Opinion
C/A No. 0:18-1500-TMC-PJG
06-27-2019
Candace Arbogast, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Candace Arbogast, 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 defendant, Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do 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." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In September 2012, Arbogast applied for DIB, alleging disability beginning August 1, 1993. Arbogast's application was denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on July 17, 2014, at which Arbogast, who was represented by Sydney J. Lynn, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on September 19, 2014 finding that Arbogast was not disabled. (Tr. 24-32.) The Appeals Council denied Arbogast's request for review, and Arbogast appealed to the United States District Court. The district court reversed the ALJ's September 19, 2014 decision and remanded Arbogast's claim for further consideration of Arbogast's disability rating of the Department of Veterans Affairs, as well as further consideration of Arbogast's post-traumatic stress disorder. (Tr. 930-41.) The Appeals Council issued an order on October 7, 2016 remanding the matter for further proceedings consistent with the order of the district court. (Tr. 942-46.) A second hearing was held on July 12, 2017, at which Arbogast appeared and testified and was represented by W. Daniel Mayes, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on November 8, 2017 finding that Arbogast was not disabled. (Tr. 793-806.)
The ALJ stated that Arbogast's September 2015 DIB application was associated in her decision. (Tr. 793.)
Arbogast was born in 1974 and was thirty-eight years old on her alleged disability onset date. She has a high-school education and completed basic training with the United States Air Force. (Tr. 306, 1234.) Arbogast has past relevant work experience as a medical assistant. (Id.) Arbogast alleged disability due to migraines, depression, anxiety, post-traumatic stress disorder, endometriosis status post residuals of a hysterectomy, sexual trauma, memory loss, nausea and vomiting, and alcohol dependence. (Tr. 305, 1233.)
In applying the five-step sequential process, the ALJ found that Arbogast had not engaged in substantial gainful activity since her alleged onset date of September 28, 2012. The ALJ determined that Arbogast's major depressive disorder, post-traumatic stress disorder, migraine headaches, and alcohol and marijuana abuse were severe impairments. The ALJ found that Arbogast's impairments, including the substance use disorders, met Section 12.04 of 20 CFR Part 404, Subpart P, Appendix 1 ("the "Listings"). Additionally, the ALJ found that if Arbogast stopped the substance use, Arbogast's remaining limitations would cause more than a minimal impact on her ability to perform basic work activities, and therefore, Arbogast would continue to have a severe impairment or combination of impairments. However, the ALJ found that if Arbogast stopped the substance use, Arbogast would not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. The ALJ found that, if Arbogast stopped the substance use, Arbogast would have the residual functional capacity to
perform a full range of work at all exertional levels but with the following nonexertional limitations: to avoid ladders, ropes, scaffolds, fumes, dust, chemicals, noxious odors, poor ventilation, and workplace hazards; to avoid temperature extremes and overly noisy work environment; to perform simple, routine tasks with only occasional interaction with the general public.(Tr. 800.) The ALJ found that, if Arbogast stopped the substance use, Arbogast would be unable to perform past relevant work. However, the ALJ found that, if Arbogast stopped the substance use, considering Arbogast's age, education, work experience, and residual functional capacity, there would be a significant number of jobs in the national economy that Arbogast could perform. The ALJ determined that the substance use disorder was a contributing factor material to the determination of disability because Arbogast would not be disabled if she stopped the substance use. Therefore, the ALJ found that, because the substance use disorder was a contributing factor material to the determination of disability, Arbogast had not been disabled from the alleged onset date of September 29, 2012 through the date of the decision.
The Appeals Council specifically considered Arbogast's challenges to the ALJ's decision and denied Arbogast's request for review on March 28, 2018, making the decision of the ALJ the final action of the Commissioner. (Tr. 782-88.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Arbogast raises the following issues for this judicial review:
I. The ALJ failed to comply with the Appeals Council Remand Order[.](Pl.'s Br., ECF No. 15)
II. The ALJ failed to properly assess medical source opinion evidence[.]
III. The RFC fails to properly account for moderate difficulties in concentration, persistence, and pace[.]
IV. The issue of the Plaintiff's ability to do substantial work in significant numbers remains undetermined despite the testimony of the vocational expert.
V. The ALJ fails to properly consider SSR 13-2p in the evaluation of substance abuse.
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claim was filed prior to that date, all references in the instant Report and Recommendation are to the prior versions of the regulations which were in effect at the time Arbogast's application for benefits was filed, unless otherwise specified.
Although Arbogast raises several issues for this judicial review, the court finds that remand is warranted in light of recently issued case law from the United States Court of Appeals for the Fourth Circuit on Arbogast's fourth issue on appeal.
As part of the ALJ's duty at Step Five of the sequential process, the ALJ must resolve any apparent conflicts between a vocational expert's testimony and the DOT. See Pearson v. Colvin, 810 F.3d 204, 208-11 (4th Cir. 2015); SSR 00-04p, 2000 WL 1898704. Arbogast argues that an apparent conflict does exist between the testimony provided by the vocational expert and the occupational information in the DOT, and that the ALJ erred in failing to resolve this conflict.
Specifically, Arbogast argues that an apparent conflict exists because the occupations identified by the vocational expert as a ticketer and a routing clerk have a General Educational Development ("GED") reasoning level of 2, which Arbogast argues exceeds her limitation that she can "perform simple, routine tasks." As an initial matter, the United States Court of Appeals for the Fourth Circuit has not addressed this precise issue; however, very recently the Fourth Circuit issued Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), a published opinion addressing a similar issue. In Thomas, the court first observed that
The DOT explains that reasoning level one requires the worker 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, App. C, 1991 WL 688702. Reasoning level two requires the worker 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. Further, the Commissioner appears to concede that an apparent conflict exists between Arbogast's limitations and the third job identified by the vocational expert, shipping and receiving weigher, as this job has a reasoning level of three. (Def.'s Br. at 23, ECF No. 20 at 23.)
The court notes that Thomas was issued while this matter was pending before this court; therefore, the ALJ did not have the benefit of Thomas.
[a]n ALJ cannot rely unquestioningly on a VE's testimony. Rather, an ALJ must ensure that any "apparent" conflicts between the Dictionary and the VE's testimony are reasonably resolved. SSR 00-4P, 2000 WL 1898704 at *2. To that end, the ALJ must ask the VE whether his or her testimony conflicts with the DOT. If the answer is "yes," the ALJ "must elicit a reasonable explanation for the conflict before relying on" the testimony. Id. But even if the VE answers "no," the ALJ has an affirmative
"duty to make an independent identification of apparent conflicts." Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015). This means that the ALJ must recognize and resolve ways in which a VE's testimony "seems to, but does not necessarily," conflict with the "express language" of the DOT—even if the conflict is not "obvious." Id. at 209.Thomas, 916 F.3d at 313. The Thomas Court found that an apparent conflict existed between a limitation to "short, simple instructions" and the need to carry out "detailed but uninvolved . . . instructions" as required by jobs with a GED of 2. Id. at 313.
The court also notes the non-binding decision from the Fourth Circuit in Henderson v. Colvin, 643 F. App'x 273 (4th Cir. 2016). In Henderson, the Fourth Circuit found a conflict between "an RFC that limits [the claimant] to one-to-two step instructions and GED Reasoning Code 2, which requires the ability to understand detailed instructions." Id. at 277.
The Fourth Circuit has not addressed whether a limitation to "simple, routine tasks" would similarly present an apparent conflict. Further, a split exists among the circuit courts and district courts within the Fourth Circuit that have addressed this issue. Compare Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1004 n.6 (9th Cir. 2015) ("Unpublished decisions of panels of this Court and opinions from some of our sister circuits have concluded that an RFC limitation to 'simple' or 'repetitive' tasks is consistent with Level Two reasoning.") (citing Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010); Abrew v. Astrue, 303 F. App'x 567, 569 (9th Cir. 2008); Lara v. Astrue, 305 F. App'x 324, 326 (9th Cir. 2008); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005); Money v. Barnhart, 91 F. App'x 210, 215 (3d Cir. 2004)), and Lambert v. Berryhill, C/A No. 5:18-00028-RJC-DSC, 2019 WL 1354038, at *6 (W.D.N.C. Mar. 26, 2019) (distinguishing Thomas, finding "a meaningful difference exists between a limitation to perform only simple, repetitive, routine tasks . . . and a limitation to only receive and follow short, simple instructions—the RFC limitation in Thomas. The first limitation accounts for a claimant's ability to perform certain job tasks while the second limitation accounts for a claimant's ability to comprehend job tasks" and collecting cases in that district holding that no apparent conflict exists between a limitation to perform simple, repetitive, routine tasks and jobs with Reasoning Level 2), with Taylor v. Berryhill, C/A No. 0:17-3419-CMC, 2019 WL 1397187, at *2-3 (D.S.C. Mar. 28, 2019) (observing after Thomas that, "[i]f a limitation to simple, routine, repetitive tasks is akin to short, simple instructions, it appears there is an apparent conflict unresolved by the ALJ" and collecting cases showing the practice in this District since Henderson v. Colvin, 643 F. App'x 273 (4th Cir. 2016), to remand based on an apparent conflict between "simple, repetitive, and routine tasks" and a GED of 2). However, an unpublished decision from the Fourth Circuit has suggested that it is appropriate to rely on "precedent addressing a simple tasks limitation when considering a simple instructions limitation." Keller v. Berryhill, 754 F. App'x 193, n.4 (4th Cir. 2018).
In light of Thomas and Keller, an apparent conflict may exist between Arbogast's limitations and jobs with a GED of 2 that would require additional explanation from a vocational expert. See Pearson, 810 F.3d at 209 (finding that the context of the word "apparent" in SSR 00-4p makes plain that the Ruling intends for the ALJ to "identify where the expert's testimony seems to, but does not necessarily, conflict with the Dictionary"). Accordingly, based on the foregoing, the court is constrained to find an apparent unresolved conflict may exist and that additional explanation from the vocational expert is necessary to resolve this conflict.
The court observes that with regard to Arbogast's other issues, the ALJ in this matter appears to have performed a thorough and detailed review and analysis of the evidence presented. Moreover, although Arbogast may be able to point to selective evidence supporting her allegations of disabling limitations, the decision appears to be comfortably within the bounds of substantial evidence and free of legal error. However, the court does not address these other arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments).
Although Arbogast seeks a reversal and remand for an award of benefits, the court finds that, contrary to Arbogast's arguments, her entitlement to benefits is not wholly established and that this matter should be remanded for further consideration and assessment of the above discussed evidence by the Commissioner in the first instance. See Crider v. Harris, 624 F.2d 15 (4th Cir. 1980) (finding remand for an award of benefits was warranted where the individual's entitlement to benefits was "wholly established" on the state of the record); Smith v. Astrue, No. 3:10-66-HMH-JRM, 2011 WL 846833, at *3 (D.S.C. Mar. 7, 2011) ("Whether to reverse and remand for an award of benefits or remand for a new hearing rests within the sound discretion of the district court.") (citing Edwards v. Bowen, 672 F. Supp. 230, 237 (E.D.N.C. 1987)); cf. Radford v. Colvin, 734 F.3d 288, 294-95 (4th Cir. 2013) ("Although we hold that the district court did not apply the wrong legal standard, we nonetheless vacate its judgment because it chose the wrong remedy: Rather than 'reversing' the ALJ and remanding with instructions to award benefits to Radford, the district court should have vacated and remanded with instructions for the ALJ to clarify why Radford did not satisfy Listing 1.04A."). However, the court is mindful of the length of this process to date, and therefore recommends that the Commissioner be directed to expedite reconsideration of this matter on remand.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. June 27, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
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).