South Carolina Cases November 18, 2019: Joy v. Saul

Case Description

REPORT OF MAGISTRATE JUDGE

This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and Title 28, United States Code, Section 636(b)(1)(B).

The plaintiff, who is proceeding pro se , brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. 405(g)) to obtain judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.

The plaintiff filed an application for disability insurance benefits ("DIB") on January 5, 2016, alleging that she became unable to work on July 15, 2011. The application was denied initially and on reconsideration by the Social Security Administration. On November 21, 2016, the plaintiff requested a hearing (Tr. 131-32). On January 23, 2018, an administrative hearing was held at which the plaintiff, who was represented by an attorney at that time, and Ryan Patrick Farrell, an impartial vocational expert, appeared and testified in Columbia, South Carolina. On April 26, 2018, the ALJ considered the case and

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found that the plaintiff was not under a disability as defined in the Social Security Act, as amended (Tr. 8-26). The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on June 29, 2018 (Tr. 1-5).

The plaintiff then filed this action for judicial review on July 20, 2018. On December 21, 2018, the Commissioner filed an answer, making the plaintiff's brief due on January 22, 2019 (doc. 19). The plaintiff did not file a brief. On January 31, 2019, the undersigned entered an order advising the plaintiff that she could file a brief no later than February 25, 2019 (doc. 24). On February 26, 2019, the Clerk of Court received and filed a brief on behalf of the plaintiff (doc. 27). The brief was in the form of the letter, which was written and signed by David Joy, husband of the plaintiff ( id . at 5) (brief signed by "David Joy on behalf of my wife, Karen Melody Joy"). On April 8, 2019, the Commissioner filed a motion to strike the brief for failure to comply with 28 U.S.C. § 1654 (doc. 29). On April 30, 2019, the undersigned granted the Commissioner's motion and gave the plaintiff through May 17, 2019, to file her own written brief (doc. 34). The plaintiff did not file a brief. Therefore, on June 5, 2019, the court filed an order pursuant to Local Civil Rule 83.VII.05 (D.S.C.), directing that the Commissioner could file a brief supporting the administrative decision by July 15, 2019, and the case would then be decided on the record (doc. 38). On July 15, 2019, the Commissioner filed a brief in support of the decision denying benefits (doc. 41).

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In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:

(1) The claimant last met the insured status requirements of the Social Security Act on September 30, 2017.

(2) The claimant did not engage in substantial gainful activity during the period from her alleged onset date of July 15, 2011, through her date last insured of September 30, 2017 (20 C.F.R. § 404.1571 et seq .).

(3) Through the date last insured, the claimant had the following severe impairments: degenerative joint disease and osteoarthritis of the bilateral wrists and hands, status post right, carpometacarpal excision arthroplasty with tendon transfer; degenerative disc disease, status post anterior and posterior multilevel discectomy and fusion; post-traumatic stress disorder and anxiety; and affective disorder with depression(20 C.F.R. § 404.1520(c)).

(4) Through the date last insured, the claimant 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 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).

(5) After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) except for the following limitations: no more than occasional climbing of ramps and stairs; no climbing of ladders, ropes, or scaffolds; no more than frequent balancing; no more than occasional stooping; no kneeling, crouching, and crawling; no more than frequent handling bilaterally; avoidance of moderate exposure to noise; avoidance of concentrated exposure to vibration, dangerous machinery, and unprotected heights; only occupations requiring no more than simple, routine, repetitive tasks, not performed in a fast-paced production environment, involving only simple work-related instructions and decisions and relatively few work place changes; only occupations requiring no more than occasional interaction with co-workers and members of the general public; and the ability to maintain concentration, persistence, and pace for two-hour increments.

(6) Through the date last insured, the claimant was unable to perform any past relevant work (20 C.F.R. § 404.1565).

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(7) The claimant was born on February 10, 1965, and was 52 years old, which is defined as a younger individual age 18-49, on the date last insured. The claimant subsequently changed age category to closely approaching advanced age (20 C.F.R. 404.1563).

(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. § 404.1564).

(9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2).

(10) Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. §§ 404.1569 and 404.1569(a)).

(11) The claimant was not under a disability, as defined in the Social Security Act, at any time from July 15, 2011, the alleged onset date, through September 30, 2017, the date last insured (20 C.F.R. § 404.1520(g)).

Under 42 U.S.C. § 423(d)(1)(A), (d)(5), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).

To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets

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or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id . § 404.1520. If an individual is found not disabled at any step, further inquiry is unnecessary. Id . § 404.1520(a)(4).

A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v . Schweiker , 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id . (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id . at 192.

Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings "are supported by substantial evidence and were reached through application of the correct legal standard." Craig v . Chater , 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Id . In reviewing the evidence, the court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Id . Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v . Richardson , 483 F.2d 773, 775 (4th Cir. 1972).

The plaintiff was 46 years old on her alleged disability onset date (July 15, 2011) and 52 years old on the date last insured (September 30, 2017). She completed the ninth grade and received her GED in 1983. She also completed one year of college (Tr.

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174, 219, 346, 533). She has past relevant work as a sales person, jewelry; travel clerk; sales person, women's apparel/accessories; and sales, general hardware (Tr. 24).

Treatment records from Robert Breithaupt, M.D., from the late 1980s to the early 1990s, established that the plaintiff had longstanding difficulty with mental issues. At that time, she had diagnoses for a dysthymic disorder, poly-substance abuse, and a possible personality disorder (Tr. 686-98, 710-23).

On July 24, 2014, the plaintiff had an initial evaluation at Breakthroughs Counseling and Recovery. The plaintiff had ongoing symptoms, including a significant history of childhood trauma and ongoing abuse in adulthood. The plaintiff's provider noted that she presented with depression, anxiety, and post-traumatic stress disorder ("PTSD"). These records do not contain any ongoing treatment notes beyond this initial evaluation (Tr. 341-42).

On July 31, 2014, the plaintiff met with Lauren Lucas, Ph.D., for a consultative psychological examination. She presented with a euthymic mood with unpressured speech, appropriate grooming and attire, and an appearance younger than her stated age. Dr. Lucas also noted that the plaintiff walked unassisted and without apparent pain. She advised Dr. Lucas that she "do[es] laundry on occasion and microwaves food." She further advised Dr. Lucas that she maintained contact with her friends in Hawaii through Facebook, watched television, and walked her dog for exercise. The plaintiff reported that she had moved from South Carolina to Florida in 2013, where she served as her elderly mother's primary caregiver. After approximately three years, the plaintiff returned to South Carolina. It was noted that the plaintiff feared that her brother was after her. The plaintiff's mental status examination was unremarkable. She was alert and oriented with intact recall, the ability to spell "world" forwards and backwards, could interpret proverbs, and engaged in logical reasoning. Her insight was limited, her judgment was fair, and her prognosis was guarded. Dr. Lucas diagnosed the plaintiff with pain disorder with psychological and

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medical features; poly-substance abuse remission; borderline personality disorder; and scoliosis. Dr. Lucas noted occupational and economic problems. Dr. Lucas assigned a current Global Assessment of Functioning ("GAF") score of 60. Dr. Lucas concluded that the plaintiff could maintain relationships and friends through social networking; attend adequately and persist; perform routine, repetitive tasks; and appreciate the need for appropriate relations among co-workers and supervisors (Tr. 345-47).

Chiropractic records from Frank E. Hurst, D.C., from August 8 to September 25, 2014, establish that the plaintiff had a childhood history of scoliosis with Harrington rod placement at the thoracic spine, along with current low back pain. After a short course of chiropractic care, it appears that the plaintiff went nearly a year without further relevant intervention (Tr. 349-55).

In June and July, 2015, the plaintiff went to physical therapy for treatment of displacement of lumbar intervertebral disc, scoliosis, and lumbago (Tr. 358-69).

On June 8, 2015, she was seen at Baptist Behavioral Health by Janice Pimentel, Psy.D., and diagnosed with PTSD, adjustment disorder with mixed anxiety and depressed mood, and depression Dr. Pimentel rated the plaintiff with a GAF score of 48 (Tr. 535).

A treatment note from Andrew F. Cannestra, M.D., Ph.D., from August 18, 2015, explained that the plaintiff reported ongoing low back and lower extremity pain over

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the past several years. She had a normal, non-antalgic gait, normal muscle tone, no spasms, maintained strength, and had relatively intact range of motion. An MRI report showed mild lumbar spondylosis with some mild L4-L5 level stenosis as well as L3-L4 and L4-L5 level bulges and facet arthropathy. Dr. Cannestra's diagnostic impression was lumbar stenosis with radicular symptoms. He engaged the plaintiff in conservative treatment including further physical therapy and medicinal management. By September 2015, Dr. Cannestra felt that the plaintiff was a candidate for surgical intervention, although this was delayed to pursue formal pain management (Tr. 379-460).

On August 25, 2015, the plaintiff met with Kenneth Powell, D.O., who confirmed diagnoses of lumbar radiculopathy, low back pain, cervicalgia, lumbar spondylosis, and muscle spasm. This led to further medicinal management and a nerve block, administered in September 2015 (Tr. 5223-27).

On September 3, 2015, Dr. Pimentel observed that the plaintiff was defensive, misleading, and unrealistic upon testing. Dr. Pimentel further noted that the plaintiff was not socially isolated or withdrawn, and she concluded that the plaintiff's presenting problem was likely somewhat somatic in nature. Ongoing treatment notes from Dr. Pimentel, up to May 3, 2016, repeatedly show overall stability with medicinal and therapeutic treatment modalities, and Dr. Pimentel's records reveal consistently largely normal mental status examinations (Tr. 532-54).

The plaintiff followed up with Christopher Manees, M.D., on September 24, 2015. The plaintiff explained that she was in extreme pain and would need emergent care if Dr. Manees did not provide more medication. She admitted that she was ramping up her doses and ran out of pain medication. A urine drug screen was inconsistent with expectations and revealed improper pain medication use by the plaintiff. Dr. Manees confronted her about this inconsistency and the self-escalating of doses. She became increasingly angered and told Dr. Manees that he had no idea how hard she worked taking

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care of her mother. She yelled that Dr. Manees had no idea what she was going through, and she stated she had hardware going all down her spine, which was an apparent reference to her history of Harrington rod placement. Dr. Manees explained that the MRI report showed no such hardware. Despite this tension and potential misuse of pain pills, the plaintiff continued to receive pain management at this clinic (Tr. 520-27).

On September 28, 2015, the plaintiff saw Christopher Goll, M.D., at Coastal Spine and Pain Center who assessed wrist pain. X-rays revealed moderate arthritis of the bilateral wrists. Dr. Goll gave her a cortisone injection in her left wrist (Tr. 466). On October 8, 2015, the plaintiff followed up with Dr. Goll for continued pain management (Tr. 517-19). On November 5, 2015, the plaintiff presented with right wrist pain that began suddenly after a camping trip. She was assessed with pain in right wrist, left elbow, and lateral epicondylitis, right elbow (Tr. 467-70). She saw Renee Gallo, M.D., through December 2015. Dr. Gallo's treatment notes show continued injections and medicinal management for the plaintiff's pain (Tr. 507-16). After that, the plaintiff continued to engage in pain management with Patrick J. Burns, D.O. His records, up to February 18, 2016, essentially show generally unremarkable continuation of pain management care (Tr. 489-506).

On a disability report dated February 4, 2016, an agency employee who assisted the claimant observed no apparent difficulty with attention, concentration, understanding, and coherency (Tr. 214-16).

Records from Dr. Goll, from February 5, 2016, showed that the plaintiff experienced moderate osteoarthritis of the bilateral hands, as confirmed by diagnostic imaging and examination (Tr. 477-80).

On an adult function report dated February 16, 2016, the plaintiff indicated that she rode a bicycle, walked, cared for her pets, shopped in stores for clothing and home supplies, attended church, and exercised at the gym. She also engaged in hobbies and

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interests that include crafting, gardening, photography, and watching movies. The plaintiff performed certain household chores (Tr. 235-38).

On February 18, 2016, the plaintiff was seen at Coastal Spine and Pain Center and was assessed with lumbar spondylosis, long term opiate use, lumbar disc herniation, lumbosacral radiculitis, scoliosis, low back pain, and cervicalgia (Tr. 495).

On February 29, 2016, a state agency psychological consultant, James Levasseur, Ph.D., reviewed the record evidence and determined that, as a result of the plaintiff's mental impairments, she had social interaction and adaptation limitations. Specifically, Dr. Levasseur concluded that the plaintiff's ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes and ability to respond appropriate to changes in the work setting were moderately limited. Dr. Levasseur opined that the plaintiff could understand and follow simple and complex instructions. She could produce concentrated effort needed to complete tasks with adequate persistence, pace, and reliability. She had an appropriate appearance, was cooperative, carried on a normal conversation, could get along with others in public and at work despite occasional problems with social interaction mostly at home. She was able to adapt to the demands of an informal work environment (Tr. 65-72). On August 8, 2016, Michael Neboschick, Ph.D., reviewed the record evidence and affirmed Dr. Levasseur's findings (Tr. 95-102).

On April 11, 2016, Dr. Cannestra operated on the plaintiff, completing a multi-level discectomy and fusion from the L3-L4 to the L4-L5 levels, anterior and posterior (Tr. 585-88). At a followup on June 7, 2016, Dr. Cannestra noted that the plaintiff's symptoms were improved, and x-rays showed a good fusion without significant signs of abnormality. Dr. Cannestra reported that the plaintiff was doing well (Tr. 577-79).

The plaintiff continued to treat with Dr. Goll regarding her degenerative joint disease and arthritis of the bilateral hands and wrists. His treatment notes, from March 15, 2016 to June 27, 2016, showed continued difficulty plus the additional diagnosis of left

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tenosynovitis. On July 1, 2016, the plaintiff had carpometacarpal excision arthroplasty surgery on her left hand. On August 12, 2016, she followed surgery with a course of physical therapy. The plaintiff advised the physical therapist that she helped with pet rescue (Tr. 600-15, 650-52).

Primary care records from Victor C. Micolucci, M.D., and Matthew Johnson, D.O., up to September 20, 2016, confirm her back and hand surgeries, as well as ongoing conservative treatment of the plaintiff's mental impairments. The plaintiff sought a pain management referral from Dr. Johnson and engaged in further physical therapy, up to early 2017 (Tr. 620-38, 656-85, 699-703, 920-70, 1000-1109).

On October 4, 2016, a state agency medical consultant, Ronald Collins, M.D., reviewed the medical evidence in the file and opined that the plaintiff had the residual functional capacity ("RFC") to perform light work with certain postural, manipulative, and environmental limitations (Tr. 98-101, 105).

In June 2017, the plaintiff started a new course of pain management with Tasha L. Garrick at Carolinas Center for Advanced Management of Pain. An updated MRI report showed no complicating features at her lumbar spine status post fusion. Ms. Garrick's diagnostic impression, in light of pain complaints from the plaintiff, was for post-laminectomy syndrome and facet arthropathy. Treatment notes from Ms. Garrick, up to October 9, 2017, show only basic care and treatment without significant difficulty (Tr. 724-37). In September 2017, the plaintiff began treating with Earl B. McFadden, Jr., M.D., due to ongoing right upper extremity pain secondary to her degenerative joint disease and osteoarthritis. Conservative measures had failed her right upper extremity (Tr. 746-51). On October 31, 2017, Dr. McFadden operated on the plaintiff's right hand, and he completed a carpometacarpal arthroplasty and excision with tendon transfer (Tr. 910-11).

Mental health treatment records from Dr. Krebs and LaRaine Jenkins, LPC, up to November 2017, reveal continued basic care and treatment for the plaintiff's mental

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impairments (Tr. 760-61, 973-97). Primary care treatment notes from Colonial Family Medicine from May to November 2017, likewise show basic continuation of care for the plaintiff's various impairments (Tr. 765-901).

Followup treatment records from Dr. McFadden, up to January 2018, show generally good results from his surgical intervention on the plaintiff's right upper extremity. Dr. McFadden explained that he only wanted the plaintiff to use a brace for heavy lifting, instructing her not to rely on it for routine activities (Tr. 1112-52).

The plaintiff reported that the individual and combined effects of the disorders she experienced have resulted in more than minimal interruption and alteration of daily routines and ability to function. Specifically, she reported that she experienced chronic back pain, stabbing hip pain, and throbbing, cramping, radicular type pain down the lower extremities, along with ease of fatigue, which causes postural and exertional limitations, including a diminished capacity for sitting, standing, walking, lifting, and carrying. The plaintiff explained that she faced limitation of 15 to 25 minutes of sitting with the need to adjust positions, 30 minutes of standing followed by the need to sit, 30 minutes of walking, and negligible carrying with the right upper extremity and no more than five pounds with the left upper extremity. She stated that she has decreased use of the upper extremities with right hand pain, decreased grasp and grip, reliance on double wrist braces, and the use of ice and heat for relief. She experienced PTSD and depression without psychiatric admissions but with panic attacks; a history of trauma and abuse; fear of public spaces, loud noise, aggressive men, and crowds; paranoia; fear of being abducted; emotional swings; irritability; and difficulty coping with stress. She indicated that her impairments result in disturbed sleep, as well as deficits in attention, concentration, memory, understanding, completing tasks, and following instructions. The plaintiff also reported negative medicinal side effects, including drowsiness, constipation, and mood swings. She reported that she experienced an inability to tend to the full spectrum of routine daily tasks,

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secondary to the limitations caused by her impairments (Tr. 48-50, 217-44, 254-65, 268-70, 274-82, 309-22, 330-32).

At her administrative hearing on January 23, 2018, the plaintiff testified that she drove, grocery shopped, dined at restaurants with her husband, played Scrabble, assembled puzzles, and drew and colored with her left hand (Tr. 40, 51-52). As of the hearing date, the plaintiff lived with her husband in a house in South Carolina (Tr. 40). She had occasionally treated with mental health providers, those periods were sporadic and short-lived. She admitted no history of inpatient psychiatric care with medicinal and therapy based symptom management (Tr. 48).

Allegations in the Complaint

As noted, the plaintiff failed to file a written brief despite being advised that she could do so ( see doc. 24, 34). In her pro se complaint in this case, the plaintiff contends that the ALJ who wrote the decision at issue here never met her (doc. 1 at 4; see doc. 1-1 at 5 ("Although Judge Ronald Fleming signed my Notice of Decision, he was NOT the judge who heard my case.")). She further contends that the administrative hearing was held before "an interim judge who did not give [her] an opportunity to explain [her] need for disability benefits" (doc. 1 at 4). The record belies the plaintiff's allegations. In a notice of hearing dated December 11, 2017, ALJ Ronald Fleming advised the plaintiff that the hearing would occur before him in Columbia, South Carolina, on January 23, 2018 (Tr. 139-45). The plaintiff's counsel then sent a prehearing memorandum, dated January 14, 2018, to ALJ Fleming (Tr. 333-36). The transcript of the hearing on January 23, 2018, shows that ALJ Fleming conducted the hearing, and the plaintiff, who appeared with

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counsel, testified along with an impartial vocational expert (Tr. 34-58). Despite the plaintiff's contention that she was not given an opportunity to explain her need for disability benefits (doc. 1 at 4), the record shows that she testified at length during the hearing regarding her work history, education, activities of daily living, and alleged impairments, as well as the limitations allegedly arising from those impairments (Tr. 37-53). In the hearing, the plaintiff's counsel advised the ALJ that nothing remained to be added to the record (Tr. 35). ALJ Fleming then issued his decision on April 26, 2018 (Tr. 26).

In May 2018, the plaintiff sought the Appeals Council's review of the ALJ's decision (Tr. 173). By letter dated May 25, 2018, the Appeals Council expressly advised the plaintiff that any "statement about the facts and the law" or "additional evidence" that she wished to provide was required to be submitted to it within 25 days, or by June 19, 2018, and that any such submission must state her Social Security number (Tr. 6-7). In her complaint in this case, the plaintiff contends that a "letter [she] submitted AS EVIDENCE was not acknowledged by the Appeals Council" (doc. 1 at 4) (emphasis in original). The plaintiff attached to her complaint a letter dated June 11, 2018, that she represents is a copy of that correspondence (doc. 1-1 at 4-6).The "relevant new evidence" referenced by the plaintiff is a portion of the letter in which she describes a "manic episode" that she suffered on January 21, 2018, that required that she be transported by ambulance to the hospital where she was seen by Emily Krodel, M.D., and was released from the hospital later that same day (doc. 1-1 at 5-6). No treatment notes were included. Notably, this episode occurred two days prior to the hearing before the ALJ; yet, as noted above, when the ALJ asked the plaintiff's attorney if there was "anything new or outstanding" he needed to place in the record, the attorney replied in the negative (Tr. 35).

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The plaintiff states in the letter to the Appeals Council that the January 21, 2018, "medical emergency was not included previously in the January 23 hearing because [the Office of Disability Adjudication and Review] restricted inclusion of new medical evidence within 5 days of a hearing" (doc. 1-1 at 6). While the regulations provide that "each party must make every effort to ensure that the [ALJ] receives all of the evidence. . . no later than 5 business days before the date of the scheduled hearing," the regulations further state that ALJ "will accept the evidence if he . . . has not yet issued a decision" and the evidence "was received less than 5 business days prior to the hearing." 20 C.F.R. § 404.935.

As noted by the Commissioner, the plaintiff included no evidence of the Appeals Council's receipt of the letter, as it appears that she did not send the document to the Appeals Council by overnight carrier, registered or certified mail, or facsimile transmission. Moreover, the letter reveals on its face that the plaintiff failed to comply with the Appeals Council's instruction that she include her Social Security Number (doc. 1-1 at 4-6). Ten days after the deadline for its receipt of extra-record material, the Appeals Council issued its June 29, 2018, denial of the plaintiff's request for review, which included no mention of the June 11, 2018, letter that the plaintiff contends she timely submitted to the Appeals Council (Tr. 1-5).

As the letter was not considered by the ALJ or Appeals Council, any remand for its consideration would be pursuant to Sentence Six. Mannon v . Colvin , C.A. No. 3:12-cv-7725, 2013 WL 5770524, at *9 (S.D.W.Va. Oct. 24, 2013) ("[S]entence six applies to a remand based on new and material evidence supplied to the court, which was not submitted to the ALJ or the Appeals Council and was not considered in reaching the Commissioner's final disability decision." (citations omitted)). Under Sentence Six, remand to the Commissioner on the basis of newly discovered evidence is appropriate if four prerequisites are met:

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(1) the evidence must be relevant to the determination of disability at the time the application(s) was first filed; (2) the evidence must be material to the extent that the Commissioner's decision might reasonably have been different had the new evidence been before him; (3) there must be good cause for the claimant's failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant must make at least a general showing of the nature of the new evidence to the reviewing court.

Miller v . Barnhart , 64 F. App'x 858, 859-60 (4th Cir. 2003). The plaintiff here has failed to make the required showing that the Commissioner's decision might reasonably have been different had the evidence regarding the January 21, 2018, episode been before him, and, therefore, remand pursuant to Sentence Six is not appropriate.

ALJ's Decision

The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.

The ALJ found that while the plaintiff had earnings in 2012, 2013, and 2014, those earnings did not rise to the level of substantial gainful activity. Thus, at step one of the five-step sequential evaluation process, the ALJ found that the plaintiff had not engaged in substantial gainful activity in the relevant period (Tr. 13). The ALJ then determined at step two that the plaintiff had the following severe impairments: degenerative joint disease and osteoarthritis of the bilateral wrists and hands, status post right, carpometacarpal excision arthroplasty with tendon transfer; degenerative disc disease, status post anterior and posterior multilevel discectomy and fusion; PTSD and anxiety; and affective disorder with depression. The ALJ noted that these impairments "significantly limit the ability to perform basic work activities as required by SSR 85-28." He further found that the plaintiff had several non-severe impairments: history of scoliosis, insomnia, hiatal hernia, urinary retention, history of endometriosis, personality disorder, and history of polysubstance abuse, in remission. The ALJ noted that these impairments were well managed with

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appropriate care and treatment and/or failed to produce more than a minimal effect on the plaintiff's ability to perform basic work activities (Tr. 14).

At step three, the ALJ found that the plaintiff did not have an impairment or combination of impairments that met or medically equaled the criteria of a listed impairment (Tr. 14-18). The ALJ noted in his decision that "[n]o treating or examining physician ... mentioned findings equivalent in severity to the criteria of any listed impairment." The ALJ also noted that the record did not include "evidence show[ing] medical findings that are the same or equivalent to those of any listed impairment" (Tr. 14.) Specifically, the ALJ reviewed the criteria for Listings 1.02, 1.04, 12.04, 12.06, 12.08, and 12.15, and concluded that the record failed to support a finding that the plaintiff's impairments, individually or in combination, met or medically equaled the high standard of any of these listings (Tr. 14-18).

In the letter addressed to the Appeals Council that is attached to her complaint, the plaintiff argues that the ALJ's findings at step two and step three present a "huge inconsistency" (doc. 1-1 at 6). This argument is without merit as the ALJ applied the appropriate standards at steps two and three, and his findings are supported by substantial evidence. A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities," examples of which include "physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." 20 C.F.R. §§ 404.1520(c), 404.1522. The plaintiff has failed to cite any impairment that the ALJ improperly found to be non-severe. Further, at step three, a listing analysis includes identifying the relevant listed impairments and comparing the criteria with the evidence of the plaintiff's symptoms. Cook v . Heckler , 783 F.2d 1168, 1173 (4 Cir. 1986) (stating that "[w]ithout such an explanation, it is simply impossible to tell whether there was substantial evidence to support the determination"). That is just what the ALJ did here (Tr. 14-18), and the plaintiff has failed to cite to any evidence supporting a claim that her impairments meet or equal a particular listed impairment. The plaintiff's claim in the letter attached to her

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complaint that the ALJ "IGNORED" her doctors' findings and diagnoses because they did not "use the EXACT same language as found in the CFR (regarding severity equivalencies)" is without merit (doc. 1-1 at 6) (emphasis in original). The ALJ discussed, at length, the findings of the plaintiff's treating doctors in both the listing analysis and the RFC assessment (Tr. 14-24).

Next, the ALJ found that, in the relevant period, the plaintiff retained the RFC to perform light work with postural, manipulative, environmental, and mental limitations (Tr. 18). The undersigned finds that the RFC assessment is based upon substantial evidence and without legal error as discussed below.

The regulations provide that a claimant's RFC is the most that she can still do despite her limitations. 20 C.F.R. §404.1545(a). It is the ALJ's responsibility to make the RFC assessment, and the ALJ does so by considering all of the relevant medical and other evidence in the record. Id . §§ 404.1545(a)(3), 404.1546(c).

Social Security Ruling ("SSR") 96-8p provides in pertinent part:

The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraph (b), (c), and (d) of 20 C.F.R. §§ 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional level of work, sedentary, light, medium, heavy and very heavy.

SSR 96-8p, 1996 WL 374184, at *1. The ruling further provides:

The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material

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inconsistencies or ambiguities in the evidence in the case record were considered and resolved.

Id . at *7 (footnote omitted). Further, "[t]he RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id . Moreover, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." Id .

The ALJ provided well-supported reasons for the RFC assessment (Tr. 18-24). First, the ALJ considered the plaintiff's allegations concerning her symptoms and concluded that her statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the record evidence (Tr. 18-23). The ALJ then reviewed the medical evidence (Tr. 19-22). The ALJ noted that the record revealed the plaintiff's two carpometacarpal excision arthroplasty surgeries in 2016 and 2017. Followup treatment records thereafter, "up to January 2018, show[ed] generally good results ... " and, as of November 2017, the plaintiff had been advised to use a brace on her right hand only for heavy lifting, not for routine activities (Tr. 22).

With regard to the plaintiff's degenerative disc disease, the ALJ noted that following back surgery (in the form of a multi-level discectomy and fusion) in April 2016, the plaintiff's symptoms improved; x-rays showed a good fusion without significant signs of abnormality; and the plaintiff's surgeon reported that she was doing well. Additionally, an updated MRI report in June 2017 showed no complicating features at the plaintiff's lumbar spine status post fusion. Thereafter, in the period of June to October 2017, the plaintiff received "only basic care and treatment without significant difficulty" from a registered nurse providing pain management services (Tr. 22).

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As to the plaintiff's mental impairments, the ALJ noted that, while the record indicated that the plaintiff had "occasionally treated with mental health providers, those periods have been sporadic and short-lived"; further, the plaintiff had no history of inpatient psychiatric care, and treatment for the plaintiff's mental impairments had been limited to "medicinal and therapy-based symptom management," with this limited, conservative treatment producing "overall stability" (Tr. 16, 21). The ALJ also noted that the record showed that certain testing exposed the plaintiff's "improper pain medication use" and that other testing produced results revealing the plaintiff as "defensive, misleading, and unrealistic" (Tr. 21) (citing Tr. 520-21, 537).

The ALJ found that the plaintiff's allegations were "unsupported by and inconsistent with the medical evidence of record" and noted that the weight to which her allegations were entitled was "further eroded by a number of factors that indicate that her condition did not rise to the level of severity that was alleged" (Tr. 23). The ALJ then briefly summarized his review of the record evidence as follows:

Specifically, the record shows that [the plaintiff] is 52-year-old female with a general equivalency degree and one year of college education.... As to [the plaintiff's] degenerative joint disease and osteoarthritis of the hands and wrists, diagnostic studies and surgical reports confirm these impairments; however, ongoing treatment notes fail to show any significant lingering difficulties as alleged by [the plaintiff]. Regarding [the plaintiff's] degenerative disc disease, again, diagnostic studies and surgical records confirm this impairment, but post-operative x-ray films show spinal stability and [she] has required only ongoing conservative treatment since surgery. Turning to [the plaintiff's] mental impairments, ... her impairments result in no more than moderate limitation in any of the "paragraph B" criteria areas. Moreover, upon consultative examination, Dr. Lucas found that [the plaintiff] could perform routine, repetitive tasks and appreciate the need for appropriate relations with co-workers and supervisors. Beyond that, nothing in the medical evidence of record shows more than minimal difficulty due to [the plaintiff's] ... non-severe medically determinable impairments. Overall, the evidence warrants no limitation beyond that allowed for in the ... [RFC].

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(Tr. 23).

The ALJ also reviewed the opinion evidence. The ALJ noted the absence in the record of any "medical opinion from a treating source that provides greater restrictions than those listed in the ... [RFC]." The ALJ then considered the opinions of Drs. Levasseur, Neboschick, and Collins, the state agency consultants, who found that the plaintiff was able to perform work at the light exertional level with various nonexertional limitations (Tr. 23-24) (citing Tr. 65-72, 95-102). The ALJ gave significant weight to the opinions of the state agency consultants, but in light of the evidence received at the hearing level, the ALJ concluded that the record as a whole warranted a finding of additional areas of moderate limitation than those that had been found by the state agency consultants (Tr. 23-24).

The ALJ also considered the third party statement of the plaintiff's husband (Tr. 24) (citing Tr. 315-22). Because it was "partially inconsistent with and unsupported by the medical evidence of record," and because the plaintiff's husband was a lay witness whose "affection for [the plaintiff] would unavoidably color his input in her favor," the ALJ afforded the statement little weight (Tr. 24).

The undersigned finds that the ALJ adequately explained the reasons for the mental limitations provided in the RFC assessment in compliance with Mascio v . Colvin , 780 F.3d 632 (4 Cir. 2015). In Mascio , the plaintiff argued that the ALJ failed to account for her mental limitations in the RFC assessment. Id . at 637-38. Specifically, the ALJ found at step three that, as a side effect of her pain medication, the plaintiff had moderate difficulties in maintaining concentration, persistence, or pace, but in the RFC assessment, the ALJ provided no mental limitations other than limiting the plaintiff to unskilled work. Id . at 638. The court held, "[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 tasks or unskilled work.'" Id . (quoting Winschel v . Comm'r of Soc . Sec ., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth

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Circuits)). The court noted that "the ability to perform simple tasks differs from the ability to stay on task" and that "only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id . The court found it reversible error that the ALJ did not explain his consideration of the plaintiff's moderate limitation in concentration, persistence, or pace in the RFC, stating as follows:

Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect Mascio's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here gave no explanation, a remand is in order.

Id . (internal citation omitted).

Here, as in Mascio , the ALJ found at step three of the sequential evaluation process that the plaintiff had a moderate limitations in concentrating, persisting, or maintaining pace (Tr. 17). However, the ALJ here provided specific mental limitations to account for the plaintiff's moderate limitations in this area, and he explained his reasons for making the findings. Specifically, the ALJ provided the following mental limitations in the RFC assessment:

[O]nly occupations requiring no more than simple, routine, repetitive tasks, not performed in a fast-paced production environment, involving only simple work-related instructions and decisions and relatively few work place changes; only occupations requiring no more than occasional interaction with co-workers and members of the general public; and the ability to maintain concentration, persistence, and pace for two-hour increments"

(Tr. 18). The ALJ explained that Dr. Lucas found in the consultative examination that the plaintiff had a GAF score of 60, indicative of moderate symptoms just beyond the range of mild symptoms, and she found that the plaintiff could attend adequately and persist to perform routine, repetitive tasks. The ALJ also noted that the plaintiff's mental health

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treatment was sporadic and short-lived, with no history of inpatient psychiatric care and medicinal and therapy based symptom management. Also, an Agency employee who assisted the plaintiff observed no apparent difficulty with attention, concentration, understanding, and coherency. Further, the ALJ noted that, despite some difficulty, the plaintiff participated in activities of daily living that require notable degrees of concentration, persistence, and pace, including driving, shopping in stores, attending church, dining out, and going to the gym, and she appeared to have healthy relationships with friends and family members (Tr. 17. 20-24).

Based upon the foregoing, the undersigned finds that the ALJ's RFC assessment is supported by substantial evidence and without legal error.

The ALJ determined at step four of the sequential evaluation process that the plaintiff was unable to perform any past relevant work (Tr. 24). At step five, the ALJ determined, upon consideration of the plaintiff's age, education, work experience, RFC, and the vocational expert's testimony, that there were jobs existing in significant numbers in the national economy that the plaintiff could have performed during the relevant period, including the following representative occupations: marker ( Dictionary of Occupational Titles (" DOT ") No. 209.587-034, 1991 WL 671802); routing clerk ( DOT No. 222.687-022, 1991 WL 672133); and mail clerk ( DOT No. 209.687-026, 1991 WL 671813) (Tr. 25-26). Thus, the ALJ concluded that the plaintiff was not disabled within the meaning of the Act from July 15, 2011, her alleged disability onset date, through September 30, 2017, her date last insured (Tr. 26).

The ALJ is required to address any conflicts or apparent conflicts between the vocational expert's testimony and the information contained in the DOT . See Pearson v . Colvin , 810 F.3d 204, 208-10 (4th Cir. 2015); see also SSR 00-4p, 2000 WL 1898704, at *2 ("At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.").

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According to the DOT , the jobs of marker and routing clerk require a Reasoning Level of 2. See marker, DOT No. 209.587-034, 1991 WL 671802; routing clerk, DOT No. 222.687-022, 1991 WL 672133. A Reasoning Level of 2 requires the ability to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions" and "[d]eal with problems involving a few concrete variables in or from standardized situations." DOT , app. C, 1991 WL 688702.

The Court of Appeals for the Fourth Circuit has found that an apparent conflict exists between a limitation to "short, simple instructions" and a Reasoning Level of 2. Thomas v . Berryhill , 916 F.3d 307, 313-14 (4th Cir. 2019). However, the court recently held that there is no apparent conflict between "simple, routine repetitive tasks of unskilled work" and a Reasoning Level of 2. Lawrence v . Saul , 941 f.3d 140, 143-44 (4th Cir. 2019). The Fourth Circuit explained that "the key difference" is that, in Thomas , the RFC included a limitation to "short" instructions, and "'[s]hort' is inconsistent with 'detailed' because detail and length are highly correlated." Id . at 143. In Lawrence , the limitation to "simple, routine repetitive tasks" was not inconsistent with "Level 2's notions of 'detailed but uninvolved ... instructions' and tasks with 'a few [] variables.'" Id . Likewise, the court stated that "there is no conflict between 'simple' and 'uninvolved' instructions, as both connote instructions that 'are not complicated or intricate.'" Id . (quoting Moore v . Astrue , 623 F.3d 599, 604 (8th Cir. 2010)).

Here, in the RFC assessment and the hypothetical to the vocational expert, the ALJ limited the plaintiff to "no more than simple, routine, repetitive tasks, . . . . involving only simple work-related instructions and decisions . . . " (Tr. 18). Based upon Lawrence , no conflict exists between these limitations and the Reasoning Level of 2 required by the jobs of marker and routing clerk that were identified by the vocational expert and relied upon by the ALJ at step five.

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The third job identified by the vocational expert and relied upon by the ALJ at step five was mail clerk, which requires a Reasoning Level of 3. See mail clerk, DOT No. 209.687-026, 1991 WL 671813. A Reasoning Level of 3 requires the ability to "[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations." DOT , app. C, 1991 WL 688702. Assuming, arguendo , the limitations provided in the RFC assessment conflict with the requirements of a Reasoning Level of 3, any error would be harmless because of the other two jobs identified by the vocational expert. See Shinseki v . Sanders , 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination."); Mickles v . Shalala , 29 F.3d 918, 921 (4th Cir.1994) (finding the ALJ's error harmless where the ALJ would have reached the same result notwithstanding). With respect to those two jobs (marker and routing clerk), the vocational expert testified that there were approximately 304,000 marker jobs and approximately 41,000 routing clerk jobs in the national economy (Tr. 25, 55-56). The regulations provide that "[w]ork exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualifications." 20 C.F.R. § 404.1566(b). The marker and routing clerk positions represent a significant number of jobs in the national economy. See Guiton v . Colvin , 546 F. App'x 137, 142 (4th Cir. 2013) (holding that even if the vocational expert was overinclusive in citing the existence of 26,330 jobs in North Carolina and 825,000 jobs in the United States, "far smaller figures would suffice to satisfy the Commissioner's burden") (citing Hicks v . Califano , 600 F.2d 1048, 1015 n.2 (4th Cir. 1979) ("We do not think that the

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approximately 110 jobs testified to by the vocational expert constitute an insignificant number.")); McDowell v . Berryhill , C.A. No. 1:17-1253-PMD-SVH, 2018 WL 8216193, at *2 (D.S.C. July 2, 2018) (finding that 6,000 jobs in national economy was significant number) (citing Hicks , 600 F.2d at 1015 n.2). In light of the foregoing, the Commissioner met his burden at step five even if the mail clerk positions are not included.

The Commissioner's decision is based upon substantial evidence and is free of legal error. Now, therefore, based upon the foregoing,

IT IS RECOMMENDED that the Commissioner's decision be affirmed.

IT IS SO RECOMMENDED.

s/Kevin F. McDonald
United States Magistrate Judge

November 18, 2019
Greenville, South Carolina

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The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v . Colonial Life & Acc . Ins . Co ., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v . Arn , 474 U.S. 140 (1985); Wright v . Collins , 766 F.2d 841 (4th Cir. 1985); United States v . Schronce , 727 F.2d 91 (4th Cir. 1984).