C/A No.: 1:18-cv-1326-MBS-SVH
REPORT AND RECOMMENDATION
This appeal from a denial of social security benefits is before the court for a Report and Recommendation ("Report") pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The two issues before the court are whether the Commissioner's findings of fact are supported by substantial evidence and whether he applied the proper legal standards. For the reasons that follow, the undersigned recommends the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On May 1, 2014, Plaintiff filed applications for DIB and SSI in which he alleged his disability began on April 1, 2009. Tr. at 21. His applications were denied initially and upon reconsideration. Tr. at 151, 162. Prior to the hearing, Plaintiff filed a brief amending his alleged onset date to February 24, 2012. Tr. at 367. On September 14, 2017, Plaintiff had a hearing before Administrative Law Judge ("ALJ") Linda Diane Taylor. Tr. at 37-71 (Hr'g Tr.). The ALJ issued an unfavorable decision on November 28, 2017, finding Plaintiff was not disabled within the meaning of the Act. Tr. at 18-36. Subsequently, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Tr. at 1-4. Plaintiff filed a claim for SSI on February 26, 2018, alleging the same medical conditions at issue here, which claim was approved on June 19, 2018, with an effective onset date of February 2018. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on May 15, 2018. [ECF No. 1].
On November 8, 2017, Plaintiff's counsel sent a letter to the ALJ agreeing to amend his onset date to November 14, 2014. Tr. at 259. The undersigned has addressed this matter in further detail below.
B. Plaintiff's Background and Medical History
Plaintiff was 52 years old at the time of the hearing. Tr. at 42-43. He obtained a high school equivalency certificate. Tr. at 444. His past relevant work ("PRW") was as a plumber. Tr. at 43. He alleges he was unable to work from February 24, 2012, to February 2018 and remains disabled. [ECF No. 28 at 2].
2. Medical History
On March 15, 2012, Plaintiff presented to Mark J. Hoy, M.D. ("Dr. Hoy"), for evaluation of hearing deficiency. Tr. at 380. Dr. Hoy reviewed audiometric studies that demonstrated essentially flat moderately-severe to severe hearing loss, slightly worse in the right ear. Tr. at 381. Dr. Hoy observed Plaintiff to demonstrate normal vocalization and found no abnormalities on physical exam. Id. He diagnosed bilateral sensorineural hearing loss, recommended fitting for a hearing aid, and advised Plaintiff to protect his ears from further noise exposure. Tr. at 381-82.
On January 9, 2015, Plaintiff presented to John V. Custer, M.D. ("Dr. Custer"), for a consultative mental status examination. Tr. at 443. He reported a history of nervous tics that initially presented following his father's unexpected death. Id. He complained of problems with anger and depression and endorsed a history of conflicts associated with impaired hearing and communication. Id. He reported depression, sleep disturbance, and occasional suicidal thoughts. Tr. at 444. He stated he sometimes performed odd jobs for neighbors and was able to maintain concentration for three-to-four hours to complete the jobs. Id. Dr. Custer observed Plaintiff's grooming to be within normal limits. Id. He noted normal posture and gait, no involuntary movements, and normal and appropriate affect. Id. He stated Plaintiff was able to understand and provide goal-directed responses to questions, but needed to lean forward to listen. Id. He observed no evidence of loose associations, flight of ideas, or bizarre content. Id. He performed a cognitive exam and noted Plaintiff was alert and fully oriented, able to name the current president and past presidents back to Clinton, could spell "world" forward and backward, followed a three-step command, copied a geometric design, and scored 29 of 30 on the Mini-Mental State Exam. Tr. at 445. He diagnosed mood disorder, not otherwise specified and stated he could not rule out alcohol use disorder. Id. Dr. Custer noted Plaintiff had reported relatively mild mood symptoms that appeared to be related to his frustration with hearing loss. Id. He stated Plaintiff's mood symptoms would likely improve if his hearing impairment were addressed. Id.
Plaintiff presented to Julie Shoemaker, Au. D. ("Dr. Shoemaker"), for a hearing evaluation on February 3, 2015. Tr. at 372. He reported a history of congenital hearing loss, but indicated he had not worn hearing aids in 10 years. Id. He stated he had difficulty getting along with others in the workplace because he was unable to hear them. Id. Audiometry revealed a severe to profound sensorineural hearing loss in the left ear of 78.8% and a profound sensorineural hearing loss in the right ear of 97.5%. Id. Plaintiff had a binaural hearing impairment of 81.9%. Id. He could discern 40% of words in the right ear and 76% of words in the left ear at a volume of 100 decibels ("dB"). Id. Dr. Shoemaker diagnosed bilateral sensorineural hearing loss and tinnitus and indicated Plaintiff needed hearing aids. Id.
Plaintiff also presented to otolaryngologist Russell Kitch, M.D. ("Dr. Kitch"), for a consultative examination on February 3, 2015. Tr. at 376-78. He indicated he had marginally tolerated hearing aids in the past and relied primarily on lip reading. Tr. at 376. He reported a history of difficulty with social interaction, anger management, and maintaining jobs as a result of his hearing loss. Id. Dr. Kitch observed Plaintiff to speak at a markedly loud volume and to have severe to profound sensorineural hearing loss in the left ear and profound sensorineural hearing loss in the right ear. Tr. at 377. He stated the "[s]everity of hearing loss, presents a significant workplace disability for [Plaintiff]" and impaired speech discrimination, lifestyle, and power tools in workplace would "limit the efficacy of conventional hearing aids." Id. He recommended Plaintiff increase use of conventional hearing aids, but noted they "may be unable to allow effective employment opportunities in his line of work." Id. He diagnosed bilateral sensorineural hearing loss and tinnitus. Id.
On February 12, 2015, state agency medical consultant A. Hammond, M.D. ("Dr. Hammond"), reviewed the record and completed a physical residual functional capacity ("RFC") assessment. Tr. at 91-93. Dr. Hammond assessed no exertional, postural, manipulative, or visual limitations. Tr. at 91-92. He found Plaintiff had communicative limitations as a result of bilateral hearing loss. Tr. at 92. He indicated Plaintiff had no serviceable hearing in his right ear and average hearing in his left ear at 78 dB. Id. He stated Plaintiff "should be able to hear and understand instructions given face-to-face towards his left ear, in a loud voice and quiet environment," but "[a]ny employment requiring normal hearing [should] be avoided." Id. He indicated Plaintiff should avoid even moderate exposure to noise and all workplaces with auditory safety signals. Id. A second state agency consultant, E. Layne, M.D. ("Dr. Layne"), assessed the same physical RFC on December 8, 2015. Tr. at 118-19.
On February 24, 2015, state agency consultant M. Koretzky Ph.D. ("Dr. Koretzky"), reviewed the record and completed a psychiatric review technique ("PRT") form. Tr. at 90-91. He considered Listing 12.04 for affective disorders and assessed mild difficulties in maintaining social functioning. Tr. at 90. He assessed no restriction of activities of daily living ("ADLs"), no episodes of decompensation, and no difficulties in maintaining concentration, persistence, or pace. Id.
Plaintiff presented to Berkeley County Mental Health Center ("BCMHC") for an initial clinical assessment on April 30, 2015. Tr. at 395. He complained of increased irritability, mood swings, isolative behavior, and sleeping two-to-three hours per night. Id. He reported a history of suicidal ideation and anger associated with difficulty communicating. Id. He endorsed frequent use of alcohol and cannabis. Tr. at 396. Plaintiff reported episodes of anger and yelling as a result of fear that others were talking about him. Tr. at 399. Patricia A. Young, M. Ed. ("Ms. Young"), noted the following on mental status examination: neat and clean appearance and hygiene; poor coordination secondary to "bad knee"; irritable attitude; blunted and flat affect; anxious, angry, and depressed mood; loud and pressured speech secondary to hearing impairment; blocking, racing, indecisive, and disorganized thought process; thought content characterized by ideas of hopelessness, worthless, and paranoia; alert to person, place, time, and situation; fair insight and judgment; poor recent memory; impaired insight; able to perform simple math; easily distracted; and below average fund of knowledge. Tr. at 397-99. Ms. Young assessed a global assessment of functioning ("GAF") score of 50 and provided diagnostic impressions of severe major depressive disorder ("MDD") with psychotic features, post-traumatic stress disorder ("PTSD"), and polysubstance dependence. Tr. at 398. She stated Plaintiff's hearing impediment was "definitely a problem" and "much effort [was] exerted to communicate with him." Tr. at 399. She recommended regular mental health assessments and individual therapy to improve coping skills for stress management and decrease racing thoughts, tactile hallucinations, isolation, and other symptoms. Id.
The GAF scale is used to track clinical progress of individuals with respect to psychological, social, and occupational functioning. American Psychiatric Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000 ("DSM-IV-TR"). The GAF scale provides 10-point ranges of assessment based on symptom severity and level of functioning. Id. If an individual's symptom severity and level of functioning are discordant, the GAF score reflects the worse of the two. Id.
A GAF score of 41-50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR.
Plaintiff presented to psychiatrist Margaret Rittenbury, M.D. ("Dr. Rittenbury"), for an initial psychiatric medical assessment on August 13, 2015. Tr. at 406-07. Dr. Rittenbury observed Plaintiff to "talk VERY LOUD." Tr. at 406. Plaintiff reported a history of impaired relationships as a result of his hearing impairment and indicated he was quick to anger. Id. He denied spontaneous crying spells. Id. He admitted to alcohol and drug use. Id. He endorsed a history of suicidal ideation, but denied plans and attempts. Id. Dr. Rittenbury diagnosed moderate, recurrent MDD, cannabis abuse, and alcohol abuse and assessed a GAF score of 60. Tr. at 407. She noted Plaintiff had impaired socialization skills characterized by "loud and gruff" voice and being quickly frustrated. Id. She referred Plaintiff for lab work and advised him to take vitamins and ibuprofen and to follow up in one month. Id. She referred Plaintiff to a care coordinator for hearing aids. Id.
A GAF score of 51-60 indicates "moderate symptoms (e.g., circumstantial speech and occasional panic attacks) OR moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR.
On December 3, 2015, state agency consultant Douglas Robbins, Ph.D. ("Dr. Robbins"), reviewed the record and complete a PRT form. Tr. at 115-17. He considered Listings 12.04 and 12.09 for substance addiction disorders. Tr. at 116. He assessed no episodes of decompensation, mild restriction of ADLs, moderate difficulties in maintaining social functioning, and mild difficulties in maintaining concentration, persistence, or pace. Id.
On March 24, 2016, Plaintiff reported he was upset because his family was contemplating whether to put his mother in a nursing home. Tr. at 418. He complained of irritability, sleep disturbance, and withdrawal. Id. He reported his friend pulled a knife on him during a recent altercation. Id. Dr. Rittenbury noted normal findings during mental status exam, aside from loud speech, depressed mood, and fair insight and judgment. Id. She prescribed Zoloft and instructed Plaintiff to follow up for medication monitoring in one month. Tr. at 419. She also recommended Plaintiff attend psychotherapy with a clinician and obtain a physical examination from a medical clinic. Id.
On June 9, 2016, Plaintiff indicated he was taking Zoloft, but occasionally missed a dose. Tr. at 420. He reported improved sleep, appetite, and concentration, and his sister stated he had been much calmer since starting the medication. Id. He stated he had last used cannabis on March 9, 2016, but continued to use alcohol "socially." Id. He indicated he had been attacked by a woman and her dog on the prior day and had put his hand on the woman's neck to get her off him. Id. Dr. Rittenbury noted fair judgment and loud speech, but indicated no other abnormalities on mental status exam. Tr. at 421. She declined to increase Zoloft and stated Plaintiff's action on the prior day was a reflex of being attacked. Id.
On November 4, 2016, Plaintiff was discharged from services at BCMHC for lack of attendance. Tr. at 432.
Plaintiff followed up with Dr. Hoy on August 30, 2017. Tr. at 437. He reported worsened hearing loss following a blow to the head one month prior. Id. An audiology exam showed plaintiff to have a speech awareness threshold ("SAT") of 95 dB. Tr. at 435. Dr. Hoy assessed bilateral severe sensorineural hearing loss with conductive hearing loss contribution on the right side and small right tympanic membrane perforation. Tr. at 439. He stated that given the small size of the tympanic membrane perforation and the recent trauma, the ear drum was likely to heal without surgery. Id. He recommended Plaintiff follow up for reevaluation in four weeks, consult an audiologist for hearing aid evaluation, and consider cochlear implants. Id.
The SAT is "the lowest sound intensity at which speech can be detected." Speech Awareness Threshold, Stedman's Medical Dictionary (2014).
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on September 14, 2017, Plaintiff testified he let his license expire in July 2017 because he lacked money for a car. Tr. at 42-43. He said he stayed with and took care of his mother until she died in September 2016 and had lived alone since. Tr. at 43. He testified he started as a plumber when he was 19 years old and stopped working ten years prior, as he did not get along well with coworkers and gave it up. Tr. at 43-44. He testified he felt he was taken advantage of by his coworkers who used his problem against him moneywise. Tr. at 44. Plaintiff stated he had sleep problems, was depressed, did not get along with people, and was happier staying home. Id. He said he did not get along with people because they do not like to repeat themselves. Id. He said he did a lot of hard jobs that were physically difficult and ailed him, including his back, knees, and "from the top down." Tr. at 44-45. He said he was not physically able to work. Tr. at 45. He stated he used to wear a hearing aid, but it did not help and sometimes got in the way, including a time when one jammed and was crushed in his ear, leaving pieces therein. Id. He said hearing aids were only useful at home, but he last used them 15 years prior and no longer had functional ones. Tr. at 46.
Plaintiff stated he had depression and was prescribed Zoloft for difficulty sleeping, but that he no longer took medication. Tr. at 47. He indicated he had received mental health therapy all his life, noting he had problems since he was 12 and had a nervous tic, which sometime returned. Tr. at 47-48. He stated he has withdrawn from society and would rather just stay home, that he was dependent on his sisters, but did not want to be dependent on them and needed help. Tr. at 47-49. He said his sisters would check on him, make sure he had food and would grocery shop for him. Tr. at 49. He noted having been fired from jobs two or three times because of his hearing problems. Id. He opined he could handle money, pay for things, and got along with older people who have known him all his life. Id. He stated that if he could afford it, he desired help with his hearing. Id.
b. Testimony of Teresa Gaskins
Plaintiff's sister, Teresa Lynn Gaskins ("Ms. Gaskins"), testified on his behalf. Tr. at 50-66. She indicated Plaintiff's last employer "put up with him as long as they could," but had indicated Plaintiff was "just a liability" to the business and its employees. Tr. at 51. She said Plaintiff's hearing had worsened to the point that the police had stopped by his house and asked him to turn the TV down. Id. She said his mental status was increasingly angry, and that in trying to care for their late mother, he would call his sister for everything and was overwhelmed. Tr. at 50-51. She stated their mother had fallen and could not get back up, and Plaintiff's whole personality had changed, and he referred to himself as "Holmes." Tr. at 51-52. She said Plaintiff had been traumatized in his life and his condition had worsened, he walked funny, and he was "just a recluse now," trusting only his two sisters. Tr. at 52. She said some elderly neighbors would try to give Plaintiff odd jobs, but that he could not finish them and would become frustrated. Tr. at 52-53. She described that when in public, he would say he "gets nervous in his head" and his ears would ring all the time and he believed people were looking at him, such that they could not take him anywhere. Tr. at 53. She said Plaintiff did not have any friends and she did not take him to the grocery store, but that sometimes he would go to the store with their sister, Leslie. Tr. at 53-54. She said that Plaintiff would not know what he wanted in the grocery store, so she and Leslie would buy what they thought Plaintiff would have. Tr. at 53-54. She testified Leslie would take Plaintiff to his mental health appointments, driving from Summerville to Hanahan to Moncks Corner, but she stopped taking him after becoming frustrated because the medication made him a "pure zombie." Tr. at 54. Ms. Gaskins expressed frustration at not knowing what else to do for Plaintiff and not knowing the extent of the mental health therapy he has received, if any, noting he saw a different counselor each time. Id. She confirmed Plaintiff formerly had hearing aids, but feared them because they broke in his ears and did not seem to help anyway. Tr. at 55-56, 61. She also indicated Plaintiff was told at one time about a cochlear implant possibly helping, but without a guarantee. Tr. at 56-57.
Ms. Gaskins described Plaintiff as spending his day mostly sleeping and banging on a piano to relieve his stress. Tr. at 57. She said he was able to take a shower, but sometimes would go days without. She stated she would make him shave. Id. She indicated Plaintiff lost interest in any hobbies years ago. Id. She described hearing from Plaintiff's last employer that employees were quitting and not being able to work with Plaintiff due to his attitude and temper, which together with his hearing impairment, resulted in failures to communicate that would turn into confrontations. Tr. at 58.
In response to questioning by Plaintiff's counsel, Ms. Gaskins testified that Plaintiff attended vocational rehab, which tried to obtain hearing aids for him in 2012, but he never received them. Tr. at 58-59. She recounted her and her sister's frustration with the free clinic not keeping Plaintiff's appointments and being given the runaround in trying to obtain necessary dental work. Tr. at 59. She described Plaintiff as having a short attention span and embarrassing others in public because he would get mad in situations like having to stand in line. Tr. at 60. She noted Plaintiff feels inferior to others and has particularly struggled with coordination in the past three years, breaking things all the time. Tr. at 60-61. Ms. Gaskins testified Plaintiff is not able to handle his own finances and that she and her sister do it all for him and had recently obtained food stamps for him. Tr. at 61, 63. She indicated hearing aids had helped Plaintiff when he was younger, but stopped working in his late 20s. Tr. at 61-62. She noted his hearing had progressively declined, along with his mental health. Tr. at 62. She testified that medications helped in that they did not make him act crazy, but they just made him "be a zombie all day," and he did not like the way he felt on them. Id. Ms. Gaskins said Leslie interacted more with Plaintiff than she did, but that Ms. Gaskins had more responsibility for him financially. Tr. at 63. She said Plaintiff stopped driving two years prior, after his license expired and he did not have a car. Tr. at 64. She said she did not think Plaintiff could drive and that she would not get him a car. Id. She said that when he worked, Plaintiff would walk to work or be picked up. Tr. at 65. She said that if Plaintiff were able to have insurance, it would allow them to obtain more intense treatment and help. Id.
c. Vocational Expert Testimony
Vocational Expert ("VE") Thomas Neil, Ph.D., reviewed the record and testified at the hearing. Tr. at 66-70. The VE categorized Plaintiff's PRW as a plumber as heavy, skilled, SVP of 7, Dictionary of Occupational Titles ("DOT") No. 862.381-036. Tr. at 67. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could perform the full range of medium exertion, but who needed to avoid concentrated exposure to noise above level 3; avoid concentrated exposure to hazards and vibration; able to perform jobs that do not require ongoing conversation with others; able to perform and sustain simple, routine, repetitive tasks; and have only occasional interaction with coworkers and the general public. Tr. at 67-68. The VE testified the hypothetical individual could not perform Plaintiff's PRW. Tr. at 68. The ALJ asked whether there were any other jobs in the regional or national economy the hypothetical person could perform. Id. The VE identified the representative positions of (1) machine cleaner, DOT No. 699.687-014, medium, unskilled, SVP of 2; (2) industrial cleaner, DOT No. 381.687-018, medium, unskilled, SVP of 2; and (3) laundry worker II, DOT No. 361.685-018, medium, unskilled, SVP of 2; with 15,000, 80,000, and 110,000 jobs available nationally, respectively. Tr. at 68-69.
The ALJ described a second hypothetical that modified the first hypothetical to limit to the light exertional level, and the VE testified the hypothetical individual could not perform Plaintiff's PRW. Tr. at 69. The ALJ asked whether there were any other jobs in the regional or national economy the hypothetical person could perform. Id. The VE identified the representative positions of (1) garment bagger, DOT No. 920.687-018, light, skilled, SVP of 1; (2) hand presser, DOT No. 363.684-018, light, unskilled, SVP of 2; and (3) cleaner housekeeping, DOT No. 323.687-014, light, unskilled, SVP of 2; with 27,000, 12,000, and 240,000 jobs available nationally, respectively. Id.
The ALJ described a third hypothetical that modified the second hypothetical to limit to no interaction with coworkers and the general public, and the VE testified there would be no work available. Tr. at 69-70.
In response to questioning by Plaintiff's counsel, the VE testified if the noise level in the first and second hypotheticals were reduced to no exposure above a level 1, there would be no work available. Tr. at 70.
2. The ALJ's Findings
In her decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on September 30, 2012.
2. The claimant has not engaged in substantial gainful activity since November 14, 2014, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq).
3. The claimant has the following severe impairments: bilateral sensorineural hearing loss, depression, and a post-traumatic stress disorder (PTSD) (20 CFR 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 (416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a range of medium work activity as defined in 20 CFR 416.967(c). Specifically, the claimant is able to lift and carry up to 50 pounds occasionally and 25 pounds frequently and stand, walk, and sit for 6 hours each in an 8-hour day. The claimant must avoid concentrated exposure to noise (above level 3), hazards, and vibration. The claimant is able to perform jobs that do not require ongoing conversations with others and only occasional interaction with co-workers and the general public. He is able to perform and sustain simple, routine, and repetitive tasks.
6. The claimant is unable to perform any past relevant work (20 CFR 416.965).
7. The claimant was born on November 14, 1964 and was 50 years old, which is defined as an individual approaching advanced age, on the alleged disability onset date (20 CFR 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 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 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from November 14, 2014, through the date of this decision (20 CFR 416.920(g)).Tr. at 24-31. II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ impermissibly considered Plaintiff's failure to use hearing aids as a factor to deny his claim for benefits;
2) the ALJ did not consider all relevant evidence in assessing Plaintiff's RFC;
3) the ALJ's finding at step five was not supported by substantial evidence; and
4) the ALJ improperly amended Plaintiff's alleged disability onset date.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in her decision.
A. Legal Framework
1. The Commissioner's Determination-of-Disability Process
The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a "disability." 42 U.S.C. § 423(a). Section 423(d)(1)(A) defines disability as:
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 at least 12 consecutive months.42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims, regulations promulgated under the Act have reduced the statutory definition of disability to a series of five sequential questions. See, e.g., Heckler v. Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting "need for efficiency" in considering disability claims). An examiner must consider the following: (1) whether the claimant is engaged in substantial gainful activity; (2) whether he has a severe impairment; (3) whether that impairment meets or equals an impairment included in the Listings; (4) whether such impairment prevents claimant from performing PRW; and (5) whether the impairment prevents him from doing substantial gainful employment. See 20 C.F.R. §§ 404.1520, 416.920. These considerations are sometimes referred to as the "five steps" of the Commissioner's disability analysis. If a decision regarding disability may be made at any step, no further inquiry is necessary. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at a step, Commissioner makes determination and does not go on to the next step).
The Commissioner's regulations include an extensive list of impairments ("the Listings" or "Listed impairments") the Agency considers disabling without the need to assess whether there are any jobs a claimant could do. The Agency considers the Listed impairments, found at 20 C.F.R. part 404, subpart P, Appendix 1, severe enough to prevent all gainful activity. 20 C.F.R. §§ 404.1525, 416.925. If the medical evidence shows a claimant meets or equals all criteria of any of the Listed impairments for at least one year, he will be found disabled without further assessment. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). To meet or equal one of these Listings, the claimant must establish that his impairments match several specific criteria or are "at least equal in severity and duration to [those] criteria." 20 C.F.R. §§ 404.1526, 416.926; Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting the burden is on claimant to establish his impairment is disabling at Step 3).
In the event the examiner does not find a claimant disabled at the third step and does not have sufficient information about the claimant's past relevant work to make a finding at the fourth step, he may proceed to the fifth step of the sequential evaluation process pursuant to 20 C.F.R. §§ 404.1520(h), 416.920(h).
A claimant is not disabled within the meaning of the Act if he can return to PRW as it is customarily performed in the economy or as the claimant actually performed the work. See 20 C.F.R. Subpart P, §§ 404.1520(a), (b), 416.920(a), (b); Social Security Ruling ("SSR") 82-62 (1982). The claimant bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by establishing the inability to return to PRW, the burden shifts to the Commissioner to come forward with evidence that claimant can perform alternative work and that such work exists in the regional economy. To satisfy that burden, the Commissioner may obtain testimony from a VE demonstrating the existence of jobs available in the national economy that claimant can perform despite the existence of impairments that prevent the return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the Commissioner satisfies that burden, the claimant must then establish that he is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (regarding burdens of proof).
2. The Court's Standard of Review
The Act permits a claimant to obtain judicial review of "any final decision of the Commissioner  made after a hearing to which he was a party." 42 U.S.C. § 405(g). The scope of that federal court review is narrowly-tailored to determine whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner applied the proper legal standard in evaluating the claimant's case. See id.; Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls, 296 F.3d at 290 (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)).
The court's function is not to "try these cases de novo or resolve mere conflicts in the evidence." Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir. 1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold the Commissioner's decision if it is supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 390, 401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court must carefully scrutinize the entire record to assure there is a sound foundation for the Commissioner's findings and that her conclusion is rational. See Vitek, 438 F.2d at 1157-58; see also Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed "even should the court disagree with such decision." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
1. Evaluation of Plaintiff's Statements
Plaintiff argues the ALJ improperly relied on his failure to use conventional hearing aids as a basis for denying his claim for benefits. [ECF No. 28 at 8]. He maintains the ALJ did not engage in the "particularized inquiry" necessary to show the condition was "reasonably remediable" by compliance with prescribed treatment." Id. He contends the ALJ did not establish that his hearing would have improved to allow him to return to employment if he had used conventional hearing aids. Id. He argues the ALJ improperly relied on his ability to work in the past because the evidence showed his hearing declined over time. Id. at 9. He further maintains that even if his hearing would have improved with use of hearing aids or cochlear implant, his condition was not "reasonably remediable." Id. He contends the ALJ cannot deny him benefits because he cannot afford treatment. Id.
The Commissioner argues the ALJ did not deny benefits based on Plaintiff's noncompliance with recommended treatment. [ECF No. 30 at 1, 12]. He maintains the ALJ cited evidence that showed Plaintiff was not disabled even without the use of recommended hearing aids. Id. at 2, 13.
ALJ's are explicitly instructed to consider a claimant's "statements about the intensity, persistence, and limiting effects of symptoms" and to "evaluate whether the statements are consistent with objective medical evidence and other evidence" in the case record. SSR 16-3p, 2016 WL 1119029 at *6. This may require the ALJ to compare the claimant's statements to information the claimant provided to his medical sources regarding the onset, character, and location of symptoms; factors that precipitate and aggravate symptoms; the frequency and duration of symptoms; change in symptoms (e.g., whether worsening, improving, or static); and ADLs. Id. The ALJ should "consider whether there are any inconsistencies in the evidence and the extent to which there any are conflicts between [the claimant's] statements and the rest of the evidence." 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Her decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how [she] evaluated the individual's symptoms." SSR 16-3p, 2016 WL 1119029 at *9.
To disqualify "an otherwise eligible Social Security claimant from benefits for noncompliance," the ALJ must "conduct a 'particularized inquiry' to demonstrate that the claimant's condition is 'reasonably remediable' by compliance with prescribed treatment Pringle v. Astrue, C/A No. 4:11-2152-RMG, 2013 WL 442256, at *6 (D.S.C. Feb. 5, 2013), citing Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985). "This means that with compliance Plaintiff could return to work." Id. (citing Rousey v. Heckler, 771 F.2d 1065, 1069 (7th Cir. 1985)). The ALJ must also "demonstrate that the claimant lacked 'good cause for failing to follow a prescribed treatment plan.'" Id. at 991. "A claimant may not be penalized for failing to seek treatment he cannot afford; '[i]t flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.'" Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986) (citing Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984).
The ALJ found Plaintiff's medically-determinable impairments could reasonably be expected to cause some of his alleged symptoms, but his statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the evidence of record. Tr. at 28. The ALJ explained her conclusion as follows:
As for the claimant's statements about the intensity, persistence, and limiting effects of his symptoms, they are inconsistent because treatment records reflect the claimant has had his hearing loss since childhood, worked for years with hearing loss, and treatment records reflect the claimant would likely benefit from hearing aids or a cochlear implant.Tr. at 28. The ALJ further noted Plaintiff was able to fully participate in a February 2015 consultative exam even though he did not wear hearing aids. Id. She cited findings from a February 2015 auditory exam. Id. She stated audiometry testing in August 2017 showed Plaintiff to have a word recognition score of 64% without hearing aids. Id. She noted Plaintiff's "treatment physician felt the claimant would be a good candidate for amplification." Id.
The ALJ declined to address evidence that Plaintiff's hearing declined over time. See Tr at 51, 62 (including Ms. Gaskins's testimony that Plaintiff's hearing had progressively declined to the point that his employer had to terminate him). She erred in citing Plaintiff's hearing impairment since childhood and past ability to work as inconsistent with his statements without also considering statements as to the worsening of his symptoms. See SSR 16-3p, 2016 WL 1119029 at *6.
The ALJ did not cite evidence to suggest Plaintiff's condition was easily remediable by compliance with prescribed treatment. Drs. Hoy, Shoemaker, and Kitch recommended use of hearing aids and Dr. Hoy indicated a need for evaluation for cochlear implants. See Tr. at 372, 377, 381-82. Nevertheless, Dr. Hoy stated Plaintiff would require protection from further noise exposure even with use of hearing aids. Tr. at 381-82. Dr. Kitch noted impaired speech discrimination, lifestyle, and power tools in the workplace would "limit the efficacy of conventional hearing aids." Tr. at 377. Although he recommended Plaintiff increase use of conventional hearing aids, he noted they "may be unable to allow effective employment opportunities in his line of work." Id. Thus, the evidence does not show Plaintiff's condition was easily remediable by compliance with prescribed treatment.
The undersigned acknowledges the Commissioner's argument that the ALJ did not deny Plaintiff's claim for benefits based on his noncompliance, but finds the ALJ did consider noncompliance as a factor in evaluating Plaintiff's statements as to the severity of his symptoms. In Lovejoy, the Fourth Circuit wrote the following:
We recognize that the Secretary did not deny benefits on the basis of noncompliance with prescribed treatment; however, it is erroneous to consider the claimant's failure to seek treatment as a factor in the determination that her impairment is not severe as it would be to reach the ultimate conclusion that the claimant is not disabled because she failed to follow prescribed treatment when that failure is justified by lack of funds.790 F.2d at 1117 (citing Preston, 769 F.2d at 988). Thus, it is inappropriate for an ALJ to consider a claimant's noncompliance with prescribed treatment as a factor if the evidence suggests the claimant was unable to afford treatment. See id.
The evidence of record suggests Plaintiff was unable to obtain treatment for his hearing impairment. Plaintiff testified he would accept assistance with his hearing if he could afford it. Tr. at 49. Ms. Gaskins testified that Plaintiff had previously requested hearing aids through vocational rehabilitation, but had never received them. Tr. at 58-59. In light of the foregoing, the ALJ erred to the extent that she considered Plaintiff's noncompliance as a factor in evaluating his subjective statements as to the severity of his symptoms.
2. RFC Assessment
Plaintiff argues the ALJ's RFC assessment is not supported by substantial evidence. [ECF No. 28 at 10]. He maintains the evidence does not support and the ALJ did not provide an explanation for her finding that he could work in an environment with no concentrated exposure to noise above a level three. Id. He contends the state agency consultants opined he would be restricted to a more limited work environment than the ALJ included in the RFC assessment. Id. at 10-11. He argues the ALJ misinterpreted the audiometry testing in considering the type of environment in which he could work. Id. at 11-12.
The Commissioner maintains that substantial evidence supports the ALJ's RFC assessment. [ECF No. 30 at 13]. He argues the state agency consultants clarified their findings that Plaintiff must avoid even moderate exposure to noise in the accompanying narratives and that the ALJ's RFC assessment is consistent with the consultants' narratives. Id. at 13-14. He maintains the ALJ did not purport to give controlling weight to the consultants' opinions. Id. at 15. Thus, any discrepancies between the consultants' opinions and the RFC assessment would be consistent with his allocation of "some" weight to their opinions. Id. He argues the ALJ's decision reflects her consideration of audiometry testing. Id.
Following a determination that the medical signs or laboratory findings support the existence of medically-determinable impairments that could reasonably be expected to produce the claimant's alleged symptoms, the ALJ should evaluate the intensity and persistence of those symptoms to determine how they affect his capacity for work. 20 C.F.R. §§ 404.1529(a), 416.929(a). ALJs are directed to assess a claimant's RFC based on all the relevant evidence in the case record and to account for all the claimant's medically-determinable impairments. See 20 C.F.R. §§ 404.1545(a), 416.945(a). The RFC assessment must include a narrative discussion describing how all the relevant evidence in the case record supports each conclusion and must cite "specific medical facts (e.g., laboratory findings) and non-medical evidence (e.g., daily activities, observations)." SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ must explain how any material inconsistencies or ambiguities in the record were resolved. Id. at *7. "[R]emand 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." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
Pertinent to Plaintiff's argument, the ALJ incorporated into the RFC assessment a provision to "avoid concentrated exposure to noise (above level 3)" and found Plaintiff could "perform jobs that do not require ongoing conversations with others and only occasional interaction with co-workers and the general public." Tr. at 26-27. Plaintiff argues this RFC assessment does not adequately account for the severity of his hearing impairment.
The Commissioner argues the Supreme Court's recent holding in Biestek v. Berryhill, 139 S. Ct. 1148 (2019), discourages courts from applying categorical rules and encourages deference to the ALJ's interpretation of the evidence. [ECF No. 30 at 14]. In Biestek, 139 S. Ct. 1148 (2019), the plaintiff requested the court impose a categorical rule such that a VE's testimony could never be sufficient to sustain an ALJ's factfinding if the VE refused to honor a request to review the data supporting her opinion. The Court explained the plaintiff was wrong to press for "a categorical rule, applying to every case in which a vocational expert refuses a request for underlying data." Id. at 1157. It explained "[t]he inquiry, as is usually true in determining the substantiality of evidence, is case-by-case. Id. (citing Richardson v. Perales, 402 U.S. 389, 410 (1971) (rejecting a categorical rule pertaining to the substantiality of medical reports in a disability hearing)). The Court further noted the substantial evidence standard "takes into account all features of the vocational expert's testimony, as well as the rest of the administrative record" and "defers to the presiding ALJ, who has seen the hearing up close." Id.
Unlike the plaintiff in Biestek, Plaintiff is not asking the court to impose a categorical rule as to the interpretation of evidence. Instead, he is arguing that the substantial evidence of record does not support the RFC the ALJ assessed. As the Court explained in Biestek, "[u]nder the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains 'sufficien[t] evidence' to support the agency's factual determinations." 139 S. Ct. at 1154.
The ALJ stated she gave "some weight" to the state agency medical consultants' opinions. Tr. at 29. She noted the RFC she assessed was supported by the opinions of the state agency medical consultants. Id. The undersigned accepts the Commissioner's argument that because the ALJ accorded "some weight," as opposed to controlling weight, to the state agency consultants' opinions, she was not required to include in the RFC assessment all the restrictions the consultants provided. Nevertheless, pursuant to SSR 96-8p, the ALJ was required to reconcile the evidence in explaining her RFC assessment.
A comparison of the state agency consultants' opinions and the assessed RFC reveals some inconsistencies the ALJ neglected to reconcile. Drs. Hammond and Layne opined Plaintiff "should be able to hear and understand instructions given face-to-face towards his left ear, in a loud voice and quiet environment," but "[a]ny employment requiring normal hearing [should] be avoided." Tr. at 92, 118-19. The restrictions for "jobs that do not require ongoing conversations with others and only occasional interaction with co-workers and the general public" fail to address how instructions should be conveyed to Plaintiff, as well as his ability to function in the job environment with respect to aspects of communication not involving conversation. See Tr. at 26-27. The ALJ did not explain how a restriction to occasional interaction with coworkers and the general public would accommodate Plaintiff's hearing impairment. Drs. Hammond and Layne further specified Plaintiff should avoid even moderate exposure to noise and all workplaces with auditory safety signals. Tr. at 92, 118-19. The ALJ found Plaintiff should "avoid concentrated exposure to noise (above level 3)." Tr. at 26-27. Noise intensity level 3 is considered "moderate." See Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, App'x D, 1993 (specifying code "3" is consistent with a moderate noise intensity level with illustrative examples including a business office where typewriters are used, a department store, a grocery store, light traffic, and a fast food restaurant during off-hours). The ALJ failed to reconcile his finding that Plaintiff would be limited to noise exposure above moderate intensity level with the state agency consultants' opinion that Plaintiff should not even be exposed to noise at the moderate intensity level.
The ALJ further specified the RFC assessment was supported by findings on audiometry testing. Tr. at 29. During February 2013 audiometry testing, Plaintiff recognized 40% of words in his right ear and 76% of words in his left ear at 100 dB. Tr. at 372. This equates to the average sound level from an approaching subway train, car horn at 16 feet, or sporting event. Centers for Disease Control and Prevention, What Noises Cause Hearing Loss?, https://www.cdc.gov/nceh/hearing_loss/what_noises_cause_hearing_ loss.html (last visited Oct. 1, 2019). Thus, Plaintiff could recognize 40% of words in his right ear and 76% of words in his left ear if they were conveyed to him at a volume consistent with an approaching subway train, car horn at 16 feet, or sporting event. An audiology report from August 2017 revealed Plaintiff to have a word recognition score of 64% and an SAT of 95 dB. Tr. at 435. This equates to the average sound level from a motorcycle. Centers for Disease Control and Prevention, What Noises Cause Hearing Loss?, https://www.cdc.gov/ nceh/hearing_loss/what_noises_cause_hearing_loss.html (last visited Oct. 1, 2019). Thus, Plaintiff was unable to detect speech until it reached the volume of a motorcycle.
A court may take judicial notice of factual information located in postings on government websites. See Phillips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
The copy of the audiology report in the record reads "Speech Reception Threshold ("SRT") was obtained at illegible dBHL. Word recognition score was 64% using recorded speech material." Tr. at 435. Thus, it is unclear from the record at what decibel level Plaintiff obtained the 64% word recognition score. --------
Given this evidence, the restrictions in the RFC assessment for avoidance of "concentrated exposure to noise (above level 3)" and "jobs that do not require ongoing conversations with others and only occasional interaction with co-workers and the general public" seem inadequate to address the severity of Plaintiff's hearing loss and its vocational implications. Essentially, the ALJ has failed to reconcile evidence indicating Plaintiff could only hear speech communicated at significantly above-average volumes or to address in the RFC assessment the means by which any auditory information or warnings may be conveyed to Plaintiff.
In light of the foregoing, the undersigned recommends the court find the ALJ's RFC assessment to be unsupported by substantial evidence.
3. Step Five Determination
Plaintiff argues the ALJ failed to meet her burden of proof at step five of the sequential evaluation process. [ECF No. 28 at 12]. He maintains the DOT's description of the job of machine cleaner suggests a conflict with the noise level included in the RFC assessment. Id. at 12-13. He further claims he could perform none of the jobs the ALJ cited in her decision if he were limited as indicated by the state agency consultants. Id. at 13.
The Commissioner concedes the conflict between the DOT and the job of machine cleaner, but argues the ALJ's step five finding is supported by the two additional jobs the VE identified. [ECF No. 30 at 2, 17]. He maintains the ALJ met her burden at step five because she identified jobs that were consistent with the assessed RFC. Id. at 18.
If a claimant cannot return to PRW, the Commissioner bears the burden of showing that the economy contains a significant number of jobs that the claimant can perform. Walls, 296 F.3d at 290. ALJs should look to the DOT as the primary source in determining whether jobs exist that an individual with the claimant's limitations may perform. 20 C.F.R. §§ 404.1566(d), 416.966(d); see also SSR 00-4p ("[W]e rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy"). However, to produce specific vocational evidence showing that the national economy provides employment opportunities, an ALJ must sometimes solicit the services of a VE. See Walker, 889 F.2d at 50; see also Aistrop, 36 F. App'x at 147 (providing that where a claimant has both exertional and nonexertional impairments that prevent performance of a full range of work at a given exertional level, "the Commissioner must prove through expert vocational testimony that jobs exist in the national economy which the claimant can perform").
For an ALJ to rely on a VE's opinion, "it must be based upon a consideration of all other evidence in the record . . . and it must be in response to proper hypothetical questions which fairly set out all of [a] claimant's impairments." Johnson, 434 F.3d at 659 (quoting Walker, 889 F.2d at 50); see also English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993). A VE's testimony cannot constitute substantial evidence in support of the Commissioner's decision if the hypothesis fails to conform to the facts. See id.
The ALJ presented a hypothetical question to the VE during the hearing that included the hearing restrictions discussed above. See Tr. at 67-68. The VE identified jobs in response to the hypothetical question (Tr. at 68), and the ALJ cited those jobs to meet her burden at step five. See Tr. at 30. Because the ALJ cited jobs that were identified in response to a hypothetical question that did not adequately account for Plaintiff's medically-determinable impairments, the undersigned recommends the court find she failed to meet her burden at step five.
4. Dismissal of DIB Claim
Plaintiff argues he agreed to amend his alleged onset date and to withdraw his claim for DIB based on the ALJ's offer to approve his claim for disability benefits as of the amended onset date. [ECF No. 28 at 13]. He maintains his DIB claim should be reinstated because the ALJ did not follow through with her offer. Id.
The Commissioner argues Plaintiff elected to withdraw his application for DIB and the withdrawal of the DIB claim was inconsequential because the ALJ found Plaintiff was not disabled before or after the amended onset date. [ECF No. 30 at 2]. He maintains the record reflects no promise from the ALJ to award benefits if Plaintiff were to amend his alleged onset date. Id. at 18.
Pursuant to SSR 83-20, the ALJ must "establish the onset date of disability." Because the onset date "may affect the period for which the individual can be paid and may even be determinative of whether the individual is entitled to or eligible for any benefits . . . it is essential that the onset date be correctly established and supported by the evidence." Id. "The starting point in determining the date of onset of disability is the individual's statement as to when disability began." Id.
The Commissioner cites several cases to sustain his argument that substantial evidence supports the ALJ's acceptance of the amended onset date and dismissal of the DIB claim. In three of these cases, the plaintiffs' attorneys moved to amend the alleged onset dates during hearings. See Martin v. Colvin, No. 13-11779, 2014 WL 4112053, at *3 (S.D.W. Va. Aug. 20, 2014), Moyer v. Berryhill, No. 16-39, 2017 WL 3909736, at *3 (W.D. Va. Aug. 14, 2017), Kingston v. Berryhill, No. 17-68, 2018 WL 1320245, at *3 (D. Utah Feb. 20, 2018). The district courts concluded that because transcripts reflected the plaintiffs' acquiescence to the amended onset dates, there was no evidence to support the plaintiffs' claims that the ALJs erred in proceeding on the amended onset dates. Id. In Martin v. Colvin, No. 15-761, 2016 WL 7839131, at *2 (D.D.C. Aug. 4, 2016), the plaintiff signed a voluntary statement agreeing to amend his onset date on the day of his hearing, but did not move to amend his onset date on the record. In finding no error in the ALJ's acceptance of the amended onset date, the court noted the plaintiff "d[id] not plead or present evidence that he was coerced by the ALJ or unable to voluntarily consent at the time of amendment." Id. at *3.
The cases the Commissioner references differ from this case in one important respect—in none of those cases did the plaintiffs allege the ALJs failed to honor agreements to award benefits in exchange for an amended alleged onset date. Plaintiff maintains the ALJ's clerk contacted his attorney with an offer to approve the disability claim as of November 14, 2014, his fiftieth birthday, if he would agree to the amended date and dismissal of the DIB claim. [ECF No. 28 at 13]. Thus, Plaintiff argues he was coerced by the ALJ to agree to the amended onset date.
Plaintiff's attorney sent a letter to the ALJ on November 8, 2017, that reads as follows: "I have had a subsequent conversation with the claimant's sister regarding his onset date. We wish to agree to the previously offered onset date of 11/14/2014, the date of the claimant's 50th birthday, and as a result dismiss his claim for Title II benefits." Plaintiff's attorney's use of the words "agree to" and "previously offered" support Plaintiff's argument that he agreed to the amended onset date and withdrawal of his DIB claim in exchange for the ALJ's promise to award benefits as of the amended date. The words in the letter are persuasive, but do not provide conclusive proof that the ALJ made such an offer, as the clerk could have contacted Plaintiff's attorney without the ALJ's permission or Plaintiff's attorney could have misinterpreted the conversation with the clerk.
Because the record contains a letter amending the alleged onset date, the ALJ did not err in finding Plaintiff had agreed to amend his alleged onset date and withdraw his claim for DIB. See SSR 83-20 (providing "[a] change in the alleged onset date may be provided in a [Report of Contact Form], a letter, another document, or the claimant's testimony at a hearing."). Nevertheless, in light of the above recommendation for remand, Plaintiff enjoys the same opportunity to amend his onset date at the administrative level that is afforded to any other claimant in a remanded case. Thus, upon remand, Plaintiff may move to amend his onset date to February 24, 2012, and to have his claim for DIB reinstated. III. Conclusion and Recommendation
The court's function is not to substitute its own judgment for that of the ALJ, but to determine whether the ALJ's decision is supported as a matter of fact and law. Based on the foregoing, the court cannot determine that the Commissioner's decision is supported by substantial evidence. Therefore, the undersigned recommends, pursuant to the power of the court to enter a judgment affirming, modifying, or reversing the Commissioner's decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g), that this matter be reversed and remanded for further administrative proceedings.
IT IS SO RECOMMENDED. October 2, 2019
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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).