Opinion
C/A No. 0:18-2055-DCC-PJG
09-17-2019
Alvin Junior Miles, II, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Alvin Junior Miles, II, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Commissioner of Social Security ("Commissioner"), denying his claims for Disability Insurance Benefits ("DIB"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be reversed and remanded.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A) and (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;20 C.F.R. § 404.1520(a)(4). If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform his past relevant work; and
(5) whether the claimant's impairments prevent him from doing any other kind of work.
The court observes that effective August 24, 2012, ALJs may engage in an expedited process which permits the ALJs to bypass the fourth step of the sequential process under certain circumstances. 20 C.F.R. § 404.1520(h).
Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § 423(d)(2)(A); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In August 2014, Miles applied for DIB, alleging disability beginning November 26, 2013. Miles's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on July 28, 2017, at which Miles appeared and testified and was represented by Martin E. Keane, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on September 22, 2017 finding that Miles was not disabled from November 26, 2013 through the date of the decision. (Tr. 17-25.)
Miles was born in 1962 and was fifty-one years old on his alleged disability onset date. He has a high school education and past relevant work experience as an electrician's helper and as a meat department manager at WalMart. (Tr. 195.) Miles alleged disability due to a permanent feeding tube, a stomach drain tube, and deafness in one ear. (Tr. 194.)
In applying the five-step sequential process, the ALJ found that Miles had not engaged in substantial gainful activity since his alleged onset date of November 26, 2013. The ALJ also determined that Miles's disorders of the gastrointestinal system, dysfunction of a major joint (shoulder), and hearing loss were severe impairments. However, the ALJ found that Miles did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ further found that Miles retained the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except he can occasionally perform posturals, can never climb ladders/ropes/scaffolds, occasional overhead reaching with the left (non-dominant) upper extremity, avoid concentrated exposure to extreme heat, unprotected heights and hazards, no driving as part of job duties, and no work requiring fine hearing capability.(Tr. 20.) The ALJ found that Miles was unable to perform any past relevant work. However, the ALJ found that, considering Miles's age, education, work experience, and residual functional capacity, Miles had acquired work skills from past relevant work that were transferable to other occupations with jobs that existed in significant numbers in the national economy. Accordingly, the ALJ found that Miles was not disabled from November 26, 2013 through the date of the decision.
The Appeals Council denied Miles's request for review on May 26, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-6.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Miles raises the following issues for this judicial review:
I. The ALJ's Step Five findings do not rest on substantial evidence; and(Pl.'s Br., ECF No. 14.)
II. The ALJ failed to evaluate the report of Mr. David Price, a vocational rehabilitation specialist; and
III. The ALJ's credibility analysis is not supported by substantial evidence.
DISCUSSION
The court notes that numerous social security regulations and social security rulings (SSRs) have changed effective March 27, 2017. However, these changes specifically state that they are applicable to claims filed on or after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claims was filed before that time, all references in the instant Report and Recommendation are to the prior versions of the regulations and SSRs in effect at the time Miles's application for benefits was filed, unless otherwise specified.
Although Miles raises several issues for this judicial review, for the reasons that follow the court is constrained to recommend that this matter be remanded for further consideration of the report of David Price, a certified vocational rehabilitation counselor.
Price conducted a vocational assessment of Miles on September 25, 2015. His eight-page assessment reveals that Price considered Miles's medical history, Price's examination of Miles, information provided by Miles and Miles's family members, and various medical records. As part of Price's examination of Miles, he detailed his observations as well as the results of two intelligence tests. Price ultimately concluded as follows:
As to the potential for Mr. Miles to return to the workforce, it is my opinion that his prognosis is quite negative. He lives with a drain tube that requires frequent cleaning and maintenance. It often emits a foul odor. The appearance and smell would not be conducive to working in or with the public. Mr. Miles is very weak and fatigues easily when attempting activity. He cannot work at a consistent industrial pace and requires frequent breaks and prolonged periods of supine rest. He is limited physically to sedentary activity but unfortunately the primary requirement for work in this category is the capacity to work from a sitting position for most of the time. Mr. Miles cannot sit longer than thirty minutes. With his standing and ambulatory limitations it is obvious that he cannot work on his feet. Overall Mr. Miles['s] current capacity as demonstrated by his typical daily activities is less tha[n] sedentary, ruling out any potential for him to return to the workforce and perform gainful employment. I would also point out that Mr. Miles requires numerous feedings of small proportions that would interrupt the flow of an average work day. He also has sudden and urgent bowel movements and would need to work in close proximity to a restroom so as to avoid accidents. Unfortunately, even in his home Mr. Miles has not been able to avoid soiling himself on numerous occasions. With his history of pain and medical crises it is predictable that Mr. Miles will not be able to meet the standard for daily work attendance. He has not demonstrated the capacity to work typical 8-hour days and 40-hour weeks. He could not be held to the productivity standards of a typical employee. Overall the accommodations Mr. Miles would require in a work setting are in excess of the legal mandate on employers "to provide reasonable accommodations.["](Tr. 235-36.)
As to actually getting a job, I do not believe that Mr. Miles is capable of competing for employment on the open labor market. He has severe physical limitations that require major workplace accommodation. He takes narcotic medications that rule out driving, operating machinery or dangerous equipment. He should avoid unprotected heights, and not be put into situations requiring alertness, attentiveness, quick decisions or sound judgment. Mr. Miles['s] liability in the workplace is high and will cause most employers to avoid hiring him. He is limited to sedentary activity for four hours per day with no guarantee that he can do this consistently. In my opinion there simply is no viable demand for a worker in his condition. Consequently, it is my opinion that Alvin Miles is neither employable nor placeable and is currently in a complete and total state of vocational disability. His impairments are severe and in my opinion rule him out as a viable candidate for successful vocational rehabilitation. I would be supportive of his application for social security disability retirement.
Thus, Price found Miles to be more limited than the ALJ found. However, the ALJ did not discuss or otherwise acknowledge Price's opinions at any point in his decision. Thus, it is unclear whether the ALJ even considered this opinion in evaluating Miles's disability application. Although Price is not an "acceptable medical source," the regulations provide that the ALJ "generally should explain the weight given to opinions" from medical sources who are not acceptable medical sources and from nonmedical sources "or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." 20 C.F.R. § 404.1527(f). Moreover, when determining a claimant's residual functional capacity, the ALJ "must evaluate 'all' relevant record evidence." Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 659 (4th Cir. 2017) (citing 20 C.F.R. § 404.1520(e)); see also Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) ("An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.") (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)).
Upon review of the ALJ's decision and the record, the court is unable to determine whether the ALJ's decision is supported by substantial evidence since it is unclear whether the ALJ considered the evidence from Price. See Jones v. Colvin, No. 5:13-CV-27-FL, 2014 WL 309415 (E.D.N.C. Jan. 28, 2014) (finding remand was warranted where an ALJ failed to discuss the opinion of a rehabilitation counselor). While caselaw acknowledges that an ALJ is not required to specifically refer to every piece of evidence, the court is constrained to agree with Miles that the ALJ's failure to mention or otherwise address this evidence leaves the court guessing as to how the ALJ arrived at his conclusions and whether the ALJ's findings are supported by substantial evidence. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) ("While the Commissioner's decision must 'contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based,' 42 U.S.C. § 405(b)(1), 'there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.' ") (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)); see also Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted); Mascio v. Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015) (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated). Although the Commissioner suggests reasons that the ALJ could discount the evidence from Price, where, as here, the record appears to contain conflicting medical evidence, it is the purview of the ALJ to first consider and weigh the evidence, and resolve the conflict. See Craig, 76 F.3d at 589 (stating that the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]"); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (holding that it is the ALJ's responsibility, not the court's, to determine the weight of evidence and resolve conflicts of evidence). Therefore, the court is constrained to recommend that this matter be remanded for further consideration of this evidence.
Accordingly, the court expresses no opinion as to whether further consideration of Price's assessment by the ALJ should necessarily lead to a finding that the assessment is entitled to any particular weight or that Miles is ultimately entitled to benefits. Further analysis and discussion may well not change the ALJ's conclusion on this point.
In light of the court's recommendation that this matter be remanded for further consideration, the court need not address Miles's remaining arguments, as they may be rendered moot on remand. See Boone v. Barnhart, 353 F.3d 203, 211 n.19 (3d Cir. 2003) (remanding on other grounds and declining to address claimant's additional arguments). Moreover, if necessary, Miles may present his remaining arguments concerning the ALJ's alleged errors on remand.
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above. September 17, 2019
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).