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Simpkins v. Berryhill

United States District Court, D. South Carolina

February 14, 2017

GWEN SIMPKINS, Plaintiff,
v.
NANCY A. BERRYHILL[1], COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge.

         The Plaintiff filed the Complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).

         Plaintiff applied for Disability Insurance Benefits (DIB) on June 28, 2010, alleging disability as of February 15, 2009, due to chronic neck and back pain, depression, anxiety, stomach problems, and headaches. (R.pp. 201-205).[2] Plaintiff's applications were denied initially and upon reconsideration, as well as by an Administrative Law Judge (ALJ) after a hearing. (R.pp. 8-22). The Appeals Council denied Plaintiff's request for review, following which Plaintiff filed suit in this United States District Court. Simpkins v. Astrue, C.A. No. 9:13-2769. The decision of the Commissioner was thereafter reversed and remanded by this Court, following which the Appeals Council vacated the ALJ's decision and sent the case back to a different ALJ for further proceedings. (R.pp. 902-905). That ALJ then held a second hearing on July 28, 2015, following which she issued a decision on October 7, 2015, again finding that Plaintiff was not disabled and denying Plaintiff's claims. (R.pp. 794-827, 828-853). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (R.pp. 280-283).

         Plaintiff then filed this action asserting that there was not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for further consideration. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th cir. 2008)[Noting that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence." Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Discussion

         A review of the record shows that Plaintiff, who was fifty-one years old when she alleges she became disabled, has a high school education and past relevant work experience as a punch press operator and production manager. (R.pp. 20, 33-34, 57). In order to be considered "disabled" within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience and functional capacity, and which has lasted or could reasonably be expected to last for at least twelve (12) consecutive months.

         After a review of the evidence and testimony in this case, the ALJ determined that, although Plaintiff did suffer through her last day insured[3] from the “severe” impairments[4] of degenerative disc disease of the cervical and lumbar spine, morbid obesity, right carpal tunnel syndrome (CTS), an affective disorder, an anxiety disorder, and possible borderline intellectual functioning, she nevertheless retained the residual functional capacity (RFC) to perform light work[5], with the following additional limitations: cannot perform any overhead reaching; could not climb ladders, ropes, or scaffolds; only occasionally climb ramps and stairs, balance, stoop, crouch, kneel, and crawl; frequently handle and finger with her dominant right hand; follow simple instructions and perform simple, routine tasks; no high production work, defined as no high volume assembly line work; could have public contact 10% of the workday or less, but could do no counter sales or work serving the public; and could occasionally make job related decisions and tolerate work place changes. (R.pp. 799, 803). The ALJ further determined that, although the limitations caused by Plaintiff's impairments precluded her from performing her past relevant work, she could perform other representative occupations with these limitations, such as an inspector (D.O.T. Number 741.687-010) and hand packer (D.O.T. Number 753.687-038), and was therefore not entitled to DIB. (R.p. 819).

         Plaintiff asserts that in reaching this decision, the ALJ erred by relying on VE testimony that was in response to an improper hypothetical, and by rejecting and improperly evaluating the opinion evidence from Plaintiff's treating physician, Dr. Todd Gallman. After careful review and consideration of the record and arguments from the parties, the undersigned is constrained to agree with the Plaintiff that the ALJ's hypothetical to the VE was flawed, and that the decision must therefore be reversed and remanded for further consideration of Plaintiff's claims.

         Most of the medical evidence regarding Plaintiff's condition deals with her physical problems, although Dr. Gallman did also note and treat Plaintiff for symptoms of depression. (R.pp. 590, 596, 604-605, 774-776, 1016). See also (R.pp. 1018-1039). On November 3, 2010, Michael J. Grant, PhD[6], opined that Plaintiff suffered from “Depression - severe - NOS”, “Anxiety-moderate to severe - NOS”, “Psychosocial stressors - health, occupational, financial”, and had a current GAF[7]of 65. Dr. Grant opined that on testing, Plaintiff “tended to struggle with items requiring concentration.” (R.p. 675). Dr. Grant also opined that “[s]he had considerable difficulty maintaining attention and concentration for extended periods.” (R.p. 675). After review of this medical evidence and consideration of the subjective testimony presented at the hearing, the ALJ found that Plaintiff had severe mental impairments (affective disorder, anxiety disorder, and borderline intellectual functioning) which resulted in, inter alia, moderate difficulties with regard to Plaintiff's ability to maintain concentration, persistence, or pace. (R.pp. 799, 802). However, although the ALJ found that Plaintiff had moderate restrictions with respect to concentration, persistence, or pace, she failed to then properly account for this restriction in her RFC determination.

         Specifically, the ALJ limited Plaintiff's RFC to (among other limitations) the performance of simple instructions and simple, routine tasks; no high production work, defined as no high volume assembly line work; she could have public contact 10% of the workday or less, but could do no counter sales, or work serving the public; and could occasionally make job related decisions and tolerate work place changes. (R.pp. 799, 803). Restricting a claimant like the Plaintiff to simple, routine work in order to account for mental impairments, to include a moderate restriction with respect to concentration, persistence or pace, was an RFC formula that had generally found support in the case law prior to 2015. Cf. Wood v. Barnhart, No. 05-432, 2006 WL 2583097 at * 11 (D.Del. Sept. 7, 2006) [Finding that by restricting plaintiff to jobs with simple instructions, the ALJ adequately accounted for plaintiff's moderate limitation in maintaining concentration, persistence or pace]; McDonald v. Astrue, 293 F. App'x 941, 946-47 (3d Cir. 2008) [noting that the ALJ properly accounted for his finding that the claimant had moderate limitations in concentration by limiting him to simple, routine tasks]. However, in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit held ...


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