Opinion
Civil Action No. 6:20-765-CMC-KFM
03-03-2021
Jeffrey Howell, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
REPORT OF MAGISTRATE JUDGE
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits on July 17, 2015, alleging that he became unable to work on January 15, 2013. The applications were denied initially and on reconsideration by the Social Security Administration. On July 1, 2016, the plaintiff requested a hearing. The administrative law judge ("ALJ"), before whom the plaintiff, his attorney, and Janette Clifford, an impartial vocational expert, appeared on February 13, 2018, considered the case de novo, and on June 11, 2018, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 163-76). On April 24, 2019, the Appeals Council granted the plaintiff's request for review and remanded the case to the ALJ (Tr. 182-85). In the remand order, the ALJ was directed to (1) further evaluate the plaintiff's alleged symptoms and provide rationale in accordance with the regulations pertaining to evaluation of symptoms, (2) give further consideration to the plaintiff's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations, and (3) obtain vocational expert testimony to clarify the effect of assessed limitations on the plaintiff's occupational base (Tr. 184-85).
A second hearing was held before the same ALJ on August 22, 2019, at which the plaintiff, his attorney, and the vocational expert, Ms. Clifford, again appeared (Tr. 36-56). On September 30, 2019, the ALJ found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 15-29). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on January 21, 2020 (Tr. 1-5). The plaintiff then filed this action for judicial review.
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through September 30, 2013.
(2) The claimant has not engaged in substantial gainful activity since January 15, 2013, the alleged onset date (20 C.F.R. § 404.1571 et seq, 416.971 et seq.).
(3) The claimant had the following severe impairments: coronary artery disease (CAD), a history of right shoulder and left wrist injuries, obesity, dysthymia, and paranoid personality disorder (20 C.F.R. §§ 404.1520(c), 416.920(c).
(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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) except the claimant can frequently climb ramps and stairs, but never climb ladders, ropes, or scaffolds. The claimant can frequently balance, stoop, kneel, crouch, and crawl. The claimant can frequently reach overhead with the right upper extremity. The claimant can frequently handle and finger with the left upper extremity. The claimant can tolerate frequent exposure to extreme cold, extreme heat, humidity, and workplace hazards (such as unprotected heights and dangerous moving machinery). The claimant is limited to performing simple, routine tasks performed two hours at a time. The claimant can tolerate occasional interaction with the public, coworkers, and supervisors.
(6) The claimant is unable to perform any past relevant work (20 C.F.R. §§ 404.1565, 416.965).
(7) The claimant was born on April 22, 1971, and was 41 years old, which is defined as a younger individual age 18-49 on the alleged disability onset date (20 C.F.R. §§ 404.1563, 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564, 416.964).
(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
(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 C.F.R. §§ 404.1569, 404.1569a, 416.969, 416.969a).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from January 15, 2013, through the date of this decision (20 C.F.R. §§ 404.1520(g), 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), 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), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) has an impairment that prevents past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 192.
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). "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." Id. 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]." Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff was 41 years old on his alleged disability onset date (January 15, 2013) and 48 years old on the date of the ALJ's decision (September 20, 2019) (Tr. 28, 41, 28, 88). He completed high school and two years of college and had past relevant work as a heating and air conditioning servicer, house repairperson, and contractor (Tr. 27, 41). He stopped working in January 2013 (Tr. 41-42).
The plaintiff argues that the ALJ erred by: (1) failing to adequately account for his mental limitations in the residual functional capacity ("RFC") assessment and (2) failing to follow the Appeals Council's remand order by not obtaining vocational expert evidence at the second hearing. For the reasons set forth below, the undersigned recommends that the Commissioner's decision be affirmed.
Mental Impairments
The plaintiff argues that the ALJ failed to appropriately account in the RFC assessment for his moderate limitations in concentrating, persisting, and maintaining pace. The regulations provide that a claimant's RFC is the most that he can still do despite his limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ's responsibility to make the RFC assessment, and the ALJ does so by considering all of the relevant medical and other evidence in the record. Id. §§ 404.1545(a)(3), 404.1546(c), 416.945(a)(3), 416.946(c).
Social Security Ruling ("SSR") 96-8p provides in pertinent part:
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:
The RFC assessment must include 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, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. at *7 (footnote omitted). 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. Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id.
Here, the ALJ found that the plaintiff's severe impairments included dysthymia and paranoid personality disorder (Tr. 18). Further, at step three of the sequential evaluation process, the ALJ found that the plaintiff had "moderate" limitations in three broad areas of functioning: understanding, remembering, or applying information; interacting with others; and concentrating, persisting, or maintaining pace (Tr. 19-20). The ALJ found as follows:
As the plaintiff's argument is limited to the ALJ's evaluation of his mental RFC, the undersigned has likewise limited the discussion of the evidence herein.
In understanding, remembering, or applying information, the [plaintiff] has a moderate limitation. In written statements, the [plaintiff] reported problems thinking clearly and making judgments (Ex. 6E/1). He reported needing special reminders for personal needs, grooming, and taking medication (Ex. 6E/3). He also reported needing reminders to go places (Ex. 6E/5). However, he reported no problems following instructions (Ex. 6E/6). At the first hearing, the claimant testified that he had problems driving due to dizziness, not due to any mental condition. At the second hearing, the [plaintiff] did not report any issues with this area.
In interacting with others, the [plaintiff] has a moderate limitation. In written statements, the [plaintiff] reported he spent time with others, chatted with friends, and spent time on the computer daily )(Ex. 6E/5). However, he reported that he had problem getting along with others (Ex. 6E/6) and had some trouble with authority figures. He also reported losing a job due to problems getting along with others (Ex. 6E/7) and later reported no desire to leave the house (Ex. 13E/5). At the first hearing, the [plaintiff] reiterated that he lost a job due to difficulty with others and testified that he had anti-social disorder. At the second hearing, the [plaintiff] testified that he gets angry and argumentati[ve] and has difficulty being around other people (Testimony).
With regard to concentrating, persisting, or maintaining pace, the [plaintiff] has a moderate limitation. In written statements, the [plaintiff] reported problems with concentration and that he grew weary quickly (Ex. 6E/1). He reported trouble handling his finances because he could not keep up with it anymore (Ex. 6E/4). However, he also reported he could sometimes pay attention and finish what he started (Ex. 6E/6). At the first and
second hearing[s], the [plaintiff] did not testify regarding problems with concentration.(Tr. 19-20).
In the RFC assessment, the ALJ included the following mental limitations: "The claimant is limited to performing simple, routine tasks performed two hours at a time. The claimant can tolerate occasional interact[ion] with the public, coworkers, and supervisors" (Tr. 21). As noted, the plaintiff argues that the assessed RFC does not appropriately account for his moderate limitations in concentrating, persisting, or maintaining pace (doc. 10 at 10-21). However, as discussed below, the undersigned agrees with the Commissioner that the ALJ's assessment of the plaintiff's mental RFC is based upon substantial evidence and without legal error.
In Mascio v. Colvin, relied upon by the plaintiff, the Court of Appeals for the Fourth Circuit held that remand was warranted, in part, because the ALJ's hypothetical question to the vocational expert was legally insufficient in that it failed to include—without any explanation by the ALJ—the ALJ's finding of moderate limitation in the claimant's ability to maintain concentration, persistence, or pace at step three. 780 F.3d 632, 638 (4th Cir. 2015). The court stated that it 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.'" Id. (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 further stated:
Perhaps the ALJ can explain why [the claimant's] moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. . . . But because the ALJ here gave no explanation, a remand is in order.Id. (citation omitted). The Fourth Circuit has recently clarified its holding in Mascio, affirming in a published decision that Mascio
did 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. On the contrary, [the court] explained that an "ALJ can explain why [a claimant's] moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation" in the claimant's RFC.Shinaberry v. Saul, 952 F.3d 113, 121 (4th Cir. 2020) (citing and partially quoting Mascio, 780 F.3d at 638). The court went on to note:
In sum, and unlike in Mascio, the ALJ in this case addressed [the claimant's] lifelong, borderline intellectual disability, including her moderate limitations in concentration, persistence, or pace. The ALJ explained why the psychological evidence and [the claimant's] statements support a mental limitation to simple, routine, and repetitive tasks. And the ALJ included the mental limitation in the hypothetical question posed to the vocational expert. Moreover, while [the claimant's] severe impairments include her borderline intellectual functioning, she had been gainfully employed for decades despite her mental limitations. [Thus,] 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 122 (footnote omitted) (alterations added).
As noted by the Commissioner, unlike Mascio and Shinaberry, the ALJ here did not simply limit the plaintiff to simple, routine tasks or unskilled work (Tr. 21). Rather, she limited the plaintiff to simple, routine tasks performed for no more than two hours at a time and further limited the plaintiff to only occasional interaction with the public, coworkers, and supervisors (Tr. 21). More importantly, however, the ALJ's decision here contains a detailed discussion of the plaintiff's mental impairments and their corresponding effect on the plaintiff's RFC (Tr. 21-27). The ALJ specifically discussed the minimal treatment the plaintiff received for his mental health complaints (Tr. 22-27). The ALJ noted that treatment records regularly documented normal psychiatric findings during physical examinations between 2013 and 2016 (Tr. 22-24). Further, the ALJ noted that when the plaintiff eventually sought mental health treatment in September 2016, a mental status examination revealed some positive findings including overactive motor activity, a dramatic attitude, pressured speech, racing thoughts, and poor judgment, but was otherwise normal, and, in particular, documented that the plaintiff was able to concentrate and had an intact memory (Tr. 23; see Tr. 743). The ALJ also noted that at a later examination in 2016, the plaintiff reported participating in numerous activities including raking leaves, performing chores, playing video games, using social media, and using the computer (Tr. 23). The ALJ also pointed out that the plaintiff was discharged from treatment in September 2017 after failing to return for 180 days (Tr. 23-24; see Tr. 762). Further, the ALJ noted that the only additional mental health evidence that the plaintiff had submitted since the first hearing comprised records confirming that he was discharged from mental health treatment after failing to receive any treatment or receive medication refills for 180 days (Tr. 24). Notably, the ALJ indicated that, at the first hearing, the plaintiff testified that he stopped going to mental health counseling when his provider retired (Tr. 22).
The ALJ also considered the mental health opinion evidence (Tr. 25-26). The regulations require that all medical opinions in a case be considered. 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations further direct ALJs to accord controlling weight to a treating physician's opinion that is well-supported by medically-acceptable clinical and laboratory diagnostic techniques and that is not inconsistent with the other substantial evidence of record. Id. §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, the ALJ must proceed to weigh the treating physician's opinion, along with all the other medical opinions of record, based upon the following non-exclusive list of factors: (1) the examining relationship; (2) the length of the treatment relationship and the frequency of the examinations; (3) the nature and extent of the treatment relationship; (4) the evidence with which the physician supports his opinion; (5) the consistency of the opinion; and (6) whether the physician is a specialist in the area in which he is rendering an opinion. Id. §§ 404.1527(c)(1)-(5), 416.927(c)(1)-(5). See also Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005).
These regulations apply for applications, like the plaintiff's, filed before March 27, 2017. See 20 C.F.R. §§ 404.1527, 416.927. For applications filed on or after March 27, 2017, a new regulatory framework for considering and articulating the value of medical opinions has been established. See id. §§ 404.1520c, 416.920c. See also 82 Fed. Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective Mar. 27, 2017).
In particular, the ALJ appropriately assigned partial weight to the opinion of consultative examiner David Price, Ph.D., who examined the plaintiff in September 2015 at the request of the state agency (Tr. 25; see Tr. 686-91). As the ALJ noted (Tr. 25), the plaintiff reported to Dr. Price that he did not receive any mental health treatment nor take any medications (Tr. 688). The plaintiff endorsed symptoms including that he was worried, having conflict with his significant other, and was irritable and argumentative (Tr. 688-89). With regard to his activities, the plaintiff reported that he could walk; dress; make coffee; order a meal; take medications; read and write; add, subtract, divide, and multiply; use a cell phone; text message; drive; talk with people face-to-face; keep appointments; supervise or direct people; use a dictionary; sweep; use a vacuum; clean; wash dishes and laundry; cook meals; shop at stores; use tools such as wire cutter and screw drivers; and care for a child and a pet (Tr. 687-88). On examination, Dr. Price noted that the plaintiff was punctual, ambulated normally, but was slightly unkempt (Tr. 686). He had no motor abnormalities; normal eye contact; normal speech volume, rate, and prosody; normal language; fluent and coherent speech; some paranoia; a slightly negative and sad affect; restricted range of affect; no psychotic features; no problem with hearing, reading, or understanding; and was fluent and coherent. (Tr. 686). A mental status examination revealed that the plaintiff was cooperative and oriented to person, place, date, and situation; had normal psychomotor activity; and had no repetitious behavior or pressured speech (Tr. 686). He was not distractible; could recall 5/5 words immediately and after a delay with interference; completed serial sevens; could spell the word "world" forward, but not backward; could recall seven digits forward and four backwards; could abstract and interpret proverbs; follow instructions and relate to others; and had some impulsive social judgment, but could manage his own funds if awarded (Tr. 687). Ultimately, Dr. Price opined that the plaintiff had a mild impairment in activities of daily living of bathing once per week; a moderate impairment in social functioning due to paranoid personality disorder, but that he was able to work in the past and had a significant other; and that he had only a mild impairment in concentration, persistence, or pace (Tr. 690). As further noted by the ALJ, Dr. Price concluded, "You would think there is some type of substantial gainful activity that [the plaintiff] could perform" (Tr. 690). In giving Dr. Price's opinion partial weight, the ALJ noted that the opinion was generally consistent with the overall record showing the plaintiff had mental impairments that affect his ability to interact socially, but the ALJ also explained that the plaintiff was more limited than Dr. Price assessed, and accordingly limited the plaintiff to simple, routine tasks performed for two hours at a time (Tr. 20, 25).
As noted, the RFC assessment limited the plaintiff to only occasional interaction with the public, coworkers, and supervisors (Tr. 22).
The ALJ also assigned great weight to the opinions from the state agency psychologists, Michael Neboschick, Ph.D., and Craig Horn, Ph.D. (Tr. 26). In October 2015, Dr. Horn reviewed the record and completed a psychiatric review technique form ("PRTF"), indicating that the plaintiff had mild restriction in his activities of daily living; moderate difficulties in maintaining social functioning and in concentration, persistence, or pace; and no episodes of decompensation (Tr. 92-93). Dr. Horn also completed a mental RFC assessment indicating that the plaintiff had no limitations in understanding and memory; was not significantly limited in any areas of concentration and persistence, except that he was moderately limited in the ability to work in coordination with or proximity to others without being distracted; was not significantly limited in any areas of social interaction except that he was moderately limited in the ability to interact with the general public and adhere to socially appropriate behavior and basic standards of neatness and cleanliness; and had no limitations in adaptation (Tr. 98-99). Dr. Horn specifically opined that the plaintiff had the ability to perform "at least" simple tasks away from the public (Tr. 99).
In May 2016, Dr. Neboschick reviewed the record and completed a PRTF indicating that the plaintiff had mild restriction in his activities of daily living; moderate difficulties in maintaining social functioning and in concentration, persistence, or pace; and no episodes of decompensation (Tr. 129). Dr. Neboschick noted that the plaintiff alleged worsening of physical symptoms on reconsideration and alluded to depression, but updated evidence documented normal mood and affect, and the plaintiff had not initiated any mental health treatment nor was he taking any medication (Tr. 130). Dr. Neboschick also completed a mental RFC assessment indicating that the plaintiff had no limitations in understanding and memory; was not significantly limited in any areas of concentration and persistence, except that he was moderately limited in the ability to maintain attention and concentration for extended periods and to work in coordination with or proximity to others without being distracted; was not significantly limited in any areas of social interaction, except that he was moderately limited in the ability to interact with the general public and adhere to socially appropriate behavior and basic standards of neatness and cleanliness; and had no limitations in adaptation (Tr. 135-36). Dr. Neboschick opined that the plaintiff was able to understand and carry out simple routine tasks; persist at simple tasks for two hours with the usual breaks; did not require special supervision; was able to complete a normal work week; and would do best at jobs in uncrowded settings that did not require ongoing interaction with the general public (Tr. 136).
In the RFC assessment, the ALJ specifically noted that Dr. Neboschick's opinion that the plaintiff could understand and carry out simple routine tasks and persist at tasks for two hours periods and would do best at jobs that did not require ongoing interaction with the public was entitled to great weight (Tr. 26). The ALJ was required to consider the state agency psychological consultants' assessments as opinion evidence as they "are highly qualified and experts in Social Security disability evaluation." See 20 C.F.R. §§ 404.1513a(b), 416.913a(b). The ALJ, however, also explained that the plaintiff was more restricted than the state agency psychologists found, "particularly regarding the [plaintiff's] ability to interact with coworkers and supervisors," and thus the ALJ assigned a limitation to no more than occasional interaction with coworkers and supervisors (Tr. 26). Because the ALJ specifically explained the weight assigned to the state agency psychologists' opinions and articulated how these limitations were accounted for in the RFC, there was no error. See McCornell v. Berryhill, C.A. No. 1:17-2761-SVH, 2018 WL 2244620, at *11 (D.S.C. May 16, 2018) (explaining that subsequent to Mascio, "[t]he Fourth Circuit has held that an ALJ adequately accommodates a claimant's moderate difficulties in concentration, persistence, or pace by crediting medical opinions of record and considering the limitations the medical providers indicated as part of the RFC assessment.") (citing Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. 2017)).
The plaintiff argues that remand is required because "the ALJ assigned 'great weight' to the assessment from a doctor that does not even exist in the evidence of record" (doc. 10 at 19) (emphasis in original). The plaintiff cites the ALJ's reference in the decision to a "Dr. Simon" (id.). This argument is meritless. In the RFC assessment, the ALJ considered each of the medical opinions of record in separate paragraphs (Tr. 25-26). In considering Dr. Neboschick's opinion, the ALJ set out Dr. Neboschick's findings and referred to Dr. Neboschick in the first three sentences of the paragraph. However, in the subsequent sentences of that paragraph, while citing and referencing the specific findings set forth in Dr. Neboschick's opinion in exhibits 7A and 8A, the ALJ mistakenly referred to Dr. Neboschick as "Dr. Simon" (compare Tr. 26 with Tr. 136, 154). Remand on the basis of this scrivener's error is not required when the context makes clear that the ALJ was referring to Dr. Neboschick.
The plaintiff further argues that the ALJ "cherry picked" from Dr. Neboschick's opinion by excluding the following limitation from the RFC assessment: "The claimant may miss a day or two due to his psych s[ymptoms], but should generally be able to complete a normal work week" (doc. 10 at 18-19) (citing Tr. 136). The plaintiff contends that it is unclear whether Dr. Neboschick's opinion refers to missing a day or two per week or if it pertains to missing a day or two per month, but regardless, the ALJ erred in failing to provide any reason for excluding the limitation (id. at 20). The plaintiff notes that, at the February 2018 administrative hearing, the vocational expert testified that an employer would not tolerate three absences per month (Tr. 75). The plaintiff thus argues that the ALJ's alleged error was harmful because the outcome of the decision would change if a restriction was included that the plaintiff would be absent from work a day or two per week due to psychiatric symptoms (doc. 10 at 20). The plaintiff further argues that even if Dr. Neboschick's assessment "implied one or two absences per month, it remains reasonably possible that the outcome would have been different," as "[i]t is well known that even two unexcused absences per month . . . will not be tolerated by an employer" (id.).
There is no indication from Dr. Neboschick's findings that he intended to limit the plaintiff to a particular number of absences per a particular time period. Rather, Dr. Neboschick's limitation was entirely conditional ("may miss"), and, in fact, he subsequently stated that the plaintiff "should generally be able to complete a normal work week" (Tr. 136). Further, in the mental RFC assessment, Dr. Neboschick specifically found that the plaintiff's "ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances" and his "ability to complete a normal workday and workweek without interruptions from psychologically based symptoms" were "not significantly limited" (Tr. 135). Accordingly, the undersigned finds no error in the ALJ's assessment of Dr. Neboschick's opinion.
Based upon the foregoing, the undersigned finds that the ALJ adequately evaluated the plaintiff's moderate difficulties in concentration, persistence, or pace, and substantial evidence supports the RFC assessment.
Vocational Expert
The plaintiff next argues that the ALJ erred by failing to follow the Appeals Council's third instruction in the remand order (doc. 10 at 3-10). As set out above, following the ALJ's first decision, the Appeals Council granted the plaintiff's request for review and remanded, directing the ALJ to (as pertinent here):
[O]btain vocational expert testimony to clarify the effect of assessed limitations on the [plaintiff's] occupational base. The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The [ALJ] will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy. . . . Further, before relying on the vocational expert evidence[,] the [ALJ] will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).(Tr. 185).
In response, the Commissioner argues:
Whether an ALJ complies with an Appeals Council order of remand is an internal agency matter [that] arises prior to the issuance of the agency's final decision. By failing to remand the matter a second time [after the ALJ's subsequent decision], it appears that the Appeals Council considered the ALJ's decision to be in compliance with the Council's previous order of remand. Section 405(g) does not provide this court with authority to review intermediate agency decisions that occur during the administrative review process." Harris v. Astrue, No. C09-385, 2010 WL 816145, at *7 (W.D. Wash. Mar. 8, 2010); see Wyatt v. Comm'r of Soc. Sec., No. 1:16-38, 2017 WL 3224666, at *8 (S.D. Ohio July 31, 2017) (noting that because
"the district court does not review internal agency-level proceedings, it will not address whether the ALJ complied with the specific provisions of the Appeal Council's order of remand."); Thompson v. Colvin, No. 09-278, 2014 WL 185218, at *4 (M.D.N.C. Jan. 15, 2014) (same).(Doc. 12 at 12-13). The Commissioner notes that, in September 2019, the plaintiff requested that the Appeals Council review the ALJ's August 2019 decision (Tr. 348). In particular, the plaintiff alleged the "ALJ erred by failing to follow the Appeals Council remand order" (Tr. 348). In January 2020, the Appeals Council denied the plaintiff's request for review (Tr. 1-6). Thus, the Commissioner argues that, as in the cited cases, the Appeals Council here found that the ALJ sufficiently complied with its remand order and denied the plaintiff's request for review, and, therefore, there is no reviewable error.
The plaintiff contends, however, that the ALJ's failure to follow the remand order is legal error, because an ALJ is required under the regulations to "'take any action that is ordered by the Appeals Council'" (doc. 10 at 8) (quoting 20 C.F.R. § 404.977(b)). The plaintiff notes that ""[t]his circuit has employed the harmless error analysis in the context of social security disability determinations and an ALJ's failure to follow an order of the Appeals Council." Hammond v. Colvin, C.A. No. 1:12-cv-1177(AJT/IDD), 2013 WL 5972432, at *6 (E.D. Va. Nov. 8, 2013). As noted by the plaintiff, in Hammond, the court explained that the ALJ's failure to follow the directives of the Appeals Council constituted legal error, but that remand was not necessitated unless the ALJ's error resulted in harm to the claimant. Id. at *7 (citing Huddleston v. Astrue, 826 F. Supp.2d 942, 955 (S.D. W. Va. 2011)). As articulated in Hammond, "[The] [p]laintiff must show that the Commissioner's decision 'might reasonably have been different had the evidence been before the ALJ when his decision was rendered.'" Id. (quoting King v. Califano, 599 F.2d. 597, 599 (4th Cir.1979)).
Assuming that the ALJ erred in failing to obtain vocational expert testimony at the second administrative hearing, the undersigned finds that the plaintiff has failed to show harm from the error, and remand is, therefore, not required. The ALJ here assessed the plaintiff with the identical RFC as in the first decision (compare Tr. 21 with Tr. 169), and the same vocational expert, Janet Clifford, appeared and testified at both hearings (Tr. 52-54, 70-76). In particular, at the February 2018 hearing, the ALJ proffered questions to Ms. Clifford regarding the plaintiff's past work (Tr. 73-76). In response to the ALJ's questions, Ms. Clifford classified all of the plaintiff's past work as skilled work (Tr. 74). The ALJ also asked Ms. Clifford whether jobs existed for an individual with the plaintiff's vocational profile who could perform medium work that required no climbing of ladders, ropes, or scaffolds; no more than frequent climbing of ramps and stairs; frequent balancing, stooping, kneeling, crouching, and crawling; could reach frequently overhead with the right upper extremities; frequently handle and finger with the left upper extremities; tolerate no more than frequent exposure to extreme cold or heat, humidity, and workplace hazards; and perform jobs comprised of simple, routine tasks performed for no more than two hours at a time; but required no more than occasional interaction with the public, coworkers, and supervisors (Tr. 74). Ms. Clifford responded that the hypothetical individual would be unable to perform the plaintiff's past skilled work, but that other jobs existed in significant numbers that he could perform including the representative jobs of laundry worker, packer, and dining room attendant (Tr. 74). Based on this testimony, the ALJ found that the plaintiff was not disabled in the first decision (Tr. 160-81).
Ms. Clifford appeared also at the second hearing in August 2019 (Tr. 36). The ALJ explicitly noted that Ms. Clifford had appeared at the February 2018 hearing where she characterized the plaintiff's past relevant work as skilled work (Tr. 52). The ALJ further explained that she had asked Ms. Clifford several hypotheticals at the 2018 hearing, including one regarding absences for a younger individual, such as the plaintiff (Tr. 52). The plaintiff's attorney asked the ALJ to clarify the hypotheticals that she had asked at the first hearing (Tr. 53), and the ALJ specifically pointed to a hypothetical for medium exertion work with mental limitations (Tr. 53). The ALJ then asked the plaintiff's counsel if she wanted "all the details," and the plaintiff's attorney said, "no" and that it was "fine" (Tr. 53). The ALJ also permitted the plaintiff's attorney to ask Ms. Clifford questions, and the plaintiff's attorney proffered several hypotheticals for an individual with varying limitations (Tr. 53-54). The undersigned agrees with the Commissioner that, because the ALJ explained that the RFC and resulting hypothetical were the same as she had proffered at the 2018 hearing, and because the ALJ permitted the plaintiff's attorney to question Ms. Clifford at both hearings, the ALJ's failure to obtain further vocational expert testimony was harmless error. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination."); Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir.1994) (finding the ALJ's error harmless where the ALJ would have reached the same result notwithstanding).
CONCLUSION AND RECOMMENDATION
For the foregoing reasons, the court finds that the plaintiff has not shown that the Commissioner's decision was unsupported by substantial evidence or reached through application of an incorrect legal standard. See Craig, 76 F.3d at 589; see also 42 U.S.C. § 405(g). Accordingly, the Commissioner's decision should be affirmed.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge March 3, 2021
Greenville, South Carolina
The attention of the parties is directed to the important notice on the following 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
300 East Washington Street
Greenville, South Carolina 29601
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).