C/A No.: 1:17-cv-01732-RBH-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 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 she applied the proper legal standards. For the reasons that follow, the undersigned recommends that the Commissioner's decision be reversed and remanded for further proceedings as set forth herein. I. Relevant Background
A. Procedural History
On or about July 25, 2014, Plaintiff protectively filed an application for SSI, when he was under the age of 18. Tr. at 51, 244. His application was denied initially on March 20, 2015, and upon reconsideration on June 18, 2015. Tr. at 137-59. On November 16, 2016, Plaintiff had a hearing before Administrative Law Judge ("ALJ") John T. Molleur. Tr. at 81-112. The ALJ issued an unfavorable decision on January 11, 2017, finding that Plaintiff was not disabled within the meaning of the Act. Tr. at 48-75. 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 1-7. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner's decision in a complaint filed on July 3, 2017. [ECF No. 1].
The ALJ's decision states the application was filed on July 25, 2014, Tr. at 51; however, the application summary reflects the application was made on August 18, 2014, Tr. at 244.
B. Plaintiff's Background and Medical History
Plaintiff was 19 years old at the time of the hearing. See Tr. at 81, 88-89. Plaintiff entered the twelfth grade, but he did not graduate high school. Tr. at 89. He has no past relevant work ("PRW"). Tr. at 74, 109.
2. Medical History
On December 13, 2010, Plaintiff was evaluated for participation in an accommodation plan at his school, and the school determined he was eligible due to oppositional defiance disorder ("ODD"). Tr. at 376-84. State accommodations were made to alleviate his issues, including adjusting Plaintiff's seating arrangements in the classroom, extending deadlines for him to complete assignments, and allowing him to leave the classroom for approximately five minutes to refocus his attention. Tr. at 376-77.
On July 29, 2013, Christopher J. O'Brien, M.D. ("Dr. O'Brien"), evaluated Plaintiff for complaints of chest pain after having eaten a cheese sandwich for breakfast. Tr. at 474. Physical examinations and diagnostic tests were within normal limits. Tr. at 474-75. Dr. O'Brien refilled Plaintiff's Zantac. Tr. at 475.
On August 7, 2013, Margaret Sokohl, M.D. ("Dr. Sokohl"), evaluated Plaintiff at a follow-up appointment for his previous episode of chest pain. Tr. at 473. Plaintiff's physical examination was within normal limits. Tr. at 473-74. Dr. Sokohl diagnosed Plaintiff with chest pain and obesity. Tr. at 474. Dr. Sokohl encouraged Plaintiff to continue Zantac, avoid acid-producing foods, make other dietary changes, and increase his physical activity. Id. Dr. Sokohl also referred Plaintiff to pediatric endocrinology. Id.
On December 24, 2013, Evan Hawkins Allie, M.D. ("Dr. Allie"), evaluated Plaintiff for complaints of trouble sleeping, worries about diabetes, and tingling in his hands and feet. Tr. at 471. Dr. Allie recommended over-the-counter melatonin for sleep regulation and counseled Plaintiff on sleep hygiene. Tr. at 472. Dr. Allie noted Plaintiff's insulin and HA1C should be checked at his follow-up appointment, counseled him about his weight, and advised him on how to stay calm over the holiday season. Tr. at 472-73.
On January 6, 2014, Dr. Sokohl evaluated Plaintiff's concerns about sleep disturbance, obesity, anxiety, hand tingling, and diabetes. Tr. at 469. Dr. Sokohl noted Plaintiff's somatic symptoms had improved in a setting of decreased anxiety. Tr. at 470. Dr. Sokohl recommended testing Plaintiff for diabetes at a follow-up visit. Id.
On February 26, 2014, Caitlyn C. Mooney, M.D. ("Dr. Mooney"), evaluated Plaintiff's complaints of headaches, neck pain, and right shoulder pain. Tr. at 468. Dr. Mooney noted Plaintiff's headaches were "not new and not debilitating." Id. Dr. Mooney further noted Plaintiff's issues were likely not serious and were related to stress or posture. Tr. at 469. Dr. Mooney encouraged Plaintiff to treat his symptoms with Tylenol, Motrin, and heat. Id. Dr. Mooney provided Plaintiff with handouts on upper back and neck exercises to improve posture and referred him to a physical therapist. Id. Dr. Mooney advised Plaintiff to keep a diary for his neck and head pain. Id.
Between July 13, 2014, and July 18, 2014, Plaintiff presented to the emergency room five times with a persistent headache and nausea. Tr. at 453-67. While physical examinations were within normal limits at each visit, Plaintiff reported increasing anxiety. Id.
On July 19, 2014, Plaintiff was treated in the emergency room for complaints of ear ringing associated with a headache and nausea. Tr. at 409. Plaintiff repeatedly inquired whether he was bleeding to death or had an aneurysm. Tr. at 409-10. Plaintiff appeared anxious and preoccupied, and he paced in the milieu. Tr. at 410. Plaintiff was diagnosed with psychosis and anxiety, prescribed Risperdal, and remained in the psychiatric unit until July 27, 2014. Tr. at 414-45. Plaintiff continued to perseverate about having an aneurysm and dying. Tr. at 414-16. Medical staff noted Plaintiff went to the nurse station excessively, paced around the unit, and had to be redirected numerous times. Id.
On July 21, 2014, Plaintiff remained preoccupied with somatic delusions and hallucinations, but he had improved slightly since his admission. Tr. at 418. Plaintiff also remained anxious and needed constant reassurance from staff. Id. His symptoms remained severe and debilitating. Id. Plaintiff reported blurry vision and trouble moving his neck. Id. It was unclear if his reports were continued somatic complaints or were related to extrapyramidal symptoms. Id. Benadryl was added to his medication regimen. Id. Plaintiff continued to approach medical staff with concerns that he was dying. Tr. at 422. Plaintiff was prescribed Prozac. Id.
On July 23, 2014, Plaintiff reported feeling better, but he admitted to having a headache and thoughts that he was dying. Tr. at 423. Plaintiff continued to be preoccupied with death and somatic concerns. Tr. at 423-24. Plaintiff's Prozac dosage was increased. Tr. at 424.
On July 24, 2014, Plaintiff showed some improvement. Tr. at 427. Plaintiff's affect was constricted, and his insight and judgment were limited. Id.
On July 25, 2014, Plaintiff showed further improvement. Tr. at 430-32. Plaintiff displayed less somatic preoccupation and less anxiety. Tr. at 432. He continued to tolerate his medication well. Id. Plaintiff recognized that "maybe" his thoughts of illnesses were imagined or exaggerated. Id. The next day, Plaintiff's insight maintained improvement, and he indicated his concerns about being sick may have been excessive. Tr. at 442. On July 27, 2014, Plaintiff was discharged from the hospital with prescriptions for Prozac and Risperdal. Tr. at 444-45.
On August 5, 2014, Shawn Miller ("Miller"), a medical student at the Medical University of South Carolina, evaluated Plaintiff for a hospital follow up. Tr. at 404. Miller noted Plaintiff continued to have an irrational fear that he had a variety of medical problems, including cancer, despite intensive workups in the hospital that were negative. Id. Plaintiff reported his anxiety and hypochondria had marginally improved since his discharge from the hospital, and he believed his medications were helping him. Id. Plaintiff reported significant difficulty leaving the house for any length of time due to his anxiety. Id. Plaintiff's blood pressure was elevated with an automated forearm blood pressure cuff, but normalized when taken manually. Id. Miller noted Plaintiff appeared lethargic, distressed, obese, and with a flat affect that improved from the hospital consult. Tr. at 406. Miller noted Plaintiff was obese. Id. Miller noted Plaintiff showed mild developmental delay, demonstrated by struggles in school and slow, elementary conversation. Id. Miller provided Plaintiff with an assessment and plan for psychosis/depression, hypertension, possible sleep apnea, allergic rhinitis, and metabolic syndrome. Id.
On August 6, 2014, Alvin Lee Lewis, M.D. ("Dr. Lewis"), evaluated Plaintiff for delusional disorder, somatic type. Tr. at 401-03. Plaintiff's mother reported concerns with his lack of motivation, general interest in life, and poor energy. Tr. at 402-03. She reported Plaintiff had few friends and was not exercising. Id. Plaintiff reported having anxiety about his health, and noted he barely left the house. Id. Dr. Lewis noted Plaintiff appeared dysthymic and unkempt, with constricted affect and full range. Tr. at 402. Although Dr. Lewis noted Plaintiff's thought processes were normal, he indicated his thought content showed delusions. Id. Dr. Lewis found Plaintiff had grossly intact cognition and memory, but limited insight and judgment. Tr. at 403. Dr. Lewis diagnosed Plaintiff with delusional disorder, somatic type, and metabolic syndrome, and ruled out major depressive disorder with psychotic features. Id. Dr. Lewis continued Plaintiff on Risperdal, increased his Prozac dosage, and encouraged him to make an appointment with a therapist. Id.
On September 30, 2014, Lynn M. Manfred, M.D. ("Dr. Manfred"), evaluated Plaintiff during a follow-up visit for sleep apnea and metabolic syndrome. Tr. at 397-400. Petitioner reported he still snored, but that his sleep had subjectively improved. Tr. at 398. Plaintiff reported a nine-pound weight loss despite not having changed his eating habits or regularly exercising. Id. Plaintiff noted the "[f]eelings in his head" were resolved with increased Prozac. Id. Dr. Manfred encouraged Plaintiff to attend his scheduled sleep study and instructed him to eat healthy, exercise regularly, and follow up with his psychiatrist. Tr. at 399. Plaintiff's medications, including Prozac and Risperdal, were continued. Tr. at 398.
On February 23, 2015, Bonnie F. Cleaveland, Ph.D. ("Dr. Cleaveland"), evaluated Plaintiff as part of his application process for social security disability. Tr. at 505. Plaintiff alleged anxiety, depression, and psychosis. Id. Dr. Cleaveland noted Plaintiff was obese, made poor eye contact, and looked down during the interview. Id. Plaintiff mumbled, and Dr. Cleaveland often had to ask him to repeat himself. Id. Dr. Cleaveland noted Plaintiff's flat affect and retarded psychomotor behavior, but found no evidence of any perceptual disturbance. Id. She estimated Plaintiff's intelligence was in the average range or lower. Id. Dr. Cleaveland noted that Plaintiff worked slowly and showed little affect generally, but he often smiled when he thought a task was silly. Id. Plaintiff had impaired memory, and Dr. Cleaveland noted the need to obtain other sources of information. Id.
Dr. Cleaveland administered the Neurobehavioral Cognitive Status Exam ("Cognistat"), which revealed lethargic level of consciousness; average orientation, attention, comprehension, repetition, calculation, and similarities; mild impairment in naming, memory, and judgment; and severe impairment in constructional ability. Tr. at 507. Dr. Cleaveland found Plaintiff to be independent in all activities of daily living. Id. She further assessed his social functioning was impaired by lack of social engagement, but that he could likely manage funds. Tr. at 508. According to Dr. Cleaveland, Plaintiff was able to concentrate and persist on simple tasks in the one-on-one setting, but she did not assess his ability to perform complex tasks. Id. She diagnosed delusional disorder, major depressive disorder with psychotic features (provisional), and a history of aggressive behavior. Id.
On March 6, 2015, Plaintiff was evaluated at the Charleston Mental Health Center for difficulty sleeping, talking to himself, having paranoia, inappropriately laughing, having anxiety, and not socializing. Tr. at 532-36. Plaintiff's mother expressed concerns that Plaintiff was exhibiting symptoms of anxiety and depression. Tr. at 536. He displayed paranoid thoughts and stated that he felt like things were crawling inside his head. Id. Plaintiff was noted to be overweight and big for his age. Tr. at 534. Plaintiff's motor activity was lethargic, his attitude was guarded, and his affect was flat; however, he was passive and calm. Id. Plaintiff's speech was slow and soft. Id. While his thought content was paranoid, he had normal and appropriate thought processes and was properly oriented. Tr. at 534-35. Plaintiff's remote and recent memory were poor, and he was easily distracted and daydreamed. Tr. at 535. Plaintiff's fund of knowledge was average. Id. Plaintiff was given the following Axis I diagnoses: panic disorder with agoraphobia and depression, not otherwise specified. Id. Plaintiff was given the following Axis III diagnoses: overweight, nausea, constipation, and borderline diabetes. Id. Plaintiff was given a global assessment of functioning ("GAF") score of 55. Id. It was recommended that Plaintiff attend therapy focused on improving social skills and developing coping skills. Tr. at 536.
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 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 or about March 20, 2015, a Psychiatric Review Technique Questionnaire form and Mental Residual Functional Capacity Assessment were completed by a non-examining consultant as part of Plaintiff's Disability Determination Explanation. Tr. at 119-25. The consultant's assessments indicated moderate limitations caused by Plaintiff's medically-determinable mental impairments. Id.
On March 29, 2015, Sarah Kuhn, M.D. ("Dr. Kuhn") evaluated Plaintiff for complaints of apathy, decreased energy, poor sleep, depressed mood, increased isolation, paranoia, and frequent somatic complaints. Tr. at 540. Plaintiff's physical examination was within normal limits. Tr. at 540-41. Dr. Kuhn diagnosed Plaintiff with psychotic disorder, not otherwise specified (primary diagnosis), and anxiety disorder, not otherwise specified, and ruled out schizoaffective disorder versus schizophrenia versus bipolar affective disorder with psychotic features. Tr. at 541. Dr. Kuhn prescribed hydroxyzine and Risperdal. Id.
On April 7, 2015, Walter A. Brzezinski, M.D. ("Dr. Brzezinski"), evaluated Plaintiff for complaints of pain on his right side. Tr. at 521. Dr. Brzezinski diagnosed musculoskeletal pain based on Plaintiff's history and a benign exam. Tr. at 524. Dr. Brzezinski recommended either Ibuprofen or Tylenol for symptomatic relief and further suggested Plaintiff use heating pads for additional relief. Id. Dr. Brzezinski discussed the importance of maintaining a healthy diet and daily exercise with Plaintiff. Id.
On April 23, 2015, Plaintiff was evaluated by his school for anxiety and depression, causing him to have difficulty focusing in class. Tr. at 395. State accommodations were made to alleviate his issues, including adjusting where Plaintiff sat in class, extending the time he would have to complete assignments, and allowing him to take tests in a small group setting. Id.
On April 28, 2015, Diann Marie Krywko, M.D. ("Dr. Krywko"), evaluated Plaintiff for complaints of a constant headache lasting six months, blurry vision (especially at school), and sleep disturbance. Tr. at 516. Plaintiff's physical examination was within normal limits. Tr. at 518. Dr. Krywko diagnosed headaches. Tr. at 518-19. She prescribed Motrin and Compazine. Tr. at 520. Dr. Krywko recommended a follow up with psychiatry, noting she suspected that regular medications would markedly improve Plaintiff's symptoms. Id.
On May 3, 2015, Walter E. Limehouse, M.D. ("Dr. Limehouse"), evaluated Plaintiff for complaints of neck and back pain with headaches. Tr. at 548. Dr. Limehouse noted Plaintiff exhibited cervical pain and tenderness in his lumbar spine. Tr. at 549-50. Dr. Limehouse diagnosed musculoskeletal pain, noting it was likely a muscle spasm and did not appear serious. Tr. at 551. Dr. Limehouse prescribed Valium. Id.
On May 17, 2015, Robert Tracy, M.D. ("Dr. Tracy"), evaluated Plaintiff in a follow-up examination for complaints of continued headaches and daytime fatigue. Tr. at 545. Plaintiff's physical examination was within normal limits. Tr. at 546-47. Dr. Tracy diagnosed headaches and recommended over-the-counter nonsteroidal anti-inflammatory drugs. Tr. at 547. Dr. Tracy also diagnosed obstructive sleep apnea and referred Plaintiff to a sleep clinic. Id.
On May 26, 2015, Gloria Wilson-Dignam, a physician's assistant at the Charleston Mental Health Clinic ("Wilson-Dignam"), evaluated Plaintiff for complaints of anxiety and paranoia. Tr. at 567. Plaintiff's mother reported Plaintiff was anxious and worried about gynecomastia, which he had seen on television. Id. Plaintiff had been pacing the floor, checking locks obsessively, and having difficulty falling asleep due to intrusive thoughts. Id. Plaintiff's physical examination was within normal limits. Id. Plaintiff was given the following Axis I diagnoses: psychotic disorder, not otherwise specified (primary diagnosis), anxiety disorder, not otherwise specified, and ruled out schizoaffective disorder versus schizophrenia versus bipolar affective disorder with psychotic features. Id. Plaintiff was given a GAF score of 55. Wilson-Dignam prescribed Risperdal, Trazodone, and Hydroxyzine. Tr. at 568.
On or about June 8, 2015, a Psychiatric Review Technique Questionnaire form and Mental Residual Functional Capacity Assessment were completed by a non-examining consultant and were included in Plaintiff's Disability Determination Explanation. Tr. at 150-54. The consultant's assessments indicated moderate limitations caused by Plaintiff's medically-determinable mental impairments. Tr. 151-54.
On July 14, 2015, Andrew Manett, M.D. ("Dr. Manett"), evaluated Plaintiff for complaints of voices, anxiety, and numerous somatic complaints. Tr. at 1036. Plaintiff's mother reported Plaintiff was concerned about the side effects of Risperdal. Id. Plaintiff indicated that he was concerned about male breasts and brain tumors. Id. Plaintiff reported poor sleep, anxiety, and ruminations. Id. Plaintiff indicated he was not taking Trazodone with Risperdal because it made his heart race. Id. Dr. Manett noted Plaintiff's poor eye contact. Id. Plaintiff's physical examination was within normal limits. Tr. at 1038. Dr. Manett diagnosed psychotic disorder, not otherwise specified, anxiety disorder, and rule out schizoaffective disorder versus schizophrenia versus bipolar disorder with psychotic features. Id. Dr. Manett noted a GAF score of 42. Id. Dr. Manett prescribed Latuda and recommended Plaintiff discontinue Risperdal because Plaintiff was not willing to take it consistently. 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.
On September 22, 2015, Daniel Lewis, M.D. ("Dr. Lewis"), evaluated Plaintiff when he visited the Roper Hospital Emergency Room. Tr. at 1080-81. Plaintiff complained of a headache, specifically pain to his left and right temples. Tr. at 1080. Plaintiff reported that his headache was similar in nature to his previous headaches. Id. Dr. Lewis noted Plaintiff had stopped his Latuda and Risperdal. Id. Dr. Lewis noted Plaintiff was cooperative and his affect was flat. Id. Dr. Lewis diagnosed acute headache and anxiety reaction. Tr. at 1081. Dr. Lewis administered Toradol and Valium and discharged Plaintiff with instructions to follow up with his private physician. Id.
Also, on September 22, 2015, Lindsay J. Campbell, M.D. ("Dr. Campbell"), evaluated Plaintiff during a follow-up psychiatric appointment for worsening symptoms of psychosis and anxiety due to noncompliance with his medication regime. Tr. at 763-64. Plaintiff's physical examination was within normal limits. Tr. at 763. Dr. Campbell diagnosed psychotic disorder, not otherwise specified (primary diagnosis), anxiety disorder, not otherwise specified, and ruled out schizoaffective disorder versus schizophrenia versus bipolar affective disorder with psychotic features. Id. Dr. Campbell continued Plaintiff's Trazodone and Hydroxyzine with a plan to discontinue Plaintiff's Latuda, instead prescribing Invega. Tr. at 763-64.
On November 30, 2015, Dr. Manett re-evaluated Plaintiff during a follow-up appointment. Tr. at 765-66. Plaintiff's mother reported Plaintiff never took Invega due to concerns about side effects and because Latuda worked when he took it. Tr. at 765. It was noted that Plaintiff had discontinued Trazodone. Id. While Plaintiff denied audiovisual hallucinations, his mother reported that he talked to himself. Id. Plaintiff reported poor sleep and continued to perseverate on blood rushing in his head. Id. Plaintiff's physical examination was within normal limits. Id. Dr. Manett diagnosed Plaintiff with schizophrenia (primary diagnosis). Id. Dr. Manett prescribed Latuda and recommended that Plaintiff take it with dinner to help with absorption and sleep. Tr. at 766.
On February 29, 2016, Dr. Manett saw Plaintiff who reported problems with anxiety and palpitations at night. Tr. at 774-75. Plaintiff denied feeling depressed. Id. Dr. Manett again noted a primary diagnosis of schizophrenia. Id. At Plaintiff's insistence, Dr. Manett restarted him on Risperdal. Tr. at 775.
On June 4, 2016, Jon Patrick Jennings, M.D. ("Dr. Jennings"), evaluated Plaintiff for nausea that had begun three days prior when Plaintiff took his Risperdal. Tr. at 984. Dr. Jennings diagnosed Plaintiff with constipation and gave Plaintiff recommendations to help resolve his nausea and abdominal discomfort. Tr. at 987. Dr. Jennings also noted that Plaintiff had been non-compliant with mental health medication for over two years. Id. Dr. Jennings recommended Plaintiff make an appointment if his anxiety worsened. Id. Dr. Jennings recommended Plaintiff take Atarax, not Risperdal, for anxiety. Id.
On June 28, 2016, Jeffrey S. Bush, M.D. ("Dr. Bush"), evaluated Plaintiff for complaints of worsening back pain from the prior day when he played basketball. Tr. at 989. Dr. Bush noted Plaintiff's pain was moderate, aching pain in his lumbar spine. Id. Dr. Bush diagnosed back strain and prescribed nonsteroidal anti-inflammatory drugs and Flexeril. Tr. at 992-93.
On June 29, 2016, Dr. Lewis evaluated Plaintiff at the emergency room. Tr. at 1082-84. Plaintiff presented with complaints of urine discoloration and back pain. Tr. at 1082. Plaintiff reported his back pain began after playing basketball. Id. Plaintiff indicated he had been seen at another emergency room for similar complaints the prior day and had been given pain medication. Id. He indicated he went to the emergency room due to his urine discoloration, which his mother told him was too dark. Id. Plaintiff's physical examination was within normal limits. Id. The results of a urinalysis were negative. Tr. at 1090. Dr. Lewis diagnosed muscle strain and instructed Plaintiff to continue the medications he had previously been prescribed for back pain. Tr. at 1083.
On August 16, 2016, Stephen Daniel, M.D. ("Dr. Daniel"), evaluated Plaintiff when he presented to the emergency room with complaints of a headache. Tr. at 1085. Dr. Daniel diagnosed seasonal allergies and headache. Tr. at 1086. Plaintiff was prescribed Fioricet. Id.
On September 5, 2016, William Brett McGary, M.D. ("Dr. McGary"), evaluated Plaintiff for complaints of trouble sleeping and anxiety. Tr. at 998. Dr. McGary diagnosed anxiety, ordered a psychiatry consultation, and prescribed benzodiazepine for sleep. Tr. at 1001-02. During the psychiatry consultation, Plaintiff reported not being able to sleep and worsening anxiety. Tr. at 994. Plaintiff also expressed concerns about fatal insomnia. Id. Plaintiff's mother reported he had not slept for two nights and he had taken three or four Trazodone pills at once. Id. Plaintiff was discharged with instructions to return the next day. Tr. at 997, 1002.
Additional elements regarding Plaintiff's history and physical were provided by Dr. Jonathan King. Tr. at 1002.
On September 5, 2016, Plaintiff was voluntarily admitted to Palmetto Lowcountry Behavioral Health with suicidal ideation and bizarre behavior. Tr. at 590. Plaintiff reported that he had not been sleeping well. Id. He was diagnosed with mood disorder and psychosis, unspecified. Id. He was started on Risperdal, but he reported having side effects and not sleeping. Id. He was then switched to Zyprexa, which resulted in a better mood and improved sleep. Id. Plaintiff continued to show improvement, denying psychosis and suicidal ideation for many days and stable on medications. Id. On September 14, 2016, Plaintiff no longer met the criteria for hospitalization, and he was discharged on Lexapro, Melatonin, Olanzapine, and Trazodone. Id.
On September 27, 2016, Emily Rountree, M.D. ("Dr. Rountree"), evaluated Plaintiff for complaints of anxiety, depression, pacing, and not sleeping well. Tr. at 781. Plaintiff reported being afraid to leave the house. Id. Dr. Rountree noted Plaintiff's recent hospitalization and medication changes. Id. Dr. Rountree noted Plaintiff's affect was constricted and depressed, but his memory, attention, and concentration were intact, and his judgment and insight were good. Id. Dr. Rountree listed Plaintiff's fund of knowledge as average. Id. Dr. Rountree's primary diagnosis was schizophrenia. Id. Dr. Rountree prescribed Risperdal, Zyprexa, Trazodone, Lexapro, and Clonazepam. Tr. at 782.
On October 13, 2016, Dr. Rountree evaluated Plaintiff at a follow-up appointment. Tr. at 783. Plaintiff and his mother reported he was sleeping much better with Trazodone. Id. Plaintiff admitted he did not like to leave his house or his room, and he explained these feelings increased since a break-in at his home. Id. Plaintiff's primary care doctor had expressed concern with his weight gain of ten to fifteen pounds over a couple weeks. Id. Dr. Rountree noted Plaintiff's affect was appropriate; his memory, attention, and concentration were intact; his judgment and insight were good; and his fund of knowledge was average. Id. Dr. Rountree diagnosed schizophrenia, discontinued Zyprexa, and continued Trazodone, Lexapro, Latuda, and Clonazepam. Tr. at 783-84.
On November 10, 2016, Dr. Rountree completed a Mental Residual Functional Capacity Assessment for Plaintiff. Tr. at 1094-97. She indicated Plaintiff's treatment began on March 29, 2015, Tr. at 1094, and he saw a therapist approximately every two weeks and a psychiatrist every one to three months. Id. Dr. Rountree indicated Plaintiff was diagnosed at the assessment with schizophrenia. Id. She assessed his GAF score as 50. Id. Dr. Rountree indicated Plaintiff's prognosis was guarded, and indicated that she was unaware of any physical medical condition that may have contributed to Plaintiff's mental impairment, but wrote "part of patient's abnormal thoughts is his belief that he has a serious or life threatening illness." Id. Dr. Rountree indicated Plaintiff's mother reported he had been hospitalized at Palmetto Behavioral Health in September 2016 where he received medication management and therapy services. Id. Dr. Rountree indicated Plaintiff's impairment had lasted or was expected to last at least twelve months. Id. Dr. Rountree reported she did not believe Plaintiff was a malingerer and there was no evidence of current drug or alcohol abuse. Tr. at 1094-1095. Dr. Rountree also indicated Plaintiff was compliant with treatment. Tr. at 1095.
Dr. Rountree also assessed Plaintiff's functioning, indicating she had no evidence to rate his ability to function in the following areas: to remember locations and work-like procedures; to understand and remember very short and simple instructions; to understand and remember detailed instructions; to carry out very short and simple instructions; and to make simple work-related decisions. Tr. at 1095-96. Dr. Rountree explained that she circled "Not Ratable" for the first four areas "[b]ased on not having specifically addressed memory issues but suspect he is distracted significantly by abnormal thoughts, fears, [and] hallucination[s] [such] that understanding, memory, concentration[,] & persistence would be impaired." Tr. at 1095.
Dr. Rountree circled "Not Ratable" for these categories of functioning.
Dr. Rountree indicated Plaintiff's ability to function was seriously limited in the following areas: to carry out detailed instructions; to maintain attention and concentration for extended periods; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary routine without special supervision; to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; to respond appropriately to changes in the work setting; to set realistic goals or make plans independently of others; and to tolerate normal levels of stress. Tr. at 1095-97.
Dr. Rountree circled "Marked" for these categories of functioning.
Dr. Rountree indicated Plaintiff's ability to function was precluded in the following areas: to work in coordination with or proximity to others without being distracted by them; to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number of and length of rest periods; to interact appropriately with the general public; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and to travel in unfamiliar places or use public transportation. Tr. at 1095-97.
Dr. Rountree circled "Extreme" for these categories of functioning.
Dr. Rountree indicated it was "unknown" to her what Plaintiff's abilities were to ask simple questions, request assistance, accept instructions, and respond appropriately to criticism from supervisors. Tr. at 1096. Dr. Rountree indicated there was no limitation on Plaintiff's ability to be aware of normal hazards and take appropriate precautions, but she also wrote a question mark beside that selection. Tr. at 1097.
Dr. Rountree indicated Plaintiff's impairment would substantially interfere with his ability to work on a regular and sustained basis at least 20% of the time. Id. She indicated Plaintiff would miss two to three days per month because of his mental impairment or for treatment of his mental impairment. Id. Dr. Rountree indicated she did not believe Plaintiff could work on a regular and sustained basis in light of his mental impairment, writing "At this time, [Plaintiff] appears unable to work on a regular basis due to his paranoia. He is fearful of others and has difficulty leaving his home and room at times. He also has paranoia regarding bodily symptoms that he interprets as serious health conditions." Id. Dr. Rountree indicated she did not believe Plaintiff could manage his own funds based on her knowledge that Plaintiff was having trouble completing activities of daily living and leaving his home or room. Id.
On November 10, 2016, Dr. Rountree also completed a Mental Residual Functional Capacity Questionnaire and Listings. Tr. at 1098-1102. Dr. Rountree noted Plaintiff had been a patient at her facility since March 2015, but she had treated him three times since September 27, 2016, for "Schizophrenic, Paranoid and Other Psychotic Disorders." Tr. at 1098. Dr. Rountree indicated Plaintiff's GAF at the time of the questionnaire was 50, but she did not know either his highest GAF or his GAF in the past year. Id. Dr. Rountree rated Plaintiff's response to treatment as moderate. Id. Dr. Rountree noted Plaintiff had been prescribed Latuda, Lexapro, Trazodone, and Clonazepam, with a side effect of possible drowsiness from his medications. Id. Dr. Rountree described her clinical findings as "ongoing paranoia causing him difficulty leaving the home and resulting in depressed mood/feelings that he is not going to get better. He also feels anxious in the limited social contact he has with extended family." Id. She wrote the prognosis was guarded. Id.
Dr. Rountree identified the following symptoms: thoughts of suicide; blunt, flat or inappropriate affect; poverty of content of speech; perceptual or thinking disturbances; hallucinations or delusions; somatization unexplained by organic disturbance; mood disturbance; paranoid thinking or inappropriate suspiciousness; unrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury; and persistent irrational fear of a specific object, activity, or situation which results in a compelling desire to avoid the dreaded object, activity, or situation. Tr. at 1098-99. Dr. Rountree indicated Plaintiff had an irrational fear of a serious health problem. Tr. at 1099.
Dr. Rountree indicated Plaintiff was unable to meet competitive standards in the following areas: maintaining regular attendance and being punctual within customary, usually strict tolerances; sustaining an ordinary routine without special supervision; working in coordination with a proximity to others without being unduly distracting; completing a normal workday and workweek without interruptions from psychologically based symptoms. Tr. at 1100. Dr. Rountree also indicated Plaintiff was unable to meet competitive standards to deal with the stress of semi-skilled and skilled work. Tr. 1101.
Dr. Rountree indicated Plaintiff was seriously limited, but not precluded, in getting along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes and responding appropriately to changes in a work setting. Tr. at 1100. Dr. Rountree also indicated Plaintiff was seriously limited, but not precluded, in his ability to set realistic goals or make plans independently of others. Tr. at 1101.
Dr. Roundtree did not rate Plaintiff's abilities as to all of the identified skills needed to perform unskilled, semi-skilled, or skilled work on the questionnaire. Tr. at 1100-01. In particular, Dr. Rountree wrote question marks for whether Plaintiff was able to remember work-like procedures; understand and remember very short and simple instructions; carry out very short and simple instructions; maintain attention for two hour segments; make simple work-related decisions; perform at a consistent pace without an unreasonable number and length of rest periods; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; and be aware of normal hazards and take appropriate precautions. Tr. at 1100. Moreover, she indicated she was unable to rate Plaintiff's ability to understand and remember detailed instructions or carry out detailed instructions. Tr. at 1101.
Dr. Roundtree indicated Plaintiff was unable to meet competitive standards of ability to interact appropriately with the general public, maintain socially appropriate behavior, use public transportation, and travel to an unfamiliar place. Tr. at 1101. She rated Plaintiff's ability to adhere to basic standards of neatness and cleanliness as seriously limited, but not precluded. Id. Dr. Rountree explained Plaintiff's limitations were due to his severe paranoia of others and social withdrawal. Id.
Dr. Rountree indicated she did not know Plaintiff's IQ. Id. She stated Plaintiff's psychiatric condition exacerbated his experience of pain or other physical symptoms, explaining he had been diagnosed with schizophrenia in the past year, but had a history of significant preoccupation with physical symptoms. Id. Dr. Rountree indicated she suspected Plaintiff had somatic delusions or misperceptions of normal bodily functions. Id.
Dr. Rountree rated Plaintiff as having marked restriction in activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; and one or two repeated episodes of decompensation. Tr. at 1101-02.
C. The Administrative Proceedings
1. The Administrative Hearing
a. Plaintiff's Testimony
At the hearing on November 16, 2016, Plaintiff testified he did not graduate high school or earn a GED. Tr. at 83, 89. Plaintiff testified he had difficulty understanding his assignments in every school subject, despite additional assistance, which made him feel depressed. Tr. at 91. He testified he did not have plans to return to school, but expressed interest in graduating. Tr. at 93.
Plaintiff testified he regularly saw a psychiatrist or counselor and took his prescribed medications on his own or upon being prompted. Tr. at 90.
Plaintiff testified he had worked at one job as a camp counselor for kids during a summer. Tr. at 89-90. Plaintiff explained he became frustrated while filling out the application for the job, and the employer made a special accommodation for him by allowing his sister to be at the workplace with him. Tr. at 92. Plaintiff acknowledged he missed a few days of work during the job, which lasted for approximately two months. Tr. at 92-93.
b. Lay Witness' Testimony
The hearing transcript reflects a phonetic spelling of Lathania, Tr. at 83; however, the ALJ's decision reflects the spelling as Lathornya, Tr. at 51.
Ms. Singleton confirmed Plaintiff had difficulty understanding material in school and failed the twelfth grade despite various attempts to accommodate him, change schools, participate in home school, or attend school online. Tr. at 94-95, 100-03. Ms. Singleton testified Plaintiff was not tested for a learning disability. Tr. at 100. She also testified her attempts to punish Plaintiff for academic failure were futile. Tr. at 103.
Ms. Singleton testified Plaintiff paces all day, talks to himself, hears voices, thinks something is wrong with his body, and experiences anxiety. Tr. at 97. Ms. Singleton testified Plaintiff's medication changed recently, and she notified the counselor she did not believe the change was working. Tr. at 97-98, 108. She testified Plaintiff had been hospitalized in 2014 and 2016 for mental issues. Tr. at 98. Ms. Singleton said Plaintiff was hospitalized for hallucinating, fighting with his sister, and locking himself in his room. Tr. at 98-99. Ms. Singleton testified Plaintiff did not have any friends, did not communicate, was "scared of the outside world," and would not leave the house without her or her sister. Tr. at 99, 104-05. Ms. Singleton confirmed Plaintiff has been receiving "regular outpatient care" for two or three years and takes his medication daily. Tr. at 107-08.
Ms. Singleton explained her sister worked for the City of Charleston and knew the program administrator so a special accommodation was made for Plaintiff to work at the summer camp. Tr. at 95, 105-07. Ms. Singleton estimated Plaintiff had worked approximately four hours per day as a camp counselor. Tr. at 96.
c. Vocational Expert's Testimony
Vocational Expert ("VE") Arthur F. Schmitt reviewed the record and testified at the hearing. Tr. at 51, 109-10. The VE confirmed Plaintiff's work history consisted solely of his position at the summer camp. Tr. 109. The ALJ described a hypothetical individual of Plaintiff's vocational profile who could work at all exertional levels; perform "no more than basic one and two step tasks, with no more than occasional and basic decision making or changes in the work setting"; and tolerate proximity to coworkers and supervisors; but should not be required to interact with the general public, perform tandem work, work with others as a team, or perform production work. Tr. at 109. The ALJ asked whether there were any unskilled jobs in the regional or national economy the hypothetical person could perform. Tr. at 110. The VE identified egg packer, DOT number 920.687-134, SVP of two; janitorial, DOT number 381.687-018, SVP of two; and laundry operator, DOT number 361.685-014, SVP of two. Id.
The ALJ then offered a second hypothetical, maintaining all factors in the original hypothetical and adding the individual would likely require unscheduled breaks or otherwise be off task for up to ninety minutes per day above the scheduled breaks. Id. The VE testified the additional requirement would preclude employment. Id. In a third hypothetical, the ALJ presented the same initial factors and, in the alternative of the second hypothetical's factors, inquired if two or three absences per month on an unscheduled basis would preclude employment. Id. The VE testified the limitations in the third hypothetical would also make the individual unemployable. Id.
2. The ALJ's Findings
In his decision dated January 11, 2017, the ALJ made the following findings of fact and conclusions of law:
1. Claimant was born on December 27, 1996 and was therefore in the "Adolescents (age 12 to attainment of age 18)" age group on July 25, 2014, the date the application date was filed (e.g., 20 CFR 416.926a(g)(2)(v)). Claimant attained age 18 on December 26, 2014 (20 CFR 416.120(c)(4)).
2. Claimant has not engaged in substantial gainful activity since the date the application was filed (20 CFR 416.924(b) and 416.972).
3. Before attaining age 18, claimant had the following severe impairments: affective disorder, anxiety disorder, and schizophrenia (20 CFR 416.924(c)).
4. Before attaining age 18, claimant did not have an impairment or combination of impairments that met or medically equaled one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1, Part A or B (20 CFR 416.920(d), 416.924, 416.925 and 416.926).
5. Before attaining age 18, claimant did not have an impairment or combination of impairments that functionally equaled the listings (20 CFR 416.924(d) and 416.926(a).
6. Because claimant did not have an impairment or combination of impairments that met, medically equaled any listing or functionally equaled the listings, claimant was not disabled prior to attaining age 18 (20 CFR 416.924(a)).
7. Claimant has not developed any new impairment or impairments since attaining age 18.
8. Since attaining age 18, claimant has continued to have a severe impairment or combination of impairments (20 CFR 416.920(c)).
9. Since attaining age 18, claimant has not had an impairment or combination of impairments that meets or medically equals a listed impairment (20 CFR 416.920(d)).
10. After careful consideration of the entire record, the undersigned finds that, since attaining age 18, claimant has had the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: Claimant has been limited to performing no more than 1 to 2 step tasks. He has been limited to work requiring no more than occasional, basic decision-making or changes in the work setting. Claimant has not been able to perform work which requires interaction with the general public. He has not been able to perform tandem work or other work in close coordination with others in a team-type approach. He has been able to tolerate proximity to co-workers and supervisors. He has not been able to perform production work.
11. Claimant has no past relevant work (20 CFR 416.965).
12. Claimant is currently a "younger individual age 18-44" (20 CFR 416.963).
13. Claimant has a limited education and is able to communicate in English (20 CFR 416.964).
14. Transferability of job skills is not an issue because claimant does not have past relevant work (20 CFR 416.968).
15. Since attaining age 18, considering claimant's age, education, work experience, and residual functional capacity, jobs have existed in significant numbers in the national economy that the
claimant has been able to perform (20 CFR 416.960(c) and 416.966).
16. Claimant has not been under a disability, as defined in the Social Security Act, since December 26, 2014, the day claimant attained age 18, through the date of this decision (20 CFR 416.924(a) and 416.920(g)).
Tr. at 55-75. II. Discussion
Plaintiff alleges the Commissioner erred for the following reasons:
1) the ALJ improperly relied on the VE's testimony without having resolved conflicts between the testimony and the DOT's job descriptions; and
2) the ALJ improperly rejected Plaintiff's treating psychiatry specialist's opinion.
The Commissioner counters that substantial evidence supports the ALJ's findings and that the ALJ committed no legal error in his 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:
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 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 (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. § 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. § 416.920(a)(4) (providing that if Commissioner can find claimant disabled or not disabled at any step, Commissioner may make a determination and 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. § 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. § 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. § 416.926; Sullivan v. Zebley, 493 U.S. 521, 530-31 (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. § 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. § 416.920(a), (b), (f); 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 national 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 [s]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 (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. Conflict Between VE's Testimony and DOT
Plaintiff argues that the ALJ erred in relying on the VE's testimony to meet the burden at step five without resolving an apparent conflict between the RFC's restriction to one or two step tasks and the DOT's descriptions of the jobs identified by the VE—egg packer, janitor, and laundry operator—having a general educational development ("GED") reasoning level of two as required by Henderson v. Colvin, 643 F. App'x 273 (4th Cir. 2016). [ECF No. 13 at 20-22]. The Commissioner urges the court to follow published decisions from other federal courts of appeals that have found no apparent conflict between a limitation to simple, unskilled work and a GED reasoning level of two. [ECF No. 15 at 5]. She further notes that SSR 00-4p does not include GED reasoning levels within its examples of agency regulatory policies or definitions so they cannot be inconsistent. Id. at 5-6. Finally, she argues that the GED reasoning level listed in the DOT is the maximum level required so there was other work Plaintiff was capable of performing in the national economy. Id. at 6-7. Plaintiff replies that this court should follow the more recent, unpublished decision by the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") rather than older, published decisions by other circuits. [ECF No. 16 at 2]. In addition, Plaintiff contends the Commissioner's arguments regarding SSR 00_4p are unavailing, as the examples listed are not exhaustive and the suggestion to ignore GED reasoning levels is inconsistent with the approach taken by this circuit and others. [ECF No. 16 at 2-3].
During the fifth step in the sequential evaluation process, "the Commissioner bears the burden to prove that the claimant is able to perform alternative work." Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). While assessing the claimant's ability to perform other jobs existing in significant numbers in the national economy, the ALJ should take administrative notice of job information contained in the DOT 20 C.F.R. § 416.966(d); see also SSR 00-4p (providing that "we rely primarily on the DOT (including its companion publication, the [Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles]), for information about the requirements of work in the national economy"). In some cases, ALJs obtain testimony from VEs to address how certain restrictions affect claimants' abilities to perform specific jobs. 20 C.F.R. § 416.966(e).
Acknowledging that VE's opinions sometimes conflict with the information contained in the DOT, the SSA promulgated SSR 00_4p to explain how these conflicts should be resolved. The SSR 00-4p's purpose is to "require the ALJ (not the [VE]) to '[i]dentify and obtain a reasonable explanation' for conflicts between the [VE]'s testimony and the [DOT], and to 'explain in the determination or decision how any conflict that has been identified was resolved.'" Pearson, 810 F.3d at 208 (citing SSR 00-4p (emphasis in original)). According to SSR 00-4p, the ALJ has two responsibilities to fulfill. Id. "First, the ALJ must '[a]sk the [VE] . . . if the evidence he or she has provided conflicts with information provided in the [DOT].'" Id. (citing SSR 00-4p). "[S]econd, '[i]f the [VE]'s . . . evidence appears to conflict with the [DOT],' the ALJ must 'obtain a reasonable explanation for the apparent conflict.'" Id. (citing SSR 00-4p). "SSR 00-4p directs the ALJ to 'resolve the conflict by determining if the explanation given by the [VE] is reasonable'" and "to 'explain the resolution of the conflict irrespective of how the conflict was identified.'" Id. (citing SSR 00-4p (emphasis in original)). Therefore, "[t]he ALJ independently must identify conflicts between the expert's testimony and the [DOT]." Id. at 209. Furthermore, "an ALJ has not fully developed the record if it contains an unresolved conflict between the VE's testimony and the DOT," and "an ALJ errs if he ignores an apparent conflict on the basis that the VE testified that no conflict existed." Henderson, 643 F. App'x at 277 (citing Pearson, 810 F.3d at 210).
The court explained that an "apparent conflict" existed when the VE's testimony "appear[ed] to conflict with the [DOT]," but an explanation from the VE may show that no actual conflict exists. Pearson, 810 F.3d at 209. ALJs must resolve both obvious and apparent conflicts between the VE's testimony and the DOT.
In this case, the ALJ determined that Plaintiff was "limited to performing no more than 1 to 2 step tasks." Tr. at 71; Tr. at 109 (posing hypothetical to VE as Plaintiff was "limited to performing no more than basic one and two step tasks"). Plaintiff concedes the ALJ asked the VE if his testimony was consistent with the DOT and the VE responded that it was consistent. ECF No. 13 at 20; Tr. at 110. Nevertheless, Plaintiff is correct that the VE's failure to identify the conflict did not absolve the ALJ of his independent duty to consult the DOT and to determine whether the VE's testimony was consistent with its descriptions of the identified jobs. Pearson, 810 F.3d at 208-10; SSR 00-4p. Here, without explanation, the ALJ found the VE's testimony to be consistent with the DOT and relied on it to find that Plaintiff was capable of performing jobs as an egg packer, janitorial, and laundry operator. Tr. at 74. A review of the DOT reflects a GED reasoning level of two for each of these positions. See 920.687-134 PACKER, AGRICULTURAL PRODUCE, DOT (4th ed., revised 1991), 1991 WL 687994; 381.687-018 CLEANER, INDUSTRIAL, DOT (4th ed., revised 1991), 1991 WL 673258; and 361.685-014 LAUNDRY OPERATOR, DOT (4th ed., revised 1991), 1991 WL 672986.
The undersigned notes there are slight variations between the names provided by the VE or ALJ and the titles provided in the DOT however, each position was located and confirmed through the DOT code provided by the VE during his testimony and the ALJ in his decision. --------
The Fourth Circuit has found "there is an apparent conflict between an RFC that limits [a claimant] to one-to-two step instructions and GED reasoning Code 2, which requires the ability to understand detailed instructions." Henderson, 643 F. App'x. at 277. The Henderson court explained that "[u]nlike GED reasoning Code 1, which requires the ability to 'apply commonsense understanding to carry out simple one-or-two step instructions,' GED Reasoning Code 2 requires the employee to 'apply commonsense understanding to carry out detailed but uninvolved written or oral instructions.'" Id. (citing DOT, 1991 WL 688702 (2008)). Thus, the issue in this case is similar to the issue in Henderson in failing to acknowledge the apparent conflict between a limitation to one or two step tasks with jobs requiring a GED reasoning level of two.
Even if this court were to ignore the Fourth Circuit's decision in Henderson, the Commissioner's argument to follow other circuits overlooks the fact that simple work does not necessarily equate to one or two step tasks. Some of the circuits that have found no apparent conflict between a GED reasoning level of two and a limitation to simple, unskilled work still draw a distinction between simple work and a specific limitation to one or two step tasks because the latter is explicitly included in the GED reasoning level of one. See, e.g., Thomas v. Berryhill, 881 F.3d 672, 676-78 (8th Cir. 2018) (noting that the ALJ determined the plaintiff's RFC was limited to "1 to 2 step tasks" and "[b]y incorporating the definition of level-one reasoning into the RFC, the ALJ indicated 'that [she] could perform only occupations at [that] reasoning level'" such that "[a]n apparent conflict thus existed" between the VE's testimony and the DOT's description (citing Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010) (finding "'simple' job instructions" were not the same as "simple one- or two-step instructions") (emphasis in original)).
The Henderson court cited Rounds v. Commissioner, 807 F.3d 996, 1003 (9th Cir. 2015), which found "[t]here was an apparent conflict between [the plaintiff's] RFC, which limits her to performing one- and two-step tasks, and the demands of Level Two reasoning, which requires a person to '[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.'" 807 F.3d at 1003; see also Henderson, 643 F. App'x at 277. In doing so, Rounds specifically evaluated three of the four circuit decisions cited by the Commissioner in her brief and distinguished these cases as "inapposite" because they only considered an RFC limitation to simple or repetitive tasks, not "a specific limitation to 'one to two step tasks.'" Id. at 1004 n.6 (citing Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005); Money v. Barnhart, 91 F. App'x. 210, 215 (3d Cir. 2004) (unpublished)). Likewise, the fourth case cited by the Commissioner only analyzed an RFC limited to "simple, unskilled work," not a limitation to one or two step tasks. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009).
Therefore, the undersigned rejects the Commissioner's argument. As explained by the Fourth Circuit previously, in cases involving apparent conflicts, "testimony may only appear to conflict with the [DOT], and the vocational expert may be able to explain that, in fact, no conflict exists." Pearson, 810 F.3d at 209. Yet, "if the ALJ does not elicit this explanation," the VE's testimony "cannot provide substantial evidence to support the ALJ's decision." Id. "An expert's testimony that apparently conflicts with the [DOT] can only provide substantial evidence if the ALJ has received this explanation from the expert and determined that the explanation is reasonable and provides a basis for relying on the testimony rather than the [DOT]." Id. at 209-10 (citing SSR 00-4p). It may be possible that the VE's testimony does not actually conflict with the DOT's descriptions of egg packer, janitor, and laundry operator; however, the undersigned is unable to make that determination because the ALJ failed to recognize the apparent conflict and elicit an explanation from the VE. Instead, the ALJ appears to have relied on the VE's assertion during the hearing that the testimony was consistent with the DOT, Tr. at 110, as the ALJ's decision only states that he has determined the VE's testimony was consistent pursuant to SSR 00-4p, Tr. at 74. Without an explanation or independent determination, the ALJ erred in relying on the jobs that the VE identified to meet the burden at the fifth step.
In light of the foregoing, the undersigned recommends the court find that substantial evidence does not support the ALJ's reliance on the VE's testimony to meet the burden at the fifth step.
2. Additional Allegations of Error
Plaintiff argues Dr. Rountree's opinions support a finding of disability and the ALJ failed to give adequate reasons for rejecting her opinions, as he did not point to any specific findings of improvement and the records cited reflect fluctuating positive and negative findings. [ECF No. 13 at 23-28]. Plaintiff cites the Fourth Circuit's recent decision regarding an ALJ's responsibility to explain why controlling weight was not given to a treating physician and the ALJ's obligation to consider all relevant medical evidence, not to "simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding." Lewis v. Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010)). The Commissioner asserts the ALJ appropriately weighed the opinion evidence because he stated Dr. Rountree's opinion was not consistent with or supported by Plaintiff's treatment records. [ECF No. 15 at 8-9]. Plaintiff responds that the Commissioner fails to rebut the errors alleged in his brief or the case law provided such that remand is warranted. [ECF No. 16 at 4].
In light of the above recommendation, the undersigned declines to address Plaintiff's additional allegations of error. 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. August 9, 2018
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).