Opinion
Civil Action No. 0:18-cv-02023-JMC-JDA
05-30-2019
Priscilla Michelle Guyton, Plaintiff, v. Nancy A. Berryhill, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636. Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB") and supplemental security income ("SSI"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, "The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In February 2011, Plaintiff filed an application for disability insurance benefits ("DIB") and an application for supplemental security income ("SSI"), both alleging an onset of disability date of April 10, 2010. [R. 241-52.] The alleged onset date was later amended to June 2, 2011. [R. 12, 314.] The claims were denied initially and upon reconsideration. [R. 167-76; 180-85]. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and, on January 6, 2014, ALJ Walter C. Herin, Jr. conducted a de novo hearing on Plaintiff's claims. [R. 33-73.]
The hearing before the ALJ was first scheduled for June 17, 2013, but Plaintiff appeared without counsel and asked for time to obtain representation. [R. 74-108.] The ALJ granted a continuance and Plaintiff appeared with counsel at the hearing held on January 6, 2014.
The ALJ issued a decision on June 10, 2014, finding Plaintiff had not been under a disability within the meaning of the Social Security Act ("the Act") from June 2, 2011, the alleged onset of disability date, through the date of the decision. [R. 9-25.] At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through September 30, 2013, and had not engaged in substantial gainful activity since June 2, 2011, the alleged onset date. [R. 14, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of: discoid lupus erythematosus, arthralgias, borderline intellectual funciton/cognative disorder secondary to childhood meningitis, adjustment disorder secondary to general medical condition, with depressed mood, and anxiety. [R. 15, Finding 3.] The ALJ also found that Plaintiff had non-severe impairments of bilateral cataracts, status post harvesting, insomnia, and anemia. [Id.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 15, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found as follows:
[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) when she is afforded the option to sit or stand with a change of position every thirty minutes, with total standing and waling of approximately 2 of 8 hours, and sitting for at least 6 of 8 hours. The claimant can lift and carry ten pounds occasionally and less than ten pounds frequently. The claimant can perform simple, routine tasks that do not require on-going interaction with the general public, and will be most successful with positive supervision, which does not envision a sheltered or protected workshop. She can perform occasional stooping, balancing, crouching, kneeling and climbing of stairs and ramps. She cannot crawl or climb ladders, ropes and scaffolds. She can have no required exposure to unprotected heights, dangerous machinery, and direct sunlight. She can have no concentrated exposure to extremes of heat or cold.[R. 17, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a cleaner, hotel maid, book packer, or cleaner/table busser. [R. 24, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 24, Finding 10.] Accordingly, the ALJ concluded Plaintiff had not been under a disability, as defined in the Act, based on the applications for benefits filed February 16, 2011. [R. 25, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined. [R. 1-5.] Plaintiff filed an action for judicial review, and, on July 14, 2016, the Commissioner filed an Uncontested Motion for Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g). [R. 825-26.] On July 15, 2016, the Honorable R. Bryan Harwell, entered an Order remanding the case for further evaluation under Sentence Four. [R. 824.]
On January 31, 2017, Plaintiff appeared before the ALJ again for a hearing to address the issues identified by the Commissioner requiring further administrative evaluation. [R. 718-84.] The ALJ subsequently issued an unfavorable decision on March 15, 2017. [R. 687-717.]
At Step 1, the ALJ found Plaintiff met the insured status requirements of the Act through September 30, 2013, and had not engaged in substantial gainful activity since April 10, 2010, the alleged onset date. [R. 693, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had severe impairments of: systemic lupus erythematosus, rule out discoid lupus erythematosus; arthralgia; lumbar spine disorder with radiculopathy; borderline intellectual disorder; mood disorder; ADHD; adjustment disorder with depression; reading disorder; and written expression disorder. [R. 693, Finding 3.] The ALJ also found that Plaintiff had non-severe impairments of anemia, Vitamin D deficiency, GERD, chronic laryngitis, and bilateral cataracts, status post extractions. [Id.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 693, Finding 4.] The ALJ expressly considered the mental health listings in his analysis. [Id.]
It is unclear why the ALJ used the original alleged onset of disability date of April 10, 2010, rather than the amended alleged onset of disability date of June 2, 2011, despite having referenced the amended date in his decision. [See R. 691.]
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ assessed Plaintiff's RFC and found as follows:
[T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with the following additional limitations: she can maintain concentration, persistence, or pace to perform simple, routine, repetitive tasks for at least two hours at a time without special supervision; with no reading or writing above second grade level; no required ongoing interaction with the general public; lifting or carrying of 10 pounds occasionally and less than 10 pounds frequently; standing and/or walking in combination up to a total of 2 hours in an 8 hour workday; occasional stooping, balancing, crouching, kneeling, or climbing stairs or ramps; no crawling or climbing ladders, ropes, or scaffolds; no exposure to hazards such as unprotected heights or dangerous machinery; and no concentrated exposure to temperature extremes or direct sunlight.[R. 697, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a bindery worker. [R. 705, Finding 6.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a VE, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 706, Finding 10.] Accordingly, the ALJ concluded that Plaintiff had not been under a disability, as defined by the Act, from April 10, 2010, through the date of the decision. [R. 706, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, but the Appeals Council declined review. [R. 676-81.] Plaintiff filed an action for judicial review and on July 24, 2018. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends that the ALJ committed error and that the decision should therefore be remanded for additional administrative proceedings. [Doc. 11.] Specifically, Plaintiff argues there is a clear conflict between the Dictionary of Occupational Titles ("DOT") and the VE testimony because the "4th Circuit has ruled that if a claimant is limited to simple, routine, repetitive tasks, then the DOT says he cannot perform a GED 2 job." [Id. at 29 (citing Henderson v. Colvin, No. 15-1437, 2016 WL 1320779 at *4 (4th Cir. Apr. 5, 2016)).] Plaintiff contends the ALJ's failure to elicit an explanation regarding this particular conflict warrants remand for further evaluation. [Id. at 31.] Additionally, the Plaintiff argues the ALJ erred by failing to conduct a listing analysis under Listings 14.02 or 14.06 with respect to Plaintiff's systemic lupus erythematosus. [Id. at 32-33.] Plaintiff contends the "ALJ did not address this evidence related to the applicable listings which requires remand for a proper analysis." [Id. at 35.]
The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence and therefore should be affirmed. [Doc. 12.] The Commissioner contends the "Plaintiff has failed to demonstrate that there is an 'apparent unresolved conflict' between the VE's 'testimony as to a limitation to simple, routine, unskilled work and the DOT's indication that the identified unskilled positions have a reasoning level of two.'" [Id. at 7 (citing Waddell v. Berryhill, No. 0:17-cv-3030-DCN-PJG, Doc. 15 at *8 (D.S.C. Dec. 10, 2018), Report and Recommendation adopted by Doc. 20 (Jan. 15, 2019).] The Commissioner further contends that the "ALJ's duty to evaluate a listing was only triggered where there was ample evidence in the record that the listing could be met." [Id. at 9 (emphasis in original).] In this case, however, the Commissioner argues the Plaintiff has "simply failed to demonstrate that she has an impairment or combination of impairments that meets or medically equal any listed impairment in the Listings of Impairments contained in the Commissioner's regulations, in particular either listing 14.02 or 14.06." [Id. at 8-9.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687 (S.D.W. Va. 1963)) ("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is 'substantial evidence.'").
Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)," not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision 'with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose." Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's residual functional capacity); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained "a gap in its reasoning" because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 ("The [Commissioner] and the claimant may produce further evidence on remand."). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
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). "Disability" is defined 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 a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a "need for efficiency" in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
"Substantial gainful activity" must be both substantial—involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)—and gainful—done for pay or profit, whether or not a profit is realized, id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575, 416.974-.975.
B. Severe Impairment
An impairment is "severe" if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1521, 416.921. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, "the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them"). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 ("As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments."). If the ALJ finds a combination of impairments to be severe, "the combined impact of the impairments shall be considered throughout the disability determination process." 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed In the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii), (d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work "reflect[s] the statute's focus on the functional capacity retained by the claimant." Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's residual functional capacity with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the residual functional capacity to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
Residual functional capacity is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the "grids"). Exclusive reliance on the "grids" is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a vocational expert to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 ("Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy."). The purpose of using a vocational expert is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, "it 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 claimant's impairments." Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, "the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." Id. (internal quotations and citations omitted).
III. Treating Physicians
If a treating physician's opinion on the nature and severity of a claimant's impairments is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence" in the record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician's opinion if it is unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless assign a weight to the medical opinion based on the 1) length of the treatment relationship and the frequency of examination; 2) nature and extent of the treatment relationship; 3) supportability of the opinion; 4) consistency of the opinion with the record a whole; 5) specialization of the physician; and 6) other factors which tend to support or contradict the opinion, 20 C.F.R. §§ 404.1527(c), 416.927(c). Similarly, where a treating physician has merely made conclusory statements, the ALJ may afford the opinion such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant's impairments. See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the treating physician's conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician's opinion is generally entitled to more weight than a consulting physician's opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983) (stating that treating physician's opinion must be accorded great weight because "it reflects an expert judgment based on a continuing observation of the patient's condition for a prolonged period of time"); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). An ALJ determination coming down on the side of a non-examining, non-treating physician's opinion can stand only if the medical testimony of examining and treating physicians goes both ways. Smith v. Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of the medical findings and other evidence that support a medical source's statement that a claimant is disabled. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of disability. Id.
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling ("SSR") 16-3p provides, "[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed. Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. § 404.1529(c)(1)-(c)(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed. Reg. at 49,463. First, "the ALJ must determine whether the claimant has produced medical evidence of a 'medically determinable impairment which could reasonably be expected to produce" the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see also SSR 16-3p, 82 Fed. Reg. at 49,463. Second, the ALJ must evaluate "the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently." SSR 16-3p, 82 Fed. Reg. at 49,464; see also 20 C.F.R. § 404.1528 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
Plaintiff contends that there is an apparent conflict between an RFC that limits Plaintiff to simple, routine work, and a finding that Plaintiff can perform work that has a GED reasoning code 2 which "indicates that the job requires the person to be able 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.'" [Doc. 11 at 29 (quoting the DOT). ] Plaintiff relies heavily on the Fourth Circuit's holding in Henderson v. Colvin to support this proposition. The Plaintiff argues that, "[w]here, as here, there is an apparent conflict between the DOT and the vocational testimony, the jobs identified by the VE are not acceptable to meet the Commissioner's burden." [Id. at 30.]
In response, the Commissioner argues that this case is distinguishable from Henderson v. Colvin, "especially when taking into account the highly restrictive additional pertinent limitations the ALJ included in the hypothetical question to the VE, in addition to limiting work to simple, routine, repetitive, and unskilled tasks, which the Commissioner identifies as follows:
• The ALJ ruled out any requirement for reading or writing above the second grade level;[Id. at 7 (citing R. 697, Finding 5, 778-80).]
• The ALJ ruled out any requirement for ongoing interaction with the general public;
• The ALJ required that task instructions must be verbal rather than written;
• The ALJ required that the work environment must be "low stress;"
• Specifically, the ALJ included a limitation that the individual must not be required to make complex decisions at the workstation;
• The ALJ also indicated that the individual must not be required to adapt to frequent changes at the workstation;
• The ALJ further specified that any such changes at the workstation must be infrequent;
• Additionally, the ALJ further required that any such changes at the workstation must be gradually introduced; and
• The ALJ ruled out a work environment in which the individual would be required to meet a rigid, inflexible production schedule such as production line work.
Resolving Conflicts Between VE Testimony and the DOT
There is a split among the courts in the Fourth Circuit regarding whether or not a finding by a VE that a person is limited to simple, routine work conflicts with also finding that person capable of work at the GED 2 or 3 level. Furthermore, courts in this District have repeatedly remanded cases for further administrative proceedings where the ALJ failed to inquire of the vocational expert regarding whether a claimant, who was limited to simple, routine, repetitive work, was capable of performing certain jobs that the DOT classified as reasoning level 2 or 3. See, e.g., Christopherson v. Colvin, No. 6:15-cv-4725-JMC, 2016 WL 7223283 (D.S.C. Nov. 18, 2016), Report and Recommendation adopted by 2016 WL 7212785 (D.S.C. Dec. 13, 2016); Shivers v. Colvin, No. 6:12-cv-3381-SB, 2014 WL 1315183, at *19-20 (D.S.C. Mar. 18, 2014); Graham-Willis v. Colvin, No. 1:12-cv-2489-JMC, 2013 WL 6840465, at *6-8 (D.S.C. Dec. 27, 2013); Martin v. Astrue, No. 6:11-cv-1572-TMC-KFM, 2012 WL 4479280, at *15-16 (D.S.C. July 27, 2012), Report and Recommendation adopted by 2012 WL 4482943 (D.S.C. Sept. 27, 2012); Phillips v. Astrue, No. 3:11-cv-1085-MBS-JRM, 2013 WL 3945310, at *8-9 (D.S.C. Aug. 14, 2012), Report and Recommendation adopted by 2012 WL 3945313 (D.S.C. Sept. 7, 2012); Reid v. Astrue, No. 6:10-cv-2118-MBS-KFM, 2012 WL 667164, at *12-13 (D.S.C. Feb. 8, 2012), Report and Recommendation adopted by 2012 WL 663482 (D.S.C. Feb. 29, 2012); Tadlock v. Astrue, No. 8:06-cv-3610-RBH, 2008 W L 628591, at *10 (D.S.C. Mar. 4, 2008). As one court in this District has recently explained, "[w]ithout published Fourth Circuit authority directly on point regarding simple, routine, repetitive tasks, it has been the practice in this District since Henderson to remand based on an apparent conflict." Taylor v. Berryhill, No. 0:17-cv-3419-CMC, 2019 WL 1397187, at *2-3 (D.S.C. Mar. 28, 2019) ("If a limitation to simple, routine, repetitive tasks is akin to short, simple instructions, it appears there is an apparent conflict unresolved by the ALJ."); see also Williams v. Comm'r, No. 2:17-cv-864-DCC, 2018 WL 4501239, at *2-3 (D.S.C. Sept. 20, 2018) (finding "there is an apparent conflict between the limitation of Plaintiff to 'simple, routine, and repetitive tasks' and the GED reasoning levels of 2 and 3 in the three jobs identified at the ALJ hearing" and noting that this precise issue "is one that has troubled district courts within the Fourth Circuit").
See, e.g., Mullis v. Colvin, No. 1:11-cv-0022, 2014 WL 575722, at n.11 (M.D. N.C. Feb. 11, 2014), Report and Recommendation adopted by 2014 WL 2257188 (M.D. N.C. May 29, 2014) (collecting cases); Williams v. Astrue, Civil No. 3:11-cv-592-MOC-DSC, 2012 WL 4756066, *5 (W.D. N.C. Aug. 27, 2012) ("Because the ALJ limited Plaintiff to unskilled work, and the VE suggested jobs with a reasoning development level of three or lower, there was no conflict between the VE's testimony and the DOT.") Similarly, in Shivers v. Colvin, No. 6:12-cv-3381-SB, 2014 WL 1315183 (D.S.C. March 27, 2014), the Court considered whether an ALJ erred in relying upon an expert's testimony when there was an alleged apparent conflict between the Plaintiff's RFC and the general education development ("GED") levels of three jobs identified by the VE as work Plaintiff could perform. In that case, the Defendant argued that the Fourth Circuit Court of Appeals has not addressed the correlation between GED levels and a limitation to simple, routine, repetitive tasks. Id. at *3. In ruling for the Plaintiff, the Shivers Court noted that the District of South Carolina has previously found an existing conflict between a GED reasoning level of two and three and a limitation to simple, routine, repetitive tasks. Id. at *3. Additionally, in that case, the ALJ never discussed with the VE whether the Plaintiff's limitation to simple, routine and repetitive tasks was compatible with the identified jobs, thus, the Shivers Court found it would be pure speculation to find that the VE considered and resolved that issue.
In this case, the ALJ found Plaintiff was capable of sedentary work with mental limitations which include the following: "she can maintain concentration, persistence, or pace to perform simple, routine, repetitive tasks for at least two hours at a time without special supervision; with no reading or writing above second grade level; no required ongoing interaction with the general public." [R. 697.] The ALJ referenced the testimony of Dr. Gross, a clinical psychologist who provided his expert medical opinion regarding the claimant's alleged mental impairments during the January 2017 hearing. [R. 700, 758-774.] The ALJ noted that Dr. Gross opined that Plaintiff "would be able to perform simple, routine, repetitive work with verbal instructions in a stable work environment with infrequent changes that were gradually introduced, and no required ongoing interaction with the general public." [Id. at 700.] The ALJ also referenced the opinions of state agency psychological consultants from June and August 2011, that concluded Plaintiff
retained the mental residual functional capacity to understand, remember, and carry out simple instructions. She could attend to a simple tasks without special supervision; maintain her personal hygiene; and make simple work-related decisions. She would work best with limited contact with the general public. She would respond best to positive supervision. She could recognize and avoid normal workplace hazards, and use public transportation.[R. 702.] State agency psychological consultants also provided opinions in March and June 2016 indicating that Plaintiff
retained the mental residual functional capacity to perform simple tasks for at least two hour time periods. She would be expected to occasionally miss a day of work secondary to her symptoms. She would be best suited for jobs which did not require continuous interaction with the general public. She was capable of simple, repetitive tasks without special supervision. She could attend work regularly and accept supervisory feedback.[Id.]
In a first hypothetical to the vocational expert, the ALJ presented the following mental limitations:
The Court is focused on the mental limitations as the Plaintiff does not challenge the ALJ's exertional limitations noted in the RFC. --------
Would be limited to performing simple, routine and repetitive tasks but has the capability to maintain concentration, persistence and pace on such tasks for at lease two hours at a time without special supervision.[R. 777.] In response, the VE identified a number of medium exertional level, unskilled jobs at SVP 2, that Plaintiff could perform. [R. 777-78.]
In a second hypothetical, the ALJ added the following mental limitations to the first hypothetical:
Again is limited to simple, routine and repetitive tasks. But has the ability to maintain concentration, persistence and pace on such simple, routine and repetitive tasks for at least two hours at a time without special supervision. Should not require reading or writing above the second grade level. Therefore, I would recommend, or would include that directions and instructions be given verbally instead of in writing. No required ongoing interaction with the general public.[R. 778.] In response, the VE identified a number of light exertional level, unskilled jobs at SVP 2 that Plaintiff could perform. [R. 779.]
In a third hypothetical, the ALJ further included the following mental limitations to the second hypothetical:
Again is limited to simple, routine and repetitive tasks, . . . but has the ability to maintain concentration, persistence and pace in order to perform such simple, routine and repetitive tasks for at least two hours at a time without special supervision. No reading or writing should be required above the second grade level. Verbal instructions rather than written instructions should be provided for tasks. No required ongoing interaction with the general public, in a low stress environment. And by low stress environment, I will define that as follows. Not required to make complex decisions at the workstation. Not required to adapt to frequent changes at the workstation. In fact, any changes should not only be infrequent, they should also be gradually introduced. And not required to meet a rigid, inflexible production schedule such as production line work.[R. 779-80.] In response, the VE identified a number of sedentary, unskilled jobs, at SVP 2, that Plaintiff could perform such as work as a machine tender (DOT #731.685-014- R2, M1, L1) or an assembler (DOT #739.684-094-R2, M1, L1). [R. 780-81.] After considering the medical evidence, as well as the VE's testimony, the ALJ limited Plaintiff to sedentary work adopting the limitations of the third hypothetical presented to the VE. [R. 697.]
Plaintiff challenges the ALJ's conclusion citing this Courts prior rulings and the Fourth Circuit's holding in Henderson v. Colvin, suggesting that there is a clear conflict between the DOT and the VE testimony because the jobs identified have a GED reasoning level of 2 and Plaintiff is limited to simple, routine work. [Doc. 11 at 29.]
Specific Vocational Preparation ("SVP") is defined by the DOT as "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." DOT, App. C, 1991 WL 688702. General Educational Development ("GED") "embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance." Id. The GED Scale is composed of three divisions: Reasoning Development (R), Mathematical Development (M), and Language Development (L). Id. The DOT provides the following with respect to a GED level of 2 for Reasoning Development:
Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.Id.
Upon review, the Court notes that, when questioning the VE, the ALJ failed to ask the VE about conflicts between his testimony and the DOT, and failed to ask the VE to address whether performing simple, routine work was consistent with work requiring a reasoning level of 2 in this instance. [R. 775-783.] The Court notes that "the VE's failure to identify the alleged conflict between the DOT and the VE's testimony did not absolve the ALJ of his independent duty to consult the DOT and to determine whether the VE's testimony was consistent with its descriptions of the identified jobs." Pearson v. Comm'r of Soc. Sec., 1:16-cv-2726-PMD-SVH, 2017 WL 1378197 at *12 (D.S.C. March 29, 2017) (citing Pearson v. Colvin, 810 F.3d 204, 208-10 (4th Cir. 2015); SSR 00-4p).
In Piner v. Berryhill, No. 1:17-cv-317-TMC-SVH, 2017 WL 4712084, *14 (D.S.C. Sept. 28, 2017), this Court explained that "[a] closer examination of the GED reasoning levels" supported "the existence of an apparent conflict" between GED reasoning level two and a restriction to simple, routine tasks. The Court explained as follows:
The DOT specifies that jobs with a GED reasoning level of one require workers 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." DOT, 1991 WL 688702 (2016). Jobs with a GED reasoning level of two require workers 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." Id.Id. Pertinent to the instant case, the Court in Piner found that the restriction to simple, routine tasks was more akin to GED reasoning level one than two "because the abilities to perform simple tasks and to make simple work-related decisions in the RFC assessment are similar to the provision for applying commonsense understanding to carry out simple instructions at GED reasoning level one." Id. In addition, the "need for routine tasks" is "consistent with the provision for standardized situations at GED reasoning level one." Id. The Court further noted that "[i]n contrast, the DOT's descriptions of GED reasoning level [ ] two" suggests the "jobs require more detail and variables than the RFC assessment describes." Id.
In this case, the VE found that Plaintiff could perform the identified jobs based on a hypothetical with the following limitations: no reading or writing should be required above the second grade level; verbal instructions rather than written instructions should be provided for tasks; no required ongoing interaction with the general public, in a low stress environment meaning not being required to make complex decisions at the workstation; not being required to adapt to frequent changes at the workstation with any changes being infrequent and gradually introduced; no requirement to meet a rigid, inflexible production schedule such as production line work. [R. 779-80.] And, while the VE testified that a person with Plaintiff's work experience and limitations could do work at the SVP 2 level, there is no discussion as to her ability to meet the requirements of the GED 2. The limitations included in the hypothetical actually appear more in line with the reasoning level associated with GED 1. As stated above, the DOT specifies that jobs with a GED reasoning level of 1 require workers 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." DOT, 1991 WL 688702 (2016) (emphasis added). The ALJ clearly limited Plaintiff to jobs with occasional or no variables. It would be speculation for the Court to assume the vocational expert realized the apparent conflict between jobs at GED level 2 and the need to have a job with occasional or no variables.
In light of the above, the undersigned rejects the Commissioner's argument that no conflict exists between the restrictions in the RFC assessment and the DOT. In light of the foregoing, the undersigned finds that the ALJ erred in relying on the VE's identification of the jobs to meet the Commissioner's burden at step five without having resolved the conflict between simple, routine tasks, Plaintiff's additional mental limitations, and the DOT's indication that the identified jobs had a GED reasoning level of two. Accordingly, this Court finds it prudent to remand this case back to the Commissioner to obtain testimony from the VE with respect to any conflicts with Plaintiff's limitation to simple, routine work and the identified jobs.
Remaining Allegations of Error
On remand, the ALJ will be able to reconsider and explain his consideration of any conflicts between the DOT and the VE's testimony. Harris v. Asture, No. 9:09-cv-0028-HFF, 2009 WL 5125215, *4 (D.S.C. 2009) (citing Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-764 (W.D. Va. 2002) (explaining that, on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo)). All of Plaintiff's remaining allegations of error should likewise be address by the ALJ on remand.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge May 30, 2019
Greenville, South Carolina