Allen v. Colvin

Filing 28

ORDER granting the Plaintiff's 20 Motion for Judgment on the Pleadings; denying the defendant's 21 Motion for Judgment on the Pleadings and the case is REMANDED to the Commissioner pursuant to sentence four of 42 USC § 405(g) for further consideration. Signed by Magistrate Judge Kimberly A. Swank on 3/24/2017. (Foell, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:15-CV-270-KS
RODERICK VONZELL ALLEN,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

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ORDER

This matter is before the court pursuant to Fed. R. Civ. P. 12(c) on the parties’
cross motions for judgment on the pleadings [DE # 20 & 21], the parties having
consented to proceed pursuant to 28 U.S.C. § 636(c). Plaintiff Roderick Vonzell Allen
filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial
of his application for a period of disability, disability insurance benefits (“DIB”), and
supplemental security income (“SSI”). The parties have fully briefed the issues, and
the pending motions are ripe for adjudication. On November 10, 2016, the court held
oral argument in the matter. The court has carefully reviewed the administrative
record and the motions and memoranda submitted by the parties and considered the

Plaintiff’s complaint names Carolyn W. Colvin in her official capacity as
Acting Commissioner of Social Security as the defendant to this action. Nancy A.
Berryhill is now the Acting Commissioner of Social Security and therefore is
substituted as a defendant to this action. See Fed. R. Civ. P. 25(d).
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arguments of counsel. For the reasons set forth below, the court grants Plaintiff’s
Motion for Judgment on the Pleadings, denies Defendant’s Motion for Judgment on
the Pleadings, and remands the matter to the Commissioner for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for a period of disability, disability insurance benefits, and
supplemental security income on September 24, 2012, with an alleged onset date of
November 15, 2011 (R. 27, 190-99), which Plaintiff subsequently amended to March
1, 2013 (R. 52-53). The application was denied initially and upon reconsideration,
and a request for hearing was filed. (R. 27, 96-97, 118-19, 126-27, 131-32, 135-36.)
Administrative Law Judge Ronald Sweeda (“ALJ”) held a video hearing on September
26, 2014; the ALJ denied benefits in a ruling issued October 29, 2014. (R. 27, 40-41.)
Plaintiff’s request for review by the Appeals Council was denied, making the ALJ’s
decision the final decision of the Commissioner. (R. 1.) Plaintiff now seeks judicial
review of the final administrative decision.
DISCUSSION
I.

Standard of Review
The scope of judicial review of a final agency decision denying disability

benefits is limited to determining whether substantial evidence supports the
Commissioner’s factual findings and whether the decision was reached through the
application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion; [i]t consists of more than a mere
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scintilla of evidence but may be somewhat less than a preponderance.” Craig v.

Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks and citation
omitted) (alteration in original) (quoting Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966)). “‘In reviewing for substantial evidence, [the court should not]
undertake to re-weigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the [Commissioner].’” Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001) (internal quotation marks omitted) (first and second
alterations in original) (quoting Craig, 76 F.3d at 589). Rather, in conducting the
“substantial evidence” inquiry, the court determines whether the Commissioner has
considered all relevant evidence and sufficiently explained the weight accorded to the
evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439–40 (4th Cir. 1997).
“Judicial review of an administrative decision is impossible without an adequate
explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d
148, 150 (4th Cir. 1983).
II.

Disability Determination
In making a disability determination, the Commissioner uses a five-step

evaluation process. The Commissioner asks, sequentially, whether the claimant:
(1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an
impairment that meets or equals the requirements of an impairment listed in
20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work;
and, if not, (5) based on the claimant’s age, work experience, and residual functional
capacity can adjust to other work that exists in significant numbers in the national
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economy. See 20 C.F.R. § 404.1520; Albright v. Comm’r of Soc. Sec. Admin., 174 F.3d
473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four
steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203
(4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show
that other work exists in the national economy that the claimant can perform. Id.
III.

ALJ=s Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff

“not disabled” as defined in the Social Security Act. At step one, the ALJ found that
Plaintiff met the insured status requirements through December 31, 2015. (R. 29.)
The ALJ found that Plaintiff has not engaged in substantial gainful activity since the
alleged onset date. (R. 30.) Next, the ALJ determined Plaintiff had the following
severe impairments: “degenerative disc disease, hepatitis C, depression, history of
frostbite and history of substance abuse.” (Id.) The ALJ identified knee pain, facial
cysts, and hypothyroidism as non-severe impairments. (Id.) At step three, the ALJ
concluded that Plaintiff’s impairments were not severe enough, either individually or
in combination, to meet or medically equal one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Id.)
Prior to proceeding to step four, the ALJ assessed Plaintiff’s residual functional
capacity (“RFC”) and found that Plaintiff had “the residual functional capacity to
perform medium work . . . except no exposure to work hazards and simple routine
repetitive tasks.” (R. 32.)

In making this assessment, the ALJ found Plaintiff=s

statements about the severity of his symptoms not “fully credible” and listed several
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reasons for discounting Plaintiff’s credibility. (R. 38.) At step four, the ALJ concluded
Plaintiff could not perform any past relevant work. (Id.) At step five, the ALJ
determined jobs exist in significant numbers in the national economy that Plaintiff
could perform and listed laundry worker, janitor, and packer as potential occupations.
(R. 39-40.)
IV.

Plaintiff’s Contentions
Plaintiff challenges the Commissioner’s decision to deny benefits on two

grounds. First, Plaintiff contends that the ALJ incorrectly evaluated his RFC. Second,
Plaintiff argues that the ALJ erred in failing to consider whether Plaintiff met Listing
12.02 (Organic Brain Injury).
A. RFC Assessment
The RFC is an administrative assessment of “an individual’s ability to do
sustained work-related physical and mental activities in a work setting on a regular
and continuing basis” despite impairments and related symptoms. SSR 96-8p, 1996
WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. § 416.945(a)(1). In determining
the RFC, the ALJ considers an individual’s ability to meet the physical, mental,
sensory, and other requirements of work. 20 C.F.R. § 416.945(a)(4). All relevant
evidence should be considered, including the claimant’s own description of limitations
from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. § 416.945(a)(3).
The RFC assessment “must include a discussion of why reported symptom-related
functional limitations and restrictions can or cannot reasonably be accepted as
consistent with the medical and other evidence.” SSR 96-8p, 1996 WL 374184, at *7.
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In practice, formulating the RFC requires that an ALJ conduct a “function-byfunction analysis” of a claimant’s work abilities before expressing any conclusions
about limits on the RFC. Mascio v. Colvin, 780 F.3d 632, 635-36 (4th Cir. 2015); SSR
96-8p, 1996 WL 374184, at *3. This “function-by-function analysis” requires an ALJ
to discuss a Plaintiff’s ability to perform work-related actions listed in 20 C.F.R.
§ 416.945(b)-(d). Mascio, 780 F.3d at 636 & n.5.
An ALJ is required to show his analysis and evaluation when assessing a
claimant’s RFC because a reviewing court “cannot fill in the blanks for the ALJ.” See

Patterson v. Comm’r of Soc. Sec. Admin., No. 15-2487, 2017 WL 218855, at *5
(4th Cir. Jan. 19, 2017) (reversing and remanding a disability benefits denial because
the ALJ failed to document properly application of mental impairments in RFC
assessment). Crucially, the RFC “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).” Monroe v. Calvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal
quotation marks omitted). In other words, the ALJ must “build an accurate and
logical bridge from the evidence to his conclusion.” Id. (quoting Clifford v. Apfel, 227
F.3d 863, 872 (7th Cir. 2000)). If necessary, an ALJ must “explain how any material
inconsistencies or ambiguities in the evidence in the case record were considered and
resolved.” SSR 96-8p, 1996 WL 374184, at *7.
An ALJ “is required to evaluate all evidence in the case record that may have
a bearing on the determination or decision of disability, including opinions from
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medical sources about issues reserved to the Commissioner.” SSR 96-5p, 1996 WL
374183, at *3 (July 2, 1996). As part of this consideration and explanation, an ALJ
must evaluate all medical opinions in the record.

20 C.F.R §§ 404.1527(b)-(c),

416.927(b)-(c); SSR 96-8p, 1996 WL 374184, at *7. Medical opinions are “statements
from physicians . . . or other acceptable medical sources that reflect judgments about
the nature and severity of [a claimant's] impairment(s), including [the claimant's]
symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [the claimant's] physical or mental restrictions.”

20 C.F.R.

§§ 404.1527(a)(2), 416.927(a)(2).
1. Mental Limitations
Plaintiff contends that the RFC assessed by the ALJ was flawed because it
failed to account for a limitation regarding concentration, persistence, or pace. (Pl.’s
Mem. Supp. Mot. J. Pldgs. [DE #20-2] at 7-8.) The court agrees.
During the step-three analysis, the ALJ found that Plaintiff had moderate
limitations “with regard to concentration, persistence, or pace.” (R. 31.) As the ALJ
correctly noted, this limitation was used to rate the severity of mental impairments
at step-three, and “the mental residual functional capacity assessment used at steps
4 and 5 . . . requires a more detailed assessment.” (R. 32.) However, that more detailed
assessment does not appear in the ALJ’s opinion. During the RFC assessment, the
ALJ’s discussion of mental impairments is limited to his assignment of “little weight”
to a psychological evaluation and the statement that “[p]sychologically, the
undersigned limits the claimant to simple tasks secondary to depression.” (R. 37-38.)
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In Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit held that
“an ALJ does not account for a claimant’s limitations in concentration, persistence,
and pace by restricting [an individual] to simple, routine tasks or unskilled work.”

Mascio, 780 F.3d at 638 (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180
(11th Cir. 2011)) (internal quotation marks omitted). As the Defendant correctly
notes, the Fourth Circuit left open the possibility that a moderate limitation
regarding concentration, persistence, or pace might not require a limitation in a
claimant’s RFC. (Def.’s Mem. Supp. Mot. J. Pldgs. [DE #22] at 9.) Such an omission,
though, requires an explanation. Mascio, 780 F.3d at 638 (“For example, the ALJ may
find that the concentration, persistence, or pace limitation does not affect Mascio’s
ability to work, in which case it would have been appropriate to exclude it from the
hypothetical tendered to the vocational expert. But because the ALJ here gave no
explanation, a remand is in order.” (citation omitted)).
Here, the ALJ did not explain to what extent Plaintiff’s limitations in
concentration, persistence, or pace affect his ability to work. This violates the Fourth
Circuit’s directive in Mascio.2
The Commissioner tries to explain, based on other statements in the ALJ’s
opinion, what the ALJ “appears to have concluded” regarding the concentration,

Mascio was decided after the ALJ’s opinion in this matter; thus, the ALJ
lacked the benefit of Mascio’s guidance. Even so, the ALJ’s reasoning for limiting
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Plaintiff to “simple tasks secondary to depression” is so sparse as to preclude
meaningful review. As the connection between depression and simple tasks is not
obvious, more explanation is necessary.
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persistence, or pace limitation. (Def.’s Mem. Supp. Mot. J. Pldgs. at 9.) For example,
the Commissioner suggests that the ALJ’s finding of a moderate limitation in
concentration, persistence, or pace and the RFC limitation to simple tasks “reflects
nothing more than the ALJ’s effort to give Plaintiff ‘the benefit of the doubt.’” (Def.’s
Mem. Supp. Mot. J. Pldgs. at 9.) This is a post-hoc rationalization. While the
Commissioner may be correct, this court’s review is limited to the reasons provided
by the ALJ in his decision. See Patterson v. Bowen, 839 F.2d 221, 225 n.1 (4th Cir.
1988). Neither this court nor the Commissioner can “fill-in the gaps for the ALJ.”

Torres v. Colvin, No. 1:14-CV-7-RLV, 2016 WL 54933, at *9 (W.D.N.C. Jan. 5, 2016).
Because the ALJ failed to explain how he accounted for Plaintiff’s moderate limitation
with regard to concentration, persistence, or pace in the RFC, the case must be
remanded.
2.

Physical Limitations

Plaintiff also contends that the ALJ incorrectly assessed his RFC by finding
that Plaintiff can perform work at the medium exertional level with certain
limitations. Specifically, Plaintiff contests the ALJ’s decision not to include in the
RFC that Plaintiff requires a cane and can lift no more than ten pounds. (Pl.’s Mem.
Supp. Mot. J. Pldgs. at 8-9.)

a.

Ability to Ambulate

The ALJ stated that “there is no mention in the treatment records that a cane
was ever deemed necessary by a treating physician.” (R. 36.) The ALJ said nothing
further about a cane. The Commissioner argues that Plaintiff fails to point “to any
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evidence contradicting this aspect of the ALJ’s decision.” (Def.’s Mem. Supp. Mot. J.
Pldgs. at 10.)
However, VA treatment notes from December 2013, electronically signed by
Physician Assistant (“PA”) William Fenstermacher, indicate that a cane was ordered.
((R. 566) (“15. Ordered a walking cane.”).) Moreover, Fenstermacher’s RFC
assessment from June 17, 2014, also indicates that Plaintiff “uses and/or requires a
cane or assistive device to walk.” (R. 951.)
Furthermore, Tyler Whiteside, who holds a doctorate in physical therapy,
conducted a functional capacity evaluation of Plaintiff on August 21, 2014. (R. 95357.) Whiteside noted that Plaintiff “required close supervision” during the balance
assessment “due to instability” and Plaintiff had “one instance of loss of balance with
self-recovery and required close supervision due to visible lower extremity fatigue”
during the walking assessment. (R. 956.) Plaintiff used a single-point cane during the
walking assessment. (Id.) Whiteside noted that Plaintiff “was consistent with his
effort and willing to perform or attempt all tasks.” (Id.)
“With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not ‘acceptable medical sources,’
such as nurse practitioners, physician assistants, and licensed clinical social workers,
have increasingly assumed a greater percentage of the treatment and evaluation
functions previously handled primarily by physicians and psychologists.” SSR 0603p, 2006 WL 2329939, at *3 (Aug. 9, 2009). Information from these “other medical
sources” cannot be used to establish the existence of a medically determinable
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impairment, but it should be considered in assessing the severity of an impairment
or its functional effects. Id. (“Opinions from these medical sources . . . are important
and should be evaluated on key issues such as impairment severity and functional
effects, along with the other relevant evidence in the file.”).
In determining the weight to be accorded “other medical sources,” an ALJ
should consider the following factors: (1) the length of time the source has known the
individual and the frequency of their contact; (2) the consistency of the source’s
opinion with the other evidence; (3) the degree to which the source provides relevant
evidence to support her opinion; (4) how well the source explains her opinion;
(5) whether the source has an area of specialty or expertise related to the claimant’s
impairments; and (6) any other factors tending to support or refute the source’s
opinion. SSR06-03p, 2006 WL 2329939, at *4-5. Although “accepted medical sources”
are considered the most qualified health care professionals, “an opinion from a
medical source who is not an ‘acceptable medical source’” may, in certain cases,
“outweigh the opinion of an ‘acceptable medical source,’ including the medical opinion
of a treating source.” Id. at *5. Therefore, it is important that the ALJ not only

consider these factors, but also explain “the weight given to opinions from these ‘other
sources’ or otherwise ensure that the discussion of the evidence in the determination
or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case.” Id. at
*6.

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The Commissioner’s statements in SSR06-03p concerning the increase in the
use of physician assistants and other medical sources are notably relevant when, as
in the instant case, the disability claimant is a veteran who receives medical
treatment through the VA and has received said treatment for a significant period of
time. The record indicates that Fenstermacher has treated Plaintiff repeatedly since
2012 and is the Primary Care Management Module3 Provider for Plaintiff. (R. 319.)
Moreover, while Fenstermacher is not an “acceptable medical source” under the
Social Security regulations, records maintained by the North Carolina Medical Board
establish that Fenstermacher has been licensed as a PA in the State of North
Carolina since February 2005 and supervised by Dr. Albert Bazaar Britton III since
September 2007. See http://wwwapps.ncmedboard.org/Clients/NCBOM/Public/Licen
seeInformation/Details.aspx?&EntityID=24735&PublicFile=0 (last visited Mar. 23,
2017).
Furthermore, the ALJ mentions the Whiteside evaluation in his decision but
does not discuss what, if any, weight he assigns to it or how he reconciles Whiteside’s
observations and conclusions with the RFC. (R. 34.) Because Fenstermacher is
Plaintiff’s primary care provider, the record indicates he ordered a cane for Plaintiff,
and his opinion regarding Plaintiff’s need for a cane was corroborated by an
independent physical therapy evaluation, there exists, at the very least, a material
inconsistency in the evidence concerning Plaintiff’s need for a cane. See SSR 96-8p,
See VHA SUPPORT SERVICE CENTER PRIMARY CARE MANAGEMENT MODULE
(PCMM), https://catalog.data.gov/dataset/vha-support-service-center-primary-caremanagement-module-pcmm (last visited Mar. 7, 2017) (explaining PCMM).
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1996 WL 374184, at *7. Absent further explanation, the court cannot say that
substantial evidence supports the ALJ’s finding that Plaintiff did not need a cane to
ambulate.
Moreover, the ALJ’s error in this regard cannot be considered harmless. The
Vocational Expert testified that there would be no jobs available at the medium
exertional level if Plaintiff needed a cane. (R. 74.) The ALJ’s failure to resolve any
inconsistencies or ambiguities raised by Fenstermacher’s and Whiteside’s opinions,
therefore, requires remand.

b.

Ability to Lift

Plaintiff also contends that the ALJ erred in finding that Plaintiff had the RFC
to lift more than ten pounds. Because this case is being remanded for further
consideration of the opinions of other medical sources in accordance with SSR06-03p,
there exists a substantial possibility that the Commissioner’s findings as to Plaintiff’s
residual functional capacity may be different on remand. Accordingly, the court
expresses no opinion as to this issue.
B.

Listing 12.02 (Organic Brain Injury)

Plaintiff further assigns as error the listings considered by the ALJ. Plaintiff
argues that evidence was presented demonstrating that Plaintiff suffered organic
brain injury as a result of his exposure to service-related explosions in Korea. Plaintiff
contends, therefore, that the ALJ should have considered whether Plaintiff met or
equaled Listing 12.02 (Organic Brain Injury). Without expressing any opinion as to

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this assignment, the court instructs the Commissioner to consider, on remand,
whether the medical evidence of record supports a finding as to Listing 12.02.
CONCLUSION
For the foregoing reasons, Plaintiff=s Motion for Judgment on the Pleadings
[DE #20] is GRANTED, Defendant=s Motion for Judgment on the Pleadings [DE #21]
is DENIED, and the case is REMANDED to the Commissioner pursuant to sentence
four of 42 U.S.C. § 405(g) for further consideration.
This 24th day of March 2017.
_______________________________
KIMBERLY A. SWANK
United States Magistrate Judge

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