Constance Patterson v. Commissioner of SSA


PUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cv-00763-BHH [1000006258]. [15-2487]

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Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 1 of 17 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2487 CONSTANCE L. PATTERSON, Plaintiff – Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant – Appellee. Appeal from the United States District Court for the District of South Carolina, at Charleston. Bruce H. Hendricks, District Judge. (2:14-cv-00763-BHH) Argued: December 7, 2016 Decided: January 19, 2017 Before KING, DUNCAN, and KEENAN, Circuit Judges. Reversed and remanded with instructions by published opinion. Judge Duncan wrote the opinion, in which Judge King and Judge Keenan joined. ARGUED: William Daniel Mayes, SMITH, MASSEY, BRODIE, GUYNN & MAYES, P.A., Aiken, South Carolina, for Appellant. Evelyn Rose Marie Protano, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Nora Koch, Acting Regional Chief Counsel, Charles J. Kawas, Acting Supervisory Attorney, Office of the General Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; William N. Nettles, United States Attorney, Marshall Prince, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 2 of 17 DUNCAN, Circuit Judge: Plaintiff-Appellant appeals from Security district-court Administration’s application issue a Constance for of Patterson order (“SSA”) disability first L. impression in affirming decision benefits. (“Patterson”) This our the to case circuit: Social deny her presents an whether an Administrative Law Judge’s (“ALJ”) failure to follow the special technique required by 20 C.F.R. § 404.1520a when evaluating a claimant’s mental impairment requires remand or may constitute harmless error. automatically harmless on We require these hold that remand, facts. such but For that the an the reasons error does not was not error that follow, we reverse the district court’s order with instructions to remand to the ALJ for appropriate review of Patterson’s mental impairment. I. Patterson benefits on filed July an 21, application 2010. The for SSA disability denied application initially and on reconsideration. insurance Patterson’s Patterson then filed a timely request for a hearing on May 12, 2011. After a hearing, an ALJ also denied her application, finding that Patterson was not disabled during the period for which she sought benefits. In so ruling, the ALJ claimed to 2 Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 3 of 17 have reached his decision on the objective medical record, but he based his findings regarding Patterson’s impairments primarily on the conclusions of one doctor, Dr. Horn. With regard to the ALJ’s evaluation of Patterson’s mental impairment specifically, the outlined 20 in ALJ failed C.F.R. to (1) § 404.1520a follow (“the the procedures special-technique regulation”), and (2) discuss other medical-record evidence that conflicted with Dr. Horn’s opinion, such as contrary opinions of other physicians results. or contradictory portions of medical test Understanding where the ALJ went wrong in evaluating Patterson’s disability requires background knowledge of the complex web of regulations governing the ALJ’s review, which we discuss at great length infra Part II.A.1. For now it suffices to note that, on appeal, the SSA concedes error in the ALJ’s failure to assess Patterson’s mental impairment--and its effect on her working abilities--in the manner prescribed by the decision, but the special-technique regulation. Patterson sought review of the ALJ’s SSA’s Appeals Council denied her request, rendering the ALJ’s decision the final decision of the SSA Commissioner for purposes of judicial review. 42 U.S.C. § 405(g). Patterson timely filed suit in federal district court, claiming that the ALJ ignored regulatory requirements and reached a decision unsupported by substantial evidence. Before the magistrate judge, Patterson 3 Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 4 of 17 requested a reversal of the SSA’s determinations and a remand for (1) an award administrative of benefits, proceedings. or The alternatively, magistrate (2) judge further recommended affirming the SSA, on the grounds that (1) substantial evidence supported all of the ALJ’s challenged findings, and (2) the ALJ’s failure to articulate his findings in accordance with the special-technique district regulation court recommendation adopted and affirmed constituted the the harmless error. report magistrate’s SSA’s The and decision. Patterson timely appealed. II. On appeal, Patterson seeks a remand to the SSA for proceedings consistent with the special-technique regulation and other applicable regulations. 1 The SSA counters that any missteps by the ALJ constitute harmless error because this court can itself apply the special technique in determining whether substantial evidence supports the ALJ’s denial of benefits. 1 Patterson also argues that the ALJ erred by failing to (1) adequately consider all impairments listed in SSA regulations, (2) accord controlling weight to her treating physician’s opinion, and (3) properly explain the sit/stand option in assessing her ability to work. As we explain, we cannot consider the merits of these claims, or reach an independent conclusion on whether Patterson is entitled to benefits because the ALJ failed to follow the special-technique regulation in documenting his conclusions. 4 Appeal: 15-2487 Doc: 44 We Filed: 01/19/2017 review an SSA Pg: 5 of 17 decision only to determine if it is supported by substantial evidence and conforms to applicable and valid regulations. 42 U.S.C. § 405(g); 739 F.2d 987, 989 (4th Cir. 1984). precludes a determination that Shively v. Heckler, Where an insufficient record substantial evidence supported the ALJ’s denial of benefits, this court may not affirm for harmless error. See Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2011); see also Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (noting that “general case law governing application of the harmless-error standard” applies equally to administrative cases). Because technique regulation this case, we the ALJ’s failure frustrates reverse the to follow effective district the judicial court’s specialreview order in with instructions to remand to the SSA for proceedings consistent with its own regulations. Below, we first outline the statutory and regulatory framework governing the SSA’s grant or denial of benefits, and how the ALJ applied that framework here. we cannot accept the SSA’s invitation Next, we explain why to technique ourselves in the first instance. apply the special We do not decide whether failure to follow the special technique requires remand in every case, but we are satisfied that the error here requires remand. 5 Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 6 of 17 A. 1. The Social Security Act (“the Act”) provides for benefits to claimants below retirement age who are “under a disability.” 42 U.S.C. § 423(a)(1)(E). SSA regulations set out a step-by- step process for determining disability benefits. § 404.1520(a)(1). claimant is Steps working; (2) 1 through if not, 3 ask: whether (1) she 20 C.F.R. whether has a the “severe impairment”; and (3) if she does, whether the impairment “meets or equals a listed impairment.” See id. § 404.1520. Satisfying step 3 warrants an automatic finding of disability, and relieves the decision maker from proceeding to steps 4 and 5. See id. § 404.1520(d); see also Sullivan v. Zebley, 493 U.S. 521, 532 (1990). If the claimant satisfies steps 1 and 2, but not step 3, then the decision maker must determine the claimant’s residual functional capacity, that is, an evaluation of her ability to perform work despite her 20 C.F.R. § 404.1520(e). limitations (“RFC assessment”). In determining the most a claimant can still perform, the decision maker must evaluate “all” relevant record evidence. fact-specific Id. This RFC assessment is a holistic and evaluation; the ALJ cannot conduct it properly without reaching detailed conclusions at step 2 concerning the type and severity of the claimant’s impairments. 6 Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 7 of 17 After conducting the RFC assessment, the ALJ proceeds to step 4. Id. §§ 404.1520(a)(4)(iv), 404.1520(f). At step 4, the decision maker determines whether the impairment prevents the claimant from performing “past relevant work.” Id. § 404.1520(a)(4)(iv). 2 The special-technique regulation affects how an ALJ evaluates and documents his process at steps 1 through 4 if the claimant alleges a mental impairment. Id. § 404.1520a. When evaluating and documenting the severity of a claimant’s mental impairment at steps 2 and 3--and its concomitant impact on the RFC assessment relevant to step 4--the ALJ “must follow [the] special technique.” Under the Id. § 404.1520a(a) (emphasis added). special-technique regulation, if the ALJ determines that a mental impairment exists, he “must specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment(s) Id. § 404.1520a(b)(1). and document [his] findings.” The ALJ must also document “a specific finding as to the degree of limitation in each of” the four areas of functional limitation listed in § 404.1520a(c)(3). § 404.1520a(e)(4). limitations--(a) In the activities first of 2 three daily areas living, of Id. functional (b) social An alternative process governs where insufficient evidence supports a finding at the fourth step, 20 C.F.R. § 404.1520(h), but that exception does not apply here. 7 Appeal: 15-2487 Doc: 44 functioning, ALJ must Filed: 01/19/2017 and rate (c) the Pg: 8 of 17 concentration, degree of persistence, limitation pace--the “the using or following five-point scale: None, mild, moderate, marked, and extreme.” Id. § 404.1520a(c)(4). The ALJ must rate the fourth functional area--(d) episodes of decompensation--using “the following fourpoint scale: None, one or two, three, four or more.” Id. Next, the ALJ must determine if the mental impairment is severe, and if so, whether it Id. § 404.1520a(d). qualifies as a listed impairment. If the mental impairment is severe but is not a listed impairment, the ALJ must assess the claimant’s RFC in light of how the impairment constrains the claimant’s work abilities. See specifically id. § 404.1520a(d)(3). provides that special technique’s steps. The claimant through 4. carries the ALJ must The document regulation all of the Id. § 404.1520a(e)(4). the burden of proof at steps 1 See 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512(a). If a claimant carries her burden, the burden shifts to the SSA at step 5 to demonstrate that the impairment does not prevent the claimant employment. do this, from engaging in other substantial gainful See 20 C.F.R. §§ 404.1520(g)(1), 404.1512(f). the SSA Commissioner must present “evidence To that demonstrates that other work exists in significant numbers in the national economy that [the claimant] can do, given [her] 8 Appeal: 15-2487 Doc: 44 residual Filed: 01/19/2017 functional capacity Pg: 9 of 17 and vocational factors.” Id. § 404.1560(c)(2). 3 2. In the present case, at steps 1 and 2, the ALJ found that Patterson was not working, and had severe physical and mental impairments. meet or At step 3, he determined these impairments did not equal any listed impairment. In reaching these conclusions, the ALJ mentioned the findings of two doctors-Dr. Horn and Dr. Ritterspach. 4 However, the ALJ did not evaluate the severity of Patterson’s mental impairment in accordance with the special technique, nor did he document application of the special technique in his decision as required by the regulation. 20 C.F.R. § 404.1520a(e). In addition, the record contained evidence that conflicted with the findings of these doctors, and the ALJ did not address these conflicts. 3 The Act defines “work which exists in the national economy” as work that “exists in significant numbers either in the region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A). This is often demonstrated by vocational-expert testimony on the matter. See Grant v. Schweiker, 699 F.2d 189, 191–92 (4th Cir. 1983). 4 Dr. Ritterspach had completed a psychological evaluation of Patterson, and Dr. Horn had reviewed this evaluation to conclude that Patterson had the severe mental impairment of borderline intellectual functioning. The ALJ agreed with Dr. Horn “that the claimant’s test results show that the claimant was functioning at the borderline intellectual level,” A.R. 15, in making his mental-impairment findings and in conducting his RFC assessment. 9 Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 10 of 17 In his RFC assessment, the ALJ explained that Patterson’s impairments allowed her to perform “light work” with the requirement that employers give her discretion to switch from sitting to standing while performing work. found that performing this any RFC “past assessment relevant At step 4, the ALJ prevented work.” But Patterson at step from 5, he concluded that Patterson did not qualify as disabled because vocational-expert testimony established that her RFC assessment matched available alternative work activity. B. 1. The SSA concedes that the ALJ did not document application of the special technique in reaching these findings, or explicitly adopt physician findings that could possibly qualify alone as a Nevertheless, surrogate the SSA for the claims special-technique that we can examine evidence and apply the special technique ourselves. assessment. the record Noting that the question before us is an issue of first impression, the SSA argues that if we reach the ALJ’s conclusion after our own application of the special technique, then we can affirm the ALJ’s denial of benefits on harmless-error grounds. Our sister circuits that have considered this issue have split on whether 10 Appeal: 15-2487 Doc: 44 harmless-error Filed: 01/19/2017 review applies, Pg: 11 of 17 both in analyzing the current special-technique regulation and its predecessor. 5 Of the courts that have found harmless error, only the Sixth Circuit has analyzed the language of the special-technique regulation in so holding. See Rabbers v. Admin., 582 F.3d 647, 656–57 (6th Cir. 2009). Comm’r Soc. Sec. In Rabbers, the court reached its harmless-error conclusion after noting that the opening provision of 20 C.F.R. § 404.1520a states “[u]sing the technique helps us,” id. § 404.1520a(a), with “us” referring to the SSA. this one Rabbers, 582 F.3d at 656. textual hook, the court Reasoning primarily from decided that the special technique is a procedure designed solely to aid the ALJ. Id. The Sixth Circuit therefore concluded that the special technique 5 Compare Wells v. Colvin, 727 F.3d 1061, 1065 & n.3, 1068– 71 (10th Cir. 2013) (failure to follow the special-technique regulation requires remand if claimant has medically determinable mental impairments); Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 726 (9th Cir. 2011) (same); Moore v. Barnhart, 405 F.3d 1208, 1214 (11th Cir. 2005) (same), and Montgomery v. Shalala, 30 F.3d 98, 100 (8th Cir. 1994) (same with predecessor regulation), with Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008) (leaving “open the possibility that an ALJ’s failure to adhere to the regulations’ special technique might under other facts be harmless” but concluding that the record before it could not support such a finding), and Pepper v. Colvin, 712 F.3d 351, 366–67 (7th Cir. 2013) (can be harmless error); Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 661 (6th Cir. 2009) (same). Notably, in an unpublished case considering the predecessor of the current regulation, this court found reversible error where the ALJ failed to follow the special technique. Long v. U.S. Dep’t of Health & Human Servs., No. 88-3651, 1990 WL 64793 at *4 (4th Cir. 1990) (per curiam) (unpublished). 11 Appeal: 15-2487 could Doc: 44 not confer Filed: 01/19/2017 also provide procedural (1) Pg: 12 of 17 mandatory process designed on benefits a claimants or a (2) to necessary component to establish a record for possible judicial review. See id. at 655–57. While we agree with the Sixth Circuit that the language of the special-technique regulation guides our inquiry, we disagree on the import of that language. The special-technique regulation’s plain language describes what the SSA must do. The regulation states that the SSA “will document application of the technique in the decision,” 20 C.F.R. § 404.1520a(e) (emphasis added), and its subsections all say what the decision maker “must” include or document, e.g., id. § 404.1520a(e)(3) (noting that “the determination technique”). technique Therefore, regulation must the document plain militates application language against the of the holding of the specialthat the special-technique regulation offers only nonbinding guidance for the benefit of the ALJ. See Rabbers, 582 F.3d at 664–65 (Holschuh, J., dissenting in part, and concurring in part). Moreover, that the SSA codified the special-technique process in a regulation contradicts the argument that the SSA sought only to offer decision makers nonbinding guidance. The SSA knows how to issue nonbinding policy statements and guidance documents. See, e.g., Social Security Administration, Program Operations Manual System (2016). 12 Explaining how an agency wants Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 13 of 17 its decision makers to apply a regulation is one purpose of such nonbinding guidance. See Cmty. Nutrition Inst. v. Young, 818 F.2d Cir. 943, 949 (D.C. 1987) (per curiam). In issuing nonbinding guidance, agencies need not undergo the laborious and demanding requirements of promulgating a regulation, nor must they publish Long Island (2007). this Care In type at of Home, establishing guidance in Ltd. Coke, its v. the Federal 551 Register. U.S. special-technique 158, 173 process for evaluating and documenting mental impairments, the SSA did not choose to issue nonbinding policy guidance, but instead chose the much more arduous process of promulgating and publishing a regulation with mandatory language. SSA codified the benefit of ALJs. special-technique We cannot conclude that the process simply for the See id. at 172–73. Furthermore, the weight of authority suggests that failure to properly document application of the special technique will rarely, if ever, be harmless because such a failure prevents, or at least substantially hinders, judicial review. See, e.g., Kohler v. Astrue, 546 F.3d 260, 267 (2d Cir. 2008); see also Mascio v. Colvin, 780 F.3d 632, 636–37 (4th Cir. 2015) (finding reversible error where ALJ failed to employ a parallel specialtechnique regulation for assessing supplemental security income benefits technique, claims). it is Without difficult documentation to 13 discern how of the the ALJ special treated Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 14 of 17 relevant and conflicting evidence. (refusing to hold that ALJ’s See Mascio, 780 F.3d at 637 lack of reasoning constituted harmless error “[b]ecause we are left to guess about how the ALJ arrived at his conclusions” regarding an RFC assessment); Myers v. Califano, 611 F.2d 980, 983 (4th Cir. 1980). “Administrative determinations are required to be made in accordance review.” with certain procedures which facilitate judicial Cook v. Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986). We cannot fill in the blanks for the ALJ in the first instance. Failure to document application of the special-technique regulation constitutes error. 2. Although such error may be harmless error in some cases, this is not one of them. Based on the findings of Dr. Horn, the ALJ concluded that Patterson had the severe mental impairment of borderline intellectual functioning, but also found that this impairment did not meet or equal a listed impairment. deciding, the ALJ noted other evidence that is In so admittedly pertinent to his conclusions, but he did not address conflicting evidence, or explain away contrary findings of other doctors in a comprehensive manner. we can say is that he Looking at the ALJ’s decision, the most appears to have at least partially examined the correct evidence, and began the correct evaluation. 14 Appeal: 15-2487 Doc: 44 But Pg: 15 of 17 special-technique the Filed: 01/19/2017 regulation requires more, see supra Part II.A.1, and we hesitate to declare the error here harmless because it implicates the validity of so many of the ALJ’s conclusions. Patterson’s We cannot affirm the ALJ’s evaluation of mental impairment because his decision did not explain how he weighed all relevant evidence: he did not rate Patterson’s four areas of functional limitation listed in § 404.1520a(c)(3) according to the prescribed scale, nor did he explain how he reached his conclusions about the severity of the mental impairment. 20 C.F.R. §§ 404.1520a(c), 404.1520a(d). For example, on this record, the IQ score is a red flag that the ALJ should have analyzed in greater depth before summarily concluding that Patterson’s condition met none of the listed impairments. Likewise, mental-impairment because evaluation, assessed Patterson’s RFC. 780 F.3d at 637. the ALJ’s RFC we we cannot cannot review say that properly And because we cannot gauge the propriety of assessment, we cannot F.3d at 707; Mascio, 780 F.3d at 636. and he ALJ’s 20 C.F.R. § 404.1520a(c)(3); Mascio, say that evidence supports the ALJ’s denial of benefits. evidence the bolstering substantial See Meyer, 662 Harmonizing conflicting inconclusive findings requires credibility determinations that we cannot make; these exercises 15 Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 16 of 17 fall outside our scope of review. See Mascio, 780 F.3d at 637– 40. 6 Put simply, remand.” “[t]he Id. at 640. ALJ’s lack of explanation requires Normally, our opinion would end here, and we would not go beyond ordering the ALJ to apply the regulation that it failed to observe. judicial efficiency, we Here, however, in the interest of direct the ALJ to provide a more detailed explanation of any evaluation of applicable Listings, including opinion Listing in determining mental impairment. Patterson’s 12.05, RFC, and the Patterson’s type and treating severity of physician’s Patterson’s We also exhort him to more fully define which will obviate the concerns Patterson raises on appeal about the adequacy of the ALJ’s definition of the sit/stand option in assessing her ability to work. III. We do not take a position on the merits of Patterson’s application for disability benefits. arises from a administrative problem that decisions has become challenged 6 Instead, the dispute here in all this too common court--a among problem Importantly, in articulating its harmless-error exception in Rabbers, the Sixth Circuit noted that an ALJ’s failure to follow the special technique likely could not be reviewed for harmless error where the record contained “conflicting or inconclusive evidence.” 582 F.3d at 657. That is precisely what we have here. 16 Appeal: 15-2487 Doc: 44 Filed: 01/19/2017 Pg: 17 of 17 decision makers could avoid by following the admonition they have no doubt heard since their grade-school math classes: Show your work. The ALJ did not do so here, and this error rendered his decision unreviewable. On remand, the See Kohler, 546 F.3d at 267. ALJ applicable regulations. should follow the dictates appropriate record for review. the all Reaching a decision in a well-reasoned and documented fashion serves multiple purposes. arguments of procedure and It provides an It also accords a claimant’s respect they deserve. And of course, providing comprehensive review of a claimant’s arguments is in the SSA’s best interest--in the instant case, providing such review in a well-documented manner would allow a court to readily determine the merits of Patterson’s other arguments related to the ALJ’s (1) evaluation of a particular Listing, (2) consideration of her treating physician’s opinion, and (3) definition of her sit/stand option in formulating her RFC assessment. For the reasons stated above, we reverse the district court’s order with instructions to remand to the ALJ for appropriate review of Patterson’s mental impairment. REVERSED AND REMANDED WITH INSTRUCTIONS 17

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