STEPHANIE A. GALLAGHER, Magistrate Judge.
Pursuant to Standing Order 2014-01, the above-referenced case has been referred to me for review of the parties' dispositive motions and to make recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 301.5(b)(ix). The Plaintiff, Dairha Jane Read, who is appearing pro se, did not file a motion for summary judgment and did not respond to the Commissioner's Motion for Summary Judgment.
Ms. Read protectively filed her applications for benefits on March 5, 2012, alleging a disability onset date of April 29, 2011. (Tr. 193-204). Her applications were denied initially and on reconsideration. (Tr. 127-31, 137-40). A hearing was held in her case on July 29, 2014. (Tr. 29-60). After the hearing, the Administrative Law Judge ("ALJ") issued an opinion denying benefits. (Tr. 11-28). The Appeals Council ("AC") denied review, making the ALJ's decision the final, reviewable decision of the Agency. (Tr. 1-5).
The ALJ found that, during the relevant time frame, Ms. Read suffered from the severe impairments of degenerative disc disease with radiculopathy, migraine headaches, bipolar disorder, posttraumatic stress disorder, and attention deficit hyperactivity disorder. (Tr. 13). Despite these impairments, the ALJ determined that Ms. Read retained the residual functional capacity ("RFC") to:
(Tr. 16). After considering testimony from a vocational expert ("VE"), the ALJ determined that there were jobs existing in significant numbers in the national economy that Ms. Read could perform, namely the jobs of "cutter and paster," "telegraph service rater," and "addresser." (Tr. 22). Therefore, the ALJ concluded that Ms. Read was not disabled. (Tr. 22-23).
I have carefully reviewed the ALJ's opinion and the entire record. See Elam v. Barnhart, 386 F.Supp.2d 746, 753 (E.D. Tex. 2005) (mapping an analytical framework for judicial review of a pro se action challenging an adverse administrative decision, including: (1) examining whether the Commissioner's decision generally comports with regulations, (2) reviewing the ALJ's critical findings for compliance with the law, and (3) determining from the evidentiary record whether substantial evidence supports the ALJ's findings). For the reasons described below, while substantial evidence supports some portions of the ALJ's decision, the analysis is deficient under the recent Fourth Circuit opinion in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Accordingly, I recommend remand.
At step one, the ALJ found in Ms. Read's favor that she had not engaged in substantial gainful activity since her alleged onset date. (Tr. 13). At step two, the ALJ found the severe impairments listed above. (Tr. 13-14). The ALJ also assessed a variety of other mental and physical diagnoses, but concluded that those impairments were non-severe. Id.
At step three, the ALJ specifically considered physical listings 1.04 and 11.05, but noted that Ms. Read did not establish that either listing had been met or equaled. (Tr. 14). The ALJ also applied the special technique for evaluation of mental impairments to consider listings 12.04, 12.06, and 12.10. (Tr. 15-16). The ALJ concluded, among other findings, that Ms. Read had moderate difficulties in concentration, persistence, or pace. (Tr. 15).
In considering the appropriate RFC assessment, the ALJ provided a summary of Ms. Read's written statements and hearing testimony. (Tr. 17). The ALJ also analyzed the medical evidence derived from treatment notes and consultative examinations, including the results of objective testing. (Tr. 17-19). The ALJ summarized the types of treatment Ms. Read has received, and noted symptom improvement with treatment and some non-compliance with prescribed medication. (Tr. 19). The ALJ concluded, following the analysis, that Ms. Read's treatment records and activities of daily living were inconsistent with her allegations of limitations. (Tr. 19-20). In making that finding, the ALJ also assigned weight to several medical sources, including a treating psychiatrist, examining source, and the State agency physicians. (Tr. 20-21).
Continuing at step four, the ALJ found that Ms. Read was unable to perform her past relevant work as a bartender. (Tr. 21). At step five, the ALJ posed hypotheticals to the VE to determine whether a person with each set of hypothetical criteria would be able to find work. (Tr. 55-58). Ultimately, the ALJ determined that Ms. Read's RFC matched one of the hypotheticals he had posed. (Tr. 16). The VE cited several jobs, including "cutter and paster of press clippings," "telegraph service rater," and "addresser," in response to that hypothetical, and the ALJ relied on that VE testimony in his opinion. (Tr. 22, 56-57).
The function of this Court is not to review Ms. Read's claims de novo or to reweigh the evidence of record. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) (citing 42 U.S.C. § 405(g) and Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)). Rather, this Court is to determine whether, upon review of the whole record, the Commissioner's decision is supported by substantial evidence and a proper application of the law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also 42 U.S.C. § 405(g). I am unable to recommend that finding here.
While this case was pending, the Fourth Circuit issued its opinion in Mascio, a Social Security appeal in the Eastern District of North Carolina. In Mascio, the Fourth Circuit determined that remand was warranted for several reasons, including a discrepancy between the ALJ's finding at step three concerning the claimant's limitation in concentration, persistence, and pace, and his RFC assessment. 780 F.3d at 638.
At step three of the sequential evaluation, the ALJ determines whether a claimant's impairments meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Listings 12.00 et. seq., pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. Most listings therein consist of: (1) a brief statement describing its subject disorder; (2) "paragraph A criteria," which consists of a set of medical findings; and (3) "paragraph B criteria," which consists of a set of impairment-related functional limitations. Id. § 12.00(A). If both the paragraph A criteria and the paragraph B criteria are satisfied, the ALJ will determine that the claimant meets the listed impairment. Id.
Paragraph B consists of four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. The ALJ employs the "special technique" to rate a claimant's degree of limitation in each area, based on the extent to which the claimant's impairment "interferes with [the claimant's] ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. §§ 404.1520a(c)(2), 416.90a(c)(2). The ALJ uses a five-point scale to rate a claimant's degree of limitation in the first three areas: none, mild, moderate, marked, or extreme. Id.; §§ 404.1520a(c)(4), 416.920a(c)(4). In order to satisfy paragraph B, a claimant must exhibit either "marked" limitations in two of the first three areas, or "marked" limitation in one of the first three areas, along with repeated episodes of decompensation. See, e.g., 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.02. Marked limitations "may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function." Id. § 12.00(C).
The functional area of "concentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." Id. § 12.00(C)(3). Social Security regulations do not define marked limitations in concentration, persistence, or pace "by a specific number of tasks that [a claimant is] unable to complete." Id. The regulations, however, offer little guidance on the meaning of "moderate" limitations in the area of concentration, persistence, or pace.
The RFC assessment is distinct, but not wholly independent, from the ALJ's application of the special technique at step three. In Mascio, the Fourth Circuit voiced its agreement 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." 780 F.3d at 638 (joining the Third, Seventh, Eighth, and Eleventh Circuits) (citation and internal quotation marks omitted). The Fourth Circuit explained 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. In so holding, however, the Fourth Circuit noted the possibility that an ALJ could offer an explanation regarding why a claimant's moderate limitation in concentration, persistence, or pace at step three did not translate into a limitation in the claimant's RFC assessment, such that the apparent discrepancy would not constitute reversible error.
In this case, at step three, the ALJ's analysis consisted, in its entirety, of the following:
(Tr. 15). The RFC states only that, "She can understand, remember, and carry out short, simple instructions," but makes no reference to her ability to sustain concentration or persist in those tasks over an eight-hour workday. (Tr. 16). In the RFC analysis, the ALJ says little about concentration, persistence, or pace, other than noting that the State agency psychological consultants determined that Ms. Read had moderate limitations in "sustained concentration and persistence." (Tr. 21). In light of the finding of moderate limitations, under Mascio, more analysis is required to justify the lack of an RFC limitation addressing concentration and persistence. Remand is therefore appropriate. In recommending remand, I express no opinion as to whether the ALJ's ultimate conclusion that Ms. Read is not entitled to benefits is correct or incorrect.
While not an independent ground for remand, I also note that all three of the hypothetical jobs identified by the VE in this case, and relied upon by the ALJ to find that Ms. Read could perform work existing in significant numbers in the national economy, are patently obsolete. The VE testified that the hypothetical individual could perform the reduced sedentary jobs of "a cutter and paster of press clippings," of which there are allegedly "approximately 353,000 in the national economy," "a telegraph service rater," of which there are allegedly "approximately 204,000 in the national economy," and "an addresser," of which there are allegedly "approximately 48,000 in the national economy." (Tr. 56-57). The VE testified that those answers were consistent with the Dictionary of Occupational Titles ("DOT"), a document published by the United States Department of Labor and last updated in 1991. United States Department of Labor, Dictionary of Occupational Titles (4th Ed., Rev.1991), available at http://www.oalj.dol.gov. In the DOT, the three positions cited by the VE are described as follows:
The Social Security Administration ("SSA") commissioned an "Occupational and Medical-Vocational Claims Review Study" in 2011. The final results are available on the SSA's website. ADD IN THE CITE. In relevant part, the study found "a substantial number of cases where [the adjudicator] cited jobs that might be obsolete." Id. at 7. The study determined that "[a]ddresser" was cited in almost 10% of the step 5 denial cases reviewed, and "[c]utter-and-[p]aster, [p]ress [c]lippings" was cited in almost 1% of those cases. Id. The study went on to concede, "It is doubtful that these jobs, as described in the DOT, currently exist in significant numbers in our economy." Id. (emphasis in original). Thus, in Ms. Read's case, the SSA relies upon two jobs that its own experts doubt still exist in significant numbers, and a third job involving counting the number of words in telegrams, which are no longer in wide use in the decades since the advent of the Internet and word-counting computer software.
Although the Fourth Circuit has not yet addressed the difficulties presented by the advanced age of the DOT, the United States Court of Appeals for the Sixth Circuit considered a similar issue several years ago in Cunningham v. Astrue, 360 Fed. Appx. 606, 615 (6th Cir. 2010). The Sixth Circuit opined:
Id. at 615-16. The rationale in Cunningham is equally applicable to the jobs at issue in this case. None of the three jobs are found, either in an identical or substantially similar fashion, in O*NET. As a result, one could conclude that the ALJ's reliance on the VE testimony that those positions exist in significant numbers in the national economy is not, on the current record consisting exclusively of the VE's reliance on a twenty-year-old document, supported by substantial evidence. See also Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014) ("If the only jobs that the applicant is physically and mentally capable of doing no longer exist in the American economy (such as pin setter, phrenologist, leech collector, milkman, pony express rider, and daguerreotypist), the applicant is disabled from working, and likewise, as a realistic matter, if there is an insignificant number of such jobs).
The standard for work that exists in "significant numbers" in the national economy is not a high one. See Lawler v. Astrue, No. 09-1614, 2011 WL 1485280, at *5 (D. Md. Apr. 19, 2011) (finding that the fact that there were only 75-100 jobs in the region where plaintiff lives "does not undermine the ALJ's conclusion that plaintiff is capable of performing work that exists in significant numbers in the national economy."); Hicks v. Califano, 600 F.2d 1048, 1051 n. 2 (4th Cir. 1979) (declining to determine that 110 regional jobs would be an insignificant number). However, given the nature of the jobs identified by the VE and the ALJ in this case, a reasonable person would question whether even small numbers of those positions remain available in the United States. Since this case is being remanded on other grounds, on remand, I recommend that the ALJ ensure that there is substantial evidence that Ms. Read can perform jobs that are actually available in significant numbers in 2016.
For the reasons set forth above, I respectfully recommend that the Court DENY Defendant's Motion for Summary Judgment, [ECF No. 17]; REVERSE IN PART the decision of the Commissioner; REMAND the case to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings in accordance with this Report and Recommendations; and order the Clerk to CLOSE this case.
Any objections to this Report and Recommendations must be served and filed within fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b)(2) and Local Rule 301.5(b).
Failure to file written objections to the proposed findings, conclusions, and recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14) days after being served with a copy of this report may result in the waiver of any right to a de novo review of the determinations contained in the report and such failure shall bar you from challenging on appeal the findings and conclusions accepted and adopted by the District Judge, except upon grounds of plain error.
