Leach v. Colvin
Filing
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MEMORANDUM & ORDER granting 21 Motion for Judgment on the Pleadings; denying 23 Motion for Judgment on the Pleadings. The Commissioner's final decision is remanded for further consideration. Signed by Magistrate Judge Robert T. Numbers, II on 1/4/2016. (Herrmann, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:15-CV-00021-RN
Lavoris Leach,
Plaintiff,
v.
Memorandum & Order
Carolyn Colvin, Acting Commissioner of
Social Security,
Defendant.
Plaintiff Lavoris Leach instituted this action on February 18, 2015 to challenge the denial
of her application for social security income. Leach claims that Administrative Law Judge
Edward Bowling erred in failing to account for all of her impairments in both the residual
functional capacity (“RFC”) assessment and the hypothetical questions posed to the Vocational
Examiner (“VE”) and in failing to consider a favorable Medicaid decision as required by S.S.R.
06-03p. Both Leach and Defendant Carolyn Colvin, the Acting Commissioner of Social Security,
have filed motions seeking a judgment in their favor. D.E. 21, 23.
After reviewing the parties’ arguments, the court has determined that ALJ Bowling erred
in his decision. ALJ Bowling’s determination is not supported by substantial evidence as he
failed to properly account for Leach’s limitations in concentration, persistence, and pace.
Additionally, a favorable Medicaid decision warrants consideration. Therefore, the court grants
Leach’s Motion for Judgment on the Pleadings, denies Colvin’s Motion for Judgment on the
Pleadings, and directs that the Commissioner’s final decision be remanded for further
consideration.
I.
Background
On January 28, 2010, Leach filed applications for disability insurance benefits and
supplemental security income on the basis of a disability that allegedly began on October 5,
2009. After her claim was denied at both the initial stage and upon reconsideration, Leach
appeared for a hearing before an Administrative Law Judge (“ALJ”). Her applications were
denied but, on appeal, the Appeals Council remanded the matter. Leach appeared via videoconference before ALJ Bowling for a second hearing on April 16, 2013. ALJ Bowling
determined that Leach was not entitled to benefits because she was not disabled. Tr. at 18–29.
In his decision, ALJ Bowling found that Leach had the following severe impairments:
obesity, hypertension, headaches, depression, and anxiety. Id. at 21. ALJ Bowling also found
that her impairments, alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Bowling determined that Leach had the RFC to perform medium work with the following
limitations: she can never climb ropes, ladders, or scaffolds; she should avoid concentrated
exposure to hazards; she should avoid concentrated exposure to odors, gases, dust, and fumes;
she can perform simple, routine, repetitive tasks; she can apply commonsense understanding to
carry out oral, written, and diagrammatic instructions; and she can have frequent contact with the
public and coworkers. Id. at 23. ALJ Bowling concluded that Leach was able to perform her past
work as a turkey cleaner, a production assembler, and a meat packager. Id. at 28. Thus, ALJ
Bowling found that Leach was not disabled. Id. at 29. After unsuccessfully seeking review by
the Appeals Council, Leach commenced this action and filed a complaint pursuant to 42 U.S.C. §
405(g) on February 18, 2015. D.E. 6.
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II.
Analysis
A.
Standard for Review of the Acting Commissioner’s Final Decision
When a social-security claimant appeals a final decision of the Commissioner, the district
court’s review is limited to the determination of whether, based on the entire administrative
record, there is substantial evidence to support the Commissioner’s findings. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as
“evidence which a reasoning mind would accept as sufficient to support a particular conclusion.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640,
642 (4th Cir. 1966)). If the Commissioner’s decision is supported by such evidence, it must be
affirmed. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B.
Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process.
20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650, 653–54 (4th Cir. 2005). The
analysis requires the ALJ to consider the following enumerated factors sequentially. At step one,
if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step
two, the claim is denied if the claimant does not have a severe impairment or combination of
impairments significantly limiting him or her from performing basic work activities. At step
three, the claimant’s impairment is compared to those in the Listing of Impairments. See 20
C.F.R. Pt. 404, Subpt. P, App. 1. If the impairment is listed in the Listing of Impairments or if it
is equivalent to a listed impairment, disability is conclusively presumed.
However, if the
claimant’s impairment does not meet or equal a listed impairment, then, at step four, the
claimant’s RFC is assessed to determine whether the claimant can perform his past work despite
his impairments. If the claimant cannot perform past relevant work, the analysis moves on to
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step five: establishing whether the claimant, based on his age, work experience, and RFC can
perform other substantial gainful work. The burden of proof is on the claimant for the first four
steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995).
C.
Residual functional capacity
Leach contends that ALJ Bowling erred in determining her RFC and in posing
hypothetical questions to the VE. In discussing whether Leach established the “paragraph B”
criteria1 at step three, ALJ Bowling found that she had moderate limitations in concentration,
persistence, and pace.2 Tr. at 22. ALJ Bowling noted that Leach watches television and reads
the Bible. Id. ALJ Bowling’s RFC determination limited her to simple, routine, repetitive tasks
and found she could apply commonsense understanding to carry out oral, written, and
diagrammatic instructions with frequent contact with coworkers and the general public. Id. at
23, 28. ALJ Bowling posed the following hypothetical question to the VE:
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At step three of the sequential evaluation, the ALJ determines whether a claimant’s
impairments meet or medically equal any of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. Listings 12.00 et. seq., pertaining to mental impairments. 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 12.00. Each listing therein consists of: (1) a brief statement describing
its subject disorder; (2) “paragraph A criteria,” which consists of a set of medical findings; and
(3) “paragraph B criteria,” which consists of a set of impairment-related functional limitations.
Id. § 12.00(A). If both the paragraph A criteria and the paragraph B criteria are satisfied, the
ALJ will determine that the claimant meets the listed impairment. Id. Paragraph B consists of
four broad functional areas: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence, or pace; and (4) episodes of decompensation.
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The functional area of “concentration, persistence, or pace refers to the ability to sustain
focused attention and concentration sufficiently long to permit the timely and appropriate
completion of tasks commonly found in work settings.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.00(C)(3).
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Assume . . . a hypothetical individual [who] would be limited to simple, routine,
repetitive tasks and by that I mean they could apply commonsense understanding
to oral, written, and diagrammatic instructions[.]
Id. at 57. Leach asserts that a limitation to simple, routine, repetitive tasks does not
properly account for moderate limitations in the ability to maintain concentration,
persistence, and pace.
In Mascio v. Colvin, the Fourth Circuit joined the Third, Seventh, and Eighth Circuits by
holding that “an ALJ does not account ‘for a claimant’s limitations in concentration, persistence,
and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.’”
780 F.3d 632, 638 (4th Cir. 2015) (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1180 (11th Cir. 2011)). The Fourth Circuit noted that “the ability to perform simple tasks differs
from the ability to stay on task. Only the latter limitation would account for a claimant’s
limitation in concentration, persistence, or pace.” Id. The Fourth Circuit noted the possibility
that an ALJ could offer an explanation regarding why a claimant's moderate limitation in
concentration, persistence, or pace, at step three did not translate into a limitation in the
claimant's RFC assessment, such that the apparent discrepancy would not constitute reversible
error. Id. Because the ALJ in Mascio found at step three that the claimant had limitations in this
functional area, but did not account for such limitations in the hypothetical questions at step five,
the Fourth Circuit found that remand was appropriate. Id.
The Commissioner asserts that Mascio is distinguishable from the present case because
Mascio held that simple, routine tasks or unskilled work did not account for limitations in
concentration, persistence, or pace. Here, however, ALJ Bowling did not simply limit her to
simple, routine, repetitive tasks. Instead, the Commissioner maintains, ALJ Bowling accounted
for Leach’s limitations in concentration, persistence, and pace by including in the hypothetical
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question the use of commonsense understanding to carry out oral, written, and diagrammatic
instructions. The Commissioner further contends that ALJ Bowling’s RFC and hypothetical
questions found that Leach could have frequent contact with coworkers and the public. The court
fails to find these differences persuasive so as to distinguish, and decline to follow, Mascio’s
holding.
North Carolina federal district courts that address this issue from Mascio have almost
exclusively determined that remand was warranted because the limitation in concentration,
persistence, and pace was not accounted for in the RFC and/or hypothetical question to the VE.
See Weeks v. Colvin, No. 5:14-cv-155-D, 2015 WL 5242927, at *4 (E.D.N.C. Sept. 8, 2015)
(limitation to simple, routine, repetitive tasks with only occasional contact with the general
public and few workplace changes did not sufficiently address claimant’s limitations in pace);
Taylor v. Colvin, No. 1:14-cv-629, 2015 WL 4726906 (M.D.N.C. Aug. 10, 2015) (RFC
determination that claimant could understand, remember, and carry out one and two step
instructions/tasks did not reflect address moderate limitations in concentration, persistence, and
pace); Scruggs v. Colvin, No. 3:14–cv–00466–MOC, 2015 WL 2250890, at *5 (W.D.N.C. May
13, 2015) (finding that an ability to perform simple, routine, repetitive tasks in a nonproduction
environment, without more, does not account for claimant’s moderate difficulties in
concentration, persistence and pace); Raynor v. Colvin, No. 5:14–CV–271–BO, 2015 WL
1548996, at *2 (E.D.N.C. Apr. 7, 2015) (remanding where the hypothetical posed to the VE did
not pose any limitations related to concentration and persistence other than limiting plaintiff to
simple, routine tasks and the ALJ’s written decision limited plaintiff to work with simple
instructions and work-related decisions as well as no fast-paced production); Salmon v Colvin,
No. 1:12-cv-1209, 2015 WL 1526020, at *3 (M.D.N.C. Apr. 2, 2015) (holding that a
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hypothetical limiting claimant to “simple, routine, repetitive tasks in that [she] could apply
commonsense understanding to carry out instructions furnished on a written, oral, or
diagrammatic form” did not account for claimant’s moderate limitations in concentration,
persistence and pace and did not address her ability to say on task).
In the present case, as noted above, the hypothetical question to the VE contemplated an
individual limited to simple, routine, repetitive tasks; who could follow oral, written, and
diagrammatic instructions; and who could have frequent interactions with the public and
coworkers. The majority of courts in North Carolina, including this court, have held that such
restrictions do not adequately address a claimant’s moderate limitations in concentration,
persistence and pace. See Weeks, 2015 WL 4510238; Salmon, 2015 WL 1526020.
Although an ALJ’s findings at step three may not require any additional limitations for
concentration, persistence, or pace in the RFC, the ALJ must at least provide a sufficient
explanation in the decision to allow the court to conduct meaningful review of the RFC
determination. See Scruggs, 2015 WL 2250890, at *5; Reinhardt v. Colvin, No. 3:14–cv–
00488–MOC, 2015 WL 1756480, at *3 (W.D.N.C. Apr. 17, 2015). However, ALJ Bowling’s
decision does not explain how he accounted for the moderate limitations in concentration,
persistence, and pace when formulating Leach’s RFC. His step-three discussion determining
whether her mental impairments meet a Listing does not sufficiently address the limitations in
concentration, persistence, and pace as they relate to the RFC as required by Mascio. Given
these cases, remand for further consideration of Leach’s moderate limitations in concentration,
persistence, and pace as they impact other work is appropriate.
For these reasons, Leach’s motion is granted on this issue. On remand, the ALJ should
specifically state how the RFC determination reflected Leach’s limitations in concentration,
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persistence, and pace3 and whether the ALJ determines that the moderate limitations in
concentration, persistence, and pace has no impact on Leach’s ability to work.
D.
Medicaid decision
On May 24, 2012, Leach was approved for Medicaid by the North Carolina Department
of Health and Human Services. Tr. at 331. Although this evidence was not available at the
hearing stage, it was presented to the Appeals Council. Thus, it must be considered. Brown v.
Comm’r of Soc. Soc., 969 F. Supp. 2d 433, 444 (citing Wilkins v. Secr’y, Dept. of Health &
Human Servs., 953 F.2d 93, 95–96 (4th Cir. 1991)).
As provided at 20 C.F.R. § 404.1504 and further explained in Social Security Ruling
(“S.S.R.”) 06–03p, “a determination made by another agency that [the claimant is] disabled or
blind is not binding on” the Social Security Administration. 20 C.F.R. § 404.1504. Rather, “the
ultimate responsibility for determining whether an individual is disabled under Social Security
law rests with the Commissioner.” S.S.R. 06–03p. However, the Fourth Circuit addressed the
value of disability findings by other agencies in Bird v. Commissioner of Social Security
Administration, 699 F.3d 337 (4th Cir. 2012). The Court of Appeals noted that while another
agency’s disability determination is not binding on the SSA, “another agency’s disability
determination ‘cannot be ignored and must be considered.’” Bird, 699 F.3d at 343. In
considering the weight to give a decision of the Veterans Administration (“VA”) in particular,
the Fourth Circuit held:
The assignment of at least some weight to a VA disability determination reflects
the fact that both the VA and Social Security programs serve the same
governmental purpose of providing benefits to persons unable to work because of
a serious disability. Both programs evaluate a claimant’s ability to perform full3
Given the case law cited above, it would be seem that the RFC limitation, as stated, could not
account for moderate limitations in concentration, persistence, and pace.
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time work in the national economy on a sustained and continuing basis; both
focus on analyzing a claimant's functional limitations; and both require claimants
to present extensive medical documentation in support of their claims.
Bird, 699 F.3d at 343 (internal quotations omitted). The Fourth Circuit therefore concluded that
“in making a disability determination, the SSA must give substantial weight to a VA disability
rating,” and “an ALJ may give less weight to a VA disability rating when the record before the
ALJ clearly demonstrates that such a deviation is appropriate.” Id.
Leach posits that both the Medicaid and SSA determinations are based on the same
regulations. Presumably, NCHHS relied upon many of the same records Leach presented for her
instant disability application. Given that remand of the matter is warranted in light of Mascio, the
NCHHS Medicaid decision should be considered upon remand in accordance with Bird and
S.S.R. 06-03p.4
III.
Conclusion
For the forgoing reasons, the court grants Leach’s Motion for Judgment on the Pleadings
(D.E. 21), denies Colvin’s Motion for Judgment on the Pleadings (D.E. 23), and directs that the
Commissioner’s final decision be remanded for further consideration.
Dated: January 4, 2016.
________________________________
ROBERT T. NUMBERS, II
UNITED STATES MAGISTRATE JUDGE
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On remand, the ALJ might well conclude on this record that Plaintiff’s Medicaid eligibility
finding should be given substantially less weight than the Bird’s presumption requires. But that
analysis is for the ALJ to perform in the first instance inasmuch as it is not the job of a reviewing
court to substitute its own analysis of the evidence. Persaud v. Colvin, No. 2:12-cv-661, 2014
WL 198922, at *11 (E.D. Va. Jan. 14, 2014).
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