Alford v. Colvin
ORDER granting 15 Motion for Judgment on the Pleadings and denying 17 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 9/26/2017. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
JAMES B. ALFORD,
Acting Commissioner of Social Security,
This cause comes before the Court on cross-motions for judgment on the pleadings. A
hearing was held on these matters before the undersigned on September 20, 2017, in Raleigh,
North Carolina. For the reasons discussed below, this matter is remanded to the Acting
Commissioner for further proceedings.
Plaintiff brought this action under 42 U.S.C. §§ 405(g), 1383(c) for review of the final
decision of the Commissioner denying his claim for disability insurance benefits ("DIB")
pursuant to Title II of the Social Security Act. Plaintiff alleged disability beginning on June 2,
2010. Plaintiff protectively filed his application for DIB on September 12, 2012. A hearing was
held before an Administrative Law Judge (ALJ) on December 10, 2014, who issued an
unfavorable ruling on February 12, 2015. This decision became the final decision when the
Appeals Council denied plaintiffs subsequent request for review. Plaintiff then timely sought
review of the Acting Commissioner's decision in this Court.
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
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 whic~ 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 ("SSA") 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.
The ALJ' s decision in this instance is not supported by substantial evidence. First, the
ALJ failed to correctly evaluate plaintiffs mental limitations. The ALJ determined that plaintiff
had moderate difficulties with concentration, persistence or pace. Tr. 24. The only mental
modification the ALJ included in the RFC, however, was a limitation to simple, routine,
repetitive tasks. Tr. 25. The Fourth Circuit distinguishes between different kinds of nonexertional limitations. See Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015), quoting Winschel
v. Comm 'r of Soc. Sec., 631F.3d1176, 1180 (11th Cir. 2011)) ("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."). "[T]he 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.
Here, the ALJ did not include any limitations in the RFC for plaintiffs limitations in
concentration, persistence, and pace, and did not explain why plaintiffs limitations did not
translate into a limitation in his RFC. Tr. 25-30. This was in error, and remand is appropriate to
determine plaintiffs abilities.
Additionally, the ALJ erred by failing to appropriately weigh the Veterans
Administration ("VA")'s determination of plaintiffs disability. An ALJ is required to consider all
relevant evidence when making a disability determination, including the decision of another
agency. The VA's determination "cannot be ignored and must be considered." SSR no. 06-03p.
"[T]he purpose and evaluation methodology of both" the SSA and the VA when determining
disability is so similar that "a disability rating by one of the two agencies is highly relevant to the
disability determination of the other agency." Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337,
343 (4th Cir. 2012). Therefore, the ALJ must give substantial weight to the VA's determination.
Only when the record clearly demonstrates that the VA rating does not meet the SSA's standards
is ignoring the VA's rating appropriate. Id.
The VA determined that plaintiffs disability rating was 70%. Tr. 26, 28. In order to
disregard this finding, the ALJ needed to have identified clear evidence in the record. Instead, the
ALJ only stated that the VA determination was not binding, without explaining what evidence
justified not giving the determination appropriate weight. Tr. 28.
Finally, the ALJ did not consider how plaintiffs pain management plan affects his ability
to do the jobs found to be appropriate. Medication and its side effects can affect a claimant's
ability to do work. See, e.g.,, Johnson v. Barnhart, 434 F. 3d 650, 658 (4th Cir. 2005) (noting
that symptoms such as drowsiness can cause serious functional limitations). Here, the ALJ
should have determined whether plaintiffs pain medications affect his RFC. Plaintiffs
degenerative disc disease has no surgical option, and plaintiff is in a pain management protocol.
He takes his pain medication three times a day. Tr. 48. The effect of his pain medication on his
RFC was not addressed by the ALJ in his determination. Therefore, remand is appropriate for a
determination of how his pain management plan affects his ability to do work.
The ALJ failed to appropriately weigh the evidence in these three instances. "If the
reviewing court has no way of evaluating the basis for the ALJ' s decision, then 'the proper
course, except in rare circumstances, is to remand to the agency for additional investigation or
explanation."' Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (citing Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
Accordingly, plaintiffs motion for judgment on the pleadings [DE 15]-is GRANTED and
defendant's motion for judgment on the pleadings [DE 17] is DENIED. The decision of the ALJ
is REMANDED to the Commissioner for further proceedings consistent with the foregoing.
SO ORDERED, this
J..i day of September, 2017.
UNITED STATES DISTRICT JUDGE
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