Wakefield v. Berryhill

Filing 20

MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 9/26/2018. (jrs, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
DIANNE WAKEFIELD,

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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 17-521

MEMORANDUM OPINION GRANTING PLAINTIFF’S
ALTERNATIVE MOTION FOR REMAND
Plaintiff Dianne Wakefield 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 her applications for disability insurance benefits and for Supplemental
Security Income 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. 16) and
Defendant’s Motion for Summary Judgment (ECF No. 19).2

Plaintiff contends that the

administrative record does not contain substantial evidence to support the Commissioner’s

1

On April 17, 2018, Nancy A. Berryhill became the Acting Commissioner of Social Security.
See 5 U.S.C. § 3346(a)(2); Patterson v. Berryhill, No. 2:18-cv-00193-DWA, slip op. at 2 (W.D.
Pa. June 14, 2018).
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.

decision that she is not disabled. No hearing is necessary. L.R. 105.6. For the reasons that
follow, Plaintiff’s alternative motion for remand (ECF No. 16) is GRANTED.
I
Background
On February 22, 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 then was reassigned to
the undersigned. The parties have briefed the issues, and the matter is now fully submitted.
II
Summary of Evidence
A.

Plaintiff’s Testimony
In his October 13, 2015, decision, Administrative Law Judge (“ALJ”) Eugene Bond

reviewed Plaintiff’s testimony from the hearing on June 25, 2015, where Plaintiff and a
vocational expert (“VE”) testified:
[Plaintiff] alleges disabling limitations due to panic, anxiety attacks,
COPD, depression, high blood pressure, and vertigo. [Plaintiff] testified that she
stopped working because she was terminated. She stated that she does not know
why she was terminated. She stated that she has not looked for other work
because she is ill. She stated that she can stand for ten minutes at a time. She
testified that she stopped driving one year ago, but she stopped because her neck
“really really bothers” her. She reported daily neck pain radiating throughout her
arms and legs, worse in her right arm. [Plaintiff] stated that she has low back
pain. She reported that her daughter lives with her; her daughter and sister do
grocery shopping and she receives rides to doctor’s appointments. On a typical
day, she wakes up in pain, takes her prescribed medications, and lies in her bed.
[Plaintiff] stated that she takes medication for depression and anxiety. She
reported medication side effects including sleepiness and drowsiness. [Plaintiff’s]
representative added that [Plaintiff] uses a cane for ambulation.
R. at 17 (citation omitted).

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B.

VE Testimony
The VE testified that a hypothetical individual with the same age, education, and work

experience as Plaintiff and with the residual functional capacity (“RFC”) outlined below in Part
III could perform Plaintiff’s past relevant work as a group home manager and mental health
worker. R. at 68-69. Being off task up to 20% of a day would preclude all work, however. R. at
69. A person absent for two days per week could not perform any work on a full-time basis. R.
at 69. According to the VE, his testimony was consistent with the Dictionary of Occupational
Titles.3 R. at 69-70.
III
Summary of ALJ’s Decision
On October 13, 2015, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the amended alleged onset date of July 11, 2009; 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) could perform her past relevant work as a group home manager
and mental health worker. R. at 14-22. The ALJ thus found that she was not disabled from
“June 19, 2007 [sic],” through the date of the decision. R. at 22.

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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), 416.966(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).
3

In so finding, the ALJ found that, with regard to concentration, persistence, or pace,
Plaintiff had moderate difficulties. R. at 15. “[Plaintiff] reported difficulty with completing
tasks and concentration. She testified regarding medication side effects including sleepiness and
drowsiness. However, treatment notes, cited below, do not routinely indicate problems with
concentration.

Therefore, the evidence supports moderate difficulties in concentration,

persistence, and pace.” R. at 15 (citation omitted). The ALJ then found that Plaintiff had the
RFC
to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)
except the work must be skilled. [Plaintiff] requires a sit-stand option at the work
location, defined as sitting for four hours and standing for one hour alternatively
as needed and as required; requirement for a hand-held medically assistive device,
namely a cane, which is used for standing, walking, and balancing constantly;
physical function limitations of reaching, handling, feeling, pushing, and pulling
frequently, and bilateral leg operation frequently; environmental requirement of
frequent exposure to dust, odors, fumes, gases, and pulmonary irritants; ability to
interact with supervisors frequently, coworkers occasionally, and the general
public occasionally; and ability to perform work that does not require satisfaction
of production pace.
R. at 16. The ALJ found that Plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms; however, [her] statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible for the reasons
explained in this decision.” R. at 17.
[Plaintiff’s] regular activities suggest greater abilities than alleged. While
[Plaintiff] testified that she mostly stays in bed during the day and requires help
with personal care, her function report [from August 2011] indicates that she has
no problems with personal care; she prepares simple meals; she performs
household chores such as some cleaning and laundry; she shops in stores for
groceries and household items; talks with family on the internet; and hosts social
gatherings for special occasions.
R. at 17; see R. at 330-38.

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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, 379-80 (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.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

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20 C.F.R.

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).4
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
4

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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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).
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

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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).
VI
Discussion
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security
Ruling5 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 4-15,

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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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ECF No. 16-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of her ability to perform the physical and mental demands of work. Id. at 6. In
particular, she contends that the ALJ did not explain his assessment of her RFC and how she was
capable of performing skilled work despite her moderate limitations in concentration,
persistence, or pace.

Id. at 6-8.

Plaintiff further asserts that the ALJ failed to evaluate

adequately the opinion evidence. Id. at 8-15. 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
‘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

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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).
Plaintiff contends that remand is warranted because the ALJ failed to explain how she
was capable of performing skilled work despite her moderate limitations in concentration,
persistence, or pace. Pl.’s Mem. Supp. Mot. Summ. J. 8, ECF No. 16-1. The regulations define
“unskilled work” as work that can be learned by demonstration in less than thirty days. Lanigan
v. Berryhill, 865 F.3d 558, 565 (7th Cir. 2017) (citing 20 C.F.R. §§ 404.1568, 404.1520).
However, “the speed at which work can be learned is unrelated to whether a person with mental
impairments—i.e., difficulties maintaining concentration, persistence, or pace—can perform
such work.” Id. at 565-66. Plaintiff’s assertion in this regard thus is unavailing.
The ALJ failed, however, to explain how, despite Plaintiff’s limitations, including her
moderate difficulties in maintaining concentration, persistence, or pace, she could remain on task
for more than 80% of an eight-hour workday or not be absent two days per week from a job.
The ALJ “must both identify evidence that supports his conclusion and ‘build an accurate and
logical bridge from [that] evidence to his conclusion.’” Woods v. Berryhill, 888 F.3d 686, 694
(4th Cir. 2018) (alteration in original) (quoting Monroe, 826 F.3d at 189). In particular, the ALJ
“must build a logical bridge between the limitations he finds and the VE evidence relied upon to
carry the Commissioner’s burden at step five in finding that 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

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ALJ’s failure to do so constitutes reversible error. See Lewis v. Berryhill, 858 F.3d 858, 868 (4th
Cir. 2017).
Here, the ALJ found that in 2011 Plaintiff reportedly had no problems with personal care
and could prepare simple meals, perform household chores, shop for groceries, talk with her
family, and host social gatherings. R. at 17. Plaintiff also reported, however, that she prepared
meals weekly with her daughter’s assistance. R. at 332. She further reported that she performed
household chores only weekly, depending on how she felt, and shopped for groceries with a
family member. R. at 332-33. Plaintiff testified in 2015 that her daughter now cooked and
shopped for groceries, as she no longer cooked and only made sandwiches and that she required
assistance with personal care. R. at 60-61, 62, 65. Because of her pain, she spent most of her
day lying in bed. R. at 62. The ALJ here “did not acknowledge the limited extent of those
activities as described by [Plaintiff] or explain how those activities showed that [she] could
sustain a full-time job.” Brown v. Comm’r Soc. Sec. Admin., 873 F.3d 251, 269 (4th Cir. 2017).
“[A] person’s ability to perform daily activities, especially if that can be done only with
significant limitations, does not necessarily translate into an ability to work full-time.” Roddy v.
Astrue, 705 F.3d 631, 639 (7th Cir. 2013); see Lewis, 858 F.3d at 868 n.3; Ross v. Apfel, 218
F.3d 844, 849 (8th Cir. 2000) (“The ability to perform sporadic light activities does not mean
that the claimant is able to perform full time competitive work.”).
The critical differences between activities of daily living and activities in a fulltime job are that a person has more flexibility in scheduling the former than the
latter, can get help from other persons . . . , and is not held to a minimum standard
of performance, as she would be by an employer.
Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012).

Because the ALJ’s “analysis is

incomplete and precludes meaningful review,” remand is appropriate. Monroe, 826 F.3d at 191.

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In short, the inadequacy of the ALJ’s analysis frustrates meaningful review.

See

Lanigan, 865 F.3d at 563 (remanding because, inter alia, ALJ did not build accurate and logical
bridge between claimant’s moderate difficulties in various functional areas and ALJ’s finding
that claimant would not be off task more than 10% of workday); Ashcraft v. Colvin, No. 3:13-cv00417-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 warranted, and the Court does not address Plaintiff’s remaining
arguments. See Monroe, 826 F.3d at 189; see also Testamark v. Berryhill, __ F. App’x __, No.
17-2413, 2018 WL 4215087, at *3 n.2 (4th Cir. Aug. 31, 2018) (per curiam).
VII
Conclusion
For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 19)
is DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 16) is DENIED. Plaintiff’s
alternative motion for remand (ECF No. 16) 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: September 26, 2018

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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