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Hood v. Saul

United States District Court, E.D. Virginia, Richmond Division

September 4, 2019

WILLIAM CURTIS HOOD, Plaintiff,
v.
ANDREW M. SAUL,[1] Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          David J. Novak United States Magistrate Judge

         On October 9, 2013, Plaintiff William Curtis Hood ("Plaintiff) protectively applied for Disability Insurance Benefits ("DIB") under the Social Security Act (the "Act"), alleging disability from a herniated lumbar disc, chronic low back pain, numbness in his leg, knee pain, depression, anxiety and difficulty breathing, with an alleged onset date of January 2, 2010. The Social Security Administration ("SSA") denied Plaintiff's claim both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claim in a written decision and the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner.

         Plaintiff now seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred by: (1) failing to consider Plaintiffs attention deficit hyperactivity disorder ("ADHD"), post-traumatic stress disorder ("PTSD") and specific learning disability in determining Plaintiffs severe impairments; (2) ignoring substantial evidence that Plaintiff qualified as disabled under Listings 12.04 and 12.15; (3) affording partial weight to the opinions of Penny Sprecher, Ph.D., and little weight to the opinion of Leatha Boyles, F.N.P.; and, (4) relying at step five on the testimony of the vocational expert ("VE") that Plaintiff could perform the work of a laundry folder - of which there exist only 10, 000 positions nationally - to find that Plaintiff could perform work existing in significant numbers in the national economy. (Pl's Mem. of P. & A. in Supp. of His Mot. for Summ. J. ("Pl's Mem.") (ECF No. 14) at 12-22.) This matter now comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on the parties' cross-motions for summary judgment, rendering the matter ripe for review.[2] For the reasons that follow, the Court recommends that Plaintiffs Motion for Summary Judgment (ECF Nos. 11, 12) and Motion to Remand (ECF No. 13) be GRANTED, that Defendant's Motion for Summary Judgment (ECF No. 15) be DENIED and that the final decision of the Commissioner be VACATED and REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g).

         I. PROCEDURAL HISTORY

         On October 9, 2013, Plaintiff protectively applied for DIB, alleging disability from a herniated lumbar disc, chronic low back pain, numbness in his leg, knee pain, depression, anxiety and difficulty breathing, with an alleged onset date of January 2, 2010. (R. at 112.) The SSA denied Plaintiffs claim on November 7, 2014, and again upon reconsideration on July 21, 2015. (R. at 111, 125.) At Plaintiffs written request, the ALJ held a hearing on April 18, 2017. (R. at 37-67, 151-52.) On November 13, 2017, the ALJ issued a written opinion, denying Plaintiffs claim and concluding that Plaintiff did not qualify as disabled under the Act. (R. at 16-31.) On September 10, 2018, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner subject to review by this Court. (R. at 1-7.)

         II. STANDARD OF REVIEW

         In reviewing the Commissioner's decision to deny benefits, a court "will affirm the Social Security Administration's disability determination 'when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.'" Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial evidence requires more than a scintilla but less than a preponderance and includes the kind of relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Indeed, "the substantial evidence standard 'presupposes ... a zone of choice within which the decision makers can go either way, without interference by the courts. An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.'" Dunn v. Colvin, 607 F. App'x. 264, 274 (4th Cir. 2015) (quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988)). To determine whether substantial evidence exists, the court must examine the record as a whole, but may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1157 (2019) (holding that the substantial-evidence inquiry requires case-by-case consideration, with deference to the presiding ALJ's credibility determinations). In considering the decision of the Commissioner based on the record, the court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger; 493 F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). The Commissioner's findings as to any fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 477. If substantial evidence in the record does not support the ALJ's determination or if the ALJ has made an error of law, the court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         SSA regulations set forth a five-step process that the agency employs to determine whether disability exists. 20 C.F.R. § 404.1520(a)(4); see Mascio, 780 F.3d at 634-35 (describing the ALJ's five-step sequential evaluation). To summarize, at step one, the ALJ looks at the claimant's current work activity. § 404.1520(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. § 404.1520(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. § 404.1520(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's residual functional capacity ("RFC"), accounting for the most that the claimant can do despite her physical and mental limitations. § 404.1545(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. § 404.1520(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform any work existing in the national economy. § 404.1520(a)(4)(v).

         III. THE ALJ'S DECISION

         On April 18, 2017, the ALJ held a hearing during which Plaintiff (represented by counsel) and a VE testified. (R. at 37-67.) On November 13, 2017, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 16-31.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 19-31.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity between his alleged onset date of January 2, 2010 and his date last insured of December 31, 2014. (R. at 19.) At step two, the ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease diagnosed as chronic lower back pain and lumbago, [3] anxiety, depression, chronic knee pain and obesity. (R. at 19.) At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 20.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform light work as defined in 20 C.F.R. § 404.1567(b) with additional limitations. (R. at 22.) Specifically, Plaintiff could lift and carry up to twenty pounds frequently and up to forty pounds occasionally. (R. at 22.) The ALJ also limited Plaintiff to standing or walking for up to four hours in an eight-hour workday, with the option to alternate between sitting and standing every thirty minutes. (R. at 22.) Plaintiff could occasionally kneel, crouch, crawl and climb ramps and stairs, and Plaintiff could frequently balance. (R. at 22.) The ALJ concluded that Plaintiff could never climb ladders, ropes and scaffolds. (R. at 22.) As for Plaintiffs mental limitations, the ALJ found that Plaintiff could complete only simple, routine and repetitive tasks not in a production-based setting. (R. at 22.) Furthermore, the ALJ limited Plaintiff to only occasional interaction with supervisors and co-workers and zero interaction with the public. (R. at 22.)

         At step four, the ALJ determined that Plaintiff could not perform any of his past relevant work. (R. at 29.) However, at step five, the ALJ found that Plaintiffs age, education, work experience and RFC allowed him to perform jobs existing in significant numbers in the national economy, including the representative occupation of laundry folder. (R. at 29-30.) Therefore, the ALJ concluded that Plaintiff did not qualify as disabled under the Act. (R. at 30.)

         IV. ANALYSIS

         Plaintiff, fifty-six years old at the time of this Report and Recommendation, previously worked as a diesel mechanic. (R. at 111, 287.) He applied for DIB, alleging disability from a herniated lumbar disc, chronic low back pain, numbness in his leg, knee pain, depression, anxiety and difficulty breathing, with an alleged onset date of January 2, 2010. (R. at 112.) Plaintiff appeals to this Court, contending that the ALJ erred by: (1) failing to consider Plaintiffs ADHD, PTSD and specific learning disability in determining Plaintiffs severe impairments; (2) ignoring substantial evidence that Plaintiff qualified as disabled under Listings 12.04 and 12.15; (3) affording partial weight to the opinions of Dr. Sprecher and little weight to the opinion of Nurse Boyles; and, (4) relying at step five on the testimony of the VE that Plaintiff could perform the work of a laundry folder - of which there exist only 10, 000 positions nationally - to find that Plaintiff could perform work existing in significant numbers in the national economy. (Pl's Mem. at 12-22.) For the reasons set forth below, the ALJ erred in his decision.

         A. Substantial Evidence Supports the ALJ's Implicit Step-Two Finding that Plaintiffs ADHD, PTSD and Specific Learning Disability Did Not Impact His Ability to Perform Work-Related Functions.

         Plaintiff first challenges the adequacy of the ALJ's RFC determination, because the ALJ did not consider all of Plaintiff s diagnoses in determining his severe impairments. (Pl's Mem. at 16.) Specifically, Plaintiff contends that the ALJ incompletely listed Plaintiffs severe medical impairments, because Plaintiffs ADHD, PTSD and specific learning disability also severely impaired him. (Pl's Mem. at 16.) Defendant responds that the record supports the ALJ's step-two conclusion. (Def.'s Mot. for Summ. J. & Br. in Support Thereof ("Def.'s Mem.") (ECF No. 15) at 25-26.)

         At step two of the decisional process, the ALJ determines "the medical severity of a claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). An impairment or combination of impairments proves severe if it "significantly limits [a claimant's] physical or mental ability to do basic work activities." § 404.1520(c). However, the determination of whether an impairment qualifies as severe presents merely "a threshold question with a de minimis ... requirement." Felton-Miller v. Astrue, 459 Fed.Appx. 226, 230 (4th Cir. 2011) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)); see Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) ("[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims.").

         Here, the ALJ found that Plaintiff suffered from five severe impairments, namely: degenerative disc disease diagnosed as chronic lower back pain and lumbago, anxiety, depression, chronic knee pain and obesity. (R. at 19.) In support of this conclusion, the ALJ relied primarily on the July 2012 opinion of ALJ Nunez, which found that Plaintiff suffered from the same severe impairments except chronic knee pain. (R. at 19.) The ALJ included chronic knee pain as a severe impairment after considering additional evidence and the passage of time. (R. at 19-20.) Notably, at step two, the ALJ did not address whether Plaintiff suffered from ADHD, PTSD or a specific learning disability, which the Court interprets as an implicit conclusion that those impairments did not impact Plaintiffs work-related functions during the relevant period.

         Indeed, the Court's own review of the record reveals only one opinion - the March 2017 opinion of Dr. Sprecher - diagnosing Plaintiff with ADHD, PTSD and a learning disability more than two years after his date last insured. (R. at 462, 469.) Plaintiff otherwise presents no evidence that the conditions in question impacted him during the relevant period. As the ALJ observed in his RFC assessment, Plaintiff received minimal treatment for his mental impairments during the relevant period. (R. at 25.) Plaintiff described briefly attending counseling, but the record lacks evidence of treatment by a mental health specialist or inpatient treatment for his mental health diagnoses. (R. at 25, 399, 465.) And, in applying for DIB, Plaintiff did not identify ADHD, PTSD or a specific learning disability as conditions that disabled him. (R. at 235.)

         Ultimately, Plaintiff failed to produce evidence that the impairments in question impacted him in any way before his date last insured; therefore, the ALJ did not err at step two. See Bird, 699 F.3d at 341 (holding that evidence created after a claimant's date last insured may be considered retroactively when "that evidence permits an inference of linkage with" the relevant period); Bullock v. Colvin, 2017 WL 603298, at *3 (W.D. N.C. Feb. 14, 2017) (holding that the plaintiffs production of evidence showing the possibility of a severe impairment before and after, but not during, the relevant period did not satisfy the plaintiffs burden at step two (citing Bowen, 482 U.S. at 146)); McCoy v. Colvin, 2014 WL 221103, at *4 (W.D. N.C. Jan. 21, 2014) (affirming the ALJ's finding that the plaintiff did not suffer from any severe mental impairments, because no evidence existed showing that the plaintiff suffered from mental impairments during the relevant period, and because the plaintiff did not identify any mental impairments in her application for DIB).

         B. Substantial Evidence Supports the ALJ's Finding That Plaintiffs Impairments Did Not Meet or Medically Equal the Criteria of Listings 12.04 and 12.15.

         Plaintiff challenges the ALJ's step-three determination that his impairments did not meet or medically equal the severity of the listed impairments in Listings 12.04 (depressive, bipolar and related disorders) and 12.15 (trauma and stressor-related disorders). (Pl's Mem. at 12-15.) Specifically, Plaintiff contends that substantial evidence supports a finding that he met the criteria of both listings. (Pl's Mem. at 12-15.) Defendant responds that substantial evidence supports the ALJ's step-three conclusions. (Def.'s Mem. at 18-23.) Because "[a]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision," Clarke, 843 F.2d at 272-73, this Court will consider only whether substantial evidence supports the ALJ's step-three conclusions.

         At step three, Plaintiff bears the burden of proving that he meets or equals a listing. Yuckert, 482 U.S. at 146 n.5. The listings "were designed to operate as a presumption of disability that makes further inquiry unnecessary" and, consequently, require an exacting standard of proof. Sullivan v. Zebley, 493 U.S. 521, 532-33 (1990). "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Zebley, 493 U.S. at 530.

         Plaintiffs condition must satisfy all of the enumerated criteria in Listings 12.04 or 12.15 to qualify him as disabled at step three. Id. at 530. Specifically, to meet the requirements of Paragraph A of Listing 12.04, Plaintiff must first provide medical documentation of either:

1. Depressive disorder, characterized by five or more of the following: a. Depressed mood; b. Diminished interest in almost all activities; c. Appetite disturbance with change in weight; d. Sleep disturbance; e. Observable psychomotor agitation or retardation; f. Decreased energy; g. Feelings of guilt or worthlessness; h. Difficulty concentrating or thinking; or, i. Thoughts of death or suicide. [OR]
2. Bipolar disorder, characterized by three or more of the following: a. Pressured speech; b. Flight of ideas; c. Inflated self-esteem; d. Decreased need for sleep; e. Distractibility; f. Involvement in activities that have a high probability of painful consequences that are not recognized; or, g. Increase in goal-directed activity or psychomotor agitation.

20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.04. For Paragraph A of Listing 12.15, Plaintiff must provide medical documentation of all of the following:

1. Exposure to actual or threatened death, serious injury, or violence; 2. Subsequent involuntary re-experiencing of the traumatic event (for example, intrusive memories, dreams, or flashbacks); 3. Avoidance of external reminders of the event; 4. Disturbance in mood and behavior; and 5. Increases in arousal and reactivity (for example, exaggerated startle response, sleep disturbance).

Id. at 12.15.

         Upon presenting sufficient medical documentation of any of the disorders in either Listing 12.04 or 12.15, Plaintiff must then present documentation showing either:

B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):[4] 1. Understand, remember, or apply information (see 12:00E1). 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 4. Adapt or manage oneself (see 12.00E4). [OR]
C. The mental disorder in this listing category is "serious and persistent;" that is, a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both: 1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of the mental disorder (see 12.00G2b); and, 2. Marginal adjustment, that is, a minimal capacity to adapt to changes in the environment or to demands that are not already part of their daily life (see 12.00G2c).

Id. at 12.04, 12.15.

         Here, the ALJ determined that Plaintiffs mental impairments, both singly and combination, did not meet or medically equal the criteria of Listing 12.04. (R. at 20.) Considering first whether Plaintiffs impairments satisfied Paragraph B of Listing 12.04, the ALJ determined that Plaintiff had only moderate limitations in understanding, remembering or applying information. (R. at 20.) The ALJ recognized Plaintiffs complaints of poor short-term memory, a short attention span and difficulty staying focused; however, the ALJ noted that Plaintiff could take care of his personal needs, prepare meals, load the dishwasher, drive short distances, make monthly trips to the store for breakfast and lunch, pay bills, count change, use a checkbook/money order, watch television, attend medical appointments and receive daily visits from his sister. (R. at 20.)

         The ALJ likewise found only moderate limitations in Plaintiffs ability to interact with others. (R. at 20.) The ALJ acknowledged that Plaintiff and his sister both described Plaintiffs anger issues and occasional incidents of lashing out at other people. (R. at 20-21.) The ALJ also noted that Plaintiff testified to becoming more withdrawn and isolated. (R. at 21.) But the ALJ again observed that Plaintiff retained "at least some capacity to drive, maintain medical appointments, talk to friends on the phone, and receive daily visits from his sister." (R. at 21.) And the ALJ cited to Plaintiffs statements that he could get along with authority figures and had never lost employment due to problems getting along with others. (R. at 21.)

         As to Plaintiffs ability to maintain concentration, persistence and pace, the ALJ again found only moderate limitations. (R. at 21.) The ALJ noted Plaintiffs complaints of difficulty with his short-term memory, completing task, concentrating, handling stress and understanding and following instructions. (R. at 21.) However, the ALJ found that Plaintiffs capacity to watch television, drive, load the dishwasher, pay bills, count change, use checkbooks or money orders and maintain medical appointments discredited his complaints. (R. at 21.)

         As to Plaintiffs ability to adapt and manage himself, the ALJ found that Plaintiff experienced only mild limitations. (R. at 21.) The ALJ considered Plaintiffs testimony about getting only two to four hours of sleep per night and taking two to three hours of naps during normal working hours, but again noted that Plaintiff could take care of his personal needs, prepare meals, load the dishwasher, check the mail, drive, pay bills, count change, use a checkbook or money order, watch television, talk on the phone and maintain medical appointments. (R. at 21.)

         Because Plaintiff failed to establish that he suffered at least one extreme limitation or two marked limitations in the required areas of functioning, the ALJ concluded that Plaintiff did not satisfy Paragraph B under Listing 12.04. (R. at 21.) The ALJ found that Plaintiff likewise failed to establish that he met the Paragraph C criteria of Listing 12.04. (R. at 21.) Specifically, the ALJ found "no evidence of a 'serious and persistent' mental disorder, existing for a period of at least two years, and accompanied by both: (1) medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of the mental disorder;" and, (2) "marginal adjustment, that is, a minimal capacity to adapt to changes in [his] environment or to demands not already part of [his] daily life." (R. at 21.) With neither Paragraph B nor Paragraph C of Listing 12.04 satisfied, the ALJ concluded that Plaintiffs mental impairments did not meet or medically equal the criteria of that Listing. (R. at 21.)

         Regarding Listing 12.15, the ALJ made no findings, which the Court interprets as an implicit conclusion that Plaintiff failed to present medical documentation that he experienced the symptoms described in Paragraph A of that Listing. Moreover, Paragraphs B and C under Listing 12.04 apply also to Listing 12.15, so the ALJ's finding that Plaintiff did not satisfy Paragraph B or Paragraph C with regard to Listing 12.04 equally disqualifies Plaintiff from claiming that he is disabled under Listing 12.15. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.04, 12.15. The Court finds that the ALJ adequately explained why Plaintiff ...


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