DAVID C. KEESLER, Magistrate Judge.
Plaintiff Jeanette S. Boyd ("Plaintiff"), through counsel, seeks judicial review of an unfavorable administrative decision on her application for disability benefits. (Document No. 1). On or about March 28, 2011, Plaintiff filed applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 405,
The Commissioner of Social Security (the "Commissioner" or "Defendant") denied Plaintiff's application initially on August 24, 2011, and again after reconsideration on January 30, 2012. (Tr. 193, 201, 206). In its "Notice of Reconsideration," the Social Security Administration ("SSA") included the following explanation of its decision:
(Tr. 206).
Plaintiff filed a timely written request for a hearing on March 12, 2012. (Tr. 214). On September 19, 2013, Plaintiff appeared and testified at a hearing before Administrative Law Judge William O. Gray. (Tr. 216, 82-107). The hearing was held by video teleconference, with Judge Gray in Chattanooga, Tennessee, and Plaintiff in Charlotte, North Carolina, along with her representative Roger Noland and vocational expert Curtis Taylor. (Tr. 84). Judge Gray issued a decision finding that Plaintiff was not disabled between October 1, 2011, and the date of his decision, October 31, 2013. (Tr. 173-184).
Plaintiff requested review of ALJ Gray's decision on December 3, 2013. (Tr. 262). On November 24, 2014, the Appeals Council granted Plaintiff's request and remanded the case for a new hearing. (Tr. 189-191). The Appeals Council identified specific issues for an Administrative Law Judge to address and resolve. (Tr. 190-191).
On remand, Plaintiff appeared and testified at a hearing before Administrative Law Judge Valorie Stefanellie (the "ALJ") on June 9, 2015. (Tr. 33-81). In addition, Susanna Rosche, a vocational expert ("VE"), and George Piemonte, Plaintiff's attorney, appeared at the hearing. (Tr. 35).
The ALJ issued a partially favorable decision on August 14, 2015, denying Plaintiff's claim. (Tr. 12-14, 16-26). The ALJ held that Plaintiff was not disabled through December 31, 2012; however, based on her application for supplemental security income, she was disabled as of January 15, 2015. On September 16, 2015, Plaintiff filed a request for review of the ALJ's decision, which was denied by the Appeals Council on December 11, 2015. (Tr. 16, 1-5). The August 14, 2015 ALJ decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's review request. (Tr. 1).
Plaintiff's "Complaint" seeking a reversal of the ALJ's determination was filed in this Court on February 9, 2016. (Document No. 1). On March 1, 2016, the undersigned was assigned to this case as the referral Magistrate Judge.
Plaintiff's "Motion For Summary Judgment" (Document No. 13) and "Plaintiff's Memorandum In Support Of Motion For Summary Judgment" (Document No. 14) were filed July 19, 2016; and the "Commissioner's Motion For Summary Judgment" (Document No. 17) and "Memorandum Of Law In Support Of The Commissioner's Motion For Summary Judgment" (Document No. 18) were filed September 29, 2016. Plaintiff declined to file a response/reply brief, and the time to do so has lapsed.
The pending motions are ripe for disposition, and therefore, a memorandum and recommendation to the Honorable Graham C. Mullen is now appropriate.
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's review of a final decision of the Commissioner to: (1) whether substantial evidence supports the Commissioner's decision; and (2) whether the Commissioner applied the correct legal standards.
The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the evidence or to substitute its judgment for that of the Commissioner — so long as that decision is supported by substantial evidence.
Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and to resolve conflicts in the evidence.
The question before the ALJ was whether Plaintiff was under a "disability" as that term of art is defined for Social Security purposes, at any time between October 1, 2011, and the Plaintiff's date last insured, December 31, 2012, so that she would be entitled to a period of disability or disability insurance benefits.
To establish entitlement to benefits, Plaintiff has the burden of proving that she was disabled within the meaning of the Social Security Act.
20 C.F.R. § 404.1520(a)(4)(i-v).
The burden of production and proof rests with the claimant during the first four steps; if claimant is able to carry this burden, then the burden shifts to the Commissioner at the fifth step to show that work the claimant could perform is available in the national economy.
First, the ALJ determined that Plaintiff had not engaged in any substantial gainful activity since October 1, 2011, her alleged disability onset date. (Tr. 19). At the second step, the ALJ found that cervicalgia with radiculopathy, right knee degenerative joint disease, and depression were severe impairments.
Next, the ALJ assessed Plaintiff's RFC and found that she retained the capacity to perform light work activity, with the following limitations:
(Tr. 21). In making her finding, the ALJ specifically stated that she "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p."
At the fourth step, the ALJ held that Plaintiff could not perform her past relevant work as a certified nurse assistant. (Tr. 23). At the fifth and final step, the ALJ concluded based on the testimony of the VE, and "considering the claimant's age, education, work experience, and residual functional capacity," that jobs existed in significant numbers in the national economy that Plaintiff could have performed, prior to January 1, 2015. (Tr. 25). Specifically, the VE testified that according to the factors given by the ALJ, occupations Plaintiff could perform included sales attendant, cafeteria attendant, and ticket seller.
The ALJ concluded that Plaintiff was not under a "disability," as defined by the Social Security Act, at any time between October 1, 2011, and her date last insured, December 31, 2012; however, for purposes of her supplemental security income application, the ALJ did find Plaintiff to be disabled as of January 1, 2015. (Tr. 26).
Plaintiff on appeal to this Court makes the following assignments of error: (1) the ALJ failed to explain apparent conflicts between the VE testimony and the
In her first assignment of error, Plaintiff argues that the ALJ failed to explain apparent conflicts between the VE's testimony and the DOT. (Document No. 14, pp.6-10). Plaintiff notes that the ALJ found that she was "capable of no more than
Plaintiff further notes that in response to the ALJ's hypothetical, the VE identified the jobs of: sales attendant; cafeteria attendant; and ticket seller.
In support of her position, Plaintiff observes that the
In response, Defendant states that "the ALJ identified and obtained a reasonable explanation for the apparent conflict . . . [but] did not include this in the decision; however, given the facts here, this was harmless error." (Document No. 18, p.4). Defendant then suggests that the VE testimony quoted above provides a "reasonable explanation for the conflicts."
Defendant then acknowledges that pursuant to SSR 00-4p, "the ALJ should have explained in the decision how the identified conflict was resolved . . . However, in this case, the ALJ's failure to do so was harmless error."
The undersigned respectfully disagrees with Defendant's argument that the conflict was identified and explained at the hearing, and that any error here was harmless.
In addition, the undersigned observes that in remanding this matter the Appeals Council specifically directed that
(Tr. 191). The ALJ "determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles," but declined to identify or resolve the apparent conflict(s) identified by Plaintiff (and now acknowledged by Defendant), as required by SSR 00-4p
After careful consideration, the undersigned agrees with Plaintiff that this alleged error requires remand, again, for further consideration. This error alone provides good cause to remand; nevertheless, the undersigned will also briefly address Plaintiff's second assignment of error.
Next, Plaintiff asserts that the ALJ decision fails to meet the requirements of SSR 96-8p. (Document No. 14, pp.10-16). Plaintiff contends that the ALJ's RFC assessment does not include a complete determination of her mental limitations. In most pertinent part, Plaintiff asserts that the "issue in this case is not whether Boyd has `severe' mental impairments, the ALJ already determined she does (Tr. 19), but rather whether the ALJ fully accounted for her [] moderate limitations findings in the residual functional capacity." (Document No. 14, pp.12-13).
Plaintiff notes that the ALJ found she had moderate difficulties with concentration, persistence or pace, but made an incomplete finding that she is limited to simple, routine and repetitive tasks, which is insufficient under SSR 96-8p. (Document No. 14, p.13) (citing Tr. 21). Moreover, Plaintiff notes that the Fourth Circuit has 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.'"
Relying on
In response, Defendant argues that this case is distinguishable from
The undersigned again finds Plaintiff's position persuasive. It does appear that the ALJ decision fails to comply with the holding of the Fourth Circuit in
(Tr. 190) (citing Tr. 176-177).
The most recent ALJ decision recognized Plaintiff's moderate difficulties in concentration, persistence and/or pace, but again failed to adequately address those difficulties.
On remand, an Administrative Law Judge should fully address the alleged errors before this Court, including ensuring a proper credibility determination (Plaintiff's third assignment of error), as well as any other relevant matters specifically identified by the Appeals Council in its remand order dated November 24, 2014.
The undersigned is not persuaded that there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," and thus, this matter should be remanded for further consideration.
The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1)(C), and Rule 72 of the Federal Rules of Civil Procedure, written objections to the proposed findings of fact, conclusions of law, and recommendation contained herein may be filed
