Opinion
Case No. 2:18-cv-1844-TMC-MGB
07-23-2019
SANFORD MCGILL, Plaintiff, v. ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Sanford McGill seeks judicial review of the Commissioner of Social Security Administration's final decision denying his claim for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act. This matter was referred to the Magistrate Judge for a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.). For the following reasons, the undersigned recommends reversing and remanding for further consideration.
BACKGROUND
This case arises out of McGill's second unsuccessful disability claim. His first claim was denied in January 2015, when he was found to be not disabled. (R. 78-99.) Two months later, he filed the claim at issue here. He alleged disabling conditions including a pinched nerve, a right knee impairment, and a torn rotator cuff in his right shoulder. (R. 255-67, 288.)
His application was denied, so he asked for a hearing before an administrative law judge ("ALJ"). (R. 151-67.) The ALJ held a hearing, in which McGill and a vocational expert testified. (R. 33-77.) The ALJ then issued a decision that McGill was not entitled to benefits. (R. 15-26.) The ALJ found that, although McGill had impairments restricting him to a reduced range of light work, he was not disabled because he could perform three other jobs that exist in significant numbers in the national economy. (R. 20-26.)
McGill asked the Appeals Council to review the ALJ's decision. (R. 253-54.) The Appeals Council denied his request, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. (R. 1-6.) By denying the request, the Commissioner (through the Appeals Council) adopted the following findings from the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through June 30, 2015.
(2) The claimant has not engaged in substantial gainful activity since July 23, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: degenerative disc disease (DDD); mallet toe, post-surgery on the left, with osteoarthritis; osteoarthritis (OA) of the bilateral knees; and depression (20 CFR 404.1520(c) and 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 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(c) and 416.967(c) except that he could lift and/or carry 20 pounds occasionally and ten pounds frequently. He could sit for six hours, stand for six hours, and walk for six hours. He could push and pull as much as he could lift/carry, except he could operate foot controls with his bilateral feet frequently. As for postural maneuvers, he could climb ramps and stairs frequently and climb ladders, ropes, or scaffolds occasionally. Additionally, he could balance, stoop, kneel, crouch, and crawl occasionally. He could frequently work around unprotected heights and moving mechanical parts. He is capable of ambulating with the use of an assistive device. Lastly, regarding mental capacity, he could sustain concentration, persistence and pace sufficient to perform simple, routine tasks.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on December 7, 1979 and was 32 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).(R. at 17-26.)
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 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 CFR 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 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from July 23, 2012, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
STANDARD OF REVIEW
Disability benefits shall be available to those persons insured for benefits who are not of retirement age, properly apply, and are under a "disability." 42 U.S.C. § 423(a). "Disability" is the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than" twelve months. See 42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, the 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 is or equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which precludes other substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. For the first four steps, the burden lies with the claimant; at step five, it shifts to the Commissioner. Mascio, 780 F.3d 632, 635 (4th Cir. 2015). The Commissioner may carry that burden with testimony from a vocational expert. Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016). If the claimant is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Federal courts' scope of review is limited to deciding whether the Commissioner applied the law correctly and whether substantial evidence supports his factual findings. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012) (citations omitted). If so, the court must affirm the Commissioner's decision. Id. Substantial evidence is "more than a mere scintilla of evidence but . . . less than a preponderance." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). "In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (citation and quotation marks omitted). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ]," not on the reviewing court. Id. However, a supported finding is not binding if the ALJ made it by using an improper standard or by misapplying the law. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
DISCUSSION
McGill contends the ALJ (1) failed to properly account for his mental limitations; (2) did not properly assess a prior decision from his previous disability claim; (3) improperly declined to find he had a severe shoulder impairment; and (4) erroneously found he could do other jobs. (Dkt. No. 10 at 4-10.) As discussed below, remand is required on the second and fourth issues.
By addressing only those issues, the undersigned does not mean to imply that McGill's other issues have, or lack, merit. Rather, the undersigned has focused on the second and fourth issues because further consideration of them on remand may affect the other issues McGill raises. Cf. Boyd v. Berryhill, No. 0:17-cv-2661-DCC-PJG, 2018 WL 5270037, at *3 & n.3 (D.S.C. Oct. 3, 2018) (recommending remand because further assessment of one issue "may impact the remaining issues"), adopted, 2018 WL 5266420 (D.S.C. Oct. 23, 2018).
I. The Prior Ruling
As mentioned, this case arises from McGill's second claim for disability payments; a different ALJ denied his first claim. McGill contends the ALJ in the current case failed to properly weigh the decision in the first claim. The undersigned agrees.
The Social Security Administration "treats a claimant's second or successive application for disability benefits as a claim apart from those earlier filed, at least to the extent that the most recent application alleges a previously unadjudicated period of disability." Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 476 (4th Cir. 1999). In other words, res judicata does not apply to the portions of successive claims that involve unadjudicated time periods. Id.; see also Groves v. Apfel, 148 F.3d 809, 810 (7th Cir. 1998) ("Res judicata bars attempts to relitigate the same claim, but a claim that one became disabled in 1990 is not the same as a claim that one became disabled in 1994."). But that does not mean that the ALJ hearing the second claim must ignore what another ALJ found in the first. Rather, he or she "must consider such a prior finding as evidence and give it appropriate weight in light of all relevant facts and circumstances." SSAR 00-1(4), 65 Fed. Reg. 1938 (Jan. 12, 2000). The ALJ must consider factors such as
(1) whether the fact on which the prior finding was based is subject to change with the passage of time, such as a fact relating to the severity of a claimant's medical condition;
(2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent claim; and
(3) the extent that evidence not considered in the final decision on the prior claim provides a basis for making a different finding with respect to the period being adjudicated in the subsequent claim.(Id.)
In McGill's prior disability claim, an ALJ found that McGill's only severe impairment was degenerative disc disease of the lumbar spine. (R. 83.) That ALJ then found McGill had the residual functional capacity ("RFC") to perform light work, but with several limitations. (R. 84.) Some of those limitations were that McGill "can occasionally climb stairs, ladders, ropes, and scaffolds." (Id.)
That decision was issued in January 2015. (R. 94.) McGill appeared before the ALJ in this case two and a half years later. That ALJ found the medical evidence showed McGill's "medical condition [had] deteriorated" over those years. (R. 20.) McGill's severe impairments now included not only degenerative disc disease but also "mallet toe, post-surgery on the left, with osteoarthritis; osteoarthritis (OA) of the bilateral knees; and depression." (R. 17.) "[T]hese conditions," the ALJ wrote, "cause further limitations which affect [McGill's] ability to perform basic work activities. The limitations are based on evidence submitted subsequent to the prior Decision, available due to the passage of time. This evidence demonstrates increased limitations in the claimant's abilities." (R. 21.) For that reason, the ALJ declined to re-use the RFC from the first case and gave the prior decision only mixed weight. (Id.) The ALJ concluded his discussion by citing Acquiescence Ruling 00-1(4). (Id.)
The ALJ provided those reasons for discounting the prior decision in the course of explaining the RFC he assigned McGill. (See R. 20-21.) In that assignment, the ALJ found McGill can climb stairs frequently. (R. 20.) But as McGill points out, "frequently" is a more demanding capacity than the "occasionally" rating for that activity made in the prior case. McGill argues the ALJ's finding about his ability to climb stairs is irreconcilable with the ALJ's observation that his health had deteriorated and that he now had more severe impairments than when he could claim stairs only occasionally.
Under Albright and Acquiescence Ruling 00-01(4), an ALJ cannot properly find that a claimant has lesser work restrictions than what a prior ALJ imposed "absent a showing of improvement in the claimant's impairment." Hightower v. Comm'r of Soc. Sec. Admin., No. 1:14-cv-2761-RBH-SVH, 2015 WL 5008668, at *16 (D.S.C. June 12, 2015), adopted with unrelated modification, 2015 WL 5008713 (D.S.C. Aug. 20, 2015). To be sure, the residual functional capacity that the ALJ assigned is, overall, more restrictive than what the prior ALJ assigned. And the fact that the ALJ cited Acquiescence Ruling 00-01(4) shows he was attempting to follow it. Nevertheless, his finding that McGill could climb stairs more frequently than before is hard to square with his findings that McGill's health had deteriorated and that McGill now had, in addition to a severe back problem, arthritis in both knees and in one foot—body parts integral to the climbing of stairs. It is all the more difficult to understand the finding because the of persistence of the degenerative disc disease in McGill's back. As our Chief Judge has noted, "ailments[] such as degenerative disc disease are, by their nature, diseases that worsen with time. . . . [They] generally increase in severity over time, or at the very least, do not improve." Tucker v. Colvin, No. 0:15-cv-3750-RBH, 2017 WL 382429, at *4 (D.S.C. Jan. 27, 2017). Finally, McGill attended the hearing in the prior claim using a cane, but when he appeared before the ALJ here, he was on crutches. (R. 48, 85.) All these facts tend to undermine a finding that McGill could climb stairs more often than before. The Commissioner does not point to any evidence that supports it.
Acquiescence Ruling 00-01(4) does not require ALJs to give exhaustively detailed explanations of the weight they assign prior decisions. See, e.g., Tucker, 2017 WL 382429, at *4 n.1. Here, however, it was important for the ALJ to explain how McGill's stair-climbing ability had improved even though some of his stair-climbing parts had declined. The absence of that explanation, combined with the portions of the record discussed above, leads the undersigned to conclude the ALJ's finding is neither supported by substantial evidence nor the product of correct application of the law.
II. Other Work
McGill next argues the ALJ's erred in finding he could perform several jobs that exist in significant numbers in the national economy. The undersigned agrees with McGill that the record lacks substantial evidence to support the ALJ's finding.
At the hearing, the vocational expert was asked several hypothetical questions about other jobs that could be performed by people with varying RFCs. (R. 64-72.) Her answers to two of those questions are relevant here.
First, the ALJ gave the expert a hypothetical RFC that nearly reflected the RFC he assigned McGill; the only difference was that, unlike the assigned RFC, the hypothetical did not include using a device to aid with ambulation. (R. 64-65, 67.) The expert answered that a person with the restrictions the ALJ mentioned could perform three jobs: cashier (740,800 jobs nationally), fast food worker (1,226,300 jobs), and retail marker (283,900 jobs). (R. 64-68.)
Later, McGill's lawyer asked what jobs someone with those restrictions, and who also needed an assistive device for ambulation, could do. (R. 69.) In other words, McGill's lawyer posed a hypothetical RFC that matched what the ALJ ultimately assigned. The expert answered that, assuming such a person could "have one hand free . . . for an assistive device and [be] able to stay at [his] station," he could work as what the Dictionary of Occupational Titles calls "Cashier II." (R. 70.) The expert testified there are about 82,300 of those jobs that someone with McGill's assigned RFC could perform. (Id.)
As mentioned, the ALJ then found that McGill's RFC included the need to use an assistive device for ambulation. (R. 20.) However, he also found McGill could perform the three jobs the expert identified before McGill's lawyer asked about the assistive-device restriction—fast food worker, retail marker, and the larger, unrestricted pool of cashiers (740,800 jobs). (R. 26.) These two findings are inconsistent: the vocational expert indicated the assistive-device restriction eliminated those three jobs from consideration. (R. 70-71.) The ALJ therefore erred by supporting his findings with evidence that actually contradicted them. As with the other error, the Commissioner does identify any evidence supporting these findings.
III. Whether the Errors Were Harmless
Although the Commissioner does not concede that the ALJ erred, he also does not argue the findings discussed above were proper. He instead contends the findings, even if erroneous, were harmless.
The Commissioner's harmless-error arguments tun on the vocational expert's testimony that someone with McGill's assigned RFC could work as a cashier II. The Commissioner contends the finding that McGill could frequently climb stairs is harmless because the Dictionary does not mention stair-climbing as a requirement for that job. (Dkt. No. 11 at 16.) And he argues the ALJ's citation to the three alternative jobs was harmless because the vocational expert's testimony about the cashier II job is substantial evidence that McGill could perform other work existing significantly in our economy. (Id. at 19-21.) For several reasons, the undersigned disagrees.
First, for reasons the record does not make clear, the ALJ did not base his step-five finding on the expert's testimony about the cashier II job. The undersigned is hesitant to excuse an ALJ's error by citing evidence the ALJ himself may have rejected. Moreover, the expert's testimony does not support the ALJ's specific finding—that McGill could perform three jobs that were not the one the expert matched with McGill's assigned RFC. For an ALJ's decision to stand, substantial evidence must support the factual findings he or she made; using the expert's testimony to affirm here would effectively be substituting the ALJ's finding with the Court's own. See Hancock, 667 F.3d at 470 (prohibiting federal courts from reweighing evidence or substituting their own judgments for ALJs').
Second, the undersigned cannot say that the expert's testimony about the cashier II job constitutes substantial evidence. A vocational expert's testimony can be substantial evidence to support an ALJ's finding. An important prerequisite, however, is that expert's testimony conforms to the Dictionary; if the testimony actually or seemingly conflicts with the Dictionary, it is not substantial evidence unless the expert explains why the conflict is appropriate (or why there actually is no conflict) and then the ALJ "determine[s] that the explanation is reasonable and provides a basis for relying on the testimony rather than the Dictionary." Pearson, 810 F.3d at 209-10. For example, in Pearson, an ALJ found that a claimant who could only occasionally reach overhead with his nondominant shoulder was not disabled because he could perform three other jobs, including the cashier II position at issue here. Id. at 206. The Dictionary lists frequent reaching as a requirement for those three jobs, and it defines "reaching" as "'[e]xtending hand(s) and arm(s) in any direction.'" Id. at 210 (quoting App. C, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles C-3). The Fourth Circuit saw an apparent conflict between that definition and the vocational expert's testimony on which the ALJ relied: the expert was testifying about a person who could not frequently reach overhead with both arms, but "the Dictionary's broad definition of 'reaching' means that [the three alternative jobs] certainly may require such reaching." Id. at 211. Because the expert did not explain this possible conflict, the ALJ could not rely upon his testimony. Id.
The Fourth Circuit's analysis in Pearson illuminates the problem here. The cashier II job requires reaching, and as the Fourth Circuit noted, the Dictionary defines that term in a way that may include reaching with both arms and hands. And "frequent" means between 1/3 and 2/3 of the day. App. C, supra. Thus, a cashier II job may require bilateral reaching 2/3 of the day. But the vocational expert testified that a person with an assistive device would "need to have at least one hand free" for that device; having crutches would "make[] it, you know, more difficult." (R. 70.) Neither the ALJ nor the vocational expert identified this potential conflict between the Dictionary and the expert's testimony. Consequently, the ALJ did not seek, and the expert did not provide, any explanation of whether there actually was a conflict and, if so, why the expert departed from the Dictionary.
Indeed, the ALJ found the expert's testimony was consistent with the Dictionary, even though the expert testified that some of her testimony was inconsistent with it. (R. 26, 71.)
The failure to address the apparent conflict is problematic because of the questions it leaves open about whether there really is other work in significant numbers McGill could perform. See Pearson, 810 F.3d at 211 ("[E]ven if some motel cleaners, cashiers, and bench press operators need not frequently reach overhead with both arms, the number of positions in the national economy without this requirement [is what] matters."). Although the vocational expert in this case took the assistive-device restriction into account when she testified there were 82,300 cashier II jobs, she clarified that number reflected her view that someone needing the device should carry no more than ten pounds, needs to stay at his work station, and must have a chair or a stool. (R. 70.) Even if her testimony could be viewed as addressing reaching with one arm instead of two, there would still be ambiguity because she testified the availability of jobs would depend on the type of assistive device being used—i.e., crutches or something that required only one hand, such as a cane. (R. 70-71.) The distinction she raised is particularly important because McGill had used a cane for several years but then switched to crutches a few months before the ALJ hearing. (R. 47-48.) The ALJ's decision did not address this distinction or specify what type of assistive device McGill's residual functional capacity allowed.
To summarize, the record shows not only an apparent conflict between the Dictionary and the vocational expert's testimony, but also an ambiguity in that testimony. Without an explanation of that conflict and ambiguity, and without a reasoned decision adopting that explanation, the Court cannot call the expert's testimony about the cashier II job substantial evidence. See Pearson, 810 F.3d at 211.
Finally, as to the ALJ's frequent-stair-climbing finding, the Commissioner argues the expert's testimony about the cashier II job makes the finding harmless because the Dictionary does not say that job includes the climbing of stairs. (Dkt. No. 11 at 16.) His argument assumes that, had the ALJ offered a hypothetical accurately reflecting McGill's assigned RFC, the expert would not have varied from the Dictionary's requirements. The record makes that assumption speculative. The expert showed her willingness to depart from the Dictionary, testifying the ten-pound limit and sit-stand option she mentioned for the cashier II job conflicted with the Dictionary. (R. 71). In light of that testimony, and given that the Commissioner has the burden of proof at step five, the undersigned cannot use the Dictionary's silence to deduce that the ALJ's error did not affect the outcome of the case.
The undersigned expresses no opinion on how often McGill is capable of climbing stairs. That is for the ALJ to determine after a proper assessment of the evidence and a correct application of the law. The undersigned has concluded only that the ALJ's stair-climbing finding does not appear to have evidentiary support or stem from proper application of the law. If adopted, nothing in this Report and Recommendation should be viewed as precluding the ALJ on remand from finding that McGill can frequently climb stairs, provided there is substantial evidence for such a finding.
A federal court should affirm the Commissioner's decision, even if there are errors, where there is "no question but that he would have reached the same result" despite his errors. Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994). As the discussion above illustrates, it is questionable whether ALJ would have reached the same result had he not erred. And a federal court should not affirm for harmless error "[w]here an insufficient record precludes a determination that substantial evidence support[s] the ALJ's denial of benefits." Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 658 (4th Cir. 2017). A record is insufficient where, as here, it contains an unresolved conflict between a vocational expert's testimony and the Dictionary. Keller v. Berryhill, 754 F. App'x 193, 199 (4th Cir. 2018) (citing Pearson, 810 F.3d at 210). Because the record does not "clearly demonstrate" McGill can perform the occupations that the expert identified or that the ALJ cited, see id., the ALJ's errors are not harmless.
IV. Remaining Allegations of Error
As the undersigned recommends this matter be remanded for further consideration as discussed above, the Court need not address the plaintiff's remaining issues, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on one issue and declining to address claimant's additional arguments); Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ's prior decision has no preclusive effect as it is vacated and the new hearing is conducted de novo). However, as part of the overall reconsideration of this claim upon remand, the ALJ should consider McGill's remaining allegations of error.
CONCLUSION
For the above reasons, the undersigned recommends the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be REMANDED for a new hearing consistent with this Report & Recommendation.
IT IS SO RECOMMENDED. July 23, 2019
Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
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
Post Office Box 835
Charleston, South Carolina 29402
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).