 1, 2019, and the claimant has not become disabled again since that date (20 CFR 416.987(e) and 416.920(g)).

Tr. at 14-21.

II. Discussion

Plaintiff alleges the Commissioner erred for the following reasons:

1) the ALJ erred in concluding Plaintiff's impairment did not meet or equal Listing 12.05;

2) the ALJ failed to properly evaluate Plaintiff's mental impairments pursuant to SSRs 85-15 and 96-8p; and

3) the ALJ improperly considered the VE's testimony as to the effect of necessary accommodations on available work.

The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his decision.

A. Legal Framework

1. The Commissioner's Determination-of-Disability Process

The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:

the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for at least 12 consecutive months.

42 U.S.C. § 423(d)(1)(A).

To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting “need for efficiency” in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings;⁴ (4) whether such impairment prevents claimant from performing PRW;⁵ and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. § 416.920. These considerations are sometimes referred to as the “five steps” of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).

4 The Commissioner's regulations include an extensive list of impairments (“the Listings” or “Listed impairments”) the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are “at least equal in severity and duration to [those] criteria.” 20 C.F.R. § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).

5 In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 416.920(h).

A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, § 416.920(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).

Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).

2. The Court's Standard of Review

The Act permits a claimant to obtain judicial review of “any final decision of the Commissioner [] made after a hearing to which he was a party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).

The court's function is not to “try these cases de novo or resolve mere conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed “even should the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

B. Analysis

1. Listing 12.05

Plaintiff argues the ALJ erred in concluding his impairments failed to meet or equal the criteria in paragraph B of Listing 12.05. [ECF No. 14 at 4]. He maintains his school records suggested marked difficulties understanding, remembering, and applying information, as they reflect consistently low full-scale IQ scores, learning at a slower rate, failure to retain all knowledge, and requiring more time to complete tasks. Id. at 4-5; ECF No. 16 at 1-2. He contends the ALJ disregarded evidence of illiteracy by relying on the fact that he was not completely unable to read and write. Id. at 6-7. He maintains the evidence supports marked limitations in understanding, remembering, and applying information. Id. at 7-9. He argues his marked difficulties in at least two areas of mental function render him disabled under paragraph B of Listing 12.05. Id. at 8. He claims the ALJ erred in finding his concentration only moderately impaired based on his ability to sit through testing. Id. at 8- 9.

The Commissioner argues the ALJ properly considered Listing 12.05 and concluded Plaintiff had no extreme limitation in one or marked limitation in two of the areas of mental functioning. [ECF No. 15 at 5]. He maintains the ALJ relied on evidence Plaintiff read on a second-grade level, showed only slightly reduced productivity during vocational rehabilitation, maintained friendships, had no problems with socialization, demonstrated cooperative and compliant behavior, and independently performed activities of daily living. Id. at 5-6. He contends marked limitation in at least two functional areas is required to meet the listing, and Plaintiff asserts marked limitation only in concentrating, persisting, and maintaining pace. Id. at 6. He maintains Plaintiff relies on records from his childhood to support a finding of marked limitations, and the records from the relevant period fail to support marked limitations. Id. at 6-7. He contends Plaintiff is requesting the court to reweigh the evidence, as the ALJ reviewed all the evidence and explained why it supported only moderate limitations. Id. at 7.

At step three of the evaluation process, the ALJ must evaluate the evidence to determine whether the claimant has an impairment or combination of impairments that meets or equals a listed impairment and is presumptively disabled. 20 C.F.R. § 416.920(a)(4)(iii). The ALJ must identify relevant listings and compare their medical criteria with the symptoms, signs, and laboratory findings of the claimant's impairments, as reflected in the medical evidence. Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). To meet a listing, the claimant's impairments “must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521 530 (1990). To equal a listing, the claimant's impairment must be at least equal in severity and duration to the criteria specified in the listing. 20 C.F.R. § 416.926(a).

A finding that a claimant is disabled is directed under Listing 12.05(B) if the following criteria are met:

(1) Significantly subaverage general intellectual functioning evidenced by (a) or (b):

(a) A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or

(b) A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and

(2) Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:

(a) Understand, remember, or apply information; or

(b) Interact with others; or

(c) Concentrate, persist, or maintain pace; or

(d) Adapt or manage oneself; and

(3) The evidence about [the claimant's] current intellectual and adaptive functioning and about the history of [his] disorder demonstrates or supports the conclusion that the disorder began prior to [his] attainment of age 22.

20 C.F.R. Pt 404, Subpt. P, App'x 1 § 12.05(B).

Plaintiff's impairment meets the first criterion in paragraph B of Listing 12.05 of a full-scale IQ of 70 or below, as Dr. Spivey considered Plaintiff's December 13, 2018 full-scale IQ of 60 to be valid. Tr. at 518; see also 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.05(B)(1). Plaintiff's impairment also presumably meets the third criterion, as he was and continues to be under the age of 22. See 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.05(B)(3).

Pertinent to Plaintiff's arguments, an individual's ability to understand, remember, or apply information “refers to the abilities to learn, recall, and use information to perform work activities.” 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(E)(1). Although documentation of all examples are not required, the following illustrate the nature of the area of mental functioning: understanding and learning terms, instructions, and procedures; following one- or two-step oral instructions to carry out a task; describing work activity to someone else; asking and answering questions and providing explanations; recognizing a mistake and correcting it; identifying and solving problems; sequencing multi-step activities; and using reason and judgment to make work-related decisions. Id.

A claimant's ability to concentrate, persist, or maintain pace “refers to the abilities to focus attention on work activities and stay on task at a sustained rate.” 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(E)(3). Examples of the nature of this area of mental functioning include initiating and performing a task that you understand and know how to do; working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; changing activities or work settings without being disruptive; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; and working a full day without needing more than the allotted number or length of rest periods during the day. Id. Documentation of all examples is not required. Id.

The ALJ considered the requirements in paragraph B of Listing 12.05, and concluded they were not met because Plaintiff “has not exhibited marked or extreme limitation in the[] areas of mental functioning.” Tr. at 17. He stated: “While he has shown some limitation in the areas, they do not rise to marked or extreme limitations given his performance on independent psychological consultative examination and vocational rehabilitation.” Id.

With respect to Plaintiff's ability to understand, remember, and apply information, the ALJ assessed moderate limitation, explaining:

The claimant has a history of learning disorder and intellectual disability (Exhibit 4F). He has required self-contained special education setting through an individualized education plan (IEP) (Exhibits 4F; 5F; 8F). In 2018, he underwent the Wechsler Adult Intelligence Scale-Fourth Edition and the Wide Range Achievement Test-Revision 5 (Exhibit 9F). He was noted through testing to have attention/concentration ranging from fair to poor. He had Verbal Comprehension and Processing Speed in the borderline range and Perceptual Reasoning and Working Memory Scores in the extremely low range. His Full Scale IQ of 60 was in the extremely low range; however, he was still able to be tested contrary to ongoing allegations of lack of functional literacy. While he has had some problems with reading, it has not been indicated in vocational rehabilitation that he is completely unable to do so (Exhibits 20E; 7F). He has also been noted to have only slightly diminished productivity in the settings.

Tr. at 15.

Although evaluation under paragraph A of Listing 12.05 requires (1)

[s]ignificantly subaverage general intellectual functioning evident in your cognitive inability to function at a level required to participate in standardized testing of intellectual functioning, ” among other factors, evaluation under paragraph B requires participation in standardized testing to produce IQ scores. Compare 20 C.F.R. Pt. 404, Subpt. P, App'x 1 §12.05(A), with 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.05(B). The ALJ specifically

found paragraph A of Listing 12.05 was not met because there was “no indication that claimant is unable to participate in standardized testing of intellectual functioning” and because he had undergone such testing. Tr. at 16. The undersigned agrees with the ALJ's assessment that Plaintiff's impairment did not meet or equal the requirements in paragraph A of Listing 12.05. However, it appears the ALJ used similar logic in concluding Plaintiff's impairment did not meet or equal paragraph B of Listing 12.05. This presents an improper evaluation, as it amounts to a conclusion that Plaintiff's impairment does not meet the requirements in paragraph B because it does not meet those in paragraph A.

Although the ALJ acknowledged Plaintiff's academic participation in a self-contained setting and his IEP, he did not address specific information within Plaintiff's academic records pertaining to his abilities to understand, remember, or apply information. Plaintiff's school records from his initial disability allowance in 2013 are not relevant to the ALJ's inquiry as to continuing disability, but the evidence in his 2017 and 2018 school records are relevant, as they show his functioning around the time of the cessation of benefits and were obtained pursuant to the age 18 review. More specifically, the May 23, 2017 IEP annual review contains evidence as to Plaintiff's abilities to understand, remember, and apply information that the ALJ failed to address, including an indication that he struggled to maintain skills he was taught from one day to the next. See generally Tr. at 433-43. The ALJ also failed to address evidence from Florence Area Literacy Council, including the TABE results. See Tr. at 286, 290. The evidence the ALJ neglected arguably suggests greater-than-moderate limitation in Plaintiff's ability to understand, remember, or apply information.

As for Plaintiff's ability to concentrate, persist, or maintain pace, the ALJ also assessed moderate limitation, writing:

As noted above, the claimant did show difficulties in Processing Speed and Working Memory on independent psychological consultative examination (Exhibit 9F). He also showed issues with concentration and attention on observation. He has been given fewer responsibilities in vocational training (Exhibits 20E; 7F); however, he has not shown significant gaps in productivity when compared to an employment without any impairments.

Id.

It is unclear from the ALJ's explanation why he assessed moderate, as opposed to marked, limitation in concentrating, persisting, or maintaining pace. Moderate limitation means the claimant has fair ability to function in the area independently, appropriately, effectively, and on a sustained basis. 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(H)(2)(c). Marked limitation means the claimant is seriously limited in his ability to function in the area independently, appropriately, effectively, and on a sustained basis. 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(H)(2)(d). The ALJ specifically acknowledged evidence that would suggest serious limitation in Plaintiff's ability to function independently, appropriately, effectively, and on a sustained basis, including his processing speed and working memory scores, Dr. Spivey's observation during the exam, and the allocation of fewer responsibilities in vocational training. He appears to have found that evidence was less persuasive than evidence that he had not shown significant gaps in productivity. However, Plaintiff's employment records suggest productivity deficits, including Ms. Myers's indications that he was subject to fewer or easier duties, required special supervision, had lower production, worked fewer hours, received extra help from coworkers, performed work at a slower pace, had three other employees and a supervisor working to assist him, and had difficulty reading and understanding shelf tags for items.. Tr. at 344. While Ms. Myers indicated Plaintiff worked at ¶ 95% efficiency rate, he appears to have done so with the accommodations. See Id. Records from Food Lion generally reflect Plaintiff having met productivity requirements. See Tr. at 466-78, 480, 481, 483, 485-88. However, some records indicate Plaintiff had difficulty staying on task, exercising flexibility as to work tasks, adjusting to changes in the work environment, and completing time sheets. Tr. at 479, 482, 484, 485. The fact that Plaintiff was participating in a WBLE and that his work activity was referred to as “job training, ” as opposed to work raises a question as to whether he was meeting productivity requirements as expected in a competitive work environment.

The undersigned recommends the court find the ALJ failed to cite substantial evidence to support his conclusion that Plaintiff's impairments did not meet the requirements in Listing 12.05(B), as he appears to have used an erroneous standard and neglected to address additional evidence that suggested greater limitations.

2. Evaluation Pursuant to SSRs 85-15 and 96-8p

Plaintiff argues the ALJ failed to adequately consider his ability to complete basic work activities as required pursuant to SSRs 85-15 and 96-8p. [ECF No. 14 at 9-10].

The Commissioner maintains the ALJ properly evaluated Plaintiff's RFC. [ECF No. 15 at 7. He claims the ALJ's RFC assessment is consistent with the medical opinions of record. Id. at 7-8. He argues Plaintiff has pointed to no additional restrictions the ALJ failed to include in the RFC assessment. Id. at 8. He contends the ALJ's decision reflects his consideration of Plaintiff's school records, vocational rehabilitation records, and psychological evaluations. Id. at 8.

“RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” SSR 96-8p, 1996 WL 374184, at *1. “A ‘regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.” Id. “RFC is what an individual can still do despite his or her limitations.” Id. at *2. It must be based on all the relevant evidence in the case record, including: medical history; medical signs and laboratory findings; the effects of treatment, including limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of treatment, duration, disruption to routine, side effects of medication); reports of daily activities; lay evidence; recorded observations; medical source statements; effects of symptoms, including pain, that are reasonably attributed to a medically-determinable impairment; evidence from attempts to work; need for a structured living environment; and work evaluations, if available. Id. at *5.

Where a person's only impairment is mental, is not of listing-level severity, and prevents performance of PRW and transfer of skills from PRW, or where the person had no PRW, “the final consideration is whether the person can be expected to perform unskilled work.” SSR 85-15. The SSR provides:

The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the occupational base. This, in turn, would justify a finding of disability because even favorable age, education, or work experience would not offset such a severely limited occupational base.

Id.; see also SSR 96-8p, 1996 WL 374184, at *6.

“The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” SSR 96-8p, 1996 WL 374184, at *7. The ALJ must “explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Id.

The ALJ found Plaintiff had the RFC to perform simple tasks with a reasoning level of 1 or 2; to maintain concentration, persistence, or pace on such tasks for at least two hours at a time and complete an eight-hour workday without special supervision; and to perform work with no reading or writing required above third grade level in a lower stress environment, defined as one having no requirement to meet a rigid, inflexible production or pace requirement, no complex decisions, and no requirement to adapt to frequent changes at the work station. Tr. at 17. He considered Plaintiff “able to make simple decisions and adapt to routine changes.” Id.

The ALJ wrote the following:

While the record indicates ongoing cognitive limitations that would impact his overall mental functioning, it does not otherwise support the claimant being as limited as alleged. Though he was noted to have a low overall GPA, he had a wide range of grades, with the majority of his grades consisting of Cs (Exhibit 8F). Though he was reported to not be able to read a newspaper, he was still able to be evaluated using cognitive and academic achievement testing on updated independent psychological examination (Exhibit 9F). In fact, as noted above,

his word reading achievement test score showed a grade equivalent of 8.5. The record also indicates he has responded to vocational rehabilitation well (Exhibit 7F). While he was noted to need fewer duties and extra support from supervisors and coworkers while working at Dollar General, he did not have significant loss of efficiency in percentage, being rated as having 95% productivity, even with those accommodations (Exhibit 20E). There is no indication he has required particular mental health to manage other symptoms including frustration or distractibility.

Tr. at 19. He found the prior administrative medical findings and Dr. Spivey's opinion to be persuasive. Id.

The ALJ further reflected:

Based on the foregoing, I find the claimant has the above residual functional capacity assessment, which is supported by the claimant's academic record as well as independent psychological consultative examination, which found borderline to extremely low functioning in multiple areas of cognitive tasks. However, he was still able to be tested and vocational rehabilitation records indicate he is capable of work, given his relative work productivity as reported by employers.

Tr. at 19-20.

The evidence suggests some impairment in Plaintiff's abilities to complete basic mental work activities. Impairment in Plaintiff's ability to understand, carry out, and remember simple instructions is indicated in his May 2017 IEP annual review and his employers' reports, which reflect he learned at a slower rate than his peers, had fewer and easier job duties, required extra supervision and assistance from coworkers, worked at a slower pace, had difficulty reading and understanding shelf tags for items, had difficulty maintaining skills from day to day, had trouble focusing and staying on tasks, and had difficulty accurately and legibly completing time sheets to document hours worked. See Tr. at 344, 435, 441, 459-60, 463-64. The record further reflects Plaintiff's difficulties in responding appropriately to supervision, coworkers, and usual work situations. See Tr. at 458 (reflecting his employer's complaint about Plaintiff requesting money from his coworkers to cover amounts over $1 for drinks), 460 (indicating his employer's comment that he needed consistent improvement in taking directions and understanding constructive criticism). Plaintiff's employment records also reflect he had difficulty dealing with change in a routine work setting. See Tr. at 461.

The ALJ acknowledged some of this evidence. See Tr. at 18 (“He was noted to need fewer duties and extra help when working at Dollar General, and had particular issues with reading and understanding tags (Exhibit 20E).” However, he also neglected to address much of it. Nowhere in the ALJ's decision did he acknowledge any of the difficulties Plaintiff's employer reported while he was working at Food Lion, evidence from the IEP annual review, or evidence from Florence Area Literary Council.

Although the record contained several measures of Plaintiff's reading ability, the ALJ cited only the one that showed higher functioning, without explaining his reason for accepting that one over the others. See Tr. At 19 (referencing Dr. Spivey's testing); but see Tr. at 434-35 (AGS reading assessment indicating second grade, second month level for instructional reading and less than first grade, ninth month level for independent reading and MAP reading score consistent with that of an end-of-the-year fourth grade student or beginning-of-the-year fifth grade student and language usage score consistent with that of less than a second grade student), 290 (TABE results showing score in the first national percentile for reading). “An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).

The ALJ failed to comply with the provisions of SSR 96-8p to the extent that he provided no explanation as to how he considered and resolved all material inconsistencies and ambiguities. His discussion of his RFC assessment does not describe how a comprehensive review of the evidence supports each conclusion. As the record contains unresolved evidence that suggests Plaintiff has impaired ability to complete basic work activities, the undersigned recommends the court find that substantial evidence does not support the ALJ's RFC assessment.

3. VE's Testimony as to Work-Preclusive Accommodations

Plaintiff argues the ALJ declined to properly consider the VE's testimony that the accommodations he required would preclude work. [ECF No. 14 at 10-11]. He maintains his work attempts serve as evidence of his difficulties and the accommodations they necessitated. Id. at 10-11; ECF No. 16 at 2-4.

The Commissioner claims records from Plaintiff's work assignment at Dollar General demonstrate that he could sustain full-time, unskilled work without special accommodations. [ECF No. 15 at 9].

To find a claimant is not disabled, the ALJ must either determine the claimant is able to perform PRW or other jobs that exist in significant numbers in the economy. 20 C.F.R. § 416.920(a)(4)(iv), (v). An ALJ may solicit testimony from a VE to meet his burden to produce specific vocational evidence that jobs exist in the economy that the claimant can perform. See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). The VE's opinion “must be based upon a consideration of all other evidence in the record . . . and it must be in response to proper hypothetical questions which fairly set out all of [a] claimant's impairments.” Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005) (quoting Walker, 889 F.2 at 50). The ALJ cannot rely on the jobs the VE identifies in response to a hypothetical question if that question fails to account for all the claimant's credibly-established limitations. See id.

The undersigned declines to address Plaintiff's argument with specificity, as it is not the court's role to assess a claimant's RFC, determine which limitations and restrictions should be included in hypothetical questions to a VE, or assess the credibility of witness testimony. Nevertheless, because the hypothetical question the ALJ posed to the VE reflected the flawed RFC discussed above, it was not based on all the evidence in the record. As a result, substantial evidence does not support the ALJ's reliance on the jobs the VE identified to sustain the Commissioner's burden at step five. III. Conclusion and Recommendation

The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “ Notice of Right to File Objections to Report and Recommendation.”

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).