Nelson v. Colvin

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/30/2018. (jrs, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
WILLIAM A. NELSON, III,

*
*
Plaintiff,
*
*
v.
*
*
*
NANCY A. BERRYHILL,
*
Acting Commissioner of Social Security,
*
*
1
Defendant.
*
************

Civil No. TMD 17-191

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff William A. Nelson, III seeks judicial review under 42 U.S.C. §§ 405(g) and
1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the
“Commissioner”) denying his applications for disability insurance benefits (“DIB”) and for
Supplemental Security Income (“SSI”) under Titles II and XVI 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

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.

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.
I
Background
Plaintiff was born in 1966, has a ninth-grade education, and previously worked as a
cemetery worker. R. at 29, 46. Plaintiff protectively filed applications for DIB and for SSI on
May 8, 2013, alleging disability beginning on February 14, 2012, due to a herniated disc in his
neck and to back, shoulder, and arm pain. R. at 17, 19. The Commissioner denied Plaintiff’s
applications initially and again on reconsideration, so Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). R. at 68-117, 122-30. On February 17, 2016, ALJ Francine
L. Applewhite held a hearing in Washington, D.C., at which Plaintiff and a vocational expert
(“VE”) testified. R. at 37-67. On March 18, 2016, the ALJ issued a decision finding Plaintiff
not disabled from the alleged onset date of disability of February 14, 2012, through the date of
the decision. R. at 14-36. Plaintiff sought review of this decision by the Appeals Council, which
denied Plaintiff’s request for review on November 21, 2016. R. at 1-5, 9-13. The ALJ’s
decision thus became the final decision of the Commissioner.

See 20 C.F.R. §§ 404.981,

416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S. Ct. 2080, 2083 (2000).
On January 20, 2017, 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.

2

II
Summary of Evidence
A.

Plaintiff’s Testimony
The ALJ reviewed Plaintiff’s testimony in her decision:
[Plaintiff] alleges that he cannot lift more than 15 pounds; cannot squat,
climb, jump, or pull; can only bend forward a little for approximately 15 seconds
before he needs to stand straight; can stand 20 minutes before needing to sit; and
can sit 45 minutes. He further alleges than his pain interferes with his sleep and
he spends most of his time in a recliner. [Plaintiff] alleges that he does not cook
on the stove because he is limited in his ability to bend or stand. According to
[Plaintiff], his conditions affect his ability to reach, kneel, and see. He alleges
that he sometimes does not follow spoken instructions well and his medications
cause drowsiness and forgetfulness. [Plaintiff] alleges to have constant pain in his
left leg. On appeal, [Plaintiff] alleges to have difficulty caring for his personal
needs, cooking, cleaning. Driving, shopping, and handling his finances.
[Plaintiff] testified that he can sit for five to ten minutes; can stand five minutes in
one place[;] can walk one block; and can lift a gallon of milk. According to
[Plaintiff], he is on oxygen and he believes his COPD is getting worse. He
alleges that he has shortness of breath and wheezes a lot. [Plaintiff] testified that
he stopped smoking three months ago. According to [Plaintiff], he cannot do a
sedentary job because of pain, vision, and instability.

R. at 24 (citations omitted); see R. at 45-57.
B.

VE Testimony
The VE testified that a hypothetical individual with Plaintiff’s same age, education, and

work experience with the residual functional capacity (“RFC”) outlined below in Part III could
not perform Plaintiff’s past relevant work but could perform the unskilled, light jobs of router,
office helper, or counter clerk. R. at 61-62. A person “off task” at least 20% of the workday
would not be able to perform any work. R. at 64.

3

III
Summary of ALJ’s Decision
On March 18, 2016, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of February 14, 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.
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 router, office helper, or counter clerk. R.
at 19-30. The ALJ thus found that he was not disabled from February 14, 2012, through the date
of the decision. R. at 30.
In so finding, the ALJ found that Plaintiff had the RFC “to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except no climbing of ladders, ropes, or scaffolds;
occasional climbing of stairs, or ramps; occasional stooping, crouching, crawling, or kneeling;
occasional exposure to irritants such as dust, odors, fumes, gases, chemical, and poorly ventilated
areas.” R. at 23. The ALJ 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 24. The
ALJ found that Plaintiff “did not provide a rationale for the alleged onset date in his testimony.”
R. at 26. The ALJ further found that Plaintiff that he “alleges [that he is] limited to sitting five to
ten minutes; however, he testified that he travels 40 minutes in a car monthly to see his pain

4

management doctor.”

R. at 26.

“These inconsistencies further undermine [Plaintiff’s]

credibility.” R. at 26.
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
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).

5

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).3
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.
3

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.
6

§§ 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,
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).

7

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.
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).

8

VI
Discussion
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security
Ruling4 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 6-16,
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 8. Plaintiff
further contends that the ALJ erroneously evaluated the opinions of Dr. Paden, his treating
physician. Id. at 13-16. For the reasons discussed below, 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
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

4

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.
9

‘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 that “Dr. Paden’s opinions are wholly inconsistent with the medical
record detailed above” in the decision. R. at 28. However, while “there is no rigid requirement
that the ALJ specifically refer to every piece of evidence in [her] 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 [her] conclusion.’” Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000)). The ALJ’s finding that Dr. Paden’s opinions “are wholly inconsistent
with the medical record” precludes meaningful review. See id. at 191. The ALJ also failed to
explain how, despite Plaintiff’s impairments, he could remain on task more than 80% of an
eight-hour workday. The ALJ “must build a logical bridge between the limitations [she] finds
and the VE evidence relied upon to carry the Commissioner’s burden at step five in finding that

10

there are a significant number of jobs available to a claimant.” Brent v. Astrue, 879 F. Supp. 2d
941, 953 (N.D. Ill. 2012). An ALJ’s failure to do so constitutes reversible error. Lewis v.
Berryhill, 858 F.3d 858, 868 (4th Cir. 2017). In short, the inadequacy of the ALJ’s analysis
frustrates meaningful review. See Ashcraft v. Colvin, No. 3:13-cv-00417-RLV-DCK, 2015 WL
9304561, at *11 (W.D.N.C. Dec. 21, 2015) (remanding under fourth sentence of 42 U.S.C.
§ 405(g) because court was unable to review meaningfully ALJ’s decision that failed to explain
exclusion from RFC assessment an additional limitation of being 20% off task that VE testified
would preclude employment). Remand under the fourth sentence of 42 U.S.C. § 405(g) thus is
appropriate, 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 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 30, 2018

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

11