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Bond v. Saul

United States District Court, D. South Carolina

August 28, 2019

Chantee Bond, Plaintiff,
v.
Andrew Saul, Commissioner of Social Security, Defendant.

          ORDER

          Richard Mark Gergel United States District Judge.

         Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC, this matter was referred to a United States Magistrate Judge for pre-trial handling. The Commissioner moved to have the agency decision reversed and remanded for further administrative processing. (Dkt. No. 11). Thereafter, the Magistrate Judge issued a Report and Recommendation ("R & R") on August 2, 2019, recommending that this matter be reversed and remanded for further administrative proceedings to address issues raised by the recent decision of Thomas v. Berryhill, 916 F.3d 307, 314 (4th Cir. 2019). No. party filed objections to the R & R.

         Legal Standard

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. See 28 U.S.C. § 636(b)(1).

         The role of the federal judiciary in the administrative scheme established by the Social Security Act is a limited one. The Act provides that the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). "Substantial evidence has been defined innumerable times as more than a scintilla, but less than preponderance." Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This standard precludes de novo review of the factual circumstances that substitutes the Court's findings of fact for those of the Commissioner. See Vitek v. Finch, 438 F.2d 1157 (4th Cir. 1971).

         Although the federal court's review role is a limited one, "it does not follow, however, that the findings of the administrative agency are to be mechanically accepted. The statutorily granted right of review contemplates more than an uncritical rubber stamping of the administrative action." Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969). Further, the Commissioner's findings of fact are not binding if they were based upon the application of an improper legal standard. See Coffman v. Bowen, 829 F.2d 514, 519 (4th Cir. 1987).

         The Commissioner, in passing upon an application for disability benefits, is required to undertake a five-step sequential process. At Step One, the Commissioner must determine whether the claimant is engaged in substantial gainful work. If the claimant is not engaged in substantial gainful employment, the Commissioner proceeds to Step Two, which involves a determination whether the claimant has a "severe medically determinable physical or mental impairment." If the claimant has one or more severe impairments, the Commissioner proceeds to Step Three, which involves a determination whether any impairment satisfies one of the designated list of impairments that would automatically render the claimant disabled. Where a claimant does not satisfy one of the listed disabling impairments, the Commissioner must proceed to Step Four, which involves a determination of the claimant's RFC. Once the RFC is determined, the Commissioner proceeds to Step Five to determine if jobs exist in significant numbers in the national economy that the claimant can perform in light of her RFC. 20 C.F.R. § 404.1520(a)(4). The claimant carries the burden of establishing the requirements of Steps One through Step Four, but at Step Five the burden shifts to the Commissioner. If the Commissioner fails to carry her burden at Step Five, the claimant is entitled to a finding of disability as a matter of law. See Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015).

         Under the regulations of the Social Security Administration, the Commissioner is obligated to consider all medical evidence and the opinions of all medical sources, including treating physicians. 20 C.F.R. § 404.1527(b). This includes the duty to "evaluate every medical opinion we receive." Id. § 404.1527(c). Under what is commonly referred to as the Treating Physician Rule, the Commissioner is required to give special consideration to the opinions of treating physicians of the claimant, based on the view that "these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." Id. § 404.1527(c)(2). Under some circumstances, the opinions of the treating physicians are to be accorded controlling weight. Even where the opinions of the treating physicians of the claimant are not accorded controlling weight, the Commissioner is obligated to weigh those opinions in light of a broad range of factors, including the examining relationship, the treatment relationship, length of treatment, nature and extent of the treatment relationship, supportability of the opinions in the medical record, consistency, and whether the treating physician was a specialist. Id. §§ 404.1527(c)(1)-(5). The Commissioner is obligated to weigh the findings and opinions of treating physicians and to give "good reasons" in the written decision for the weight given to a treating source's opinions. SSR 96-2P, 61 Fed. Reg. 34490, 34492 (July 2, 1996). Further, all medical opinions must be weighed under the standards of the Treating Physician Rule, including the opinions of non-treating and non-examining physicians. 20 C.F.R. § 404.1527(c), (e)(1)(ii).

         In recent years, an issue has arisen concerning whether a claimant's RFC limited to "simple instructions" is consistent with jobs that have a Reasoning Level of 2. Under the Dictionary of Occupational Titles, a position with a Reasoning Level of 2 requires the ability to "apply commonsense understanding to carry out detailed but uninvolved written or oral instructions." Dictionary of Occupational Titles, Appendix C, 1991 WL 688702 (emphasis added). A position with a Reasoning Level 1 requires the ability to "apply commonsense understanding to carry out simple one- or two-step instructions." Id. (emphasis added). This issue was addressed in Thomas v. Berryhill, 916 F.3d 307, 313-14 (4thCir. 2019), which found that a RFC limited to "short, simple instructions" was in "apparent conflict" with a Reasoning Level 2 position. The Fourth Circuit concluded that since there might be circumstances where "short, simple instructions" might still fall with a Reasoning Level 2 position, it was unwilling to create a "categorical rule" that all such limitations required only Reasoning Level 1 positions. Instead, the Fourth Circuit required under the facts of Thomas that the decision be reversed and remanded to the agency to address this "apparent conflict." Id. at 314.

         Discussion

         Plaintiffs application for disability benefits has a protracted history. Plaintiff first filed for benefits on September 29, 2009. This Court reversed the Commissioner's first decision in this matter on February 14, 2014 and remanded the case for further administrative action. (Dkt. No. 9-2). Plaintiff then experienced four more years of delay before then matter returned to the District Court on an appeal from a second denial of disability benefits. In total, this application is now approaching a decade of administrative and judicial processing. The Commissioner now requests still another remand for further administrative processing.

         The Magistrate Judge is certainly correct that there is an apparent conflict in the testimony of the Vocational Expert and the DOT. The Vocational Expert identified three different jobs which Plaintiff was reportedly qualified to perform notwithstanding her severe impairments of schizophrenia and depression. Each of these positions has a Reasoning Level of 2. In this case, the Plaintiffs RFC was even more restrictive than in Thomas, limiting Plaintiff to "work requiring only understanding, remembering, and carrying out simple instructions." Tr. 524. Thus, according to the Plaintiffs RFC, she is limited to performing only jobs with "simple instructions" that she can (a) understand; (b) remember; and (c) carry out.

         At Step Five of the sequential process, the Commissioner carries the burden of establishing that there are sufficient jobs in the national marketplace in which Plaintiff is able to perform in light of her RFC. In other words, is the Plaintiff, with her documented mental impairments, capable of performing jobs at Reasoning Level 2, which require the capacity to follow "detailed but uninvolved written or oral instructions?" If there is not substantial evidence in the record to support a finding that Plaintiff is capable of following detailed instructions, the Commissioner would not be able to carry his burden at Step Five, and Plaintiff would be entitled to a finding of disability as a matter of law.

         This issue is complicated by the fact that the Administrative Law Judge ("ALJ") rejected the opinions of Plaintiff s two treating psychiatrists (Dr. Kellie Bishop and Dr. Richard Ford) and one consulting psychologist (Dr. Scott Shaffer), contending that their opinions that Plaintiffs significant mental impairments made her incapable of sustaining full time work were inconsistent with their treatment records. Tr. 529-531. A review of the records of these treating and consulting physicians indicates, however, that their ...


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