SALMON v. ASTRUE
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 04/02/2015. IT IS ORDERED that the decision finding no disability is REVERSED; and that Defendant's Motion for Judgment on the Pleadings 12 is DENIED. Plaintiff's Motion for Judgment on Pleadings 10 is GRANTED to the extent it seeks reversal and remand for a new hearing, and this action is REMANDED for further proceedings consistent with this Opinion under sentence four of 42 U.S.C. § 405(g). (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TRACY D. SALMON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
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1:12CV1209
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, DISTRICT JUDGE.
Plaintiff Tracy D. Salmon (“Ms. Salmon”) commenced this action on November 13,
2012 to obtain judicial review of a final decision of the Commissioner of Social Security
denying her claim for Social Security disability benefits. (Doc. 2.) Before the Court are the
parties’ cross motions for Judgment on the Pleadings. (Docs. 10, 12.) The administrative
record has been certified to the Court for review. The Court heard oral argument on the
parties’ motions on March 17, 2015.
On March 20, 2015, Ms. Salmon filed a Notice of
Supplemental Authority and submitted a recent decision of the Fourth Circuit, Mascio v. Colvin,
__ F.3d __, No. 13–2088, 2015 WL 129530 (4th Cir. 2015)(Doc. 22). The Commissioner filed
her Response to the Notice in which she “acknowledges that Mascio is controlling authority in
the present case but would assert that the facts in the instant case are distinguishable from
those in Mascio.” (Doc. 23.) For the reasons set forth below, the Court grants Ms. Salmon’s
Motion to the extent it seeks reversal and remand for a new hearing and denies the
Commissioner’s Motion.
This Court’s review of the Commissioner’s denial of benefits is authorized under 42
U.S.C. § 405(g). Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). The scope of review is
extremely limited. Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). The court must uphold
the Commissioner’s factual findings if they are supported by substantial evidence and are free
of legal error. Hancock, 667 F.3d at 472. However, a necessary predicate to engaging in
substantial evidence review is a record that adequately explains the ALJ’s findings and
reasoning. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). This requires that the ALJ build
a logical bridge between the evidence and his conclusions. Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003).
In this case, the ALJ found that Ms. Salmon had not engaged in substantial activity
since the onset date through the date she was last insured (step one); had the following severe
impairments: controlled seizures; degenerative disc disease of the lumbar spine; bipolar
disorder, anxiety, lower extremity fracture; and migraines (step two); and that Ms. Salmon’s
impairments, alone or in combination, did not meet or equal a listed impairment (step three).
(Tr. at 14.) The ALJ then determined that Ms. Salmon had the residual functional capacity
(“RFC”) to perform light work with the following limitations: can occasionally climb ramps
and stairs; can frequently balance, stoop, kneel and crouch; can never climb ropes, ladders or
scaffolds and can never crawl; avoid concentrated exposure to hazards; due to mental
limitations, only simple, routine, repetitive tasks (“SRRTs”); and can have occasional contact
with the public while taking criticism from supervisors. (Id. at 15-16.)
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The ALJ concluded that Ms. Salmon was unable to perform any past relevant work
(step four), but considering her age, education, work experience, and RFC, there were other
jobs that existed in significant numbers in the national economy that she was able to perform
(step five). (Id. at 20.) These included electrical accessories assembler, office helper, and
routing clerk. (Id. at 21.) Because the ALJ found that Ms. Salmon had the RFC to perform
the foregoing jobs, he found her not disabled. (Id.)
Ms. Salmon raises the following issues with respect to the ALJ’s decision: (1) that the
ALJ’s decision was based on impermissible selective treatment of the evidence; (2) that the
ALJ’s hypothetical to the vocational expert did not contain all of her significant mental
limitations; (3) that the ALJ erred by deciding her RFC before deciding her credibility and by
judging her credibility against the pre-existing RFC; (4) that the ALJ failed to accord great
weight to her subjective testimony when it was supported by substantial evidence; and (5) that
the Court cannot conduct substantial evidence review of the ALJ’s decision because no
factfinder has considered the new and material evidence.
The Court finds that remand is warranted based on Ms. Salmon’s second argument,
specifically that the ALJ failed to account for Ms. Salmon’s moderate difficulties in
concentration, persistence or pace in his RFC and hypothetical to the vocational expert.
Because the Court concludes that reversal and remand for a new hearing is appropriate, the
Court will only address that issue.
Once a claimant with non-exertional limitations establishes that she cannot return to
her past relevant work at step four, as Ms. Salmon did in this case, the ALJ generally must
obtain vocational expert testimony to determine whether there are other jobs in the national
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economy that she can perform. McLain v. Schweiker, 715 F.2d 866, 869-70 (4th Cir. 1983); Hall
v. Harris, 658 F.2d 260, 267 (4th Cir. 1981). “In order for a vocational expert's opinion to be
relevant or helpful, it must be based upon a consideration of all other evidence in the record,
and it must be in response to proper hypothetical questions which fairly set out all of claimant's
impairments.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (internal citation omitted).
Ordinarily, the ALJ offers a hypothetical that reflects the RFC which is reached through
consideration of all the claimant’s impairments, including those impairments found not to be
severe. Hines v. Barnhart, 453 F.3d 559, 566 n.5 (4th Cir. 2006); 20 C.F.R. §§ 404.1545(a)(2),
416.945(a)(2). It follows that failure to account for all of the impairments in the RFC will
result in a hypothetical that does not capture all of a claimant’s limitations.
Here, the ALJ first determined that, among other things, Ms. Salmon had moderate
restrictions in concentration, persistence, or pace at steps two and three, which he translated
into a RFC of SRRTs with the following qualification: “able to apply commonsense
understanding to carry out instructions furnished in written, oral or diagrammatic form.” (Tr.
at 15-16.) Relying on his RFC, the ALJ then asked the vocational expert to assume that, due
to this individual’s mental conditions:
she would be limited to simple, routine, repetitive tasks in that [she] could apply
commonsense understanding to carry out instructions furnished on a written,
oral, or diagrammatic form. This individual . . . should have only occasional
contact with the public, could take criticism from supervisors, and occasional
contact with coworkers.
(Id. at 55-56.)
In Mascio, the Fourth Circuit made clear that “an ALJ does not account ‘for a claimant’s
limitations in concentration, persistence, and pace by restricting the hypothetical question to
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simple, routine, tasks or unskilled work.’” Mascio, 2015 WL 1219530, at *5 (quoting Winschel
v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). The Court went on to explain that
“the 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.”
Mascio, 2015 WL 1219530, at *5. In this case, neither the ALJ’s RFC nor his hypothetical to
the vocational expert addresses Ms. Salmon’s ability to stay on task.
To determine Ms. Salmon’s RFC, the ALJ adopted the findings of Dr. Cruise, the state
consultant. 1 (Tr. at 15-16, 429.) Although Dr. Cruise appears to have addressed Ms. Salmon’s
ability to stay on task, when she opined that Ms. Salmon had the RFC to maintain attention
to complete SRRTs (id. at 429), the RFC determination is a matter reserved to the ALJ, see
Social Security Ruling 96-5p, 1996 WL 374183, and here the ALJ failed to include this language
in his RFC. (See Tr. at 15-16.) As a result, it is unclear to this Court whether the ALJ concluded
that Ms. Salmon’s moderate limitations in concentration, persistence, or pace had no impact
on her disability, in which case he should say so, or whether he simply failed to consider it at
the RFC stage and at steps four and five. While the Court recognizes that the RFC is the
ALJ’s province, he must make clear to this Court that he considered all of Ms. Salmon’s
impairments in formulating the RFC and at steps four and five. As outlined above, a necessary
predicate for this Court to engage in substantial evidence review is a record that adequately
The Court notes that the ALJ failed to adequately explain his reasoning for the weight given to the
medical opinions in his evaluation of Ms. Salmon’s claims at steps two, three and at the RFC stage.
(Tr. at 20.) This is particularly concerning because the record contains a number of medical opinions.
(Id. at 399-405, 406-17, 427-30, 431-43, 584-88.) And, while the ALJ relied heavily on Dr. Cruise’s
findings at times, he did not adopt all of her findings (id. at 441), yet the ALJ did not address why he
accepted some but not all of them. (Id. at 15-16.)
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explains the ALJ’s findings and reasoning. Because the ALJ failed to address Ms. Salmon’s
ability to stay on task as required by Mascio, remand is required.
On remand, the ALJ should also be mindful of Ms. Salmon’s argument that he
improperly assessed her credibility against a pre-determined RFC. In particular, the ALJ
included what has become known as standard boilerplate language in ALJ decisions:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the above residual
functional capacity assessment.
Id. at 16. In Mascio, the Fourth Circuit held that this boilerplate “‘gets things backwards’ by
implying ‘that ability to work is determined first and is then used to determine the claimant’s
credibility.’” Mascio, 2015 WL 1219530, at *5 (quoting Bjornson v. Astrue, 671 F.3d 640, 645
(7th Cir. 2012)). The court explained that the ALJ should have compared Mascio’s alleged
functional limitations to the other evidence in the record, not to Mascio’s RFC. Mascio, 2015
WL 1219530, at *5. The court concluded that “a claimant’s pain and residual functional
capacity are not separate assessments to be compared with each other. Rather, an ALJ is
required to consider a claimant’s pain as part of his analysis of residual capacity.” Id. On
remand, the ALJ should ensure that he properly addresses Ms. Salmon’s credibility and RFC
in a manner consistent with the Fourth Circuit’s decision in Mascio.
For the reasons outlined above, the Court enters the following:
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Order
IT IS THEREFORE ORDERED that the Commissioner’s decision finding no
disability is REVERSED; that Defendant Acting Commissioner of Social Security Carolyn W.
Colvin’s Motion for Judgment on the Pleadings (Doc. 12) is DENIED; that Plaintiff Tracy D.
Salmon’s Motion for Judgment on the Pleadings (Doc. 10) is GRANTED to the extent it
seeks reversal and remand for a new hearing, and this action is REMANDED for further
proceedings consistent with this Opinion under sentence four of 42 U.S.C. § 405(g).
This, the 2nd day of April, 2015.
/s/ Loretta C. Biggs
United States District Judge
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