REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, Magistrate Judge.
This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 (D.S.C.). The plaintiff, Jacquelin Ann Spitz, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security ("Commissioner"), denying her claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. §§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge ("ALJ") to consider, in sequence:
(1) whether the claimant is engaged in substantial gainful activity;
(2) whether the claimant has a "severe" impairment;
(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"), and is thus presumptively disabled;
(4) whether the claimant can perform her past relevant work; and
(5) whether the claimant's impairments prevent her from doing any other kind of work.
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).1 If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.
Under this analysis, a claimant has the initial burden of showing that she is unable to return to her past relevant work because of her impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).
ADMINISTRATIVE PROCEEDINGS
In February 2014, Spitz applied for DIB and SSI, alleging disability beginning February 20, 2006. Spitz's applications were denied initially and upon reconsideration, and she requested a hearing before an ALJ. A hearing was held on April 12, 2017 at which Spitz, who was represented by Michael Ogden, Esquire, appeared and testified. At the hearing, Spitz amended her alleged onset date to December 30, 2011. After hearing testimony from a vocational expert, the ALJ issued a decision on August 25, 2017 concluding that Spitz was not disabled from December 30, 2011 through the date of the decision. (Tr. 18-30.)
Spitz was born in 1973 and was thirty-eight years old at the time of her amended alleged disability onset date. She has a high school education and has past relevant work experience as a hospital clerk, a telephone operator, and a secretary. (Tr. 253.) Spitz alleged disability due to a lung disorder, depression, back problems, migraines, and toxoplaxmosis. (Tr. 252.)
In applying the five-step sequential process, the ALJ found that Spitz had not engaged in substantial gainful activity since her amended alleged onset date of December 30, 2011. The ALJ also determined that Spitz's history of degenerative disc disease, asthma, chronic obstructive pulmonary disease, sleep apnea, obesity, major depressive disorder, panic disorder, and posttraumatic stress disorder were severe impairments. However, the ALJ found that Spitz did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ found, after consideration of the entire record, that Spitz retained the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except she can stand for no more than four hours in an eight-hour workday; occasionally climb ramps and stairs, kneel, and crouch; never climb ladders or crawl; and occasionally reach overhead with the bilateral upper extremities; she must avoid concentrated exposure to cold as well as moderate exposure to fumes, odors, dusts, gases, and poor ventilation; and she is unable to perform production-paced work.
(Tr. 23.) The ALJ found that Spitz was capable of performing past relevant work as a hospital admitting clerk and a telephone operator and that this work did not require the performance of workrelated activities precluded by the claimant's residual functional capacity. Therefore, the ALJ found that Spitz was not disabled from December 30, 2011 through the date of the decision.
The Appeals Council denied Spitz's request for review on February 22, 2018, thereby making the decision of the ALJ the final action of the Commissioner. (Tr. 1-5.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner's decision is supported by substantial evidence and whether the correct law was applied. See Brown v. Comm'r Soc. Sec. Admin., 873 F.3d 251, 267 (4th Cir. 2017); Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig, 76 F.3d at 589; see also Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Craig, 76 F.3d at 589; see also Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Accordingly, even if the court disagrees with the Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
ISSUES
Spitz raises the following issues for this judicial review:
1. The ALJ's mental RFC determination is unsupported by substantial evidence, as he failed to follow the treating physician rule, instead relying on the nonexamining State agency medical consultants.
2. The ALJ failed to include any mental limitations in the RFC, despite finding mild limitations in understanding, remembering, or applying information, interacting with others, and adapting or managing herself, and moderate limitations in concentration, persistence, or pace, and affording great weigh to the opinion of Dr. Hadley.
(Pl.'s Br., ECF No. 16.)
DISCUSSION2
Spitz raises several issues for this judicial review. However, the court finds that in light of recent authority from the United States Court of Appeals for the Fourth Circuit, remand is warranted based on one of the arguments presented in Spitz's second issue. Therefore, the court addresses this argument first.
A claimant's residual functional capacity ("RFC") is "the most [a claimant] can still do despite [her] limitations" and is determined by assessing all of the relevant evidence in the case record. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In assessing residual functional capacity, an ALJ should scrutinize "all of the relevant medical and other evidence." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Social Security Ruling 96-8p further requires an ALJ to reference the evidence supporting his conclusions with respect to a claimant's residual functional capacity. Further, "remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)) (alterations in original); see also Monroe v. Colvin, 826 F.3d 176, 188 (4th Cir. 2016).
Here, Spitz, argues that the ALJ erred in failing to account for Spitz's mental limitations in her residual functional capacity in part by finding "moderate limitations" with regard to Spitz's concentration, persistence, or pace at Step Three of the sequential evaluation process, but failing to account for these limitations in the residual functional capacity. Pertinent to this issue, in Mascio, the Fourth Circuit held that remand was warranted in part because the ALJ's hypothetical question to the vocational expert was legally insufficient in that it failed to include—without any explanation by the ALJ—the ALJ's finding of moderate limitation on the claimant's ability to maintain concentration, persistence, or pace at Step Three. Mascio, 780 F.3d at 638. The Fourth Circuit stated that it "agree[d] 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.'" Id. (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). However, the Court continued, stating:
Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here gave no explanation, a remand is in order.
Mascio, 780 F.3d at 638 (citation omitted).
Further, since the ALJ's decision in this matter and after the conclusion of briefing by the parties, the Fourth Circuit has issued additional guidance that constrains the court to recommend that this matter be remanded for further consideration and discussion of Spitz's residual functional capacity in light of the circumstances of this case. First, in Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), the Fourth Circuit found that meaningful appellate review of an ALJ's residual functional capacity evaluation was frustrated, in part, where an ALJ limited Thomas to no work "requiring a production rate or demand pace." The Fourth Circuit found that the ALJ did not provide "enough information to understand what those terms mean." Specifically, it found that this lack of definition
makes it difficult, if not impossible, for us to assess whether their inclusion in Thomas's RFC is supported by substantial evidence. The Commissioner contends that "production rate" and "demand pace" are "common vocationally relevant functional limitations." But those terms appear in a vanishingly small number of Social Security cases involving RFC evaluations. Of the cases in which the terms do appear, several originated with the same ALJ as the one who denied Thomas's application. We therefore disagree with the Commissioner: the terms do not seem to be especially common—certainly not common enough for us to know what they mean without elaboration.
Thomas, 916 F.3d at 312.
Following Thomas, the Fourth Circuit found in Perry v. Berryhill, No. 18-1076, 2019 WL 1092627 (4th Cir. Mar. 8, 2019), that remand was required where a residual functional capacity assessment limited Perry to unskilled work in "non-production oriented work setting." The Perry Court found that "non-production oriented work setting" was not defined in the regulations or by case law and was not otherwise self-explanatory. Further, the ALJ failed to offer an explanation for that phrase, and therefore the Court found that it remained "uncertain as to what the ALJ intended" and could not "meaningfully assess whether there was a logical bridge between the evidence in the record and the ALJ's conclusion." Id. at *3. The court observed that the explanation was particularly important because the ALJ found that Perry had moderate limitations in concentration, persistence, and pace, and those limitations were addressed in Perry's residual functional capacity, if at all, through the ALJ's reference to a "non-production oriented work setting."
Similar to the limitations at issue in Thomas and Perry, the ALJ here limited Spitz to no "production-paced work." Further, like in Perry, the ALJ found that Spitz had moderate limitations in concentration, persistence, or pace. Thus, it is unclear whether the ALJ adequately accounted for Spitz's moderate limitations in concentration, persistence, and pace and what no "production-paced work" means.
As argued by Spitz, further complicating review of this issue is the ALJ's evaluation of an opinion from Dr. Holly Hadley, a state agency psychological reviewer. The ALJ found that this opinion, which opined in part that Spitz might have "moderate limitations in her ability to perform at a consistent pace without interference from her psychiatric symptoms," was entitled to great weight. (Tr. 27.) The ALJ found that Dr. Hadley's opinion was "consistent with the evidence as a whole, which shows largely normal mental status examinations with some episodic symptoms that could affect [Spitz's] ability to concentrate, persist, or maintain pace." (Tr. 28.) However, in light of the recent law discussed above, it is unclear whether the ALJ's residual functional capacity assessment adequately accounted for these limitations.
Accordingly, the court recommends that this matter be remanded for further analysis and explanation of Spitz's residual functional capacity as explained above.3 See, e.g., Mascio, 780 F.3d at 636-37 (holding remand may be appropriate when the courts are left to guess at how the ALJ arrived at the conclusions and meaningful review is frustrated); see also Monroe, 826 F.3d at 189 (remanding where the ALJ failed to "build an accurate and logical bridge from the evidence to his conclusion") (citation omitted).
RECOMMENDATION
Based on the foregoing, the court recommends that the Commissioner's decision be reversed pursuant to sentence four of 42 U.S.C. § 405(g) and that the case be remanded to the Commissioner for further consideration as discussed above.
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).
