United States District Court, W.D. Virginia, Danville Division
REPORT AND RECOMMENDATION
JOEL C. HOPPE, Magistrate Judge.
Plaintiff John Arrington asks this Court to review the Commissioner of Social Security's ("Commissioner") final decision denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. On appeal, Arrington objects primarily to the Administrative Law Judge's ("ALJ") conclusion that his anxiety disorder was a "non-severe" mental impairment. This Court has authority to decide Arrington's case under 42 U.S.C. §§ 405(g), 1383(c)(3), and his case is before me by referral under 28 U.S.C. § 636(b)(1)(b). ( See ECF No. 17.) Both parties have moved for summary judgment and filed briefs in support. (ECF Nos. 12, 13, 14, 15.) After carefully reviewing the administrative record, the parties' briefs, and the applicable law, I find that the Commissioner's decision is not supported by substantial evidence and remand is necessary.
I. Standard of Review
The Social Security Act authorizes this Court to review the Commissioner's final determination that a person is not entitled to disability benefits. See 42 U.S.C. §§ 405(g), 1383(c)(3); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not "reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment" for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether the ALJ applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" of evidence, " id., but not necessarily "a large or considerable amount of evidence, " Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951). Ultimately, this Court must affirm the ALJ's factual findings if "conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.'"Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks omitted)). However, "[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law." Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
A person is "disabled" if he or she is unable 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), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a) (governing claims for DIB), 416.905(a) (governing adult claims for SSI). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See 20 C.F.R. 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460-62 (1983). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.
II. Procedural History
Arrington protectively filed for DIB and SSI on April 30, 2010, alleging disability beginning July 1, 2009. (R. 170.) At that time he was 40 years old and had 15 years of experience working as a carpenter and truck driver. ( See R. 165, 170.) Arrington said that he could no longer work due to anxiety, depression, panic attacks, cardiovascular disease, diabetes, hypertension, and pancreatitis. ( See R. 164.) A state agency twice denied his application. (R. 72-75.)
On April 18, 2011, Arrington appeared with counsel at an administrative hearing in Danville, Virginia. (R. 34, 36.) He testified as to his physical and mental symptoms and the limits those symptoms had on his ability to perform work-related tasks. ( See generally R. 44-62.) A Vocational Expert ("VE") also testified as to the type of jobs Arrington could perform given his age, education, work history, and limitations. ( See R. 62-71.) In a written decision dated May 13, 2011, the ALJ found that Arrington was not disabled. (R. 16.) He denied Arrington's application at Step Five. ( See generally R. 21-29.)
At Step One, the ALJ found that Arrington had not worked since July 1, 2009. (R. 21.) At Step Two, he found that Arrington suffered from severe diabetes mellitus, degenerative disc and joint disease, and obesity. ( Id. ) The ALJ also found that Arrington's anxiety disorder was a "nonsevere" impairment because it did not significantly limit his ability to perform basic mental work activities. (R. 21-22.) At Step Three, the ALJ concluded that Arrington did not have a severe impairment or combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 24.)
Before reaching Step Four, the ALJ determined that Arrington had the residual functional capacity ("RFC") to perform sedentary work involving "simple, routine, and repetitive tasks" in a job that offered a "sit/stand option" and allowed workers to be off-task for up to five percent of the workday in addition to customary breaks. (R. 24.) At Step Four, the ALJ found that Arrington's RFC kept him from returning to his past jobs as a carpenter and truck driver. (R. 27.)
At Step Five, the ALJ concluded that Arrington could perform some "unskilled and sedentary occupations, " including telephone-information clerk, charge-account clerk, and surveillance-system monitor. (R. 28.) The VE mentioned those occupations in response to the ALJ's question about jobs that a person matching Arrington's age, education, and work experience might transition to if he: (1) could perform sedentary work involving simple, routine, and repetitive tasks; (2) could not walk or stand for more than four hours a day; (3) could not sit for more than six hours in an eight-hour day; and (4) might spend up to 13 percent of his normal work time off-task. ( See R. 64-66.) The ALJ found the VE's testimony consistent with the Dictionary of Occupational Titles and concluded that all three jobs existed in significant numbers in the national economy. (R. 28.) Thus, he found Arrington was not disabled between July 1, 2009, and May 13, 2011. ( Id. )
Arrington timely filed his request for review with the Appeals Council. ( See R. 14.) On May 8, 2012, Arrington informed the Appeals Council that he "was found disabled as of May 14, 2011, in a subsequent claim." (R. 285.) He also asked the Appeals Council to consider ten additional exhibits related to his anxiety disorder. ( See R. 288-89; see also R. 4.) The Appeals Council considered the award and the new exhibits, but found that they did "not provide a basis for changing" the ALJ's decision. (R. 2.) This appeal followed.
Arrington argues that the ALJ erred at Step Two when he concluded that Arrington's anxiety disorder was a "non-severe" mental impairment. (Pl. Br. 8.) He also argues that this error was not harmless because the ALJ did not expressly consider how Arrington's mental impairment, even if "non-severe, " limited his ability to work. ( See Pl. Br. 12, 14-15.)
I agree that the ALJ's severity analysis is not supported by substantial evidence in the current record, which includes new evidence that was not before the ALJ. Although the ALJ did not mention Arrington's anxiety disorder after Step Two, he later found that Arrington had two limitations typical of applicants with mental impairments. In his RFC determination, the ALJ concluded that Arrington could perform only "simple, routine, and repetitive tasks, " and that he might be off task for up to five percent of the day. These limitations appear inconsistent with the ALJ's earlier finding that Arrington's "non-severe" mental impairment had "no" limitation whatsoever on his concentration, persistence, or pace. (R. 22.) But the ALJ did not explain the basis for incorporating those limitations into his RFC determination. ( See generally R. 24-28.) Without that explanation, I cannot determine whether the ALJ ...