Opinion
Civil Action 8:22-cv-04018-BHH-JDA
12-01-2023
Yakeisha S.,[1] Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28 U.S.C. § 636(b)(1)(B). Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).For the reasons set forth below, the decision of the Commissioner is reversed and remanded for administrative action consistent with this Order, pursuant to sentence four of 42 U.S.C. § 405(g).
A Report and Recommendation is being filed in this case, in which one or both parties declined to consent to disposition by a magistrate judge.
Section 1383(c)(3) provides, “The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title.” 42 U.S.C. § 1383(c)(3).
PROCEDURAL HISTORY
In May 2018, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of February 1, 2018 (the “First Claims”). [See R. 74.] In a bench decision, Administrative Law Judge Gregory M. Wilson (“ALJ Wilson”) found Plaintiff disabled for the period of February 1, 2018, through March 12, 2019. [R. 74-78.]
In March 2020, Plaintiff filed new applications for DIB and SSI, again alleging disability beginning February 1, 2018. [R. 284-85, 288-96; see R. 10.] The claims were denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 146-49, 153-60.] Plaintiff requested a hearing before an administrative law judge, and on March 16, 2022, ALJ James Cumbie (“ALJ Cumbie” or “the ALJ”) conducted a de novo hearing on Plaintiff's claims. [R. 46-73.]
A hearing was commenced on December 3, 2021, but was continued to obtain a transcript of the prior proceeding, which was related to the First Claims. [R. 36-45.] ALJ Cumbie reviewed the transcript related to the First Claims but did not exhibit it. [R. 52.]
ALJ Cumbie issued a decision on April 19, 2022, finding Plaintiff not disabled as defined by the Social Security Act (“the Act”) from March 13, 2019, through the date of the decision. [R. 7-30.] At Step 1, the ALJ found Plaintiff meets the Act's insured-status requirements through June 30, 2024, and had not engaged in substantial gainful activity since March 13, 2019. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found that Plaintiff had the following severe impairments: obesity, lumbar stenosis, carpal tunnel syndrome, and depression. [R. 13, Finding 3.] The ALJ also found that Plaintiff had headaches that were non-severe. [R. 13.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 14, Finding 4.]
The five-step sequential analysis used to evaluate disability claims is discussed in the Applicable Law section, infra.
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found that Plaintiff retained the following residual functional capacity (“RFC”):
[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can frequently reach, handle, finger, and feel. She can frequently balance, stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to hazards. She can have frequent interaction with the public, coworkers and supervisors. She can maintain attention and concentration for the 2-hour segments before and after the 15 minute morning and afternoon breaks and the 30 minute lunch period. She is limited to simple routine and repetitive tasks.[R. 17, Finding 5.]
The ALJ determined at Step 4 that Plaintiff had no past relevant work. [R. 22, Finding 6.] Upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 23, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability as defined by the Act from March 13, 2019, through the date of the decision. [R. 24, Finding 11.]
ALJ Cumbie found no basis for reopening the decision regarding the First Claims and thus ALJ Cumbie's decision focused on the period beginning the day after the period covered by the First Claims. [R. 10.]
Plaintiff requested Appeals Council review, which was denied. [R. 1-6.] Plaintiff filed the instant request for judicial review on November 13, 2022. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff argues that substantial evidence does not support the ALJ's findings regarding Plaintiff's limitations or RFC. [Docs. 11; 13.] Specifically, Plaintiff argues the ALJ failed to explain why his RFC did not include the limit to one-to-two-step work that ALJ Wilson included [Doc.11 at 18-20] and why he did not include as a limitation the need for a cane [id. at 20]. Plaintiff also argues that the ALJ failed to properly consider opinions in the record supporting limitations that would lead to a finding of disability. [Id. at 21-26]. The Commissioner, on the other hand, contends that the ALJ relied on substantial evidence to support his finding that Plaintiff was not disabled within the meaning of the Act. [Doc. 12.]
STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Where conflicting evidence “allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ),” not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Hum. Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision “is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision ‘with or without remanding the cause for a rehearing.'” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial evidence to support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner's decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090-91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant's RFC); Brenem v. Harris, 621 F.2d 688, 690-91 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner's decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm'r, 734 F.3d 288, 295 (4th Cir. 2013);see also Smith v. Heckler, 782 F.2d 1176, 1181-82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207.
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ....42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985), superseded by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Hum. Servs., 925 F.2d 769, 774 (4th Cir. 1991). With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings. See Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C. § 405(g) is not a final order).
Though the court in Wilkins indicated in a parenthetical that the four-part test set forth in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152, 2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107, 2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm'r of Soc. Sec., No. 2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec'y of Health & Hum. Servs., 807 F.Supp. 1248, 1250 n.3 (S.D. W.Va. 1992). Further, the Supreme Court of the United States has not suggested Borders' construction of § 405(g) is incorrect. See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply the more stringent Borders inquiry.
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a disability. 42 U.S.C. § 423(a). “Disability” is defined as:
the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 consecutive months.Id. § 423(d)(1)(A).
I. The Five-Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering disability claims). The ALJ must consider whether (1) the claimant is engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the impairment meets or equals an impairment included in the Administration's Official Listings of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents the claimant from performing past relevant work; and (5) the impairment prevents the claimant from having substantial gainful employment. 20 C.F.R. §§ 404.1520, 416.920. Through the fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of her insured status to receive disability benefits. Everett v. Sec'y of Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden shifts to the Commissioner to produce evidence that other jobs exist in the national economy that the claimant can perform, considering the claimant's age, education, and work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A. Substantial Gainful Activity
“Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. §§ 404.1572(a), 416.972(a)-and gainful-done for pay or profit, whether or not a profit is realized, Id. §§ 404.1572(b), 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is generally presumed to be able to engage in substantial gainful activity. Id. §§ 404.1574-.1575, 416.974-.975.
B. Severe Impairment
An impairment is “severe” if it significantly limits an individual's ability to perform basic work activities. See id. §§ 404.1522, 416.922. When determining whether a claimant's physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant's impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ must evaluate a disability claimant as a whole person and not in the abstract, having several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that, when evaluating the effect of a number of impairments on a disability claimant, “the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them”). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must adequately explain his or her evaluation of the combined effects of the impairments.”). If the ALJ finds a combination of impairments to be severe, “the combined impact of the impairments shall be considered throughout the disability determination process.” 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C. Meets or Equals an Impairment Listed in the Listings of Impairments
If a claimant's impairment or combination of impairments meets or medically equals the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration requirement found at 20 C.F.R. §§ 404.1509 or 416.909, the ALJ will find the claimant disabled without considering the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d).
The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R. §§ 416.911, 416.925.
D. Past Relevant Work
The assessment of a claimant's ability to perform past relevant work “reflect[s] the statute's focus on the functional capacity retained by the claimant.” Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the claimant's RFC with the physical and mental demands of the kind of work he has done in the past to determine whether the claimant has the RFC to do his past work. 20 C.F.R. §§ 404.1560(b), 416.960(b).
RFC is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
E. Other Work
As previously stated, once the ALJ finds that a claimant cannot return to her prior work, the burden of proof shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. See 20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). To meet this burden, the Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the “grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant nonexertional factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving exertional limitations). When a claimant suffers from both exertional and nonexertional limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case, the Commissioner must use a VE to establish the claimant's ability to perform other work. 20 C.F.R. §§ 404.1569a, 416.969a; see Walker, 889 F.2d at 49-50 (“Because we have found that the grids cannot be relied upon to show conclusively that claimant is not disabled, when the case is remanded it will be incumbent upon the [Commissioner] to prove by expert vocational testimony that despite the combination of exertional and nonexertional impairments, the claimant retains the ability to perform specific jobs which exist in the national economy.”). The purpose of using a vocational expert is “to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert's testimony to be relevant, “it must be based upon a consideration of all other evidence in the record, . . . and it must be in response to proper hypothetical questions which fairly set out all of claimant's impairments.” Id. (citations omitted).
An exertional limitation is one that affects the claimant's ability to meet the strength requirements of jobs. 20 C.F.R. §§ 404.1569a(a), 416.969a(a). A nonexertional limitation is one that affects the ability to meet the demands of the job other than the strength demands. Id. Examples of nonexertional limitations include but are not limited to difficulty functioning because of being nervous, anxious, or depressed; difficulty maintaining attention or concentrating; difficulty understanding or remembering detailed instructions; difficulty seeing or hearing. 20 C.F.R. §§ 404.1569a(c)(1), 416.969a(c)(1).
II. Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir. 1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts, . . . being especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id. (internal quotations and citations omitted).
III. Medical Opinions
For claims filed on or after March 27, 2017, as Plaintiff's are, the applicable regulations require ALJs to consider the persuasiveness of each medical opinion of record in accordance with the following factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict the opinion. 20 C.F.R. §§ 404.1520c(b), (c), 416.920c(b), (c). Regarding supportability, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion . . . the more persuasive the medical opinion will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). As for the relationship with the claimant, ALJs consider the “length of the treatment relationship,” the “[f]requency of examinations,” the “[p]urpose of the treatment relationship,” the “[e]xtent of the treatment relationship,” and whether the source has examined the claimant. 20 C.F.R. §§ 404.1520c(c)(3), 416.920c(c)(3).
The new regulations define the term “medical opinion” as “a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions.” 20 C.F.R. § 404.1513(a)(2), 416.913(a)(2).
IV. Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a claimant's medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled. 20 C.F.R. §§ 404.1517, 416.917; see also Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative examination is not required when there is sufficient medical evidence to make a determination on a claimant's disability. 20 C.F.R. §§ 404.1517, 416.917. Under the regulations, however, the ALJ may determine that a consultative examination or other medical tests are necessary. Id.
V. Pain
Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment that could reasonably be expected to produce the pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). Social Security Ruling (“SSR”) 16-3p provides, “[i]n considering the intensity, persistence, and limiting effects of an individual's symptoms, we examine the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Social Security Ruling 16-3p Titles II and XVI: Evaluation of Symptoms In Disability Claims, 82 Fed.Reg. 49,462, 49,464 (Oct. 25, 2017); see also 20 C.F.R. §§ 404.1529(c)(1)-(2), 416.929(c)(1)-(2) (outlining evaluation of pain).
In evaluating claims of disabling pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 Fed.Appx. 716, 723 (4th Cir. 2005) (unpublished opinion); see also SSR 16-3p, 82 Fed.Reg. at 49,463. First, “the ALJ must determine whether the claimant has produced medical evidence of a ‘medically determinable impairment which could reasonably be expected to produce” the alleged symptoms. Id. (quoting Craig, 76 F.3d at 594); see SSR 16-3p, 82 Fed.Reg. at 49,463. Second, the ALJ must evaluate “the intensity and persistence of an individual's symptoms such as pain and determine the extent to which an individual's symptoms limit his or her ability to perform work-related activities . . . or to function independently.” SSR 16-3p, 82 Fed.Reg. at 49,464; see 20 C.F.R. §§ 404.1529, 416.929 (noting that the ALJ must consider all of a claimant's statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence).
APPLICATION AND ANALYSIS
RFC
Plaintiff argues that ALJ Cumbie failed to reconcile ALJ Wilson's prior disability determination related to her mental impairments when formulating the RFC. [Doc. 11 at 18-19.] The Court agrees.
Relevant Facts and the Analyses of ALJs Wilson and Cumbie
On November 20, 2019, ALJ Wilson issued a favorable decision related to Plaintiff's First Claims, finding that Plaintiff was “disabled as of a closed period February 1, 2018 to March 12, 2019 . . . because of lumbar, carpal tunnel syndrome, obesity, anxiety, depression and neurodevelopment disorder, so severe that [she] could not perform any work existing in significant numbers.” [R. 74.] Regarding ALJ Wilson's determination of Plaintiff's RFC, ALJ Cumbie noted that
[ALJ Wilson] found [Plaintiff] could lift 20 pounds occasionally, 10 pounds frequently; sit, stand, and walk six of eight hours each. The postural functions would be occasional. Handling and fingering would be frequent. She needed to avoid concentrated exposure to vibration and hazards. She can do simple 1-2 step work on a sustained basis. She needed rest breaks on a daily basis in addition to normal breaks.[R. 20-21 (emphasis added).] ALJ Cumbie gave ALJ Wilson's RFC determination little weight “due to improvement as to the breaks.” [R. 21.] He noted,
[T]he postural limitations have been increased to frequent but [ALJ Wilson's decision] is well reasoned and persuasive as to
the assessment of some frequent manipulative limitations although more areas of manipulative frequent limitations are now supported.[] There is no indication [Plaintiff] would require additional breaks. She has been doing very well following her back surgery.[R. 21 (internal quotation marks omitted).]
As stated, ALJ Cumbie found Plaintiff had the following RFC for the unadjudicated period:
[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can frequently reach, handle, finger, and feel. She can frequently balance, stoop, kneel, crouch, and crawl. She must avoid concentrated exposure to hazards. She can have frequent interaction with the public, coworkers and supervisors. She can maintain attention and concentration for the 2-hour segments before and after the 15 minute morning and afternoon breaks and the 30 minute lunch period. She is limited to simple routine and repetitive tasks.[R. 10, 17 (emphasis added).]
ALJ Cumbie found that although Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in [the] decision.” [R. 17.] In support of that conclusion, ALJ Cumbie included the following discussion of Plaintiff's mental limitations:
As for [Plaintiff's] mental health, on mental status examination in March 2019, [Plaintiff] was alert and oriented. Her speech and behavior were normal. Judgment and thought content were normal. Her mood was not anxious or depressed. On mental status examination in November 2019, speech and behavior were normal. Thought content was normal.
On mental status examination in November 2020, [Plaintiff's] mood was normal. Speech and behavior were normal. Thought content and judgment were normal. Again in May 2021, mood was normal. Behavior was normal. The limitations in the above [RFC] for frequent interaction with others; and simple routine and repetitive tasks, sufficiently account for this.[R. 19 (record citations omitted).] In his discussion of Plaintiff's RFC, ALJ Cumbie added:
From a mental standpoint, [Plaintiff's] treatment notes, subjective allegations, and activities of daily living support finding limitations with respect to concentration, persistence, and pace, which is accounted for in the RFC as follows, can maintain attention and concentration for the 2 hour segments before and after the 15 minute morning and afternoon breaks and the 30 minute lunch period.
The moderate understanding limitations are reflected by simple routine and repetitive tasks in the RFC and the statement by Dr. Loring is well reasoned[,] supported, and persuasive to the extent she is literate at B15F/1. The social demands are reflected in add Frequent interaction with the public, coworkers and supervisors.[R. 22.]
Discussion
During the RFC assessment, the ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observation)” and “must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996). “[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 v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015). “In other words, the ALJ must both identify evidence that supports his conclusion and ‘build an accurate logical bridge from [that] evidence to his conclusion.'” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (alteration in original), superseded on other grounds as recognized in Rogers v. Kijakazi, 62 F. 4th 872, 878-80 (4th Cir. 2023).
In light of the difference between the limitations from mental impairments that ALJ Wilson found and those that ALJ Cumbie identified, the Court also must consider the rules concerning the weight such a prior decision must be given. In Lively v. Secretary of Health and Human Services, 820 F.2d 1391 (4th Cir. 1987), the Fourth Circuit stated, “It is by now well-established that fundamental and familiar principles of res judicata apply in Social Security disability cases.” Id. at 1392. In that case, the Administration found that the claimant, who was not yet 55 when he was denied benefits, was capable of performing light work and thus was not disabled. Id. at 1391-92. However, once he turned 55 just weeks after that decision, the claimant re-applied for benefits because, under the Administration's grid rules, a person who can perform no more than light work is disabled if he is age 55 or older. Id. at 1392; 20 C.F.R. Pt. 404, Subpt. P, App. 2. The second ALJ determined, without discussing the prior ALJ's decision, that the claimant could perform work at any exertional level and thus was not disabled. Lively, 820 F.2d at 1392. On appeal, the Fourth Circuit reversed and remanded, reasoning that “[i]t is utterly inconceivable that [the claimant's] condition had so improved in two weeks as to enable him to perform medium work,” and “the Secretary must shoulder the burden of demonstrating that the claimant's condition had improved sufficiently” to reject a prior finding. Id.
In Albright v. Commissioner of Social Security Administration, 174 F.3d 473 (4th Cir. 1999), the Fourth Circuit clarified that Lively is best understood, not as an application of res judicata, but “as a practical illustration of the substantial evidence rule” insofar as the court “determined that the finding of a qualified and disinterested tribunal that Lively was capable of performing only light work as of a certain date was such an important and probative fact as to render the subsequent finding to the contrary unsupported by substantial evidence.” Id. at 477-78. The court added that to have reached a different result “would have thwarted the legitimate expectations of claimants-and, indeed, society at large-that final agency adjudications should carry considerable weight.” Id. at 478.
Responding to Fourth Circuit decisions in Lively and Albright, the Administration in 2000 released Acquiescence Ruling 00-1(4), which explains:
When adjudicating a subsequent disability claim arising under the same or a different title of the Act as the prior claim, an adjudicator determining whether a claimant is disabled during a previously unadjudicated period must consider such a prior finding as evidence and give it appropriate weight in light of all relevant facts and circumstances. In determining the weight to be given such a prior finding, an adjudicator will consider such factors as: (1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent claim; and (3) the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.AR 00-1(4), 2000 WL 43774, at *4 (S.S.A. Jan. 12, 2000).
Here, ALJ Wilson found, regarding Plaintiff's mental limitations, that she was limited to “simple 1-2 step work” for the period he was considering-February 1, 2018, through March 12, 2019. [R. 10, 21.] In contrast, for the period beginning the following day, March 13, 2019, ALJ Cumbie found that Plaintiff could do “simple routine and repetitive tasks,” but he did not find she was limited to simple one-to-two-step work. [R. 17.]
This difference in limitations is not merely semantic; rather, it indicates a different type of limitation. As the Fourth Circuit has explained, in contrast to simple one-to-two-step work, “‘simple, routine, repetitive tasks'” may involve many steps as long as each step is straightforward. Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019). Additionally, a limitation to simple one-to-two-step work appears to correspond with jobs with a GED reasoning level of 1 under the Dictionary of Occupational Titles (“DOT”), and not with a reasoning level of 2. See DOT, 1991 WL 688702 (defining reasoning level 1 as having the ability 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”; defining reasoning level 2 as having the ability 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 standard situations”); see also Rounds v. Comm'r, 807 F.3d 996, 1003 (9th Cir. 2015) (holding that reasoning level 2 requires additional reasoning and understanding above the ability to complete one-to-two step tasks); Sullivan v. Colvin, No. 8:16-cv-79-JMC-JDA, 2016 WL 7228854, at *9-10 (D.S.C. Nov. 10, 2016) (finding that the ALJ erred in either failing to recognize or neglecting to obtain an explanation as to a conflict between an RFC for “one or two step tasks” and the VE's identification of jobs with a GED reasoning level of 2), Report and Recommendation adopted by 2016 WL 7212784 (D.S.C. Dec. 13, 2016). On the other hand, the Fourth Circuit has noted that there is no apparent conflict between a limitation to “simple, routine, and repetitive” work and Level Two reasoning. See Lawrence, 941 F.3d at 143-44 & n.8.
“The DOT lists occupations existing in the economy and explains some of their physical and mental requirements.” Lawrence, 941 F.3d at 141 n.1. “The DOT's reasoning development scale has six levels in ascending order of complexity.” Id. at 142 n.5.
Given that the unadjudicated period covered by the present claims starts the day after the end of the period ALJ Wilson considered, it was incumbent on ALJ Cumbie to explain why he did not adopt ALJ Wilson's limitation to one-to-two-step work. In the absence of such an explanation, the Court concludes that the ALJ failed to build a logical bridge from the evidence to his RFC, thus, frustrating review by the Court. On this basis, the Court recommends that the ALJ's decision be reversed and the case remanded. On remand, the ALJ should build an accurate and logical bridge from the evidence, including ALJ Wilson's decision, to Plaintiff's RFC for the current claims.
The Commissioner argues that ALJ Cumbie constructed a logical bridge because the evidence ALJ Cumbie outlined “revealed limited treatment and benign mental status findings and does not support limitations beyond those included in the current RFC assessment.” [Doc. 12 at 11.] However, regardless of whether the evidence might have supported a determination by ALJ Cumbie that Plaintiff's mental condition improved after the period covered by ALJ Wilson's decision, ALJ Cumbie did not make clear that he believed such a change occurred. Indeed, it is not apparent whether ALJ Cumbie gave any consideration to ALJ Wilson's finding that Plaintiff was limited to one-to-two-step tasks. That lack of clarity stands in sharp contrast with the ALJ's explicit discussion of the weight given to other parts of the previous RFC, specifically breaks, postural limitations, and manipulative limitations. [See R. 21.]
Remaining Allegations of Error
Because the Court finds that the ALJ's failure to provide an accurate and logical bridge from the evidence to the conclusion with respect to Plaintiff's limitations after March 12, 2019, is a sufficient basis to remand this matter for further consideration, the Court declines to address Plaintiff's remaining allegations. See Hancock v. Barnhart, 206 F.Supp.2d 757, 763 n.3 (W.D. Va. 2002). However, on remand, the ALJ should consider Plaintiff's remaining allegations of error.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case be REMANDED to the Commissioner for further administrative action consistent with this Report and Recommendation.