YORK v. ASTRUE
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. Signed by L. PATRICK AULD on 2/3/2014, recommending that Defendant's decision finding no disability be reversed and that the matter be remanded under sentence four o f 42 U.S.C. § 405(g), for further administrative proceedings: 1) to re-evaluate the medical opinion of Dr. David S. Jones; 2) if such re-evaluation results in the inclusion of additional limitations in Plaintiff's RFC, to assess whether Pla intiff retained the ability to return to his past relevant work prior to his last date insured; and 3) if Plaintiff could not have returned to such work, to consult a VE to determine the impact of those additional limitations on the number of availab le jobs that Plaintiff could have performed. As a result, Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) should be denied and Plaintiff's Motion for Summary Judgment (Docket Entry 9 ) should be granted in part and denied in part, in that the Court should remand the case for further administrative proceedings, but should not order an immediate award of benefits. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JAMES R. YORK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,1
Defendant.
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1:10CV665
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, James R. York, brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)), to obtain judicial review of a final decision of
Defendant, the Commissioner of Social Security, denying Plaintiff’s
claim for Disability Insurance Benefits (“DIB”) under Title II of
the Social Security Act (the “Act”).2
The Court has before it the
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, resulting in her automatic substitution as Defendant, pursuant
to Federal Rule of Civil Procedure 25(d).
2
“The Social Security Act comprises two disability benefits programs. The
[DIB] Program . . . provides benefits to disabled persons who have contributed
to the program while employed. The Supplemental Security Income Program (SSI)
. . . provides benefits to indigent disabled persons.” Craig v. Chater, 76 F.3d
585, 589 n.1 (4th Cir. 1996). Plaintiff’s Complaint states that he applied for
DIB “and/or” SSI, that an Administrative Law Judge denied benefits, that the
Appeals Council refused further review on July 3, 2010, and that he seeks
“judicial review . . . [of] the final decision of the Commissioner holding that
[he] is not entitled to [DIB] and/or [SSI] . . . .” (Docket Entry 1 at 1-2.)
Defendant, however, in moving for judgment, pointed out (with accurate citations
to the record) that the denial of Plaintiff’s SSI application occurred on the
date he filed his SSI and DIB applications (April 12, 2007), because of excess
income, that denial of Plaintiff’s DIB application occurred later (May 19, 2007),
and that Plaintiff sought further administrative review only as to the DIB
certified administrative record (cited herein as “Tr. __”) and the
parties have filed cross-motions for judgment (Docket Entries 9,
11).
For the reasons that follow, the Court should remand this
case for further administrative proceedings.
PROCEDURAL HISTORY
After
denial
of
his
DIB
application
(Tr.
84-97),
both
initially and on reconsideration (Tr. 43-53), Plaintiff requested
a hearing de novo before an Administrative Law Judge (“ALJ”) (Tr.
60). Plaintiff and his attorney appeared at the hearing. (Tr. 2342.)
The ALJ thereafter issued a decision finding Plaintiff not
disabled within the meaning of the Act.
(Tr. 10-22.)
The Appeals
Council denied Plaintiff’s request for review (Tr. 7), thereby
making the ALJ’s determination the Commissioner’s final decision
for purposes of judicial review (Tr. 1-3).
In making this disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] last met the insured status requirements
of the . . . Act on September 30, 2005.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from his alleged onset date of
November 18, 2004 through his date last insured of
September 30, 2005 (20 CFR 404.1571 et seq.).
denial, such that the final decision of the Commissioner arising from the refusal
of review by the Appeals Council on July 3, 2010 (identified by Plaintiff’s
Complaint as the matter for which he sought judicial review) concerned only DIB
(not SSI). (See Docket Entry 12 at 1-2 & n.1.) Plaintiff did not contest those
facts in his response. (See Docket Entry 13.)
2
. . .
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: obesity, lumbar disc
disease with a history of a fusion, and borderline
intellectual functioning (20 CFR 404.1520(c)).
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
. . .
5.
After careful consideration of the entire record,
the undersigned finds that, through the date last
insured, [Plaintiff] had the residual functional capacity
to perform the full range of light work as defined in 20
CFR 404.1567(b).
“Light work” involves lifting or
carrying no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.
[Plaintiff] was capable of: occasionally lifting and
carrying twenty pounds; frequently lifting/carrying 10
pounds; standing or walking six hours of an eight hour
workday; and sitting six hours of an eight hour workday.
[Plaintiff] was also limited to routine, repetitive tasks
consistent with unskilled work.
(Tr. 15-17.)
The
ALJ
thereafter
did
not
make
findings
regarding
the
physical and mental demands of Plaintiff’s past relevant work or
whether Plaintiff retained the ability to perform his past relevant
work.
(See Tr. 10-22.)
Instead, the ALJ proceeded to the final
stage of the review process and identified Plaintiff as 34 years
old (defined as a younger individual) on his alleged onset of
disability date, with a marginal education and the ability to
3
communicate in English.
(Tr. 21.)
The ALJ further described
transferability of job skills as a non-issue due to the unskilled
nature of Plaintiff’s past relevant work. (Id.) Relying on Social
Security Ruling 83-10, Determining Capability to Do Other Work –
the Medical-Vocational Rules of Appendix 2 and using Rule 202.17 of
the Medical-Vocational Guidelines as a framework for his decision,
the ALJ then took administrative notice of the approximately 1,600
unskilled sedentary and light jobs listed in the Dictionary of
Occupational Titles and concluded that a significant number of jobs
existed in the national economy that Plaintiff could perform. (Tr.
21-22.)
Accordingly,
the
ALJ
ruled
Plaintiff
not
under
a
“disability,” as defined by the Act, at any time from his onset
date through his date last insured.
(Tr. 22.)
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).
“The courts
Oppenheim v. Finch, 495 F.2d
Instead, “a reviewing court must uphold
the factual findings of the ALJ [underlying the denial of benefits]
if they are supported by substantial evidence and were reached
4
through application of the correct legal standard.”
Hines, 453
F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal brackets and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
5
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
In confronting that issue, the Court must note that “[a]
claimant for disability benefits bears the burden of proving a
disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981), and
that, in this context, “disability” means the “‘inability 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 12 months,’” id. (quoting 42
U.S.C. § 423(d)(1)(A)).
“To regularize the adjudicative process,
the Social Security Administration has . . . promulgated . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical condition.”
Hall, 658 F.2d at 264.
“These regulations
establish a ‘sequential evaluation process’ to determine whether a
claimant is disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
6
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).3
A finding adverse to a claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
4
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
7
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
Assignments of Error
Plaintiff raises two issues for judicial review, i.e., that
the ALJ erred by improperly discounting the opinions of (1) a
primary treating source and (2) a consultative examiner.
(Docket
Entry 10 at 3-12; Docket Entry 13 at 1-2.) Defendant contends that
the
ALJ
properly
evaluated
both
of
those
opinions
and
that
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
5
A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
8
substantial
evidence
disability.
(Docket Entry 12 at 5-15.)
1.
supports
the
ALJ’s
determination
of
no
Treating Physician’s Opinion
Plaintiff argues that the ALJ erred by failing to give
adequate weight to the opinion of Dr. David S. Jones, in violation
of the treating physician rule.
(Docket Entry 10 at 4-10.)
According to Plaintiff, the ALJ should have credited Dr. Jones’s
opinion that Plaintiff could not engage in repetitive bending and
needed the option to sit or stand during the workday, rather than
rely on the opinion of Dr. David Brown, a non-examining state
agency physician.
(Id. at 6-10.)
Plaintiff deems the ALJ’s error
in this regard significant because the inclusion of a restriction
on bending and a sit/stand option in Plaintiff’s RFC would have
required the ALJ to solicit the testimony of a VE to assess the
availability of suitable jobs in the national economy.
10.)
(Id. at
These arguments have merit.
The treating physician rule generally requires an ALJ to give
controlling weight to the opinion of a treating source as to the
nature and severity of a claimant’s impairment, on the ground that
treating sources “provide a detailed, longitudinal picture of [the
claimant’s]
medical
impairment(s)
[which]
may
bring
a
unique
perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual
9
examinations,
such
hospitalizations.”
as
consultative
examinations
20 C.F.R. § 404.1527(d)(2).6
or
brief
The rule also
recognizes, however, that not all treating sources or treating
source opinions deserve such deference.
First, the nature and extent of each treatment relationship
may temper the weight afforded.
Further,
a
treating
source’s
20 C.F.R. § 404.1527(d)(2)(ii).
opinion
controls
only
if
well-
supported by medical signs and laboratory findings and consistent
with the other substantial evidence in the record.
20 C.F.R.
§ 404.1527(d)(2)-(4). “[I]f 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.”
Craig, 76 F.3d at 590; accord Mastro, 270 F.3d at 178.
Finally, opinions regarding the ultimate issue of disability,
regardless of source, do not receive controlling weight.
See 20
C.F.R. § 404.1527(e).
Applying these principles to the ALJ’s decision, the Court
should find that the ALJ erred in his evaluation of Dr. Jones’s
opinion.
The ALJ found as follows:
[G]reater weight is given to Dr. Brown’s opinion that
[Plaintiff] does not have postural limitations because
[Plaintiff]’s activities of daily living do not support
6
Effective March 26, 2012, a regulatory change recodified the treating
physician rule as 20 C.F.R. § 404.1527(c)(2), but did not impact the substantive
language of the rule. See 77 Fed. Reg. 10651–10657 (Feb. 23, 2012). Given that
all material events in this action precede this non-substantive regulatory
change, this Recommendation uses the prior codification.
10
[an RFC] with postural limitations or Dr. Jones’[s]
opinion that [Plaintiff] should avoid repetitive bending.
Finally, little weight is given to Dr. Jones’[s] opinion
that [Plaintiff] must have the opportunity to change
positions between sitting or standing, as it is not
supported by the totality of the medical evidence.
(Tr. 20.)
Neither of the reasons given by the ALJ for according
little weight to Dr. Jones’s opinion suffices.
First, the ALJ’s conclusion that Plaintiff’s reported daily
activities conflict with an inability to repetitively bend lacks
record support. At the hearing, Plaintiff testified that his daily
activities consisted of helping his daughter with her homework,
playing games like Monopoly with her, preparing some meals, dusting
and sweeping but without doing a lot of bending, using a riding
lawn mower, driving locally twice a week, grocery shopping and
visiting with family.
(Tr. 30-32.)
requires repetitive bending.
None of these activities
Moreover, in the testimony about
daily activities on which the ALJ relied, Plaintiff expressly
denied engaging in repetitive bending.
(Tr. 30.)
Second, the ALJ’s finding that Dr. Jones’s opinion that
Plaintiff needed a sit/stand option “is not supported by the
totality of the medical evidence” falls significantly short of the
degree of explanation required by the regulations for treating
sources. Dr. Jones is a neurosurgeon who treated Plaintiff for his
lower back and radicular pain for nearly a year and a half
(beginning
four
days
after
Plaintiff’s
11
date
last
insured),
including evaluating a discogram and post-discogram CT scan and
performing lumbar fusion surgery on Plaintiff.
50.)
(Tr. 203-16, 249-
A preclusion from repetitive bending and a requirement for a
sit/stand
option
represent
neither
extreme
limitations,
nor
limitations inconsistent with Dr. Jones’s objective findings on
examination, which show that Plaintiff suffered lower back and
radicular
pain
following
an
injury
to
his
lower
eventually resulted in the need for lumbar fusion.
back
which
(Id.)
Under
these circumstances, rejection of Dr. Jones’s opinion based on a
general statement that the opinion conflicts with the “totality of
the medical record” constitutes reversible error.
See, e.g.,
Neydavoud v. Astrue, 830 F. Supp. 2d 907, 911-12 (C.D. Cal. 2011)
(“The ALJ can reject the opinion of a treating physician in favor
of a conflicting opinion of another examining physician if the ALJ
makes findings setting forth specific, legitimate reasons for doing
so that are based on substantial evidence in the record.
must do more than offer his conclusions.
The ALJ
Broad and vague reasons
for rejecting the treating physician’s opinion do not suffice.”
(internal citations and quotation marks omitted)).
Defendant urges that the ALJ acted properly in discounting Dr.
Jones’s opinion because he offered it on March 19, 2007, a year and
a half after Plaintiff’s date last insured.
at 12-13.)
(See Docket Entry 12
In particular, Defendant cites Johnson v. Barnhardt,
12
434 F.3d 650, 655-56 (4th Cir. 2005), for the proposition that this
Court need not decide whether substantial evidence supports the
ALJ’s rejection of Dr. Jones’s opinion, because an opinion offered
well after the date last insured is “not relevant” to the issue of
whether Plaintiff was disabled before his date last insured. (Id.)
This argument fails for two reason.
First, the ALJ did not
base his rejection of Dr. Jones’s opinion on the ground that it
post-dated the date last insured.
A reviewing court generally
should not uphold an ALJ’s findings based upon reasons not relied
upon, either expressly or impliedly, by the ALJ.
Securities &
Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds
upon which an administrative order must be judged are those upon
which the record discloses that its action was based.”); Patterson
v. Bowen, 839 F.2d 221, 225 n.1 (1988) (“We must, however, affirm
the ALJ’s decision only upon the reasons he gave.”); Cunningham v.
Harris, 658 F.2d 239, 244 n.3 (4th Cir. 1981) (“We cannot affirm
the decision of the Secretary on grounds not invoked by the
agency.”).
Second, Johnson involved materially distinguishable
facts, in that the Fourth Circuit there observed that the claimant
had failed to argue “that the disabilities contained in the [later
opinion] existed continuously from [the date last insured] to the
present, and there [wa]s no objective medical evidence that the
impairments observed by [the treating physician] . . . existed
13
prior to [the date last insured].”
Johnson, 434 F.3d at 655-56.
In contrast, the record here reflects that Plaintiff consistently
sought treatment for and medical evidence showed a basis for lower
back and radicular pain from the date of his back injury on
November 18, 2004 (long before his date last insured), to the date
of Dr. Jones’s opinion on March 19, 2007.
249-50.)
(Tr. 143-56, 195-235,
Given that context, the fact that Dr. Jones’s opinion
post-dates Plaintiff’s date last insured does not render that
opinion per se irrelevant, particularly where (as here) the ALJ did
not rely upon the timing of the opinion in rejecting it.
In
sum,
constitutes
the
ALJ’s
reversible
discounting
error
of
requiring
Dr.
Jones’s
remand
for
opinion
further
consideration of whether Plaintiff could engage in repetitive
bending and/or needed a sit/stand option during the workday.
2.
Consultative Examiner’s Opinion
Plaintiff also asserts that the ALJ erred by giving “little
weight” to the opinion of consultative examiner Jon Standahl, Ph.D.
(Docket Entry 10 at 10-12.) Dr. Standahl performed a psychological
evaluation of Plaintiff and concluded that he had marked limitation
in
his
ability
to
(1)
sustain
attention
to
perform
simple,
repetitive tasks and (2) understand, retain and follow verbal
14
(Tr. 176.)7
instructions.
According to Plaintiff, the ALJ’s
rationale for assigning “little weight” to this opinion, that it
conflicted
with
Dr.
Standahl’s
own
findings
and
Plaintiff’s
description of his daily activities, mischaracterized the record.
(Docket Entry 10 at 11.)
This contention falls short.
In evaluating Dr. Standahl’s opinion, the ALJ stated:
Dr. Standahl found that [Plaintiff] had marked limitation
in his ability to understand, retain, and follow verbal
instructions.
He further found that [Plaintiff]’s
ability to sustain attention to perform simple,
repetitive tasks is markedly limited. . . .
Dr.
Standahl’s
opinion
that
[Plaintiff]
has
marked
limitations in [h]is ability to understand, retain, and
follow instructions and perform simple, repetitive tasks,
is rejected here as it is inconsistent with his own
findings that [Plaintiff]’s recent and remote memory are
adequate. Furthermore, the overall evidence of record,
including [Plaintiff]’s testimony that he has looked for
jobs on the computer, and therefore believes he is
mentally capable of work supports the conclusion that
[Plaintiff] is capable of performing routine, repetitive
tasks consistent with unskilled work.
(Tr. 20-21; see also Tr. 17 (setting forth ALJ’s statement that he
gave “little weight to Dr. Standahl’s opinion . . . as it [wa]s
inconsistent with . . . [Plaintiff]’s own description of his
activities”)). Substantial evidence supports those determinations.
First,
Dr.
Standahl’s
findings
of
marked
limitations
in
following verbal instructions and maintaining attention do indeed
conflict
with
his
findings
that
7
Plaintiff
possessed
adequate
In the context of mental deficiencies, “marked” corresponds to the
second-highest, possible level of limitation, less than “extreme,” but greater
than “moderate,” “mild,” and “none.” See 20 C.F.R. § 404.1520a(c)(4).
15
memory, findings which necessarily depend on Plaintiff adequately
following instructions and sufficiently maintaining attention for
Dr. Standahl to perform memory testing and to conclude that
Plaintiff’s memory functioned properly.
(Tr. 176-78.)
Moreover,
none of the findings in Dr. Standahl’s report support marked
limitation
in
attention
and
ability
to
follow
instructions.
Plaintiff’s scores on the Wechsler Memory Scale III placed him in
the
mild
range
of
memory
deficiency
and
Plaintiff’s
Global
Assessment of Functioning (“GAF”) score of 578 placed him in the
upper end of moderate difficulty in occupational functioning. (Tr.
176-77.)
Similarly,
Plaintiff’s
reported
daily
activities,
including helping his daughter with her homework, playing games
like Monopoly with his daughter, preparing some meals, driving
locally twice a week, grocery shopping and looking for jobs on his
computer (see Tr. 30-32, 34), contradict a finding of marked
limitation in maintaining attention and following directions for
purposes of performing simple tasks.
Given the foregoing record, the ALJ did not reversibly err in
evaluating Dr. Standahl’s opinion.
8
The GAF uses a 100-point scale to show an individual’s functional level.
American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders
32 (4th ed. text revision 2000).
A GAF of 51 to 60 indicates “[m]oderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks)
OR moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).” Id. at 34. A new edition of the
leading treatise discontinued use of the GAF. See American Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013).
16
IT IS THEREFORE RECOMMENDED that Defendant’s decision finding
no disability be reversed and that the matter be remanded under
sentence four of 42 U.S.C. § 405(g), for further administrative
proceedings: 1) to re-evaluate the medical opinion of Dr. David S.
Jones; 2) if such re-evaluation results in the inclusion of
additional
limitations
in
Plaintiff’s
RFC,
to
assess
whether
Plaintiff retained the ability to return to his past relevant work
prior to his last date insured; and 3) if Plaintiff could not have
returned to such work, to consult a VE to determine the impact of
those additional limitations on the number of available jobs that
Plaintiff could have performed.
As a result, Defendant’s Motion
for Judgment on the Pleadings (Docket Entry 11) should be denied
and Plaintiff’s Motion for Summary Judgment (Docket Entry 9) should
be granted in part and denied in part, in that the Court should
remand the case for further administrative proceedings, but should
not order an immediate award of benefits.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 3, 2014
17
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