Opinion
Civil Action No. 5:19-3174-RMG-KDW
12-10-2020
Glenn M. Fields, III, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to the Social Security Act ("the Act"). The issues before the court are whether the decision is supported by substantial evidence and whether the Commissioner's decision contains an error of law. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further administrative action. I. Relevant Background
A. Procedural History
In December 2011, Plaintiff applied for DIB and SSI alleging a disability onset date of January 1, 2010. Tr. 144-54. His applications were denied initially on March 20, 2012, Tr. 85-86, and upon reconsideration on May 21, 2012, Tr. 124-25. Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). Tr. 137-38. ALJ Alice Jordan conducted Plaintiff's first administrative hearing on August 26, 2013, taking testimony from Plaintiff and Vocational Expert ("VE") Vincent Hecker. Tr. 50-84. Representing Plaintiff at the hearing was her attorney, Rebecca Anderson. Tr. 50. ALJ Jordan issued a decision on November 20, 2013, finding Plaintiff was not disabled. Tr. 15-27. Plaintiff sought review by the Appeals Council. Tr. 14. After granting Plaintiff additional time to submit information, the Appeals Council denied the request for review, thereby making the ALJ's decision the Commissioner's final administrative decision for purposes of judicial review. Tr. 1-5.
The Application Summary is dated January 5, 2012; however, Plaintiff's protective filing date is December 27, 2011, and his date last insured is December 31, 2013. See Tr. 181 (Ex. 6E, Disability Report-Field Office Form SSA-3367).
Plaintiff later amended his onset date to November 8, 2011, "the date he presented to the emergency room with right knee pain and was prescribed crutches." Tr. 199.
After the Appeals Council denied his request for review, on April 10, 2015, Plaintiff appealed the unfavorable decision to the United States District Court for the District of South Carolina arguing that the ALJ failed to properly assess Plaintiff's residual functional capacity ("RFC") and mental impairments. See Fields v. Colvin, C/A No. 5:15-cv-1583-RMG, ECF Nos. 1, 8. Plaintiff obtained an Order, filed March 25, 2016, reversing the Commissioner's decision and remanding the case for further proceedings based on the findings in the Report and Recommendation ("R&R") of the Magistrate Judge. Tr. 501-505, Order in C/A No. 5:15-cv-1583-RMG. The R&R recommended remand only on the RFC issue. Tr. 476-499. On May 3, 2016, the Appeals Council issued an Order remanding the case to the ALJ "for further proceedings consistent with the order of the court." Tr. 511.
ALJ Jordan conducted a second administrative hearing on November 23, 2016, Tr. 409-50, and on March 15, 2017 she issued her decision denying Plaintiff's claim, Tr. 514-31. On May 8, 2017 Plaintiff requested review of the ALJ's decision from the Appeals Council. Tr. 593-94. On May 30, 2017, Plaintiff submitted written Exceptions to the ALJ's final decision arguing that the ALJ erred in determining his mental impairments were non-severe, in giving little weight to the opinion of the consultative examiner, and in failing to issue an RFC accounting for his need to elevate his lower extremities. Tr. 598-602. On May 12, 2018, the Appeals Council assumed jurisdiction of the case and again remanded the case to the ALJ. Tr. 540-42. The Appeals Council ordered that on remand the ALJ should further evaluate the nature, severity, and effects of Plaintiff's degenerative disc disease; consider and evaluate the evidence of obesity; if necessary, obtain evidence from a medical expert related to the nature and severity of Plaintiff's functional limitations; further evaluate Plaintiff's mental impairments; give further consideration to Plaintiff's maximum RFC; and, if warranted, obtain supplemental evidence from a VE to clarify the effect of the assessed limitations on Plaintiff's occupational base. Tr. 541-42. The Appeals Council directed that the case should be assigned to a different ALJ. Tr. 542.
ALJ James M. Martin conducted Plaintiff's third administrative hearing on October 24, 2018. Tr. 368-408. ALJ Martin issued his decision denying Plaintiff's claim on November 23, 2018. Tr. 341-59. On December 3, 2018 Plaintiff requested review of the ALJ's decision by the Appeals Council. Tr. 339-40. On March 3, 2019, Plaintiff submitted a letter in support of his Request for Review asserting that the ALJ erred in failing to weigh the prior decisions of record and issuing a less restrictive RFC, and erred in failing to account for Plaintiff's moderate limitations in concentration, persistence, and pace. Tr. 666-69. On October 9, 2019 the Appeals Council found no basis to change the ALJ's November 23, 2018 decision and declined to assume jurisdiction of the case. Tr. 325-30. This made the ALJ's November 2018 decision the final decision of the Commissioner after remand. Tr. 326. Plaintiff was instructed that if he wanted a federal court to review the Commissioner's final decision, he would need to file a new civil action. Id. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed on November 8, 2019. ECF No. 1.
B. Plaintiff's Background
Plaintiff was born on April 15, 1969, and was 40 years old as of his alleged onset date of January 1, 2010. Tr. 164. In his January 2012 Disability Report-Adult form Plaintiff indicated completed the ninth grade and did not attend special education classes. Tr. 169. Plaintiff's past relevant work ("PRW") included auto detailing in car dealerships. Id. Plaintiff noted that he stopped working on May 1, 2008, because he got fired from his job. Tr. 168. Plaintiff indicated that he was limited in his ability to work due to torn ligaments in his right leg, screws in his right hand, and an injured back from a car accident in May 2010. Id.
At the administrative hearing Plaintiff testified that he completed the seventh grade. Tr. 382.
C. The Administrative Hearing
On October 24, 2018, Plaintiff appeared with counsel at his third administrative hearing before ALJ Martin in Mauldin, South Carolina. Tr. 368. VE Weldon also appeared. Id. Plaintiff was represented by his counsel, Alexander P. Lewis. Id.
1. Plaintiff's Testimony
In response to questions from his counsel Plaintiff confirmed his address and testified that he lived with his wife and son. Tr. 380. Plaintiff indicated that his address changed because he had recently gotten married and moved in with his wife. Tr. 381. Plaintiff stated that his wife worked at a molding company. Id. Plaintiff testified that he last worked in 2008 doing detail work at Toyota Easley where he had worked for eight-and-a-half years. Tr. 382. Plaintiff stated that he stopped working because he started having health problems, and those problems have since gotten worse. Id. Plaintiff testified that the impairments that prevent him from working are arthritis in both shoulders, lower back problems, diverticulitis, high blood pressure, a screw in his wrist, and a bullet in his right leg. Id. Plaintiff stated that he completed the seventh grade and has problems reading and writing. Id. Plaintiff stated that he sometimes cannot understand what he read and he "can't spell too well." Tr. 383. Plaintiff testified that he would be unable to read and understand everything in a newspaper, his wife read his Social Security paperwork to him, and his sister used to help him with job applications. Id. Plaintiff stated that he was "held back" twice in school—in the fourth and fifth grades. Id. Plaintiff testified that he did not have any problems with simple math and when he was working he was able to handle his money and pay his bills. Tr. 383-84.
Plaintiff confirmed that the problems with his lower back, leg, shoulders, and wrist caused him pain and he is "in pain all day." Tr. 384. Plaintiff stated that his lower back gives him the most pain and that it "hurts and it runs down to [his] right leg where the bullet's at . . . ." Id. Plaintiff also stated that his shoulders hurt because of the arthritis and it "hurts on the right side a lot." Id. Plaintiff stated that he had to have surgery on his right arm, and he has a screw in his right wrist. Id. Counsel noted that when Plaintiff was asked to raise his right hand to be sworn, he also moved his left hand over. Plaintiff testified that he did that because "it hurts sometimes when [he] lift[s] [his] right arm" and he uses one arm to support the other. Id. Plaintiff stated that both arms hurt if he raises them in front, sideways, or over his head but the right arm is worse than the left. Tr. 385. Plaintiff testified that about once a week his right leg "gives out" on him when he is walking, but he has not seen an orthopedist because he needs to get re-certified at St. Luke's [Free Medical Clinic]. Tr. 385-86. Plaintiff testified that because of problems with his lower back he has to hold onto something in order to bend down to pick up items, and he has trouble sitting in chairs for long periods. Tr. 386. Plaintiff testified that he can sit, stand, and walk for 30 minutes at a time. Id. Plaintiff testified that because of the screw in his right wrist he "can't hold too much in [his] right hand. It gets numb on [him], and then stuff just slides through [his] right hand." Tr. 387. Plaintiff confirmed that it is problematic if he has to turn his wrist a lot, and he has problems turning knobs, faucets, or opening jars. Id. Plaintiff estimated that the heaviest amount he could lift would be ten pounds. Id.
Plaintiff stated that he is 5'9" tall and weighs 235 pounds—which is a stable weight for him. Tr. 387. Plaintiff stated that he enjoys spending time with his son, but he is unable to participate in sports with him. Tr. 387-88. Plaintiff testified that his wife does all of the housework and his son helps. Tr. 388. Plaintiff stated he is unable to do any housework because of his health problems and testified that he is "hurting most of the time." Id. Plaintiff stated that his 12-year-old son does the yardwork, and his wife does the cooking. Plaintiff stated that his wife prepares food before she leaves so that all he has to do is heat it in the microwave. Id. Plaintiff testified that although he is able to drive, he does not because his wrist gives him problems. Tr. 389. Plaintiff also testified that he also has problems if he has to ride as a passenger in a car for a long time. He stated that after 30-45 minutes he would need to get out and stretch. Id. Plaintiff denied socializing outside of his home, but stated that he attends church—although sometimes he is unable to stay the whole time because sitting on the benches causes his lower back to hurt. Tr. 390. Plaintiff testified that the cold weather makes his pain worse. Id.
In response to questions from the ALJ, Plaintiff testified that he was doing the same type of automotive detail work at all of his previous employment. Tr. 390-91. Plaintiff stated that he had no problems with street drugs or alcohol, and he did not have any animals or pets. Tr. 391. Plaintiff stated that while his son is at school, he watches TV. Tr. 392. Plaintiff testified that his son enjoys playing football, but he is unable to attend the games and he does not attend any of his son's school activities—his wife attends. Tr. 392-93.
2. Testimony of the VE
VE Weldon also testified at the administrative hearing. Tr. 394. The VE described Plaintiff's PRW as auto detailer, Dictionary of Occupational Titles ("DOT") number 915.687-034, medium, with an SVP of 2. Tr. 394. The ALJ asked the VE to assume a hypothetical individual of the same age, education, and vocational profile as Plaintiff with the following limitations:
[T]his individual is limited to less than the full range of light work; that is to say, this hypothetical individual could lift and/or carry 20 pounds occasionally, 10 pounds frequently; could sit, stand, and/or walk for six hours each in an eight-hour day; and push and pull as much as he could lift and/or carry, except this individual is limited to frequent use of hand controls bilaterally. This individual can occasionally reach overhead bilaterally. This individual could occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; frequently balance; and occasionally stoop, kneel, crouch, and crawl. This hypothetical person could frequently be in an environment of unprotected heights and moving mechanical parts; and frequently be in an environment with vibration. This individual can sustain concentration, persistence, and pace sufficient to perform unskilled work activities. This individual's use of judgment is limited to the performance of simple work-related decisions.Tr. 395. The VE confirmed that the person could not perform Plaintiff's PRW, but stated he would be capable of performing work at the light exertional level. Tr. 395-96. The VE identified the following examples of jobs that could be performed: sorter, DOT number 789.687-146, with 120,000 jobs in the national economy; parking lot attendant, DOT number 915.473-010, with 863,000 jobs in the national economy; and ticket taker, DOT number 344.667-010, with 1,250,000 jobs in the national economy. Tr. 396. The VE confirmed his testimony was consistent with the DOT. Id.
For his second hypothetical the ALJ modified his first hypothetical and asked the VE to "[a]ssume that this individual is limited to occasional operation of hand controls with the right hand, and that this individual can occasionally handle and finger with the right hand. All of the rest of the limitations would be the same." Tr. 396. The VE opined that this individual would be unable to perform Plaintiff's PRW and would be unable to perform any other work. Tr. 397.
The ALJ returned to his first hypothetical and modified it with one additional limitation that the individual would be absent from work two days a month. Tr. 397. The VE testified that "most employers would allow one to two absences on a monthly basis" and the individual could perform the jobs identified in response to the ALJ's first hypothetical with the same numbers. Tr. 397-98.
The VE testified that he reviewed the occupations he identified and reviewed the DOT descriptions of these occupations. The VE stated that "the DOT for each of these indicates that reaching and handling is required frequently." Tr. 398. The VE added that in his opinion, "these jobs could be done with one upper extremity frequently and the other one could be used on an occasional basis. I believe if there were any other limitation, that this job could not be done." Tr. 399. The VE noted that his opinion was based on his "experience in having observed these occupations and worked closely with individuals in the competitive labor market." Id. The VE noted that the DOT "doesn't delineate reaching and handling." Id. The VE confirmed that his opinion in the first hypothetical that limited overhead reaching to occasional differed from the DOT and was based on his observation of the occupations being performed. Id.
In response to questions from Plaintiff's counsel the VE clarified that in his opinion there would be no jobs available "if a person could only use the right hand on an occasional basis." Tr. 400. The ALJ asked if that was because he was testifying about reaching, handling, and fingering and the VE responded affirmatively. Tr. 401.
Plaintiff's counsel asked if PRW would be unavailable if the same individual in hypothetical one was further limited to sedentary work, and the VE responded affirmatively. Tr. 401. Counsel asked if there were other jobs that could be performed at the sedentary level with all of the other restrictions, including "bilateral occasional reaching, frequent hand controls" and the VE responded in the negative. Id. The ALJ clarified that there were "no limits on handling and fingering . . . just on the pushing and pulling of the hand controls." Tr. 402. The ALJ outlined the hypothetical posed by Plaintiff's counsel as follows:
[I]t would be sedentary work with operating hand controls. So, pushing and pulling would be limited to frequent use of hand controls bilaterally, and occasionally reaching overhead bilaterally, and occasionally . . . ramps and stairs; never ladders, ropes, or scaffolds; balancing frequently; stoop, kneel, crouch, and crawl occasionally; unprotected heights and moving mechanical parts frequently; and vibration frequently. And then, . . . simple work-related decisions with regard to the use of judgment and unskilled work activities.Tr. 402-03. The VE responded that there would be sedentary jobs the individual could perform based on those limitations. Tr. 403.
Plaintiff's counsel asked what the impact on the sedentary base of jobs would be if the hypothetical as outlined was further limited to "frequent gross manipulation—meaning handling—bilaterally." Tr. 403. The VE noted that the DOT does not define gross manipulation; it says handling and fingering. Id. The VE confirmed that when referring to gross manipulation bilaterally he is talking about handling and fingering. Tr. 404. The VE opined that there would be jobs available in the national economy with a limitation of frequent bilateral handling and fingering, but he did not believe there was work "at the sedentary level if a person is limited to occasional handling and fingering." Id. The VE confirmed counsel's statement that "occasional handling and fingering is a job killer, so to speak, at both light and sedentary if done with the dominant extremity." Id.
In his closing statement, Plaintiff's counsel asserted that given the issues with Plaintiff's arm—including evidence of placement of a screw that the prior ALJ was unable to find—that Plaintiff should be limited to occasional rather than frequent handling and fingering. Tr. 405. Counsel also noted that Plaintiff was "six months out from his 50th birthday" and if put on sedentary work it would have an impact on his SSI claim. Tr. 406.
In closing Plaintiff testified that he gets discouraged because he is unable to do things with his children, and noted that in addition to his 12-year-old he also has a two-year-old child. Tr. 407. II. Discussion
A. The ALJ's Findings
In his November 23, 2018, decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since January 1, 2010, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: lumbar degenerative disc disease, right shoulder subacromial impingement, osteoarthritis involving right
knee, status-post meniscal tear arthroscopy, status-post gunshot wound to right radial wrist and neck, obesity, adjustment disorder and intellectual disability (20 CFR 404.1520(c) and 416.920(c)).Tr. 346-47, 350, 357-58.
4. 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can frequently operate hand controls with right and left hands and occasionally reach overhead with right and left upper extremities. He can occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, frequently balance and occasionally stoop, kneel, crouch and crawl. He can frequently work with exposure to unprotected heights, moving mechanical parts frequently, and vibration. He can sustain concentration, persistence and pace sufficient to perform unskilled work activities and perform simple work-related decisions.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on April 15, 1969 and was 40 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
10. 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 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2010, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
B. 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," defined 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); see also 42 U.S.C. § 1382c(a)(3)(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, 461 n.2 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is working; (2) whether the claimant has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents the claimant from performing specific jobs that exist in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520, 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. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does 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. § 404.1525, § 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, he will be found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii); § 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or be "at least equal in severity and duration to [those] criteria." 20 C.F.R. § 404.1526; § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
A claimant is not disabled within the meaning of the Act if he 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. § 404.1520(a), (b); § 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing the 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 that claimant can perform alternative work and that such work exists in the regional 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 he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen, 482 U.S. at 146. n.5 (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 of Social Security made after a hearing to which 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 v. Barnhart, 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, 1157-58 (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. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 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 his conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). 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). III. Analysis
Plaintiff asserts the ALJ erred by (1) issuing an RFC that is not based on substantial evidence, and (2) failing to issue an RFC that accounted for Plaintiff's moderate restrictions in concentration, persistence, and/or pace. Pl.'s Br. 1, ECF No. 12.
A. The ALJ's RFC Assessment
Plaintiff contends the ALJ failed to include manipulative restrictions in his maximum RFC. Pl.'s Br. 14. The Commissioner asserts that substantial evidence supports the ALJ's RFC assessment and the ALJ "adequately considered the evidence related to Plaintiff's right upper extremity impairment and adequately accounted for the same." Def.'s Br. 12, ECF No. 13.
An RFC assessment is a determination of an individual's ability to perform sustained work-related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184 at *1. "RFC is not the least an individual can do despite his or her limitations or restrictions, but the most." Id. (emphasis in original). At the administrative hearing level, the ALJ is responsible for assessing a claimant's RFC. 20 C.F.R. §§ 404.1546(c), 416.946. An ALJ's RFC assessment should be based on all relevant evidence and will consider the claimant's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(3) and (4), 416.945(a)(3) and (4). Social Security Ruling 96-8p requires that the RFC assessment "include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7. The ALJ must discuss the claimant's ability to "perform sustained work activities in an ordinary work setting" on a regular work schedule. Id. Further, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id.
The ALJ determined Plaintiff had the RFC to perform light work but limited Plaintiff to frequent operation of hand controls with right and left hands and occasional reaching overhead with bilateral upper extremities. Tr. 350. In making this assessment the ALJ cited to Plaintiff's gunshot injury to his neck and right radial wrist and to his medical treatment records. Tr. 352-53. Plaintiff argues that the ALJ erred by failing to include any restrictions for handling and fingering with the right wrist or hand. Pl.'s Br. 16. The Commissioner contends that "the ALJ summarized the available evidence, including treatment notes, findings on examinations, medical opinions, Plaintiff's statements to healthcare professionals, and testimony at the administrative hearing." Def.'s Br. 17. The Commissioner asserts that "the ALJ satisfied his duty to review the evidence and formulate an appropriate RFC finding." Id. at 18.
To support his argument, Plaintiff cites to the evaluation of Dr. Patel who noted decreased range of motion in the right wrist. Pl.'s Br. 16. The ALJ cites to this same evaluation and notes that Dr. Patel indicated that although "a scar is evident from prior procedure and claimant exhibits some decreased range of motion due to pain, his grip, grasp, finger movements and fine touch are normal with no muscle atrophy (Ex 2F/3)." Tr. 352. Plaintiff also notes the March 4, 2013 evaluation by his orthopedic surgeon and argues that the ALJ "does not even mention this statement of Dr. Harley in dismissing the concept that a restriction for handling and fingering would have been necessary." Pl.'s Br. 16. Plaintiff's argument is incorrect as the ALJ specifically discussed this evaluation and noted:
On orthopedic physical exam, dated March 4, 2013, four-months out from his injury, while he complained of persistent right wrist hand pain, and supination of the forearm was reduced to 30°/85°, he showed excellent flexion and extension to 120° and pronation from 0-70°, which is normal (ex 5F/15). Interestingly, after being advised that he would no longer be issued pain medication, the record is void of any further orthopedic follow-up (Ex 5F/14). Notably, when seen in the ER four-months later, on July 10, 2013 he exhibited normal range of motion of his extremities with no swelling or deformities and no sensory or motor deficits (Ex 6F/8).Tr. 353. The ALJ also noted that "while the claimant continues to allege problems with his right weak grip, he admits to being able to drive a church van (Ex 9F/4), which obviously requires functional grip strength, among other skills." Id. Plaintiff also notes that the State Agency physicians opined that he would need manipulative restrictions. Pl.'s Br. 16 (citing Tr. 92, 100, 100, 119). In each of these records from the initial and reconsidered disability determinations the physicians limited Plaintiff to frequent handling and fingering. The ALJ noted that he considered the State Agency physical findings that Plaintiff could perform medium work, but based on the evidence from the administrative hearing, he restricted Plaintiff to a range of light work. Tr. 355. The undersigned notes that at the hearing the VE testified that a there would be jobs available at the light or sedentary exertional level with a limitation of frequent reaching and handling and fingering. Tr. 398-99, 404. Accordingly, the opinions of the State Agency physicians would have no impact on the ALJ's RFC assessment. See Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (finding the ALJ's error harmless when ALJ would have reached the same result notwithstanding an initial error in his analysis). In his final analysis of the medical evidence related to Plaintiff's wrist, the ALJ noted that when Plaintiff was "subsequently seen in the ER in March 2017, September 2017, October 2017 and February 2018, not only is the record devoid of any further complaints of right wrist/hand pain, physical exams consistently note full range of motion of extremities with 5/5 muscle strength and normal sensation (Ex 15F/13, 8, 5, and 2)." Tr. 353.
The burden of proof and production rests on Plaintiff to show limitations. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (noting burden of proof and production is on claimant at steps one through four of the sequential evaluation). The undersigned recommends that Plaintiff's challenge to the ALJ's RFC determination regarding manipulative limitations be dismissed as the ALJ's RFC assessment is consistent with the objective medical evidence and other record evidence.
B. ALJ's Evaluation of Plaintiff's Mental Impairments
Plaintiff argues the ALJ failed to account for his moderate limitations in concentration, persistence, and pace by failing to explain why no restrictions for time off-task were needed in his RFC assessment. Pl.'s Br. 17. The Commissioner contends that the record does not reflect that Plaintiff had problems staying on task and the RFC captured all of his credibly established mental limitations. Def.'s Br. 18.
At Step Three of his Decision, the ALJ considered whether Plaintiff's mental impairments met or medically equaled the Paragraph "B" criteria of Listings 12.04 and 12.05. The listings for mental disorders are arranged in 11 categories: Neurocognitive disorders (12.02); schizophrenia spectrum and other psychotic disorders (12.03); depressive, bipolar and related disorders (12.04); intellectual disorder (12.05); anxiety and obsessive-compulsive disorders (12.06); somatic symptom and related disorders (12.07); personality and impulse-control disorders (12.08); autism spectrum disorder (12.10); neurodevelopmental disorders (12.11); eating disorders (12.13); and trauma- and stressor-related disorders (12.15). Paragraph B of each listing (except 12.05) provides the functional criteria to be assessed, in conjunction with a rating scale (see 12.00E and 12.00F), to evaluate how a claimant's mental disorder limits functioning. These criteria represent the areas of mental functioning a person uses in a work setting. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Section 12.00(A)(1) and (2)(b).
The Paragraph B requirements for Listing 12.05 include a finding of significantly subaverage general intellectual functioning and significant deficits in adaptive functioning. Here, the ALJ determined Plaintiff did not meet these requirements because although his 2016 IQ score was below 70, he did not exhibit significant deficits in adaptive functioning. Tr. 349-50.
The ALJ determined that Plaintiff had moderate limitations in understanding, remembering, or applying information; mild limitations in interacting with others; moderate limitations with regard to concentration, persistence, and pace; and mild limitations in his ability to adapt or manage himself. Tr. 347-48. Regarding concentration, persistence, and pace the ALJ noted:
Although claimant achieved a Full Scale IQ of 68 in October 2016 testing (Ex 13F), when previously seen for a consultative physical exam, he is noted to answer all questions well, exhibits normal thought processing and normal judgment and insight (Ex 2E/3). The claimant testified that he is able to manage money and pay bills. He has a valid driver's license and drives the church van, which indicates an ability to follow road signs and directions, in addition to being trusted with the church property (Ex 9F/4).Tr. 348. The ALJ determined that because Plaintiff's mental impairments did not cause at least two "marked" limitations or one "extreme" limitation, he did not satisfy the Paragraph B criteria. Id.
As part of his RFC assessment the ALJ provided the following limitation: "He can sustain concentration, persistence and pace sufficient to perform unskilled work activities and perform simple work-related decisions." Tr. 350. Prior to making this assessment the ALJ specifically noted that his RFC assessment reflected the degree of limitation he found in the Paragraph B mental functional analysis. Tr. 348. The ALJ also noted in making the assessment he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" and he "also considered opinion evidence" in accordance with the regulations. Tr. 350.
In Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit agreed 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.'" Mascio v. Colvin, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). The court determined that "the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. In Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020), the Fourth Circuit observed that Mascio "[does] not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC." 952 F.3d at 121. In that case the court upheld the ALJ's RFC because "the ALJ's findings and the mental limitation included in the RFC are sufficiently explained and supported by substantial evidence in the record." Id. at 121-22.
At the administrative hearing in this case, the ALJ posed a hypothetical to the VE that asked if there was light work that could be performed by a person with Plaintiff's background and who could "sustain concentration, persistence, and pace sufficient to perform unskilled work activities" and whose "use of judgment is limited to the performance of simple work-related decisions." Tr. 395. The VE responded that the hypothetical individual would be unable to perform Plaintiff's PRW, but he identified three other jobs such a person could perform. Tr. 395-96.
In his discussion of Plaintiff's RFC, the ALJ noted that he considered Plaintiff's allegations of depression and difficulty reading and understanding. Tr. 353. The ALJ stated that he "found adjustment disorder and intellectual disability 'severe' and considered them in restricting claimant to unskilled work involving simple work-related decisions. However, the record as a whole does not support disabling mental impairments." Id. The ALJ noted that when Plaintiff applied for disability he alleged no mental impairments and when seen for a consultative examination in March 2012 he "exhibited no mental limitations and it is noted that he exhibited normal judgment and insight and would be capable of managing any awarded benefits responsib[ly] (Ex 2F/3)." Tr. 353-54. The ALJ cited to psycho-educational testing administered in 2016 and noted that "despite claimant's intellectual deficits, claimant admitted that when he was working he was able to handle money and pay bills (Hearing Testimony)." Tr. 354. The ALJ further noted that despite Plaintiff's report of "moderate difficulty with depression and anxiety, medical records consistently note that behavior, mood and affect are within normal limits (Ex 10F/2, 5, 31, 83 and 119)." Id. The ALJ also noted that Plaintiff was "not followed for depression or prescribed any psychotropic medications and in recent treatment records he has denied symptoms of depression or anxiety (Ex 15F/42)." Id. Citing to lack of support for Plaintiff's allegations, the ALJ determined that the "evidence suggests that at least some of the physical and mental abilities and social interactions required in order to perform [Plaintiff's daily] activities are the same as those necessary for obtaining and maintaining employment. I find the claimant's ability to participate in such a wide-range of activities is inconsistent with the claimant's allegations of debilitating functional limitations." Tr. 355.
As to opinion evidence, the ALJ noted the functional assessment of Dr. Eaton, which indicated Plaintiff experienced pain "that is severe enough to interfere with attention and concentration to perform even simple tasks." Tr. 356. The ALJ did not give this opinion controlling weight because he did not find the opinion was "adequately supported by the clinical findings of record or the other substantial and supportive evidence of record." Id. The ALJ also discussed the findings from the psychological assessment of Dr. Moore giving the assessment "some" weight. Tr. 357. The ALJ noted that despite Plaintiff's "poor academic achievement and low education and history of incarceration, following his release from prison, he had a steady job for the same employer for over 8-years. Moreover, Dr. Moore's assessment is vague and is devoid of any specific limitations in adaptive functioning." Id.
The ALJ's discussion of Plaintiff's mental impairments focuses on his findings related to Plaintiff's adjustment disorder and intellectual disability. The only reference to Plaintiff's limitations in concentration, persistence, and pace is in the opinion of Dr. Eaton. The undersigned notes that Dr. Eaton provided limitations based on Plaintiff's pain, while the ALJ seems to base his moderate limitation on Plaintiff's intellectual capabilities. This is not clear, and the undersigned notes that the ALJ in the prior action, also citing to Plaintiff's IQ score and testing, assessed Plaintiff with "mild" limitation in the functional area of concentration, persistence, and pace. Tr. 522. Because ALJ Martin does not provide an explanation for his findings, he does not provide a "logical bridge" to his conclusions. In assessing the RFC, the ALJ "must both identify the 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) (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)). Furthermore, the ALJ concludes the RFC assessment by stating: "In sum, the above residual functional capacity assessment is supported by" without completing the sentence. Tr. 357. The court is left to wonder what evidence the ALJ relies upon. Accordingly, the undersigned is constrained to recommend remand because the ALJ's RFC assessment does not contain the necessary explanation that allows for meaningful judicial review. Mascio v. Colvin, 780 F.3d at 636. The undersigned notes that it is possible the ALJ's determination on remand could be that Plaintiff's "moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in [Plaintiff's RFC]." Mascio, 780 F.3d at 638. The ALJ's decision as currently stated is not clear on this point. IV. 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 as discussed above.
IT IS SO RECOMMENDED. December 10, 2020
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge