Roberson v. Colvin

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/20/2017. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
COREY ROBERSON,

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Plaintiff,
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v.
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NANCY A. BERRYHILL,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 15-3071

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Corey Roberson seeks judicial review under 42 U.S.C. § 405(g) of a final
decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying
his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment and alternative motion for
remand (ECF No. 15) and Defendant’s Motion for Summary Judgment (ECF No. 16).2 Plaintiff
contends that the administrative record does not contain substantial evidence to support the
Commissioner’s decision that he is not disabled. No hearing is necessary. L.R. 105.6. For the
reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 15) is GRANTED.
1

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
25(d).
2

The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.

I
Background
Plaintiff was born in 1972, has a GED, and previously worked as a sewer service worker.
R. at 25-27. Plaintiff filed an application for DIB on November 8, 2011, alleging disability
beginning on March 18, 2011, due to a heart attack and irregular heartbeat. R. at 10, 198-99,
237. The Commissioner denied Plaintiff’s application initially and again on reconsideration, so
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 81-102, 105-12,
115-16. On April 11, 2014, ALJ Larry K. Banks held a hearing in Washington, D.C., at which
Plaintiff and a vocational expert (“VE”) testified. R. at 22-55. At the hearing, Plaintiff amended
his alleged onset date of disability to September 1, 2012. R. at 28, 223-25. On June 9, 2014, the
ALJ issued a decision finding Plaintiff not disabled from the amended alleged onset date of
disability of September 1, 2012, through the date of the decision. R. at 7-21. Plaintiff sought
review of this decision by the Appeals Council, which denied Plaintiff’s request for review on
August 7, 2015. R. at 1-6, 296. The ALJ’s decision thus became the final decision of the
Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.
Ct. 2080, 2083 (2000).
On October 8, 2015, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.

The case subsequently was

reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
submitted.

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II
Summary of Evidence
A.

State Agency Medical Consultants
On March 7, 2012, a state agency consultant, L. Robbins, M.D., assessed Plaintiff’s

physical residual functional capacity (“RFC”). R. at 85-86. Dr. Robbins opined that Plaintiff
could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand
and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in
an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 85-86. Plaintiff
occasionally could climb, balance, stoop, kneel, crouch, and crawl, but he had no manipulative,
visual, communicative, or environmental limitations. R. at 86.
On June 12, 2012, another state agency consultant, S.K. Najar, M.D., expressed the same
opinion about Plaintiff’s exertional, postural, manipulative, visual, and communicative
limitations. R. at 94-96. Dr. Najar opined, however, that Plaintiff was to avoid concentrated
exposure to extreme cold. R. at 96.
B.

Hearing Testimony
1.

Plaintiff’s Testimony

The ALJ reviewed Plaintiff’s testimony in his decision:
[Plaintiff] alleges disabling limitations due to a heart attack and irregular
heart beat [R. at 236-43.] He testified that he stopped working due to a heart
attack. He reported having his first heart attack in March 2011 [R. at 25-52.] He
reported no prior history of heart disease (Id.). He also had exploratory
gallbladder surgery (Id.). He returned to work for approximately one month in
2012, but he had a second heart attack in June 2012, followed by a cardiac
catheterization. He reported a third heart attack in August 2013, followed by
additional cardiac catheterizations (Id.). [Plaintiff] reports continued chest pain
(Id.). He takes nitroglycerine (Id.).
R. at 13.

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2.

VE Testimony

The VE testified that a hypothetical individual with Plaintiff’s same age, education, work
experience, and the RFC outlined below in Part III could not perform Plaintiff’s past work but
could perform the unskilled, light and sedentary jobs of pre-assembler for printed circuit boards,
mail clerk, assembler II for small products, taper for printed circuit boards, order clerk for food
and beverage, and final assembler for bench work.3 R. at 52-54. According to the VE, his
testimony was consistent with the Dictionary of Occupational Titles.4 R. at 54. A person “off
task” at least 20% of the workday would not be able to do any work. R. at 54.
III
Summary of ALJ’s Decision
On June 9, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial gainful
activity since the amended alleged onset date of disability of September 1, 2012; and (2) had an
impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.

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“Unskilled work is work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). “Sedentary work
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools.” Id. § 404.1567(a). “Light work involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”
Id. § 404.1567(b).
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“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d
148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 404.1566(d)(1). “Information contained in the
[Dictionary of Occupational Titles] is not conclusive evidence of the existence of jobs in the
national economy; however, it can be used to establish a rebuttable presumption.” English v.
Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
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pt. 404, subpt. P, app. 1; and (4) was unable to perform his past relevant work; but (5) could
perform other work in the national economy, such as a taper for printed circuit boards, order
clerk for food and beverage, and final assembler for bench work. R. at 12-16. The ALJ thus
found that he was not disabled from September 1, 2012, through the date of the decision. R. at
16.
In so finding, the ALJ found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] should
do no climbing of ropes, ladders, or scaffolds; can perform other postural
movements such as stooping on an occasional basis; should do no work around
dangerous machinery or unprotected heights; should avoid temperature extremes;
due to pain and possible side effects of medications, [Plaintiff] is limited to
performing simple instructions (no complex tasks); and due to concentration and
focus problems, [Plaintiff] would be off-task 5% of the workday.
R. at 12-13. The ALJ also considered Plaintiff’s credibility and found that his “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [his] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” R. at 13.
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.

§§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do
his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists . . . in significant numbers either in the

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region where such individual lives or in several regions of the country.”

42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.

20 C.F.R.

§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).5

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The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
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Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(iii),

404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),

416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).

The claimant is responsible for providing evidence the

Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”

20 C.F.R.

§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.

Id. §§ 404.1520(a)(4)(iv),

416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,

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education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
national economy.

See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.

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1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
VI
Discussion
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security
Ruling6 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-7,
ECF No. 15-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of his ability to perform the physical and mental demands of work. Id. at 6. In
particular, he contends that the ALJ did not explain his finding that Plaintiff “would be off-task
5% of the workday” because of problems with concentration and focus (R. at 13). Id. Plaintiff
further asserts that the ALJ erroneously evaluated his subjective complaints. Id. at 7-9. Because
inadequacy of the ALJ’s analysis frustrates meaningful review, the Court remands this case for
further proceedings.
SSR 96-8p explains how adjudicators should assess RFC and instructs that the RFC
“assessment must first identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function
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Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
n.3.
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basis, including the functions” listed in the regulations. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” The Ruling further
explains that the residual functional capacity “assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations).”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, remand 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.” Id. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform
them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 2016) (remanding
because ALJ erred in not determining claimant’s RFC using function-by-function analysis; ALJ
erroneously expressed claimant’s RFC first and then concluded that limitations caused by
claimant’s impairments were consistent with that RFC).
Here, the ALJ found, among other things, that Plaintiff would be off task up to 5% of the
workday because of problems with concentration and focus. R. at 13, 53. Remand under the
fourth sentence of 42 U.S.C. § 405(g) is warranted here, however, because it is unclear how the

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ALJ reached that particular conclusion. See Chandler v. Comm’r, Soc. Sec. Admin., Civil No.
SAG-15-1408, 2016 WL 750549, at *2 (D. Md. Feb. 24, 2016). While “there is no rigid
requirement that the ALJ specifically refer to every piece of evidence in his decision,” Reid v.
Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005) (per curiam)), “the ALJ ‘must build an accurate and logical bridge
from the evidence to his conclusion,’” which the ALJ did not do so here. Monroe, 826 F.3d at
189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). Although Defendant contends
that any error by the ALJ was harmless, “the Fourth Circuit has declined to find harmless error
where an error or omission precludes meaningful review.” Jeffries ex rel. J.J.J. v. Comm’r, Soc.
Sec., No. JKB-15-1727, 2016 WL 3162800, at *2 (D. Md. June 7, 2016) (citing Fox v. Colvin,
632 F. App’x 750, 756 (4th Cir. 2015) (per curiam); Mascio, 780 F.3d at 636-37); see Radford,
734 F.3d at 296. In short, the ALJ “failed to explain why he equated the facts to a [5%]
reduction as opposed to the [20%] reduction he contemplated (or, for that matter, any other
number). The ALJ’s failure to connect his factual findings to his chosen number is particularly
disconcerting because . . . the figure he discarded would have meant disability according to the
VE’s testimony” (R. at 54). Lobbes v. Colvin, No. 4:13-CV-57-RLY-WGH, 2014 WL 1607617,
at *20 (S.D. Ind. Apr. 22, 2014); see Sterling v. Colvin, No. 1:13-CV-01132-SEB, 2014 WL
4328682, at *3 (S.D. Ind. Aug. 29, 2014) (“[I]t is inconsistent to determine [the claimant] has
these moderate limitations [in social functioning and in maintaining concentration, persistence,
or pace], yet also determine without explanation that she is able to stay on-task for 96-100% of
the workday. The logical bridge here is not sound.

If the ALJ believed [the claimant’s]

moderate limitations would not significantly impact her productivity, he needed to articulate

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why. Without such explanation, his decision is not supported by substantial evidence.” (citation
omitted)).
The Fourth Circuit has “held that ‘[a] necessary predicate to engaging in substantial
evidence review is a record of the basis for the ALJ’s ruling,’ including ‘a discussion of which
evidence the ALJ found credible and why, and specific application of the pertinent legal
requirements to the record evidence.’” Monroe, 826 F.3d at 189 (alteration in original) (quoting
Radford, 734 F.3d at 295). Because the inadequacy of the ALJ’s analysis frustrates meaningful
review, remand under the fourth sentence of 42 U.S.C. § 405(g) is appropriate, see Mascio, 780
F.3d at 636, and the Court need not address Plaintiff’s remaining arguments.
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 16) is
DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 15) is GRANTED. Defendant’s final decision is
REVERSED IN PART under the fourth sentence of 42 U.S.C. § 405(g).

This matter is

REMANDED for further proceedings consistent with this opinion. A separate order will issue.

Date: March 20, 2017

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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