David
v.
Berryhill

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINAAug 17, 2018
CIVIL ACTION NO. 9:17-1576-TCM-BM (D.S.C. Aug. 17, 2018)

CIVIL ACTION NO. 9:17-1576-TCM-BM

08-17-2018

DAVID DILL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


REPORT AND RECOMMENDATION

The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

Plaintiff applied for Disability Insurance Benefits (DIB) on March 10, 2014, alleging disability beginning September 10, 2013 due to post-traumatic stress disorder (PTSD), depression, anxiety, fatigue, diabetes, high cholesterol, nerve damage from being shot, and severe diarrhea. (R.pp. 149-150, 173, 212, 214). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on April 6, 2016. (R.pp. 34-60). In a prehearing brief, Plaintiff amended his alleged onset date from September 10, 2013 to January 26, 2014. (R.pp. 347-350). The ALJ thereafter denied Plaintiff's claim in a decision dated June 10, 2016. (R.pp. 8-33). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-5).

Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded to the Commissioner for further consideration of his claim. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

Scope of review

Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 98 2-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].

Hays
, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008)[Nothing that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].

The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

Medical Records

Only medical records relevant to the issue addressed herein are set forth and discussed.

Plaintiff's medical records include the following diagnoses: On October 29, 2013, Dr. Adam D. Scher diagnosed Plaintiff with diabetes I uncomplicated, GERD, chronic diarrhea, and PTSD. (R.pp. 367-370). On November 19, 2013, Dr. Scher diagnosed Plaintiff with diabetes type I, PTSD, chronic diarrhea and hyperlipidemia. (R.pp. 364-366). On December 13, 2013, Ellen A. Norman, PA-C, of GA Gastroenterology diagnosed Plaintiff with chronic diarrhea, history of colon polyps, uncontrolled insulin dependent diabetes mellitus, dysphagia, and Barrett's esophagus. (R.pp. 383-389). On December 23, 2013 and on February 17, 2014, Dr. Scher diagnosed Plaintiff with diabetes type I, hyperlipidemia, anxiety, chronic diarrhea, and PTSD. (R.pp. 355-357, 361-363). On April 16, 2014, Dr. Scher diagnosed Plaintiff with diabetes type I, chronic diarrhea, PTSD, dyspnea on exertion, chest pain, and fatigue. (R.pp. 397-400). On June 17, 2014, Dr. Tony Goodbar diagnosed Plaintiff with PTSD, major depression, single episode, moderate, and assigned Plaintiff a GAF score of 60. (R.pp. 409-410). On July 14, 2014, Dr. Goodbar diagnosed Plaintiff with PTSD and major depression. (R.pp. 453-454).

On January 16, 2014, Dr. Scher made these same findings, but also found that Plaintiff had cold feet. (R.pp. 358-360).

"Clinicians use a GAF [Global Assessment of Functioning] to rate the psychological, social, and occupational functioning of a patient." Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 597 n. 1 (9th Cir.1999). A GAF score between 51 to 60 indicates the presence of "moderate symptoms" or "moderate difficulty in social or occupational functioning." Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 32-34 (4th ed.2000). It should be noted, however, that the fifth edition of the DSM, published in 2013, has discontinued use of the GAF for several reasons, including "its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice." See Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 16 (5th ed. 2013) ("DSM-V"). Even so, "after the DSM-V was published, the Social Security Administration issued a directive to its ALJs in July 2013, instructing them to still consider GAF scores as medical opinion evidence but emphasizing that GAF scores should not be considered in isolation." See Sizemore v. Berryhill, 878 F.3d 72, 82 (4th Cir. 2017).

On July 16, 2014, Bruce A. Kofoed, Ph.D. performed a consultative examination of the Plaintiff at the Commissioner's request and diagnosed him with probable PTSD versus anxiety not otherwise specified, depressive disorder not otherwise specified, a gunshot wound to the hand and the throat during a bank robbery in 2008 in which he was a bystander, diabetes, frequent gastrointestinal distress, and diarrhea. (R.pp. 411-415).

Plaintiff's medical records show that from December 10, 2008 to December 18, 2008, he was hospitalized for injuries suffered as a result of a gunshot wound to his right neck, right carotid artery injury/laceration, and right hand first metacarpal fracture, after witnessing a bank robbery. (R.pp. 522-617).

On October 13, 2014, November 3, 2014, December 9, 2014, February 5, 2015, and March 10, 2015, Dr. Goodbar diagnosed Plaintiff with PTSD and major depression. (R.pp. 455-456, 459-460, 464-465, 468-469). On February 5, 2015, and June 9, 2015, Dr. Goodbar diagnosed Plaintiff with PTSD and depression, moderate. (R.pp. 466-467, 470-471).

On June 10, 2015, Ali L. Whitten, a physician's assistant at Travelers Rest Family Medicine, diagnosed Plaintiff with uncontrolled diabetes type I, PTSD, hyperlipidemia, hypertension, gastroesophageal reflux disease, vitamin D deficiency, diabetic neuropathy, and insomnia. (R.pp. 515-519). On July 9, 2015, Ms. Whitten diagnosed Plaintiff with uncontrolled diabetes type I and diabetic neuropathy. (R.pp. 512-514).

On August 5, 2015, January 21, 2016, and February 18, 2016, Dr. Goodbar diagnosed Plaintiff with PTSD and major depression. (R.pp. 472-475, 480-481).

Discussion

Plaintiff, who was forty-two (42) years old on his amended alleged onset date, has a high school education and past relevant work experience as an electrician and a construction project manager. (R.pp. 26, 51-52, 61, 188). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that he has an impairment or combination of impairments which prevent him from engaging in all substantial gainful activity for which he is qualified by his age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.

After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the "severe" impairments of right carotid artery laceration, right hand fracture, diabetes mellitus with neuropathy, vertigo, PTSD, anxiety, depression, and gastrointestinal distress, including diarrhea and irritable bowel syndrome (R.p. 13), he nevertheless retained the residual functional capacity (RFC) to perform light work, with the additional limitations that he can only frequently push or pull with his bilateral upper extremities; frequently operate foot controls with his bilateral lower extremities; occasionally climb ladders, but never ropes or scaffolds; frequently climb ramps or stairs, balance and stoop; and occasionally crouch, kneel and crawl. The ALJ further found that the Plaintiff must avoid all exposure to excessive noise, such as operation of large industrial machinery; all exposure to excessive vibration, such as the operation of a jackhammer, and all exposure to moving machinery and unprotected heights; that he could not work beneath bright, flashing lights, although this does not include normal exposure to neon or fluorescent lights in a working environment; that Plaintiff is limited to work involving simple, routine tasks, in a low stress environment, defined as being free of fast paced production requirements; involving only simple, work-related decisions; and with few, if any, work place changes, which should be introduced gradually. Finally, the ALJ found that Plaintiff could only have minimal interaction, zero to six percent of the workday, with the general public; and only occasional interaction with coworkers, although he can be around coworkers throughout a workday. (R.pp. 16-17). Although the ALJ determined that these limitations precluded Plaintiff from performing his past relevant work, the ALJ concluded that he could still perform other representative occupations with these limitations, such as production inspector (DOT # 222.687-042), garment folder (DOT # 789.687-066), and bottle line attendant (DOT # 920.687-042), and was therefore not entitled to disability benefits. (R.pp. 26-27).

An impairment is "severe" if it significantly limits a claimant's physical or mental ability to do basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987).

"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).

Plaintiff argues that the ALJ erred in reaching his decision because he improperly rejected work place restrictions from Plaintiff's treating physicians, failed to include and/or provide an adequate discussion of significant limitations resulting from Plaintiff's irritable bowel syndrome, and proposed an improper hypothetical to the vocational expert ("VE") which did not properly account for Plaintiff's RFC. After careful review and consideration of the record in this case and the arguments presented, and for the reasons set forth hereinbelow, the undersigned is constrained to agree with the Plaintiff that the ALJ committed reversible error by failing to properly account for and evaluate his RFC, in particular by failing to account for Plaintiff's moderate limitation in his ability to maintain concentration, persistence, and pace in compliance with Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), thereby requiring a reversal with remand of this case.

RFC is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent. SSR 96-8p, 1996 WL 374184. Here, as noted, in his RFC determination the ALJ limited Plaintiff to the performance of simple, routine tasks, in a low stress environment, which is defined as a work environment free of fast paced production requirements, involving only simple work-related decisions, and with few, if any, workplace changes, which should be introduced gradually. (R.p. 17). The ALJ then discussed the medical records and his findings for why these limitations were appropriate at some length in his decision. See generally (R.pp. 18-21). However, the ALJ also determined that Plaintiff's mental impairments and other limitations resulted in his having moderate limitations in his ability to maintain concentration, persistence or pace (R.p. 15), and Plaintiff contends that the ALJ failed to properly account for his moderate limitation in CPP in this RFC finding in compliance with Mascio. See Plaintiff's Brief, pp. 26-28. The undersigned agrees.

The Fourth Circuit held in Mascio that "an ALJ does not account 'for a claimant's [moderate] limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio, 780 F.3d at 638, quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). Rather, that restriction only addresses the complexity of the work, not Plaintiff's ability to stay "on task", as required by Mascio. See Mascio, 780 F.3d at 638; Salmon v. Colvin, No. 12-1209, 2015 WL 1526020, at *3 (M.D.N.C. Apr. 2, 2015) [noting that "the Fourth Circuit made clear 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."] (citations and quotations omitted); see also Sanders v. Berryhill, No. 16-3883, 2018 WL 878964, at *10 n. 10 (D.S.C. Jan. 29, 2018)[Finding ALJ's hypothetical to VE that only limited the claimant to simple and routine tasks in low stress environment did not adequately account for claimant's moderate CCP limitations], report and recommendation adopted, No. 16-3883, 2018 WL 835228 (D.S.C. Feb. 13, 2018); Dill v. Berryhill, No. 16-3949, 2018 WL 840103, at *2 (D.S.C. Jan. 26, 2018)[Limitation to simple, routine and repetitive tasks performed in a work environment free of fast-paced production requirements involving only simple work-related decisions with few if any workplace changes did not adequately account for claimant's moderate CPP limitation], report and recommendation adopted, No. 16-3949, 2018 WL 826854 (D.S.C. Feb. 12, 2018); cf. Straughn v. Colvin, No. 14-200, 2015 WL 4414275, at *4 n.5 (M.D.N.C. July 20, 2015) [reasoning that the ALJ "did not address how the RFC's limitation to 'simple, routine' tasks addressed his finding of 'mild limitations with concentration, persistence or pace.' Thus, the ALJ's decision may also run afoul of the recent decision in Mascio"] (citation and quotation omitted).

In Mascio the Fourth Circuit held that the ability to perform simple work is not the same as having the ability to stay on task during a workday, which is the limitation that would account for a claimant's impairment in concentration, persistence or pace; Mascio, 780 F.3d at 638; and the ALJ does not discuss anywhere in his decision whether Plaintiff's moderate limitations in CPP would restrict his ability to stay on task for an eight (8) hour workday, nor (critically) does he make any findings on this issue. See Mascio, 780 F.3d at 636 ["Remand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review."], citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013). As support for the ALJ's decision, the Defendant cites in part to the opinions of two state agency psychological consultants which touch on Plaintiff's ability to stay on task. See Defendant's Memorandum, p. 10. However, while state agency psychological consultant Robert Coyle, Ph.D. did opine, among other things, that Plaintiff could carry out simple and detailed instructions; sustain concentration, persistence, and pace for two-hour periods; and complete a full workday and a full workweek (R.p. 85), the ALJ found in his decision that the medical evidence of record was not entirely consistent with Dr. Coyle's opinion, and therefore gave it little weight. (R.pp. 23-24). With regard to the opinion of the other state agency consultant, Anna P. Williams, Ph.D., the ALJ did not discuss that report at all, or give any indication that he had relied on that opinion. (R.pp. 65-68); see generally (R.pp. 13-26).

This case therefore stands in contrast to cases where the decision has been upheld because the claimant's ability to stay on task notwithstanding the claimant's mental limitations was specifically addressed. Cf. Falls v. Colvin, No. 14-195, 2015 WL 5797751, at * 7 (D.S.C. Sept. 29, 2015) [Noting that "[a]s opposed to the hypothetical in Mascio, which said nothing about the claimant's mental limitations, the ALJ's hypothetical in this case accounted for each of Plaintiff's mental limitations. The ALJ also accounted for Plaintiff's limitations in the area of concentration when determining Plaintiff's residual functional capacity. The ALJ noted Plaintiff's mental limitations but found that the Plaintiff could concentrate, persist and work at pace to do simple, routine, repetitive work at 1-2 step instructions for extended periods say 2-hour periods in an 8-hour day"]; Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017)[Decision upheld where ALJ cited to medical opinions that plaintiff could engage in basic, routine and repetitive tasks on a sustained basis working low-stress non-production jobs notwithstanding his moderate difficulties in CPP].

Instead, the ALJ discussed Dr. Goodbar's January 2016 Medical Assessment of Ability to do Work-Related Activities (Mental), which included findings that Plaintiff had only a fair ability to maintain attention/concentration. Significantly, while Dr. Goodbar also opined that Plaintiff had a "good" ability to understand, remember, and carry out simple job instructions, he believed that his emotional distress would lead to problems with Plaintiff being able to complete tasks. (R.pp. 451-452). The ALJ specifically gave greater weight to Dr. Goodbar's opinion over that of Dr. Coyle. (R.p. 24). Moreover, the ALJ also discussed Dr. Kofoed's findings as support for his decision. Dr. Kofoed opined that although Plaintiff was capable of simple, repetitive tasks from a cognitive point of view, he may be prone to distractability as his task complexity increased. (R.p. 414). The ALJ found that Dr. Kofoed's conclusions were generally in accord with those of Dr. Goodbar, and gave Dr. Kofoed's findings significant weight. (R.p. 25).

However, notwithstanding Dr. Goodbar's and Dr. Kofoed's findings and giving significant weight to these opinions, the ALJ failed to analyze or discuss how these physicians' specific findings, that Plaintiff's emotional problems would lead to problems completing tasks and that his distractability would interfere with his ability to stay on task, effected his ability to stay on task for an 8-hour workday, as required by Mascio. While the ALJ did note that Plaintiff could perform activities such as household chores, go to church, that he was capable of driving, and that he could follow written instructions with his moderate limitation in CPP (R.pp. 15, 17-18, 26), it is unclear how these findings relate to Plaintiff being able to stay on task at a job for an eight-hour workday. See also SSR 96-8p [Defining RFC as a claimant's ability to perform work for 8-hours a day, five days a week]. The importance of the ALJ to have made a finding on this issue is demonstrated not just by the 4th Circuit's findings in Mascio, but by the VE testimony at the hearing that even if Plaintiff was capable of performing the jobs identified, if he was not able to stay on task for an appropriate time period, he would not be able to maintain gainful employment at any skill or exertional level. (R.p. 56). See also Cornett v. Califano, 590 F.2d 91 (4th Cir. 1978) [An ability to work for only a few hours a day on an intermittent basis is not equivalent to an ability to engage in substantial gainful activity].

Similarly, the ALJ limiting Plaintiff's RFC to no more than only minimal contact, zero to six percent of the workday, with the general public along with few, if any, work place changes (R.p. 17) deals largely with workplace adaptation, rather than concentration, pace, or persistence. See McPherson v. Colvin, No. 16-1469, 2016 WL 5404471 at * 8 (E.D.Pa. Sept. 28, 2016)[where the court rejected that moderate restrictions in concentration, persistence, and pace were accommodated by a hypothetical to a VE that only included: 1) the performance of routine, repetitive tasks; 2) a low stress environment (defined as no frequent independent decision making required and no frequent changes in the work setting); and 3) no public interaction and occasional interaction with coworkers and supervisors](citing to Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015)); Knight v. Commissioner, No. 15-1512, 2016 WL 4926072 (D.S.C. Sept. 16, 2016)[Finding that the ALJ's limiting the hypothetical to "unskilled work with no direct interaction with the public; only occasional team type interaction with coworkers; [who] should not be required to adapt to greater than simple, gradual changes in the workplace" did not account for the Plaintiff's moderate limitation in concentration, persistence, or pace].

With respect to the remaining restriction placed on the Plaintiff, that he engage in "no fast-paced production requirements" (R.p. 17), federal district courts in the Fourth Circuit have split on whether a restriction to "non-production" work adequately accounts for a moderate limitation in CPP following Mascio. See Bryan-Tharpe v. Colvin, No. 15-272, 2016 WL 4079532 at * (M.D.N.C. July 29, 2016)(collecting cases); see also Wilson v. Colvin, No. 14-3209, 2016 WL 625088 at * 5 (D.S.C. Jan. 15, 2016)(unpublished)[holding restriction to "nonproduction work, no assembly line production, or high speed manner, . . . [s]tanding alone, . . .does not account for a limitation in [CPP]"), recommendation adopted, 2016 WL 613891 (D.S.C. Feb. 16, 2016)(unpublished). In any event, in this case the ALJ did not limit Plaintiff to non-production work or no assembly line work. Rather, the ALJ's additional limitation (as set forth in his hypothetical to the VE) was that Plaintiff was prohibited from working in a "fast-paced" production environment. (R.p. 54). As such, the hypothetical in this case is similar to the mental restrictions set forth in the hypothetical in Varga, where the ALJ instructed the VE to assume an individual with Varga's vocational profile (age, education, and work experience) who was able to perform

simple, routine, or repetitive tasks in a work environment . . . free of fast paced production requirements, involving only simple work related decisions with few if any work place [sic] changes and no more than occasional interaction with coworkers or supervisors.

Varga
, 794 F.3d at 812. The Seventh Circuit in Varga held that a restriction from performing "fast paced" production jobs did not account for moderate restrictions in CPP. Varga, 794 F.3d at 815 [A restriction to work "free of fast paced production requirements" did not account for Plaintiff's moderate deficits in CPP, because the ALJ failed to define "fast paced production."]. The ALJ here also did not define "fast paced" work. Therefore, while that limitation may address Plaintiff's concentration problems, it does not appear to address Plaintiff's ability to stay on task for an 8-hour workday. In fact, as noted, when the VE was specifically asked whether Plaintiff would be able to perform the jobs identified if he was not capable of sustaining a level of concentrating, persistence, and pace to complete work without excessive periods of time off-task, the VE answered that he would not. (R.pp. 55-56).

Hence, as neither the ALJ's RFC assessment nor the ALJ's hypothetical question to the VE specifically address Plaintiff's ability to stay on task or ability to maintain a necessary pace for a full 8-hour workday, the court is left to guess how the ALJ accounted for this ability (or inability) despite finding that Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace. Carr v. Colvin, No. 15-685, 2016 WL 4662341, at *10 (D. Md. Sept. 7, 2016)[Finding that the ALJ's inclusion of a limitation in the assessment of Plaintiff's RFC and in the hypothetical questions to the VE to only occasional contact with supervisors, co-workers, and the public accounts for Plaintiff's moderate difficulties in social functioning, but does not account for Plaintiff's moderate difficulties in maintaining concentration, persistence, or pace]; see Miller v. Colvin, No. 15-443, 2016 WL 3679292 at **4-5 (W.D.N.C. July 11, 2016) [Finding remand required where "it is not entirely clear how the evidence aligns with the necessary functions, which is a required showing."] (citing Mascio, 780 F.3d at 636; SSR 96-8p, 1996 WL 374184, at *7). As such, the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016)(quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). "Remand thus is appropriate." Carr, 2016 WL 4662341, at *10.

The ALJ found that Plaintiff had moderate to marked difficulties in social functioning in this case, and accounted for Plaintiff's moderate to marked social limitations by restricting him to no more than occasional interaction with co-workers and only minimal interaction with members of the general public. (R.p. 17). --------

Of course, the ALJ may be able to find from the evidence that Plaintiff's CPP limitation would not effect his ability to stay on task at a job over the course of an 8 hour work day, or that he would be able to perform either the jobs identified by the VE at the hearing or other jobs even with some defined limitation in his ability to stay on task. However, it is incumbent on the ALJ to make any such findings, and since the ALJ did not make that determination or finding in his decision, it would not be proper for this Court to now attempt to do so in the first instance. See Mascio, 780 F.3d at 638 [noting that the ALJ may be able to explain why a concentration, persistence, or pace limitation did not translate into a limitation in the RFC ("[f]or 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 [VE]"), but finding that remand was appropriate because the ALJ gave no explanation]; Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996) ["The duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court"]; Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) [Court cannot affirm a decision on a ground that the ALJ did not himself invoke in making the decision]; Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) ["Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have thinking."]. Nor, in light of Mascio, can this Court simply dismiss the ALJ's failure to address this issue as harmless error.

Therefore, the decision should be reversed and remanded for consideration of Plaintiff's RFC in compliance with Mascio. With respect to the remainder of Plaintiff's claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart, 206 F.Supp.2d 757, 763-764 (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].

Conclusion

Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for reevaluation of the evidence as set forth hereinabove, and for such further administrative action as may be necessary. See Shalala v. Schaefer, 509 U.S. 292 (1993).

The parties are referred to the notice page attached hereto.

/s/_________


Bristow Marchant


United States Magistrate Judge August 17, 2018
Charleston, South Carolina

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).