South Carolina Cases April 17, 2020: Robinson v. Saul

Case Description

REPORT AND RECOMMENDATION

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 Civil Rule 73.02(B)(2)(a)(D.S.C.).

Plaintiff applied for Disability Insurance Benefits (DIB) on November 15, 2013 (protective filing date), alleging disability beginning on November 21, 2011, due to degenerative disc disease (DDD), arthritis, panic attacks, and fibromyalgia. (R.pp. 19, 180, 196). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on May 6, 2016. (R.pp. 42-86, 633-677). The ALJ thereafter denied Plaintiff's claim in a decision issued June 29, 2016 (R.pp. 19-36), and the Appeals Council denied review (R.pp. 1-6, 529-534). Plaintiff then filed a civil action in this Court (Civil Action Number 9:16-3944), and on July 28, 2017 the Commissioner's motion to remand was granted and the claim was remanded to the Commissioner for further proceedings. (R.pp. 540).

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On remand, the Appeals Council directed the ALJ to consolidate Plaintiff's subsequently filed claim to further evaluate Plaintiff's mental impairments in accordance with the special technique described in 20 C.F.R. § 404.1520a, to give further consideration to Plaintiff's maximum RFC, and to obtain evidence from a vocational expert (VE) to clarify the effect of the assessed limitation on Plaintiff's occupational base. (R.pp. 415, 545-548). A second hearing, at which a VE appeared and testified, was then held before the ALJ on April 24, 2018. (R.pp. 452-500). The ALJ thereafter again denied Plaintiff's claim in a decision issued on June 26, 2018. (R.pp. 415-444). The Appeals Council declined to assume jurisdiction, making the ALJ's June 2018 decision the final decision of the Commissioner. (R.pp. 403-408).

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

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);

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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)[Nothing 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).

Plaintiff has been treated by Dr. Robert B. Harris of Wellspring Family Practice since 2007. (R.p. 375). On November 21, 2011 (Plaintiff's alleged onset of disability date), Plaintiff reported to Dr. Harris that she had a pain level of 8 to 10, fatigue, muscle weakness, numbness/tingling, headache, and muscle pain. Dr. Harris diagnosed chronic back pain and fibromyalgia. In the "Abnormalities" section of his notes, Dr. Harris wrote that Plaintiff was unable to work daily secondary to pain and was unable to work 5 days a week. (R.pp. 303-304). On

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December 19, 2011, Dr. Harris again opined that Plaintiff was unable to work secondary to fatigue and chronic muscle pain. He referred Plaintiff for physical therapy; extended her work excuse through January 31, 2012; and continued her on Fluoxetine, Tramadol, and Gabapentin. (R.p. 305-306). On January 23, 2012, Plaintiff indicated that Gabapentin helped, but caused drowsiness. Dr. Harris noted she had 12 trigger points and prescribed Fluoxetine, Lisinopril, Tramadol, and Alprazolam. He thought that she would be unable to return to work for at least the next 3 months. (R.pp. 307-308).

Dr. James T. Halla, a rheumatologist, examined Plaintiff on January 25, 2012. Plaintiff reported taking care of her husband who had been out of work for 7 or 8 years due to heart problems. She said she had morning stiffness of 1 hour, 9 out of 10 pain, 3 out of 10 functioning, and 6 out of 10 fatigue. Plaintiff reported on and off aches and pains from her head to her buttocks. She said she had been diagnosed with degenerative joint disease 3 years prior for which injections had not helped, problems with movement above her shoulders, difficulty handling and holding things, and a history of panic attacks that came out of the "clear blue." On examination Plaintiff had normal walking time, normal muscle strength, 4 to maybe 6 tender points including the levator scapulae tendon insertions with pelvic and scapular tilts, a normal cervical spine examination, and passive hamstring stretches about 40 degrees. Dr. Halla ordered blood work and x-rays, and demonstrated shoulder shrugs and hamstring stretches for Plaintiff to do at home. (R.pp. 268-272).

A series of x-rays were taken on February 6, 2012, which showed no abnormalities of Plaintiff's bilateral hands, feet, and knees. Pelvic x-rays showed DDD at L4-5 and multiple pelvic phleboliths. Cervical spine x-rays showed presumed ankyloses/fusion of the articular facets at the C4-5 and C5-6 levels and presumed atherosclerosis of the bilateral cervical carotid arteries. Lumbar

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spine x-rays showed advanced DDD at the L4-5 level, mild to moderate DDD at L5-S1 with possible bony spinal encroachment due to disc space narrowing, and atherosclerosis. Thoracic spine x-rays showed mild multilevel DDD and subtle to mild levoscoliosis in her mid-thoracic spine. (R.pp. 287-293). Dr. Halla reviewed Plaintiff's x-rays with her on February 23, 2012, at which time Plaintiff's husband reported that Plaintiff's problems were a "roller coaster" with "good days and bad days." Plaintiff told Dr. Halla that she had morning stiffness of one hour, a pain level of 8 out of 10, functioning at 3 out of 10, and fatigue at 7 out of 10. (R.pp. 294-298).

On April 23, 2012, Plaintiff told Dr. Harris that she was not sleeping due to pain keeping her awake at night. Dr. Harris opined that Plaintiff was not able to work or stand for long periods due to pain. (R.pp. 311-312). On June 18, 2012, Dr. Harris's examination indicated that Plaintiff had back tenderness on palpation and muscle spasms. He diagnosed myalgias, seasonal pattern depression, and acute sinusitis. (R.pp. 313-314).

On September 17, 2012, Plaintiff reported that she did not think her medications were working, she hurt all over, and she had had several months of stomach bloating after eating. Dr. Harris ordered diagnostic tests, prescribed Alprazolam, and gave Plaintiff samples of Savella (for fibromyalgia) and Nexium (for abdominal pain). (R.pp. 315-316). However, on October 17, 2012, Plaintiff reported that she stopped taking Savella after two weeks due to nausea and headaches. She also said that she was without insurance, and that she was not using Gabapentin. Dr. Harris noted that Plaintiff had 15 out of 18 positive trigger points, and he adjusted her medications. (R.pp. 317-318).

On January 21, 2013, Plaintiff complained of worsening pain, anxiety, emotional lability, depression, sleep disturbance, and anhedonia. She also reported feeling tired or poorly,

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decreased libido, decreased ability to concentrate, initial insomnia, loss of interest in friends and family, and absence of motivation. Dr. Harris diagnosed myalgias, seasonal pattern depression, and tension headaches. He prescribed Mirtazapine, Lortab, and Alprazolam. (R.pp. 319-320). On April 18, 2013, Plaintiff reported that Hydrocodone only lasted three hours; she felt tired or poorly; she had muscle aches; and she had muscle spasms in her neck, upper back, and lower back. Examination showed positive cervical and thoracic paraspinal trigger points, but her total trigger points were unknown. (R.pp. 321-323).

On December 9, 2013, Dr. Harris completed a form at the Commissioner's request regarding Plaintiff's mental impairments. He indicated that she had depression, anxiety, and chronic pain which were being treated with Mirtazapine and Alprazolam which helped her mental condition. He had not recommended psychiatric care. Dr. Harris indicated that Plaintiff was appropriately oriented; had intact thought process; had appropriate thought content; had a worried, anxious, and flat mood and affect; and had adequate attention, concentration, and memory. He indicated that Plaintiff was capable of managing her funds. (R.p. 329).

On December 16, 2013, Plaintiff reported having muscle spasms in her neck, upper back, and lower back; muscle aches; emotional lability; sleep disturbances; anhedonia; and decreased concentration and motivation. Dr. Harris diagnosed anxiety, seasonal pattern depression fibromyalgia, and chronic pain syndrome, and refilled her medications. (R.pp. 339-340).

Dr. Lary R. Korn, D.O. performed an orthopedic consultative examination on February 18, 2014 (R.pp. 332-335). Dr. Korn noted that Plaintiff had a series of 3 spinal epidural injections but stated she had no relief, she had never had any low back surgeries, and that x-rays showed advanced degenerative disk changes at L4-5 with some marginal osteophytes at that level

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and mild-to-moderate degenerative disk changes at L5-S1 with "possible bony spinal encroachment." Plaintiff's 2012 x-rays of her extremities were negative and lab work was negative for sedimentation rate, CPK, rheumatoid factor, and ANA. Under illnesses, Dr. Korn included depression, panic, and atherosclerotic vascular disease. On examination Dr. Korn found that Plaintiff's mood was fairly normal, she communicated and comprehended well, she was alert and oriented times three, she seemed to have normal cognitive function, and she was well groomed. Her station and gait appeared unremarkable, she did not use an assistive device, her Waddell signs were a bit mixed, she was hypersensitive to touch, and she was tender at all locations. Her response was limited to axial loading and spinal rotation. Seated straight leg raise was negative bilaterally. Dr. Korn noted that Plaintiff had mild degenerative changes in her hands, was able to grip 65 pounds with both her right and left hand, and could pinch 15 pounds with each hand. He also noted that Plaintiff was sensitive to all soft tissue compression in her arms and legs.

Dr. Korn diagnosed DDD, lumbosacral spine; scoliosis; and chronic pain syndrome with associated narcotic and benzodiazepine habituation. He opined that in light of Plaintiff's x-ray findings involving her lumbosacral spine and abnormal curvature (scoliotic curvature with convexity to the left), she would have some limitations as to work duties that required prolonged bending, leaning, and stooping at the waist, and that Plaintiff would likely do better in jobs where she could maintain a good upright posture and perhaps get off her feet periodically through the day as her discomfort dictated. Dr. Korn further opined that Plaintiff would not do well with lots of heavy lifting and in particular was "quite limited in her ability to carry objects of significant weight; i.e., over 15 lbs for a significant duration or distance." He thought that the curvature of her spine would make this

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particularly difficult and also indicated she likely would not tolerate long car rides or professional driving well. (R.pp. 332-335).

On March 7, 2014, state agency psychologist Dr. Silvie Kendall opined that Plaintiff had a mild restriction in her activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace (CPP); and no repeated episodes of decompensation, each of extended duration. (R.pp. 91-92). That same day, state agency physician Dr. Dina Nabors opined that Plaintiff could perform light work with limitations to frequently climbing ramps/stairs, balancing, kneeling, and crawling; occasionally stooping and crawling; never climbing ladders/ropes/scaffolds; and avoidance of concentrated exposure to hazards (machinery, heights, etc.). (R.pp. 93-95).

On March 13, 2014, Plaintiff reported having a lot of pain in the popliteal fossa area, feeling tired or poorly, and having muscle spasms in her neck, upper back, and lower back. Dr. Harris noted positive cervical and thoracic paraspinal trigger points with an unknown total number of trigger points. He ordered blood work and prescribed Norco, Alprazolam, Linsinopril, Tramadol, and Tizanidine. (R.pp. 341-343).

On May 6, 2014, state agency physician Dr. Dale Van Slooten opined that Plaintiff was capable of performing light work with the same postural and environmental limitations found by Dr. Nabors. (R.pp. 107-109).

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At the request of Plaintiff's attorney, Dr. C. David Tollison, a psychologist, performed a consultative evaluation on May 19, 2014, during which he administered an abbreviated version of the Minnesota Multiphasic Personality Inventory (MMPI). Dr. Tollison found that Plaintiff was oriented to time, place, person, and situation; her associations were intact; her thought processes were intact, but a bit slow; her memory was grossly intact; her affect was blunted; and her mood was anxious. She was able to recite the days of the week and months of the year in reverse order, mentally calculate 100 minus 7, and spell "world" forward and backward. Dr. Tollison's diagnoses included major depressive disorder, generalized anxiety disorder, somatoform disorder, fibromyalgia, osteoarthritis, and lumbar DDD. He assessed Plaintiff with a Global Assessment of Functioning (GAF) score of 45. He further opined that Plaintiff was unable to perform activities within a schedule, maintain regular attendance, or complete tasks within a timely manner. It was also expected that she would require frequent and unscheduled rest periods. Based on the MMPI, Dr. Tollison thought that work pressures, stresses, and demand situations would be expected to result in deterioration both in psychological and physical functioning. However, he thought that Plaintiff would be capable of managing any awarded funds. (R.pp. 345-349).

On June 4, 2014, state agency psychologist Dr. Michael Neboschick opined that Plaintiff's mental impairments caused mild restrictions in her activities of daily living; mild

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difficulties in maintaining social functioning; moderate difficulties in maintaining CPP; and repeated episodes of decompensation, each of extended duration. He also opined that Plaintiff was able to understand and remember simple instructions, and to sustain attention for simple, structured tasks for periods of 2-hour segments. (R.pp. 104-106, 109-111).

On June 13, 2014, Dr. Harris noted that Plaintiff had positive cervical and thoracic paraspinal trigger points. He advised her on smoking cessation, discussed mental health treatment options, and refilled her prescriptions for Norco and Alprazolam. (R.pp. 352-354). On September 8, 2014, Plaintiff complained to Dr. Harris about worsening lower back pain which radiated down her leg. Lumbosacral examination revealed muscle spasms and pain elicited by motion. Plaintiff had positive straight-leg raise testing. (R.pp. 350-351).

On October 9, 2014, Plaintiff was seen upon Dr. Harris' referral for an initial visit at the Medical Group of the Carolinas - Orthopedic Surgery. Plaintiff was seen by Physician Assistant (PA) Andrew S. Donnan (who worked with Dr. Sanjitpal Gill). Plaintiff complained of pain in her legs that radiated to the back of her thighs and down to just below her knees and about neck pain, and of "crunching" when she turned her neck. On examination Plaintiff was found to have muscle strength of 5/5 (full) deltoid, 5-/5 biceps and triceps, 5-/5 wrist extension on the left and 4+/5 on the right, 5-/5 quadriceps, 4+/5 dorsiflexion of her feet bilaterally, and 4-/5 EHLs (extensor hallucis longus) bilaterally. PA Donnan noted that x-rays of Plaintiff's lumbar spine and cervical spine showed decreased disc space at L4-5 and L5-S1 and cervical spine degenerative changes with decreased disc space, and posterior and anterior spurring at 2-3, 3-4, and 4-5. It was also noted that Plaintiff had slight lateral curvature of the lumbar spine with apex to the right. MRIs were ordered. (R.pp. 361, 372-374). On November 17, 2014, Dr. Gill noted that Plaintiff had tenderness to

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palpation and limited range of motion. He reviewed Plaintiff's MRIs, and diagnosed L4-S1 stenosis with radiculopathy and bilateral symptoms and degeneration. He recommended a trial of injections and indicated that Plaintiff could be a candidate for decompression and fusion depending on the results of the injections. (R.pp. 357-360).

On December 1, 2014, Dr. Harris noted that Plaintiff had lumbosacral muscle spasms, pain with motion, and positive straight leg raise. (R.pp. 369-370). On February 25, 2015, Plaintiff complained of lower back pain radiating down into her legs. Dr. Harris noted that Plaintiff had lumbosacral muscle spasms, pain with motion, and positive straight leg raise. He reviewed and continued Plaintiff's medications. (R.pp. 368-369). On May 21, 2015, Dr. Harris again noted lumbosacral muscle spasms, pain with motion, and straight leg raise. (R.pp. 366-368). On August 18, 2015. Dr. Harris noted lumbosacral muscle spasms, positive straight leg raise, and an unknown total tender point count. He diagnosed lumbar neuritis, myalgia, and anxiety and adjusted Plaintiff's medications. (R.pp. 364-366).

After noting that Plaintiff had lumbosacral muscle spasms and positive straight leg raise, on September 30, 2015 Dr. Harris switched Plaintiff's medication from Norco to Percocet, prescribed Prednisone, and gave Plaintiff samples of Lyrica (Plaintiff's date last insured for DIB benefits). (R.pp. 363-364). On October 27,2 015, Plaintiff reported significant improvement in pain control with the change from Hydrocodone to Oxycodone and indicated some relief with Lyrica. Lumbosacral muscle spasms and positive straight leg raise was noted. Dr. Harris diagnosed

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idiopathic peripheral autonomic neuropathy and prescribed Percocet, Alprazolam, Tizanidine, and Mirtazapine. (R.pp. 362-363).

On December 21, 2015, Dr. Harris gave a recorded interview with Plaintiff's former attorney in which he provided opinions concerning Plaintiff's physical impairments and opined that Plaintiff had the severe mental impairments of anxiety and depression. (R.pp. 375-378).

On January 21, 2016, Dr. Tollison performed a follow-up psychiatric evaluation of Plaintiff. He administered another abbreviated MMPI and opined that this testing suggested that stress and routine pressures were likely to result in deterioration of Plaintiff's physical and psychological symptoms. Dr. Tollison assessed a GAF of 45 and diagnosed major depressive disorder, generalized anxiety disorder, pain disorder associated with both psychological factors and a general medical condition, fibromyalgia, osteoarthritis, DDD, and chronic pain syndrome. He opined that it was unlikely that Plaintiff could learn, remember, and carry out instructions repeatedly, or maintain concentration necessary for task completion within timely limits. He further opined that it was unlikely Plaintiff could complete a series of workdays without interruption from psychological symptoms. (R.pp. 380-383)

On January 26, 2016, Plaintiff complained of low back pain radiating down her leg, muscle spasms, and headaches. Dr. Harris noted lumbosacral muscle spasms, pain with motion, and positive straight leg raise. He diagnosed fibrositis. (R.pp. 400-402). On April 12, 2016 Plaintiff reported back pain, neuropathy pain in her feet, increased headaches, muscle spasms in her upper back and arms, and being unable to do simple tasks such as cooking because she was unable to stand long enough to prepare a dish. Examination showed positive cervical and thoracic paraspinal trigger

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points with unknown total trigger points. Dr. Harris continued Plaintiff's medications and counseled her in regard to chronic pain, depression, and anxiety. (R.pp. 384-385).

On August 10, 2016, Dr. Harris participated in a second recorded interview with Plaintiff's former attorney in which he explained his reasons for disagreeing with the ALJ's August 2016 decision. (R.pp. 8-12).

A review of the record shows that Plaintiff was fifty-one years old on the date she alleges she became disabled, and fifty-five years old on her date last insured for DIB benefits. She has a high school education, and past relevant work experience as a cashier and manager, retail store. (R.pp. 180, 197, 441, 442). In order to be considered "disabled" within the meaning of the Social Security Act (SSA), 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 a continuous period of not less than twelve (12) months.

After a review of the evidence and testimony in the case, the ALJ determined that Plaintiff suffers from the "severe" impairments of fibromyalgia/soft-tissue rheumatism; headaches; and lumbosacral, thoracic, and cervical degenerative disc disease (R.p. 418). However, the ALJ found that despite these impairments, Plaintiff retained the residual functional capacity (RFC) for a range of light work with limitations that she can never climb ropes, ladders, and scaffolds; must avoid concentrated exposure to hazards; can frequently climb ramps/stairs, balance, kneel, crouch, and

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perform overhead reaching; and can occasionally stoop and crawl. (R.p. 422). At step four, the ALJ obtained testimony from a vocational expert (VE) and found that Plaintiff was able to perform her past relevant work as a cashier (light and semiskilled as generally performed) and manager, retail store (light and skilled as generally performed), as generally performed in the national economy with these limitations, and thus was not disabled. (R.pp. 441-442). Alternatively, at step five, the ALJ found that Plaintiff could also perform other jobs existing in significant numbers in the national economy (identifying the representative jobs of sales clerk and cashier-checker), thereby again rendering her ineligible for disability benefits. (R.pp. 442-444).

Plaintiff asserts that in reaching this decision the ALJ erred by failing to find that she had a significant mental impairment, by failing to include her mental impairments and resulting limitations when assessing her combination of impairments and determining her RFC, by failing to properly evaluate the consultative opinions of Dr. Tollison, and by failing to properly evaluate her fibromyalgia pursuant to SSR 12-2p. After careful review and consideration of the evidence and arguments presented, the undersigned is constrained to agree with Plaintiff that the ALJ failed to properly evaluate whether she had a severe mental impairment and failed to properly determine her RFC, thereby requiring a remand of this case for additional review.

Plaintiff asserts that the record contains objective evidence that her mental impairments caused significant problems as shown by the fact that her treating physician Dr. Harris consistently prescribed medication for mental impairments, such as Alprazolam; that it was noted that she had objective signs of depression and anxiety; that Dr. Tollison (who examined Plaintiff twice) diagnosed major depressive disorder, generalized anxiety disorder, and somatoform disorder, and opined that Plaintiff would unlikely be able to perform activities within a schedule, maintain

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regular attendance, and complete tasks within a timely manner (and was expected to require frequent and unscheduled rest periods), and that work pressures, stresses, and demand situations were expected to result in deterioration in both psychological and physical functioning; that state agency psychologist Dr. Neboschick indicated that Plaintiff had moderate limitations in CPP due to anxiety and affective disorders; and that when the ALJ evaluated this same evidence in the first decision he determined that Plaintiff had severe depression, anxiety, and somatoform disorder. See (R.p. 21). Plaintiff asserts that all of the above shows that there is not substantial evidence to support the ALJ's conclusion that she did not have a severe mental impairment.

The undersigned agrees that the ALJ did not properly evaluate all of the evidence in determining at step two that Plaintiff had no severe mental impairment. Dr. Harris's treatment notes indicate objective signs of depression despite Plaintiff taking medication for this impairment. (R.pp. 319, 329, 339, 726). See Craig v. Chater , 76 F.3d 585, 589-590 (4 Cir. 1996) [Noting importance of treating physician opinion]. Dr. Tollison noted that Plaintiff had a blunted affect and anxious mood and opined that based on his evaluation, review of medical records, and psychological testing, that Plaintiff was unlikely to be able to perform activities within a schedule, maintain regular

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attendance, and complete tasks within a timely manner (R.pp. 348, 382). See Richardson v. Perales , 402 U.S. 389, 408 (1971) [Assessments of examining physician may constitute substantial evidence in support of finding]. Further, despite previously finding that Plaintiff had moderate limitations in CPP, the ALJ determined on remand that Plaintiff had only mild limitations in CPP. No explanation is given for this change, despite the ALJ citing to essentially the same record as support for his (different) findings. (R.pp. 23, 419). See Stephens v. Heckler , 766 F.2d 284,287 (7 Cir. 1985) [ALJ's discussion of the evidence must be sufficient to "assure [the Court] that [he] considered the importance evidence . . . [and to enable the Court] to trace the path of [his] reasoning"]. Moreover, in making this new determination, the ALJ did not properly explain his consideration of state agency psychologist Dr. Neboschick's opinion that Plaintiff had moderate limitations in CPP, and Dr. Neboschick's conclusion that she was only able to sustain attention for simple, structured tasks for periods of two hour segments. (R.pp. 105, 110-111). While it may be that, in making his determination that Plaintiff had only a mild limitation in CPP and thus did not have a severe mental

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impairment, the ALJ discounted the opinion of Dr. Neboschick, as later in the decision the ALJ discusses Dr. Neboshick's opinion and states "I give little weight to the [opinion] because evidence received at the hearing level shows that the claimant did not have severe mental impairments" (R.p. 440), the evidence he cites for support of this finding is essentially the same evidence the ALJ considered in finding in his previous decision that Dr. Neboschick's opinion, and in particular his opinion that Plaintiff had a moderate limitation in CPP, was entitled to great weight. See (R.pp. 32-33). No plausible or cogent explanation is given for this change in the ALJ's findings. Indeed, even in the ALJ's current opinion, he states that he gave "great weight to opinions of [the] State Agency psychological consultants (which includes Dr. Neboschick) because the opinions are consistent with the record as a whole" (R.p. 431). Thus, the ALJ appears to give Dr. Neboshick's opinion great weight in one place, and little weight in another. Of course, Dr. Kendall opined that Plaintiff had only mild limitations in CPP. However, the ALJ does not explain why that opinion provides substantial evidence for his conclusion as opposed to the opinion of Dr. Neboshick (if that is what he found), since Dr. Neboshick was able to review Dr. Tollison's May 2014 opinion in giving his opinion, while Dr. Kendall rendered her opinion prior to Dr. Tollison's evaluation (and thus did not have Dr. Tollison's opinion to review), a fact specifically cited by the ALJ in his previous decision for why Dr. Kendall's finding of only mild COO was not accepted. (R.pp. 32-33).

Finally, a step two error may be harmless where the ALJ finds other severe impairments (which the ALJ did in this case) and considers all of Plaintiff's impairments at later steps. See , e.g. , Lewis v. Astrue , 498 F.3d 909, 911 (9th Cir. 2007); Maziarz v. Sec'y of Health & Human Servs. , 837 F.2d 240, 244 (6th Cir. 1987); Washington v. Astrue , 698 F.Supp.2d 562 (D.S.C. 2010). However, since the decision fails to show that the ALJ fully considered Plaintiff's mental

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impairments in determining Plaintiff's RFC, it cannot be determined from a plain reading of the decision whether the ALJ properly considered Plaintiff's mental impairments in formulating Plaintiff's RFC, which is defined as "the most [a claimant] can still do despite [the claimant's] limitations." 20 C.F.R. § 404.1545(a)(1). In SSR 96-8p, RFC is defined as a function-by-function assessment of an individual's physical and mental capacities to do sustained, work-related physical and mental activities in a work setting on a regular and continuing basis of eight hours per day, five days per week, or the equivalent; SSR 96-8p, 1996 WL 374184; and "[r]emand may be appropriate ... where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Mascio v. Colvin , 780 F.3d 632, 636 (4th Cir. 2015), citing Cichocki v. Astrue , 729 F.3d 172, 177 (2d Cir. 2013); see also , e.g. , Neely v. Comm'r of Soc. Sec. , No. 14-01109, 2015 WL 3536690, at *12 (D.S.C. June 4, 2015); Washington v. Colvin , No. 14-2415, 2015 WL 3868063, at *29 (D.S.C. June 23, 2015).

Here, the ALJ discussed the medical evidence in the RFC section of his decision, but did not fully consider Plaintiff's mental limitations in combination with all of her impairments in determining Plaintiff's RFC. He discusses Plaintiff's physical RFC and states he considered her combination of impairments in finding nonexertional limitations, but there is no indication that he considered Plaintiff's mental impairments, even as nonsevere impairments, other than his earlier conclusory finding that Plaintiff's mental impairments "did not cause more than minimal limitation" in Plaintiff's ability to perform basic mental work activities. (R.pp. 418, 420, 423). Thus, it cannot be said that the ALJ built "an accurate and logical bridge from the evidence to his conclusion." Monroe v. Colvin , 826 F.3d 176, 189 (4th Cir. 2016)(quoting Clifford v. Apfel , 227 F.3d 863, 872

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(7th Cir. 2000)). As noted by the Fourth Circuit, "the ALJ must both identify evidence that supports his conclusion and build an accurate and logical bridge from that evidence to his conclusion." Woods v. Berryhill , 888 F.3d 686, 694 (4th Cir. 2018) (brackets and internal quotation marks omitted); see Mascio , 780 F.3d at 637 [a reviewing court cannot be "left to guess about how the ALJ arrived at his conclusions"]; see also Monroe v. Colvin , 826 F.3d 176, 188 (4th Cir. 2016)[stating remand may be appropriate where "inadequacies in the ALJ's analysis frustrate meaningful review."]. The ALJ failed to do so in this case for the reasons already discussed.

Therefore, this action should be remanded for the ALJ to properly determine and explain his decision as to whether Plaintiff has a severe mental impairment, and to evaluate her RFC, in light of all the evidence and applicable law. With respect to the remainder of Plaintiff's claims of error, the ALJ will be able to reconsider and re-evaluate the evidence in toto as part of the reconsideration of this claim. Hancock v. Barnhart , 206 F.Supp.2d 757, 763-764 (W.D.Va. 2002)[On remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo ].

Based on the foregoing, and pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the decision of the Commissioner with remand in Social Security actions under Sentence Four of 42 U.S.C. § 405(g), it is recommended that the decision of the Commissioner be reversed , and that this case be remanded to the Commissioner to fully consider Plaintiff's mental impairments and RFC, and for such further administrative action as is deemed necessary and appropriate. See Shalala v. Schaefer , 509 U.S. 292 (1993).

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The parties are referred to the notice page attached hereto.

/s/ _________
Bristow Marchant
United States Magistrate Judge

April 17, 2020
Charleston, 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).