Opinion
CIVIL ACTION NO. 9:19-1444-MGL-BM
05-13-2020
LINDA MORGAN, Plaintiff, v. ANDREW SAUL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).
The record reflects that Plaintiff applied for Disability Insurance Benefits (DIB) on July 13, 2009, and in a determination issued March 24, 2011, Plaintiff was found disabled as of May 23, 2009 due to anxiety related disorders and affective/mood disorders. (R.p. 86). However, on November 17, 2014, Plaintiff was found to be no longer disabled as of November 1, 2014, with her period of disability being terminated at the close of the last day of January 2015. (R.pp. 87-88). That determination was upheld upon reconsideration, following which Plaintiff requested a hearing before an Administrative Law Judge (ALJ). A hearing was held by the ALJ on May 14, 2018 (R.pp. 39-62), following which the ALJ upheld the finding that Plaintiff's disability had ended on November 1, 2014, and that Plaintiff had not been disabled since that date. (R.pp. 18-28). The Appeals Council thereafter denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-9).
Plaintiff then filed this action in the United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for further proceedings. The Commissioner contends that the decision that Plaintiff was no longer disabled after November 1, 2014 for purposes of DIB is supported by substantial evidence, and that Plaintiff was properly found not to be disabled after that time.
Scope of review
Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:
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 refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].
The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
Plaintiff, who was thirty-nine years old when she was initially found to be disabled beginning May 23, 2009, and forty-five years old when it was determined that her disability ceased as of November 1, 2014, has a high school education and past relevant work experience as a department manager. (R.pp. 18, 26-27, 251). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.
After a review of the evidence and testimony in this case, the ALJ determined that at the time of the previous decision on Plaintiff's claim (March 24, 2011) Plaintiff suffered from anxiety and depression with PTSD that limited Plaintiff's residual functional capacity (RFC) from performing the demands of even unskilled work activity, but that as of November 1, 2014 the medical evidence established that she had medical improvement in her condition such that she could perform the demands of unskilled work activity; specifically, unskilled, simple, repetitive and routine tasks but could not perform customer service work. (R.pp. 19-22). The ALJ further found that since November 1, 2014, although Plaintiff had the severe impairments of anxiety; depression; PTSD; degenerative joint disease of the left knee, status post total knee replacement; disseminated idiopathic skeletal hyperostisis; morbid obesity; impingement of the right shoulder, status post repair; and right foot hallux valgus, she nevertheless retained the RFC since that date to perform light work limited to unskilled, simple, repetitive and routine tasks; can perform no climbing of ladders, ropes, or scaffolds; no work around unprotected heights or dangerous machinery; she cannot perform customer service work; she cannot be exposed to loud noises in the work place; she requires a stand/sit option, with standing and sitting for thirty to forty-five minutes at a time before changing positions; she is limited to lifting and carrying objects weighing twenty pounds or less; no overhead manual labor with the exception of the lifting limit; and no stooping, crouching, crawl and squatting. (R.pp. 22-23). Although the ALJ further found that Plaintiff was unable to perform her past relevant work with these limitations, she was nonetheless able to perform other jobs existing in the national economy (specifically, vending machine stocker, DOT No. 319.464.014; shipping and receiving weigher, DOT No. 222.387-074; and stock checker, DOT No. 299.667-014) with her limitations, and was therefore no longer disabled as of November 1, 2014. (R.pp. 27-28).
Post Traumatic Stress Disorder.
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
Plaintiff asserts that in reaching this decision, the ALJ erred by finding that Plaintiff had medical improvement as of November 1, 2014 such that she was no longer disabled (arguing that the ALJ's decision was "arbitrary and unsupported"), and that the ALJ also erred in his evaluation of the opinions of Plaintiff's treating specialists (Dr. Keith and Dr. Allan). After a careful review and consideration of the evidence and arguments presented, and for the reasons set forth hereinbelow, the undersigned is constrained to agree with the Plaintiff that the ALJ committed reversible error in his evaluation of whether Plaintiff had medical improvement in her condition such that she was no longer disabled as of November 1, 2014, thereby requiring a reversal with remand of this case.
When determining whether a claimant who was previously found to be disabled continues to be disabled under applicable regulations, the ALJ is required to apply an eight-step sequential evaluation process. See 20 C.F.R. § 404.1594 (2012). This eight-step process provides: (1) if the claimant is currently engaging in substantial gainful activity, disability ends; (2) if the claimant has an impairment or combination of impairments that meets or medically equals a listing, disability continues; (3) if the claimant does not meet or equal a listing, the ALJ will determine whether "medical improvement" has occurred; (4) if medical improvement has occurred, the ALJ will determine whether the improvement is related to the claimant's ability to work; (5) if there is no medical improvement—or the medical improvement is found to be unrelated to the claimant's ability to work—disability continues; (6) if there has been medical improvement related to the claimant's ability to work, the ALJ will determine whether all of the current impairments, in combination, are "severe," and if not, disability ends; (7) if the claimant's impairments are considered "severe," the ALJ will determine the claimant's RFC, and if the claimant is able to perform past relevant work, disability ends; (8) if the claimant remains unable to perform past relevant work, the ALJ will determine whether the claimant can perform other work that exists in the national economy given his or her residual functional capacity, age, education, and past relevant work experience. See 20 C.F.R. § 404.1594(f)(1)-(8). A review of the decision confirms that in deciding that Plaintiff had medical improvement as of November 1, 2014 (after a closed period of disability from May 23, 2009 through October 31, 2014) such that Plaintiff was no longer entitled to benefits after that date, the ALJ followed this eight-step evaluation process. See (R.pp. 20-28). Plaintiff argues, however, that the ALJ improperly evaluated the evidence in finding that she had medical improvement after October 31, 2014 sufficient to cease her period of disability, and the undersigned agrees.
Medical improvement is defined as "any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled ..." 20 C.F.R. § 404.1594(b)(1). Such a finding must be based on changes (improvement) "in the symptoms, signs and/or laboratory findings associated with the impairments." Id. To determine whether medical improvement has occurred, the severity of the claimant's current medical condition is compared to the severity of the condition "at the time of the most recent favorable medical decision that [the claimant was] disabled." Id. The Commissioner bears the initial burden of establishing medical improvement. See Lively v. Bowen, 858 F.2d 177, 181 n. 2 (4th Cir. 1988); Pack v. Heckler, 740 F.2d 292, 294 (4th Cir.1984). Here, the previous decision was that Plaintiff's anxiety and depression with PTSD were sufficiently severe to limit the Plaintiff from performing the demands of even unskilled work activity. (R.p. 19-20). In finding that Plaintiff's condition had improved as of November 1, 2014 such that (as of that date) she could perform the demands of unskilled work activity, the ALJ relied on the findings of consultative physician James Ruffing (who evaluated the Plaintiff on August 6, 2014), and on the opinions of state agency psychologists Xanthia Harkness and Lisa Clausen. (R.p. 25). However, these medical records, and indeed the ALJ's own findings as to the extent of Plaintiff's mental limitations, fail to satisfy the Commissioner's burden of establishing medical improvement in her mental condition such that "she could [now] perform the demands of unskilled work activity". (R.p. 21).
Dr. Harkness found in her medical review of Plaintiff's records on September 30, 2014 that Plaintiff had the ability to carry out simple instructions and perform simple tasks without special supervision for "two hour periods". However, the ALJ included no such limitation in his RFC. (R.pp. 23, 663). As noted by the ALJ in his decision, Dr. Clausen (who reviewed Plaintiff's medical records on August 25, 2015) agreed with Dr. Harkness' restrictions. (R.p. 25). Consistent with this limitation, both Dr. Harkness and Dr. Clausen also found that Plaintiff was moderately limited in her ability to maintain concentration, persistence or pace. (R.pp. 657, 661, 934). Similarly, Dr. Ruffing (whose findings the ALJ accepted) concluded following his consultive examination of the Plaintiff on August 6, 2014 that Plaintiff "may have difficulty attending fully" to the demands of concentration, persistence and pace during periods of "heightened emotionality". (R.p. 644). Indeed, the ALJ himself, in his decision, found that Plaintiff was moderately limited in her ability to maintain, concentration, persistence or pace. (R.pp. 20-21). However, the ALJ then failed to properly apply the correct standard and applicable law in deciding that these medical records (as well as his own CPP finding) showed an improvement in Plaintiff's anxiety and depression with PTSD such that by November 1, 2014 she could perform the demands of full time unskilled work when she had previously been unable to do so.
As noted, the ALJ concluded that as of November 1, 2014 Plaintiff could "perform the demands of unskilled work activity" (R.p. 21) consisting of "simple, repetitive and routine tasks" that did not involve customer service work. (R.pp. 22-23). However, in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit held that "an ALJ does not account 'for a claimant's [moderate] limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio, 780 F.3d at 638, quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). Rather, that restriction only addresses the complexity of the work, not a Plaintiff's ability to stay "on task", as required by Mascio. See Mascio, 780 F.3d at 638; Salmon v. Colvin, No. 12-1209, 2015 WL 1526020, at *3 (M.D.N.C. Apr. 2, 2015) [noting that "the Fourth Circuit made clear that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine, tasks or unskilled work."] (citations and quotations omitted); see also Sanders v. Berryhill, No. 16-3883, 2018 WL 878964, at *10 n. 10 (D.S.C. Jan. 29, 2018)[Finding ALJ's hypothetical to VE that only limited the claimant to simple and routine tasks in low stress environment did not adequately account for claimant's moderate CCP limitations], report and recommendation adopted, No. 16-3883, 2018 WL 835228 (D.S.C. Feb. 13, 2018).
In her brief, Plaintiff cites to the additional opinions of both Dr. Richmond Allan and Dr. John Keith (both of whose opinions the ALJ assigned little weight) that Plaintiff would have problems with attention and concentration sufficient to frequently interrupt tasks during the working portion of the work day (R.pp. 1740, 2013), which would seem to support the findings of Drs. Harkness, Clausen and Ruffing. However, the Commissioner does not address the issue of Plaintiff's ability to stay "on task" with her moderate CPP in its brief. Nor does the ALJ discuss anywhere in his decision whether or how Plaintiff's moderate limitation in CPP would restrict her ability to stay on task for an 8 hour work day, nor (critically), in finding that Plaintiff's mental condition had improved such that she was no longer disabled as of November 1, 2014, does he make any findings on this issue. See Mascio, 780 F.3d at 636 ["Remand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review."], citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013). Rather, the ALJ simply found that Plaintiff's mental impairment limited her to "unskilled, simple, repetitive and routine tasks". (R.p. 23). However, the ability to perform such work is not the same as having the ability to stay on task during a work day, which is the limitation that would account for a claimant's moderate impairment in concentration, persistence or pace. Mascio, 780 F.3d at 638; see also Dill v. Berryhill, No. 16-3949, 2018 WL 840103, at *2 (D.S.C. Jan. 26, 2018)[Limitation to simple, routine and repetitive tasks performed in a work environment free of fast-paced production requirements involving only simple work-related decisions with few if any workplace changes did not adequately account for claimant's moderate CPP limitation], report and recommendation adopted, No. 16-3949, 2018 WL 826854 (D.S.C. Feb. 12, 2018); cf. SSR 96-8p [Defining RFC as a claimant's ability to perform work for 8-hours a day, five days a week]. The importance of the ALJ to have made a finding on this issue is demonstrated not just by the 4th Circuit's holding in Mascio, but by the VE's testimony in this case. When the VE was specifically asked whether a person who was off task for a significant percentage of the work day would be able to perform the jobs identified, the VE answered that they would not. (R.p. 60). Therefore, a specific finding on the question of Plaintiff's ability to stay on task was critical. See also Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978) [An ability to work for only a few hours a day on an intermittent basis is not equivalent to an ability to engage in substantial gainful activity].
This case therefore stands in contrast to cases where the decision has been upheld because the claimant's ability to stay on task notwithstanding the claimant's mental limitations was specifically addressed. Cf. Falls v. Colvin, No. 14-195, 2015 WL 5797751, at * 7 (D.S.C. Sept. 29, 2015) [Noting that "[a]s opposed to the hypothetical in Mascio, which said nothing about the claimant's mental limitations, the ALJ's hypothetical in this case accounted for each of Plaintiff's mental limitations. The ALJ also accounted for Plaintiff's limitations in the area of concentration when determining Plaintiff's residual functional capacity. The ALJ noted Plaintiff's mental limitations but found that the Plaintiff could concentrate, persist and work at pace to do simple, routine, repetitive work at 1-2 step instructions for extended periods say 2-hour periods in an 8-hour day"]. Such a two hour period is exactly what Drs. Harkness and Clausen opined to in their opinions. However, as noted, the ALJ never made any finding with respect to Plaintiff's ability to stay on task for any specific time period, nor was any such limitation included in Plaintiff's RFC. Although it could be assumed that the ALJ believed that a two hour limitations period was not required, that is a finding that must be made by the ALJ. It would not be proper for this Court to itself make such a finding as a way to uphold the decision. Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have thinking."].
Similarly, the ALJ limiting Plaintiff's RFC to not performing any customer service work (R.p. 23) deals largely with workplace adaptation, rather than concentration, pace, or persistence. Cf. McPherson v. Colvin, No. 16-1469, 2016 WL 5404471 at * 8 (E.D.Pa. Sept. 28, 2016)[where the court rejected that moderate restrictions in concentration, persistence, and pace were accommodated by a hypothetical to a VE that only included: 1) the performance of routine, repetitive tasks; 2) a low stress environment (defined as no frequent independent decision making required and no frequent changes in the work setting); and 3) no public interaction and occasional interaction with coworkers and supervisors](citing to Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015)); Knight v. Commissioner, No. 15-1512, 2016 WL 4926072 (D.S.C. Sept. 16, 2016)[Finding that the ALJ's limiting the hypothetical to "unskilled work with no direct interaction with the public; only occasional team type interaction with coworkers; [who] should not be required to adapt to greater than simple, gradual changes in the workplace" did not account for the Plaintiff's moderate limitation in concentration, persistence, or pace].
Hence, as neither the ALJ's RFC assessment nor the ALJ's hypothetical question to the VE specifically address Plaintiff's ability to stay on task for a full 8-hour workday, the Court is left to guess how the ALJ accounted for this ability (or inability) despite finding that Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace. Carr v. Colvin, No. 15-685, 2016 WL 4662341, at *10 (D. Md. Sept. 7, 2016)[Finding that the ALJ's inclusion of a limitation in the assessment of Plaintiff's RFC and in the hypothetical questions to the VE to only occasional contact with supervisors, co-workers, and the public may account for Plaintiff's moderate difficulties in social functioning, but does not account for Plaintiff's moderate difficulties in maintaining concentration, persistence, or pace]; see Miller v. Colvin, No. 15-443, 2016 WL 3679292 at **4-5 (W.D.N.C. July 11, 2016) [Finding remand required where "it is not entirely clear how the evidence aligns with the necessary functions, which is a required showing."] (citing Mascio, 780 F.3d at 636; SSR 96-8p, 1996 WL 374184, at *7). As such, the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). "Remand thus is appropriate." Carr, 2016 WL 4662341, at *10.
The ALJ found that Plaintiff had moderate difficulties in interacting with others in this case, and accounted for this limitation by restricting her to the performance of no customer service work. (R.pp. 20, 23).
Of course, the ALJ may be able to find from the evidence that Plaintiff's CPP limitation would not effect her ability to stay on task at a job over the course of an 8 hour work day, or that she would be able to perform either the jobs identified by the VE at the hearing or other jobs, even with some defined limitation in her ability to stay on task, such that the medical records relied on by the ALJ in his decision to show medical improvement could possibly meet the Commissioner's burden of establishing medical improvement sufficient that Plaintiff's mental condition was no longer disabling. Lively, 858 F.2d at 181, n. 2; Pack, 740 F.2d at 294. However, it is incumbent on the ALJ to make such findings, and since the ALJ did not make that determination or finding in his decision, it would not be proper for this Court to now attempt to do so in the first instance. See Mascio, 780 F.3d at 638 [noting that the ALJ may be able to explain why a concentration, persistence, or pace limitation did not translate into a limitation in the RFC ("[f]or example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the [VE]"), but finding that remand was appropriate because the ALJ gave no explanation]; Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) ["The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court"]; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) [Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision]; Bray, 554 F.3d at 1225 ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have thinking."]. Nor, in light of Mascio, can this Court simply dismiss the ALJ's failure to properly address this issue as harmless error.
Therefore, the decision should be reversed and remanded for consideration of Plaintiff's RFC in compliance with Mascio. With respect to the remainder of Plaintiff's claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (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].
Conclusion
Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).
The parties are referred to the notice page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge May 13, 2020
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).