Opinion
CIVIL ACTION NO. 9:18-1271-TMC-BM
04-23-2019
BRIAN ROOSEVELT TEAMER, Plaintiff, v. NANCY A. BERRYHILL, 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 he 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.).
Plaintiff applied for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on March 4, 2015(protective filing date), alleging disability beginning March 25, 2011 due to neuropathy and nerve damage in his feet and hands; arthritis in his hips, hands, shoulders and back; vision problems; diabetes; high blood pressure; depression; and anxiety. (R.pp. 241, 243, 269). Plaintiff's claims were denied both initially and upon reconsideration. A hearing before an Administrative Law Judge (ALJ) was then held on March 10, 2017, at which Plaintiff's disability onset date was amended to May 27, 2016. (R.pp. 33-72, 263). The ALJ thereafter denied Plaintiff's claims in a decision dated August 3, 2017. (R.pp. 15-27). The Appeals Council 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. 1-3).
Although the definition of disability is the same under both DIB and SSI; Emberlin v. Astrue, No. 06-4136, 2008 WL 565185, at * 1 n. 3 (D.S.D. Feb. 29, 2008); "[a]n applicant who cannot establish that she [or he] was disabled during the insured period for DIB may still receive SSI benefits if she [or he] can establish that she [or he] is disabled and has limited means." Sienkiewicz v. Barnhart, No. 04-1542, 2005 WL 83841, at ** 3 (7th Cir. Jan. 6, 2005). See also Splude v. Apfel, 165 F.3d 85, 87 (1st Cir. 1999)[Discussing the difference between DIB and SSI benefits].
Plaintiff then filed this action in 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 payment of benefits, or for further consideration of his claims. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.
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, 98 2-983 (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)[Nothing 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 forty-five (45) years old on his amended alleged disability onset date, has a high school education and past relevant work experience as a delivery truck driver. (R.pp. 39, 62-65). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his 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 the case the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of diabetes with peripheral neuropathy, obesity, bilateral hip degenerative joint disease, an affective disorder, and anxiety (R.p. 17), he nevertheless retained the residual functional capacity (RFC) for light work, with additional limitations that he can only occasionally climb ramps and stairs and push/pull with the lower extremities including use of foot controls; never climb ladders, ropes, or scaffolds; can frequently handle and finger; can occasionally balance, crawl, and crouch; can frequently stoop and kneel; and can have occasional exposure to vibration, but no exposure to hazards. The ALJ additionally found that Plaintiff could perform simple, routine, and repetitive tasks; and that the time he would be required to be off task could be accommodated by normal breaks. Plaintiff was also limited to only occasional interaction with the public. (R.p. 20). At step four, the ALJ found that Plaintiff was unable to perform his past relevant work with these limitations. (R.p. 26). However, the ALJ obtained testimony from a vocational expert (VE) and found at step five that Plaintiff could perform other representative occupations with these limitations, such as production inspector (DOT # 222.687-042), bottle line attendant (DOT # 920.687-042), and machine tender (DOT # 920.685-086), and was therefore not entitled to disability benefits. (R.p. 27).
An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See 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 the ALJ erred in reaching his decision because he failed to account for Plaintiff's time off task; failed to weigh the prior administrative hearing decision; and failed to properly apply the treating physician rule. After careful review and consideration of the arguments presented, and for the reasons set forth hereinbelow, the undersigned is constrained to agree with Plaintiff that the ALJ committed reversible error by failing to properly evaluate Plaintiff's RFC because he failed to properly account for Plaintiff's limitations in his ability to maintain concentration, persistence, and pace in compliance with the Fourth Circuit's decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), thereby requiring a reversal with remand of this case.
Plaintiff had previously applied for DIB on July 26, 2012. That claim was denied by an ALJ in a decision issued February 4, 2015. (R.pp. 73-93).
RFC is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. Here, the ALJ found that Plaintiff was moderately limited in his ability to maintain concentration, persistence or pace (R.p. 19), but then failed to properly account for this limitation in his RFC findings as required by SSR 96-8p. The Commissioner contends that the ALJ did fully address Plaintiff's moderate concentration, persistence, or pace limitation by restricting Plaintiff to simple, routine, and repetitive tasks and by finding that any time Plaintiff would need to be off task could be accommodated by normal breaks. See Defendant's Brief, at pp. 12-13. However, that finding is not sufficient to address Plaintiff's limitation in CPP under Mascio. Cf. Washington v. Commissioner, No. 17-757, 2018 WL 4203674, at * 3 (D.S.C. Sept. 4, 2018) [ALJ finding that time off task could be accommodated by normal breaks was not sufficient to account for moderate limitation in CPP].
At Step Three of the sequential evaluation process, the ALJ wrote that:
With regard to concentration, persistence, or pace, the [Plaintiff] has moderate limitation. The [Plaintiff] reported that he could pay attention for fifteen minutes at a time and has difficulty completing tasks (Ex B5E). Dr. Shealy noted that the [Plaintiff] exhibited poor attention and concentration (Ex. B2F). However, the [Plaintiff] was oriented to time, person, place, and situation (Ex. B2F). Dr. Roger Shealy noted that the [Plaintiff] had an appropriate thought content (Ex. B2F).(R.p. 19). Thereafter, in his RFC determination, the ALJ found that Plaintiff had the RFC to "perform simple, routine, and repetitive tasks and that his time off task can be accommodated by normal breaks. (R.p. 20). The ALJ further stated that he had "provided limitations in the residual functional capacity assessment including being limited to simple, routine and repetitive tasks and occasional interaction with the public to account for the [Plaintiff's] mental impairment." (R.p. 24). However, although that was apparently the ALJ's intent, the Fourth Circuit held in Mascio 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 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 CPP limitations], report and recommendation adopted, No. 16-3883, 2018 WL 835228 (D.S.C. Feb. 13, 2018); 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).
In Mascio the Fourth Circuit held that the ability to perform simple work is not the same as having the ability to stay on task during a workday, which is the limitation that would account for a claimant's impairment in concentration, persistence or pace. Mascio, 780 F.3d 638. However, the ALJ's only reference to Plaintiff's ability to stay "on task" during the workday was when he stated that "his off task time can be accommodated by normal breaks". (R.p. 20). That finding does not adequately address Plaintiff's ability to stay "on task". In his opinion, the ALJ gave great weight to state agency medical psychologist Dr. Larry Clanton's opinion that Plaintiff could carry out short and simple instructions and maintain concentration and attention for periods of at least two hours at a time. (R.pp. 23, 106). However, no such limitation was provided in the hypothetical to the VE, although the VE did testify that if Plaintiff would be off task 20 percent of the time (in addition to normal breaks), he would be disabled. (R.pp. 68-69). 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). Unfortunately, under the applicable caselaw the ALJ's mere limitation of the Plaintiff to normal breaks did not properly account for Plaintiff's ability to stay on task in light of his moderate limitation in CPP. Simeri v. Berryhill, No. 17-699, 2018 WL 4959739 at * 3 (N.D. Ind. Oct. 15, 2018)["The Commissioner attempts to defend the ALJ's decision by noting the ALJ also stated that [Plaintiff's] 'time off task could be accommodated by normal breaks.' [ ] That is not a limitation, but a decision not to impose a limitation."]; see also Washington, 2018 WL 4203674, at * 3.
In finding that Plaintiff had a moderate limitation in CPP, the ALJ noted that Plaintiff testified that he could only pay attention for fifteen minutes at a time and has difficulty completing tasks. The ALJ also observed that Dr. Shealy noted that Plaintiff exhibited poor attention and concentration, but that the Plaintiff was oriented to time, person, place, and situation, and had appropriate thought content. (R.p. 19). However, this discussion along with the ALJ's discussion of Dr. Clanton's opinion fails to explain how Plaintiff would be able to perform tasks (and stay on task) at the required pace throughout an 8-hour workday. See also Rushton v. Berryhill, No. 17-840, 2018 WL 4103336, at * 4 (D.S.C. Aug. 29, 2018) [Ability to perform routine tasks for two hour blocks of time with normal rest breaks not sufficient to account for moderate limitation in CPP); Frederica D. v. Commissioner, No. 17-3035, 2018 WL 5620692, at * 3 (D.Md. Oct. 30, 2018) ["The ALJ's finding that time off-task could be accommodated by normal breaks does not adequately account for [Plaintiff's] ability to concentrate and stay on task"] (internal quotations omitted); Lopez v. Berryhill, No. 17-2315, 2018 WL 4908276, at * 2-3 (D.Md. Oct. 10, 2018) [Same]. 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)).
Similarly, the ALJ limiting Plaintiff's RFC to no more than occasional contact with the general public (R.p. 20) deals largely with workplace adaptation, rather than concentration, pace, or persistence. See 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 properly address Plaintiff's ability to stay on task for a full 8-hour workday in light of his moderate limitation in CPP, remand is required. 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); Perry v. Berryhill, No. 18-1076, 2019 WL 1092627 at * 2 (4th Cir. Mar. 8, 2019)[Finding that the ALJ had not made findings necessary bridge the evidence between plaintiff's moderation limitations in CPP and his RFC]; cf. Lopez, 2018 WL 4908276, at * 2 ["[T]he ALJ's finding that '[a]ny time off-task can be accommodated by normal breaks' [ ] does not adequately account for [Plaintiff's] ability to concentrate and stay on task."]; Frederica D., 2018 WL 5620692 at * 3 [Finding more restrictive RFC including, but not limited to, performing simple, routine, repetitive tasks, only occasional changes in the routine work setting, and that time off task during the work day can be accommodated by normal breaks, does not adequately account for Plaintiff's moderate difficulties in CPP]; Rushton, 2018 WL 4103336 [remanding case where ALJ found plaintiff had moderate limitations in CPP and only attempted to account for those limitations by finding plaintiff could "only perform simple, routine tasks for two hour blocks of time with normal rest breaks during an eight hour work day, and occasional interaction with public."]; Washington, 2018 WL 4203674 at **2-3 [Finding ALJ failed to adequately account for his finding that plaintiff was moderately limited in CPP by simply limiting the plaintiff to performing simple and routine tasks with simple work related decisions, and time off task could be accommodated with normal breaks].
Of course, the ALJ may be able to properly find from the evidence that Plaintiff's CPP limitation would not effect his ability to maintain a necessary pace for a full 8-hour workday or to perform the jobs listed. However, it is incumbent on the ALJ to do so, and since the ALJ did not make a proper determination or finding on this issue in his decision, it would not be proper for this Court to now 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]; 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 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."].
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 April 23, 2019
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).