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)
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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
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