Lamb v. Social Security Administration

Filing 33

ORDER adopting 31 Report and Recommendations re Memorandum and Recommendations; granting 21 Motion for Judgment on the Pleadings; and denying 27 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 11/16/2017. Certified copy sent via US Mail to pro se plaintiff at 803 S 13th Street, Wilmington, NC 28401. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-cv-397-BO
TONYA MICHELLE LAMB,·

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Plaintiff,

ORDER

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NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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This matter is · before the court on the Order and Memorandum Recommendation
("M&R") United States Magistrate Judge James E. Gates pursuant to 28 U.S.C. § 636(b)(l)(C)
and Fed. R. Civ. P. 72(b). For the following reasons, the Court adopts the M&R.
BACKGROUND
On January 5, 2012, plaintiff filed applications for ·disability insurance benefits ("DIB")
under Title II of the Social Security Act ("Act") and supplemental security income ("SSI")
benefits under Title XVI of the Act.

[Tr. 252]. Plaintiff alleged a· disability onset date of

September 4, 2009. Id. Plaintiffs applications were denied initially and upon reconsideration.
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[Tr. 273-99].
On February 22, 2013, an administrative law judge ("ALJ") held a video conference to
consider plaintiffs claims de novo. [Tr. 132-66]. On March 29, 2013, the ALJ issued a decision
denying plaintiffs claims, and finding that, as a matter of law, she was not disabled from
September 4, 2009, to the date of that decision. [Tr. 252-62]. Plaintiff requested review by the

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Appeals Council.

[Tr. 366-67].

On June 17, 2014, the Appeals Council entered an order

remanding the case for further administrative proceedings. [Tr. 269-72].
On April 15, 2015, plaintiff received another hearing before the ALJ. [Tr. 167-90]. On
June 15, 2015, the ALJ again determined that plaintiff was not disabled under the Act. [Tr. 10320]. On September 23, 2016, the Appeals Council denied plaintiffs request for review, and the
ALrs decision became the Commissioner's final decision. [Tr. 1-7].
On November 29, 2016, plaintiff, now prose, filed a motion to proceed in this court in

forma pauperis. [D.E. 1]. This motion was granted. [D.E. 5]. Plaintiff filed an action seeking
judicial review of the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g),
· 1383(c)(3) .. [D.E. 6]. The parties filed cross-motions for judgment on the pleadings. [D.E. 21,
27].
On July 18, 2017, the court referred the pending cross-motions to Magistrate Judge Gates
for entry of an M&R pursuant to 28 U.S.C. § 636(b). See [D.E. 29, 30]. On October 10, 2017,
Magistrate Judge Gates issued an M&R recommending that: plaintiffs motion for judgment on
the pleadings be allowed; defendant's motion for judgment on the pleadings be denied; and that
the case be remanded

to the Commissioner.

[D .E. 31]. On October 18, 201 7, defendant timely

·filed objections to the M&R.. [D.E. 32]. The court now reviews defendant's objections.
LEGAL FRAMEWORK
A district court is required to review de novo those portions of an M&R to which a party
timely files specific objections or where there is plain error. 28 U.S.C. § 636(b)(l); Thomas v.

Arn, 474 U.S. 140, 149-50 (1985); cf Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) ("[I]n the absence of a timely filed objection, a district court need riot

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· conduct 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.") (internal quotation and citation omitted). 1
DISCUSSION
· For those portions of the M&R to which defendant does not object, the court is satisfied
that there is no clear error on the face of the record. As to· the portions of the M&R fo which
·defendant objects, the court conducts its review de novo. See 28 U.S.C. § 636(b)(l).
Defendant firs{ objects to the M&R's recommendation that the case be remanded in order
to discuss what limitations resulted from plaintiffs moderate difficulty in concentration,
persistence, or pace ("CPP"). See [D.E. 32] at 4. Defendant specifically asserts that the M&R ·
. incorrectly applied the holding of Mascio v. Colvin, 780 Fjd 632 (4th Cir. 2015). Id. Although
defendant acknowledges that Mascio requires an ALJ to discuss whether ·a claimant's limitation
in CPP precludes work, defendant asserts that the M&R was incorrect when it "indicated" that an
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ALJ' s limitation of a claimant's Residual Frinction Capacity ("RFC") to simple, routine, and
repetitive tasks :could not satisfy Mascio. Id at 5. Defendant urges: "when medical evidence
demonstrates that a claimant can engage in simple routine tasks or unskilled work despite
limitations in concentration, persistence, and pace, courts have concluded that limiting the
hypothetical to inciude only unskilled work sufficiently accounts for such limitation."

Id.

(quoting Winschel v. Comisisoner of Social Security, 631 F.3d 1176, 1180 (11th Cir; 2011)); ·
. Defendant further asserts that this .case is distinguishable from Mascio because the ALJ did ·
discuss plaintiffs moderate limitation in CPP but nevertheless found that she was capable

of

·work. Id. at 6.

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The Court incorporates by reference Judge Gates's recitation of: (1) the five-step sequential evaluation for
determining whether a claimant is disabled; (2) the ALJ's findings below; and (3) the applicable legal standards on
review. See [D.E. 31] at2-7.
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The court rejects this argument. In Mascio, the Fourth Circuit found that an ALJ's RFC
decision was erroneous because, among other things, the ALJ "ignor[ed] (without explanation)
Mascio's moderate limitation in her ability to maintain her concentration persistence or pace."
Mascto, 780 F.3d at 633. Further, the Fourth Circuit found that because "the ability to perform

simple tasks differs from the ability to stay on task," 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." Id. at 638 (internal quotation and citations omitted).
Here, as noted in the M&R, the ALJ found that plaintiff had moderate difficulties in CPP~
See [D £. 31] at 9. The record reflects· that the ALJ attributed these CPP difficulties to plaintiffs ·

cognitive disorder. [Tr. 109-110]. The ALJ made the following RFC determination:
The claimant has the residual function capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c). Specifically, the claimant can lift
and carry up to 50 pounds occasionally and· 25 pounds frequently, sit for 6 hours
in an 8-hoill day, and stand and/or walk for 6 hours in an 8-hour day. The
claimant is limited to . understanding, remembering, and carrying out simple
instructions.
[Tt. 110].

Here, the ALJ' s RFC addressed CPP only by limiting plaintiff to "understanding, .
remembering, and carrying out . simple instructions." Id. The RFC did not address plaintiffs
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ability to: respond to supervision, work with coworkers, or deal With work-environment changes.
The RFC did not even use the words "unskilled work." Accordingly, this RFC falls short of
addressing whether plaintiff has fulfilled all of the "basic mental demands of. competitive,
unskilled work."2 Thus, contrary to defendant's assertions, the RFC did not effectively limit
plaintiff to unskilled work. Cf Winschel, 631 F.3d at 1180.

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The court notes that SSR 85-1 Sstates the following, relevant, definition regarding unskilled work:

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As discussed above, the Fourth Circuit already found that restricting a plaintiff to ·
"simple, routine tasks or unskilled work" was insufficient to account for CPP limitations.
Mascio, 780 F.3d at 638. It is axiomatic that the ALJ's RFC restrictions in the present matter-

restrictions less comprehensive than those found insufficient in Mascio when a vocational expert
explicitly discussed unskilled work-are themselves inherently insufficient such that remand is
required.
Defendant's second objection is that, because the ALJ found that plaintiffs mental
impairments are well-controlled by medication, and because the ALJ likewise determined that
plaintiff's CPP limitations were solely due to this mental impairment, the ALJ's opinion that
plaintiff could work despite moderate CPP limitations was supported by evidence of record. See
[D.E. 32] at 6 (citing Gross v. Heclker, 785 F.2d 1163, 1166 (4th Cir; 1986), for the proposition
that "[i]f a symptom can be reasonably controlled by medication or treatment, it is not
disabling").
This argllinent is counterfactual. If, as defendant argues, plaintiff exhibited "normal
attention, concentration, and memory," see [D.E. 32] at 7, why did the ALJ find that she had
moderate difficulties with CPP at all? Although the record reflects that the ALJ found that·
medication helped plaintiff manage her mental health symptoms, see [Tr. 115], the ALJ
nevertheless determined that plaintiff had moderate difficulties with CPP in spite of the
ameliorative effects of this medication, see [Tr. 109-110]. As discussed above, the real issue is
The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a
sustained basis) to understand, carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a
routine work setting. A substantial loss of ability to meet any of these basic work-related activities
would severely Ilmit the potential occupational base. This, in turn, would justify a finding of
disability because even favorable age, education, or work experience will not offset, such a
severely limited occupational base.
Titles II & Xvi: Capability to Do Other Work-The Medical-Vocational Rules As A Framework for Evaluating
Solely Nonexertional Impairments, SSR 85-15 (S.S.A. 1985).
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that, after making a CPP finding that favored plaintiff, the ALJ failed to incorporate this finding
properly into the RFC. See Mascio, 780 F.3d at 638.
Defendant's third objection relates to Judge Gates's footnotes. See [D.E. 32] at 6-7 n.1
(citing [D.E. 31] at 9 n.7), 8 n.2 (citing [D.E. 31] at 10 n.8). The court gives this objection no
credence. As an initial matter, these footnotes merely provide guidance fo the Commissioner on
remand and the hortative language therein does not, per se, constitute "findings and
recommendations."_ See 28 U.S.C. s 636(b)(l) (requiring the judge to make de novo findings as
to "those portions of the report or specified proposed findings or recommendations to which _
objection is made"); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982} (including, among
exceptions to de novo review requirement, "objections that do not direct the court to a specific
error in the magistrate's proposed findings and recommendations"). Nevertheless, even applying

de novo review, the court substantially agrees with the concerns illuminated in Judge Gates's
footnotes.
The first footnote registers Judge Gates's concern that the ALJ's opinion appears to assert
that "the fact of referral [to a health practitioner] by a claimant's attorney is itself a valid basis
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for discounting a source's opinion." [D.E. 31] at 9 n.7. Although defendant emphasizes that the
ALJ used the word "moreover" and noted inconsistency with the record while discounting Dr. _
Bennet's medical opinion, see [D.E. 32] at 6-7 n.1 (citing Tr. 116), the court is not convinced
that this reliance on alternative rationale exculpates the ALJ's bald assertion questioning the
impartiality of Dr. Bennet's medical opinion merely because this opinion was sought by the
plaintiffs attorney.
An ALJ is entitled to give little weight to a medical opinion. See Mastro v. Apfel, 270

F.3d 171, 178 (4th Cir. 2001) (noting that "the ALJ holds_ the discretion to give less weight to the

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testimony of a treating physician in the face of persuasive contrary evidence."); Craig v. Chafer,
76 F.3d 585, 590 (4th Cir. 1996) ("By negative implication, if a physician's opinion is not
supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be
accorded significantly less weight."). However, an ALJ may not reject medical evidence for the
wrong reason. King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980). Where, as here, at least
part of the ALJ's justification for discounting a medical opinion"-because the opinion was sought
by the plaintiffs attorney-is legally questionable, remand is appropriate for the ALJ to clarify his
rationale. See 20 C.F.R. § 404.1527(c)(2) (noting that an ALJ must give "good reasons" for the
weight assigned to a treating opinion); Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013)
(noting that remand is required when the ALJ fails to explain his reasoning and there is·
ambivalence in the medical record, precluding a court from "meaningful review."); cf Craig, 76
F.3d at 589 (noting that when ALJ findings are "supported by substantial evidence and_ were
. reached through application of the correct . legal standard," the court must uphold the
Commissioner's decision).
As to the second footnote, defendant takes issue with Judge Gates's assessments-that -. "the ALJ sees one stone of limitation to unskilled work as killing many birds," and that the
ALJ's analysis is "backwards," as was problematic in Mascio. See [D.R 32] at 8 n.2 (citing
[D.E. 31] at 10 n.8). ]n response, court need only note that defendant's officious quibbles
regarding the "oddity" of these stylistic flourishes in the M&R do not affect the
recommendation's rationale. As noted above, the court concurs with the M&R that the ALJ
misapplied Mascio'. Moreover, as discussed above, see n.2 supra, the "stone of limitation to_
unskilled work" was never even properly deployed; the record reflects that the RFC, on its face,
did not effectively limit plaintiff to unskilled work, see [Tr. 110], ddpite defendant's, and the

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ALJ's, various protestations to the contrary, see [Tr. 114, 116, 118]; [D.E. 32] at 5, 8 il.2.
· Accordingly, the court finds no error in the M&R and concurs that ALJ's decision should be
remanded.
CONCLUSION
For the foregoing reasons, the court ADOPTS Magistrate Judge Gates's M&R.
Accordingly, plaintiffs motion for judgment on the pleadings [D.E. 21] is GRANTED and
defendant's motion_[D.E. 27] is DENIED: The decision of the Commissioner is REMANDED
to the Commissioner for further proceedings consistent with this decision.
·SO ORDERED.
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This.

/J_ day of November, 2017.
T RRENCE W. BOYLE
UNITED STATES DISTRICT

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