PETTY v. COLVIN

Civil No. 14-cv-1883 (APM).

204 F.Supp.3d 196 (2016)

Phillip T. PETTY, Plaintiff, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant.

United States District Court, District of Columbia.

Editors Note
Applicable Law: 42 U.S.C. § 405
Cause: 42 U.S.C. § 405 Review of HHS Decision (DIWC)
Nature of Suit: 863 Social Security: DIWC/DIWW
Source: PACER


Attorney(s) appearing for the Case

Karl E. Osterhout , Osterhout Disability Law, LLC, Oakmont, PA, for Plaintiff.

Lauren Donner Chait , Robert Shannon Drum , Social Security Administration, Philadelphia, PA, for Defendant.


MEMORANDUM OPINION

Amit P. Mehta, United States District Judge.

This matter is before the court on the Report and Recommendation (R&R) filed by Magistrate Judge Alan Kay on August 8, 2016. R&R, ECF No. 21. The 14-day period during which the parties may file objections to the R&R has expired, see Local Civil Rule 72.3(b), and neither party has filed objections.

Plaintiff Phillip T. Petty moved to have this matter remanded to the Social Security Administration for a new hearing. See Pl.'s Mot. for Summ. J., ECF No. 16. Defendant Colvin cross-moved for an order affirming the decision denying Plaintiff's claim for supplemental security income payments. See Defs.' Mot. for Summ. J., ECF No. 18. In a thorough R&R, Judge Kay recommended that the parties' cross-motions be granted in part and denied in part. Specifically, he recommended that the court remand the case so that the Social Security Administration "can properly address Plaintiff's moderate mental limitations in concentration, persistence, and pace with respect to his [residual functional capacity] and the hypothetical. The remaining challenges concerning Plaintiff's social functioning, credibility, and the need to sit and stand should be denied." R&R at 24-25.

After consideration of the R&R of Judge Kay, the absence of any party's objection thereto, the entire record before the court, and the applicable law, the court will adopt Judge Kay's R&R and grant in part and deny in part both parties' Motions.

A separate final order accompanies this Memorandum Opinion.

REPORT AND RECOMMENDATION

ALAN KAY, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Phillip Petty brings this action under the Social Security Act, 42 U.S.C. § 405(g), seeking reversal of the Acting Commissioner's decision to deny Plaintiff Supplemental Security Income Benefits. Alternatively, Plaintiff moves to have this matter remanded to the Social Security Administration ("SSA") for a new administrative hearing. Plaintiff alleges that (1) the Commissioner's residual functional capacity ("RFC") assessment and hypothetical question to the vocational expert inadequately depicted his mental impairments, (2) the Commissioner's RFC failed to adequately depict Plaintiff's social limitations, (3) the ALJ's credibility findings were improper under controlling SSA regulations, and (4) the ALJ's determination that Plaintiff could engage in work that permitted him "to stand or sit as needed" was too vague under controlling SSA regulations. (See generally Pl.'s Mem. [17].) This case was referred to the undersigned for a Report and Recommendation on Plaintiff's Motion for Judgment of Reversal [16] ("Plaintiff's Motion") and Defendant's Motion for Judgment of Affirmance [18] ("Defendant's Opposition"). (See J. Jackson Or: der [3].) For the reasons set forth below, the undersigned believes that one of Plaintiff's arguments warrants remand of the Commissioner's decision.

I. BACKGROUND

On February 10, 2011, Plaintiff filed an application for Supplemental Security Income Benefits, alleging disability beginning January 1, 2007, from degenerative joint disease, degenerative disc disease, diabetes, loss of visual acuity, obesity, mood disorder, and substance abuse. (AR 21, 23.) At the time, Plaintiff was a 48 year-oldmale who resided in Washington, DC. (AR 12.) He had completed his GED and previously worked as a cook, dry wall finisher, staffing agency laborer, and construction laborer. (AR 214.)

On October 31, 2012, Administrative Law Judge ("ALP) Susan Wakshul held an administrative hearing by video. (AR 21.) Plaintiff appeared in Charlotte, North Carolina, and ALJ Wakshul presided over the hearing from Baltimore, Maryland. (AR 21.) The ALJ determined that Plaintiff had the residual functional capacity ("RFC") to engage in light work that permitted him to stand or sit as needed, and that involved frequent stooping, occasional climbing ramps/stairs, kneeling, crouching, crawling, and balancing, but that never involved climbing ladders/ropes/scaffolds or being exposed to hazards. (AR 25.) Based on Plaintiff's RFC, education, age, and work experience, the ALJ believed that Plaintiff could still work in jobs that existed in the national economy. (AR 30.) Consequently, ALJ Wakshul denied Plaintiff's application on November 30, 2012. (AR 31.)

On August 15, 2014, the Appeals Council adopted the ALJ's findings, but found that the RFC assessment did not adequately encompass Plaintiff's mental limitations. (AR 10-13.) The Appeals Council determined that, in addition to the ALJ's RFC findings, Plaintiff's work should also be limited to "simple, routine, repetitive unskilled tasks with only superficial contact with others." (AR 11.) The Appeals Counsel otherwise denied Plaintiff's request for review, thereby making the ALJ's decision the Commissioner's final decision. (AR 10-13.) Plaintiff now requests review of that final decision pursuant to 42 U.S.C. § 405(g).

A. Legal Framework for Determining Disability

In order to qualify for disability insurance benefits, a claimant must prove that he has a disability that renders him unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment ... for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505. The impairment must be "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). A claimant must support his claim of impairment with "[o]bjective medical evidence" that is "established by medically acceptable clinical or laboratory diagnostic techniques." 42 U.S.C. § 423(d)(5)(A).

The SSA has established a five-step sequential analysis for determining whether a claimant is disabled and entitled to disability benefits. See 20 C.F.R. § 404.1520. At step one, the claimant must show that he is not presently engaged in substantial gainful employment. 20 C.F.R. § 416.920(a)(4). At step two, he must show that he has a "severe medically determinable physical or mental impairment." Id. At step three, the claimant must show that his impairment meets or equals an impairment listed in the Listing of Impairments, 20 C.F.R. § 404, Subpart P, Appendix 1 ("Listing of Impairments"). Id. If his impairment is listed, then he is conclusively presumed disabled and the inquiry ends. Id. § 416.920(d).

If the impairment is not listed, then before step four, the ALJ assesses the claimant's residual functional capacity ("RFC"). Id. § 416.920(e). The "RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis," which means "8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p, Assessing Residual Functional Capacity in Initial Claims, 1996 WL 374184, at *4 (S.S.A. July 2, 1996). In making this finding, the ALJ must consider all of the claimant's impairments, including impairments that are not severe. 20 C.F.R. § 416.945. At step four, based on the RFC, the claimant must show that his impairment prevents him from performing his "past relevant work." 20 C.F.R. § 416.920(a)(4). The claimant bears the burden of proving the first four steps. 20 C.F.R. § 404.1520; see also Butler v. Barnhart, 353 F.3d 992, 997 (D.C.Cir.2004).

The burden shifts to the Commissioner at step five, which requires the Commissioner to show that, based on the claimant's RFC, age, education, and work experience, the claimant is capable of performing other work that exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520, 416.920(a)(4), 416.1429; see also Butler, 353 F.3d at 997. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's vocational factors and RFC. See 20 C.F.R. §§ 404.1566(e), 416.966(e). If the claim survives these five steps, then the claimant is disabled and qualifies for disability benefits. See C.F.R. § 404.1520(a)(4).

B. Medical Records

Plaintiff's medical records span from September 27, 2010 to January 16, 2013. (See AR 257-834.) During this time period, he visited the hospital on numerous occasions primarily to treat his knee pain and diabetes, and occasionally to treat his vision loss, mood disorder, and other impairments.1 (See AR 257-834.)

On September 27, 2010, Plaintiff visited the emergency room ("ER") at Carolinas Medical Center and reported problems with his right knee. (AR 260.) He stated that he fell onto his knee while getting out of the shower, and that the pain had since worsened. (AR 276.) An x-ray of Plaintiff's right knee revealed degenerative joint disease. (AR 260.) He returned to the Carolinas Medical Center on February 10, 2011, with complaints of bilateral knee pain. (AR 288.) This time, his left knee felt worse than his right. (AR 288.) Dr. Mark Bullard diagnosed Plaintiff with "acute on chronic knee pain." (AR 288.)

On March 9, 2011, Plaintiff visited the North Carolina Department of Health and Human Services because he was experiencing vision loss in his left eye and pain in his knees and hands. (AR 316.) He informed the doctor that a BB pellet glazed his left eye when he was in his thirties. (AR 317.) As a consequence, he has only been able to see peripherally. (AR 317.) Doctor Vincent Hillman found that Plaintiff had diminished visual acuity of the left eye and recommended that he follow-up for a vision exam. (AR 317, 319.) Regarding Plaintiff's knee, Dr. Hillman found that Plaintiff had no pronounced postural limitations, but that repetitive bending and squatting would have an adverse effect on his knee. (AR 319.) Finally, Dr. Hillman found that Plaintiff's pain in his hands was caused by carpal tunnel. (AR 319.)

On May 4, 2011, Plaintiff visited his treating physician, Dr. Jonathan Edwards at First Charlotte Physicians. (AR 331.) Dr. Edwards diagnosed Plaintiff with type 2 diabetes. (AR 331.) On May 9, 2011, Plaintiff visited the ER with complaints of dizziness and tiredness from uncontrolled diabetes. (AR 491.) After two days of monitoring and treatment, Plaintiff was released in stable condition. (AR 491.) His next few visits revealed poorly controlled diabetes. (AR 330.)

On October 27, 2011, Plaintiff revisited First Charlotte Physicians and reported problems with anger management. (AR 677.) He explained that he "went on a drinking binge over the course of the week-end [sic] and made some quite threatening statements to his current live-in girlfriend." (AR 677.) Plaintiff stated that he has had homicidal thoughts and expressed them to his girlfriend, but does not have any plans of acting on his thoughts. (AR 677.) Dr. Edwards referred him to a mental health treatment center. (AR 677.) He also informed Plaintiff that if his homicidal thoughts were to recur, he should go directly to an emergency department for immediate psychiatric evaluation and possible commitment. (AR 677.)

On October 30, 2011, Plaintiff visited the emergency room at BHC CMC Randolph Hospital because of "anger and depression." (AR 660.) He reported that he was "just getting angry all the time and was depressed" with "some crying spells coming out of nowhere." (AR 667.) He had been punching walls and destroying property. (AR 667.) He had spent 10 years in prison. (AR 665.) The ER physician reported that Plaintiff had consumed alcohol daily, and had a history of abusing cocaine, crack, heroin, and benzodiazepines. (AR 665.) After a mental status exam, the physician reported that Plaintiff was depressed, anxious, and irritable. (AR 666.) Plaintiff was assigned a GAF score of 45, which indicated serious impairment in social, occupational or social functioning.2 (AR 674.) The physician determined that Plaintiffs concentration was normal. (AR 666.) He was a good communicator, intelligent, and motivated, but he had poor judgment and lacked impulse control. (AR 666.) The treating physician prescribed Plaintiff with a mood stabilizer called Depakote and told him to schedule a follow-up appointment promptly. (AR 669-70.)

On January 12, 2012, Plaintiff revisited the BHC CMC Randolph Clinic for a follow-up examination regarding his medication. (AR 641.) Plaintiff reported "lifelong problems with behavior including impulsivity, aggressiveness and hyperactivity." (AR 641.) He also stated that he has a bad temper, which gets worse when he consumes alcohol, and has led to physical altercations, but he had quit drinking alcohol since his last argument with his girlfriend on October 31, 2012. (See AR 641.) After a mental status exam, the physician noted that Plaintiff "was not at all agitated or internally distracted." (AR 642.) He was "fully alert and oriented," but his "[a]ttention and concentration is somewhat limited [because he] tends to digress quite quickly." (AR 642.) He was assigned a GAF score of 55, which indicated moderate difficulty in social, occupational, or school functioning. (AR 643.) The doctor ruled out intermittent explosive disorder and attention deficit hyperactive disorder, but diagnosed Plaintiff with mood disorder, antisocial personality disorder, and polysubstance dependence with recent alcohol abuse. (AR 643.) His dosage for Depakote was increased and he was also prescribed Visatiril to address his anxiety, agitation, and insomnia. (AR 643.) The doctor told Plaintiff to follow-up in approximately two to three months. (AR 643.) There is no evidence that Plaintiff ultimately followed up for his mental health.

On January 25, 2012, Plaintiff revisited Dr. Edwards at First Charlotte Physicians because he was experiencing numbness in his right leg. (AR 676.) After a physical exam, Plaintiff was diagnosed with sciatica and placed on anti-inflammatory and mild muscle relaxant medications. (AR 676.) On August 14, 2012, he returned to the ER after reporting that he fell down the stairs and landed on his right knee, wrist, and ankle area. (AR 714.) An x-ray of his knee showed that there was moderate tri-compartment degenerative changes, but no acute traumatic injury or fractures. (AR 740.) An x-ray of his right hand and wrist were normal. (AR 739.) Two weeks later, on August 25, 2012, Plaintiff returned to the ER with the same knee complaints. (AR 763.) X-rays revealed the same arthritic changes and were negative for acute fractures. (AR 763.)

On January 15, 2013, Plaintiff visited CW Community Health for pain in his knee, hip, and back. (AR 832.) The physicians noted that Plaintiff was cooperative, and denied having anxiety, nervousness, or depression. (AR 832-33.) Dr. Jerry Jones diagnosed Plaintiff with diabetes and obesity, and reported that his "noncompliance with medical treatment [was] presenting hazards to [his] health." (AR 834.) Plaintiffs prescriptions were refilled and he was told to follow-up in a month. (AR 832.)

C. Testimony at the Administrative Hearing

At the administrative hearing, Plaintiff testified that his financial difficulties have prevented him from seeking additional medical treatment for his disabilities. (AR 44.) He has no medical insurance and his only source of income is $20 per month in food stamps. (AR 44-45.) Previously, he received medical treatment from the First Charlotte Physicians through a program called "Care Ring" that provided medical care to the indigent. (AR 44, 678.) He was enrolled in the program for one to two years, but was dismissed from the program because of disruptive behavior. (AR 44.)

Plaintiff testified that his disabilities, particularly in his leg, have prevented him from returning to his former work as a sheetrock finisher, which entailed walking on stilts, climbing ladders, and lifting heavy boards. (AR 49-51, 79-80.) He also complained about his vision loss, but testified that he has not sought treatment for his eye because "the disability administration... told [him] there wasn't nothing wrong with [his] eye." (AR 60.)

With regard to his mental impairments, Plaintiff testified that his memory "ain't too bad," but that he has never been tested on it. (AR 63.) He has difficulties in concentration, which in turn, makes him frustrated and introverted. (AR 63.) He mostly watches "westerns" on TV all day. (AR 65, 70-71.) His decision making is "sometimes... a little too rash." (AR 64.) He believes he struggles to relate to people because his prior incarceration affected his ability to trust people. (AR 64.)

When asked about whether he is taking medication, Plaintiff responded that he is taking Depakote for his anxiety and anger and Metformin for his diabetes. (AR 51.) However, Plaintiff also testified that "most of the time [he] just endure[s] the pain" because he does not like the fatiguing effects of his medication and does not want to get addicted. (AR 52.) Instead, "every now and then [he] might take an Advil." (AR 51.)

To help the ALJ determine whether Plaintiff is capable of performing work that exists in the national economy, an impartial vocational expert ("VE") testified next. (AR 79.) The ALJ asked the VE what types of work a hypothetical individual could perform who was limited to light work; frequent stooping; occasional climbing of ramps and stairs; occasional kneeling, crouching, crawling, and balancing; but that could never have any exposure to hazards. (AR 82.) The VE testified that such an individual could not perform work as a sheetrock finisher because such work would be too exertional. (AR 81-82.) However, the vocational expert opined that such a person could still engage in light exertional work, such as a machine feeder, sorter, or cleaner. (AR 82.)

The ALJ modified the above hypothetical to require that the individual also be given the option to "sit and stand as needed." (AR 83.) The VE opined that the hypothetical individual would not be able to continue in the machine feeder or cleaner positions, but that he could still work as a sorter, assembler of small parts, or mail clerk. (AR 83.)

The ALJ modified the hypothetical again to add a further requirement that the individual's work be limited to simple, routine, and repetitive tasks at the unskilled level. (AR 84.) The VE testified that the modification would not change the jobs the individual could perform. (AR 84.) Similarly, the VE testified that if the hypothetical individual was limited to having only occasional and superficial contact with others, the individual could still perform work as a sorter, assembler of small parts, or mail clerk. (AR 88.)

D. The SSA Commissioner's Decision

On November 30, 2012, ALJ Wakshul issued a decision finding that Plaintiff was not entitled to Supplemental Security Insurance Benefits. (AR 31.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since February 10, 2011. (AR 23.) At step two, the ALJ found that the Plaintiff's degenerative joint disease, degenerative disc disease, diabetes mellitus, loss of visual acuity, obesity, mood disorder, and substance abuse (in partial remission) were severe impairments. (AR 23.)

At step three, the ALJ found that Plaintiffs severe impairments did not meet, medically equal, or functionally equal an impairment listed in the Listing of Impairments. (AR 24.) The ALJ found that Plaintiff had "mild restriction[s]" in daily living. (AR 24.) Regarding his mental impairments, the ALJ found that claimant experienced only "moderate difficulties" in social functioning and only "moderate difficulties" in concentration, persistence, or pace. (AR 24.) To match the Listing of Impairments, Plaintiff would need to have at least two "marked" restrictions, which are more severe than mild and moderate, but less than extreme. 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.09.

At step four, the ALJ found that Plaintiff retained the residual functional capacity to perform light work that permitted him to stand or sit as needed; frequently stoop; occasionally climb ramps/stairs; occasionally kneel, crouch, crawl, and balance; but that never involved climbing ladders/ropes/scaffolds or being exposed to hazards. (AR 25.) The ALJ did not provide an explanation for why Plaintiffs mental limitations at step three did not translate into more detailed limitations in his RFC. (See id.) Nevertheless, based on this RFC, the ALJ determined that Plaintiff would be unable to perform his past work as a sheetrock finisher because such work would be too exertional. (Id.)

At step five, based on the testimony from the vocational expert, the claimant's age, education, and work experience, the ALJ determined that there were a significant number of unskilled jobs in the national economy that Plaintiff could perform and, therefore, he was not disabled. (See AR 30-31.)

After reviewing the ALJ's Decision, the Appeals Council largely adopted the ALJ's findings, but believed that the ALJ's RFC assessment did not adequately encompass Plaintiff's mental limitations. (AR 10-13.) That is, the Appeals Council took issue with the fact that the ALJ found that claimant experienced moderate limitations in social functioning, and moderate limitations in concentration, persistence, or pace at step three, but did not include any corresponding mental limitations in claimant's RFC at step four or five. (AR 11.) To remedy this problem, the Appeals Council modified Plaintiffs RFC so that it was "limited to simple, routine, repetitive and unskilled tasks with only superficial contact with others." (AR 11.)

Accordingly, the Appeals Council found that Plaintiff retained the RFC "for light work as defined in 20 CFR 416.967(b) except that he can never climb ladders, ropes, or scaffolds; occasionally climb ramps and stairs, kneel, crouch, crawl, and balance; frequently stoop; should have no exposure to hazards; should be able to sit and stand as needed; and is limited to simple, routine, repetitive and unskilled tasks with only superficial contact with others." ((AR 11) (emphasis added).) The Appeals Council otherwise denied Plaintiff's request for review, thereby making the ALJ's decision the Commissioner's final decision. (AR 13.) Plaintiff now requests review of that final decision pursuant to 42 U.S.C. § 405(g).

II. STANDARD OF REVIEW

The court must uphold the SSA Commissioner's determination "if it is supported by substantial evidence and is not tainted by an error of law." Smith v. Bowen, 826 F.2d 1120, 1121 (D.C.Cir.1987); see also 42 U.S.C. § 405(g). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted). The substantial evidence test requires "more than a scintilla, but ... something less than a preponderance of the evidence." Fla. Gas Transmission Co. v. FERC, 315 F.3d 362, 365-66 (D.C.Cir. 2003). A court may not reweigh the evidence or supplant the SSA's judgment of the weight of the evidence with its own. Maynor v. Heckler, 597 F.Supp. 457, 460 (D.D.C.1984). Instead, a court must scrutinize the entire record and give "considerable deference to the decision rendered by the ALJ and the Appeals Council." Crawford v. Barnhart, 556 F.Supp.2d 49, 52 (D.D.C.2008).

III. DISCUSSION

Plaintiff brings four challenges to the ALJ's decision. First, Plaintiff challenges the Agency's RFC and hypothetical questions to the vocational expert on grounds that they failed to accurately account for his moderate limitations in concentration, persistence, and pace. Second, Plaintiff argues the Agency's RFC failed to capture his moderate limitations in social functioning. Third, Plaintiff claims the ALJ's credibility findings were improper under controlling SSA regulations. Fourth, Plaintiff argues the ALJ's finding that Plaintiff could engage in work with an option "to stand or sit as needed" is too vague under controlling SSA regulations. These arguments will be addressed in turn.

A. The Agency Failed to Adequately Capture Plaintiff's Mental Limitations in Concentration, Persistence, and Pace in the RFC and Hypothetical

Plaintiff argues that the Agency's RFC and corresponding hypothetical question posed to the vocational expert insufficiently captured his mental impairments. (Pl.'s Mem. [17] at 6.) A hypothetical question must accurately describe a claimant's impairments so that the vocational expert can adequately assess whether jobs exist for the claimant. See Butler, 353 F.3d 992, 1005 (D.C.Cir.2004). Failure to accurately describe a claimant's impairments can serve as grounds for reversal because it undermines the expert's testimony that a claimant can perform other work. Butler, 353 F.3d at 1006) ("Deficiencies in the ALJ's description of the claimant's condition `undermine the foundation for the expert's ultimate conclusion that there are alternative jobs' that the claimant is capable of performing." (quoting Simms v. Sullivan, 877 F.2d 1047, 1053 (D.C.Cir.1989))); Newton v. Chater, 92 F.3d 688, 695 (8th Cir.2003) ("An expert's testimony based upon an insufficient hypothetical question may not constitute substantial evidence to support a finding of no disability.").

In this case, the ALJ found that Plaintiff experienced moderate limitations in concentration, persistence, or pace. (AR 24.) This limitation affects his "ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." 20 C.F.R. § 404.1520a(c)(2); 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00. At the hearing, however, the ALJ did not explicitly mention these limitations to the vocational expert. Instead, the ALJ's hypothetical to the vocational expert stated that the individual's work should be limited to simple, routine, and repetitive tasks at the unskilled level. (AR 84.) The issue thus comes down to whether the hypothetical limiting a claimant's work to simple, routine, repetitive and unskilled tasks adequately accounts for a claimant's moderate limitations in concentration, persistence, or pace.

Plaintiff argues that such a hypothetical is inadequate. (Pl.'s Mem. at 6.) Because of this purported flaw, Plaintiff contends that the Agency failed to carry its burden at step five because it relied upon the vocational expert's testimony that responded to a flawed hypothetical. (Id.) Defendant disagrees and maintains that such a hypothetical is adequate. (Def.'s Opp'n [18] at 10.)

The determination of whether an ALJ's hypothetical that limits a claimant's work to "simple, routine, repetitive and unskilled tasks" sufficiently captures the claimant's "moderate mental limitations in concentration, persistence, or pace" is an issue of first impression in this Circuit. The vast majority of Circuit Courts faced with this issue have held that such a hypothetical is insufficient. See, e.g., Mascio v. Colvin, 780 F.3d 632 (4th Cir.2015) (internal quotation marks omitted) ("[W]e agree 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 task or unskilled work.").3 This is because "the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir.2015); see also O'Connor-Spinner v. Astrue, 627 F.3d 614, 620 (7th Cir.2010) ("The ability to stick with a given task over a sustained period is not the same as the ability to learn how to do tasks of a given complexity.").

Although, the failure to follow this rule is generally considered a harmless error if "(1) `medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace,' and the challenged hypothetical is limited `to include only unskilled work'; or (2) the hypothetical `otherwise implicitly account[ed] for a claimant's limitations in concentration, persistence, and pace[.]'" McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir.2014) (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)); see also Simila v. Astrue, 573 F.3d 503, 521-22 (7th Cir.2009); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-76 (9th Cir.2008); Howard v. Massanari, 255 F.3d 577, 582 (8th Cir.2001).

After reviewing other Circuit Courts' treatment of this issue, the undersigned believes the Agency's RFC and hypothetical insufficiently captured Plaintiffs' limitations. The Commissioner determined that Plaintiff could engage in other work, such as a sorter, assembler of small parts, and mail clerk. (AR 13.) These jobs were considered to be suitable for Plaintiff because they are classified as unskilled work that "can be learned on the job in a short period of time." 20 C.F.R. § 416.968(a). As other Circuit Courts have recognized, though, the ability to learn how to do work in a short period of time differs from the ability to stay on task for extended periods of time. Mascio, 780 F.3d at 638. "Many employers require a certain output level from their employees over a given amount of time, and an individual with deficiencies in [concentration, persistence, or] pace might be able to perform simple tasks, but not over an extended period of time." Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir.2004).

Moreover, the ALJ's failure to consider the potential effect of Plaintiffs limitations on his ability to complete simple, routine, repetitive, and unskilled tasks for an extended period undermines the directive set out in SSR 96-8p, which emphasizes that the ALJ should assess the "individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis ... 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). As such, the undersigned recommends finding that the Agency's RFC and hypothetical insufficiently captured Plaintiffs limitations and "undermine[d] the foundation for the expert's ultimate conclusion that there are alternative jobs." Simms, 877 F.2d at 1053.

Defendant alternatively argues that, even if the hypothetical was insufficient, the error was harmless because the medical evidence demonstrates that Plaintiff can engage in simple, routine, and unskilled work, despite his moderate limitations in concentration, persistence, and pace. (Def.'s Opp'n at 14.) According to Defendant, "there is no credible evidence that Plaintiff would have restrictions in concentration, persistence, or pace, beyond those accounted for in the RFC assessment." (Id.) Plaintiff testified that he is able to watch television all day, sought mental health treatment only twice, and there is no evidence that he underwent actual treatment or counseling. (Id.) In October 2011, Plaintiff had fair attention and concentration. (Id.) In January 2012, Plaintiffs attention and concentration was only somewhat limited with the tendency to digress quickly. (Id.) Defendant contends that "this evidence does not show that Plaintiffs moderate limitations in maintaining concentration, persistence, or pace, resulted in specific functional limitations other than to performing only simple, routine, repetitive unskilled tasks." (Id. at 15.)

Defendant's argument is logically flawed. For the error to be harmless, the medical evidence must demonstrate that the claimant can engage in simple, routine, repetitive unskilled work. See McIntyre, 758 F.3d at 152 (citations omitted) (finding that such errors were harmless where the "substantial evidence in the record demonstrates that [claimant] can engage in `simple, routine, low stress tasks,' notwithstanding her ... limitations in concentration, persistence, and pace."). Defendant, however, argues that the evidence does not establish that Plaintiff cannot engage in simple, routine, repetitive unskilled tasks. (Def.'s Opp'n at 15.) Defendant's argument is based on the absence of evidence, but the test requires the existence of evidence. See McIntyre, 758 F.3d at 152. Defendant's argument is particularly unavailing because Defendant has the burden of proving that Plaintiff can perform other work (step five). Butler, 353 F.3d at 997. The undersigned thus recommends finding that this error was not harmless and that remand is in order. Perhaps on remand, the ALJ can explain why Plaintiff's moderate limitations in concentration, persistence, or pace at step three do not translate into a limitation in Plaintiff's residual functional capacity. Otherwise, the ALJ's hypothetical should explicitly or implicitly incorporate Plaintiffs moderate mental limitations and any potential affect they have on Plaintiffs ability to complete simple, routine, repetitive and unskilled tasks for sustained periods of time.

B. The Agency's RFC Adequately Accounted for Plaintiff's Alleged Anti-social and Aggressive Behavior

Plaintiff similarly argues that the Agency's RFC that limited him to "only superficial contact with others" failed to adequately capture his antisocial and aggressive behavior. (Pl.'s Mem. [17] at 6.) According to Plaintiff, he has a long history of significant difficulty relating with others, which vacillates between extreme isolation and extreme aggressive behavior, and there is no indication in the record that he can control such behavior. (Pl.'s Mem. at 13-14.)

Plaintiffs argument suffers from the same logical error that Defendant made above. The Social Security Act and controlling regulations make clear that the claimant bears the burden of supplying adequate records and evidence to prove his claim of disability. See 42 U.S.C. § 423(d)(5)(A) ("An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require."); 20 C.F.R. § 416.912(a) ("In general, you have to prove to us that you are disabled."); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983) (explaining that the claimant bears the burden of establishing a disabling impairment). Like above, Plaintiffs argument that there is no indication in the record that he can control his anti-social or aggressive behavior is based on the absence of evidence, but Plaintiff bears the burden of supplying records and evidence proving that he cannot control his behavior during steps one through four. (See id.) He simply failed to produce sufficient evidence showing that he experienced more than moderate limitations in social functioning.

A review of the record shows that substantial evidence supports the Agency's determination that Plaintiff experienced only moderate limitations in social functioning and retained the RFC to have "only superficial contact with others." From September 27, 2010 to January 16, 2013, Plaintiff visited the hospital on numerous occasions with complaints of knee pain and diabetes. Aside from the October 30, 2011 hospital visit, where he was diagnosed with a GAF score of 45, Plaintiff has pointed to nothing in the record that supports the proposition that he suffers from more than moderate limitations in social functioning.

Furthermore, after October 30, 2011, Plaintiffs mental health seemed to consistently improve. On January 12, 2012, his GAF score improved to 55, indicating only moderate difficulty in social, occupational, or school functioning. (AR 643.) Thereafter, Plaintiff visited the hospital on numerous occasions — January 25, 2012, May 7, 2012, August 14, 2012, August 25, 2012, and January 15, 2013 — and never complained of any issues with his mental health or social functioning. (See AR 676, 714, 740, 832); see also 20 C.F.R. § 404.1529(3)(iv-v) (stating that a claimant's duration of symptoms and frequency of treatment are probative factors when evaluating a claimant's allegation of disabling symptoms). Indeed, a year after the last time he complained of any mental health issues, on January 15, 2013, Plaintiff denied having any mental health issues such as anxiety, nervousness, or depression. (AR 834.) A reasonable person could conclude that Plaintiff did not present evidence sufficient to show that his limitation in social functioning is more severe than moderate. Thus, the undersigned recommends finding that the Agency's RFC adequately accounted for Plaintiff's alleged anti-social and aggressive behavior.

C. The ALJ's Credibility Findings Followed the SSA Regulations and Are Supported by Substantial Evidence

Plaintiff next contends that the ALJ's credibility findings were improper because he (1) assessed Plaintiffs RFC prior to evaluating his credibility and (2) discredited Plaintiffs testimony based upon his lack of medical treatment without proper consideration of Plaintiffs inability to afford medical insurance. (Pl.'s Mem. [17] at 14.) Plaintiffs first arguments stems from the ALJ's use of the following language in his decision:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these systems are not credible to the extent they are inconsistent with the above residual functional capacity assessment.

(AR 27.) Plaintiff claims that this boilerplate language reflects that the ALJ analyzed Plaintiffs credibility by comparing his allegations of pain and other symptoms with the predetermined RFC. (Pl.'s Mem. at 15.) This reverses the required order of the credibility assessment process set out in the agency's regulations; that is, SSR 96-7 requires the ALJ to first evaluate the claimant's credibility, and then formulate an appropriate RFC. ((Id.) (citing Mascio v. Colvin, 780 F.3d 632, 639 (4th Cir.2015)) ("We agree with the Seventh Circuit that this boilerplate `gets things backwards' by implying `that ability to work is determined first and is then used to determine the claimant's credibility.'").)

While the use of the above boilerplate language alone has been the subject of much criticism because it "fails to inform us in a meaningful, reviewable way of the specific evidence the ALJ considered in determining that [a] claimant's complaints were not credible," Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.2004), the use of such boilerplate language has been considered to be harmless when the ALJ "properly analyzed credibility elsewhere." Mascio, 780 F.3d at 639.

To properly assess credibility, ALJ's evaluation "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and reasons for that weight." Butler, 353 F.3d at 1005 (quoting SSR 96-7p, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of An Individual's Statements, 1996 WL 374186, at *2 (SSA July 2, 1996)). An ALJ may find that a claimant's statements are "less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed," unless there are good reasons for failing to seek or follow medical treatment, such as the inability to afford it. SSR 96-7p, 1996 WL 374186, at *7-8; see also Strong v. Soc. Sec. Admin., 88 Fed.Appx. 841, 846 (6th Cir.2004) ("In the ordinary course, when a claimant alleges pain so severe as to be disabling, there is a reasonable expectation that the claimant will seek examination or treatment."); Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir.1984) ("It flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.")

In this case, the undersigned believes the ALJ properly evaluated Plaintiffs credibility. After reciting the boilerplate, the ALJ immediately discussed why Plaintiffs statements regarding the debilitating severity of his symptoms were not credible in light of the record as a whole. (AR 28-30.) For example, to discredit Plaintiffs allegations of disabling symptoms regarding his knees, leg, and back, the ALJ noted that Plaintiff rarely took his prescribed medication and only takes Advil "every now and then." (AR 28.) Under SSA regulations, an ALJ is entitled to find a claimant's statements less credible if his medical records show that he does not follow the prescribed medical treatment. See SSR 96-7p, 1996 WL 374186, at *7.

Plaintiff also alleged complete disability from vision loss in his left eye, but testified that he did not go to the doctor because he was "told by disability administration" that there was nothing wrong with his eye. (AR 60.) However, the treatment notes contradict Plaintiffs statement and show that the doctor explicitly "recommend follow-up." (AR 319.) An ALJ is entitled to find an individual's statements to be less credible when they are contradicted by objective medical reports. See SSR 96-7p, 1996 WL 374186, at *5 ("One strong indication of the credibility of an individual's statements is their consistency both internally and with other information in the case record.").

To discredit Plaintiffs allegations of depression, moodiness, and anxiety as disabling impairments, the ALJ noted that Plaintiff never sought ongoing mental treatment and the record reflected only a two mental health exams on October 30, 2011 and January 12, 2012. (AR 28.) A reasonable person could expect that when a claimant alleges that his symptoms are so severe as to be disabling, that he would seek medical treatment to ameliorate his symptoms. Strong, 88 Fed.Appx. 841 at 846. Conversely, a reasonable person could infer that a claimant's failure to seek medical treatment shows that his allegations of disabling symptoms may be exaggerated. Id.; see also SSR 96-7p, 1996 WL 374186, at *7 (noting that "the individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints."). Although Plaintiff attributes the failure to seek further mental treatment to his lack of finances, he omits the fact that he visited the hospital on numerous occasions after January 12, 2012 — e.g., January 25, 2012, May 7, 2012, August 14, 2012, August 25, 2012, and January 15, 2013 — and never complained of any issues concerning his mental health. (See AR 676, 714, 740, 832.) Based on this, the ALJ reasonably believed that Plaintiffs failure to seek treatment "contrasted with his current claim of ongoing, disabling symptoms since the alleged onset date." (AR 28.)

Finally, the undersigned notes that the ALJ did not rely solely on Plaintiff's lack follow-up treatment to assess Plaintiffs credibility. The ALJ also reviewed Plaintiffs medical records and reasonably took issue with the fact that claimant alleged that he suffered from totally disabling symptoms, but no treating doctors had indicated he was totally disabled or needed restrictions. (AR 28.) As the ALJ stated, "given the claimant's allegations of totally disabling symptoms, one might expect to see some indication in the treating records of restrictions placed on the claimant by the treating doctor. Yet a review of the record in this case reveals no restrictions recommended by the treating doctor." (AR 28.) Thus, contrary to Plaintiff's assertions, the ALJ's decision demonstrates that he did not rely solely upon the boilerplate language or upon Plaintiff's failure to seek follow-up medical treatment to evaluate Plaintiff's credibility. For the reasons articulated by the ALJ, the undersigned believes that a reasonable mind could find that Plaintiff's statements were not fully credible. As such, the undersigned recommends finding that the ALJ's credibility determinations were proper and based upon substantial evidence.

D. The Agency's RFC Finding that Plaintiff Needed an At-Will Stand and Sit Option Is Not Too Vague

Plaintiff argues that the Agency's finding that Plaintiff retains the residual functional capacity to "stand or sit as needed" is too vague because SSR 96-9p requires that "the RFC assessment must be specific as to the frequency of the individuals need to alternate sitting and standing." (Pl.'s Mem. [17] at 19-20); see also SSR 96-9p, Determining Capability To Do Other Work — Implications of a Residual Functional Capacity for Less than a Full Range of Sedentary Work, 1996 WL 374185, at *7 (S.S.A. July 2, 1996). Instead, Plaintiff claims that the RFC should specifically delineate the amount of standing and walking he can do, and the approximate intervals at which he must change his position. (Pl.'s Mem. at 18.)

The undersigned believes that such an RFC is sufficient. "Courts have `held that similar limitations to the RFC in this case have satisfied the specificity requirement in Ruling 96-9P,' even though they failed to specifically delineate the exact amount of time a claimant would need to switch between sitting and standing." Swarrow v. Colvin, No. 2:13-01060, 2014 WL 3420429, at *12 (W.D.Pa. July 14, 2014) (quoting McGinnis v. Comm'r of Soc. Sec., No. 12-1395, 2013 WL 6710344, at *10 (W.D.Pa. Dec. 18, 2013); see also Ketelboeter v. Astrue, 550 F.3d 620, 626 (7th Cir.2008) (upholding an RFC that the claimant would "have a sit, stand option where could sit or stand as needed during the day."); Hodge v. Barnhart, 76 Fed.Appx. 797, 800 (9th Cir.2003) (upholding an RFC that claimant would "need to be able to change position frequently and alternate between standing and sitting."). Plaintiff cites no evidence to the contrary. "If anything, allowing Plaintiff to change positions `at will' provided Plaintiff with `broad flexibility and thus has a more restrictive effect on the jobs available to [him] than the limitation [he] thinks the ALJ should have described." Swarrow, 2014 WL 3420429, at *12 (quoting Ketelboeter, 550 F.3d at 626).

Even if the ALJ should have provided more details regarding the frequency that claimant needed to alternate between sitting and standing, such an error would be harmless because the VE limited Plaintiffs work to jobs structured around him being able to sit or stand as needed. ((See AR 83) (VE testifying that Plaintiff's requirement to sit and stand as needed would make him unable to work as a cleaner or machine feeder, but still able to work as sorter, assembler of small parts, and mail clerk.).) The undersigned thus believes the ALJ did not commit a reversible error when specifying that Plaintiff must be given an option to stand or sit as needed.

IV. RECOMMENDATION

The undersigned recommends that Plaintiff's Motion for Judgment of Reversal [16] be granted in part and denied in part, and Defendant's Motion for Affirmance [18] be granted in part and denied in part. Specifically, the undersigned recommends that Court remand the case so that the Agency can properly address Plaintiff's moderate mental limitations in concentration, persistence, and pace with respect to his RFC and the hypothetical. The remaining challenges concerning Plaintiffs social functioning, credibility, and need to sit and stand should be denied.

V. REVIEW BY THE DISTRICT COURT

The parties are hereby advised that under the provisions of Local Rule 72.3(b) of the United States District Court for the District of Columbia, any party who objects to the Report and Recommendation must file a written objection with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the report and/or recommendation to which objection is made, and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

Date: August 8, 2016.

FootNotes


1. The undersigned has omitted much of Plaintiff's medical records concerning his physical impairments because Plaintiff primarily challenges the ALJ's consideration of his mental impairments.
2. The GAF scale is a numeric scale (0 through 100) used by mental health clinicians and physicians to rate the psychological, social, and occupational functioning of adults. The highest ratings are 91-100, which represent "superior functioning in a wide range of activities," and the lowest ratings are 1-10, which represent "persistent danger of severely hurting self or others ... or serious suicidal act with clear expectation of death." Global Assessment of Functioning (GAF) Scale, Univ. at Albany, http://www.albany.edu/counseling_center/docs/GAF.pdf (last visited July 26, 2016).
3. See also McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir.2014); Ramirez v. Barnhart, 372 F.3d 546, 552 (3d Cir.2004); Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010); Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir.2004); Newton v. Chater, 92 F.3d 688, 695 (8th Cir.1996); Groberg v. Astrue, 505 Fed.Appx. 763, 769 (10th Cir.2012); Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir.2011) ("Other circuits have also rejected the argument that an ALJ generally accounts for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work."). But see McDonald v. Astrue, 293 Fed.Appx. 941, 947 (3d Cir.2008) (finding that a hypothetical limiting a claimant's work to "simple, routine tasks" sufficiently accounted for the claimant's moderate limitations with maintaining concentration, persistence, and pace).

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