Costello v. Commissioner of Social Security Administration

Filing 15

ORDER reversing the decision of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and remanding the action for further administrative proceedings. Signed by Magistrate Judge Shiva V. Hodges on 04/30/2018. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Charles David Costello,
Plaintiff,
vs.
Nancy A. Berryhill, Acting
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:17-2430-SVH

ORDER

This appeal from a denial of social security benefits is before the court
for a final order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B)
(D.S.C.), and the order of the Honorable Donald C. Coggins, Jr., United
States District Judge, dated February 12, 2018. [ECF No. 11]. The parties
consented to the undersigned United States Magistrate Judge’s disposition of
this case, with any appeal directly to the Fourth Circuit Court of Appeals.
[ECF No. 10].
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social
Security Act (“the Act”) to obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying the claim for
disability insurance benefits (“DIB”). The two issues before the court are
whether the Commissioner’s findings of fact are supported by substantial
evidence and whether she applied the proper legal standards. For the reasons

that follow, the court remands the Commissioner’s decision for further
proceedings as set forth herein.
I.

Relevant Background
A.

Procedural History

On July 14, 2014, Plaintiff protectively filed an application for DIB in
which he alleged his disability began on October 21, 2013. Tr. at 75 and 168–
69. His application was denied initially and upon reconsideration. Tr. at 98–
101 and 106–11. On April 19, 2017, Plaintiff had a hearing before
Administrative Law Judge (“ALJ”) John T. Molleur. Tr. at 38–59 (Hr’g Tr.).
The ALJ issued an unfavorable decision on May 24, 2017, finding that
Plaintiff was not disabled within the meaning of the Act. Tr. at 17–37.
Subsequently, the Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision the final decision of the Commissioner for
purposes of judicial review. Tr. at 1–5. Thereafter, Plaintiff brought this
action seeking judicial review of the Commissioner’s decision in a complaint
filed on September 12, 2017. [ECF No. 1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 50 years old at the time of the hearing. Tr. at 42. He
obtained a bachelor’s degree. Tr. at 44. His past relevant work (“PRW”) was

2

as a merchandise driver. Tr. at 55. He alleges he has been unable to work
since October 21, 2013. Tr. at 42.
2.

Medical History

Plaintiff underwent resection of a pineal tumor in 2001 and subsequent
shunt placement and revisions in 2001, 2006, and 2008. Tr. at 275.
On October 21, 2013, a computed tomography (“CT”) scan showed
enlargement of the pineal mass in comparison to previous studies. Tr. at
1124.
On October 23, 2013, Plaintiff presented to Michael Cho, M.D. (“Dr.
Cho”), with complaints of eye strain and posterior neck pain. Tr. at 1122. Dr.
Cho referred Plaintiff for magnetic resonance imaging (“MRI”) of the brain.
Tr. at 1123.
Plaintiff continued to report binocular vision dysfunction on October 31,
2013. Tr. at 1116. Dr. Cho indicated the MRI showed slight enlargement of
the mass and an area of enhancement, as well as slightly increased edema in
the cerebellar vermian region. Id. He assessed obstructive hydrocephalus,
prescribed Dexamethasone and Pepcid, and referred Plaintiff to an
ophthalmologist. Id. He indicated Plaintiff might require decompression if his
symptoms failed to respond to medication. Id.
On December 10, 2013, Plaintiff reported improved vision, but
continued to complain of drainage from his left ear, intermittent headaches,
3

and visual problems. Tr. at 1113. Dr. Cho stated Plaintiff’s symptoms were
likely caused by tumor enlargement. Id. He indicated Plaintiff’s symptoms
were “not terrible,” but likely prevented him from working. Tr. at 1114. He
referred Plaintiff to Manoj Abraham, M.D. (“Dr. Abraham”), for evaluation of
left ear discharge. Id.
In January 2014, Plaintiff developed worsening memory, a cough while
eating, and mild unsteadiness. Tr. at 297. He presented to Donato Pacione,
M.D. (“Dr. Pacione”), on February 7, 2014, for further evaluation of the pineal
tumor. Tr. at 1282. Dr. Pacione noted upward gaze palsy and limited bilateral
nasal gaze, but indicated Plaintiff was able to recall three of three items after
five minutes and follow complex commands. Id. He recommended surgery and
explained its risks. Tr. at 1283. Plaintiff opted to proceed with surgery. Id.
Plaintiff presented to Chris Morrison, Ph.D. (“Dr. Morrison”), for a
neuropsychological consultation as part of a preoperative workup on
February 20, 2014. Tr. at 275. Dr. Morrison observed Plaintiff to have specific
deficits in verbal production, accurate perception and reproduction of spatial
relationships, and consistent attentional engagement. Tr. at 278. He
indicated Plaintiff’s processing speed was “particularly slowed under higher
cognitive demands.” Id. He noted Plaintiff’s verbal and visual memory were
on the low end of the average range. Id. He stated Plaintiff had normal
capacity for abstract reasoning and knowledge of facts and word meanings.
4

Id. He indicated Plaintiff had “somewhat limited” awareness of his deficits.
Id. He stated it was possible that Plaintiff’s cognitive deficits might improve
following lesion resection. Id.
Plaintiff was admitted to New York University Hospital for surgical
resection of a pineal mass on February 24, 2014. Tr. at 297. On February 25,
2014, he underwent left-sided occipital craniotomy for an occipital
transtentorial approach to resection of the tumor. Tr. at 311. He participated
in postoperative occupational and physical therapy. Tr. at 298. A final
pathology report revealed that the tumor was a pilocystic astrocytoma. Tr. at
411. On February 28, 2014, Dr. Pacione indicated that Plaintiff would be
unable to return to work for at least three months. Tr. at 1106. Plaintiff was
discharged to a rehabilitation facility on March 3, 2014. Tr. at 297.
Plaintiff underwent inpatient rehabilitation from March 3 through
March 14, 2014. Tr. at 411. He participated in three hours of occupational
and physical therapy each day. Tr. at 422–23. Jaime Levine, D.O. (“Dr.
Levine”), noted that Plaintiff made significant gains in the areas of functional
mobility, endurance, balance, cognition, memory, vision, safety awareness,
and activities of daily living (“ADLs”)/self-care independence. Id. At the time
of discharge, Plaintiff was able to recall two of three objects after one- and
five-minute delays and had right homonymous hemianopsia, but no other

5

neurological deficits. Tr. at 412. Dr. Levine discharged Plaintiff to his home
with family supervision and home services. Tr. at 413.
On March 19, 2014, physical therapist John Gillinder, MSPT (“Mr.
Gillinder”), noted that Plaintiff was experiencing short-term memory loss
that necessitated use of written exercises and repetitive demonstration. Tr. at
1172. Occupational therapist Laura McCabe, OTR (“Ms. McCabe”), indicated
Plaintiff’s short-term memory limitations and visual field cuts would present
barriers to learning. Tr. at 1195.
That same day, Plaintiff presented to Christopher T. Whipple, MS
(“Mr. Whipple”), for a cognitive-communicative examination. Tr. at 1211. Mr.
Whipple noted mild-to-moderate cognitive-linguistic deficits characterized by
impaired word retrieval and immediate, short-term, and prospective memory
deficits. Id. He indicated Plaintiff was motivated to improve his cognitive
functioning and was using strategies for memory recall with repetition and
cueing. Id. He recommended that Plaintiff continue to use memory
techniques and cognitive-based applications on a computer tablet. Id. Mr.
Whipple assessed Plaintiff as having a mild reduction in speaking efficiency,
requiring extra time with cueing, and demonstrating 60 percent accuracy. Id.
He stated Plaintiff’s goal was to improve to 90 percent accuracy and only mild
reduction in efficiency and extra time required without cueing within one
month. Id. He indicated Plaintiff required moderate cueing with new learning
6

and additional effort without cueing and had 75 percent memory accuracy.
Tr. at 1212. He noted that Plaintiff was unable to reliably process multi-step
instructions without repetition or writing down key words and had trouble
recalling errands and tasks without a to-do list and occasional reminders. Id.
On March 24, 2014, Mohammad Fouladvand, M.D. (“Dr. Fouladvand”),
observed right hemi-field defect and dense right homonymous hemianopsia
with sparing in the central macular area. Tr. at 1074. He recommended
occupational and vision therapy to improve depth perception and field defect.
Tr. at 1163.
That same day, Plaintiff followed up with Dr. Pacione. Tr. at 1168. He
reported that he had been doing well and that his vision was improving. Id.
Dr. Pacione described Plaintiff as being awake, oriented times three, and able
to follow complex commands. Id.
On April 8, 2014, Plaintiff followed up with his primary care physician,
Michael Gaesser, M.D. (“Dr. Gaesser”), regarding hypertension and
hyperlipidemia. Tr. at 1249. He reported transient weakness, visual
disturbance, muscular weakness, incoordination, and memory difficulties. Tr.
at 1250. Dr. Gaesser instructed Plaintiff to continue to take his medications,
to reduce his caloric intake, and to maintain a low-salt diet. Tr. at 1251.
Mr. Whipple discharged Plaintiff from speech and language therapy on
May 2, 2014, after he demonstrated good ability to use reminders and
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organization-based applications, functional memory skills for rehearsal and
retrieval of functional information, and the ability to carry out techniques to
increase his memory and attention skills on his own. Tr. at 1218–19. Mr.
Whipple noted that Plaintiff continued to have mild cognitive-linguistic
deficits characterized by impaired immediate and prospective memory and
occasional difficulty with word retrieval. Tr. at 1221. He indicated Plaintiff
spoke with 90 percent accuracy and had only a mild reduction in efficiency or
extra time required without cueing. Id. He stated Plaintiff’s memory was 75
percent accurate; that he required additional effort with cueing for new
learning; and that he was independent with strategies for lengthy and
complex information in routine situations. Id. He indicated Plaintiff
“[d]emonstrate[d] adequate memory/reasoning/judgment to perform most
activities in a supervised environment.” Id.
On June 23, 2014, Dr. Pacione noted that Plaintiff had completed his
outpatient rehabilitation program. Tr. at 1169. He stated Plaintiff’s field cut
had improved, his eye movement had normalized, and his vision had
improved, but remained blurry. Id. He described Plaintiff as being awake,
alert, oriented times three, and able to follow complex commands. Id. He
indicated an MRI showed no evidence of residual or recurrent tumor. Id.
Plaintiff returned to Mr. Whipple for additional therapy. Tr. at 1222.
On August 19, 2014, Mr. Whipple noted that Plaintiff’s memory was at least
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one percent, but less than 20 percent impaired. Id. He stated Plaintiff was
able to recall or use external aids and strategies for complex information and
planning complex future events. Id. He noted that Plaintiff occasionally
required minimal cues when he experienced breakdowns in the use of
memory strategies and that the breakdowns might occasionally interfere
with his functioning in vocational and other activities. Id.
On September 8, 2014, Dr. Pacione observed Plaintiff to be awake,
alert, oriented times three, and able to follow complex commands. Tr. at
1276. He indicated an MRI of Plaintiff’s brain showed stable postsurgical
changes and no new areas of enhancement to suggest recurrence. Id. He
reprogrammed Plaintiff’s shunt and instructed him to follow up for a new
MRI in six months. Id.
Later that day, Plaintiff reported improved vision and eye movement
and denied headaches and diplopia. Tr. at 1269. Dr. Fouladvand observed
Plaintiff to have intact speech, language, memory, and general knowledge.
Tr. at 1271. He stated Plaintiff had no papilledema, improved eye movement,
nearly normal vertical and horizontal gaze, and no diplopia in primary or
lateral gaze. Id. He indicated Plaintiff continued to have right homonymous
hemianopia. Id.
Plaintiff

followed

up

with

Dr.

Morrison

for

a

postoperative

neuropsychological consultation on September 11, 2014. Tr. at 280. He
9

reported short-term memory problems, poor judgment, poor problem
solving/reasoning, and visual impairment. Id. He stated he had noticed a
“shorter temper,” had felt less patient and more disinhibited, and had been
saying inappropriate things. Id. Dr. Morrison noted that Plaintiff laughed
often and inappropriately; had an affect that was inappropriate or
incongruent to the situation at times; was very talkative and perseverative;
appeared anxious; and acted disinhibited and impulsive at times. Tr. at 281.
In attention and processing speed testing, Dr. Morrison observed Plaintiff to
have borderline impaired digit span, low average visual search and attention,
normal visual scanning, average five-digit working memory, and superior
eight-digit sequencing ability. Tr. at 282. Plaintiff’s ability to perform
executive functions of set shifting, problem solving, and planning were intact,
but he remained very slow on select verbal initiation tasks. Id. His ability to
retrieve words was weak and unchanged from preoperative testing. Id. His
visuoperception and visuoconstructive abilities remained poor. Id. His visual
memory was in the low-average range, but he did better when verbal
information was presented with structure. Id. Plaintiff denied significant
symptoms of affective distress, but Dr. Morrison observed mild dysphoria to
be present. Tr. at 283. Dr. Morrison stated the following:
Mr. Costello’s intact performance on most higher-order cognitive
measures in our well-controlled testing environment suggests the
potential for job success in the future, as well as the possibility of
additional cognitive gains. However, his job success in the future
10

will depend on the level of structure and routine offered by the
work setting.
Tr. at 283. He stated Plaintiff may benefit from structure and reminders. Tr.
at 284. He advised Plaintiff to participate in cognitive rehabilitation exercises
as directed and to consider joining a support group. Id.
Plaintiff presented to Merhi Eye Clinic on October 31, 2014. Tr. at
1303. He complained of visual field loss and unstable visual acuity. Tr. at
1304. He indicated he had a driver’s license, but had chosen not to drive
during the prior year. Id. Plaintiff’s visual acuity was 20/25 in both eyes with
best correction. Tr. at 1306. His near visual acuity was 20/30. Id. His
confrontation visual field was abnormal. Id. Eva Merhi, O.D. (“Dr. Merhi”),
assessed visual field defect/homonymous hemianopsia on the right. Tr. at
1307. She stated Plaintiff’s “fluctuating visual acuities & transient diplopia”
made him “a poor candidate for employment” at that time. Id.
State agency medical consultant Katrina B. Doig, M.D. (“Dr. Doig”),
reviewed the record and completed a physical residual functional capacity
(“RFC”) assessment on November 24, 2014. Tr. at 68–71. She indicated
Plaintiff was limited as follows: occasionally lifting and/or carrying 50
pounds; frequently lifting and/or carrying 25 pounds; standing and/or
walking for about six hours in an eight-hour workday; sitting for about six
hours in an eight-hour workday; occasionally climbing ramps and stairs;
never climbing ladders, ropes, or scaffolds; and avoiding even moderate
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exposure to hazards and unprotected heights. Id. A second state agency
medical consultant, Stephen Burge, M.D. (“Dr. Burge”), assessed a similar
physical RFC on May 22, 2015, but found that Plaintiff could occasionally
climb ladders, ropes, and scaffolds. Tr. at 94.
On November 25, 2014, state agency psychological consultant Kendra
Werden, Ph.D. (“Dr. Werden”), reviewed the evidence and completed a
psychiatric review technique (“PRT”). Tr. at 66–67. She considered Listings
12.02 for organic mental disorders and 12.06 for anxiety-related disorders
and found that Plaintiff had no episodes of decompensation, mild restriction
of activities of daily living (“ADLs”), moderate difficulties in maintaining
social functioning, and moderate difficulties in maintaining concentration,
persistence, or pace. Id. Dr. Werden prepared a mental RFC assessment. Tr.
at 71–73. She stated Plaintiff was moderately limited in his abilities to
understand and remember detailed instructions; to work in coordination with
or proximity to others without being distracted by them; to interact
appropriately with the general public; and to get along with coworkers or
peers without distracting them or exhibiting behavioral extremes. Id. She
stated the following:
Due to symptoms from mental impairments addressed in the SSA
2506, the claimant would be expected to have difficulty
understanding, remembering, and carrying out detailed
instructions. He is capable of performing simple tasks for at least
two hour periods of time. He would be expected to occasionally
miss a day of work secondary to his symptoms. He is expected to
12

have difficulty working in close proximity or coordination with coworkers. He would be best suited for a job which does not require
continuous interaction with the general public. He is capable of
single, repetitive tasks without special supervision. He can
attend work regularly and accept supervisory feedback. He would
be best suited for work environments that he can receive verbal
instructions with visual cues when learning a new task.
Tr. at 72.
Plaintiff presented to Edward R. McCarthy, M.D. (“Dr. McCarthy”), to
establish care on December 2, 2014. Tr. at 1320. He reported difficulty with
memory, word retrieval, and right field vision cuts. Id. Dr. McCarthy noted
no abnormalities on physical examination. Tr. at 1321–22.
Plaintiff presented to Timothy W. Loebs, MA, LPC (“Mr. Loebs”), for
counseling sessions on December 9, 16, 23, and 30, 2014; January 13, 2015;
February 3 and 17, 2014; March 3, 17, and 31, 2015; April 14 and 28, 2015;
May 19 and 26, 2015; June 2, 9, and 16, 2015; July 9, 21, and 25 2015;
August 18, 2015; and November 16, 2015.1 Tr. at 1338–47. Mr. Loebs
described Plaintiff as having a flat affect and some anxiety. Id. Plaintiff
reported anger, relationship stressors, and memory problems. Id. He engaged
in exercises to improve his memory and cope with stress. Id.
On May 8, 2015, Plaintiff complained of intermittent tremors in his
bilateral pinkies and cognitive slowing. Tr. at 1329. Jeff A. Benjamin, D.O.
(“Dr. Benjamin”), reviewed prior MRIs of Plaintiff’s brain that showed severe
Mr. Loebs’s notes are difficult to read because they are faint and
handwritten. See Tr. at 1338–47.
1

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white matter changes. Tr. at 1330. He observed Plaintiff to be oriented to
person, place, and time; to demonstrate fluent speech; to have no evidence of
cortical defects; and to be a “little bit slow” from a cognitive perspective. Id.
He stated tremors were not evident during the exam and that Plaintiff
exhibited no features of Parkinson’s disease. Id. He encouraged Plaintiff to
start Aricept for cognitive changes, but Plaintiff declined to do so. Id. He
instructed Plaintiff to take omega vitamins. Id.
Plaintiff presented to Douglas Ritz, Ph.D. (“Dr. Ritz”), for a consultative
mental status examination on June 10, 2015. Tr. at 1325. He reported
problems with short-term memory, prolonged mental processing, difficulty
with word finding, slowed calculation ability, and difficulty maintaining
concentration. Id. He stated he felt more angry and acted out verbally more
often than he had prior to his most recent brain surgery. Id. He endorsed
hand tremor, ringing in the ears, and right field vision cuts. Id. Dr. Ritz
observed that Plaintiff was oriented to time, place, and person, but was
unable to recall the complete address to the office. Tr. at 1327. He stated
Plaintiff was able to recall one of three words after a few minutes. Id. He
indicated Plaintiff was able to perform serial sevens “quite easily” and could
repeat a nine-word sentence and point to figures in a directed order. Id.
Plaintiff obtained 27 of 30 points on the Mini-Mental State Examination
(“MMSE”), which Dr. Ritz considered to be in the unimpaired range. Id. Dr.
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Ritz assessed Plaintiff’s cognitive skills as average. Id. He stated Plaintiff
had described difficulties that were consistent with mild neurocognitive
disorder, but that he could not obtain sufficient evidence from testing to
confirm that diagnosis. Id. He noted that Plaintiff was able to consistently
care for his personal grooming, perform chores slowly, interact socially, avoid
physical danger, and handle funds. Id. He opined that Plaintiff was able to
“handle an unskilled work setting.” Id.
On July 8, 2015, a second state agency psychological consultant, Lee
Coleman, Ph.D. (“Dr. Coleman”), completed a PRT. Tr. at 89–90. He
considered Listing 12.05 and found that Plaintiff had no episodes of
decompensation, mild restriction of ADLs, mild difficulties in maintaining
social functioning, and mild difficulties in maintaining concentration,
persistence, or pace. Id. He determined that Plaintiff had mental symptoms,
but that his limitations did not preclude work-related activities. Tr. at 90.
On September 30, 2015, Plaintiff indicated that he was doing well from
a cognitive perspective. Tr. at 1332. He reported visual problems and
indicated his tremors were unchanged. Id. He expressed a desire to resume
driving. Id. Dr. Benjamin stated he could not restrict Plaintiff from operating
a motor vehicle, but that it was ultimately up to his eye doctors. Tr. at 1333.
On April 13, 2016, an MRI of Plaintiff’s brain showed stable
postoperative changes and unchanged pattern of signal abnormality and
15

enhancement in the region of the tumor. Tr. at 1356. David Goltra, M.D. (“Dr.
Goltra”), noted a pattern of diffuse dural enhancement and partial collapse of
the right lateral ventricular system that might suggest an overshunting
phenomena. Id.
On April 14, 2016, Joseph T. Cheatle, M.D. (“Dr. Cheatle”),
reprogrammed Plaintiff’s shunt and instructed him to follow up for another
MRI in 18 months. Tr. at 1359.
On October 20, 2016, Plaintiff denied changes to his memory. Tr. at
1360. Dr. Benjamin noted slowed cognition on physical examination. Tr. at
1361. He observed no abnormalities on neurological examination and stated
Plaintiff had intact orientation, fluent speech, appropriate mood, and good
attention/recall. Tr. at 1361. He assessed memory loss from multiple traumas
to the brain and prescribed Namenda. Tr. at 1362.
Plaintiff presented to Carl F. Sloan, M.D. (“Dr. Sloan”), for a visual
examination on December 22, 2016. Tr. at 1363–67. Visual field testing
revealed a right-sided defect in both eyes. Tr. at 1366. Plaintiff’s vision was
stable as compared to October 2015. Tr. at 1367. Dr. Sloan stated no
treatment was indicated. Id.
On February 23, 2017, Plaintiff presented to George Sandoz, M.D. (“Dr.
Sandoz”), with complaints of bilateral vision problems, memory problems,
traumatic brain injury, and tremors. Tr. at 1399. He reported dizziness. Tr.
16

at 1400. Dr. Sandoz observed Plaintiff to be oriented to person, to have
appropriate mood/affect, to be able to appropriately name objects, to have
intact recent memory, and to have a fund of knowledge for current events. Id.
Plaintiff reported to Robert Jansen, M.D. (“Dr. Jansen”), on April 7,
2017, to discuss the results of a prostate ultrasound and needle biopsy. Tr. at
1413. Dr. Jansen informed Plaintiff that the testing was positive for
adenocarcinoma of the prostate. Tr. at 1415. He informed Plaintiff of the
various treatment options, and Plaintiff indicated a desire to proceed with
surgery. Tr. at 1413–15.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on April 19, 2017, Plaintiff testified that he lived alone.
Tr. at 43. He indicated he had recently been diagnosed with prostate cancer,
but had not yet started treatment. Tr. at 45.
Plaintiff testified that he had been a driver for most of his career. Id.
He indicated that after his brain tumor returned in 2013, his neurosurgeon
declined to authorize him to drive a commercial vehicle. Id. He stated he was
subsequently cleared to drive a regular motor vehicle. Id.
Plaintiff testified that his brain tumor had caused him to lose
peripheral vision and to experience tremors. Tr. at 48. He indicated he had
17

problems with his memory. Id. He stated he had difficulty sitting through an
entire football or baseball game. Tr. at 51. He indicated he likely lacked the
ability to sit and focus on something for two hours without a break. Tr. at 52.
He endorsed sleep disturbance and mood swings. Tr. at 50.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Arthur Schmitt, Ph.D., reviewed the record
and testified at the hearing. Tr. at 54–58. The VE categorized Plaintiff’s PRW
as a merchandise driver, Dictionary of Occupational Titles (“DOT”) number
292.353-010, as requiring medium exertion and having a specific vocational
preparation (“SVP”) of three. Tr. at 55. The ALJ described a hypothetical
individual of Plaintiff’s vocational profile who could perform work at the
medium exertional level with the following additional restrictions: no
climbing of ladders, ropes, or scaffolds; occasionally climbing ramps and
stairs; no operation of a motorized vehicle; no close proximity to mobile
machinery; no work at unprotected heights; no more than occasional and
basic decision making or changes in work setting; no exposure to hazards;
and no work that requires scanning a wide visual field. Tr. at 55–56. The VE
testified that the hypothetical individual would be unable to perform
Plaintiff’s PRW. Tr. at 56. The ALJ asked whether there were any other jobs
that the hypothetical person could perform. Id. The VE identified medium
jobs with an SVP of two as a packer, DOT number 920.687-134, with 19,008
18

positions in the state economy and 360,000 positions in the national economy;
a janitor, DOT number 381.687-018, with 72,600 positions in the state
economy and 2,900,000 positions in the national economy; and a laundry
operator, DOT number 361.685-014, with 3,190 positions in the state
economy and 211,000 positions in the national economy. Id.
The ALJ asked the VE to consider an individual who was limited to
light work with the additional restrictions presented in the prior question. Id.
He asked if there would be other jobs that the individual would be able to
perform. Id. The VE identified light jobs with an SVP of two as a storage
facility clerk, DOT number 295.367-026, with 4,400 positions in the state
economy and 416,000 positions in the national economy; a ticket taker, DOT
number 344.687-010, with 1,250 positions in the state economy and 104,000
positions in the national economy; and a coupon-redemption clerk, DOT
number 290.477-010, with 200 positions in the state economy and 14,700
positions in the national economy. Tr. at 56–57.
The ALJ next asked the VE to consider that the individual would be
limited to work requiring no more than occasional and basic decision making
or changes in the work setting. Tr. at 57. He questioned whether this
restriction would limit the individual to unskilled work. Id. The VE confirmed
that it would. Id.

19

The ALJ asked the VE to consider the restrictions in the second
hypothetical question, but to further consider that, as a result of difficulties
with memory, the individual would require remediation approximately once a
month. Id. The VE indicated the individual would be able to perform the jobs
identified in response to the second question. Id.
The ALJ asked the VE to consider that, as result of memory lapses, the
individual would be 15 to 20 percent slower than the average worker. Tr. at
57–58. He questioned whether the individual would be able to sustain
unskilled work. Tr. at 58. The VE stated that the individual would be
unemployable. Id.
The ALJ asked the VE to consider that the individual would be off task
for 60 to 90 minutes per day, in addition to scheduled breaks. Id. He
questioned whether the individual would be able to sustain competitive
employment. Id. The VE testified that the individual would be unemployable.

Id.
2.

The ALJ’s Findings

In his decision dated May 24, 2017, the ALJ made the following
findings of fact and conclusions of law:
1.
2.

The claimant meets the insured status requirements of the Social
Security Act through June 30, 2019.
The claimant has not engaged in substantial gainful activity
since October 21, 2013, the alleged onset date (20 CFR 404.1571
et seq.).
20

3.
4.

5.

6.
7.

8.
9.

10.

11.

The claimant has the following severe impairments:
neurocognitive disorders and visual field loss status-post
recurrent pineal brain tumor resections (20 CFR 404.1520(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform less than a full range of medium work as defined in 20
CFR 404.1567(c). Medium exertional work is described by the
Commissioner of the Social Security Administration as requiring
lifting/carrying of up to 50 pounds occasionally and 25 pounds
frequently as well as standing, walking, and sitting for 6 hours in
an 8-hour workday. The claimant can never climb ladders, ropes,
or scaffolds, but can occasionally climb ramps and stairs. He
must have no requirement to operate a motorized vehicle, no
close proximity to mobile machinery, no work at unprotected
heights, and no requirement to scan a wide visual field using
peripheral vision. He is capable of no more than occasional and
basic decision-making or changes in the work setting.
The claimant is unable to perform any past relevant work (20
CFR 404.1565).
The claimant was born on January 4, 1967 and was 46 years old,
which is defined as a younger individual age 18–49, on the
alleged disability onset date. The claimant subsequently changed
age category to closely approaching advanced age (20 CFR
404.1563).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
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 CFR Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant
can perform (20 CFR 404.1569 and 404.1569(a)).
The claimant has not been under a disability, as defined in the
Social Security Act, from October 21, 2013, through the date of
this decision (20 CFR 404.1520(g)).
21

Tr. at 22–31.
II.

Discussion
Plaintiff alleges the Commissioner erred in failing to sufficiently

account for his moderate difficulties in concentration, persistence, or pace.
The Commissioner counters that substantial evidence supports the ALJ’s
findings and that the ALJ committed no legal error in his decision.
A.

Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that disability benefits shall be available to those
persons insured for benefits, who are not of retirement age, who properly
apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section
423(d)(1)(A) defines disability as:
the inability to engage in 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 at least 12 consecutive
months.
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims,
regulations promulgated under the Act have reduced the statutory definition
of disability to a series of five sequential questions. See, e.g., Heckler v.

Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting
“need for efficiency” in considering disability claims). An examiner must
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consider the following: (1) whether the claimant is engaged in substantial
gainful activity; (2) whether he has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings;2 (4)
whether such impairment prevents claimant from performing PRW;3 and (5)
whether the impairment prevents him from doing substantial gainful
employment. See 20 C.F.R. § 404.1520. These considerations are sometimes
referred to as the “five steps” of the Commissioner’s disability analysis. If a
decision regarding disability may be made at any step, no further inquiry is
necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can
find claimant disabled or not disabled at a step, Commissioner makes
determination and does not go on to the next step).

The Commissioner’s regulations include an extensive list of impairments
(“the Listings” or “Listed impairments”) the Agency considers disabling
without the need to assess whether there are any jobs a claimant could do.
The Agency considers the Listed impairments, found at 20 C.F.R. part 404,
subpart P, Appendix 1, severe enough to prevent all gainful activity. 20
C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals
all criteria of any of the Listed impairments for at least one year, he will be
found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To
meet or equal one of these Listings, the claimant must establish that his
impairments match several specific criteria or are “at least equal in severity
and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493
U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting
the burden is on claimant to establish his impairment is disabling at Step 3).
3 In the event the examiner does not find a claimant disabled at the third step
and does not have sufficient information about the claimant’s past relevant
work to make a finding at the fourth step, he may proceed to the fifth step of
the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
2

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A claimant is not disabled within the meaning of the Act if he can
return to PRW as it is customarily performed in the economy or as the
claimant actually performed the work. See 20 C.F.R. Subpart P, §
404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant
bears the burden of establishing his inability to work within the meaning of
the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by
establishing the inability to return to PRW, the burden shifts to the
Commissioner to come forward with evidence that claimant can perform
alternative work and that such work exists in the regional economy. To
satisfy that burden, the Commissioner may obtain testimony from a VE
demonstrating the existence of jobs available in the national economy that
claimant can perform despite the existence of impairments that prevent the
return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the
Commissioner satisfies that burden, the claimant must then establish that he
is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264–65 (4th
Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146. n.5 (1987)
(regarding burdens of proof).
2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final
decision of the Commissioner [] made after a hearing to which he was a
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party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowlytailored to determine whether the findings of the Commissioner are
supported by substantial evidence and whether the Commissioner applied
the proper legal standard in evaluating the claimant’s case. See id.,

Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d
287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990)).
The court’s function is not to “try these cases de novo or resolve mere
conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir.
1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v.

Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold
the Commissioner’s decision if it is supported by substantial evidence.
“Substantial evidence” is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390,
401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court
must carefully scrutinize the entire record to assure there is a sound
foundation for the Commissioner’s findings and that her conclusion is
rational. See Vitek, 438 F.2d at 1157–58; see also Thomas v. Celebrezze, 331
F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the
decision of the Commissioner, that decision must be affirmed “even should

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the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773,
775 (4th Cir. 1972).
B.

Analysis

Plaintiff argues that the ALJ failed to adequately account for his
moderate difficulties in concentration, persistence, or pace in the RFC
assessment. [ECF No. 9 at 6]. He maintains the ALJ did not consider his
ability to remain on task. Id. at 6–7. He contends the restrictions in the RFC
assessment do not address his ability “‘to sustain focused attention and
concentration sufficiently long to permit the timely and appropriate
completion of tasks found in a work setting’ as required under Listing 12.00.”
[ECF No. 13 at 2].
The Commissioner argues that the RFC assessment fully accounted for
all of Plaintiff’s credibly-established limitations and that the ALJ articulated
reasoning that was sufficient to allow for judicial review. [ECF No. 12 at 5–2].
She maintains the ALJ thoroughly discussed relevant evidence regarding
Plaintiff’s ability to maintain concentration, persistence, or pace. Id. at 10–
14. She contends the ALJ did not simply limit Plaintiff to unskilled work, but
included restrictions for no more than occasional basic decision making and
no more than occasional changes in the work setting. Id. at 15, citing Tr. at
25. She claims that the record failed to demonstrate that Plaintiff lacked the
ability to stay on task throughout an eight-hour workday. Id. at 17.
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A claimant’s RFC represents the most he can still do despite his
limitations. 20 C.F.R. § 404.1545(a). It must be based on all the relevant
evidence in the case record and should account for all of the claimant’s
medically-determinable impairments. Id. The RFC assessment must include
a narrative discussion describing how all the relevant evidence in the case
record supports each conclusion and must cite “specific medical facts (e.g.,
laboratory findings) and non-medical evidence (e.g., daily activities,
observations).” SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ must
determine the claimant’s ability to perform work-related physical and mental
abilities on a regular and continuing basis. Id. at *2. He must explain how
any material inconsistencies or ambiguities in the record were resolved. Id. at
*7. “[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).
In Mascio, 780 F.3d at 638, the court found that the ALJ erred in
assessing the plaintiff’s RFC. Id. It stated “we 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. The court explained that it was possible
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for the ALJ to find that the moderate concentration, persistence, or pace
limitation did not affect the plaintiff’s ability to work, but that remand was
required “because the ALJ here gave no explanation.” Id. This court has
interpreted the Fourth Circuit’s holding in Mascio to emphasize that an ALJ
must explain how he considered the claimant’s limitation in concentration,
persistence, or pace in assessing his RFC. See Sipple v. Colvin, No. 8:15-1961MBS-JDA, 2016 WL 4414841, at *9 (D.S.C. Jul. 29, 2016), adopted by 2016
WL 4379555 (D.S.C. Aug. 17, 2016) (“After Mascio, further explanation
and/or consideration is necessary regarding how Plaintiff’s moderate
limitation in concentration, persistence, or pace does or does not translate
into a limitation in his RFC.”).
The ALJ provided the following explanation for his assessment of
moderate limitations in concentration, persistence, or pace:
The claimant testified that he had difficulty maintaining
concentration/focus. In September 2014, the claimant’s wife
Sandra Jans, completed a Function Report that indicated that
the claimant watched television and participated in fantasy
football daily (Exhibit 3E). In January 2015, the claimant’s wife
completed a Third Party Function Report stating that the
claimant was able to use a computer, pay bills, watch television
for extended periods, and follow simple written instructions
(Exhibit 6E). In January 2015, the claimant’s wife completed a
Function Report because it was reported that he could not
complete paperwork independently due to vision issues. It was
reported that the claimant had a shorter attention span, but
enjoyed playing memory games, shopped occasionally in stores
and online, handled a checkbook and savings account/paid bills,
watched television daily, had more difficulty with spoken
instructions than written instructions (Exhibit 7E).
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Tr. at 24. He included provisions in the RFC assessment for “no more than
occasional and basic decision-making or changes in the work setting.” Tr. at
25.
Pursuant to Listing 12.00(E)(3), evaluation of a claimant’s ability to
maintain concentration, persistence, or pace requires examination of his
“abilities to focus attention on work activities and stay on task at a sustained
rate.” “[T]he nature of this area of mental functioning” includes: “initiating
and performing a task that you understand and know how to do; working at
an appropriate and consistent pace; completing tasks in a timely manner;
ignoring or avoiding distractions while working; changing activities or work
settings without being disruptive; working close to or with others without
interrupting or distracting them; sustaining an ordinary routine and regular
attendance at work; and working a full day without needing more than the
allotted number or length of rest periods during the day.” 20 C.F.R. Pt. 404,
Subpt. P, App’x 1 § 12.00(E)(3).
The ALJ’s inclusion of provisions for “no more than occasional and
basic decision-making or changes in the work setting” addresses some, but
not all, components of Plaintiff’s ability to maintain concentration,
persistence, or pace. See id. In September 2014, Dr. Morrison found that
Plaintiff remained very slow on verbal initiation tasks and indicated his job
success would depend on the level of structure and routine offered by the
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work setting. Tr. at 282 and 283. Dr. Werden found that Plaintiff would have
difficulty working in close proximity or coordination with coworkers; was
capable of single, repetitive tasks without special supervision; and would
perform best if provided verbal instructions with visual cues when learning
new tasks. Tr. at 72. On May 8, 2015, Dr. Benjamin observed Plaintiff to be a
“little bit slow” from a cognitive perspective, and on October 20, 2016, he
again noted slowed cognition. Tr. at 1330 and 1361. On June 10, 2015, Dr.
Ritz noted that Plaintiff was able to perform chores slowly. Plaintiff testified
that he had problems with memory, difficulty sitting through an entire
football or baseball game, and likely lacked the ability to focus on a task for
two-hour segments without interruption. Tr. at 48, 51, and 52. The foregoing
evidence suggests possible impairment in Plaintiff’s abilities to work at an
appropriate and consistent pace, complete tasks in a timely manner, ignore
or avoid distractions while working, and work close to or with others.
The

ALJ

conceded

that

Plaintiff

needed

“a

structured

work

environment,” but that his mental health deficits could be adequately
addressed by “a work environment that required only occasional/basic
decision making.” Tr. at 30. He cited evidence to support his finding that
Plaintiff’s “memory did not appear to be as impaired as alleged.” Tr. at 28–30.
He noted Dr. Morrison’s indication that Plaintiff’s job success would depend
on the level of structure and routine offered in the work setting and Dr.
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Benjamin’s findings of cognitive slowing. Tr. at 28. He accorded significant
weight to the state agency consultants’ opinions, which included Dr. Werden’s
impressions. Tr. at 29.
Despite the fact that the ALJ credited evidence that suggested possible
impairment in Plaintiff’s abilities to work at an appropriate and consistent
pace, complete tasks in a timely manner, ignore or avoid distractions while
working, and work close to or with others, his explanation of the RFC
assessment is devoid of restrictions intended to address those potentiallyimpaired abilities. The ability to perform tasks with “no more than occasional
and basic decision-making or changes in the work setting” differs from
abilities to “stay on task,” complete tasks in a timely manner, perform work
without special instructions, and work with distractions. See Mascio, 780
F.3d at 638. The ALJ’s decision lacks any reason for declining to include
additional restrictions that pertain to these abilities. Perhaps the ALJ can
explain why Plaintiff’s moderate limitation in concentration, persistence, or
pace does not cause additional restrictions, but the court cannot find that
such a conclusion is supported by substantial evidence in light of the ALJ’s
failure to reconcile evidence to the contrary. See id.
In light of the foregoing, the ALJ’s RFC assessment fails to comply with
the provisions set forth in SSR 96-8p and the Fourth Circuit’s direction in

Mascio. Consequently, the court finds that substantial evidence does not
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support the RFC assessment. “[B]ecause the ALJ here gave no explanation, a
remand is in order.” Mascio, 780 F.3d at 638.
III.

Conclusion
The court’s function is not to substitute its own judgment for that of the

ALJ, but to determine whether the ALJ’s decision is supported as a matter of
fact and law. Based on the foregoing, the court cannot determine that the
Commissioner’s decision is supported by substantial evidence. Therefore, the
undersigned reverses and remands this matter for further administrative
proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.

April 30, 2018
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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