Constance Patterson v. Commissioner of SSA

Filing

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

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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.

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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
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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
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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.
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We

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review

an

SSA

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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

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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.
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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.
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functioning,
ALJ

must

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and

rate

(c)

the

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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]

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residual

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functional

capacity

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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.
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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

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harmless-error

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review

applies,

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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).
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could

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not

confer

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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

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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

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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.

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But

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special-technique

the

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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

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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