Hornal v. Colvin
ORDER adopting in part 23 Memorandum and Recommendation, granting 17 Motion for Judgment on the Pleadings and denying 19 Motion for Judgment on the Pleadings. This case is remanded to the Commissioner for further proceedings. The Clerk of Court is directed to close this case. Signed by Senior Judge James C. Fox on 2/16/2017. (Grady, B.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
MONICA L. HORNAL,
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Before the court are the following:
(1) the Memorandum and Recommendation ("M&R") [DE-23] of United
States Magistrate Judge Robert B. Jones, Jr.; and
(2) the parties' cross Motions for Judgment on the Pleadings [DE-17, -19].
The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons
addressed below, this court ADOPTS in part the findings and recommendations of the Magistrate
Judge, Plaintiffs Motion for Judgment on the Pleadings [DE-17] is ALLOWED, and
Defendant's Motion for Judgment on the Pleadings [DE-19] is DENIED. This case will be
REMANDED to the Commissioner for further proceedings consistent _with this order.
A. The Magistrate Judge's M&R
1. Legal Standard
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill, Acting
Commissioner of Social Security, has been added as a party. Carolyn W. Calvin's term expired
on January 20, 2017, and she has been terminated as a party.
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This court is charged with making a
de novo determination of those portions of the recommendation to which specific objections are
made, and the court may accept, reject, or modify, in whole or in part, the Magistrate Judge's
recommendation, or recommit the matter to the Magistrate Judge with instructions. See 28
U.S.C. § 636(b)(l). In the absence of a timely-filed objection, a district court need not conduct a
de novo review, but instead must "only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation." Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
On January 13, 2017, the Magistrate Judge issued a M&R, in which he recommended that
Plaintiffs Motion for Judgment on the Pleadings [DE-17] be denied, Defendant's Motion for
Judgment on the Pleadings [DE-19] be allowed, and the Commissioner's final decision be
upheld. The Magistrate Judge advised the parties of the procedures and requirements for filing
objections to the M&R and the consequences if they failed to do so. Plaintiff filed Objections'
[DE-24] to the M&R, to which Defendant filed a Response [DE-27].
2. Plaintiff's Objections to the M&R
a. Plaintiff argues that the Magistrate Judge erred in finding that the
Administrative Law Judge ("ALJ") was not required to assess whether her
sarcoidosis met or equaled Listing 3.02C.
In her first objection, Plaintiff argues that the Magistrate Judge's finding that the ALJ was
not required to discuss her pulmonary test results is inconsistent with the Fourth Circuit Court of
Appeals' holdings in Coo_k v. Heckler, 783 F.2d 1168 (4th Cir. 1986), and Radford v. Colvin, 734
F.3d 288 (4th Cir. 2013). Objections [DE-24] at 1. According to Plaintiff, without such an
explanation, it is simply impossible to determine if the ALJ's decision is supported by substantial
evidence. Id. at 1-2.
At step one in the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since March 15, 2013, her alleged onset date. (Tr. 16). Then, at step
two, the ALJ found that Plaintiffs sarcoidosis, 2 depression/bipolar disorder, and anxiety were
"severe" impairments. 3 (Tr. 16). At step three, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled a listed impairment.
(Tr. 16-17). In coming to this conclusion, the ALJ addressed the application of Listings 3.02A
and 3.02B, but he did not address Listing 3.02C, except to say, "[f]urther the record shows that
the claimant does not have chronic impairment of gas exchange due to clinically documented
pulmonary disease with Single breath DLCO (see 3.00Fl) less than 10.5 ml/min/mm Hg or less
than or equal to 40 percent of the predicated normal value." (Tr. 17).
At the time the ALJ evaluated Plaintiffs case, 4 Listing 3.02C was designated as
"[c]hronic impairment of gas exchange." See 20 C.F.R. pt. 404, Subpt. P, app.l, § 3.02C.
Pursuant to this listing, Plaintiff, a female standing 62" without shoes, 5 was required to have an
average of two unadjusted, single-breath diffusing capacity of the lungs for carbon monoxide
Sarcoidosis is "an inflammatory disease that affects one or more organs but most
commonly affects the lungs and lymph glands. As a result of the inflammation, abnormal lumps
or nodules (called granulomas) form in one or more organs of the body. These granulomas may
change the normal structure and possibly the function of the affected organ(s)." James v. Colvin,
No. 6:13-1078-RMG, 2014 WL 6473529, at *4 n.4 (D.S.C. Nov. 18, 2014) (citation omit_ted).
A severe impairment is an impairment or combination of impairments that significantly
limits a claimant's physical or mental ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c).
The ALJ's decision was issued on August 24, 2015. (Tr. 25).
See (Tr. 17).
("DLCO") measurements ofless than or equal to 8.5 mL/min/mmHg. Id. at§ 3.02C(l).
In her Motion for Judgment on the Pleadings, Plaintiff argued that the ALJ erred in his
assessment of whether her sarcoidosis met Listing 3.02C. Pl.'s Mem. [DE-18] at 7-11.
Specifically, Plaintiff asserted that the ALJ erred by failing to discuss any of the medical
evidence of record and comparing it to Listing 3 .02C. Id. at 11. By way of example, Plaintiff
asserted that the ALJ failed to discuss her July 21, 2014 test scores and address why her DLCO
score of 9.3mL/min/mm did not lead to a conclusive presumption of disabled. Id. In sum,
Plaintiff concluded that she was entitled to remand under Cook and Radford. Id.
Upon referral of this case to the Magistrate Judge, he found that Plaintiffs test scores had
"deficiencies which preclude[d] the resulting scores from being used as acceptable
measurements." M&R [DE-23] at 8 (citing Tr. 437-41). In particular, the "[t]he alveolar sample
volume should be between 0.5 and 1.0L and be collected in less than 3 seconds." Id. at 7 (citing
20 C.F.R. pt. 404, subpt. P, app.1, § 3.00F(l)). The Magistrate Judge further found that
Plaintiff's three trials had an alveolar volume of 2.52L, 2.29L, and l .63L, which were all well
above the permissible alveolar sample volume. Id. at 8 (citing Tr. 440). The Magistrate Judge
also noted that there was no information in the DLCO test report that documented the inspired
volume, inspiratory and breath-hold times, washout volume in the appropriate ranges, and the
percentage concentrations of inspired and expired gases were not documented for each trial.
Id. at 8-9 (citing Tr. 337-41). The Magistrate Judge concluded that in a case such as this where
there is no record evidence that could support the application of Listing 3.02C, the ALJ was not
required to discuss why the evidence failed to qualify Plaintiff as disabled under the listing.
Id. at 9.
The Fourth Circuit in Radford noted that "[a] necessary predicate to engaging in
substantial evidence review is a record of the basis for the ALJ's ruling." 734 F.3d at 295. The
Court further noted that it was best to "remand to the agency for additional investigation or
explanation" when a court cannot evaluate the record of the basis that underlies the ALJ's ruling.
Id. (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
In Cook, the ALJ found that the plaintiffs arthritis constituted a "severe" impairment but
did not meet or equal a listed impairment. 783 F.2d at 1172. The Fourth Circuit noted the
arthritis listing contained four subsidiary lists of impairments, but the ALJ did not explain which
of those listed impairments were relevant. Id. Moreover, the ALJ only summarily compared the
claimant's symptoms to any of the four subsidiary lists. Id. at 1173. The Fourth Circuit held:
The ALJ should have identified the relevant listed impairments. He should then have
compared each of the listed criteria to the evidence of [the claimant's] symptoms.
Without such an explanation, it is simply impossible to tell whether there was
substantial evidence to support the determination.
This court agrees that Radford and Cook control the outcome of this case. Here, the ALJ
found that Plaintiffs sarcoidosis was a "severe" impairment. (Tr. 16). The ALJ should have
then explained which listed impairments were relevant. Then, the ALJ should have compared
Plaintiffs sarcoidosis symptoms to all relevant listing criteria to determine if she met or equaled
a listing. In this case, the ALJ did not. Thus, here, just as in Cook, "[w]ithout such an
explanation, it is simply impossible to tell whether there [is] substantial evidence to support the
determination." Cook, 783 F.2d at 1173; accord Radford, 734 at 295. Because theALJ's
decision is inconsistent with the Fourth Circuit's holdings in Cook and Radford, remand is
b. Plaintiff argues that the Magistrate Judge erred in concluding that Defendant
did not impermissibly provide additional reasoning not provided by the ALJ.
In her second objection, Plaintiff argues that injustifying the ALJ's evaluation of Listing
3.02C, Defendant provided a thorough analysis of the requirements of Listing 3.00 and then
compared those requirements to Plaintiffs test results. Objections [DE-24] at 2. Plaintiff
contends that this is the type of analysis that the ALJ failed to provide in his decision, and this
post-hoc reasoning violates the principle set forth in S.E.C. v. Chenery Corp, 318 U.S. 80 (1943).
The Magistrate Judge found Plaintiffs argument to be without merit because Plaintiffs
test results were not acceptable measurements under the regulations. M&R [DE-23] at 9. The
Magistrate Judge also noted that Plaintiff provided no response to Defendant's argument that the
results ofrecord were not acceptable measurements. Id Finally, the Magistrate Judge concluded
that when there is no record evidence to support Listing 3.02C, as in this case, the ALJ is not
required to engage in discussion regarding why Plaintiff does not meet the listing. Id.
In Chenery, the Supreme Court held that courts must-review administrative decisions on
the grounds upon which the record discloses the action was based. 318 U.S. at 87. Pursuant to
the so-called "Chenery Doctrine," courts are prohibited from considering post-hoc
rationalizations offered in support of administrative agency decisions. Johnson v. Colvin, No.
1:15CV538, 2016 WL 6106439, at *5 (M.D.N.C. Oct. 19, 2016). When the grounds are
inadequate or improper, a court is precluded from affirming the administrative decision by
substituting the more adequate or proper basis. Id.
Defendant and the Magistrate Judge cite to Jones v. Comm 'r of Soc. Sec., No. SAG-103047, 2013 WL 1163499 (D. Md. Mar. 19, 2013). In Jones, the plaintiff argued that the ALJ
erred in evaluating whether her respiratory impairments met or equaled the relevant listings.
Id. at *2. In particular, the plaintiff found error with respect to Listing 3.02C and the ALJ's
failure to discuss several of her pulmonary function tests. Id. As the court pointed out, none of
the plaintiffs test results met the requisite numbers. Id. The court held that "[i]t was
unnecessary to evaluate 3.02C when no acceptable test results were in the record." Id. The court
further held that the ALJ was not required to discuss each and every subsection. Id. Jones, a
decision by a Magistrate Judge from another district, is not binding on this court. See Delawder
v. Astrue, No. 1:08CV94, 2009 WL 2423978, at *21 (N.D.W.Va. Aug. 6, 2009) (noting that a
decision from a Magistrate Judge of another district has no precedential value).
This court finds Anderson v. Colvin, No. l:IOCV671, 2014 WL 1224726 (M.D.N.C. Mar.
25, 2014), to be instructive. In Anderson, the court noted that "[r]eview of the ALJ's ruling is
limited further by the so-called 'Chenery Doctrine."' Id. at * 1. Pursuant to the Chenery
Doctrine, "a reviewing court 'must judge the propriety of [agency] action solely by grounds
invoked by the agency."' Id. (quoting Chenery, 332 U.S. at 196) (alteration in original). "If
those grounds are inadequate or improper, the court is powerless to affirm the administrative
action by substituting what it deems a more adequate or proper basis." Id. (quoting Chenery, 332
U.S. at 196).
In this case, the Magistrate Judge's conclusion that the ALJ did not err because Plaintiffs
test results were not acceptable under the regulations is reasoning that was not supplied by the
ALJ. In fact, it is just the kind of post-hoc reasoning that the Chenery Doctrine prohibits.
Consequently, remand is in order.
In light of the foregoing, and upon de nova review of the portions of the Magistrate
Judge's M&R to which specific objections were filed, the court ADOPTS in part the findings and
recommendations of the Magistrate Judge. The court concludes that the ALJ's error at step three
requires remand of this case. Accordingly, Plaintiff's Motion for Judgment on the Pleadings
[DE-17] is ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-19] is
DENIED, and this case is REMANDED to the Commissioner for further proceedings.
The Clerk of Court is DIRECTED to close this case.
Jj_ day of February, 2017.
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