Summary
distinguishing Mascio because the ALJ's hypothetical and his RFC limited the plaintiff to light work performed in two-hour increments and to simple, routine tasks in a low-stress work environment defined as being free of fast-paced or team-dependent production requirements, involving simple work-related decisions, occasional independent judgment skills, and occasional workplace changes
Summary of this case from Jones v. SaulOpinion
C/A No. 5:18-1992-CMC-KDW
09-12-2019
Brian Clancy, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
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 Civil Rule 73.02(B)(2)(a) (D.S.C.). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying his claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to the Social Security Act ("the Act"). For the reasons that follow, the undersigned recommends that the Commissioner's decision be affirmed. I. Relevant Background
A. Procedural History
On November 18, 2014, Plaintiff applied for DIB and SSI pursuant to Titles II and XVI of the Act alleging he became disabled on April 15, 2007. Tr. 221-29. Plaintiff subsequently amended his applications to change his onset date to January 1, 2014. Tr. 230. His applications were denied initially, Tr. 86, 99; and upon reconsideration, Tr. 113, 129. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), Tr. 160, and on May 12, 2017 ALJ Colin Fritz held Plaintiff's administrative hearing, Tr. 32. Plaintiff appeared with counsel and testified, along with a Vocational Expert ("VE"). Id. The ALJ issued an unfavorable decision on August 28, 2017. Tr. 9-24. Plaintiff requested review of the decision from the Appeals Council, Tr. 216, which denied his request on June 8, 2018, Tr. 1-5. This denial made the ALJ's August 28, 2017 decision the Commissioner's final decision for purposes of judicial review. Tr. 1. Plaintiff brought this action seeking judicial review of the Commissioner's decision in a Complaint filed July 20, 2018. ECF No. 1.
B. Plaintiff's Background
Born in June 1964, Plaintiff was 49 years old on his alleged onset date of January 1, 2014. Tr. 261. In his December 31, 2014 Disability Report - Adult, Plaintiff indicated that he completed four or more years of college with a B.A. degree in 1987. Tr. 266. He also indicated that he received his SCC License from the Carolina School of Broadcasting in 1990. Id. Plaintiff listed his past relevant work ("PRW") as school district teacher's assistant (2000), self-employed church janitor (2010), construction company general laborer (1999-2001), furniture warehouse delivery and sales (2004), and fast food cook (Nov. 2014 - ). Tr. 267. Plaintiff indicated that he was currently working. Tr. 265. Plaintiff listed the following conditions that limit his ability to work: dysthymic disorder, varicose veins, high blood pressure, and obesity. Tr. 265. Plaintiff noted that he was 6'4" tall and weighed 370 pounds. Id. In a Disability Report - Appeal dated April 30, 2015, Plaintiff indicated a change in his medical condition that occurred in December 2014. Tr. 310. Plaintiff noted the following:
I have an increase in pain throughout my body especially my legs swelling and they will burst and bleed, I have to wear compression stockings and they are purple. I have difficulty walking or standing for prolonged periods. I am not able to bend stoop or squat, I have to have assistance putting on my shoes and sock[s]. I have an increase in symptoms related to my depression and anxiety, my brother recently passed away and I was living with him and I am not able to process things. I have anger outburst and when I am upset when others talk loud to him [sic] or things are out of place. I
have difficulty focusing and with short term memory. I have to write down important dates and time in order to remember them, and I am very easily distracted.Id. Plaintiff also indicated that he had difficulty performing activities of daily living ("ADLs") due to his conditions. Tr. 313. Plaintiff filed another Disability Report - Appeal dated August 7, 2015 indicating changes in his medical conditions that occurred in April 2015. Tr. 341-42. Plaintiff again noted problems with severe swelling and pain in his legs. Plaintiff also indicated that because of his obesity he had "difficulty sitting for prolonged periods due to circulation being restricted. I also fall asleep after sitting for long periods, even while eating." Tr. 342. Plaintiff noted increased fatigue and difficulty with mental comprehension. Id.
C. The Administrative Proceedings
Plaintiff's administrative hearing was held in Greenville, South Carolina before ALJ Colin Fritz on May 12, 2017. Tr. 32. Plaintiff appeared with counsel; VE Kathleen Robbins also appeared and testified. Id.
Although the administrative hearing transcript spells the VE's given name with a "C", as reflected in the VE's resume, her name is spelled with a "K". Tr. 358.
1. Plaintiff's Testimony
In response to questions from the ALJ Plaintiff confirmed that he was currently 52 years old and that he had a college education with a degree in history. Tr. 36-37. Plaintiff testified that through 2003 he was working for the Cooke County (Georgia) Board of Education as a "paraprofessional and a teacher's assistant." Tr. 37. Plaintiff also stated that through that position he also served as an assistant football coach for the Cooke County school systems. Id. Plaintiff stated that from 2004 into 2008 he worked for a furniture company called American Charms. Tr. 38. Plaintiff testified that he left his position with Cooke County schools "due to finances" and he was working on his teacher certification. Id. The VE indicated that there were records that Plaintiff did sales and furniture delivery. However, Plaintiff testified that he never did sales—he delivered furniture and worked at a warehouse. Tr. 39. The ALJ noted that Plaintiff worked for Summit Industries in 2009 and Plaintiff testified that was part-time work with varied hours. Tr. 41-42. The ALJ stated that job would not be considered as substantial gainful activity ("SGA"). Tr. 42. The ALJ noted that Plaintiff worked as a church sexton from 2010 to 2012 and Plaintiff responded that he "did maintenance work for a church." Id. The ALJ noted that Plaintiff worked in 2013 and into 2014 for Bojangles. Tr. 43. Plaintiff stated that was a part-time position and his work hours never exceeded 32 hours. Tr. 43-44. The ALJ indicated that position would not be considered as SGA. Tr. 44. The ALJ stated that only the teacher assistant position and the furniture delivery position would be considered SGA and although the other positions came close, he would give claimant the benefit of the doubt. Id.
Plaintiff testified that he had a driver's license, but he did not drive to the hearing but came with a family member. Tr. 44. The ALJ noted that Plaintiff was wearing compression stockings that came up to his knees. Tr. 44-45. Plaintiff stated that he sometimes wore one on his right leg that went up to his thigh, "depending on the swelling." Tr. 45.
In response to questions from his attorney Plaintiff testified that he was between 6'3" and 6'4" inches tall and weighed 366 pounds. Tr. 45. Plaintiff confirmed that his doctors had counseled him about losing weight and he had "some success with following their directions." Tr. 46. Plaintiff testified that he had never been married and lived in a one-story home with his dog—a three-year-old fox terrier that weighed about 17 pounds. Id. Plaintiff stated that he did not have any children. Tr. 47. He testified that in the last 15 years he had not taken any classes or received any certifications. Id. Plaintiff testified that he does not have any income and a family member owns the house he lives in and pays the bills. Plaintiff stated that he receives food stamps but no other assistance from the state or federal government. Tr. 47-48. Plaintiff testified that his last job at Taco Bell "ended due to stress and an incident that occurred." Tr. 48. Plaintiff stated that he was terminated for cause when he spoke to other employees in an unacceptable manner. Tr. 48-49. Plaintiff testified that he had been spoken to by management prior to the incident about time management and not completing tasks. Tr. 49-50. Plaintiff stated that at Taco Bell he was doing food prep and line service and very rarely talked to customers. Tr. 50. Plaintiff testified that when he was hired at Taco Bell his understanding was that he would be given an opportunity to train to become an assistant manager. Tr. 51. Plaintiff confirmed that he has memory problems that affect his ability to stay on task, to listen to directions instead of creating his own, or thinking he might be able to do something better than the way he was told to do it. Id. Plaintiff stated that it was "doubtful" that he was able to interact with his coworkers appropriately because he "never saw anybody comfortable around [his] way of working." Tr. 52.
Plaintiff testified that he did his own shopping and went to the store alone. Tr. 52. Plaintiff stated that because he did not have a working vehicle he had "occasional difficulties" with going shopping and he would walk "at least a half a mile or three-quarters of a mile" to the nearest store. Tr. 52-53. Plaintiff stated that his leg issues could make the walk difficult depending on the weather because the heat affected his leg conditions. Tr. 53. Plaintiff testified that walking home from the store with his purchases was more of a problem than walking to the store. Tr. 54. He stated that if he is in the store for more than an hour he would need to sit down before he started walking back home. Id. Plaintiff testified that he attends church alone and he either gets a ride or he walks the mile-and-a-half, depending on the weather, to the church. Id.
Plaintiff stated that he believed he had an anxiety disorder. Tr. 54. Plaintiff stated that in the last four years he increasingly feels uncomfortable in new situations. Tr. 55. Plaintiff stated that he has family in the area—with the closest living two hours away—but he does not see his family very much. Id. He stated that his sister drove from Atlanta to attend the hearing with him. Id. Plaintiff stated that he talks on the telephone with various family members three-to-four times a week. Id. Plaintiff testified that in his opinion his mental health has been the reason for his weight gain. Tr. 56. Plaintiff stated that, according to a doctor, he has been significantly overweight for close to 25 years. Id. Plaintiff testified that he turns to food as an option for his feelings of loneliness, anxiety, and loss of temperament or focus. Id. Plaintiff testified that he takes medications for all of his symptoms. Id. He stated that his blood pressure medication keeps away headaches and the other medications "seem to have some success with keeping some adrenaline, but [he has] seen very little, if any, consistency." Tr. 56-57. Plaintiff testified that the medications he takes for his mental health issues "could be going in the direction of helping" but the progress seemed slow. Tr. 57. Plaintiff testified that his inability to stay focused and on-task for a full day was what precluded him from being able to work full-time. Id.
Plaintiff testified that during the day he starts the morning doing tasks inside or outside of the home, he does some form of exercise or he walks to the store or to church for church activities, and he watches television. Tr. 57-58. Plaintiff stated that, "through the generosity of a family member," he has been working out at the YMCA. Tr. 59. Plaintiff stated that he had to ride the bus to get there because it is too far to walk. Id. He stated that he desired to go four-to-five times a week, but he has "only been making it there one to two times due to whatever else responsibilities [he has] each week . . . whether it's a doctor's appointment or . . . church activities . . . or shopping." Tr. 59-60. Plaintiff testified that the YMCA has a swimming pool and that is his "source of working out." Tr. 60. Plaintiff stated that between 8:00 a.m. and 5:00 p.m. he watches, on average, one or two hours of television. Tr. 61. Plaintiff testified that he naps in the afternoon for 30 minutes to an hour while attempting to watch television. Id.
The ALJ resumed questioning of Plaintiff and asked him about his sleep schedule. Tr. 62. Plaintiff stated that he has sleep apnea but has been provided with a sleep apnea machine. Id. Plaintiff described his ability to sleep as "fair to poor at best" although he uses the machine consistently. Id. The ALJ asked if Plaintiff had sought out any vocational rehabilitation services and Plaintiff responded that he had not but that he would be willing to pursue that. Tr. 63. Plaintiff remarked on a Christmas trip he made to California. He stated that the trip to visit his sister was "very good" and he flew out to California alone. Id. Plaintiff testified that he sees Dr. Winter every three months, and he sees Mr. Carbone about every 45 days for medication management. Tr. 64-65. Plaintiff stated that recently he has been attending a weekly group therapy session for coping skills related to depression and anxiety. Tr. 65-66. Plaintiff stated that he is provided transportation to therapy and doctors' appointments through Spartanburg Access Health and St. Luke's, but they will not transport him to the YMCA. Tr. 66.
Plaintiff's counsel asked Plaintiff whether he had taken any trips outside of the United States since January of 2014. Tr. 67. Plaintiff testified that in the summer of 2014 he traveled with his family to Ireland for a week where about 35 family members stayed at a castle. Id. Plaintiff stated that when he was unable to do certain activities with the entire family, he and his brother would do whatever activities the two of them could do. Tr. 68. Plaintiff stated that on his California trip he stayed at a lodge for four nights. Plaintiff testified that he was alone "a fair amount of the trip" and it was in a nice area near the water and there were sites where he was alone. Id.
2. VE's Testimony
VE Robbins also testified at the hearing. The VE characterized Plaintiff's PRW as: furniture mover, very heavy, semi-skilled, specific vocational preparation ("SVP") of 3, performed at SVP of 2, Dictionary of Occupational Titles ("DOT") 904.687-010; and teacher's assistant, light, skilled, SVP of 6, DOT 099.327-010. Tr. 70-71. The ALJ asked the VE to assume an individual approaching advanced age with a high school or more education, and Plaintiff's PRW in the following hypothetical:
Hypothetical number one, over the course of an eight-hour workday in two-hour increments with normal and acceptable work breaks, this person can perform work at the light exertional level as defined in the rules and regulations; this person could never climb ladders, ropes, and scaffolds; this person could occasionally climb
ramps and stairs, crouch and crawl; this person can frequently balance, stoop, and kneel; this person can occasionally be exposed to extreme heat and hazards associated with unprotected dangerous machinery and unprotected heights; this person can concentrate, persist, and maintain pace efficient to understand, remember, and carry out simple, routine tasks in a low-stress work environment that we will define as being free of fast-paced or team-dependent production requirements involving simple work-related decisions; occasional independent judgment skills and occasional workplace changes.Tr. 73-74. The ALJ asked if this hypothetical individual could perform any of the identified PRW, and the VE responded in the negative but identified other work the individual could perform that included: unskilled cashier, light, unskilled, SVP of 2, DOT code 211.462-010, nationally approximately 740,800 full-time jobs; building cleaner, light, unskilled, SVP of 2, DOT code 323.687-014, nationally approximately 135,000 full-time jobs; and marker in retail, light, unskilled, SVP of 2, DOT code 209-587-034, nationally approximately 283,900 jobs. Tr. 74-75.
This person can perform jobs with only superficial interaction with the general public; they can perform jobs where the work duties can be completed independently from coworkers. However, physical isolation is not required; and finally this person could respond appropriately to reasonable and customary supervision.
For his second hypothetical the VE modified the first hypothetical to "maintain the light exertional level except that we're going to limit standing and walking combined for four hours out of an eight-hour workday; sitting could still be performed for six hours out of an eight-hour workday; plus the same remaining postural[,] environmental, mental, and social limitations from hypothetical number one." Tr. 75. The ALJ asked if any work could be performed under hypothetical number two and the VE identified the positions of unskilled cashier as previously identified but the number reduced to approximately 82,300 full-time jobs to account for access to a stool; routing clerk, light, unskilled, SVP of 2, DOT 222.587-038, nationally approximately 52,200 full-time jobs; and ticket taker, light, unskilled, SVP of 2, DOT code 344.667-010, nationally approximately 7,200 full-time jobs. Tr. 75-76.
For his third hypothetical the ALJ added two limitations related to time off task and absenteeism. Tr. 76. The ALJ noted that "concentration, persistence, and pace can be maintained for 25 percent of the workday . . . . mental or physical, but the end result would be that they would be off task an average of 25 percent of the workday beyond normal work breaks." Id. The ALJ also noted the "person would also be absent from work an average of three or more days per month." Tr. 76-77. The VE stated that with those limitations added to either hypothetical there would not be any work that could be performed. Tr. 77. The VE confirmed that the limitations regarding reduced standing, time off task, and absenteeism are not directly addressed in the DOT or its companion publications but were based on the VE's "knowledge, training, and experience on how work is performed." Id. The VE noted her testimony was "also based upon research that's been done in our field and rehabilitation counseling of how work is performed." Id.
Plaintiff's counsel questioned the VE about an individual of the same characteristics as Plaintiff who 50 percent of the time performed tasks differently than instructed which resulted in performance issues. Tr. 80-81. The VE responded that the hypothetical individual "would not maintain their employment if that was the case." Tr. 81. Counsel asked if full-time employment would be limited or precluded if the hypothetical individual "90 percent of the time was unable to appropriately deal with coworkers and be around coworkers and 25 percent of the time was unable to appropriately respond to managers' and supervisors' directions" and the VE responded affirmatively. Id. Plaintiff's counsel asked the VE when was the last time she saw the unskilled cashier position being performed with access to a stool. The VE responded that she saw it the previous day when she was exiting a parking garage. Id. The VE also testified that she had worked as an unskilled cashier. Tr. 82. The VE noted that she had never, in her experience as a VE, observed the job for eight hours but as an expert she relied on research done by other individuals in the field. Id. Plaintiff's counsel also questioned the VE regarding her observation of the marker/routing clerk position and the ticket taker position being performed for eight hours a day with access to a stool. Tr. 83. The VE responded that she had not watched the jobs being performed for eight hours but it was not necessary for her to do so because it is published information. Id. Plaintiff's counsel had no further questions for the VE. Tr. 84.
D. The ALJ's Findings
In his August 28, 2017 decision, the ALJ made the following findings of fact and conclusions of law:
1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2020.
2. The claimant has not engaged in substantial gainful activity since January 1, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: peripheral vascular disease, obesity, affective disorder, anxiety disorder, and dependent personality disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) in two hour increments with normal and acceptable work breaks, except that he can never climb ladders, ropes, and scaffolds; can occasionally climb ramps and stairs; occasionally crouch and crawl; frequently balance, stoop, and kneel; occasionally be exposed to extreme heat and hazards associated with unprotected dangerous machinery or unprotected heights; concentrate, persist and maintain pace sufficient to understand, remember and carry out simple, routine tasks in a low stress work environment (defined as being free of fast-paced or team dependent production requirements), involving simple work-related decisions, occasional independent judgment skills, and occasional work place changes; perform jobs with only superficial interaction with the general public, where the work duties can be completed independently from coworkers, however, physical isolation is not required; and can respond appropriately to reasonable and customary supervision.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on June 24, 1964 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).Tr. 14-15, 17, 22-24. II. Discussion
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
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," defined 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); see also 42 U.S.C. § 1382c(a)(3)(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 working; (2) whether the claimant 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 the claimant from performing specific jobs that exist in significant numbers in the national economy. 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) and § 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).
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, 482 U.S. at 146. n.5 (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 v. Barnhart, 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, 428 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 his conclusion is rational. See Vitek, 428 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).
B. Analysis
Plaintiff alleges (1) the ALJ posed an improper hypothetical to the VE, and (2) the ALJ improperly weighed the medical opinions in the record. Pl.'s Br. 2, ECF No. 11.
1. ALJ's Hypothetical to the VE
Citing to the Fourth Circuit Court of Appeals' decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015), Plaintiff argues that the ALJ's hypothetical to the VE did not account for the ALJ's Step Three finding regarding Plaintiff's moderate limitation in persistence. Pl.'s Br. 17-18. The Commissioner contends that the ALJ reasonably determined Plaintiff's residual functional capacity and explained how he accommodated Plaintiff's moderate limitations with regard to concentrating, persisting, or maintaining pace. Def.'s Br. 13-18, ECF No. 12.
At the administrative hearing the ALJ posed a hypothetical to the VE that asked if there was work that could be performed by a person with Plaintiff's background who "over the course of an eight-hour workday in two-hour increments with normal and acceptable work breaks . . . can perform work at the light exertional level . . . [and] can concentrate, persist, and maintain pace efficient [sic] to understand, remember, and carry out simple, routine tasks in a low-stress work environment . . . ." Tr. 73-74. The VE responded that the hypothetical individual would be unable to perform Plaintiff's PRW, but she identified other jobs such a person could perform. Tr. 74-75.
At Step Three of his Decision, the ALJ considered whether Plaintiff's mental impairments met or medically equaled the Paragraph "B" criteria of Listings 12.03, 12.04, 12.06, 12.08, and 12.15. The ALJ determined that Plaintiff had mild limitation in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation with regard to concentration, persistence, and pace; and moderate limitation for adapting or managing oneself. Tr. 16-17. Regarding concentration, persistence, and pace the ALJ noted that on examination Plaintiff
The listings for mental disorders are arranged in 11 categories: Neurocognitive disorders (12.02); schizophrenia spectrum and other psychotic disorders (12.03); depressive, bipolar and related disorders (12.04); intellectual disorder (12.05); anxiety and obsessive-compulsive disorders (12.06); somatic symptom and related disorders (12.07); personality and impulse-control disorders (12.08); autism spectrum disorder (12.10); neurodevelopmental disorders (12.11); eating disorders (12.13); and trauma- and stressor-related disorders (12.15). Paragraph B of each listing (except 12.05) provides the functional criteria to be assessed, in conjunction with a rating scale (see 12.00E and 12.00F), to evaluate how a claimant's mental disorder limits functioning. These criteria represent the areas of mental functioning a person uses in a work setting. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, Section 12.00(A)(1) and (2)(b).
has demonstrated average to low average cognitive ability but intact memory, coherent, logical, and goal directed thought process, and normal thought content. His ability to sustain attention, concentrate, and exert mental control was in the average range (4F). On occasion, exams note the claimant lacked focus and had to be redirected (11F/4). However, the claimant showed good attention and concentration at the hearing (HT). Therefore, the record shows no more than moderate difficulties in cognitive functioning.Id.
As part of his RFC assessment the ALJ found that Plaintiff had the capacity to perform light work in two-hour increments with normal and acceptable work breaks. Tr. 17. After listing additional postural and environmental limitations, the ALJ determined Plaintiff could "concentrate, persist and maintain pace sufficient to understand, remember and carry out simple, routine tasks in a low stress work environment (defined as being free of fast-paced or team-dependent production requirements), involving simple work-related decisions, occasional independent judgment skills, and occasional work place changes . . . ." Id. Prior to making this assessment the ALJ specifically noted that his RFC assessment reflected the degree of limitation he found in the Paragraph B mental functional analysis. Tr. 17. The ALJ noted that this RFC was "assessed based on all the evidence with consideration of the limitations and restrictions imposed by the combined effects of all the claimant's medically determinable impairments." Tr. 18. The ALJ also noted in making the assessment he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" and he "also considered opinion evidence" in accordance with the regulations. Id.
In Mascio, the Fourth Circuit agreed with other circuits that an "ALJ does not account 'for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.'" Mascio v. Colvin, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). The court determined that "the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. Courts in this District have held that an ALJ can adequately address a claimant's ability to stay on task by limiting the length of time that the claimant can concentrate, persist, and work at pace to 2-hour periods in an 8-hour day. Falls v. Colvin, No. 8:14-CV-00195-RBH, 2015 WL 5797751, at *7 (D.S.C. Sept. 29, 2015) (finding that remand was not required because the "ALJ noted Plaintiff's mental limitations but found that the Plaintiff could 'concentrate, persist and work at pace to do simple, routine, repetitive work at 1-2 step instructions for extended periods say 2-hour periods in an 8-hour day.'"); Sisco v. Comm'r of Soc. Sec. Admin., No. CV 9:17-3076-TMC, 2019 WL 396605, at *3 (D.S.C. Jan. 31, 2019) (holding that the "ALJ properly and adequately accommodated Sisco's moderate limitation in concentration, persistence, and pace by finding that she has the ability to concentrate and persist in the performance of detailed instructions and tasks for at least two hours at a time, but not on higher level tasks.").
In his discussion of Plaintiff's RFC, the ALJ provided facts regarding Plaintiff's mental impairments and his mental abilities to support his assessment. The ALJ noted that "therapeutic treatment for his mental health issues was sparse until recently. However, treatment notes show that with medication and counseling, the claimant's symptoms are reasonably well controlled. The evidence does not substantiate disabling mental health impairments." Tr. 20. The ALJ further noted that since the alleged onset date Plaintiff worked, although at levels below SGA, and treatment notes indicated that he was looking for work and had interviewed at a football camp and submitted an article for publication. Id. The ALJ discussed Plaintiff's reported ADLs including his testimony regarding trips to California and Ireland since his alleged onset date. Id.
The ALJ discussed the opinions of the State agency medical consultants who limited Plaintiff to work at the light exertional level with lower extremity restrictions and postural limitations. Tr. 20. However, the ALJ gave these opinions partial weight and noted that "[e]vidence received at the hearing level demonstrates the need for greater non-exertional limitations and consideration of the combined effect of the claimant's impairments, pain, and side effects of medication." Tr. 20. In discussing the opinions of the State agency psychological consultants, which the ALJ gave considerable weight, the ALJ noted that they found mild-to-moderate functional limitations in the "B" criteria of the mental listings and "opined that the claimant could understand simple instructions and complete simple tasks with ordinary supervision; complete a normal work week with occasional interruption due to his mental condition; have limited contact with the general public and minimal interaction with coworkers and supervisors; and would have difficulty adapting to changes in a work environment but could avoid common work related dangers." Tr. 20. The ALJ also discussed the opinion of Plaintiff's treating psychiatrist, Plaintiff's GAF score, and the opinion of a lay witness. Tr. 21.
After discussing the medical and opinion evidence the ALJ concluded that his RFC assessment was "appropriate." Tr. 21. The ALJ noted that he limited Plaintiff to "a light level of exertion with postural and some environmental restrictions in consideration of the combination of pain, fatigue, and medication side effects. He is additionally limited to simple routine tasks in a low stress environment, with limited interaction with others due to his mental health impairments (SSRs 16-3p and 96-8)." Tr. 22. The ALJ stated that his RFC assessment was "supported by consistencies among the claimant's subjective statements and testimony, objective medical evidence, opinion evidence, and other evidence of record." Id.
Both the ALJ's hypothetical to the VE and his RFC limited Plaintiff to light work performed in two-hour increments and to simple, routine tasks in a low-stress work environment defined as being free of fast-paced or team-dependent production requirements, involving simple work-related decisions, occasional independent judgment skills, and occasional workplace changes. Tr. 17, 73-74. The ALJ's hypothetical and RFC assessment provide greater explanation of Plaintiff's limitations than the assessment provided by the ALJ in Mascio. See Styles v. Berryhill, No. 0:18-CV-266-DCN, 2019 WL 3812037, at *3 (D.S.C. Aug. 14, 2019) (finding no error because the ALJ "expanded on [the plaintiff's] CPP limitations in greater detail than the ALJ in Mascio did."). The ALJ stated that in making his RFC assessment he considered the "combined effects of all the claimant's medically determinable impairments." Tr. 18 (emphasis added). Because the ALJ's discussion of the record allows the court to meaningfully review his RFC conclusion, remand is not necessary.
At Step Five of the sequential evaluation process the ALJ determined that Plaintiff was unable to perform all of the requirements of the full range of light work. However, based on the VE's testimony considering the erosion of the occupational base due to Plaintiff's additional limitations, the ALJ determined there are jobs that exist in the national economy the Plaintiff can perform. Tr. 23. The undersigned recommends a finding that the ALJ's decision is supported by substantial evidence and that he did not err in his RFC assessment or in her hypothetical questions to the VE. Mickles v. Shalala, 29 F.3d 918, 929 n.7 (4th Cir. 1994) (concluding that the hypothetical presented to the VE need only include the impairments and limitations that the ALJ finds credible).
2. Weighing of Opinion Evidence
Plaintiff argues that the ALJ did not give logically or legally sufficient reasons for discounting the opinion of Plaintiff's treating psychiatrist, Dr. Winter. Pl.'s Br. 19. The Commissioner argues that the ALJ reasonably evaluated the medical evidence of record. Def.'s Br. 18.
Social Security regulations require that medical opinions in a case be considered together with the rest of the relevant evidence. 20 C.F.R. §§ 404.1527(b), 416.927(b). "Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). Statements that a patient is "disabled" or unable to work or meets the Listing requirements or similar statements are not medical opinions, but rather, are administrative findings reserved for the Commissioner. SSR 96-5p, 1996 WL 374183 at *2 (July 2, 1996). "However, opinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner." Id. at *3.
For claims filed on or after March 27, 2017, the regulations changed as to how adjudicators would consider and articulate medical opinions. See 20 C.F.R. §§ 404.1520c, 416.920c. Because Plaintiff's claim was filed prior to March 27, 2017, 20 C.F.R. §§ 404.1527 and 416.927 are applicable.
If a treating source's medical opinion is "well-supported and 'not inconsistent' with the other substantial evidence in the case record, it must be given controlling weight[.]" SSR 96-2p; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (providing treating source's opinion will be given controlling weight if well-supported by medically-acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence in the record); see also Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (finding a physician's opinion should be accorded "significantly less weight" if it is not supported by the clinical evidence or if it is inconsistent with other substantial evidence). The Commissioner typically accords greater weight to the opinion of a claimant's treating medical sources because such sources are best able to provide "a detailed, longitudinal picture" of a claimant's alleged disability. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, "the rule does not require that the testimony be given controlling weight." Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (per curiam). Rather, "[c]ourts evaluate and weigh medical opinions pursuant to the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005); 20 C.F.R. §§ 404.1527(c), 416.927(c). The Fourth Circuit has held that it is not necessary for an ALJ to recite each factor concerning weight, as long as the "order indicates consideration of the all pertinent factors." Burch v. Apfel, 9 F. App'x 255, 259 (4th Cir. 2001).
SSR 96-2p was rescinded effective March 27, 2017 for claims filed on or after March 27, 2017 because of revisions to the final rules including that "adjudicators will not assign a weight, including controlling weight, to any medical opinion for claims filed on or after March 27, 2017." See 2017 WL 3928305. However, because this claim was filed prior to that date, SSR 96-2p is applicable.
The rationale for the general rule affording opinions of treating physicians greater weight is "because the treating physician has necessarily examined the applicant and has a treatment relationship with the applicant." Johnson, 434 F.3d at 654 (quoting Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001)). The ALJ has the discretion to give less weight to the opinion of a treating physician when there is "persuasive contrary evidence." Mastro, 270 F.3d at 176.
a. Opinion of Dr. Eric Winter
On March 30, 2017, Dr. Eric Winter completed a Medical Source Statement of Ability To Do Work-Related Activities (Mental) regarding Plaintiff. Tr. 466-68. Dr. Winter indicated his medical specialty as "General & Child Psychiatry." Tr. 468. In response to questions regarding Plaintiff's "ability to understand, remember, and carry out instructions" Dr. Winter indicated Plaintiff had no limitations in his ability to understand and remember simple instructions or carry out simple instructions. Tr. 466. He indicated Plaintiff had "marked" limitations in the ability to understand and remember complex instructions, carry out complex instructions, or make judgments on complex work-related decisions. Id. As to Plaintiff's ability to make judgments on simple work-related decisions, Dr. Winter wrote: "not sure." Id. He noted that "client has a history of chronic unemployment due to lack of focus and poor anger control." Id. Dr. Winter indicated that Plaintiff's ability to interact appropriately with supervision, co-workers, and the public, as well as respond to changes in the routine work setting was affected by his impairments. Tr. 467. He indicated Plaintiff had "moderate" limitation in the ability to interact appropriately with the public, "marked" limitation in the ability to interact appropriately with supervisors or co-workers, and "extreme" limitation in the ability to respond appropriately to usual work situations and to changes in a routine work setting. Id. Dr. Winter noted that the factors that supported this assessment were "psychiatric assessments over time." Id. Dr. Winter also noted that Plaintiff's "social functioning in many settings is impaired by physical health problems as well as by depression, inattention & stress." Id. He further noted that Plaintiff "has COPD, atrial fibrillation, hypertension, morbid obesity and ankle edema. He is on medication for deep vein thrombosis." Id. Dr. Winter opined that Plaintiff could manage benefits in his own best interest. Tr. 468.
b. ALJ's Consideration of Dr. Winter's Opinion
The ALJ considered the opinion in his decision, noting that Dr. Winter was the "psychiatrist where the claimant received therapeutic services." Tr. 21. The ALJ gave the opinion "some weight as a treating source opinion given by a specialist, and considering a longitudinal history." Id. The ALJ explained his finding as follows:
Greater weight is not given however, as the severity of limitations is not supported in the longitudinal treatment reports, including the physician's own examination findings (as discussed above) and the type and frequency of treatment. Particularly, marked limitations in interacting with supervisors and coworkers is not substantiated in the medical evidence, as discussed in the "B criteria" section as well.Id. Earlier in his decision the ALJ discussed treatment records related to Plaintiff's history of affective disorder, anxiety disorder, and dependent personality disorder. Tr. 19. The ALJ noted that "mental status examinations throughout the record generally showed normal findings including neat clean appearance, appropriate motor activity and normal speech, cooperative attitude, intact memory and thought processes, and above average fund of knowledge, suggesting that treatment was at least somewhat effective (8F/4-5; 9F/3; 14F/1; 16F/1)." Id.
Social Security Ruling 96-2p requires that an unfavorable decision contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight. In undertaking review of the ALJ's treatment of a claimant's treating sources, the court focuses its review on whether the ALJ's opinion is supported by substantial evidence. An ALJ's determination regarding the weight to assign a medical opinion generally will not be disturbed absent some indication that the ALJ has "dredged up 'specious inconsistencies.'" Koonce v. Apfel, 166 F.3d 1209 (4th Cir. 1999) (unpublished opinion) (citing Scivally v. Sullivan, 966 F.2d 1070, 1076-77 (7th Cir. 1992)).
Here, the ALJ specifically stated that he "considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927." Tr. 18. The ALJ's decision indicates consideration of all the pertinent factors in 20 C.F.R. §§ 404.1527(c) and 416.927(c) as he noted specifically that Dr. Winter was Plaintiff's treating psychiatrist and a specialist, noted the longitudinal history, and discussed the inconsistencies between the treatment record and the opinion. Accordingly, the undersigned recommends a finding that the ALJ did not err in properly applying the treating physician rule. "When, as here, an ALJ denies a claimant's application, the ALJ must state 'specific reasons for the weight given to the treating source's medical opinion,' to enable reviewing bodies to identify clearly the reasons for the ALJ's decision." Sharp v. Colvin, 660 F. App'x 251, 257 (4th Cir. 2016). In Sharp, the Fourth Circuit determined that the "ALJ did not summarily conclude that [the doctor's] opinion merited little weight" because the ALJ explained why he discredited the opinion, remarking that the claimant's limitations were not supported by the doctor's office notes. Id. Here, as required by SSR 96-2p, the ALJ's decision contained specific reasons for the weight given to Dr. Winter's opinion—the severity of limitations indicated by Dr. Winter was not supported in the longitudinal treatment reports or in Dr. Winter's own examination findings. Tr. 21. III. Conclusion
The undersigned has reviewed the record as a whole and concludes that the ALJ considered the evidence and made a supportable choice in determining Plaintiff was not under a disability. Although Plaintiff may disagree with the determinations made by the ALJ, the court's role is not to undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. See Craig, 76 F.3d at 589. Substantial evidence supports the ALJ's determination that Plaintiff is not disabled and the undersigned recommends a finding that the ALJ reached a rational conclusion that was supported by substantial evidence in the case record.
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 undersigned recommends that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED. September 12, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge