IRENE M. KEELEY, District Judge.
On February 27, 2019, the plaintiff, Michael Vincent Zorick ("Zorick"), filed a complaint seeking review of an adverse decision of the Commissioner of Social Security ("the Commissioner") (Dkt. No. 1). After the parties filed cross motions for summary judgment, Magistrate Judge James P. Mazzone entered a Report and Recommendation on November 21, 2019 ("R&R"), recommending that the Court deny Zorick's motion and grant the Commissioner's motion (Dkt. Nos. 11, 13, 15, 17). For the reasons discussed below, the Court
Zorick filed a claim for disability insurance benefits on May 18, 2015, with a disability onset date of March 26, 2014 (R. 199-217).
The Commissioner denied Zorick's claim, both initially and on reconsideration (Dkt. Nos. 99, 108). At Zorick's request, Administrative Law Judge Gregory M. Hamel ("the ALJ") conducted a hearing on November 28, 2017, following which he denied Zorick's claim in a written decision dated February 28, 2018 (R. 11-30, 31-64). Although the ALJ found that Zorick suffered from severe impairments, including "arthritic and cystic changes in the ankles, major depressive disorder, generalized anxiety disorder, and intellectual impairment," and that these impairments prevented Zorick from performing his past relevant work, he concluded that Zorick was not disabled because he could do other work, given his age, education, work experience, and residual functional capacity ("RFC") (R. 17, 25-26).
The Appeals Council declined review on January 11, 2019, thus rendering the ALJ's decision the final decision of the Commissioner for purposes of appeal (R. 1-5, 197). Thereafter, Zorick filed suit in this Court on February 27, 2019, alleging that the ALJ's decision is not supported by substantial evidence (Dkt. No. 1 at 2). In particular, Zorick contends that the ALJ improperly concluded that he (1) did not have an intellectual impairment meeting or equaling a listed impairment ("listing"), and (2) is capable of performing other work available in the national economy (Dkt. 12 at 1).
Pursuant to 28 U.S.C. § 636 and this Court's local rules, the case was referred to Magistrate Judge Mazzone, who found substantial evidence supported the ALJ's determination that Zorick's intellectual impairment does not meet or equal a listing because Zorick did not exhibit marked limitations in two areas of adaptive functioning. 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 12.05B. Magistrate Judge Mazzone also found substantial evidence, including vocational expert testimony, supported the ALJ's finding that the Commissioner had carried his burden of proving Zorick could do other work in the national economy.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must review de novo any portion of the magistrate judge's recommendation to which objection is timely made. Courts will uphold portions of a recommendation to which no objection has been made if "there is no clear error on the face of the record."
Judicial review of the Commissioner's final decision is limited to determining whether the ALJ's findings are supported by substantial evidence and whether he correctly applied the law.
Substantial evidence is that which a "reasonable mind might accept as adequate to support a conclusion."
Nonetheless, "[a]n ALJ may not select and discuss only that evidence that favors his ultimate conclusion, but must articulate, at some minimum level, his analysis of the evidence to allow the appellate court to trace the path of his reasoning."
The Court incorporates by reference Zorick's statement of the case, the parties' stipulations of fact, and Magistrate Judge Mazzone's articulation of the Commissioner's five-step evaluation process (Dkt. Nos. 12 at 2-6, 14 at 3-5, 17 at 2-3).
Zorick objects to Magistrate Judge Mazzone's conclusion that substantial evidence supports the ALJ's finding that he does not have an impairment or combination of impairments that meet or equal a listing resulting in disability (R. 17). 20 C.F.R. § 404.1525. If Zorick's impairments had met or equaled a listing, he would have been considered disabled.
Pursuant to 20 C.F.R. § 404.1520a(a), (e)(4), determining whether a mental impairment rises to the level of a disability requires the ALJ to document a multi-step analysis known as the "special technique:"
Here, the ALJ followed and documented the steps required by the special technique. The parties do not contest his finding that Zorick has severe, medically determinable mental impairments (R. 17). Indeed, the ALJ discussed in detail Zorick's own statements, past intelligence tests and psychological examinations, treatment history, opinion evidence of treatment providers, and the testimony of Zorick's wife before concluding that Zorick's severe mental impairments include major depressive disorder, generalized anxiety disorder, and intellectual impairment (R. 22-24). The ALJ also documented the evidence and his specific findings as to the degree of limitation in each of the functional areas (R. 18-21). Finally, after finding that Zorick's severe mental impairment did not meet or equal the criteria for a listing, he incorporated Zorick's mental impairments into the RFC (R. 21).
In order to meet listing § 12.05B for an intellectual impairment, Zorick must demonstrate three criteria:
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05B (emphasis added).
In this case, Zorick challenges the adequacy of the ALJ's finding that he did not demonstrate marked limitations of adaptive functioning in the areas of (1) understanding, remembering, or applying information and (2) interacting with others (Dkt. No. 18 at 2). A "marked" degree of limitation means that Zorick's adaptive functioning ability in an area is "independently, appropriately, effectively, and on a sustained basis . . . seriously limited." § 12.00F(2)(d).
Zorick argues that the scores he received on a five-part Wide Range Achievement Test ("WRAT-4"), as part of an evaluation report of psychologist Jennifer Robinson ("Robinson"), are the best evidence of his ability to understand, remember, and apply information (Dkt. No. 12 at 102).
The criteria for determining the degree of a functional limitation include "all relevant and available clinical signs and laboratory findings, the effects of [Zorick's] symptoms, and how [Zorick's] functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication, and other treatment." 20 C.F.R. § 404.1520a(c)(1). When documenting his determination, however, an ALJ is neither required to discuss all evidence of record, nor refer to particular findings in a report on which he relied.
In Zorick's case, the ALJ properly considered Robinson's report; he not only referred to the report, but also specifically noted Zorick's scores on a different, fifteen-part test administered as part of the evaluation, the Wechsler Adult Intelligence Scale — Fourth Edition ("WAIS-IV") (R. 23). He also discussed Robinson's ultimate finding that Zorick had a "mild intellectual disability," which she based on both the WRAT-4 and WAIS-IV tests (R. 306-307). Given this thorough discussion, the ALJ was not required to refer specifically to the WRAT-4 sentence comprehension grade equivalent when relying on Robinson's report.
Although the WRAT-4 test was administered for diagnostic and treatment purposes, and not to establish whether Zorick was disabled, Zorick's sentence comprehension grade equivalent does not, as Zorick argues, "show" that he has a marked limitation in this area (Dkt. No. 18-2). Indeed, as Robinson explained, when Zorick's sentence comprehension score is considered together with his word reading, spelling, math computation, and reading composite scores as part of the WRAT-4 test, the scores "tend to support a conclusion of mild intellectual disability" (R. 307). Her final summary mirrors this conclusion.
In light of the fact that Robinson never singled out Zorick's reading comprehension grade equivalent as indicative of anything other than a mild disability, Zorick cannot seriously argue that the ALJ should have reached a different conclusion. Therefore, the ALJ's conclusion that Zorick did not demonstrate a marked limitation in the adaptive functioning area of understanding, remembering, and applying information is supported by substantial evidence.
Relying on the finding of a marked limitation in social functioning by two state psychologists, Dr. James W. Bartee ("Bartee") and Dr. Anne Logan ("Logan"), Zorick next argues that the ALJ should have found a marked, rather than moderate, limitation in his ability to interact with others (Dkt. No. 12 at 8).
As explained in the R&R, the forms completed by Bartee and Logan were more nuanced than Zorick suggests. Each included more explanation than the ultimate finding of a marked limitation in social functioning (Dkt. No. 17 at 8). Indeed, these forms include summary conclusions of moderate or no limitations regarding Zorick's ability to (1) accept instructions and respond appropriately to criticism from supervisors; (2) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; (3) maintain socially appropriate behavior; (4) adhere to basic standards of neatness and cleanliness; and (5) ask simple questions or request assistance (R. 78, 95).
Zorick contends that the instructions for the forms explain that the summary conclusions of moderate or no limitations are to "help determine the individual's ability to perform sustained work activities," whereas "the actual mental residual functional capacity assessment is recorded in the narrative discussion(s)" (R. 77, 94). He asserts that the instructions "make clear that
This argument misses the mark. The relevant issue is the degree of Zorick's deficit in adaptive functioning for determining whether his intellectual impairment meets or equals a listing, not the RFC assessment for determining how his impairment constrains his work abilities. Indeed, the R&R Zorick attached to his objections in support of his argument states as much.
As discussed earlier, the criteria for rating the degree of an adaptive limitation include "all relevant and available clinical signs and laboratory findings . . ." 20 C.F.R. § 404.1520a(c)(1). The ALJ therefore properly considered the entirety of the forms completed by Bartee and Logan in his assessment of Zorick's adaptive functioning rating. The ALJ's moderate rating of Zorick's limitation in his ability to interact with others is therefore supported by substantial evidence, as is the conclusion that Zorick did not have two marked limitations in adaptive functioning. Accordingly, the Court overrules Zorick's objection to the ALJ's decision that Zorick's impairments did not meet or equal a listing pursuant to § 12.05B.
Zorick next objects to the ALJ's conclusion that there is other work that he can perform in the national economy (Dkt. No. 12 at 12). He first argues that the ALJ never explained his failure to incorporate into the RFC Bartee's opinion that supervision of Zorick "should focus on . . . multiple daily check-ins to keep him on task when moving from one activity to another, or completing tasks in sequence" (Dkt. Nos. 8-3 at 15, 18 at 4). He then contends that, even assuming the ALJ did incorporate this portion of Bartee's opinion into the RFC, an alternative hypothetical question the ALJ asked during the hearing produced testimony from the vocational expert that no such jobs existed in the national economy.
If, as here, a claimant's severe impairments neither meet nor equal a listing, the ALJ must then assess the RFC.
The Fourth Circuit has held that "[a] necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling," including "a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence."
The RFC is crucial in evaluating an individual's capacity to engage in substantial gainful employment.
In Zorick's RFC, the ALJ took into account his exertional and non-exertional limitations, as follows (R. 57-58):
The first and second hypothetical questions that the ALJ asked the vocational expert during Zorick's hearing were based on this RFC (R. 21). In response to the first hypothetical question, which included only Zorick's mental limitations, the vocational expert testified that Zorick would be able to perform his past relevant work (R. 57-58). After the ALJ added Zorick's exertional limitations to his second hypothetical question, the vocational expert testified that Zorick could not perform his past work, but would be able to perform other work:
This testimony establishes that the RFC and the first two hypothetical questions incorporated Bartee's opinion that Zorick "can maintain brief, superficial contacts with supervisors and an occasional coworker," and that "contact with the general public should be avoided" (R. 78). Zorick nevertheless objects to the fact that the ALJ did not incorporate Bartee's opinion that Zorick's "supervision should focus on clear task structure and multiple daily `check-ins' to keep him on task when moving from one activity to another, or completing tasks in sequence."
In his decision, the ALJ assigned Bartee's opinion "some weight" . . . "due to [Zorick's] intellectual disorder, anxiety, and depression with concentration and memory issues with reported trouble dealing with others" (R. 24). In addition, the ALJ cited other evidence, including Zorick's function report, Robinson's evaluation, and a disability determination form completed by Dr. David Peasak ("Peasak") (R. 279-80, 305, 307, 342). But the ALJ never explained why he only allocated "some weight" to Bartee's opinion, nor why he only incorporated part of Bartee's opinion into the RFC.
In his function report, Zorick described his interrelationships with people: "I argue with people all the time because they start it with me. I cannot be around people any more [sic] or do anything at all" (R. 280). In her evaluation, Robinson explained that Zorick "stated that he did not get along well with people at work, and stated that people often picked on him and would `ride me a lot,'" but also that he "gets along well with most people, but has difficulty getting along with some" (R. 305). She further explained that Zorick helps get his children ready for school, washes dishes, does some laundry, takes out the garbage, and drives.
In addition, Peasek, in his disability determination form, documented Zorick's major depressive and anxiety disorders (R. 342). He opined that Zorick's mental condition posed functional limitations and that his depression and anxiety were complicated by his borderline intellectual functioning.
Although all this evidence is consistent with the portion of Bartee's opinion incorporated into the RFC and the ALJ's first two hypothetical questions, mere citation to this evidence does not excuse the ALJ's failure to explain why he only assigned "some weight" to Bartee's opinions. "Without more specific explanations of the ALJ's reasons" for the weight assigned to Bartee's opinion, the Court simply cannot "track the ALJ's reasoning" or conduct a "meaningful substantial-evidence review."
Zorick also argues that, had the ALJ adopted Bartee's opinion regarding multiple daily check-ins, no relevant vocational expert testimony would support the Commissioner's burden of proof that he can perform other work in the national economy (Dkt. No. 12 at 13). He bases this argument on the following alternative hypothetical question incorporating the limitation that Zorick needed multiple daily check-ins (R. 60-63):
Zorick contends that this limitation of "[needing] reminders about what the instructions were" clarifies Bartee's residual functional assessment regarding multiple daily check-ins (Dkt. Nos. 15 at 2, 18 at 4). He argues that, had the ALJ included Bartee's opinion regarding multiple daily check-ins into the RFC, the vocational expert's final response would have been that there was no other work Zorick could have performed.
The Commissioner, however, contends that this dialogue included two separate hypothetical questions, and that the vocational expert's first response implied that other work was available even with the addition of the multiple daily check-ins limitation. The Commissioner argues that other work was precluded only after the ALJ modified the hypothetical further to include a limitation more restrictive than warranted by Bartee's opinion.
The ALJ's failure to address this alternative hypothetical in his decision leaves the Court unable to discern whether the limitation of "[needing] reminders of what the instructions were" at the end of the alternative hypothetical merely clarified Bartee's opinion that Zorick required multiple daily check-ins, or constituted a more restrictive limitation that assumed facts not in evidence.
Accordingly, the Court rejects the R&R's conclusion that the ALJ's decision regarding other work was supported by substantial evidence. Morever, because this issue is likely to arise again once the Commissioner, on remand, explains the reasons for the weight assigned to Bartee's opinion, he should also explain how, if at all, the vocational expert's answer to the alternate hypothetical informed his decision.
For the reasons discussed, the Court:
It is so
The Court
