JONES v. ASTRUE
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE signed on 8/14/2014, RECOMMENDING that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for reassessment of Plaintiff's RFC in accordance with this recommendation. To this extent, Defendant' s Motion for Judgment on the Pleadings (Doc. # 15 ) should be DENIED, and Plaintiff's Motion for Summary Judgment (Doc. # 10 ) should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
AARON L. JONES,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Commissioner of Social Security,
Defendant.
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1:10CV911
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Aaron Jones (“Plaintiff”) brought this action pursuant to Section 1631(c)(3) of
the Social Security Act (the “Act”), as amended (42 U.S.C. § 1383(c)(3)), to obtain judicial review
of a final decision of the Commissioner of Social Security denying his claim for Supplemental
Security Income under Title XVI of the Act. The parties have filed cross-motions for judgment,
and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed his application for Supplemental Security Income Benefits
(“SSI”) on May 19, 2008, alleging a disability onset date of January 5, 2007. (Tr. at 106-31.)2 His
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted for Michael J.
Astrue as the Defendant in this suit. No further action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2
Transcript citations refer to the Administrative Transcript of Record filed manually with the
Commissioner’s Answer [Doc. #8].
applications were denied initially (Tr. at 31) and upon reconsideration (Tr. at 32). Thereafter,
he requested a hearing de novo before an Administrative Law Judge (“ALJ”) (Tr. at 4), which
Plaintiff attended with his attorney on April 20, 2010 (Tr. at 9). The ALJ ultimately determined
that Plaintiff was not disabled within the meaning of the Act (Tr. at 16) and, on September 24,
2010, the Appeals Council denied Plaintiff’s request for review of the decision, thereby making
the ALJ’s conclusion the Commissioner’s final decision for purposes of judicial review (Tr. at
1-3).
In rendering his disability determination, the ALJ made the following findings later
adopted by the Commissioner:
1. The claimant has not engaged in substantial gainful activity since May 19,
2008, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: history of stroke,
depression, and left eye vision (20 CFR 416.920(c)).
....
3. The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
....
4. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as defined
in 20 CFR 416.967(c) except no working around heights, no climbing, no
working around hazardous machinery, and no detailed visual requirement.
(Tr. at 11, 13, and 14.)
Considering Plaintiff’s age and education, along with the above findings regarding
residual functional capacity (“RFC”), the ALJ ultimately determined that Plaintiff could perform
other jobs that exist in significant numbers in the national economy. (Tr. at 15.) He therefore
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determined that Plaintiff was not under a “disability,” as defined in the Act, from his alleged
onset date through the date of the decision. (Tr. at 16.)
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
ALJ if they are supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation
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. 1993)
(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 citations 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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
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conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “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 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 undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). 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)).3
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock, 667
F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period of
disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
3
“The Social Security Act comprises two disability benefits programs. The Social Security Disability
Insurance Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides
benefits to disabled persons who have contributed to the program while employed. The Supplemental Security
Income Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides
benefits to indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary
for determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs
are, in all aspects relevant here, substantively identical. ” Craig, 76 F.3d at 589 n.1.
4
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 the first two steps, and if the
claimant’s impairment meets or equals a “listed impairment” at step three, “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,” then “the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant work”; if so, the claimant does not qualify as disabled. Id.
at 179-80. However, if the claimant establishes an inability to return to prior work, the analysis
proceeds to the fifth step, which “requires the [Government] to prove that a significant number
of jobs exist which the claimant could perform, despite the claimant’s impairments.” Hines, 453
F.3d at 563. In making this determination, the ALJ must decide “whether the claimant is able
to perform other work considering both [the claimant’s RFC] and [the claimant’s] vocational
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 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.
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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 in the community,” the claimant
qualifies as disabled. Hines, 453 F.3d at 567.5
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since his application date. Plaintiff therefore met his burden at step one of the
sequential evaluation process. At step two, the ALJ further determined that Plaintiff suffered
from three severe impairments: history of stroke, depression, and left eye vision. (Tr. at 11.)
The ALJ found at step three that none of these impairments met or equaled a disability listing.
Therefore, the ALJ assessed Plaintiff’s RFC and determined that he could perform medium
work with further, non-exertional restrictions. (Tr. at 14.) At step four of the analysis, the ALJ
noted that Plaintiff has no past relevant work. However, he concluded at step five that, given
Plaintiff’s age, education, work experience, and RFC, Plaintiff could perform jobs that exist in
significant numbers in the national economy and was therefore not disabled. (Tr. at 15.)
Plaintiff now argues that the ALJ erred in failing to (1) find any mental RFC limitations
resulting from Plaintiff’s impairments, and (2) “address evidence from a previous Appeals
Council decision that Plaintiff suffers from Borderline Intellectual Functioning.” (Pl.’s Br. [Doc.
5
A claimant thus can qualify as disabled via two paths through the five-step sequential evaluation
process. 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.
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#11] at 2.) Defendant contends otherwise and urges that substantial evidence supports the
determination that Plaintiff was not disabled. (Def.’s Br. [Doc. #16] at 17.)
For the reasons set out below, the Court finds that the ALJ’s failure to incorporate any
limitations from Plaintiff’s mental impairments in his RFC warrants remand. Because Plaintiff’s
other issues can be addressed further as part of the remand, the Court will not consider the
additional issues raised by Plaintiff at this time.
A.
Mental RFC Determination
Plaintiff contends that the ALJ’s failure to find any RFC limitations resulting from his
severe mental limitations conflicted with the substantial evidence. A claimant’s RFC is the
administrative assessment of his “ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis” despite his impairments and related
symptoms. S.S.R. 96-8p, 1996 WL 374184, at *1; see also 20 C.F.R. § 416.945(a)(1). In other
words, the RFC represents the most a claimant can do despite his limitations or restrictions.
Although an ALJ is not automatically required to include limitations from all of a claimant’s step
two severe impairments when assessing his RFC, see Hughes v. Astrue, No. 1:09CV459, 2011
WL 4459097, at *10 (W.D.N.C. Sept. 26, 2011) (unpublished) (mere existence of a severe
impairment is not proof that limitations from the impairment “have the greater significant and
specific nature required to gain their inclusion in an RFC assessment”), the ALJ must include
such limitations where the evidence supports a finding that the underlying impairments will limit
the claimant’s ability to work.
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In this case, the medical evidence supports the inclusion of mental limitations from
Plaintiff’s depression and history of stroke in his RFC. Specifically, the ALJ gave “great weight”
to the professional opinion of John H. Bevis, M.A., a psychologist with Disability Determination
Services (“DDS”). Relying on that opinion, the ALJ specifically included the following findings
in the decision:
The claimant was capable of understanding and following simple instructions. He
maintained appropriate attention and concentration in order to perform simple
repetitive tasks that do not require heavy labor or fine motor control with his left
side. He appears to be capable of relating to fellow workers and supervisors
under normal circumstances. He may experience some difficulties tolerating the
stressors, pressures, and demands associated with a full-term work routine due to
the history of his vascular stroke in of 2007 which may have affected his
emotional stability and judgment.
(Tr. at 12 (citing Tr. at 373).) In line with this opinion, the ALJ determined that Plaintiff
suffered moderate difficulties in concentration, persistence or pace, moderate restrictions in
activities of daily living, and mild difficulties in social functioning. (Tr. at 13.) Notably, the
decision recounts no medical evidence contrary to the DDS report, and none is apparent from
a review of the record as a whole.
Despite these findings, the ALJ failed to reflect any related mental limitations in Plaintiff’s
RFC, and failed to offer any explanation for excluding these mental limitations. In her brief,
Defendant concedes that the ALJ’s RFC finding did not expressly include any mental limitations.
In addition, Defendant does not contend that the ALJ explained this exclusion. Instead,
Defendant contends that the ALJ’s decision ultimately accounted for these mental limitations
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in light of the ALJ’s determination at step five that Plaintiff could perform “unskilled” work.6
At step five, the government must prove in one of two ways that a claimant remains able
to perform other jobs available in the community. Where a plaintiff suffers from purely
exertional limitations,7 the ALJ may apply the Social Security Administration’s medicalvocational guidelines (the “grids”), contained in 20 C.F.R. Chapter III, Part 404, Subpart P,
Appendix 2, to establish that claimant’s vocational ability. See McLain v. Schweiker, 715 F.2d
866, 870 n.1 (4th Cir. 1983). If, however, the claimant suffers from nonexertional limitations,8
the grids are not determinative, and the ALJ must consider vocational expert testimony. Id.
Here, the ALJ found that Plaintiff’s nonexertional limitations had “little or no effect on the
occupational base of unskilled medium work.” (Tr. at 15.) He therefore applied MedicalVocational Rule 203.28, which directed a finding of “not disabled.”9
Defendant contends that the reference to “unskilled” work at step five renders any error
in Plaintiff’s RFC determination harmless. With respect to harmlessness, courts have held that
failure to specifically identify a limitation in a claimant’s RFC constitutes harmless error when
the hypothetical question posed to the VE included the limitation. See, e.g., Burnette v. Astrue,
6
The reference to “unskilled” work was not specifically included in the RFC, but was part of the
determination at step five.
7
Exertional limitations “affect only [a claimant’s] ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling).” 20 C.F.R. §§ 404.1569a(b); 416.969a(b).
8
Nonexertional limitations affect a claimant’s ability to meet the other demands of job and include
mental limitations, pain limitations, and physical limitations not included in the seven strength demands.
9
Medical-Vocational Rule 203.28 applies to claimants whose educational level is “[h]igh school graduate
or more.” In this case, Plaintiff dropped out of school in 12th grade. However, because Rule 203.25, which
applies to claimants with more limited education, also directs a finding of not disabled, the error is harmless.
9
No. 2:08-CV-009-FL, 2009 WL 863372, at *12 (E.D.N.C. Mar. 24, 2009) (unpublished); Stark
v. Astrue, 462 F. App’x 756 (9th Cir. 2011); Stovall v. Astrue, No. 3:11-CV-10 (CDL), 2011 WL
7078304, at *3 n.1 (M.D. Ga. Dec. 9, 2011) (unpublished). Because the grids merely provide an
alternative path to VE testimony at step five, it follows that this rule could also apply where the
grids encompass an earlier, omitted restriction. However, “[r]egardless of whether an ALJ relies
on the grids or VE testimony, his step five analysis must capture, in functional terms, ‘the
concrete consequences of a claimant’s deficiencies’ as supported by the substantial evidence.”
Boler v. Colvin, No. 1:10CV451; 2013 WL 5423647 (M.D.N.C. Sept. 26, 2013) (quoting Cox
v. Astrue, 495 F.3d 614, 620 (8th Cir. 2007)).
Defendant contends that this standard has been satisfied here because the restriction to
unskilled work in this case adequately encompasses Plaintiff’s mental limitations. “Unskilled
work” is a term of art, defined as “work which needs little or no judgment to do simple duties
that can be learned on the job in a short period of time.” 20 C.F.R. § 416.968(a). This Court,
along with others within the Fourth Circuit, has held that “whether or not unskilled work
squares with a claimant’s particular mental limitations presents a fact-specific determination.”
Boler v. Colvin, 2013 WL 5423647 (M.D.N.C. Sept. 26, 2013) (citing Smith v. Schweiker, 719
F.2d 723, 725 (4th Cir.1984)). Where, for example, the medical evidence showed that a claimant
was moderately limited in concentration, persistence, or pace, but nonetheless capable of
understanding and retaining simple instructions, sustaining attention and concentration for at
least two hours, and performing simple, routine, repetitive tasks in a low stress environment with
limited social contact, the hypothetical properly described the claimant as a functionally illiterate
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individual restricted to performing unskilled work consisting of simple, routine, repetitive tasks
with limited contact with co-workers and the general public. Hawley v. Astrue, No. 1:09CV246,
2012 WL 1268475, at *7-8 (M.D.N.C. Apr. 16, 2012) (unpublished). In contrast, another recent
case held that a mere limitation to “‘unskilled, simple, and repetitive work’” failed to adequately
encompass the claimant’s moderate difficulties in concentration, persistence, or pace. Tune v.
Astrue, 760 F. Supp. 2d 555, 563 (E.D.N.C. 2011).
Having considered these cases and the cases cited by Defendant, the Court concludes
that in the present case, the general reference to “unskilled” work does not, without more,
sufficiently encompass the earlier findings made by the ALJ, based on the medical record, that
Plaintiff could perform “simple repetitive tasks,” with “simple instructions,” in a low-stress work
environment. Cf. Boler v. Colvin, 2013 WL 5423647 (M.D.N.C. Sept. 26, 2013) (“[I]t is clear
that ‘simple, routine, repetitive work is a narrower category (meaning greater limitations) than
unskilled work’ in general.” (quoting McClendon v. Astrue, No. 1:10CV411, 2012 WL 13525,
at * 7 (M.D.N.C. Jan. 4, 2012) (unpublished)). Accordingly, the limitation to unskilled work at
step five fails to render the error in the ALJ’s RFC assessment harmless. Moreover, because the
ALJ failed to address or explain his consideration of these mental limitations in formulating the
RFC, and failed to explain his assessment of these mental limitations in the determination that
there was no erosion of the occupational base, this Court cannot complete meaningful judicial
review of the ALJ’s decision. Therefore, the Court should reverse the Commissioner’s decision
as to the RFC and remand the case for a rehearing pursuant to sentence four of 42 U.S.C.
§ 405(g).
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IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding no
disability be REVERSED, and that the matter be REMANDED to the Commissioner under
sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the
matter to the ALJ for reassessment of Plaintiff’s RFC in accordance with this recommendation.
To this extent, Defendant’s Motion for Judgment on the Pleadings [Doc. #15] should be
DENIED, and Plaintiff’s Motion for Summary Judgment [Doc. #10] should be GRANTED.
However, to the extent that Plaintiff’s motion seeks an immediate award of benefits, it should
be DENIED.
This, the 14th day of August, 2014.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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