JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Debra Y. Locklear ("plaintiff' or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that she is not disabled.
Plaintiff filed applications for DIB and SSI on 21 May 2014, alleging a disability onset date of 4 May 2014. Transcript of Proceedings ("Tr.") 20. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 20. On 26 September 2014, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 35-87. The ALJ issued a decision denying plaintiffs claims on 23 December 2016. Tr. 20-29. Plaintiff requested review by the Appeals Council. See Tr. 14. On 13 March 2017, it denied the request. Tr. 1-4.
At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 11 May 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 5); Compl. (D.E. 6).
The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity ["SGA"] 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 id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995)." An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
The birthdate of record for plaintiff shows that she was 52 years old on the alleged onset date of disability and 55 years old on the date of the hearing. See, e.g., Tr. 204. Plaintiff testified that the highest level of education she achieved was graduation from high school. Tr. 48. The ALJ found that plaintiff had past relevant work as a companion, cleaner, and painter. Tr. 28-29 ¶ 6.
Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in SGA since the date of alleged onset of disability, 4 May 2014. Tr. 22 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: chronic obstructive pulmonary disease, asthma, peripheral vascular disease with claudication, venous insufficiency/varicose veins, ischemic coronary artery disease (non-obstructive), and degenerative disc disease of the lumbar spine. Tr. 22-23 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 23 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform a limited range of light work:
Tr. 24-25 ¶ 5.
Based on her determination of plaintiffs RFC, the ALJ found at step four that plaintiff was able to perform her past relevant work as a companion and cleaner. Tr. 28 if 6. She therefore concluded that plaintiff was not disabled from the date of the alleged onset of disability, 4 May 2014, through the date of the decision, 23 December 2016. Tr. 29 ¶ 7.
Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
Plaintiff contends that the ALJ's decision should be reversed and this case remanded for a new hearing on the grounds that the ALJ erred in failing to explain the omission from her RFC determination of the limitation that plaintiff must elevate her legs when nonambulatory and finding that her past relevant work included jobs as a cleaner and companion. Because the court finds that the ALJ's determination regarding the cleaner and companion jobs is dispositive of this appeal, its analysis will focus on this issue.
The Regulations define past relevant work as."work that you have done within the past 15 years, that was [SGA], and that lasted long enough for you to learn to do it." 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1); see generally Soc. Sec. Ruling 82-62, 1982 WL 31386 (1982). SGA is work activity that "involves doing significant physical or mental activities" (i.e., is substantial) and "is the kind of work usually done for pay or profit" (i.e., is gainful). 20 C.F.R. §§ 404.1572(a), (b); 416.972(a), (b). Work activity for which a claimant receives average monthly earnings that exceed an amount specified by the Social Security Administration pursuant to the Regulations will ordinarily be deemed SGA. See 20 C.F.R. §§ 404.1574(b)(1), (2)(ii)(B); 416.974(b)(1), (2)(ii)(B). Conversely, work activity for which a claimant does not receive earnings above that amount will ordinarily be deemed not to be SGA. See 20 C.F.R. §§ 404.1574(b)(3), 416.974(b)(3).
"The claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work." Soc. Sec. Ruling 82-62, 1982 WL 313 86, at *3 (1982). The ALJ may also use the services of a vocational expert, among other sources. 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). "The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision." Soc. Sec. Ruling 82-62, 1982 WL 31386, at *3.
The ALJ's findings regarding plaintiff's past relevant work read as follows:
Tr. 28-29 ¶ 6 (holding original).
Plaintiff contends that the work she performed as a cleaner does not qualify as SGA and therefore fails to meet the definition of past relevant work because she did not earn the requisite amount from it. The court agrees that the ALJ erred in this aspect of her analysis of the cleaner position.
In a work history report ostensibly dated 14 June 2011, plaintiff reported working for two weeks in 2009 or 2010 as a cleaning assistant for a business which cleaned homes and businesses. Tr. 242; Tr. Index Ex. 3 (giving rep. date as "6/11/2014"). She stated that the terms of employment were $8.00 an hour, eight hours a day, five days a week and that she went to different homes and cleaned them. Tr. 245. Plaintiffs report of working only two weeks at the rate indicated would place the earnings for that work well below the SGA threshold of $1,640 for a nonblind person for both 2009 and 2010. See Monthly [SGA] amounts by disability type ("SGA Chart"), https://www.ssa.gov/oact/cola/sga.html (last visited 8 June 2018).
A detailed earnings query dated 20 November 2015 showed earnings for plaintiff from Welter Inc. Maid with Care in the amount of $286.88 in 2010. Tr. 224; Ex. 5D at 2. Again, this amount falls below the threshold amount for SGA for 2010.
At the hearing, plaintiff testified that her cleaning work lasted "like three days to a week" (Tr. 75) and that she "didn't work at that cleaning place but, like I said, three or four day[s]" (Tr. 76). She denied that her cleaning work was done for a business called Paca, Inc. (Tr. 51, 75-76), which reported earnings for her in 2008 of $4,923.81 (Tr. 229), an amount above the 2008 SGA threshold of $1,570 (SGA Chart).
In her decision, as indicated, the ALJ found that "the claimant worked each of the above listed jobs [i.e., companion, cleaner, and painter] at the level of presumptive SGA as defined by our Regulations." Tr. 29 ¶ 6. The ALJ fails to adequately indicate the basis for this finding. Although she cites to Exhibits 6D, 7D, and 8D, she does not specify what information in those exhibits supports her finding with respect to the cleaning position, and it is not otherwise apparent. In particular, she does not explain the basis for her apparent rejection of the evidence set out above tending to show that the cleaner job did not meet the earnings threshold for SGA.
Thus, the ALJ failed to build "`an accurate and logical bridge from the evidence to [the] conclusion[s]'" she reached regarding the qualification of plaintiffs cleaning work as SGA. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Remand is therefore required. Id. at 190-91 (citing Radford, 734 F.3d at 295).
Independent of this deficiency, the court cannot say that the record contains substantial evidence supporting the ALJ's finding with respect to the cleaner job. This deficiency is not harmless because, as discussed below, there is reversible error with respect to the other past work the ALJ found plaintiff capable of performing, the companion job, and proper evaluation of the cleaner position could therefore have resulted in a different outcome of the analysis, namely, that plaintiff could not perform any past relevant work. Garner v. Astrue, 436 F. App'x 224, 226 n. * (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). The apparent lack of substantial evidence supporting the ALJ's finding provides an additional ground for remand.
At the hearing, the issue arose as to whether plaintiffs healthcare work qualified as the companion position under the DOT, No. 309.677-010, as the ALJ ultimately found, or the home health aide position, No. 354.377-014. The exertional level for the companion job is light (DOT No. 309.677-010) and for the home aide job medium (DOT No. 354.377-014), which, of course, exceeds the light exertional level to which the ALJ limited plaintiff in her RFC determination. Plaintiff contends that the ALJ committed reversible error in her resolution of this issue. The court agrees.
In response to the vocational expert's inquiry, the ALJ identified house cleaner, painter, and "home health aide" as the past work by plaintiff about which she sought the vocational expert's opinion. Tr. 74-75, 77. After classifying the painter and cleaner jobs under the DOT, the vocational expert requested and obtained clarification from plaintiff regarding the amount of lifting involved in the job:
Tr. 77. On the basis of this testimony, the vocational expert classified the job as companion. Tr. 77.
The ALJ then asked plaintiff whether she was "always in the companion capacity." Tr. 78. Plaintiff responded, "No. No." Tr. 78.
After telling the vocational expert that "we need to reclassify that [job] because she actually worked as a companion for part of the time," the ALJ had plaintiff describe her duties longitudinally. Tr. 78. Plaintiff testified:
Tr. 78. Plaintiff went on to state that she had a single patient doing this work who was a friend. Tr. 78.
The ALJ again asked about the extent of plaintiff's duties solely as a companion, and plaintiff again stated that the job entailed more than those duties:
Tr. 79-80.
The ALJ then asked the vocational expert to classify the job, but he responded by explaining to the ALJ the key difference between the companion and health aide jobs:
Tr. 80.
The ALJ then followed up with plaintiff about what the ALJ identified as the key differences between the positions:
Tr. 80-81. Thus, plaintiff again described her work as including duties associated with the home health aide position.
The ALJ responded: "I think the — I'm sorry. I think the companion classification is sufficient then." Tr. 81.
The ALJ then proceeded to question the vocational expert regarding other matters, namely, posing hypotheticals about which of plaintiffs prior jobs a hypothetical person with specified capacities could perform. Significantly, she did not ask the vocational expert his opinion regarding classification of the healthcare position in light of the additional information about it provided by plaintiff. The two hypotheticals she posed to the vocational expert—the first assuming the capacity for a full range of medium work and the second the capacity for a range of light work limited as in the ALI's RFC determination—included the classification of plaintiffs healthcare work as the companion job. See Tr. 81 ("Assume a hypothetical individual . . . with the past jobs that you described."); 81-82 ("Now, if you assume a hypothetical individual, again, with the claimant's past jobs that you described. . . ."); see also Tr. 81 (the vocational expert's explicit reference to "the companion and cleaner" positions as work that plaintiff could still perform in response to the second hypothetical).
In her decision, for her classification of plaintiffs healthcare position, the ALJ relied on the vocational expert's testimony that it was the companion position. Tr. 28 ¶ 6. Such reliance is evident from her recitation of the vocational expert's opinion that plaintiffs past work included the companion position at the outset of her explanation why she found plaintiff able to perform her past relevant work. Tr. 28 ¶ 6.
The central deficiency in the ALJ's handling of the classification of plaintiffs healthcare work is her reliance on the vocational expert's opinion on that issue. The vocational expert gave that opinion before elucidation from plaintiff of additional facts about the nature of the work. Plaintiffs testimony, as indicated, tended to substantiate that her work included duties uniquely associated with the healthcare aide position. The ALJ could easily have asked the vocational expert his opinion on classification of the healthcare work in light of plaintiffs additional testimony, but she did not do so despite the importance of a claimant's testimony about the claimant's past work in determining its nature. See Soc. Sec. Ruling 82-62, 1982 WL 31386, at *3. Because the vocational expert's testimony was based on information that omitted material facts of record, the ALJ could not properly rely on it. Cf Walker v. Bowen, 889 F.2d 47, 51 (4th Cir. 1989) (noting that "it is difficult to see how a vocational expert can be of any assistance if he is not familiar with the particular claimant's impairments and abilities").
To be sure, the ALJ instructed the vocational expert at the outset of her examination of him to tell her if an opinion he gave was inconsistent with the DOT and related publications, and the basis for such a conflicting opinion. Tr. 74. Classification of plaintiffs healthcare work as the companion job could arguably be deemed inconsistent with the DOT if the work qualified as the home health aide job, although a person capable of performing the home health aide position would presumably be capable of also performing the companion job. The vocational expert did not state that his opinion regarding the classification of plaintiffs healthcare work was inconsistent with the DOT.
The absence of any statement by the vocational expert that his opinion regarding classification of the healthcare work was inconsistent with the DOT cannot appropriately be deemed affirmation by the vocational expert that he continued to hold the opinion that the work was as a companion after the additional testimony by plaintiff. Again, the ALJ did not raise anew with the vocational expert the issue of classification after plaintiffs additional testimony. In particular, the ALJ did not inquire whether the additional testimony created a conflict between the opinion he had previously rendered and the DOT. Thus, the absence of any disclosure by the vocational expert of a conflict can plausibly be interpreted as simply reflecting the vocational expert's not revisiting the opinion he had previously given without an invitation to do so from the ALJ.
Moreover, at the hearing, the ALJ certainly appeared to be ruling that plaintiffs healthcare work was as a companion. Again, she stated: "I think the companion classification is sufficient then." Tr. 81. The vocational expert could plausibly have believed at that point that the classification issue had been resolved, irrespective of any conflicts with the DOT.
The ALJ's erroneous reliance on the vocational expert's opinion on the classification of plaintiffs healthcare work was not harmless and requires remand. See Garner, 436 F. App'x at 226 n.*. Proper evaluation of the issue, taking into account the additional testimony by plaintiff on her activities in the healthcare job, could reasonably be expected to result in a different determination regarding the classification of that work, plaintiffs ability to perform it, and thereby, in light of the error with respect to the cleaner position, plaintiffs ability to perform any of her past relevant work.
For the foregoing reasons, IT IS RECOMMENDED that plaintiffs motion (D.E. 16) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 18) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3) for further proceedings consistent with this Memorandum and Recommendation.
In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence or the outcome of this case. These are matters that are for the Commissioner to resolve.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 22 June 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
Any response to objections shall be filed within 14 days after filing of the objections.
