United States District Court, D. Maryland
JILLYN K. SCHULZE, Magistrate Judge.
Plaintiff Stephanie Payton brought this action pursuant to 42 U.S.C. § 405(g) for review of the Social Security Administration's (SSA) final decision denying her claim for disability insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act, 42 U.S.C. §§ 401 et. seq. (the Act). Both parties' motions for summary judgment are ready for resolution, see ECF Nos. 9 and 13, and no hearing is necessary. See Local Rule 105.6. For the reasons set forth below, Payton's motion for summary judgment is denied, the Commissioner's motion for summary judgment is denied, and the case is remanded to the SSA for further proceedings consistent with this opinion.
Payton filed an application for DIB and SSI on April 28, 2010, R. 75, with an alleged disability onset date of June 28, 2004. R. 69. Both claims were denied initially on October 5, 2010, R. 77-80, and again upon reconsideration on February 2, 2011. R. 84-85. Payton then filed a written request for a hearing before an Administrative Law Judge (ALJ), R. 86-87, and hearings were held on March 20, 2012 and August 14, 2012. R. 277, 281. At the initial hearing, Payton alleged a significant problem with depression and requested a psychiatric consultative examination (CE) in order to determine a baseline of her depression, and a second hearing was scheduled pending the results of the CE. R. 279. Dr. Shakuntala Dhir conducted this CE on April 17, 2012, diagnosing Payton with depressive disorder and suggesting medication and therapy as her course of treatment. R. 271-75. Eugene Bond, the ALJ presiding over both hearings, issued a decision on August 24, 2012, finding Payton not disabled under the Act because she retained the residual functional capacity (RFC) to perform jobs available in significant numbers in the national economy. R. 18-20. The Appeals Council subsequently denied Payton's request for review on May 17, 2013, R. 3-5, and the ALJ's decision became the final, reviewable decision of the agency. R. 3.
2. ALJ's Decision.
The ALJ evaluated Payton's disability claim using the five-step sequential process described in 20 C.F.R. § 404.1520. At step one, the ALJ found that Payton had not engaged in substantial gainful activity since the alleged onset date of June 28, 2004. R. 12. At step two, the ALJ found that Payton had the following severe medical impairments: shoulder disorder, arthritis, and back disorder. R. 12-14. At step three, the ALJ found that Payton did not suffer from an impairment, or combination of impairments, listed in 20 C.F.R Part 404, Subpart P, Appendix 1. R. 14. At step four, the ALJ reviewed the record and determined that Payton possessed the RFC to perform light exertional work with a sit/stand option at will, limited dominant hand usage, and limited general public contact, R. 14-18, and that Payton was unable to perform any of her past relevant work. R. 18. At step five, given Payton's age, high school education, work experience, and RFC, the ALJ considered the testimony of the vocational expert (VE) and concluded that Payton was capable of work that exists in significant numbers in the national economy. R. 18-19. Accordingly, the ALJ found that Payton was not disabled under the Act and denied her application for benefits. R. 20.
3. Standard of Review.
The role of this court on review is to determine if the ALJ applied the correct legal standard in finding Payton not disabled and if substantial evidence supports that conclusion. 42 U.S.C. § 405(g); Pass v. Chater, 65 F.3d 1200, 1202 (4th Cir. 1995). Substantial evidence requires "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotation marks omitted). To be substantial, there must be more than a scintilla, but less than a preponderance, of the evidence presented. Shively v. Hecker, 739 F.2d 987, 989 (4th Cir. 1984). This court may not try the case de novo, and will affirm a decision if it is supported by substantial evidence. Id. If conflicting evidence could cause reasonable minds to differ on whether or not the claimant is disabled, it is the ALJ's right and responsibility to make that determination. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)).
Payton raises three broad issues on appeal. First, she contends that the ALJ failed to follow the proper procedure for analyzing mental impairments. Payton's second claim is that the ALJ erroneously assessed her RFC. Finally, Payton argues that the ALJ improperly relied on the testimony of the VE. Because this case requires remand on the first issue, the court need not address Payton's other allegations.
Payton argues that the ALJ failed to follow the proper procedure for analyzing her mental impairment. ECF No. 9-1 at 3. Specifically, Payton argues that the ALJ failed to consider: (1) whether her mental impairment was severe at step two of the sequential evaluation process; (2) whether her mental impairment met or equaled the requirements of an Impairment Listing at step three; and (3) whether the ALJ should have more fully incorporated her mental impairment in his RFC assessment at steps four and five. ECF No. 9-1 at 6-7.
To determine the severity of a mental impairment at any level of the administrative review process, an ALJ must employ the "special technique" set out in 20 C.F.R. §§ 404.1520a and 416.920a. The first step is for the ALJ to evaluate a claimant's pertinent symptoms, signs, and laboratory findings to determine whether she has a medically determinable mental impairment or impairments. 20 C.F.R. §§ 404.1520a(b)(1). Upon a colorable showing of impairment, the ALJ then rates the degree of functional limitation based on the extent to which the impairment interferes with the claimant's ability to function independently, appropriately, effectively, and on a sustained basis according to four broad areas of function: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3)-(4); see, e.g. Felton-Miller v. Astrue, 459 F.App'x. 226, 231 (4th Cir. 2011). The ALJ must include in his report the degree of limitation in each of the functional areas described in §§ 404.1520a(c) and 416.920a(c), marked as none, mild, moderate, or severe. 20 C.F.R. §§ 404.1520a(e)(4) and 416.920a(e)(4). The ALJ's analysis also must include "the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment." 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4). If the ALJ finds that the claimant has a severe mental impairment that neither meets nor is equivalent in severity to any listing, the ALJ must nonetheless address the impairment when formulating a claimant's RFC at steps four and five. 20 C.F.R. §§ 404.1520a(d)(3).
This special technique is crucial in evaluating the limitations caused by mental impairments because of the high degree of difficulty claimants with such conditions may experience adapting to the workplace. See SSR 85-15, 1985 SSR LEXIS 20, at *5-6 (Jan. 1, 1985). Individuals with mental illness may be able to function well within a restrictive or inflexible routine, but nonetheless be unable to meet the demands of even low-difficulty jobs. Id. For that reason, the SSA requires a thorough and individualized assessment of how limitations created by claimants' mental impairments affect their RFC and ability to work. Id.
In the instant case, it is undisputed that the ALJ did not apply the special technique in evaluating Payton's mental impairment, despite Payton's claim of mental impairment, R. 17, and Dr. Dhir's diagnosis of depressive disorder. R. 271-75. Perhaps because of this failure to apply the special technique, the ALJ also failed to determine whether Payton's depressive disorder constitutes a severe impairment at step two of the sequential evaluation process. Nevertheless, the ALJ's failure to use the special technique and to classify plaintiff's depressive disorder as severe at step two are not necessarily fatal to his analysis if he cures the error in his subsequent RFC assessment at steps four and five. See Rivera v. Astrue, 2013 U.S. Dist. LEXIS 119377, at *21 (D. Md. Aug. 22, 2013). This is because the evaluation of all of the claimant's impairments-including those labeled both severe and non-severe-continues in steps three through five based on the finding of any severe impairment at step two. Thus, a claimant will not be prejudiced by the ALJ's failure to classify her mental impairment as severe at step two, so long as the ALJ finds at least one severe impairment. See 20 C.F.R. § 404.1523 (2010); see also Ellis v. Astrue, Case No. TMD 10-1020, 2011 U.S. Dist. LEXIS 134551, at *6 (D. Md. Nov. 22, 2011) (finding no reversible error when an ALJ classified Plaintiff's Hepatitis C as non-severe, for the ALJ continued to consider this non-severe impairment in the remaining steps in the sequential analysis based on the determination at step two that claimant had severe asthma and gastrointestinal problems). The ALJ's duty of explanation, set forth by 20 C.F.R. §§ 404.1520a, will be satisfied provided that he include a narrative function-by-function analysis in his RFC assessment thoroughly explaining his determinations in the four broad areas of function so that this court may properly review whether these findings are supported by substantial evidence. See Piney Mountain Coal Co. v. Mays, 176 ...