Cole v. Colvin

Filing 29

ORDER granting 22 Motion for Judgment on the Pleadings and denying 24 Motion for Judgment on the Pleadings. Signed by District Judge Terrence W. Boyle on 1/21/2017. (Stouch, L.) Modified on 1/23/2017 to correct signing date. (Stouch, L.).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-34-BO
JERRY COLE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This cause comes before the Court on cross-motions for judgment on the pleadings. A
hearing was held on the matters before the undersigned on December 15, 2016, at Raleigh, North
Carolina. For the reasons discussed below, the decision of the Administrative Law Judge is
remanded for further proceedings.
BACKGROUND
Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the
final decision of the Commissioner denying his claim for supplemental security income (SSI)
pursuant to Title XVI of the Social Security Act. Plaintiff protectively filed for SSI on March
15, 2012, alleging disability since February 28, 2012. After initial denials, a hearing was held
before an Administrative Law Judge (ALJ) who issued an unfavorable ruling. The decision of
the ALJ became the final decision of the Commissioner when the Appeals Council denied
plaintiff’s request for review.
decision in this Court.

Plaintiff then timely sought review of the Commissioner’s

DISCUSSION
Under the Social Security Act, 42 U.S.C. § 405(g), and 1383(c)(3), this Court’s review of
the Commissioner’s decision is limited to determining whether the decision, as a whole, is
supported by substantial evidence and whether the Commissioner employed the correct legal
standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and
citation omitted).
An individual is considered disabled if he is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than [twelve] months.” 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual “shall be determined to be under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other line of substantial
gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation
process to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision
regarding disability can be made at any step of the process, however, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

At step one, if the Social Security Administration determines that the claimant is
currently engaged in substantial gainful activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination of impairments. If the claimant
has a severe impairment, it is compared at step three to those in the Listing of Impairments
(“Listing”) in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant’s impairment meets or
medically equals a Listing, disability is conclusively presumed.

If not, at step four, the

claimant’s residual functional capacity (RFC) is assessed to determine if the claimant can
perform his past relevant work. If so, the claim is denied. If the claimant cannot perform past
relevant work, then the burden shifts to the Commissioner at step five to show that the claimant,
based on his age, education, work experience, and RFC, can perform other substantial gainful
work. If the claimant cannot perform other work, then he is found to be disabled. See 20 C.F.R.
§ 416.920(a)(4).
At step one, the ALJ determined that plaintiff had not engaged in substantial gainful
activity since his alleged onset date.

Plaintiff’s seizure disorder, dysthymic disorder, and

cognitive disorder/borderline intellectual functioning were considered severe impairments at step
two but were not found alone or in combination to meet or equal a Listing at step three. The ALJ
concluded that plaintiff had the RFC to perform medium work with exertional and nonexertional limitations. Specifically, the ALJ found that plaintiff must avoid hazards, was limited
to simple, routine, repetitive tasks, and must avoid production work or similar fast-paced work
with deadlines and quotas. The ALJ found that plaintiff could not return to his past relevant
work as an insulation installer, but that, considering plaintiff’s age, education, work experience,
and RFC, there were other jobs that exist in significant numbers in the national economy that

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plaintiff could perform, including cleaner, hand packager, and laundry worker. Thus, the ALJ
determined that plaintiff was not disabled as of the date of his decision, May 23, 2014.
In Mascio v. Colvin, the court of appeals held 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.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180
(11th Cir.2011) (joining the Third, Seventh, and Eighth Circuits). As Mascio
points out, 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.
780 F.3d 632, 638 (4th Cir. 2015). Here, the ALJ found plaintiff to have moderate difficulties
with concentration, persistence, and pace. Tr. 17. However, the RFC formulated by the ALJ,
while it does address plaintiff’s limitations in regard to pace, does not account for plaintiff’s
difficulties with persistence or concentration. See e.g. Scruggs v. Colvin, No. 3:14-CV-00466MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015) (limitation to simple, routine,
repetitive tasks in non-production environment, without more, does not sufficiently address
claimant’s difficulties with concentration, persistence, and pace). The ALJ’s limitation is further
unsupported in light of his applying great weight to the opinion of Dr. Vergolias, Tr. 22, who
opined that plaintiff may have difficulty with sustained attention and recall of directions and
found that plaintiff had significant difficulty with numerical sequencing tasks. Tr. 813-14. As
noted in Mascio, whether a claimant can stay on task is a different inquiry from whether a
claimant can perform simple tasks. Because the ALJ failed to account for plaintiff’s limitations
in these areas or explain why limitation beyond simple, routine, repetitive tasks in a low-pace
environment was not necessary, remand is appropriate.
On remand the ALJ should further provide an explanation of the consideration he has
given to the favorable North Carolina Department of Health and Human Services Medicaid
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decision. See Baughman v. Colvin, No. 5:13-CV-143-FL, 2014 WL 3345030, at *7 (E.D.N.C.
July 8, 2014) (cursory dismissal of Medicaid decision as not binding fails to satisfy explanation
requirement of SSR 06-03p).
CONCLUSION

For the foregoing reasons, plaintiffs motion for judgment on the pleadings [DE 22] is
GRANTED and defendant's motion for judgment on the pleadings [DE 24] is DENIED. The
decision of the ALJ is REMANDED to the Commissioner for further proceedings consistent
with the foregoing.

SO ORDERED, this

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day of January, 2017.

T RRENCE W. BOYLE
UNITED STATES DISTRIC

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