JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Renada Dodson ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that she is not disabled.
Plaintiff protectively filed applications for DIB and SSI on 10 May 2012 and 30 July 2012, respectively, alleging a disability onset date of 30 September 2011. Transcript of Proceedings ("Tr.") 14. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 14. On 13 May 2015, a hearing was held before an AU, at which plaintiff (represented by counsel), plaintiff's mother, and a vocational expert testified. Tr. 33-86. The ALJ issued a decision denying plaintiff's claims on 2 November 2015. Tr. 14-27.
Plaintiff timely requested review by the Appeals Council. Tr. 6-10. On 15 November 2016, the Appeals Council denied the request for review. Tr. 1. At that time, the decision of the AU became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 16 January 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 Mot. to Proceed In Forma Pauperis ("IFP") (D.E. 1); Ord. Allowing IFP Mot. (D.E. 4); Compl. (D.E. 5).
The Social Security Act ("Act") defines disability as the "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 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." Id. §§ 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).
Plaintiff was 31 years old on the alleged onset date of disability and 35 years old on the date of the hearing. Tr. 24 ¶ 7. The ALJ found that plaintiff has at least a high school education (Tr. 25 ¶ 8) and no past relevant work (Tr. 24 ¶ 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 substantial gainful activity since the date of alleged onset of disability, 30 September 2011. Tr. 16 ¶ 2. At step two, the ALJ found that plaintiff has the severe impairments of "bilateral hearing loss, borderline intellectual functioning, a bipoloar disorder, post-traumatic stress disorder (PTSD)/generalized anxiety disorder, intermittent explosive disorder, and a personality disorder." Tr. 17 ¶ 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. 17 ¶ 4.
The ALJ next determined that plaintiff had the RFC to perform work at all exertional levels, but with the following nonexertional limitations:
Tr. 19 ¶ 5.
As noted, the ALJ found at step four that plaintiff has no past relevant work. Tr. 24 ¶ 6. At step five, citing the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of cleaner-housekeeper, street cleaner, and sorter of agricultural produce. Tr. 25 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 30 September 2011, through the date of the decision, 2 November 2015. Tr. 26 ¶ 11.
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); Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
Plaintiff contends that the ALJ's decision should be reversed, or in the alternative, the case should be remanded for a new hearing on the grounds that the ALJ erred in: assessing plaintiff's credibility; determining plaintiff's RFC; and evaluating a final decision of the Commissioner issued in 2009 denying plaintiff Social Security disability benefits ("2009 decision"). Because the issue of the evaluation of the 2009 decision is diapositive of this appeal, the court's analysis will focus on it.
The ALJ is required to consider the findings contained in a prior final decision of the Commissioner in determining disability on a subsequent application involving an unadjudicated time period. Albright v. Comm'r of the Soc. Security Admin., 174 F.3d 473, 477-78 (4th Cir. 1999) (explaining that the justification for this requirement was that "No have held otherwise would have thwarted the legitimate expectations of claimants—and, indeed, society at large—that final agency adjudications should carry considerable weight"); see also Soc. Sec. Acquiescence Ruling 00-1(4) ("AR 00-1(4)"), 2000 WL 43774, at *4 (12 Jan. 2000) (addressing weight to be given prior final decisions of the Commissioner). An ALJ is "not bound to adopt those findings verbatim but must consider the prior findings and assign a weight to such findings." Manuel v. Colvin, No. 1:11CV8, 2015 WL 519481, at *5 (M.D.N.C. 9 Feb. 2015) (citing Albright, 174 F.3d at 477-78), rep. & recomm. adopted, J. (D.E. 21) (5 Mar. 2015).
AR 00-1(4) sets forth the following requirements for assessing the weight due a prior final decision:
AR 00-1(4), 2000 WL 43774, at *4.
This ruling goes on to prescribe that the weight given findings in a prior decision should generally be lesser the more remote in time the period covered by the prior decision is from the period presently at issue:
AR 00-1(4), 2000 WL 43774, at *4; see also Craft v. Colvin, No. 1:16CV97, 2017 WL 239375, at *3 (M.D.N.C. 19 Jan. 2017) (applying quoted provisions of AR 00-1(4)), rep. & recomm. adopted, J. (D.E. 13) (17 Feb. 2017).
The 2009 decision (Tr. 90-99), an ALJ decision, was issued on 12 November 2009 and denied claims by plaintiff for DIB and SSI filed in April 2008. The decision was ostensibly the final decision of the Commissioner on plaintiff's April 2008 claims.
The 2009 decision found plaintiff to have the following severe impairments: degenerative disc disease, hearing loss, borderline intellectual functioning, and paranoid personality. Tr. 92 ¶ 3. The decision also found that plaintiff had the RFC to perform a limited range of light work:
Tr. 94 ¶ 5.
In the instant decision, the ALJ gave "little weight" to the 2009 decision. Tr. 24 ¶ 5. He stated:
Tr. 24 ¶ 5.
Thus, the sole ground cited by the ALJ for discounting the 2009 decision is the remoteness in time of the period covered by that decision from the period presently at issue. As noted, remoteness in time can be a proper basis for discounting a prior decision. AR 00-1(4), 2000 WL 43774, at *4; King v. Berryhill, No. 2:16CV610, 2017 WL 6884294, at *12 (E.D. Va. 19 Dec. 2017), rep. & recomm. adopted, 2018 WL 343884 (9 Jan. 2018) ("Prior findings about facts such as a claimant's RFC or the severity of an impairment generally deserve less weight as the timeframe between claims increases.'" (quoting Johnson v. Colvin, 3:15cv296, 2016 WL 626378, at *3 (E.D. Va. 27 Jan. 2016))); Horton v. Berryhill, No. 2:16CV00020, 2017 WL 4445986, at *7 (W.D. Va. 5 Oct. 2017) ("The Fourth Circuit has explained that the passage of time between relevant periods has a significant impact on the weight that the ALJ evaluating a subsequent claim might give to a prior finding. . . . Thus, when less time has passed between a prior final decision and the alleged onset date of a subsequent application, an ALJ will afford more weight to the earlier decision.").
Here, though, the span of time between the period covered by the 2009 decision and the onset of the period presently at issue-12 November 2009 to 30 September 2011—is relatively modest, totally 20 and a half months. This period of less than two years is well under the three-year period in Albright. Moreover, the impairments at issue in the 2009 decision are chronic in nature. For this and the other reasons discussed below, the court finds that the ALJ's stated reliance solely on the passage of time to discount the 2009 decision was harmful error.
With respect to physical capacities, the 2009 decision found plaintiff limited to work at the light exertional level on the basis of degenerative disc disease. There were other limitations ostensibly associated with the degenerative disc disease: "She is able to occasionally stoop, crouch, crawl, kneel, and balance and occasionally climb stairs, but she cannot climb ladders, rope, or scaffolds. . . ." Tr. 94 ¶ 5. As the very name of the condition indicates, degenerative disc disease is degenerative; it tends to worsen over time. The ALJ in the instant case did not explain why, given the nature of this condition, he considered of little probative value the determination in the 2009 decision that plaintiff had degenerative disc disease and that she was subject to the various associated limitations. That the ALJ gave these determinations little probative value is apparent: he did not find plaintiff to have degenerative disc disease and determined her to able to perform work at all exertional levels without any of the foregoing limitations.
The court recognizes that the ALJ did make specific findings regarding plaintiff's physical capacities:
Tr. 24 ¶ 5. But these findings presumably reflect the ALJ's discounting of the findings in the 2009 decision. The ALJ certainly did not state to the contrary.
The Commissioner argues that any error by the ALJ in not attributing weight to the determination in the 2009 decision that plaintiff was limited to light work is harmless because each of the occupations the ALJ found plaintiff capable of performing are at the light exertional level. One, though, fails to meet the postural limitations prescribed in the 2009 decision. The occupation of street cleaner (DOT #955.687-018) requires frequent, not simply occasional, stooping. SCO 132. More fundamentally, consistency of these occupations with the exertional limitations imposed in the 2009 decision is not a substitute for an explanation by the ALJ as to why he gave the light-work limitation little weight.
The decision in Tucker v. Colvin, No. 0:15-V-03750-RBH, 2017 WL 382429, at *4 (D.S.C. 27 Jan. 2017) is instructive. There, the ALJ considered two prior ALJ decisions, one from five years prior to the filing of the claim at issue and one from two years prior to the filing of the claim at issue. 2017 WL 382429, at *4. Without an explicit explanation, the ALJ "determined that contrary to two prior findings of two other ALJ's, the claimant could perform light work, thereby increasing the RFC demands Plaintiff is capable of performing." Id. The Tucker court could not "conclude that the ALJ adequately explained why she assigned no weight to the prior findings in this case, particularly in light of the fact that Plaintiff's conditions are such that they would get worse, or at least stay the same, over time." Id. The court accordingly remanded the case. 2017 WL 382429, at *5.
Turning to plaintiff's severe mental impairments, as noted, the 2009 decision found plaintiff to have borderline intellectual functioning and paranoid personality. Tr. 92 ¶ 3. In the instant case, the ALJ also found plaintiff to have borderline intellectual functioning and a personality disorder, albeit not specifically of the paranoid type. Tr. 17 ¶ 3. This similarity in findings, along with the chronic nature of these conditions, makes it unclear in what sense the ALJ gave limited weight to the 2009 decision with respect to these conditions. Of course, the ALJ found plaintiff to have severe impairments beyond those found in the 2009 decision—namely, a bipolar disorder, PTSD/generalized anxiety disorder, and intermittent explosive disorder. Tr. 17 ¶ 3. If the little weight the ALJ accorded relates to the inclusion of these additional impairments in his RFC determination, the ALJ failed to specify so.
Moreover, on the basis of the mental impairments, the ALJ in the instant case limited plaintiff to "occasional" contact with the general public and coworkers that is inconsequential or superficial. Tr. 19 ¶ 5. "Occasionally" means "from very little up to one-third of the time." Soc. Sec. Ruling 83-10, 1983 WL 31251, at *5 (1983); DOT, app. C § IV, def. of "S-Sedentary Work," 1991 WL 688702. ("Occasionally: activity or condition exists up to 1/3 of the time."). The 2009 decision restricted plaintiff to "limited" contact with coworkers and the general public. Tr. 94 ¶ 5; see Campos v. Astrue, No. CV 10-8603 AGR, 2012 WL 467985, at *2 (C.D. Cal. 14 Feb. 2012) ("Even though the ALJ did not define `limited contact with the general public,' the phrase is reasonably compatible with a job that does not focus on working with people."). If the ALJ deemed his restriction to "occasional contact" and the 2009 restriction to "limited contact" to be equivalent, the question again arises in what sense he gave the 2009 decision little weight as to this restriction. In this scenario, the ALJ would appear to be giving the 2009 decision significant weight. If the ALJ deemed the restriction in the 2009 decision to "limited" contact to be more restrictive than the occasional contract restriction (it would not appear to be less restrictive), it is unclear on what basis the ALJ would have concluded that a less restrictive limitation was now needed given the chronic nature of the underlying impairments. The lack of clarity is accentuated by the ALJ's finding plaintiff to have mental impairments beyond those found in the 2009 decision. While the determination that plaintiff had these impairments and that they were severe does not itself speak to the full extent to which they imposed functional limitations, given their nature they are suggestive of significant limitations.
A comparable situation exists with respect to plaintiff's hearing impairment. Both the ALJ in the instant case and the 2009 decision found plaintiff to have hearing loss as a severe impairment. Although the ALJ described it as "bilateral hearing loss" (Tr. 17 ¶ 3) and the 2009 decision as simply "hearing loss" (Tr. 92 ¶ 3), no difference in meaning appears to exist. Given this similarity, if not identity, with respect to the hearing loss impairment, it is unclear in what sense the ALJ gave little weight to the 2009 decision as to the hearing loss impairment finding.
Because of the hearing loss impairment, the ALJ restricted plaintiff to "work in noise environments up to and including moderate (as defined in the [SOC])." Tr. 19 ¶ 5. The 2009 decision specified that plaintiff "not work in a noise intensive environment although she can travel [through] those environments." Tr. 94 ¶ 5. If the ALJ deemed his restriction of plaintiff to moderate noise environments equivalent to the prohibition against intensive noise in the 2009 decision, it is unclear in what sense he gave the 2009 decision little weight as to the noise limitation. The ALJ would seem to be giving the 2009 decision significant weight. To the extent that the ALJ viewed the noise limitation in the 2009 decision as more restrictive than the moderate noise limitation he imposed, it is unclear on what basis he would have found a lesser restriction appropriate given the apparent continuity of the hearing loss impairment. Comparable uncertainty would be presented if the ALJ deemed his restriction greater than that in the 2009 decision.
Lastly, the ALJ in the instant case did not include in his RFC determination the environmental limitation in the 2009 decision that plaintiff cannot work at heights. Compare Tr. 19 ¶ 5 with Tr. 94 ¶ 5. Given the continuity of plaintiff's impairments, it is unclear why the ALJ gave little weight to this finding.
Of course, while the ALJ is not required to provide an in-depth explanation of his evaluation of the 2009 decision, his provision of no explanation for discounting the prior decision aside from the less than two-year passage of time between the periods of alleged disability at issue is insufficient. See Horton, 2017 WL 4445986, at *7 ("While a step-by-step explanation is not required for an ALJ to comply with AR 00-1(4), an ALJ's written decision must provide an explanation for discrediting or failing to adopt past administrative findings favorable to the claimant."); cf. Smoak v. Berryhill, No. 9:16-CV-03272-DCN, 2017 WL 6375630, at *3 (D.S.C. 12 Dec. 2017) (affirming ALJ decision finding that the ALJ "reviewed and considered the intervening record and medical evidence in determining [plaintiff's] RFC in 2015 and that the ALJ sufficiently explained how and why he afforded only limited weight to [plaintiff's] RFC from 2010"). By not adequately explaining his evaluation of the 2009 ALJ decision, the ALJ failed to build "an accurate and logical bridge from the evidence to his conclusion[s]." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal quotation marks omitted); see also Bailey v. Colvin, No. 6:13-CV-29150, 2015 WL 769843, at * 11 (S.D.W. Va. 23 Feb. 2015) ("Although AR 00-1(4) does not state that the ALJ must explicitly indicate his explanation, the Ruling does provide that the ALJ shall consider and weigh the prior ruling as evidence in reaching his decision in the second claim. The ALJ must provide some semblance of an explanation to enable judicial review of his decision. Accordingly, the undersigned finds that although the ALJ acknowledged AR 00-1(4), in his decision, he did not explain adequately how he considered and weighed the prior decision, especially regarding the RFC assessment and step two findings.").
This case should accordingly be remanded for proper evaluation of the RFC determination and other findings in the 2009 decision and proper explanation of such evaluation in accordance with the requirements of Albright and AR 00-1(4) and the related case law as explicated herein. See Barbee v. Colvin, No. 5:14-CV-424-D, 2015 WL 5039124, at *8 (E.D.N.C. 7 Aug. 2015) (remanding where "[t]he ALJ's failure to explain how, or even whether, she determined that plaintiff's conditions had improved since the 2009 decision precludes meaningful review by the court of the ALJ's decision. The lack of explanation is material in this case because the impairments underlying these limitations are chronic and degenerative in nature."), rep. & recomm. adopted, 2015 WL 5054402 (26 Aug. 2015); Manuel, 2015 WL 519481, at *5 (remanding where ALJ found plaintiff able to do past relevant work but failed to provide any discussion regarding the prior ALJ's finding that plaintiff was unable to do past relevant work); Carter v. Astrue, No. CBD-11-2980, 2013 WL 4461579, at *7 (D. Md. 19 Aug. 2013) (remanding due to ALJ's failure to explain how plaintiff's medical condition had improved such that it warranted a finding that she could do past relevant work despite a prior ALJ decision to the contrary).
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's motion (D.E. 17) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 20) 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. That is a matter for the Commissioner to decide.
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 13 February 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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 the filing of the objections.
