Opinion
C/A No.: 1:18-464-RMG-SVH
07-19-2019
Loretta J. Williams, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her claim for Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On or about July 3, 2012, Plaintiff filed an application for SSI in which she alleged her disability began on June 24, 2012. Tr. at 207-12. Her application was denied initially and upon reconsideration. Tr. at 96, 114-19, 123-25. On July 6, 2016, Plaintiff had a video hearing before Administrative Law Judge ("ALJ") Chris L. Gavras. Tr. at 35-81. (Hr'g Tr.). The ALJ issued an unfavorable decision on August 4, 2016, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 17-34. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-6. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on February 16, 2018. [ECF No. 1].
The ALJ's decision reflects Plaintiff applied on July 3, 2012, but her application reflects July 5, 2012. Compare Tr. at 20, with Tr. at 207.
B. Plaintiff's Background and Medical History
1. Background
Plaintiff was 46 years old at the time of the hearing. Tr. at 43. She completed the tenth grade. Id. She has no past relevant work ("PRW"). Tr. at 43-45. She alleges she has been unable to work since June 24, 2012. Tr. at 207.
2. Medical History
On June 21, 2011, magnetic resonance imaging ("MRI") of Plaintiff's lumbar spine reflected a shallow central protrusion at L5-S1, with mild bilateral facet arthropathy, and moderate bilateral facet arthropathy at L4-L5, with lumbar facet syndrome considered, but no stenosis. Tr. at 352.
On August 11, 2011, Plaintiff presented to the Pain Center of First Choice ("First Choice") with complaints of continued back pain. Tr. at 342-44. She complained of back pain of 10/10 that started suddenly, persisted for three years, increased, ached, burned, and throbbed, radiated to her legs, and was aggravated by exertion and prolonged standing or sitting. Id. Plaintiff also reported her husband had "hit her in the back of her neck several times with his fist," causing pain with stiffness and her friend has stolen some of her medication. Id. Plaintiff denied medication side effects. Id. Kerri Frey, P.A. ("P.A. Frey"), found Plaintiff was oriented and had a normal gait, strength, mood, and affect, but she was tender to palpation ("TTP") at 7 of 18 fibromyalgia points with tenderness, muscle spasms, and restricted range of motion ("ROM") in her back. Id. The attending physician assessed lumbosacral neuritis, lumbago, brachial neuritis, muscle spasm, and multiple-site joint pain, ordered a cervical spine MRI, administered injections in the lumbar spine, and prescribed Norco, Flexeril, and Lyrica. Id.
On September 9, 2011, Plaintiff presented to the emergency room at Lexington Medical Center ("LMC") after an alleged assault. Tr. at 320-23. Plaintiff reported despite having a restraining order against her ex-husband, who had attacked her the prior night, choking and hitting her multiple times. Tr. at 326. Plaintiff requested to be evaluated and noted nose pain, facial bruises, and neck soreness. Id. A maxillofacial skeleton computed tomography ("CT") scan reflected acute nasal bone fracture associated with some subcutaneous emphysema within the anterior face, but a brain CT scan reflected no significant abnormalities from the acute blunt trauma. Tr. at 320-21. A right-hand x-ray reflected no traumatic or pathologic changes and a neck x-ray was negative. Tr. at 322-23. Sally Herpst, M.D. ("Dr. Herpst"), found visible swelling and discoloration on Plaintiff's face and bruising on her neck over the left anterolateral, with TTP and posterior paracervical muscle soreness. Tr. at 326-27. Dr. Herpst administered medication for pain and assessed closed head, facial, and right-hand contusions, comminuted nasal fracture, and neck bruising. Tr. at 327.
On September 28, 2011, Plaintiff presented to Kershaw Health Urgent Care ("Urgent Care") with complaints of a severe cough. Tr. at 375-77. The attending physician diagnosed acute bronchitis, prescribed Promethazine with Codeine and Ciprofloxacin, instructed Plaintiff to stop smoking, and provided a work excuse for one day. Id.
On October 3, 2011, Robert E. Roberts, ("Dr. Roberts"), at First Choice, assessed lumbago and lumbosacral spondylosis and administered a lumbar facet medial branch block. Tr. at 341
On December 1, 2011, Plaintiff presented to First Choice with complaints of continued back pain. Tr. at 338-40. She reported back pain of 7/10 that increased, ached, burned, and throbbed, radiated to her legs, and was aggravated by exertion and prolonged standing or sitting. Id. Plaintiff reported her pain had not changed since her prior visit and the medication was "somewhat effective," without side effects, but an additional dose at night would be beneficial. Id. Plaintiff was able to perform her activities of daily living ("ADLs"), but complained of neck muscle spasms. Id. The attending physician noted Plaintiff did not demonstrate any aberrant behavior and found TTP at 7 of 18 fibromyalgia points with tenderness, muscle spasms, and restricted ROM in her back, but normal gait, strength, mood, and affect. Id. The attending physician assessed lumbosacral spondylosis, lumbago, brachial neuritis, muscle spasm, and multiple site joint pain, ordered a transcutaneous electrical nerve stimulation ("TENS") unit for Plaintiff's chronic pain, and prescribed Tizanidine, Lyrica, and Norco. Id.
On January 17, 2012, Plaintiff presented to Lexington County Mental Health Center ("LCMH"), reported that her children were taken away the prior year for missed school days and that she had anxiety and panic attacks, and requested assistance. Tr. at 310-14, 655-59. Plaintiff also reported a prior history of rape and abuse by her husband, uncle, and grandfather. Id. She stated she had previously been treated for an Adderall addiction, but had been clean for one year. Id. Plaintiff had overactive motor activity, expansive and tearful affect, anxious and depressed mood, circumstantial thought process with ideas of hopelessness, poor decision-making judgment, and inability to understand, but she was oriented to person, place, time, and situation, able to concentrate, and had intact memory and cooperative attitude, with average fund of knowledge. Id. Charles L. Griffin, LPC ("Mr. Griffin") assessed poly-substance abuse dependence and anxiety disorder and assigned a global assessment of functioning ("GAF") score of 58. Tr. at 313. Mr. Griffin noted Plaintiff did not "appear to have [a severe and persistent mental illness]," and he referred her "to other services to meet her needs." Tr. at 314.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 51-60 indicates "moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR.
Incomplete treatment notes reflect visits to First Choice on January 25, 2012, and February 1, 2012, for back pain and medication refills. Tr. at 335-37.
On February 15, 2012, Plaintiff presented to the emergency room at LMC with complaints of coughing, wheezing, and postnasal drainage for a few days. Tr. at 325. Theresa Prince, A.P.R.N. ("Nurse Prince"), assessed asthma exacerbation and acute bronchitis, prescribed an inhaler and medication, and advised Plaintiff to quit smoking. Id.
On March 1, 2012, Plaintiff presented to First Choice with complaints of continued back pain and increasing left knee pain. Tr. at 332-34. Plaintiff reported thoracic pain when she took a deep breath, and her back pain was 7/10, ached, burned, pierced, and radiated to her legs, and her symptoms were aggravated by exertion and prolonged standing or sitting. Id. The attending physician found normal gait, strength, mood, and affect, but tenderness, muscle spasms, and restricted ROM in her back. Tr. at 333. The attending physician assessed brachial and lumbosacral neuritis, lumbosacral spondylosis, thoracic spine pain, and lumbago, prescribed Norco, Flexeril, and Lyrica, and ordered a knee MRI. Tr. at 334. Plaintiff tested positive for Barbiturates, Marijuana, and Oxycodone. Id.
On April 5, 2012, Plaintiff presented to LMC with complaints of right knee pain for one week after a fall. Tr. at 440-51. Joel Waldrop, M.D. ("Dr. Waldrop"), found Plaintiff's right knee was tender, assessed knee pain, ordered a knee immobilizer and crutches, prescribed Norco, and recommended follow up with Lexington Orthopaedics. Id. A work restriction note provided Plaintiff could return to work that day, but should not drive or operate heavy machinery due to her medication. Tr. at 445.
On April 11, 2012, Plaintiff presented to T.J. Daley, P.A.-C. ("P.A. Daley"), at Lexington Orthopaedics, for right knee treatment. Tr. at 364-65. Plaintiff reported she fell while walking, her knee pain was 9/10, narcotic medication had not provided significant relief, and she had trouble with all ADLs and could not walk "very much." Tr. at 364. P.A. Daley noted Plaintiff was previously seen for left knee pain two years prior and found she was alert and oriented with appropriate mood and affect, but walked with an antalgic gait, "seem[ed] to be in [a] fair amount of distress," and her right knee was globally tender and TTP. Id. P.A. Daley expressed concern that Plaintiff exhibited drug-seeking behavior and ordered a knee MRI to be conducted prior to prescribing medication. Id.
On April 16, 2012, Plaintiff presented to LMC with continued right knee pain. Tr. at 452-63. Robert Kosclusko, M.D. ("Dr. Kosclusko"), found knee swelling, diagnosed knee pain, knee sprain, and overuse syndrome, prescribed Flexeril and Percocet, and provided a work excuse for two days. Tr. at 354, 455.
On April 19, 2012, a right knee MRI reflected a non-displaced fracture of the patella's inferior pole with mild patellar tendinosis and peritendinous edema, vague contusion of the tibial plateau without fracture, and discoid lateral meniscus without tear. Tr. at 353.
On April 26, 2012, Plaintiff presented to P.A. Daley for review of her right knee MRI. Tr. at 363. P.A. Daley noted the MRI showed fluid in the inferior pole of the patella and fracture. Id. He placed her knee in an immobilizer for three weeks and anticipated recovery in 6-8 weeks. Id.
On May 10, 2012, Plaintiff presented to P.A. Daley with continued complaints of knee pain. Tr. at 362. P.A. Daley found no swelling or deformity, but Plaintiff demonstrated restricted ROM to thirty degrees, TTP at the patella's inferior pole, and global tenderness. Id. A right knee x-ray reflected a patellar fracture without significant change or displacement. Id. He noted Plaintiff would continue in her immobilizer for three weeks and continue narcotic medications. Id. P.A. Daley stated he could not "explain all of [Plaintiff's] global pain from her patellar fracture, but she [did] have pathology" and scheduled Plaintiff for a return visit in three weeks for updated x-rays and to begin physical therapy. Id.
On June 7, 2012, Plaintiff presented to P.A. Daley with complaints of continued knee pain. Tr. at 361. Plaintiff reported her knee was "doing somewhat better." Id. P.A. Daley noted Plaintiff had not been wearing her brace, but did some physical therapy at home. Id. He found tenderness in the patella's inferior pole and medial joint line pain, but no outward signs of swelling or deformity. Id. P.A. Daley noted Plaintiff was taken out of her splint earlier than desired and could not drive to physical therapy, such that he recommended at-home exercises and recognized it may take longer for recovery. Id. He was concerned that he did not see "tons of healing" on a recent x-ray and recommended she return in six weeks for an updated x-ray. Id.
On June 22, 2012, Plaintiff presented to P.A. Daley with complaints of continued knee pain. Tr. at 359-60. P.A. Daley noted Plaintiff did some physical therapy at home, as she was unable to attend an outpatient physical therapy program. Id. He found no soft tissue swelling, but tenderness in the anterior, posterior, and inferior aspect of the patella. Id. P.A. Daley noted Plaintiff's disagreement and confusion regarding her prior and future knee treatments and recommended she obtain a second opinion. Id.
On June 24, 2012, Plaintiff presented to Urgent Care with complaints of upper extremity pain due to a fall down her basement stairs. Tr. at 369-74, 378. X-rays reflected bilateral wrist fractures. Tr. at 372. The attending physician prescribed Oxymorphone and referred Plaintiff to Midlands Orthopedics for treatment. Id.
On June 25, 2012, Plaintiff presented to LMC with complaints of bilateral arm pain after falling over the weekend. Tr. at 464-82. She reported that she was unable to fill the prescriptions received from Urgent Care, her pain had worsened, and she used splints for her wrists. Tr. at 468. She also reported she needed assistance with her ADLs and requested pain relief. Tr. at 477. The attending physician reviewed x-rays, diagnosed wrist pain and fractures, prescribed Percocet and Phenergan, and referred Plaintiff to Lexington Orthopaedics. Tr. at 476.
On June 27, 2012, Plaintiff presented to LMC with complaints of continued arm pain and new rib and lung pain. Tr. at 483-503. Plaintiff explained her arm pain had previously distracted from her chest pain. Id. A pelvis CT scan reflected a fractured rib. Tr. at 486, 496, 500-02. Plaintiff paced and argued with her significant other during her visit and complained that her family was unwilling to help her. Tr. at 490. The attending physician diagnosed rib fracture and blunt abdominal trauma, prescribed Ciprofloxacin and Motrin, and referred Plaintiff to Lexington Orthopaedics. Tr. at 489.
On June 29, 2012, Plaintiff presented to Midlands Orthopaedics with complaints of bilateral wrist pain of 10/10. Tr. at 398-402. Plaintiff reported the pain was aggravated by carrying, twisting, pushing, pulling, weightbearing, exercising, changing clothes, getting out of bed, and switching from sitting to standing and caused weakness, numbness, tingling, swelling, warmth, and chills. Tr. at 400. Plaintiff also reported muscle aches, weakness, back pain, dizziness, depression, fatigue, and cold intolerance. Id. Coleman Fowble, M.D. ("Dr. Fowble"), found Plaintiff to be alert, oriented, and ambulatory with moderate swelling on the left wrist and mild swelling on the right. Id. Dr. Fowble reviewed Plaintiff's wrist x-rays and noted large radial styloid pieces in both wrists, but the left was worse than the right. Tr. at 401. Dr. Fowble assessed fractures in both wrists, applied short arm casts, and prescribed Vicodin for forearm pain. Id.
On July 30, 2012, Plaintiff presented to Midlands Orthopaedics with complaints of severe wrist pain. Tr. at 395-98. Plaintiff reported she was concerned because an emergency room doctor opined she would need surgery. Tr. at 397. Plaintiff also reported muscles aches, joint and back pain, numbness, and depression. Id. Dr. Fowble found Plaintiff to be alert and oriented, but noted swelling in her wrists when her casts were removed. Id. Dr. Fowble reviewed recent x-rays and noted Plaintiff's wrists were healing satisfactorily, but decided to keep Plaintiff's left wrist in a cast and placed a Velcro wrist splint on the right wrist. Id.
On August 23, 2012, Plaintiff presented to Midlands Orthopaedics with complaints of bilateral wrist pain of 10/10. Tr. at 392-95. Plaintiff reported arm pain on exertion, muscle aches and weakness, joint and back pain, numbness, depression, and sleep disturbances. Id. Dr. Fowble found Plaintiff was alert and oriented, ambulatory with a nonantalgic gait, and both wrists looked "good clinically with moderate swelling on the left," but had diffuse TTP on the left wrist, mild tenderness on the right, and stiff wrists and hands. Id. Dr. Fowble noted, "Both wrists seem to be well aligned radiographically. She is quite stiff. Unfortunate[ly], she does not have the financial capabilities to do therapy." Tr. at 395. Dr. Fowble also noted he wanted Plaintiff to "work aggressively on [ROM] of both the wrists and hands bilaterally," provided a foam ball, and placed her left wrist in a Velcro splint. Id. Dr. Fowble assessed radius and ulna fractures and hand and forearm joint pain and ordered a wrist x-ray. Tr. at 395.
On September 17, 2012, Plaintiff presented to Midlands Orthopaedics with left foot pain. Tr. at 389-92. Plaintiff reported she tripped and fell on a tile floor and was diagnosed with a Jones fracture. Id. Plaintiff also reported arm pain on exertion, muscle aches and weakness, joint and back pain, extremity swelling, depression, sleep disturbances, and bruising easily. Id. Lauren P. Leander, P.A.-C. ("P.A. Leander"), found TTP over the dorsal forefoot and erythema at the base of the fifth metatarsal. Tr. at 391. A foot x-ray reflected nondisplaced fifth metatarsal avulsion fracture. Id. P.A. Leander assessed ankle and foot joint pain and metatarsal fracture, ordered a foot x-ray, prescribed Lortab for pain, and instructed Plaintiff to wear a boot walker for three weeks. Id.
On September 25, 2012, Plaintiff presented to Midlands Orthopaedics and reported left foot pain, arm pain on exertion, muscle aches and weakness, joint and back pain, extremity swelling, numbness, bruising easily, depression, and sleep disturbances. Tr. at 386-89. P.A. Leander found TTP over the base of the fifth metatarsal with swelling that had improved. Tr. at 388. P.A. Leander noted Plaintiff reported increased pain and an x-ray showed a nondisplaced fracture at the base of the fifth metatarsal, but she had clinically improved. Tr. at 389. She instructed Plaintiff to wear the boot walker and scheduled a follow-up visit. Id.
On October 1, 2012, Plaintiff presented to Midlands Orthopaedics to follow up on her joint, ankle, and foot pain. Tr. at 384-86. Plaintiff reported night sweats, arm pain on exertion, muscle aches and weakness, and joint and back pain. Tr. at 385. William C. James, III, ("Dr. James"), found mild swelling over the left foot and ankle with tenderness over the lateral aspect of the midfoot around the base of the fifth metatarsal and mild pain with pronation and supination of the midfoot. Id. An ankle x-ray showed a fracture healing satisfactorily. Id. He assessed ankle and foot joint pain and metatarsal fracture. Tr. at 386. Dr. James noted Plaintiff's fracture appeared stable and she could continue weightbearing as tolerated with her walker, scheduled a follow up in three weeks, and prescribed Hydrocodone. Id.
On October 8, 2012, Plaintiff presented to Sri N. Arora, M.D. ("Dr. Arora"), at Brookland-Cayce Medical Practice ("B-C Med"). Tr. at 413-14, 428-29. Plaintiff reported she was out of Lisinopril for hypertension and took Paxil and Klonopin for depression. Id. Plaintiff also reported a diagnosis of carpel tunnel syndrome, she previously saw Dr. Fowble, and she had scoliosis in her back. Id. Dr. Arora noted Plaintiff wore wrist and hand splints, assessed essential hypertension, scoliosis, carpal tunnel syndrome, and depression, refilled prescriptions, and ordered bloodwork. Id.
On November 13, 2012, Plaintiff presented to B-C Med with complaints of pelvic and back pain. Tr. at 409-13, 415-17, 424-28, 430-35. Tonna Coleman, P.A.-C. ("P.A. Coleman"), found Plaintiff had TTP in her back and pain with external hip rotation. Id. P.A. Coleman assessed lower back and pelvic pain, ordered tests, referred Plaintiff for a hip x-ray, and prescribed medication. Id.
On November 25, 2012, Plaintiff presented to LMC with complaints of right hip pain and lower back pain. Tr. at 504-15. The attending physician found Plaintiff had decreased active ROM and tenderness in her right hip. Tr. at 506. The attending physician diagnosed hip pain, prescribed Anaprox and Prednisone, and referred Plaintiff to Lexington Medicine Associates. Tr. at 508-09.
On November 28, 2012, Plaintiff presented to LMC with complaints of increased right hip pain. Tr. at 516-29. The attending physician found Plaintiff had decreased active ROM and tenderness in her right hip, but ambulated with a steady gait. Tr. at 518, 522. A right femur x-ray did not reflect a fracture. Tr. at 528. The attending physician diagnosed hip pain and prescribed Percocet and Phenergan. Tr. at 521.
On February 7, 2013, Plaintiff presented to Dr. Arora to have her prescriptions refilled. Tr. at 408-09, 423-24. He noted Plaintiff was "doing [the] same," with no complaints or new problems and denied any issues with her medications. Id. He assessed essential hypertension, scoliosis, carpal tunnel syndrome, and depression, prescribed Lisinopril, Paxil, and Klonopin, and scheduled a follow-up visit in three months. Id.
On February 28, 2013, Plaintiff presented to LMC with chronic right hip pain. Tr. at 530-41. Plaintiff reported she saw an orthopedist, but requested pain medication. Tr. at 532. Plaintiff also reported she was unable to attend pain management due to insurance issues. Tr. at 537. The attending physician informed Plaintiff "that if her ortho doc won't give her any pain meds, she need[ed] to see her [primary care provider]," as the LMC did not treat chronic pain. Tr. at 533. Plaintiff ambulated with a slight limp. Tr. at 537. The attending physician assessed hip pain, prescribed Anaprox, and referred Plaintiff to Dr. Arora. Tr. at 535.
On March 12, 2013, Plaintiff presented to LMC with complaints of back and abdominal pain, but left before completing treatment due to transportation issues. Tr. at 542-50.
On April 25, 2013, Plaintiff presented to LMC with complaints of two days of back and chest pain. Tr. at 551-65. A chest x-ray showed no acute process. Tr. at 564. The attending physician assessed back and chest wall pain, and prescribed Flexeril, Naprosyn, and Vicodin. Tr. at 556.
On May 1, 2013, Plaintiff presented to LMC with continued myalgias. Tr. at 566-78. The attending physician assessed myalgias, prescribed Naprosyn, Phenergan, and Ultram, and noted Plaintiff could not drive or operate heavy machinery due to her medications. Tr. at 571.
On May 14, 2013, Plaintiff presented to B-C Med for follow up. Tr. at 407-08, 422-23. Dr. Arora noted Plaintiff had multiple issues and had attended pain management, but could no longer do so and needed to see a psychiatrist because she had depression and took Klonopin. Id. He found Plaintiff was alert and oriented. Tr. at 407. He assessed essential hypertension, scoliosis, carpal tunnel syndrome, and depression, referred Plaintiff to a psychiatrist, and prescribed Paxil, Lisinopril, and Klonopin. Tr. at 407.
On May 18, 2013, Plaintiff presented to LMC with complaints of abdominal, pelvic, and back pain with nausea. Tr. at 579-85. The attending physician performed bloodwork and diagnosed abdominal pain, backache, and hypertension. Tr. at 582-84.
On June 10, 2013, Plaintiff presented to LMC with complaints of nausea and abdominal and pelvic pain. Tr. at 586-604. She reported her chronic right pelvic pain had worsened, radiated down her leg, and may require a hip replacement, but she had lost her insurance and was waiting for it to resume. Tr. at 587. The attending physician noted multiple pain-related visits and found an overall normal physical exam, but TTP along the right pelvic bone with painful hip ROM. Tr. at 588-89. A right hip x-ray reflected osteoarthritic changes without evidence of acute osseous abnormality. Tr. at 597. An abdominal CT scan showed no acute abdominal or pelvic finding. Tr. at 598. The attending physician assessed worsened degenerative hip arthritis. Tr. at 592.
On June 17, 2013, Plaintiff presented to LMC with continued complaints of right groin pain that radiated to her lower back and leg. Tr. at 605-10. She reported she had multiple visits for the pain and had lost her insurance, such that she was unable to follow up with her orthopedist. Tr. at 606. Plaintiff also reported the pain was moderate and medications had not provided relief. Tr. at 607. The attending physician noted Plaintiff was oriented, had a steady gait, and normal mood, affect, and behavior, but a prior CT scan reflected a torn pelvic muscle and there was tenderness in her abdomen. Tr. at 606, 608. The attending physician also noted the exam suggested occult hernia and provided medication. Tr. at 608.
On July 9, 2013, James F. Bethea, M.D. ("Dr. Bethea"), conducted a consultative orthopedic examination due to Plaintiff's bilateral wrist pain, back arthritis, right hip fracture surgery, and right knee pain. Tr. at 612-16. Plaintiff reported treatment for a hip fracture, patellar fracture, left foot fracture, and wrist fractures in 2003 and 2012, with a history of fibromyalgia. Tr. at 614. She reported these injuries limited her abilities to stand to 5-10 minutes at a time, walk around the house to two minutes at a time, disturbed her sleep, caused her to avoid lifting more than a ring of keys, and prevented her from doing household chores. Tr. at 614-15. She described her pain as 9/10 at times, but indicated she could ambulate effectively enough to perform ADLs and did not mention any issues with reasoning. Id. Dr. Bethea noted Plaintiff was pleasant and cooperative, but "appeared quite uncomfortable at all times," which made her examination difficult. Tr. at 615. Dr. Bethea also noted Plaintiff did "not even attempt tandem walking, toe/heel walking, [or squatting] because of pain" and her gait was abnormal. Id. Dr. Bethea found Plaintiff had limited motion in both wrists and shoulders and limited rotation in her hips, but a straight leg raise ("SLR") test was negative and there were no neurological findings. Id. Dr. Bethea reviewed prior imaging from 2011 and 2012 and assessed "[m]ultiple musculoskeletal complaints out of line with objective findings," "[h]istory of multiple fractures," and lumbosacral osteoarthritis. Id. Dr. Bethea concluded, "[h]er complaints of some pain during my examination makes determination of work capacity difficult. However, I would think that she would be able to work at a medium demand level." Tr. at 616.
On August 3, 2013, Cherilyn Y. Taylor, Ph.D. ("Dr. Taylor"), performed a consultative mental status evaluation. Tr. at 618-21. Dr. Taylor made general observations and reviewed Plaintiff's records, complaints, history of present illness, legal history, ADLs, social functioning, drug and alcohol use, mental status, and capability. Tr. at 618-20. Plaintiff reported she dropped out of high school when she became pregnant with her first child in the tenth grade, her children were placed in the Department of Social Services' ("DSS") custody due to her husband's criminal domestic violence charges, she had worked numerous temporary jobs, and she received treatment for her substance abuse issues. Id. Dr. Taylor assessed polysubstance dependence and adjustment disorder, with mixed anxiety and depressed mood, and assigned a GAF score of 75. Tr. at 621. She concluded Plaintiff had a history of substance abuse problems and currently experienced mood dysfunction associated with adjusting to family discord, but she was able to maintain many of her basic ADLs and interact appropriately with the examiner. Id. Dr. Taylor opined,
A GAF score of 71-80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) and that the individual has no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). DSM-IV-TR.
[Plaintiff] reported that she is capable of performing most [ADLs] independently. During the evaluation, [Plaintiff] demonstrated the ability to relate adequately and reported no major social dysfunction. [Plaintiff's] general level of intelligence is estimated to be in the low average range, and she appeared to have no significant cognitive limitations. It is likely [Plaintiff] would be capable of performing a number of work-related functions at a modified pace. [Plaintiff] would benefit from clinical intervention to address her substance abuse issues, family system problems and current mood dysfunction. With clinical intervention to address these problems, the prognosis for improvement is fair.Tr. at 621.
On August 6, 2013, Edward Waller, Ph.D. ("Dr. Waller"), a state agency psychologist, reviewed the record and completed a psychiatric review technique ("PRT") assessment. Tr. at 88-89. Dr. Waller opined Plaintiff had mild restrictions of ADLs and difficulties in maintaining concentration, persistence, pace, and social functioning. Id.
On August 13, 2013, Darla Mullaney, M.D. ("Dr. Mullaney"), a state agency physician, reviewed the record and completed a physical residual functional capacity ("RFC") assessment. Tr. at 90-93. Dr. Mullaney opined Plaintiff could lift, carry, push, or pull twenty pounds occasionally and ten pounds frequently, stand or walk for four hours and sit for about six hours in an eight-hour workday, and occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl, but never climb ladders, ropes, or scaffolds and must avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, or hazards. Id.
On November 17, 2013, Plaintiff was admitted to the South Carolina Department of Mental Health's inpatient program at Columbia Hospital for treatment of paranoid and disorganized mania. Tr. at 625-48. A psychological assessment reflected Plaintiff had separated from her husband because he was physically abusing her, her judgment was poor, and she denied illness, but was found wandering the streets and experiencing hallucinations. Tr. at 639. Plaintiff had been hospitalized and treated for mental illness ten years prior, "was floridly manic on admission and her speech was virtually unintelligible," with a GAF score of 30, but she improved rapidly on Olanzapine 5 mg and became well organized, without any paranoia. Tr. at 627, 637, 639, 642.
A GAF score of 21-30 reflects behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends). DSM-IV-TR.
The following day, Robert Breen, M.D. ("Dr. Breen"), noted Plaintiff's appearance was well groomed, she denied suicidal or homicidal thoughts, hallucinations, and paranoia, and she was partially oriented, but her speech was rapid, her mood was "happy, but a little sad," her affect was labile and incongruent, her thought process was very disorganized and evasive at times, she was obsessed with her ex-husband, believed she had "been set free," was not aware of current events, had poor concentration and judgment, impaired immediate recall, and absent insight, as she was "in total denial of her illness." Tr. at 646-47. Dr. Breen diagnosed bipolar disorder, manic episode, and past history of polysubstance dependence and assigned a GAF score of 25. Tr. at 648. Dr. Breen noted Plaintiff's only medical issue was shortness of breath from asthma that responded well to an inhaler. Id.
At discharge on November 26, 2013, the attending physician noted Plaintiff's condition was improved, as she was no longer manic, paranoid, or disorganized, diagnosed bipolar disorder, manic episode, and assigned a GAF score of 51, with court-ordered outpatient psychiatric treatment at LCMH. Tr. at 625, 627. Dr. Breen prescribed Olanzapine and an albuterol inhaler. Tr. at 628.
The record contains treatment notes from LCMH, but some visits are not discussed in detail or are illegible. See, e.g., Tr. at 674.
On January 31, 2014, Plaintiff presented to LCMH for treatment. Tr. at 679-81. Plaintiff reported her uncle and mother's boyfriend sexually abused her as a child and her second husband physically abused her. Tr. at 679. Plaintiff also reported she had been hospitalized in November 2013 and diagnosed with bipolar disorder, but had not taken her medication since that time. Tr. at 681. Joy Dalley, L.I.S.W. ("Ms. Dalley"), found Plaintiff's appearance was clean, her attitude was cooperative, her thought process and content were normal, she was oriented, and able to concentrate and do simple math, but her mood was anxious and depressed, judgment was poor, and insight was limited. Tr. at 680-81. Ms. Dalley noted Plaintiff would need treatment to regulate her medication, gain insight into her mental illness, and address her history of trauma, noting Plaintiff was moving between relatives' homes and her children had been in foster care for three years. Tr. at 681.
On February 7, 2014, John Dewey Hynes, M.D. ("Dr. Hynes"), performed a consultative orthopedic examination for vocational rehabilitation. Tr. at 660-68. Dr. Hynes noted Plaintiff's prior injuries included broken wrists, rib, hip, foot, and knee fractures, back pain, fibromyalgia, depression, and anxiety that caused constant pain and limited her abilities to sit, walk, or stand, such that she could not "do anything with anything anymore." Tr. at 660-61. Dr. Hynes noted lumbosacral spine x-rays indicated moderate degenerative changes with osteophyte formation. Tr. at 661. Dr. Hynes also noted Plaintiff appeared alert and cooperative, but cried during a large portion of the examination. Tr. at 662. He found some normal results, but Plaintiff's ankles were limited in flexion, her joints were diffusely TTP, she had marked pain with light palpation over the knees with limited flexion, and her wrists were limited in flexion. Tr. at 662-63. Plaintiff "voice[d] pain with every maneuver of her right hip" that caused limited abduction, adduction, flexion, and rotation, and marked TTP over the anterior aspect, and her left hip was minimally TTP. Id. Plaintiff also "voice[d] neck pain at the outer limits of abduction," her cervical spine was TTP at all levels with limited extension, the thoracic spine was TTP, with limited flexion and extension, and the lumbar spine was TTP, with "distal lumbosacral spinous processes causing shouts and tears due to voiced pain." Id. Dr. Hynes noted Plaintiff tandem walked with poor balance and a slight valgus deviation of her feet and she was unable to heel-toe walk due to pain and a slight limp on the right side, but did not require an ambulatory device and could squat to 70 degrees. Tr. at 663. Dr. Hynes noted Plaintiff's report of pain in her wrists, back, hip, right foot, and knees, found TTP and limited ROM in certain areas, and relayed Plaintiff had been treated by Dr. Ogburu and Dr. Cooper for fibromyalgia, at LMC for depression, and was not taking medication for her anxiety. Tr. at 663-64.
On March 19, 2014, Plaintiff presented to Ms. Dalley at LCMH for treatment with goals to achieve stability and mental health. Tr. at 677-78.
On March 21, 2014, A. Nicholas DePace, Ph.D. ("Dr. DePace"), performed a consultative mental status examination. Tr. at 669-73. Plaintiff reported she had been unable to sleep and went to the emergency room three days prior to the evaluation, but she felt "great" now. Tr. at 669. Dr. DePace reviewed her background information, living situation, occupational history, social functioning, legal history, psychiatric history, substance use history, and behavioral observations. Tr. at 669-71. Plaintiff also reported she had been living in a motel with her husband for approximately one month and they had a history of "fighting like cats and dogs." Tr. at 669-70. Plaintiff stated her children were taken away because she and her husband were falsely accused of drinking and doing drugs. Tr. at 669. She reported she attended regular classes in school, had no learning problems, and no history of behavioral problems. Tr. at 670. Plaintiff was unable to perform the Serial 7s task. Tr. at 671. Dr. DePace reviewed Plaintiff's paperwork from her November 2013 hospitalization, noted his diagnostic impressions, and provided a clinical formulation. Tr. at 669, 671. He stated,
Numerous behavioral observations of [Plaintiff] here today seem to strongly suggest the presence of a manic episode at this time; consideration of formal diagnoses of this behavior (bipolar I disorder, currently manic v. mood disorder, currently manic v. substance influenced mood disorder) should be based upon
whether she continues to use substances. While she denies this, her report is viewed with some skepticism. If she is not currently using, it is likely that she would meet criteria for a diagnosis of bipolar I disorder, currently manic, and possibly with psychoses. If she has been using drugs, her rambling nonsensical and at times illogical speech would likely be the product of this ongoing use. . . . She is not currently on a mood stabilizer even though she was hospitalized about four months ago and was described as being "floridly manic." She did manifest several shifting emotions today, as at times she was overly friendly and, at other times, seemed easily agitated. In addition to her emotional vacillations, she maintains that she has numerous physical problems that prevent her from performing [ADLs] that require significant exertion. I do believe her concentration is likely limited, as observed in her presentation here today. Interpersonally, she would likely have difficulties in appropriately interacting with others based upon her presentation here today . . . Her tolerance for frustration seems to be poor as observed here today. Further, based upon her presentation here today, she would likely have difficulties in consistently performing three-step commands. Finally, while there was no significant evidence obtained during this evaluation that suggested [Plaintiff] was attempting to fabricate problems or exaggerate existing ones, further examination of factors that could be contributing to manic-type behaviors seems warranted.Tr. at 671-72.
On April 8, 2014, James Weston, M.D. ("Dr. Weston"), a state agency physician, reconsidered the record and completed a physical RFC assessment. Tr. at 106-07. Dr. Weston affirmed Dr. Mullaney's opinion that Plaintiff was able to perform light work with limitations, but added she must avoid concentrated exposure to extreme cold. Tr. at 107.
On April 15, 2014, Plaintiff presented to LCMH and reported she was out of her medication. Tr. at 682. Plaintiff was discovered walking to church barefoot and acting strange. Id. Plaintiff reported she could not afford the bipolar medication, so her primary care provider prescribed Ambien and Xanax, she "switched from feeling good to ang[ry]," her sleep was poor, and her appetite varied. Id. Plaintiff was seen with her husband, was very oppositional, and argued with him during the session. Id. Donald W. Morgan, M.D. ("Dr. Morgan"), found Plaintiff was alert, oriented, and cooperative, with intact attention, concentration, and memory, and logical or goal-directed thought process, but fair judgment and poor insight. Tr. at 682. Dr. Morgan prescribed Ambien and Lithium Carbonate and noted continued treatment was justified because Plaintiff's symptoms were unstable. Tr. at 683.
On April 23, 2014, Plaintiff presented to LCMH. Tr. at 684-86. Plaintiff stated she experienced "overwhelming[] side effects" from Lithium, such as memory gaps, blurred vision, dizziness, abdominal pain, and "just [did] not feel well." Tr. at 684. Plaintiff reported she was unable to afford Ambien and Xanax due to the cost, and she felt anxious, depressed, and overwhelmed. Id. Plaintiff also reported problems with insomnia when she was placed on Cymbalta and Wellbutrin. Id. The counselor questioned the bipolar diagnosis because Plaintiff had always been treated for anxiety and depression. Id. The counselor found Plaintiff was alert, oriented, and cooperative, with intact attention, concentration, and memory, logical or goal-directed thought process, euthymic mood, and good judgment and insight. Tr. at 684-85. The counselor stopped Lithium, prescribed Paxil, and continued Ambien. Tr. at 685.
On April 24, 2014, Timothy Laskis, Ph.D. ("Dr. Laskis"), a state agency psychologist, reconsidered the record and completed a PRT assessment. Tr. at 104-05. Dr. Laskis opined Plaintiff had mild restrictions of ADLs and no episodes of repeated decompensation, but moderate difficulties in maintaining concentration, persistence, pace, and social functioning. Id. Dr. Laskis explained, "[c]onsidering all information in the file there is nothing to indicate [Plaintiff] would be precluded from performing simple, unskilled work. Weight to Dr. Depace as he noted that [Plaintiff] [wa]s able to perform 3 step commands." Tr. at 105.
However, Dr. DePace stated, "Further, based upon her presentation here today, she would likely have difficulties in consistently performing three-step commands." Tr. at 672.
Dr. Laskis also completed a mental RFC assessment and opined Plaintiff was moderately limited in her ability to carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or in proximity to others without being distracted by them, interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, and get along with coworkers or peers. Tr. at 109-10. Dr. Laskis explained,
[Plaintiff] should be able to attend to and perform simple unskilled work for reasonable periods of time without special supervision. She can attend work regularly, make work-related decisions, protect herself from work-related safety hazards and travel to and from work independently. She can accept supervision and interact appropriately with co-workers, but might not be suited for work with the general public.Tr. at 110.
On June 3, 2014, Plaintiff presented to LCMH with her sister and reported she broke her leg. Tr. at 686. Plaintiff requested Valium, because she had not taken medication since she left the hospital. Id. Dr. Morgan found Plaintiff was alert, oriented, and cooperative, with intact attention, concentration, and memory, logical or goal-directed thought process, euthymic mood, and good judgment and insight. Tr. at 686-87. Dr. Morgan prescribed Ambien, Vistaril, and Valium. Tr. at 687.
On October 14, 2014, Plaintiff presented to LCMH with her husband. Tr. at 688. Plaintiff reported Paxil had previously worked for her chronic depression, but she stopped taking it because it began to make her feel "like a zombie," such that she stopped taking it. Id. Plaintiff related she was sleeping and eating better, but concerned she was "off" and willing to try Elavil. Id. Dr. Morgan found intact attention, concentration, and memory, logical or goal-directed thought process, euthymic mood, and good judgment and insight. Id. Dr. Morgan prescribed Elavil and assessed a GAF score of 70. Id.
A GAF score of 61-70 indicates "some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, [and] has some meaningful interpersonal relationships." DSM-IV-TR.
On November 13, 2014, Plaintiff presented to LCMH with her husband and reported she was "doing well." Tr. at 690. Her husband reported he thought she was "doing better" and she that she drove him to work. Id. Plaintiff requested an increase in Xanax. Id. Dr. Morgan found intact attention, concentration, and memory, logical or goal-directed thought process, euthymic mood, and good judgment and insight. Id. Dr. Morgan prescribed Elavil and Xanax and assessed a GAF score of 90. Id.
A GAF score of 81-90 indicates "[a]bsent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members)." DSM-IV-TR.
On December 2, 2014, Plaintiff presented to Dr. Morgan at LCMH with her husband. Tr. at 691-92. Plaintiff reported she was stressed at work because there was a lot of paperwork that she had to learn and she went to the emergency room for chest pain, but was told it was her muscles or from driving a big truck. Id. Dr. Morgan found intact attention, concentration, and memory, logical or goal-directed thought process, euthymic mood, and good judgment and insight. Id. Dr. Morgan prescribed Elavil and Xanax and assessed a GAF score of 90. Id.
On January 27, 2015, Plaintiff presented to LCMH and reported she had "good days and bad." Tr. at 693. Plaintiff reported her sleep was good, her appetite varied, and she never took medication when driving, but drove her husband and worked four to eight hours a day. Id. Dr. Morgan found intact attention, concentration, and memory, logical or goal-directed thought process, and good judgment and insight, but depressed, angry, and anxious mood. Id. Dr. Morgan prescribed Elavil and Xanax and assessed a GAF score of 90. Id.
On March 30, 2015, Plaintiff presented to Dr. Morgan at LCMH and reported she was very upset. Tr. at 694. Plaintiff was living in a hotel with "her partner," who drove her there and reported she did not drive. Id. Plaintiff stated Xanax was not helping, she desired the "blue pill," and she tried to contact the case manager, but was unable to connect. Id. Dr. Morgan found intact attention, concentration, and memory, logical or goal-directed thought process, and good judgment and insight, but anxious mood. Id. Dr. Morgan prescribed Elavil and Xanax and assessed a GAF score of 70. Id.
On April 15, 2015, Plaintiff presented to Felicia Holley, L.P.C ("Case Manager Holley") at LCMH for treatment with goals to become independent and complete court-ordered therapy to try to regain custody of her children. Tr. at 675-76, 704-05.
On April 29, 2015, Case Manager Holley provided a statement that indicated Plaintiff had been her client since January 2014. Tr. at 696. She explained Plaintiff's treating psychiatrist, Dr. Morgan, had diagnosed major depressive disorder, recurrent, severe without psychotic features, and bipolar disorder, most recent episode manic, severe without psychotic features and prescribed Elavil and Xanax. Id. Case Manager Holley also noted Plaintiff regularly attended her doctor, nurse, and counseling appointments. Id.
On June 23, 2015, Plaintiff presented to Queen J. Flowers, A.P.R.N. ("Nurse Flowers"), at LCMH, for follow up. Tr. at 706-07. Plaintiff had been admitted to the LMC emergency room with acute paranoia, stating "the government had a radiator and she was bitten by snakes and was pregnant." Id. She was prescribed Risperdal and Risperdal Consta with an injection due in five days. Id. Nurse Flowers found intact attention, concentration, and memory, logical or goal-directed thought process, good judgment and insight, and euthymic mood with appropriate affect. Id. Nurse Flowers assessed a GAF score of 75. Id.
On July 9, 2015, Plaintiff presented to Nurse Flowers at LCMH for follow up. Tr. at 708-09. Plaintiff reported she was "[n]ot excited about taking Risperdal Consta, but underst[oo]d." Id. Plaintiff also reported her children remained in state custody, but she was "working with a lawyer" and living with her husband's friend. Id. Nurse Flowers found normal gait and station, intact attention, concentration, and memory, logical or goal-directed thought process, good judgment and insight, and euthymic mood with appropriate affect. Id. Nurse Flowers noted Plaintiff's back pain and assessed a GAF score of 80. Id.
On August 3, 2015, Plaintiff presented to Nurse Flowers at LCMH for medication management. Tr. at 710-11. Plaintiff reported she began having contact with her oldest child in foster care, but she did not have stable living arrangements, as she was living in a camper, and would be attending court to discuss visitation. Tr. at 710. Plaintiff also reported increased anxiety that was managed with Buspar, her mood was 5/10, and she requested Ambien to help her sleep. Id. Nurse Flowers recommended Doxepin as a better option. Id. Nurse Flowers found normal gait and station, intact attention, concentration, and memory, logical or goal-directed thought process, but fair judgment and insight and anxious mood with appropriate affect. Id. Nurse Flowers prescribed Risperdal Consta, Buspar, and Doxepin with Motrin for back pain and assessed a GAF score of 70. Tr. at 710-11.
On August 5, 2015, Nurse Flowers and Case Manager Holley at LCMH completed a mental RFC assessment. Tr. at 698-702. They noted Plaintiff began treatment at LCMH on January 17, 2014, saw a counselor every one to two months, saw a registered nurse for an injection every two weeks, and saw an advanced practice registered nurse every one to three months, and her last appointment was August 3, 2015. Tr. at 698. They provided Plaintiff's highest GAF score in the prior year as 70, noting brief periods of clarity that were not sustained and numerous emergency room visits, and her current GAF score ranged between 50-60, noting she could have some clear thoughts, but was still disorganized and unfocused. Id. They noted Plaintiff's prognosis was guarded, she underwent medication and counseling, the impairments had lasted 12 months, and she was not a malingerer. Id. They also noted there was no evidence of current drug or alcohol abuse and Plaintiff was compliant with treatment. Tr. at 700.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
Based upon their personal assessment of Plaintiff, they opined she had the following limitations: moderate limitations in her abilities to remember locations and work-like procedures or carry out very short and simple instructions; marked limitations in her abilities to understand and remember very short and simple instructions, carry out detailed instructions, sustain an ordinary routine without special supervision, make simple work-related decisions, interact appropriately with the general public, ask simple questions or request assistance, accept instructions and respond appropriately to criticism, maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness, respond appropriately to changes in the work setting, be aware of normal hazards and take appropriate precautions, travel in unfamiliar places or use public transportation, and set realistic goals or make plans independently of others; and extreme limitations in her abilities to understand and remember detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, work in coordination with or proximity to others without being distracted by them, complete a normal workday and workweek without interruptions from psychologically-based symptoms, perform at a consistent pace without an unreasonable number of and length of rest periods, get along with coworkers or peers without distracting them or exhibiting behavioral extremes, and tolerate normal levels of stress. Tr. at 700-02. They opined Plaintiff's impairment substantially interfered with her ability to work on a regular and sustained basis at least 20% of the time and would cause her to miss work 4-5 days a month. Tr. at 702. They explained Plaintiff's mental impairment prevented her from working on a regular and sustained basis, as follows: "While [Plaintiff] has brief periods of clear thinking, it is not sustained. She has difficulty w[ith] consistency, following complicated instructions, and overall organized thinking. It is unlikely at present that [Plaintiff] could maintain the requirements to sustain employment." Id. They recommended Plaintiff "have a representative payee to ensure her funds [were] managed responsibly" and "her husband not be her payee." Id.
On December 18, 2015, Plaintiff presented to Nurse Flowers at LCMH for medication management. Tr. at 712-14. Plaintiff reported increased depression due to separation from her children and requested increased Buspar and Paxil. Tr. at 712. Plaintiff reported her mood had improved since starting Risperdal Constal, but still rated it as 5/10. Id. Nurse Flowers found normal gait and station, intact attention, concentration, and memory, logical or goal-directed thought process, good judgment and insight, and euthymic mood with appropriate affect. Id. Nurse Flowers prescribed Buspar, Doxepin, and Paxil with Motrin for back pain. Tr. at 712-13.
On March 24, 2016, Plaintiff presented to Cheryl Suber, A.P.R.N. ("Nurse Suber"), at LCMH and reported she felt "more anxious lately." Tr. at 715-16. Plaintiff reported she still dealt with anxiety regarding her children in foster care, lived with her husband, and admitted to a "melancholy mood most days." Tr. at 715. Plaintiff inquired about "being put back on the Klonopin." Id. Nurse Suber noted Plaintiff's appetite was excessive, her sleep was within normal limits, and her gait and station were normal. Id. She found intact memory, attention, and concentration and fair judgment and insight, but depressed mood and flat affect. Id. Ms. Suber increased Paxil to 20 mg to aid with mood and anxiety. Tr. at 716.
On April 22, 2016, Plaintiff presented to Nurse Suber at LCMH and reported she had "been doing better." Tr. at 717-18. Plaintiff also reported an improvement in her mood and decreased anxiety, she had been "getting out and being more active," slept 7 hours a night, had a good appetite, and denied hallucinations or suicidal or homicidal ideations. Tr. at 717. Nurse Suber found normal gait and station, logical or goal-directed thought process, intact, memory, attention, and concentration, good judgment and insight, and euthymic mood and appropriate affect. Id. Nurse Suber noted Plaintiff was "doing well on the increased dose of Paxil," continued the dosage, and adjusted Plaintiff's Buspar due to an episode of hand tremors. Tr. at 718.
On June 3, 2016, Plaintiff presented to Nurse Suber at LCMH for medication management. Tr. at 719-20. Nurse Suber noted, "[s]ince last visit, she continues to do well with stabilization of mood and improvement in melancholy feelings. She is sleeping well with Doxepin. She has no new complaints on today. She take[s] Buspar rarely if at all according to her." Tr. at 719. Nurse Suber found normal gait and station, intact memory, attention, and concentration, good judgment and insight, and appropriate affect. Id. Nurse Suber continued Plaintiff's medications and noted she appeared stable. Tr. at 720.
On June 27, 2016, Shaw Evans, M.D. ("Dr. Evans"), medical director at LCMH, completed a statement that indicated he endorsed and adopted the mental RFC assessment provided by Nurse Flowers and Case Manager Holley on August 5, 2015. Tr. at 722-30. Dr. Evans opined Plaintiff satisfied the requirements of Listings 12.03C and 12.04C. Tr. at 723.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on July 6, 2016, Plaintiff testified she was 46 years old, completed the tenth grade before being kicked out, and had no PRW. Tr. 43-45; 50. She stated she was married and had two children, but no longer had custody of them. Tr. at 48-50. She reported having received food stamps, but then losing her eligibility. Tr. at 50-51. She reported her husband worked. Tr. at 51. She acknowledged having a driver's license and being able to drive, but driving infrequently because her husband handled the gears better. Id.
Plaintiff testified she could not work in the past 15 years because of her health problems. Tr. at 51-52. She reported when she had been employed, her employers tried to fire her, but she would quit. Tr. at 51. She stated she had a right hip fracture from a fall and had surgery in 2010. Tr. at 51-53. She reported her hip bothered her when she slept on the right side and, at times, when she walked or sat. Tr. at 52-54. Plaintiff said she experienced pain in her back and hip when she sat and noted she had arthritis in her back and problems with her right knee, on which she had surgery to implant screws. Tr. at 53. She reported she broke both wrists at the same time. Tr. at 54. She said she did not see a doctor for her back, hip, and knee, even though she had pain daily. Id. She said she could not work because she could not concentrate due to pain and could not sit or stand long enough to perform a job. Tr. 54-55.
Plaintiff reported having mental health issues, stating she started attending treatment in 2012 by family court order. Tr. at 55-58. She reported attending mental health on a more regular basis in the prior two and a half years, but testified her counselors had not provided a diagnosis. Id. She said she knew she had depression and anxiety. Tr. at 57. She said her husband took her to her appointments, she received a Risperdal injection every two weeks, and she took Paxil. Tr. at 58-59. Plaintiff testified she felt she was improving, but could not always tell her counselor all of her problems and did not feel the mental health center understood her issues. Tr. at 59-61. She testified she felt depressed every day and had been suffering from depression for more than ten years. Tr. at 61. She stated she could not work because of pain and not being able to concentrate on the job. Id. Plaintiff said her husband handled their finances, and although she felt like she could handle it, her husband paid all the bills. Tr. at 61-62. She felt she could get along with coworkers. Tr. at 62. She stated she spent most of the day by herself or with her husband who made sure she did not fall or break down. Tr. at 62-63. She acknowledged socializing with her sister who lived around the corner. Tr. at 63. She denied attending clubs, going to activities, talking on the phone, or maintaining a Facebook account. Tr. at 63. Plaintiff said she would go to the grocery store with her husband. Tr. at 63-64. She said she planned to go to church after court, but had not been to church in over five months. Tr. at 64. She said while at home, she and her husband would pray, read, and clean. Tr. at 64-65. She testified her husband cooked, she was able to do the laundry, and they did not have any pets. Tr. at 65.
Plaintiff denied her attorney's assertion that records showed she was having trouble understanding her situation. Tr. at 65-66. She acknowledged having been hospitalized in 2013 for "talking out of [her] mind" like trying to move the sky and walking around barefoot. Tr. at 66. She testified sometimes people told her that she did things she did not recall doing, and she sometimes believed them and sometimes did not. Tr. at 66-67. She said she used to sleepwalk. Id. Plaintiff denied staying home so much on account of not wanting to be around people. Tr. at 67. Plaintiff testified she read the Bible for 15 minutes at a time and returned later to it to regroup. Tr. at 67. She said she watched movies with her husband and could follow the story. Tr. at 68. The ALJ asked about a consultative doctor who said Plaintiff had a poor frustration tolerance, and she conceded having been frustrated at that time, but not at the doctor. Tr. at 68-69. She said she was frustrated with everyone trying to run the world around her and tell her how things should be. Tr. at 69. Plaintiff felt she had at least one bad day a week where she could not get to work because her symptoms were so bad. Id. She said she did not think she could perform a job that was simple and repetitive in nature and could not concentrate long enough to know what was going on. Tr. at 69-70.
She said she felt her medications helped with her depression, but they did not eliminate her problems to the point that she would have sufficient concentration to perform a job eight hours a day, five days a week. Tr. at 70, 74. She said her medications had side effects and she thought she would fall down, lose her vision, or get dizzy if she had to work on an assembly line. Tr. at 71. She stated she had not been feeling well lately, although she had not been to a doctor. Id. She acknowledged having had a history of substance abuse, but said she had been clean for five years. Tr. at 71-72. Plaintiff testified she did not have problems interacting with people in the grocery store or with supervisors in her past jobs, such that she felt she could interact appropriately with coworkers and supervisors. Tr. at 72-73.
b. Vocational Expert's Testimony
Vocational Expert ("VE") Robert E. Brabham, Sr., reviewed the record and testified at the hearing. Tr. at 74. The ALJ described a hypothetical individual who was limited to work at the light exertional level, limited to only a total of four hours of standing and/or walking out of an eight hour day, otherwise able to sit for six hours of the work day; no climbing ladders, ropes, and scaffolding; occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl; avoid concentrated exposure to extreme cold, fumes, odors, dusts, gases, poor ventilation, moving machinery, and unprotected heights; limited to simple, routine tasks that do not involve interaction with the general public or more than occasional interaction with coworkers and supervisors. Tr. at 74-75. The ALJ asked whether there were any jobs in the economy the hypothetical person could perform. Tr. at 75. The VE identified light exertional level positions with a specific vocational preparation ("SVP") of 2 and no public interaction: (1) production inspectors of candies and rubber gaskets, DOT No. 529.687-114; (2) packagers, DOT No. 753.687-038; and (3) machine tenders of medical and surgical dressings, DOT No. 689.685-130; with 200,000, 400,000, and 400,000 positions available, respectively. Tr. at 76-77. The VE indicated being off-task for at least 20% of the day and missing four to five days per month would be inconsistent with competitive employment based upon his experience. Tr. at 77-80.
The hearing transcript references the VE's name as Mr. Grantham, but the resume in the record reflects the VE's name as Robert E. Brabham, Sr. Compare Tr. at 74, with Tr. at 283.
2. The ALJ's Findings
In his decision dated August 4, 2016, the ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial gainful activity since July 3, 2012, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: a history of a right knee and wrist fractures in 2012, a shallow disc protrusion of the lumbar spine with mild bilateral facet arthropathy, obesity, major depressive disorder and a history of polysubstance abuse (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the claimant is limited to only 4 hours standing and/or walking out of an 8-hour day. She is able to sit for 6 hours out of an 8-hour workday. She is precluded from climbing ladders, ropes and scaffolds, but she can occasionally balance, stoop, kneel, crouch, crawl and climb ramps or stairs. She must avoid concentrated exposure to extreme cold, fumes, odors, dusts, gases, poor ventilation[,] moving machinery and unprotected heights. She is further limited to simple, routine tasks that do not involve interaction with the general public or more than occasional interaction with coworkers and supervisors.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on March 18, 1970 and was 42 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).Tr. at 22-29. II. Discussion
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since July 3, 2012, the date the application was filed (20 CFR 416.920(g)).
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ did not adequately account for Plaintiff's moderate difficulties in social functioning and concentration, persistence, or pace in the assessed RFC; and
2) the ALJ failed to resolve an apparent conflict between the assessed RFC and the general educational development ("GED") reasoning codes of the jobs the VE indicated Plaintiff could perform with the identified restrictions; and
3) the ALJ failed to properly assess medical opinions of record.
The Commissioner counters that substantial evidence supports the ALJ's findings and the ALJ committed no legal error in his decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether she has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents the claimant from performing PRW; and (5) whether the impairment prevents her from doing substantial gainful employment. See 20 C.F.R. § 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. § 416.920(a)(4) (providing that if the Commissioner can find claimant disabled or not disabled at any step, the Commissioner may make a determination and not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. § 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, she will be found disabled without further assessment. 20 C.F.R. § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that her impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 416.926; see Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish her impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's PRW to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. § 416.920(h).
A claimant is not disabled within the meaning of the Act if she can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. § 416.920(a), (b), (f); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing her inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence the claimant can perform alternative work and such work exists in the national economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that she is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner . . . made after a hearing to which [s]he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try [these cases] de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. Richardson, 402 U.S. at 390. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citation omitted); see also Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). "In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ]." Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
B. Analysis
1. RFC Assessment
Plaintiff alleges the ALJ did not comply with the requirements of SSR 96-8p in assessing her RFC. [ECF No. 16 at 17]. She maintains the ALJ did not explain how the restriction to simple, routine tasks accounted for her moderate difficulties in concentration, persistence, or pace. Id. at 18-19. She argues the ALJ's reliance on the consultative examiner's opinion to support the assessed RFC is misplaced to the extent that he did not fully adopt the restrictions indicated by the consultative examiner or explain his reasons for declining to do so. Id. at 20. Plaintiff contends the ALJ did not account for the documented waxing and waning of her symptoms. Id. at 20-21. She maintains the ALJ did not adequately consider significant evidence of relational problems in finding she had the ability to perform work that did not involve interaction with the general public or more than occasional interaction with coworkers or supervisors. Id. at 22-24.
The Commissioner argues the ALJ sufficiently accommodated Plaintiff's moderate limitations in social functioning and concentration, persistence, or pace by limiting her to simple, routine tasks that did not involve interaction with the public or more than occasional interaction with coworkers and supervisors. [ECF No. 18 at 10]. He maintains the ALJ's RFC assessment is supported by substantial evidence because the ALJ specified the RFC assessment "reflect[ed] the degree of limitation [he had] found in the 'paragraph b' mental function analysis." Id. at 12. The Commissioner contends the ALJ's explanation in this case is distinguishable from the explanation the Fourth Circuit Court of Appeals ("Fourth Circuit") found to be insufficient in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), because the ALJ did not limit Plaintiff only to "simple, routine tasks," but to those "simple, routine tasks that do not involve interaction with the general public or more than occasional interaction with coworkers and supervisors." [ECF No. 18 at 12] (citing Tr. at 24). He argues the ALJ adequately explained the assessed RFC by indicating that he had given great weight to Dr. Laskis's opinion and by citing other evidence of record that demonstrated Plaintiff "could perform a range of simple work with additional limitations." Id. at 13-14. He maintains the ALJ relied on and cited substantial evidence to support his conclusion that Plaintiff's social functioning limitations could adequately be addressed by limiting her to jobs that did not involve interaction with the general public or more than occasional interaction with coworkers and supervisors." Id. at 15-16.
The Commissioner is referring to paragraph B of Listings 12.06 and 12.09, which requires evaluation of the claimaint's degree of functional limitation in ADLs, social functioning, concentration, persistence, or pace, and episodes of decompensation.
A claimant's RFC represents the most she can still do despite her limitations. 20 C.F.R. § 416.945(a). It must be based on all the relevant evidence in the case record and should account for all of the claimant's medically-determinable impairments. Id. The RFC assessment must include a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184, at *7 (1996). The ALJ must determine the claimant's ability to perform work-related physical and mental abilities on a regular and continuing basis. Id., at *2. He must explain how any material inconsistencies or ambiguities in the record were resolved. Id., at *7. "[R]emand 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." Mascio, 780 F.3d at 636 (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
a. Concentration, Persistence, or Pace
The ALJ assessed Plaintiff as having moderate difficulties in concentration, persistence, or pace." Tr. at 23. He explained his assessment as follows:
The claimant had scattered throught [sic] processes during a psychological examination, and she had low intelligence estimated by the examiner based on her school performance (Exhibit 12F). However, she was able to identify and recall three objects, and she was able to do serial 7 testing for 4 out of 5 calculations. She was able to follow a 3 step command and write a sentence (Exhibit 12F). She is also able to watch television, do chores with the help of a friend and take care of personal tasks (Exhibit 3E and Exhibit 12F).Id. He concluded "[t]his level of functioning indicates no more than moderate limitation on concentration, persistence, or pace." Id.
The ALJ included in the RFC assessment restrictions for "simple, routine tasks that do not involve interaction with the general public or more than occasional interaction with coworkers and supervisors." Tr. at 24.
In Mascio, 780 F.3d at 638, the court found the ALJ erred in assessing the plaintiff's RFC. Id. It stated "we agree with other circuits 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.'" Id. The court explained that it was possible for the ALJ to find that the moderate concentration, persistence, or pace limitation did not affect the plaintiff's ability to work, but that remand was required "because the ALJ here gave no explanation." Id. This court has interpreted the Fourth Circuit's holding in Mascio to emphasize that an ALJ must explain how he considered the claimant's limitation in concentration, persistence, or pace in assessing her RFC. See Sipple v. Colvin, No. 8:15-1961-MBS-JDA, 2016 WL 4414841, at *9 (D.S.C. Jul. 29, 2016), adopted by 2016 WL 4379555 (D.S.C. Aug. 17, 2016) ("After Mascio, further explanation and/or consideration is necessary regarding how Plaintiff's moderate limitation in concentration, persistence, or pace does or does not translate into a limitation in his RFC.").
Pursuant to Listing 12.00(E)(3), evaluation of a claimant's ability to maintain concentration, persistence, or pace requires examination of her "abilities to focus attention on work activities and stay on task at a sustained rate." 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(E)(3). "[T]he nature of this area of mental functioning" includes: "initiating and performing a task that you understand and know how to do; working at an appropriate and consistent pace; completing tasks in a timely manner; ignoring or avoiding distractions while working; changing activities or work settings without being disruptive; working close to or with others without interrupting or distracting them; sustaining an ordinary routine and regular attendance at work; and working a full day without needing more than the allotted number or length of rest periods during the day." Id.
The examples "illustrate the nature of the area of mental functioning," but the ALJ is not required to address all of the examples. 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(E)(3).
The undersigned is not persuaded by the Commissioner's argument that the ALJ's restriction to "simple, routine tasks" may be salvaged by the additional constraint that those tasks would "not involve interaction with the general public or more than occasional interaction with coworkers and supervisors." In limiting Plaintiff to "simple, routine tasks," the ALJ was addressing Plaintiff's ability to maintain concentration, persistence, or pace. The restriction to a work environment that did not involve interaction with the general public or more than occasional interaction with coworkers and supervisors was directed at Plaintiff's social functioning ability. See Dill v. Berryhill, No. 9:17-cv-1576-TCM-BM, 2018 WL 4212004, at *6 (D.S.C. Aug. 17, 2018), adopted by No. 2018 WL 4205648 (D.S.C. Sept. 4, 2018) ("Similarly, the ALJ limiting Plaintiff's RFC to no more than only minimal contact . . . with the general public . . . deals largely with workplace adaptation, rather than concentration, pace, or persistence.").
The undersigned agrees with the Commissioner's argument that an ALJ may adequately accommodate a claimant's moderate difficulties in concentration, persistence, or pace by crediting medical opinions of record and considering the limitations the medical providers indicated as part of the RFC assessment. See Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. 2017). In the instant case, the ALJ gave "great weight" to Dr. Laskis's opinion because he found it to be "more consistent with the record as a whole." Tr. at 27. He stated Dr. Laskis's opinion limiting Plaintiff to simple, unskilled work" and "limited interaction with the public, coworkers, and supervisors" "adequately account[ed]" for "evidence of deficits with concentration (Exhibit 17F) and the nature of the claimant's impairments." Id. He further indicated "[b]ased on this opinion and the treatment notes (Exhibit 18F and Exhibit 21F), the undersigned finds the mental limitations set forth in the above residual functional capacity."
Dr. Laskis was the state agency physician who evaluated the record and provided a medical opinion at the reconsideration level. See Tr. at 104-07. He considered the paragraph B criteria for Listings 12.04 (affective disorders), 12.08 (personality disorders), and 12.09 (substance addiction disorders) and assessed moderate difficulties in maintaining social functioning and concentration, persistence, or pace. Tr. at 104. He stated "[c]onsidering all information in the file there is nothing to indicate clmt would be precluded from performing simple, unskilled work." Tr. at 105. In explaining the reason for the degree of functional limitation and restrictions he assessed, Dr. Laskis noted that Dr. DePace had observed Plaintiff to have "some issues w/ concentration and socially," but "[n]o difficulty performing three-step commands." Id. He further stated he had accorded "[w]eight to Dr. Depace as he noted that clmt is able to perform 3 step commands." Id.
"[T]he ALJ must both identify evidence that supports his conclusion and 'build an accurate and logical bridge from [that] evidence to his conclusion.'" Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (citing Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). Thus, while the ALJ may rely on a medical opinion to support the restrictions in the RFC assessment, substantial evidence does not support his reliance on such an opinion if the opinion was inaccurate or if it was not logical for him to rely on it. A comparison of Dr. Laskis's opinion and Dr. DePace's consultative examination report shows that Dr. Laskis formed his opinion based on an erroneous review of Dr. DePace's findings. Compare Tr. at 104-05, with Tr. at 669-72. Dr. DePace specifically stated Plaintiff "would likely have difficulties in consistently performing three-step commands." Tr. at 672. Therefore, the ALJ relied on an opinion based on an erroneous interpretation of the record and failed to build the "accurate and logical bridge" from Dr. Laskis's opinion to his conclusion that Plaintiff would be limited to simple, routine tasks.
The ALJ's allocation of weight to other opinions of record provides no more insight into the restrictions he assessed. He gave "some weight" to Dr. Taylor's opinion. Tr. at 26-27. However, the restriction in the ALJ's assessed RFC for simple, routine tasks failed to address the "modified pace" at which Dr. Taylor indicated Plaintiff was capable of working. See Tr. at 621. He also accorded "some weight to Dr. DePace's opinion." Tr. at 27. However, his assessed restriction to simple, routine tasks failed to address Dr. DePace's opinions that Plaintiff's "concentration [was] likely limited" and her "tolerance for frustration seem[ed] to be poor." Tr. at 672.
In light of the ALJ's assessment of restrictions that were supported by Dr. Laskis's mistaken opinion and his failure to explain how he considered other relevant evidence of limitations, the undersigned recommends the court find that substantial evidence does not support his finding that a restriction to simple, routine tasks adequately accommodated Plaintiff's moderate difficulties in concentration, persistence, or pace.
b. Social Functioning
The ALJ also found Plaintiff to have moderate difficulties in social functioning. Tr. at 23. He noted Plaintiff's testimony "that she had not attended church in a few weeks," spent most of her time "at home" and "watching television," "goes on walks with her husband," and "is able to interact with a friend who gives her rides." Id. He concluded "[t]his level of functioning suggests no more than moderate limitation on social functioning." Id. As previously noted, he restricted Plaintiff to jobs requiring no interaction with the general public or more than occasional interaction with coworkers and supervisors." Tr. at 24.
Evaluation of a claimant's social functioning involves assessing her "abilit[y] to relate to and work with supervisors, co-workers, and the public." 20 C.F.R. Pt. 404, Subpt. P, App'x 1 § 12.00(E)(2). "Examples include: cooperating with others; asking for help when needed; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding and responding to social cues (physical, verbal, emotional); responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness. Id.
As discussed above, the ALJ gave "great weight" to Dr. Laskis's opinion. Tr. at 27. Although Dr. Laskis assessed moderate difficulties in maintaining social functioning, he did not specify any resulting functional limitation. See Tr. at 104-05. Thus, the restriction to no interaction with the general public and no more than occasional interaction with coworkers and supervisors is absent from his opinion. See id.
The ALJ also gave "some weight" to Dr. DePace's opinion. Tr. at 27. The record from Dr. DePace's exam indicates additional impairment to specific factors of social functioning that the ALJ declined to address in limiting Plaintiff to jobs requiring no interaction with the general public and no more than occasional interaction with coworkers and supervisors. Dr. DePace stated Plaintiff "did manifest several shifting emotions . . . as at times she was overly friendly and, at other times, seemed easily agitated." Tr. at 672. He noted Plaintiff "would likely have difficulties interacting with others." Id. The ALJ did not explain how the restriction to jobs requiring no interaction with the general public or more than occasional interaction with coworkers and supervisors would accomodate the limitations to social interaction identified by Dr. DePace.
The record contains other examples that suggest Plaintiff had difficulty engaging in socially-acceptable behavior. See Tr. at 490 and 682 (referencing Plaintiff's arguments with her significant during mental health visits); Tr. at 359-60, 365, 536, 573, 671 (indicating Plaintiff had difficulty maintaining treatment relationships because of conflicts with her medical providers); Tr. at 619 (noting a history of short terms of employment and job resignation because of conflict with management); Tr. at 621, 641 (referencing conflict with family members). Although the ALJ noted "the mostly normal mental status findings throughout the record with conservative management suggest no greater limitations" (Tr. at 27), he did not explain how the restriction to jobs requiring no interaction with the general public or more than occasional interaction with coworkers and supervisors accommodated the examples of impaired social functioning cited above.
Crucial to SSR 96-8p and the Fourth Circuit's decision in Mascio is the notion that a claimant should be able to read an ALJ's decision and understand how he considered the relevant evidence in assessing the RFC. Because it is impossible for Plaintiff or the court to read the ALJ's decision and determine why he concluded the assessed restrictions adequately addressed Plaintiff's moderate difficulties in social functioning, that portion of the RFC assessment is not supported by substantial evidence.
2. DOT Conflict
Plaintiff argues the ALJ erred in failing to recognize and resolve an apparent conflict between the RFC for simple, routine work and identified jobs with GED reasoning levels of two and three. [ECF No. 16 at 28].
The Commissioner maintains that no conflict existed because the VE explicitly confirmed that his testimony was consistent with the DOT. [ECF No. 18 at 16-17]. He further contends that "no court of appeals has ever determined that a 'simple, routine' functional capacity conflicts with GED Reasoning Level 2 jobs." Id. at 17. He argues the VE's testimony was consistent with the DOT because the identified jobs had an SVP of two. Id. at 21-22.
At step five in the sequential evaluation process, "the Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015), citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The Social Security Administration ("SSA") relies primarily on the DOT for information about the requirements of work in the national economy, and ALJs should take administrative notice of information contained therein and consider it in assessing claimants' abilities to perform specific jobs. 20 C.F.R. § 416.966(d). In some cases, ALJs obtain testimony from VEs to address more complex issues, such as whether claimants' work skills can be used in other work and specific occupations that allow for use of particular skills. 20 C.F.R. § 416.966(e).
In recognizing that opinions from VEs sometimes conflict with the information contained in the DOT, the SSA promulgated SSR 00-4p to explain how these conflicts should be resolved. The "purpose" of SSR 00-4p "is to require the ALJ (not the vocational expert) to '[i]dentify and obtain a reasonable explanation' for conflicts between the vocational expert's testimony and the Dictionary, and to '[e]xplain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208, citing SSR 00-4p (emphasis in original). Pursuant to SSR 00-4p, "[f]irst, the ALJ must '[a]sk the [vocational expert] . . . if the evidence he or she has provided conflicts with the information provided in the [Dictionary]'; and second, '[i]f the [vocational expert]'s . . . evidence appears to conflict with the [Dictionary],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. at 208, citing SSR 00-4p. "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [expert] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified.'" Id. at 208, citing SSR 00-4p (emphasis in original). Thus, "[t]he ALJ independently must identify conflicts between the expert's testimony and the Dictionary." Id. at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT" and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson v. Colvin, 643 F. App'x 273, 277 (4th Cir. 2016), citing Pearson, 810 F.3d at 210.
The court explained that an "apparent conflict" exists when the VE's testimony "seems to, but does not necessarily, conflict with the Dictionary." Pearson, 810 F.3d at 209. ALJs must resolve both obvious and apparent conflicts between the VE's testimony and the DOT. Id.
In Henderson, 643 F. App'x at 277, the court found that "there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions." The court explained that "[u]nlike GED reasoning Code 1, which requires the ability to '[a]pply commonsense understanding to carry out simple one-or-two-step instructions,' GED Reasoning Code 2 requires the employee to '[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.'" Id., citing DOT, 1991 WL 688702 (2008); Rounds v. Comm'r, 807 F.3d 996, 1003 (9th Cir. 2015) (holding that reasoning code two requires additional reasoning and understanding above the ability to complete one-to-two step tasks).
In the instant case, the ALJ relied on VE testimony to conclude Plaintiff's RFC for simple, routine tasks would allow her to perform work as a product inspector, a packer, and a machine operator. Tr. at 28-29. The Commissioner concedes [ECF No. 18 at 17], and the undersigned's review confirms, that the three jobs identified by the VE have a GED reasoning level of two. See 529.687-114. INSPECTOR, DOT (4th ed., revised 1991), 1991 WL 674763; 753.687-038. PACKING-LINE WORKER, DOT (4th ed., revised 1991), 1991 WL 680354; 689.685-130. SURGICAL-DRESSING MAKER, DOT (4th ed., revised 1991), 1991 WL 678409.
This court has previously explained that "[a] close examination of the GED reasoning levels" supported "the existence of an apparent conflict" between GED reasoning level two and a restriction to simple, routine tasks. Piner v. Berryhill, No. 1:17-317, 2017 WL 4712084, at *13-14 (D.S.C. Sept. 28, 2017). It explained as follows:
The DOT specifies that jobs with a GED reasoning level of one require workers to "[a]pply commonsense understanding to carry out simple one- or two-step instructions" and "[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job." DOT, 1991 WL 688702 (2016). Jobs with a GED reasoning level of two require workers to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving a few concrete variables in or from standardized situations." Id.Id. at *14. The court found the restriction to simple, routine tasks was more consistent with GED reasoning level one than two "because the abilities to perform simple tasks and to make simple work-related decisions in the RFC assessment are similar to the provision for applying commonsense understanding to carry out simple instructions at GED reasoning level one." Id. Furthermore, the "need for routine tasks" was "consistent with the provision for standardized situations at GED reasoning level one." Id. The court further noted that "[i]n contrast, the DOT's descriptions of GED reasoning level[] two" suggests the "jobs require more detail and variables than the RFC assessment describes." Id. Thus, a restriction to simple, routine tasks has been interpreted by this court to be inconsistent with GED reasoning levels above one in the absence of explanation from a VE.
The court recently considered the issue of conflict between GED reasoning level two and a limitation to simple, routine, repetitive tasks in Taylor v. Berryhill, No. 0:17-3419-CMC, 2019 WL 1397187 (D.S.C. Mar. 28, 2019). The Court noted the argument raised by the Commissioner and "acknowledge[d] authority from other circuits finding no apparent conflict between simple tasks or work and a GED reasoning level of two." Id., at *2 (citing Rounds v. Comm'r, 807 F.3d 996, 1004 n. 6 (9th Cir. 2015); Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010); Abrew v. Astrue, 303 F. App'x 567, 569 (9th Cir. 2008) (unpublished); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005); Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004) (unpublished)).
Although the Court recognized that the Fourth Circuit has issued no decision directly on point, it noted that "it has been the practice in this District since Henderson to remand based on an apparent conflict." Id., at *3 (citing Abstance v. Berryhill, No. 9:18-109-RMG, 2019 WL 669799, at *3 (D.S.C. Feb. 19, 2019) (holding a restriction to "simple, repetitive, routine tasks" raises a "legitimate question" as to whether Plaintiff could perform jobs requiring Level two reasoning); Williams v. Comm'r, No. 2:17-864, 2018 WL 4501239, at *3 (D.S.C. Sept. 20, 2018) ("The issue presented in this case [whether there is an apparent conflict between an RFC limiting plaintiffs to "simple, routine, and repetitive tasks" and GED reasoning level two] is one that has troubled district courts within the Fourth Circuit . . . . [C]onsistency among the courts of this district is important to litigants and counsel, and absent contrary authority from the Fourth Circuit, the Court . . . reverses and remands to the Commissioner."); Iliescu v. Berryhill, No. 4:17-1067, 2018 WL 2173793, at *2 (D.S.C. May 11, 2018) "[T]he courts of this District have repeatedly applied Henderson to hold that RFC limitations like Plaintiff's [to simple, routine work] are in apparent conflict with jobs that require level two reasoning."); Pressley v. Berryhill, No. 8:16-2716, 2017 WL 4174780, at *10 (D.S.C. Aug. 24, 2017) ("In the District of South Carolina, the Court has repeatedly found that a limitation to simple or routine tasks conflicts with jobs requiring a GED reasoning of 2 or 3 and that such a conflict must be addressed and resolved by the ALJ."), adopted without objection by 2017 WL 4156460). The Court ultimately concluded remand was required based on the ALJ's failure to resolve apparent conflicts between the VE's testimony and the DOT's job descriptions. Id. at *4.
Because all three jobs identified by the VE were jobs at GED reasoning level two, an apparent conflict existed between the VE's testimony and the DOT. Although the record shows the ALJ specifically asked the VE if his testimony was consistent with the DOT and the VE answered in the affirmative (Tr. at 79), the Fourth Circuit has specifically held that an ALJ does not satisfy his duty to resolve conflicts in the evidence merely by relying on a VE's testimony that no conflict exists. See Henderson, 643 F. App'x at 277; citing Pearson, 810 F.3d at 210; see also Pearson v. Commissioner of Social Security Administration, No. 1:16-2726-PMD-SVH, 2017 WL 1378197, at *12 (D.S.C. Mar. 29, 2017), adopted by 2017 WL 1364220 (D.S.C. Apr. 14, 2017) ("[T]he VE's failure to identify the conflict 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.").
Turning to the Commissioner's argument that the VE's testimony is supported by his identification of jobs with an SVP of two, the undersigned notes that all of the cases cited by the Commissioner were issued prior to the Fourth Circuit's decisions in Pearson and Henderson. The court has more recently rejected this argument and concluded that the GED reasoning level is "a distinct consideration apart from the SVP." See Pearson, 2017 WL 1378197, at *13 (citing Hann v. Colvin, No. 12-6234-JCS, 2014 WL 1382063 (N.D. Cal. Mar. 28, 2014) ("An SVP gauges 'the minimal ability a worker needs to complete the job's tasks themselves.' Accordingly, the SVP is inapposite to the analysis of whether the DOT's definition of Reasoning Level 2 is consistent with the VE's testimony regarding jobs that [the claimant] could perform with her RFC limitation to one-to-two step instructions."); Gonzalez v. Astrue, No. 1:10-1330, 2012 WL 14002, at *13 (E.D. Cal. Jan. 4, 2012) ("'Unskilled work,' however, as used by the DOT and the Commissioner's regulations, does not necessarily conflate with jobs that involve only simple one-to-two step instructions. There are two separate vocational considerations . . . In other words, not all 'unskilled jobs' will necessarily be limited to the simplest level of work involving only one- or two-step instructions."); Snider v. Colvin, No. 7:12-539, 2014 WL 739151, at *8 n.5 (W.D. Va. Feb. 26, 2014) ("The SVP level is different from the reasoning level, which gauges the minimal ability a worker needs to complete the job's tasks themselves."); see also Jackson v. Berryhill, No. 9:18-727-TMC-BM, 2019 WL 1574862, at *3 (D.S.C. Mar. 26, 2019), adopted by 2019 WL 1571675 (Apr. 11, 2019); Westberry v. Berryhill, No. 8:18-462-DCC-JDA, 2019 WL 2234672, at *11 (D.S.C. Feb. 26, 2019), adopted by 2019 WL 2233288 (D.S.C. May 23, 2019); Pack v. Berryhill, No. 9:17-2271-BHH-BM, 2018 WL 6113025, at *3 (D.S.C. Jun. 26, 2018), adopted by 2018 WL 5023608 (Oct. 17, 2018).
In light of the foregoing, the undersigned recommends the court find the ALJ failed to resolve an apparent conflict between the VE's testimony and the DOT. As a result, substantial evidence does not support the ALJ's finding that Plaintiff was capable of performing the identified jobs.
3. Additional Allegations of Error
Plaintiff argues the ALJ did not adequately address the medical opinion evidence. [ECF No. 16 at 24-28]. Because the undersigned finds the ALJ's decision to be unsupported by substantial evidence for the reasons explained above, the undersigned declines to address Plaintiff's additional allegation of error. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. July 19, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).