Opinion
C/A No.: 1:18-1543-BHH-SVH
03-05-2019
Gary Frady, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
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 Disability Insurance Benefits ("DIB") and 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 she 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 September 24, 2014, Plaintiff filed applications for DIB and SSI in which he alleged his disability began on January 2, 1995. Tr. at 205-16. His applications were denied initially and upon reconsideration. Tr. at 103, 117-33. On March 17, 2017, Plaintiff had a hearing before Administrative Law Judge ("ALJ") James M. Martin. Tr. at 50-98 (Hr'g Tr.). The ALJ issued an unfavorable decision on June 1, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 27-49. 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 June 7, 2018. [ECF No. 1].
The ALJ's decision states both applications were filed on September 24, 2014, but Plaintiff's applications reflect he filed for DIB on September 25, 2014, and SSI on November 19, 2014. Compare Tr. at 30, with Tr. at 205, 207. The ALJ's decision reflects Plaintiff alleged disability since January 2, 1995, but Plaintiff alleged his disability began in January 1995 for his DIB application and in October 1971 for his SSI application. Id. Plaintiff has not argued the ALJ was incorrect, and, thus, the undersigned has used the dates set forth in the ALJ's decision.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 45 years old at the time of the hearing. Tr. at 57. He attended the seventh grade and obtained a high school equivalency or general education development ("GED") diploma to be released from prison. Tr. at 60. He has no past relevant work ("PRW") for Social Security purposes. Tr. at 43. He alleges he has been unable to work since January 2, 1995. Tr. at 30.
Plaintiff testified he received a high school equivalency diploma, not a GED, but a GED is referred to elsewhere in the record. Compare Tr. at 59-60, with Tr. at 299.
2. Medical History
a. Medical Evidence Submitted to the ALJ
During the hearing, the ALJ requested the medical records generated while Plaintiff was in prison and considered them in his decision. Tr. at 36-37, 94-97. The records' references to mental impairments are discussed herein. Tr. at 342-69 (providing sporadic records from 1999 to 2005, as Plaintiff was not incarcerated for the entire period).
On June 15, 1999, Plaintiff presented to the mental health clinic at the South Carolina Department of Corrections ("SCDC"), and the attending physician noted he was talking excessively, continuously moving his extremities, and complained of anxiety or depression. Tr. at 347.
On June 21, 1999, Plaintiff presented to the mental health clinic at SCDC, and the attending physician noted:
During today's assessment [Plaintiff] displayed appropriate affect and mood with only minimal anxiety. He reported feeling much
better than when he arrived [two weeks ago]. He attributed his initial anxiety to just coming off alcohol and adjusting to prison for the first time. He related improved sleep and [denied depression]. . . . [Plaintiff] voiced belief that most of his problems have resulted from his alcohol abuse. He expressed hope for his future and plans to participate in substance abuse [treatment] as well as obtaining a job assignment at his assigned institution. [Plaintiff] was alert, oriented [], and [his] thought processes were rational. His anxiety has decreased significantly and he appears to be adjusting well to his incarceration at this time. He does not appear depressed or in need of further mental health [treatment] at the current time.Tr. at 346-47. Plaintiff's global assessment of functioning ("GAF") score was 68. Tr. at 347.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 61-70 indicates "some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, [and] has some meaningful interpersonal relationships." DSM-IV-TR.
On July 12, 1999, Plaintiff presented to the mental health clinic at SCDC, and the attending physician noted he was frustrated, but in no acute distress, had no psychosis, and was oriented, calm, coherent, and cooperative. Tr. at 346.
On July 19, 1999, Plaintiff presented to the mental health clinic at SCDC, and the attending physician noted he was doing "tolerably well though there is some anger/anxiety." Tr. at 345.
On August 30, 1999, Plaintiff presented to the mental health clinic at SCDC and reported anxiety, depression, headaches, and nervousness, but stated, "I am not mentally ill, I am just nervous and just want to straighten my life out." Tr. at 343. The attending physician noted Plaintiff maintained good eye contact, was well oriented, and had appropriate mood and affect. Id.
On September 22, 2000, the attending physician at SCDC noted Plaintiff had panic attacks, depression, and psychiatric abnormalities with a history of anxiety and sleep disorders, and took Ativan. Tr. at 368.
On October 24, 2000, Plaintiff presented to the mental health clinic at SCDC. Tr. at 366. He denied a mental health history, had a low violence risk, with anger that had improved. Id. The attending physician noted Plaintiff had an elated affect, logical thought process, normal speech, good eye contact and attention span, and no memory deficits. Id. The attending physician concluded Plaintiff appeared mentally stable. Id.
On October 2, 2001, after approximately five months of treatment in group therapy and counseling, Plaintiff reported improvement. Tr. at 360-63.
On March 10, 2004, Plaintiff reported he would like to speak with someone about his issues, including being an alcoholic, finding his parents deceased, and worrying all the time. Tr. at 356-57. The attending registered nurse noted Plaintiff did not appear depressed. Tr. at 357.
On January 24, 2005, Plaintiff reported increased stress and anxiety. Tr. at 353.
Plaintiff was released from prison in 2005 and there are no records providing mental health treatment for approximately ten years.
On November 13, 2014, Lisa Clausen, Ph.D. ("Dr. Clausen"), a state agency psychologist indicated there was insufficient evidence to complete a psychiatric review technique ("PRT") questionnaire or assess Plaintiff's mental impairments, as there was no medical evidence in the file. Tr. at 101.
On December 14, 2014, James N. Ruffing, Psy.D. ("Dr. Ruffing"), performed a consultative examination of Plaintiff due to his allegations of seeing shadows, having difficulty sleeping, worrying all the time, and hearing voices. Tr. at 299-302. Dr. Ruffing noted there were no psychological or medical records available for review and Plaintiff was not prescribed medications. Tr. at 299. Plaintiff reported he heard voices telling him to do things and had severe anxiety and panic attacks. Id. Plaintiff's activities of daily living ("ADLs") included caring for his personal needs, light meal preparation, cleaning, laundry, and some yard work, but he did not attend church services, go shopping, pay bills, or use a computer. Tr. at 299-300. He was unable to drive due to prior driving under the influence convictions ("DUIs"), he rarely talked on the phone, and he occasionally went out to eat, but he had to leave when it got crowded or loud due to his anxiety. Id. Plaintiff denied illicit substance abuse or tobacco use, but reported treatment for alcohol-related issues and two prison sentences for DUIs and one sentence for violating probation. Tr. at 300. Plaintiff was accompanied by Cynthia Pruitt ("Ms. Pruitt"), but he fully and accurately completed the intake questionnaire himself. Id. Plaintiff reported his history was unremarkable for brain trauma. Id.
Dr. Ruffing noted Plaintiff "tended to be rather intense" and anxious, but managed appropriate levels of eye contact, calmed down as the session progressed, and responded with spontaneous speech and linear, logical, relevant, and coherent thoughts. Id. Dr. Ruffing noted the following:
EMOTIONAL PRESENTATION: He presented with an appropriate affect of normal range and intensity and somewhat of an intense presentation. He was mostly anxious. . . . Despite rather significant and severe and long-lasting complaints of severe anxiety, panic attacks, and both auditory and visual hallucinations, he stated that he has never been treated or evaluated for mental health related concerns. He has never been in a psychiatric hospital. He has never received counseling or medication treatment.
. . .
THOUGHT CONTENT: I saw no evidence for psychosis, other than his complaints of both auditory and visual hallucinations, which at times seem to represent more of fear and disconcerting internal dialogue. At times his complaints had somewhat of a[n] actual hallucinatory quality, but it seemed rather unusual that
he had no other signs or symptoms consistent with psychosis, such as avolition, disorganized or catatonic type behavior, disorganized speech, etc.Tr. at 300-01.
COGNITION: He attended without distractibility and demonstrated normal cognitive processing speed. He was able to recall 3 unrelated words immediately and 2 of 3 after a five-minute delay with interference task. He could not recall the 3rd word with forced choice assisted cuing. He was administered the Folstein Mini-Mental Status Exam [("Folstein Exam")], achieving a raw score of 30/30. A score of 24 [or] higher suggests mental status functioning is within normal limits.
PSYCHOLOGICAL IMPRESSION: Based on his complaints there is indication for panic disorder without agoraphobia, severe anxiety and auditory and visual hallucinations. It is interesting to note that I saw no other signs or symptoms consistent with psychosis or lack of reality contact.
CAPACITIES: He is able to understand and respond to the spoken word. He seems able to manage concentration, persistence, and pace. Based on his complaints, his greatest difficulty would be working in close proximity with large numbers of people. He does appear capable of managing his finances, if awarded benefits.
On December 29, 2014, Xanthia Harkness, Ph.D. ("Dr. Harkness"), a state agency psychologist, completed a PRT questionnaire and opined Plaintiff's mental impairments imposed minimal limitations on his ability to perform basic work-related tasks and functions. Tr. at 107-108, 113-15. Specifically, Dr. Harkness found Plaintiff had mild difficulties in social functioning and his anxiety was non-severe for his SSI claim. Id. However, Dr. Harkness opined there was no medical evidence in the file to evaluate whether they existed prior to his date last insured for his DIB claim. Id.
On March 12, 2015, Jerome Aya-ay, M.D., ("Dr. Aya-ay") evaluated Plaintiff as a new patient. Tr. at 337. Plaintiff reported he was nervous all the time, his symptoms were worsening, and he could not control his bowel movements, function, or leave his home at times. Id. Plaintiff also reported a history of being bullied and teased. Id. Plaintiff stated he was "not a normal person" and his girlfriend, Ms. Pruitt, brought him to the doctor because she cared about him. Id. Dr. Aya-ay assessed anxiety and depressive disorder, noted concern regarding post-traumatic stress disorder ("PTSD"), and prescribed Citalopram and Vistaril. Id.
On May 4, 2015, Plaintiff presented Dr. Aya-ay's office, saw Christopher McCarthy, M.D. ("Dr. McCarthy"), and reported the medication had not helped much and he continued to have depression and anxiety with visual and auditory hallucinations. Tr. at 336. Dr. McCarthy noted Plaintiff may have bipolar disorder or severe anxiety and depression with psychotic features, recommended counseling, discontinued Vistaril and Citalopram, and prescribed Risperidone and Diazepam. Id.
On June 8, 2015, Plaintiff presented to Dr. McCarthy and reported medication compliance with no side effects and an improved mood. Tr. at 335. Plaintiff also reported his dosages did not need to be adjusted and the voices had decreased, but he wanted to take Diazepam twice a day. Id. Dr. McCarthy refilled Diazepam and Risperidone. Id.
On July 8, 2015, Plaintiff presented to Dr. McCarthy and reported reduced alcohol consumption, but he experienced pain in old wounds and felt stiff with increased anxiety. Tr. at 334. Dr. McCarthy encouraged counseling, prescribed Mobic, and refilled Diazepam and Risperidone. Id.
On August 7, 2015, Plaintiff presented to Dr. McCarthy and reported he had low blood pressure, reduced his alcohol consumption, and felt well. Tr. at 333. However, Plaintiff requested increased anxiety medication. Id. Dr. McCarthy assessed anxiety state and depressive disorder, increased Diazepam, modified Valium, and refilled Risperidone and Mobic. Id.
On November 16, 2015, Plaintiff presented to Dr. Aya-ay and reported having taken an extra Diazepam tablet daily due to a difficult month and requested a refill. Tr. at 322. Plaintiff also reported Risperidone had helped, but "things are crazy," as he still saw images of people coming out of the walls and he wrapped himself in plastic at home so he was not touched. Id. Dr. Aya-ay prescribed Atenolol and Diclofenac Sodium, modified Risperidone, and refilled Diazepam. Id.
On December 14, 2015, Plaintiff presented to Dr. Aya-ay and reported Risperidone helped and his hallucinations had improved. Tr. at 331. However, Plaintiff also reported pain throughout his body, muscle aches, and a back ache. Id. Dr. Aya-ay refilled Diazepam and Risperidone and prescribed Norco. Id.
On March 21, 2016, Plaintiff presented to Dr. Aya-ay and reported "he [was] doing okay" and "Risperidone [was] a lifesaver" because it slowed down his mind at night. Tr. at 330. Plaintiff also reported his twelve-year-old cat had died and he missed talking to it. Id. Plaintiff requested additional medication to address his pain, as it was more severe since he stopped consuming alcohol. Id. Plaintiff reported he had cut his pain medication into thirds and made it last three months. Id. Dr. Aya-ay assessed stable anxiety, depressive disorder, and psychosis and refilled Diazepam, Risperidone, and Norco. Id.
On April 5, 2016, Dr. Aya-ay noted Plaintiff's issues as anxiety state, depressive disorder, psychosis, and hypertension, and his permanent prescriptions included Diazepam, Mobic, Norco, and Risperidone. Tr. at 303, 305. Dr. Aya-ay also noted Plaintiff seldom drank alcohol. Id. Similar notes were recorded on June 1, 2016, and November 4, 2016. Tr. at 309-13.
On June 10, 2016, Plaintiff presented to Dr. Aya-ay and reported increased hallucinations and anxiety. Tr. at 326-29. Plaintiff also reported a lot of stress at home and requested additional medication. Id. He indicated his medication helped, but he had been without it for a few days. Id. Dr. Aya-ay noted Plaintiff needed to see a psychiatrist and follow up with mental health or a private doctor. Id. Dr. Aya-ay assessed anxiety, depressive disorder, psychosis, and hypertension and refilled Diazepam, Norco, and Risperidone. Id.
On August 16, 2016, Joseph Grace, Ph.D. ("Dr. Grace") evaluated Plaintiff. Tr. at 308, 314-21. Dr. Grace based his evaluation on medical records from Dr. Aya-ay dated June 1, 2016, a plan of care submitted by the South Carolina Department of Mental Health ("Mental Health") dated June 23, 2016, a Personal Inventory for Psychological Disability Assessment completed on July 29, 2016, extended clinical interviews and cognitive counseling on July 28, August 5, and August 16, 2016, and a Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") administered on August 3, 2016. Tr. at 314. Dr. Grace noted Plaintiff completed the seventh grade, obtained a GED while in prison, and was accompanied to all sessions by Ms. Pruitt and her daughter, described as Plaintiff's family and caretakers. Tr. at 314-15. Plaintiff reported having been homeless for five years before moving in with Ms. Pruitt. Tr. at 315. Dr. Grace noted Ms. Pruitt and her daughter were "instrumental in obtaining comprehensive interviews" and "assisted in stabilizing [Plaintiff] emotionally when discussing stressful and tragic issues and providing information [or] clarification regarding his sometimes vague descriptions and gaps in his reports." Id.
Dr. Grace provided a detailed review of Plaintiff's education, conviction, family, work, marital, medical, emotional, and psychiatric histories. Tr. at 314-21. Plaintiff's mother was diagnosed with paranoid schizophrenia and was a harsh disciplinarian, and his father was abusive. Id. After harsh beatings, Plaintiff's mother kept him home from school to avoid investigation. Id. During his childhood, Plaintiff almost drowned, witnessed his mother jump from a moving vehicle, lost his best friend in a car accident, and had frequent fights with gang members for being in their territory. Tr. at 315-16. When Plaintiff was twenty-four years old, his father died from a metastatic disease and his mother starved herself to death the following year. Tr. at 316. Ms. Pruitt relayed that Plaintiff became more emotionally unstable with erratic behavior after his parents' deaths. Id.
Plaintiff had two failed marriages and reported serving prison sentences that amounted to seven years for domestic violence, failure to pay child support, DUI, and sexually abusing a minor. Tr. at 316-17. Plaintiff reported a sporadic work history that ended due to "work-related injuries, perceived harassment by co-workers, and extreme discomfort with the work environment." Tr. at 317.
Plaintiff had been diagnosed with depressive disorder, panic disorder, PTSD, psychosis, schizophrenia, paranoia, bipolar disorder, and schizoaffective disorder, bipolar type, and he currently received treatment from Dr. Aya-ay. Tr. at 317-18. Plaintiff's symptoms included depressed mood, increased anhedonia, excessive worry, frequent anxiety, sleep disturbances, extreme daytime fatigue with little stamina, decreased concentration and short-term memory, difficulty making routine decisions, increased irritability with low frustration tolerance, hypervigilance and uncomfortableness around strangers, frequent nightmares, daily panic episodes, racing thoughts, inability to stay focused on any topic, alienation, hallucinations, delusions of persecution and control, and "very confused, disturbed thinking." Tr. at 318-19.
Plaintiff was "shabbily dressed and unkempt during all interviews." Tr. at 315. Plaintiff "was a rambling informant," "emotionally labile," "could generally relate significant events in his life but struggled with dates," "strayed from issues he had presented," and "perseverated on issues with a tendency to provide much irrelevant information." Id. Plaintiff was oriented to time, person, and place, but indicated he frequently experienced auditory hallucinations that seemed external from his thought processes, and he had an ongoing struggle with delusions of persecution and control. Id.
Dr. Grace noted:
[Plaintiff's] MMPI-2 clinical scales indicated that he is severely depressed, severely anxious and in very tenuous contact with reality. He obviously is experiencing disordered thinking and is in poor contact with reality. He has many mistaken beliefs and ideas of reference (delusions) and he probably also experiences
hallucinations. His behavior is likely to be viewed as eccentric and peculiar, and he tends to be socially reclusive. Further, [Plaintiff's] profile indicates that he is an obsessional worrier with superstitious phobias and rigid "rituals." His usual (unconscious) coping strategies of projection, rationalization, dissociation and denial are ineffective in helping him to cope with the stresses of living. Consequently, he probably experiences sudden anxiety and panic episodes in addition to psychotic and depressive symptoms. Also, [Plaintiff] may well experience bizarre bodily or somatic delusions and be immobilized at times by multiple physical symptoms. Additionally, he is agitated, highly suggestible, prone to exercise poor judgement, and undoubtedly has adjusted poorly to work and marital commitments/challenges.Tr. at 319. Dr. Grace assessed Plaintiff with major depressive disorder, recurrent episode with psychotic features, PTSD, panic disorder with daily episodes, and schizoaffective disorder, bipolar type. Tr. at 320. Dr. Grace assessed Plaintiff with a GAF score of 30, noting he was considerably influenced by delusions and hallucinations, had a serious impairment in judgment and communication, and repeatedly demonstrated his inability to function at a minimal level of efficiency in any occupational capacity. Tr. at 321. Dr. Grace concluded "from a strictly psychosocial and psychiatric perspective," he found Plaintiff "to be totally and permanently disabled for remunerative employment." Id.
A GAF score of 21-30 reflects behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). DSM-IV-TR.
On September 9, 2016, Dr. Aya-ay received Dr. Grace's report and evaluated Plaintiff. Tr. at 325. Dr. Aya-ay assessed schizoaffective disorder, bipolar type, anxiety, and back pain, increased Risperidone, and refilled Valium, Atenolol, Diazepam, and Norco. Id.
On December 6, 2016, Dr. Aya-ay provided a statement regarding Plaintiff. Tr. at 338. Dr. Aya-ay relayed he had been Plaintiff's primary care physician since March 12, 2015, and Plaintiff's mental health issues posed his "main problem in terms of being able to work." Id. Dr. Aya-ay explained he prescribed Plaintiff's medications in consultation with Dr. Grace. Id. Dr. Aya-ay noted Plaintiff presented as highly anxious, paced, was unable to sit still, had difficulty maintaining eye contact or communicating, and expressed anger and agitation in the waiting room, such that he could "see where this would be a problem in the workplace." Id. Dr. Aya-ay stated, "[b]ased on my experience with him in the office, [i]t is very unlikely he would be able [to] interact appropriately with supervisors and coworkers in the work place." Id. With regard to simple instructions, Dr. Aya-ay noted Plaintiff was moderately confrontational and defiant regarding simple directions when he first saw him, but had improved over time as he developed a rapport with him. Id. However, Plaintiff seemed very distracted and lost his train of thought while speaking. Id. Dr. Aya-ay noted Plaintiff had auditory and tactile hallucinations and the medications had helped, but he still looked around the room for things he was hearing or seeing and the hallucinations could still be an issue with workplace stress. Id. Dr. Aya-ay concluded, "I am certain [Plaintiff] could not function in the workplace due to continued frequent interruptions to concentration and difficulty with interacting with others appropriately." Id.
The statement provides March 12, 2016, as the initial treatment date, but the medical records reflect March 12, 2015. Compare Tr. at 338, with Tr. at 337.
On January 25, 2017, Dr. Grace provided a statement regarding Plaintiff. Tr. at 339. Dr. Grace relayed similar information contained in his evaluation, dated August 16, 2016, and his diagnoses of major depressive disorder, recurrent, PTSD, and schizoaffective disorder, bipolar type. Id.; Tr. at 314-21. Dr. Grace noted Plaintiff had difficulty answering simple questions, tended to get agitated over very small concerns, lost control of his anger, was easily distracted, unable to maintain focus for very long, emotionally labile, took longer to understand things, and had hallucinations. Tr. at 339. Dr. Grace recommended Dr. Aya-ay increase Plaintiff's anti-psychotic medication, but noted this change would not "keep him completely stable" and he "would not be able to return him to the work force," as he is "as psychiatrically disabled as any patient [Dr. Grace] ha[d] seen in 10 years." Id. Dr. Grace noted Plaintiff could not interact with coworkers and supervisors appropriately, ordinary work stressors could cause him to become dangerous to others, he presented as "very erratic and unpredictable," was "incredibly self-destructive," his judgment was "terribly impaired," and his disorders prevented him from being responsible enough to maintain a regular work schedule. Id.
On February 20, 2017, Plaintiff presented to Dr. Grace and complained of being nervous, anxious, and agitated. Tr. at 340-41. Dr. Grace noted Plaintiff took the same Diazepam dosage, but his Risperdal was doubled. Id. Dr. Grace also noted Plaintiff seemed less volatile and hyperactive, but continued to have difficulty focusing on one topic. Id. Plaintiff reported he still experienced delusional thinking, paranoid type, and auditory hallucinations. Id. Plaintiff regarded strangers as the enemy, isolated himself in his bedroom during Christmas, and heard his deceased parents speak to him. Id. He also reported pain and headaches with left-side numbness from multiple stab wounds and serious head injuries over the years. Id.
b. Medical Evidence Submitted to the Appeals Council
On June 20, 2017, Dr. Grace provided a statement in response to the ALJ's decision. Tr. at 24-26. Dr. Grace noted the ALJ emphasized Plaintiff's score of 30/30 on Dr. Ruffing's Folstein Exam, but asserted this was a ten-minute examination that did not "compare to I.Q. testing" and a "very simple, low stress" test that indicated Plaintiff was able to concentrate for ten minutes. Tr. at 24. Dr. Grace noted "it appears [the ALJ] is making no distinction between an intellectual and psychiatric disability." Id. Dr. Grace also noted Plaintiff's "psychiatric disorders interfere significantly with his ability to make rational decisions and to effectively manage his life." Id. Dr. Grace stated the ALJ emphasized Plaintiff had not been admitted to a psychiatric institution or in contact with mental health professionals on an outpatient basis, but countered that literature stated individuals with psychotic disorders spent years in institutions, medical or penal, and Plaintiff spent seven years of his life in prison for various crimes "that involved little or no forethought, sound reasoning, or concern for his life," and such cognitive deficits were not unusual in patients with psychiatric disorders. Tr. at 24-25. Dr. Grace explained Plaintiff "may have a relatively normal I.Q., but his emotional instability has and will continue to significantly interfere with his day to day functioning." Tr. at 25.
Dr. Grace explained Plaintiff was homeless prior to receiving a psychosocial structure and he "undoubtedly has been unstable since childhood precipitated by psychodynamic deficiencies and the absence of effective parental models to emulate and guide him." Id. Dr. Grace thought it "apparent that he is simply not capable of functioning independently" and would not have "sought mental health services or applied for disability income" without guidance. Id. Dr. Grace noted, "[a]lthough [Plaintiff] is being treated by a board[-]certified psychiatrist, his delusions, hallucinations, and wide mood fluctuations continue to interfere with day to day functioning" and he experiences "several functional days, followed by several dysfunctional weeks." Id. Dr. Grace noted his intent to meet with Plaintiff within a week and administer mental examinations, stating "his attention, concentration, and short-term recall are likely to fluctuate significantly from day to day." Id. Dr. Grace also noted these symptoms were characteristic of a patient with schizoaffective disorder, bipolar type, and his list of psychiatric disorders was "formulated after spending hours with [Plaintiff] in a clinical interview, which included an in-depth psychiatric history." Id. Dr. Grace noted "every mental health professional and primary care physician who has treated [Plaintiff] has concluded that he has severe psychiatric disorders." Id.
On June 26, 2017, Dr. Grace evaluated Plaintiff. Tr. at 22-23. Plaintiff and Ms. Pruitt reported Dr. Ruffing's examination lasted no longer than ten minutes. Tr. at 22. Dr. Grace noted Dr. Ruffing's evaluation only consisted of the Folstein Exam and such exam was of "very limited usefulness." Id. Plaintiff reported he made at least two errors on the exam by misspelling the word "world" and stating the United States President was Osama Bin Laden. Id. Dr. Grace dismissed Ms. Pruitt and administered the Folstein Exam and Cognitive Capacity Screening Examination ("Cognitive Exam"). Id. Plaintiff scored 18/30 on the Folstein Exam and 13/30 on the Cognitive Exam, and Dr. Grace opined Plaintiff gave his best effort. Tr. at 22-23. Dr. Grace noted both scores were deficient and indicated a neurocognitive disorder, but a diagnosis could not be made without more extensive and in-depth psychological testing. Tr. at 23. Dr. Grace also noted Plaintiff suffered two traumatic head injuries during his formative years and failed the seventh and eighth grades, which would support the diagnosis. Id. Dr. Grace stated Plaintiff viewed himself as having a psychiatric disorder, not an intellectual deficiency. Id.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on March 17, 2017, Plaintiff testified he was 45 years old and lived in a house with Ms. Pruitt and her daughter, who knew his parents, took care of him, and helped him out. Tr. at 57-58. He stated he was basically homeless after he found his parents dead and their house sold. Tr. at 58. He stated his mother was schizophrenic, kept him beside her all the time, and would not let him out of her sight because she feared he would be kidnapped. Tr. at 59. He testified that if he went out of her sight, sometimes she would "go crazy" and "beat him up real bad with the belt." Id. He stated his mother would not allow him to attend school because she was afraid DSS would put her in jail. Id. He testified he attended seventh grade, but was placed forward after he missed 70 or 80 days and failed twice. Id. Plaintiff stated he took the GED test, but did not understand 80% of it and was given a high school equivalency, though not a GED. Tr. at 59-60. He testified he was given the GED test "so [he] could get out" because it was "mandatory by the judge to have a GED." Tr. at 59. He stated he was released from prison in 2005 and has tried to pick up odd jobs like picking up discarded shingles and nails for $30 or $40 a day for 10 hours' work. Tr. at 60-61. Plaintiff testified he did janitorial work in prison. Id. He stated every day of his life has been a struggle, that he was arrested on the day of his mother's funeral. Tr. at 62. Plaintiff stated he was homeless for years before going to live with Ms. Pruitt, whom he said was a CNA, paid the bills, took him to doctor and mental health appointments, and got him to see Dr. Aya-ay and Dr. Grace, when he would see, hear, and smell things, and cry all day long because of depression. Tr. at 62-63. Plaintiff said Dr. Aya-ay prescribes him the maximum dosage of Risperdal 8 mg, Mobic for arthritis, and three Valiums and Norco 10 mgs daily. Tr. at 63-66. Dr. Aya-ay also referred Plaintiff to Dr. Grace, who counsels him. Id. He stated the medication helped him "some," and his counseling sessions with Dr. Grace had occurred several times, lasted for hours, and helped "so much," as he felt "normal" for an hour after their sessions. Tr. at 65-66. He said that he does not have any health insurance, that Ms. Pruitt pays for his medical bills, medications, and doctor's visits, including Palmetto Proactive, which costs $70 per visit. Tr. at 66-67. He stated he was denied Medicaid because he had not received disability. Tr. at 67.
Plaintiff referenced that he attended "Mental Health," but Ms. Pruitt was "unpleased with [how] they treated [him]." This mental health treatment is not provided in the record, but appears to have occurred prior to Plaintiff's treatment with Dr. Grace.
The hearing transcript reflects the phonetic spelling as "Eiei," but the medical records reflect the correct spelling is "Aya-ay." Compare Tr. at 63, with Tr. at 337.
Plaintiff testified he liked to make things grow and live, as he has experienced death so many times. Tr. at 68. He acknowledged having difficulty making routine decisions and feeling worthless, but would try to sweep, make his bed, take out the trash, and take care of the animals. Tr. at 68-69. He stated he would get a tingling in his head and his whole left side would go numb, his face would turn red, he would have difficulty breathing, and think he was having a stroke. Tr. at 69. He testified he was sometimes able to take care of his personal needs like bathing, dressing, and laundry, but that Ms. Pruitt helps him sometimes. Id. He said he was not allowed around the stove anymore because he would forget to turn the burner off and burned bacon a lot. Id. He stated he was able to make sandwiches. Id. He acknowledged having had a problem with alcohol, but he did not drink anymore because of his medications. Tr. at 69-70. He noted having had a 30-day alcohol treatment at Homeview Center in Greenville a long time ago. Tr. at 70. Plaintiff said he has never been in a psychiatric hospital, and Dr. Grace had never recommended it, instead advising him that he needed counseling and support. Id. Plaintiff testified when he heard buzzing voices, he would put cotton in his ears and wrap himself with Saran Wrap, but he would still hear the voices. Tr. at 70-71. He said he saw tears that were probably his own tears, and he smelled things behind him because he has been stabbed in the back four times. Tr. at 71. He said he always thinks something is behind him and has seen people. Id.
Plaintiff testified he tried his best to look at the world in a positive way, but it did not take much to trigger him and he would have a mean panic attack or, more commonly, a crying panic attack. Id. In those cases, he would start remembering things and cry until his eyes swell shut and he fell asleep and woke up a day or more later. Id. He stated he tried to go to vocational rehabilitation years ago, but he could not do it when he was put in with a lot of different people, where he felt so out of place. Tr. at 71-72.
Plaintiff described taking Norco and anti-inflammatories due to pain in the back of his head where he had been hit with baseball bats and curling bars and when his arm and leg would go numb. Tr. at 72. He said he became nauseated when he bent over for a long period of time because of surgery he had where "they took [his] guts out to save [his] life." Id. He said he was stabbed and beaten in the head in 1996 when he worked as a bouncer by people who got mad he would not let them in. Tr. at 72-73. He testified he was last in prison for DUI and was released in 2005, and he had not been in trouble since. Tr. at 73. He stated he never had a driver's license and Ms. Pruitt transported him to the hearing. Tr. at 73-74. He testified he loved animals and helped with the Pruitts' 7 cats, 2 dogs, 3 ducks, and about 15 chickens, and he had a goat, but it died. Tr. at 74-75. He also testified he had a fat cat that was 15 years old that looked directly in his eyes, told him that he loved him, and instructed him to go to bed after being held for ten hours. Tr. at 75. He explained the cat refused to die until he set him down. Id. Plaintiff testified he buried the cat under a pear tree and that he was his best friend. Id. When directed by his counsel to step outside while Ms. Pruitt testified, the ALJ advised him that he had a due process right to be present, but Plaintiff testified he trusted her with his life and he would be dead without her. Tr. at 76.
b. Cynthia Pruitt's Testimony
At the hearing, Ms. Pruitt testified she was Plaintiff's friend, had known him since he was 18 years old, and he had been living with her for 15 years since she ran into him living on the streets with nowhere to go after his parents died. Tr. at 77-78. She stated she provided care for Plaintiff, including housing him, taking him to and paying for his doctors' appointments, and generally taking care of him. Tr. at 79-80. She said Plaintiff could not be left alone because he would start to cook breakfast, for instance, and then become distracted and leave the bacon burning on the stove. Tr. at 80. She testified she would sometimes be awakened at 3 or 4 a.m. to the dog barking because Plaintiff would be outside having a conversation with someone who was not there. Id. She said Plaintiff was never left alone at the house, and either she or her daughter were "always there making sure that, you know, he don't catch the house on fire or something." Id.
Ms. Pruitt testified she attempted to take Plaintiff to Mental Health, but they had to wait for several hours around a lot of other people, and Plaintiff got overwhelmed, started shaking, and became sick. Tr. at 80-81. She said Plaintiff's physician, Dr. Aya-ay, suggested going to Dr. Grace, and she would accompany Plaintiff to and in all his appointments. Tr. at 81. She noted Plaintiff complained of having a lot of pain in his head, left arm, leg and stomach where he had been stabbed. Tr. 81-82. She said she was not present when he wrapped his head in Saran Wrap. Tr. at 82. She transported Plaintiff to see Dr. Ruffing, but she was not allowed to be present during the examination. Id.
She testified her daughter cooked Plaintiff's meals for him, he bathed every other day, and he refused to get his hair cut, but he combed his hair and beard. Tr. at 82-83. She said he was good about brushing his teeth and could make a sandwich or cup of coffee, but he might leave the coffee in the microwave and forget he made it. Tr. at 83. She said Plaintiff was not an easy person to live with, although not violent, he would become agitated when he could not focus, become snappy, and start hollering. Id. She described his nervousness about attending the hearing and worry that they would not make it on time with March Madness and the traffic, such that they booked a motel room to ensure a timely arrival. Id.
She said she would not have her family visit her house because Plaintiff would not handle crowds and did not like anyone around him at all. Tr. at 83-84. She testified she had 15 close relatives and would visit with them at their homes and attended Thanksgiving and Christmas at her mom's house, but Plaintiff would stay home with her daughter, who did not attend the family events because she had to stay home with Plaintiff, as Ms. Pruitt was scared he would burn the house down. Tr. at 84.
Ms. Pruitt testified Plaintiff felt comfortable talking to Dr. Grace and followed his advice. Tr. at 84-85. She said she or her daughter administered his medication because he would forget having taken a dose and would think he needed another dose. Tr. at 85. She testified he never had money unless she gave him some to go to a store, but that he bought his own groceries with his food stamps. Id. She testified he would have the correct change for purchases and could read, but he would not remember what he just read if asked. Id. She testified her daughter helped Plaintiff complete his Social Security forms. Tr. at 85-86. Ms. Pruitt said it was her idea to have Plaintiff apply for Social Security once she was able to convince him to go see a doctor. Tr. at 86. She said he was scared to go to the doctor because he feared being locked up in a psychiatric ward because he thought everybody was out to get him. Id. She said they cannot go eat at restaurants like a McDonald's because if people sat by their booth, he would get red, start shaking, become sick, and would have to get up and leave them. Id. She said he was sometimes argumentative with strangers if they look at him the wrong way, as he thinks everybody is looking at him, talking about him, and wanting to hurt him. Tr. at 86-87. She said every day was not the same with him, and she did not know who he is going to be in the morning. Id.
In response to the ALJ's question, Ms. Pruitt testified she had never taken any steps to be appointed Plaintiff's guardian and did not know how to go about doing it. Tr. at 88.
After Ms. Pruitt finished her testimony, Plaintiff returned to the hearing room, whereupon his counsel developed a nosebleed, and Plaintiff stated "[i]t's probably my fault." Tr. at 89.
c. Vocational Expert's Testimony
Vocational Expert ("VE") Benson Hecker reviewed the record and testified at the hearing. Tr. at 92-94. The ALJ described a hypothetical individual of Plaintiff's profile who was limited to non-exertional only, meaning he could sustain concentration, persistence, and pace sufficient to perform simple, routine, and repetitive tasks, but not at a production rate pace; was limited to simple work-related decisions; could frequently interact with supervisors; and occasionally interact with coworkers, but should never interact with the public. Tr. at 93. The VE testified the hypothetical individual would allow unskilled, medium work with specific vocational preparation ("SVP") of 2 such as a night cleaner (Dictionary of Occupational Titles ("DOT") number 323.687-010), an industrial cleaner (DOT number 381.687-018), or a hand packager (DOT number 920.587-018), with 894,000, 2,000,000, and 713,000 positions available nationally respectively. Tr. at 93-94.
The VE testified Plaintiff would be able to perform work as a night cleaner, but the DOT number provided is for a hospital cleaner. See 323.687-010 CLEANER, HOSPITAL. DOT (4th ed., revised 1991), 1991 WL 672782. This appears to be an inadvertent error, as the night cleaner position is located at DOT number 323.687-018. See 323.687-018 HOUSECLEANER, DOT (4th ed., revised 1991), 1991 WL 672784 (providing a housecleaner position with an alternate title of night cleaner). These positions are similar and both require a GED reasoning level of two, such that the analysis is unaffected.
Next, the ALJ modified the hypothetical to add the individual would be off task 20% of the time in an 8-hour workday, and the VE responded the modification would not allow any work. Tr. at 94. In response to Plaintiff's counsel's question, the VE responded no work would be available for an individual unable to maintain concentration, persistence, and pace for 2-hour blocks of time. Id.
2. The ALJ's Findings
In his decision dated June 1, 2017, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 1995.
2. The claimant has not engaged in substantial gainful activity since January 2, 1995, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: major depressive disorder with psychotic features, post-traumatic stress disorder (PTSD), panic disorder, and schizoaffective disorder, bipolar type (PTSD) (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: the claimant could sustain concentration, persistence, and pace sufficient to perform simple, routine, and repetitive tasks, but not at a production rate pace. His use of judgment is limited to simple work[-]related decisions. The claimant could frequently interact with supervisors, could occasionally interact with coworkers, but could never interact with the public. The claimant should be limited to simple work[-]related decision[s] with respect to dealing with changes in the work setting.
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on October 21, 1971 and was 23 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).Tr. at 32-44. II. Discussion
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 2, 1995, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) The ALJ's step five finding was not supported by substantial evidence because the VE's testimony was not consistent with the DOT and the ALJ failed to reconcile the VE's testimony with the DOT in violation of SSR 00-4p;
2) The ALJ improperly rejected the opinions of Plaintiff's treating physicians; and
3) The Appeals Council erred in finding the additional evidence did not show a reasonable probability that it would change the outcome of the decision and not remanding the case to the ALJ.
The Commissioner counters that substantial evidence supports the ALJ's findings, the ALJ committed no legal error in his decision, and the Appeals Council correctly determined the additional evidence did not present a reasonable probability that it would change the outcome of the ALJ's 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:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 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 (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) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 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. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).
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. §§ 404.1525, 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. §§ 404.1520(a)(4)(iii), 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. §§ 404.1526, 416.926; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
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 PRW 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. §§ 404.1520(h), 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. §§ 404.1520(a), (b), (f), 416.920(a), (b), (f); 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 the claimant can perform alternative work and such work exists in the national 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 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 (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. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401 (citation omitted); 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 her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). 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. Conflict Between VE's Testimony and the DOT
Plaintiff argues the ALJ's step five finding is flawed because he did not resolve a conflict between the VE's testimony and the DOT. [ECF No. 11 at 24-27]. He argues the jobs identified by the VE required a GED reasoning level of two, which conflicted with the restrictions in the RFC assessment. Id. He maintains the ALJ improperly relied on the VE's erroneous testimony that no conflict existed between his testimony and the DOT. Id.
The Commissioner argues the RFC assessment does not raise an apparent conflict with GED reasoning level two because Plaintiff's counsel did not identify the conflict during the hearing and courts are divided as to whether a conflict exists, such that it is not apparent. [ECF No. 12 at 9-15]. She argues Henderson v. Colvin, 643 F. App'x 273 (4th Cir. 2016), is distinguishable because Plaintiff was not restricted to one-to-two step instructions and any error was harmless because Plaintiff earned his GED while in prison and has not asserted that he cannot perform the jobs provided by the VE. Id.
The Commissioner acknowledges there is a split of authority in this circuit, but asserts "most of the cases finding an apparent conflict can be distinguished 'based on the specific language included in the respective RFCs and are fact specific.'" [ECF No. 12 at 11 n.1].
Plaintiff replies the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") rejected the Commissioner's position regarding apparent conflicts in Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015), and the cases cited in support predate Henderson. [ECF No. 13 at 1-9]. He asserts he is unable to perform the listed jobs due to his impairments, as acknowledged by the RFC, and harmless error does not apply in this case. Id.
At step five in the sequential evaluation process, "the Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson, 810 F.3d at 207 (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). While assessing the claimant's ability to perform other jobs existing in significant numbers in the national economy, the ALJ should take administrative notice of job information contained in the DOT. 20 C.F.R. § 404.1566(d) and § 416.966(d); see also SSR 00-4p (providing that "we rely primarily on the DOT (including its companion publication, the [Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles]) for information about the requirements of work in the national economy"). In some cases, ALJs obtain testimony from VEs to address how certain restrictions affect claimants' abilities to perform specific jobs. 20 C.F.R. § 404.1566(e) and § 416.966(e).
In recognizing that opinions from VEs sometimes conflict with the information in the DOT, the SSA promulgated SSR 00-4p to explain how these conflicts should be resolved. The SSR 00-4p's purpose is to "require the ALJ (not the [VE]) to '[i]dentify and obtain a reasonable explanation' for conflicts between the [VE]'s testimony and the [DOT], and to 'explain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208 (citing SSR 00-4p (emphasis in original)). According to SSR 00-4p, the ALJ has two responsibilities to fulfill. Id. "First, the ALJ must '[a]sk the [VE] . . . if the evidence he or she has provided conflicts with information provided in the [DOT].'" Id. (citing SSR 00-4p). "[S]econd, '[i]f the [VE]'s . . . evidence appears to conflict with the [DOT],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. (citing SSR 00-4p). "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [VE] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified.'" Id. (citing SSR 00-4p (emphasis in original)). Therefore, "[t]he ALJ independently must identify conflicts between the expert's testimony and the [DOT]." Id. at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT" and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson, 643 F. App'x at 277 (citing Pearson, 810 F.3d at 210).
The court explained that an "apparent conflict" existed when the VE's testimony 'appear[ed] to conflict with the [DOT]," but an explanation from the VE may show that no actual conflict exists. Pearson, 810 F.3d at 209. ALJs must resolve both obvious and apparent conflicts between the VE's testimony and the DOT.
Pertinent to Plaintiff's argument, the ALJ determined he was limited to "perform simple, routine, and repetitive tasks, but not at a production rate pace" and his "use of judgment" and "dealing with changes in the work setting" were "limited to simple work[-]related decisions." Tr. at 35. He relied on the VE's testimony to find Plaintiff could perform jobs as a night cleaner, industrial cleaner, and hand packager. Tr. at 43. The DOT indicates these jobs have GED reasoning levels of two and require the worker to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving a few concrete variables in or from standardized situations." See 323.687-018 HOUSECLEANER (NIGHT CLEANER), DOT (4th ed., revised 1991), 1991 WL 672784; 381.687-018 CLEANER, INDUSTRIAL, DOT (4th ed., revised 1991), 1991 WL 673258; 920.587-018 PACKAGER, HAND, DOT (4th ed., revised 1991), 1991 WL 687916. However, GED reasoning level one's definition only requires a worker to "[a]pply commonsense understanding to carry out simple one- or two-step instructions" and "[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job." See Appendix C - Components of the Definition Trailer, DOT, 1991 WL 688702.
In Henderson, the Fourth Circuit acknowledged that "there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions." 643 F. App'x at 277. Accordingly, the court found the ALJ failed to meet his burden at step five because the VE's testimony did not provide substantial evidence to show that the plaintiff's RFC would allow him to perform work that existed in significant numbers. Id.
This case is similar to Henderson in that the RFC assessment limited Plaintiff to "simple" tasks, but it differs in that the ALJ did not specify Plaintiff was limited to one-to-two step instructions. However, "[f]ollowing the Fourth Circuit's decision in Henderson, this court considered restrictions to simple, routine tasks in several cases and found that a conflict existed between the restrictions and GED reasoning level two." Austin v. Berryhill, No. 1:17-cv-1797-JMC-SVH, 2018 WL 2392209, at *19 (D.S.C. Apr. 24, 2018), adopted by 2018 WL 2389595 (D.S.C. May 24, 2018).
Id. (citing Stepp v. Berryhill, No. 1:17-771-MBS-SVH, 2017 WL 6806664 (D.S.C. Dec. 6, 2017), adopted by 2018 WL 294517 (D.S.C. Jan. 3, 2018); Piner v. Berryhill, No. 1:17-TMC-SVH, 2017 WL 4712084 (D.S.C. Sept. 28, 2017), adopted by 2017 WL 4682004 (D.S.C. Oct. 18, 2017); Pressley v. Berryhill, No. 8:16-2716-BHH-JDA, 2017 WL 4174780, at *10-11 (D.S.C. Aug. 24, 2017), adopted by 2017 WL 4156460 (D.S.C. Sept. 19, 2017); Dewalt-Gallman v. Berryhill, No. 9:16-2332-PMD-BM, 2017 WL 2257418, at *4 (D.S.C. May. 5, 2017), adopted by 2017 WL 2225133 (D.S.C. May 22, 2017); Christopherson v. Colvin, No. 6:15-4725-JMC-KFM, 2016 WL 7223283, at *9 (D.S.C. Nov. 18, 2016), adopted by 2016 WL 7212785 (D.S.C. Dec. 13, 2016)).
Recently, the Fourth Circuit considered restrictions similar to the limitation to simple and routine tasks found in Plaintiff's RFC and found an apparent conflict between those restrictions and a GED reasoning level of three. See Keller v. Berryhill, No. 17-2248, 2018 WL 6264813 (4th Cir. Nov. 29, 2018) (finding a limitation to short and simple instructions appears inconsistent with jobs that require a GED reasoning development level of three). The Fourth Circuit acknowledged "[s]everal other courts of appeals have relied on precedent addressing a simple tasks limitation when considering a simple instructions limitation," and it concluded it was appropriate to do the same in that case. Id. at n.4. In doing so, the Fourth Circuit stated "it seems that such a limitation falls somewhere between Levels 1 and 2." Id. at *4.
More recently, the Fourth Circuit evaluated an RFC that provided the plaintiff was "able to follow short, simple instructions and perform routine tasks, but no work requiring a production rate or demand pace . . . [and] must avoid work involving crisis situations, complex decision making, or constant changes in a routine setting." Thomas v. Berryhill, No. 17-2215, 2019 WL 193948 (4th Cir. Jan. 15, 2019), as amended (Feb. 22, 2019). In that case, all three jobs provided by the VE required a GED reasoning level of two, and the Fourth Circuit found the ALJ erred in two respects: she "did not sufficiently explain her conclusions regarding [the plaintiff's] mental impairments," such as what the terms production rate or demand pace meant, and "did not identify or resolve an apparent conflict between the DOT and the testimony of the VE." Id. The Fourth Circuit held "while the ALJ stated that [the plaintiff] could not perform work 'requiring a production rate or demand pace,' she did not give us enough information to understand what those terms mean" and, combined with other missteps, the ALJ's RFC evaluation frustrated the ability to conduct meaningful review. Id. at *3-*4. In addition, the Fourth Circuit held there was an "'apparent conflict' between a limitation to 'short, simple instructions' . . . and a need to carry out 'detailed but uninvolved . . . instructions' (as found in jobs requiring Level 2 reasoning)." Id. at *4-*5 (noting it was "not a categorical rule—some instructions, particularly if they are well-drafted, may be simultaneously short, simple, detailed, and uninvolved," but the conflict was as apparent as that in Pearson and the ALJ should have resolved it).
In this case, the ALJ limited Plaintiff's RFC to "perform simple, routine, and repetitive tasks, but not at a production rate pace" and his "use of judgment" and "dealing with changes in the work setting" were "limited to simple work[-]related decisions." Tr. at 35. Under the recent guidance of the Fourth Circuit and prior decisions by this court, these RFC limitations support Plaintiff was likely limited to a GED reasoning level of one requiring the application of "commonsense understanding to carry out simple one- or two-step instructions" and dealing "with standardized situations with occasional or no variables in or from these situations" instead of the next GED reasoning level that requires the ability "to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving a few concrete variables in or from standardized situations." See DOT, App'x C ("Components of the Definition Trailer"), § III G.E.D., 1991 WL 688702. Moreover, these RFC limitations go beyond "simple, routine, and repetitive tasks," and include the undefined limitation of "production rate pace," as well as address Plaintiff's "use of judgment" and "dealing with changes in the work setting" as "limited to simple work[-]related decisions." Tr. at 35. Although the ALJ questioned the VE regarding the consistency of his testimony with the DOT and was informed that the testimony was consistent, see Tr. at 93-94, he did not take the necessary step to independently identify and resolve the apparent conflict between Plaintiff's RFC and his ability to meet the demands of the night cleaner, industrial cleaner, and hand packager positions. See Pearson, 810 F.3d at 208-10. "Recall that at this step, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant is capable of doing other work that exists in significant supply in the national economy." Thomas, 2019 WL 193948, at *4 (citing Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015)). Accordingly, the undersigned recommends the Commissioner failed to meet her burden at step five.
The Commissioner's final argument, that any error can be excused as harmless, was recently discussed by the Fourth Circuit in Keller. 2018 WL 6264813, at *5. The Fourth Circuit acknowledged some "circuits have applied harmless error analysis when an ALJ has relied on VE testimony that conflicts with the DOT." Id. (citations omitted). However, the Fourth Circuit stated,
As a general proposition, we apply the harmless error doctrine in reviewing a decision of the Commissioner denying a benefits claim. See Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 658 (4th Cir. 2017). We will not affirm for harmless error, however, "[w]here an insufficient record precludes a determination that substantial evidence support[s] the ALJ's denial of benefits." Id. And, in Pearson, we announced that the administrative record is insufficient when it contains an unresolved conflict between a VE's testimony and the DOT. See 810 F.3d at 210.Id. The Fourth Circuit continued "[n]evertheless—assuming that the harmless error doctrine applies in these circumstances—we are yet satisfied that a remand is required," as any harmless error argument was waived and "notwithstanding the Commissioner's waiver, we are unable to conclude that the ALJ's error is harmless" because "the administrative record does not clearly demonstrate that [the plaintiff] can actually perform the occupations identified by the VE and relied on by the ALJ at the fifth step." Id. (citations omitted).
Here, the Commissioner argues Plaintiff has not established he is unable to perform the positions and points to the GED that he received while in prison to show he "has the requisite formal education to perform" them, but this argument is unavailing. [ECF No. 12 at 13-15]. The ALJ did not state the restrictions to "perform simple, routine, and repetitive tasks, but not at a production rate pace" and his "use of judgment" and "dealing with changes in the work setting" as "limited to simple work[-]related decisions" were tied to an education level, but imposed these restrictions after finding severe impairments of major depressive disorder with psychotic features, PTSD, panic disorder, and schizoaffective disorder, bipolar type. See Tr. at 32. As Plaintiff asserts, his "current limitations have not been reconciled" with the DOT. [ECF No. 13 at 8]. This court recently noted,
The Commissioner references the general definition for GED provided in the DOT, but fails to recognize the GED is composed of three divisions: reasoning, mathematical, and language development. See DOT, App. C., 1991 WL 688702. It specifies, "[t]he description of the various levels of language and mathematical development are based on the curricula taught in schools throughout the United States," and does not provide the same explanation for reasoning. Id.
While it is undoubtedly true that some persons limited to 'simple, routine, repetitive tasks' may have a reasoning capacity greater than [the GED reasoning level of one], it is also true that many do not. Issues such as cognitive limitations, severe depression, memory disorders, and the secondary effects of severe pain may both limit claimants to simple tasks and to comprehending only simple instructions. Since these two factors have considerable overlap, it is necessary for the ALJ to identify the apparent conflict where the claimant is limited to simple, routine and repetitive tasks and the [VE] offers positions Level Two or higher. The [VE] must address whether the claimant has the
capacity to perform jobs at that reasoning level.Abstance v. Berryhill, 2019 WL 669799, at *3 (D.S.C. Feb. 19, 2019). Therefore, the undersigned recommends this matter be remanded.
This is not the first time where this issue has arisen in the Fourth Circuit or in the District of South Carolina. The majority view is that SSR 00-04p mandates that the ALJ identify the conflict and have the [VE] address the issue. See, Keller v. Berryhill, 2018 WL 6264813 (4th Cir. 2018); Henderson v. Colvin, 643 Fed. Appx. 273, 276-78 (4th Cir. 2016); Mathis v. Berryhill, No. CV 6:17-2242-TLW-KFM, 2018 WL 7099004 (D.S.C. Nov. 28, 2018), report and recommendation adopted, No. 6:17-CV-02242-TLW, 2019 WL 283643 (D.S.C. Jan. 22, 2019). Consequently, this matter must be reversed and remanded to the agency to comply with the requirements of SSR 00-04p.
2. Additional Allegations of Error
Plaintiff argues Dr. Grace's statement and recent evaluation showed a reasonable probability that they would change the outcome of the ALJ's decision and the Appeals Council erred in finding otherwise. [ECF Nos. 11 at 33-39, 13 at 11-13]. Plaintiff also argues the ALJ erred in rejecting his treating physicians' opinions that stated he was unable to work due to his mental impairments. [ECF Nos. 11 at 28-33, 13 at 9-11]. Because the RFC assessment is to be based on all the relevant evidence in the case record (20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)), and the undersigned recommends remand is warranted, the undersigned declines to address Plaintiff's additional allegations of error. III. Conclusion and Recommendation
Although neither party raises the issue, Plaintiff's counsel represented to the ALJ that the case essentially involved an SSI claim with a clear established onset date in 2016, when Dr. Grace evaluated Plaintiff. Tr. at 56-57, 90-91. However, it does not appear that the alleged onset date of January 2, 1995, was formally amended, despite the limited evidence presented.
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. March 5, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).