Opinion
Civil Action No. 8:17-cv-01204-MGL-JDA
07-26-2018
Pamela Lanford, 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(b)(1)(B). 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 claims 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 June 2013, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of September 1, 2003. [R. 220-35.] At the hearing, the alleged onset date was amended to December 2, 2013. [R. 56.] The claims were denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 97-170, 175-80.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and on December 8, 2015, ALJ Julie Petri conducted a de novo hearing on Plaintiff's claims. [R. 54-92.]
The ALJ issued a decision on March 25, 2016, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R. 25-52.] At Step 1, the ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2017, and had not engaged in substantial gainful activity since December 2, 2013, the amended alleged onset date. [R. 30, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: diabetes mellitus, diabetic ketoacidosis, renal failure, congestive heart failure, sciatica, neuropathy, depression, anxiety, panic disorder with agoraphobia, and substance abuse. [R. 30, Finding 3.] The ALJ also noted Plaintiff had the following non-severe impairments: hypertension, gastroesophageal reflux disease (GERD), migraines, cellulitis, and others that pre-dated her alleged onset date. [R. 31.] At Step 3, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 32, 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 determined Plaintiff had the following residual functional capacity ("RFC"):
After careful consideration of the entire record, the undersigned finds that claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is unable to climb ladders, ropes or scaffolds. The claimant is able to occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. She is able to frequently handle, finger, and feel. The claimant must avoid concentrated exposure to hazards. Furthermore, the claimant is limited to simple, routine tasks and occasional interaction with the public.[R. 34-35, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was capable of performing her past relevant as a housekeeper and a cashier. [R. 43, Finding 6.] The ALJ also made an alternative finding that, considering Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert ("VE"), there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 44.] Thus, on that basis, the ALJ determined that Plaintiff had not been under a disability, as defined in the Act, from September 1, 2003, through the date of the decision. [R. 45, Finding 7.]
This date should be the amended onset date of December 2, 2013.
Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on May 9, 2017. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that the ALJ's decision is not supported by substantial evidence and should be remanded because the ALJ failed to properly evaluate the demands of Plaintiff's past relevant work. [Doc. 18 at 32-35.] Plaintiff also argues the Appeals Council failed to consider new and material evidence that affected the findings of the ALJ. [Id. at 36-37.]
The Commissioner, on the other hand, argues the ALJ followed the proper procedure for determining Plaintiff could perform her past relevant work. [Doc. 19 at 5-7.] The Commissioner also submits that the additional evidence submitted to the Appeals Council does not warrant a remand. [Id. at 7-9.]
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). 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). 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 actual pain, in the amount and degree, alleged by the claimant.'" Id. (quoting Craig, 76 F.3d at 594). Second, "if, and only if, the ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as a matter of fact, whether the claimant's underlying impairment actually causes her alleged pain." Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the "pain rule" applicable within the United States Court of Appeals for the Fourth Circuit, it is well established that "subjective complaints of pain and physical discomfort could give rise to a finding of total disability, even when those complaints [a]re not supported fully by objective observable signs." Coffman v. Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). 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. 20 C.F.R. §§ 404.1528, 416.928. Indeed, the Fourth Circuit has rejected a rule which would require the claimant to demonstrate objective evidence of the pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered the Commissioner to promulgate and distribute to all administrative law judges within the circuit a policy stating Fourth Circuit law on the subject of pain as a disabling condition, Hyatt v. Sullivan, 899 F.2d 329, 336-37 (4th Cir. 1990). The Commissioner thereafter issued the following "Policy Interpretation Ruling":
This Ruling supersedes, only in states within the Fourth Circuit (North Carolina, South Carolina, Maryland, Virginia and West Virginia), Social Security Ruling (SSR) 88-13, Titles II and XVI: Evaluation of Pain and Other Symptoms:SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed. Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, "If an individual's statements about pain or other symptoms are not substantiated by the objective medical evidence, the adjudicator must consider all of the evidence in the case record, including any statements by the individual and other persons concerning the individual's symptoms." Id. at 34,485; see also 20 C.F.R. §§ 404.1529(c)(1)-(c)(2), 416.929(c)(1)-(c)(2) (outlining evaluation of pain).
...
FOURTH CIRCUIT STANDARD: Once an underlying physical or [m]ental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as clinical or laboratory diagnostic techniques, the adjudicator must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, subjective evidence of the pain, its intensity or degree can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not determinative.
VI. Credibility
The ALJ must make a credibility determination based upon all the evidence in the record. Where an ALJ decides not to credit a claimant's testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985). Although credibility determinations are generally left to the ALJ's discretion, such determinations should not be sustained if they are based on improper criteria. Breeden, 493 F.2d at 1010 ("We recognize that the administrative law judge has the unique advantage of having heard the testimony firsthand, and ordinarily we may not disturb credibility findings that are based on a witness's demeanor. But administrative findings based on oral testimony are not sacrosanct, and if it appears that credibility determinations are based on improper or irrational criteria they cannot be sustained.").
APPLICATION AND ANALYSIS
Past Relevant Work
Step 4 Finding
"Past relevant work" is defined by the regulations as "work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. § 404.1560(b)(1). A plaintiff is not disabled under the Act if she can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. SSR 82-62, 1982 WL 31386, at *3. In determining a claimant's ability to perform past relevant work, the Commissioner "may use the services of vocational experts or vocational specialists, or other resources, such as the 'Dictionary of Occupational Titles' [("DOT")] and its companion volumes and supplements." 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2).
The plaintiff bears the burden of establishing her inability to work within the meaning of the Act, 42 U.S.C. § 423(d)(5), and must make a prima facie showing of disability by showing she is unable to return to her past relevant work. Once a plaintiff establishes an inability to return to her past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the regional economy.
Plaintiff argues the ALJ failed to comply with SSR 82-62 in evaluating the specific requirements of her past relevant work as a housekeeper or cashier before finding that she retained the ability to perform those jobs. [Doc. 18 at 32.] Plaintiff contends that although "the burden of proof and production is on the claimant at the first four steps of the sequential evaluation, the ALJ is still charged with the duty of developing information as to the nature and functional requirements of a claimant's past work." [Id.] Plaintiff also argues that the ALJ's errors in finding Plaintiff capable of performing her past relevant work are not harmless based on the alterative Step 5 findings because the jobs identified by the VE require a reasoning level of 2 or 3, which conflicts with the ALJ's RFC limitation to "simple, routine tasks." [Id. at 35.] Upon review, the Court agrees with Plaintiff.
SSR 82-62 requires that an evaluation of Plaintiff's ability to do past relevant work carefully consider the interaction between the limiting effects of Plaintiff's impairments and the physical and mental demands of her past relevant work to determine whether she can still do that work. A determination regarding Plaintiff's ability to do past relevant work requires a careful appraisal of (1) the individual's statements as to which past work requirements can no longer be met and the reason(s) for her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally performed in the economy. SSR 82-62. In this case, the first finding is somewhat satisfied, but the second and third findings are almost nonexistent and/or are conclusory at best without evidentiary support.
The ALJ made a finding of fact as to Plaintiff's RFC [R. 34-43 ], and in comparing Plaintiff's RFC with the physical and mental demands of her past relevant work, the ALJ found that Plaintiff is capable of performing past relevant work as a cashier as generally but not specifically performed and as a housekeeper both as generally and specifically performed [R. 43]. Although the ALJ made this finding, he failed to discuss the demands of either job, as performed by Plaintiff or as generally performed, and, as such, the ALJ did not adequately comply with SSR 82-62 The Court recognizes that Plaintiff must carry the burden at Step 4 to show that she cannot perform her past relevant work; however, the Court cannot find that substantial evidence supports the ALJ's finding that Plaintiff is capable of performing her past relevant work where there is no discussion of that work.
Although the ALJ made this finding with respect to Plaintiff's ability to perform past relevant work as a cashier as generally but not specifically performed and as a housekeeper both as generally and specifically performed, in another portion of the decision, the ALJ found "that the claimant is able to perform [past relevant work] as actually performed." [R. 43.]
The Commissioner contends that Plaintiff does not challenge the ALJ's determination that she can work as a telemarketer. [Doc. 19 at 1.] However, the Court disagrees. Plaintiff argues that the ALJ failed to comply with SSR 82-62 in determining that she could return to past relevant work. [Doc. 15 at 10-11.] Nowhere in that argument does Plaintiff limit her assertion to past relevant work as a cashier.
Alternative Step 5 Findings
Here, the ALJ also made Step 5 findings, which, if supported by substantial evidence, could make the error at Step 4 harmless. See Carter v. Commissioner, No. JKB-14-2581, 2015 WL 2244138, at *2 (D. Md. May 12, 2015) ("Even assuming, without deciding, that the ALJ's step four analysis was deficient, the error would be harmless since the ALJ made alternative step five findings that [the plaintiff] could perform work as an addresser or order clerk."). Plaintiff contends the jobs identified by the VE—office helper (DOT 239.567-010), routing clerk (DOT 222.687-014), and shipping and receiving weigher (DOT 222.387-074)—each require a reasoning level of 2 or 3, which conflicts with the ALJ's RFC limitation to "simple, routine tasks." [Doc. 18 at 35.] Upon review of the Step 5 findings, the Court is unable to find that the ALJ's decision is supported by substantial evidence.
Social Security Ruling 00-4p provides that the ALJ "has an affirmative responsibility to ask [a VE] about any possible conflict between [his] evidence and . . . the DOT." SSR 00-4P, 2000 WL 1898704 (S.S.A. Dec. 4, 2000). Accordingly, the ALJ must ask the VE whether his or her testimony conflicts with the DOT, and if so, the ALJ must "obtain a reasonable explanation for the apparent conflict." Id. Further, the ALJ must resolve this conflict before relying on the VE's testimony and must explain the resolution of the conflict in his or her decision. Id. This Ruling, thus, puts the onus of identifying and obtaining a reasonable explanation of any conflicts between the VE's testimony and the DOT on the ALJ. Pearson v. Colvin, 810 F.3d 204, 208 (4th Cir. 2015).
Specifically, an ALJ must first ask the VE if the evidence provided conflicts with the information found in the DOT, and second, if the VE's evidence appears to conflict with the DOT, the ALJ's decision must contain a reasonable explanation for any apparent conflict. Id. An ALJ does not fulfill his affirmative duty found in the Ruling merely by asking the VE whether his or her testimony is consistent with the DOT. Id. This is true because an ALJ must investigate facts and develop the record at the hearing; the record is not fully developed if it contains an unresolved conflict between the VE's testimony and the DOT. Id. at 210. Likewise, an ALJ fails to fulfill his duty if he ignores an apparent conflict because the VE testified no conflict existed. Id.
Although district courts within the Fourth Circuit are split on the issue, see Weaver v. Colvin, No. 1:10CV582, 2013 WL 3989561, at *11 n.14 (M.D.N.C. Aug. 2, 2013) (collecting cases), both the Fourth Circuit and courts in this district have consistently remanded cases where the DOT and VE testimony are in conflict. In Shivers v. Colvin, No. 6:12-3381-SB, 2014 WL 1315183 (D.S.C. March 27, 2014), for example, the Court considered whether an ALJ erred in relying on VE 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 the plaintiff could perform. In that case, the Commissioner argued that the Fourth Circuit Court of Appeals had 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 had previously found an existing conflict between a GED reasoning level of two and three and a limitation to simple, routine, repetitive tasks. Id. 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. Id. In a more recent opinion, the District Court of South Carolina adopted the reasoning in the corresponding Report and Recommendation, finding that although the specific issue of whether a GED reasoning level of three is incompatible with the ability to perform "simple, routine, repetitive tasks" has not been considered by the Fourth Circuit Court of Appeals, other courts in this District have repeatedly remanded for further proceedings in similar situations. Christopherson v. Colvin, No. 6:15-4725-JMC, 2016 WL 7212785 (D.S.C. Dec. 13, 2016) (adopting Report and Recommendation found at 2016 WL 7223283); see also Phillips v. Astrue, No. 3:11-1085-MBS, 2013 WL 353604, at *2 (D.S.C. Jan. 29, 2013) (holding that the Commissioner's position that the plaintiff, who was limited to "simple, one to two step tasks," could perform jobs at GED reasoning levels of two or three was not substantially justified); Reid v. Astrue, No. 6:10-2118-MBS-KFM, 2012 WL 667164, at *12-13 (D.S.C. Feb. 8, 2012) (finding an apparent conflict between the plaintiff's ability to perform simple, routine, repetitive tasks and GED reasoning level of three), Report and Recommendation adopted by 2012 WL 663482 (Feb. 29, 2012); Martin v. Astrue, No. 6:11-1572-TMC-KFM, 2012 WL 4479280, at *15-16 (July 27, 2012) (finding an unexplained potential conflict between GED reasoning levels two and three and the plaintiff's ability to perform no more than unskilled tasks; short, simple instructions; minimal changes in routine; and limited interaction with the public, supervisors, and co-workers), Report and Recommendation adopted by 2012 WL 4482943 (D.S.C. Sept. 27, 2012); Tadlock v. Astrue, No. 8:06-3610-RBH-BHH, 2008 WL 628591, at *10 (D.S.C. Mar. 4, 2008) (remanding so that the VE could give testimony as to whether the plaintiff could perform the recommended jobs, which had a reasoning level of two, considering the plaintiff's inability to do more than simple and routine work).
The Fourth Circuit Court of Appeals, however, has held that the ALJ failed to meet his burden at Step 5 because the VE's testimony did not provide substantial evidence to show that a plaintiff's RFC would allow him to perform work that existed in significant numbers where there was an "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." Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016). --------
In this case, the ALJ limited Plaintiff to "simple, routine tasks" [R. 35], most likely due to Plaintiff's mental limitations, but not clearly explained by the ALJ. In response to a hypothetical containing this restriction and others in Plaintiff's RFC, the VE determined that Plaintiff could perform work as an office helper, routing clerk, and shipping and receiving weigher. [R. 85-86.] These jobs require a reasoning level of two or three.
Upon consideration of the above, the record including the hearing testimony, and the limitations of the RFC, this Court cannot determine whether substantial evidence exists to support the ALJ's decision to rely on the VE's testimony in determining that there were jobs available that Plaintiff could perform because an apparent conflict exists between the DOT and the VE's testimony. 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." See Pearson v. Commissioner, No. 1:16-2726-PMD-SVH, 2017 WL 1378197, at *12 (D.S.C. Mar. 29, 2017), Report and Recommendation adopted by 2017 WL 1364220 (April 14, 2017). Because no apparent conflict was identified, the ALJ did not resolve the conflict before relying on the VE's testimony nor did the ALJ explain the resolution of the conflict in the decision. Accordingly, this Court finds it prudent to remand this case to the Commissioner to make findings consistent with this decision.
Remaining Allegations of Error
Because the Court finds the ALJ's failure to comply with SSR 82-62 and failure to resolve a conflict between the VE's testimony and the DOT provide a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations of error. See Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). On remand, however, the ALJ should consider Plaintiff's remaining allegations of error.
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 July 26, 2018
Greenville, South Carolina