CARVER v. ASTRUE
Filing
19
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 7/6/2015; 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 to conduct a proper function-by-function analysis and to appropriately assess Plaintiff's credibility as to his subjective complaints of pain. As a result, Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) should be denied and Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) should be granted in part (i.e., to the extent it requests remand). (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOEL M. CARVER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:13CV13
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Joel M. Carver, brought this action pursuant to the
Social Security Act (the “Act”) 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 Act and Supplemental Security Income (“SSI”)
under Title XVI of the Act.
(Docket Entry 1.)
The Court has
before it the certified administrative record (cited herein as “Tr.
__”), as well as the parties’ cross-motions for judgment (Docket
Entries 10, 13).
For the reasons that follow, the Court should
remand the matter for further consideration.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed applications for DIB and SSI on
October 15, 2009, alleging for both applications a disability onset
date of December 23, 2008.
Plaintiff’s
(Tr. 57, 67, 201-09.)1
applications
initially
(Tr.
Upon denial of
77-78)
and
on
reconsideration (Tr. 101-02), he requested a hearing de novo before
an Administrative Law Judge (“ALJ”).
Plaintiff, his attorney, and
a vocational expert (“VE”) attended the hearing.
(Tr. 33-54.)
By
decision dated April 20, 2011, the ALJ determined that Plaintiff
was not disabled under the Act.
(Tr. 24-32.)
On August 1, 2012,
the Appeals Council denied Plaintiff’s request for review (Tr. 57), making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the Social Security Act through June 30, 2012.
. . . .
2.
[Plaintiff] has not engaged in substantial gainful
activity since December 23, 2008, the alleged onset date.
. . . .
3.
[Plaintiff] has the following severe impairments:
degenerative joint disease of the right shoulder; left
eye blindness due to glaucoma; and obesity.
. . . .
1
According to the administrative record, Plaintiff first protectively filed
applications for SSI and DIB on April 6, 2009. (Tr. 55-56, 201-07.) Plaintiff
then protectively filed applications for SSI and DIB on October 15, 2009. (Tr.
57, 67, 208-09.) The ALJ’s ruling identifies April 6, 2009, as the protective
filing date for Plaintiff’s DIB application and October 15, 2009, as such date
for Plaintiff’s SSI application, without further explanation.
(Tr. 24.)
However, the record reflects that Plaintiff only requested reconsideration as to
the applications protectively filed on October 15, 2009 (see Tr. 55-100) and thus
abandoned the applications filed on April 6, 2009.
2
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 . . . .
. . . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . but must avoid
climbing ladders, moving machinery, and other hazards;
jobs requiring fine visual acuity or acute perception; or
significant reading.
(Tr. 26-27 (internal parenthetical citations omitted).)
In
light
of
the
foregoing
findings
regarding
residual
functional capacity, the ALJ determined that Plaintiff may not be
able to perform any past relevant work.
(Tr. 30.)
However, the
ALJ noted that a significant number of other jobs existed in the
national market that he could perform.
(Tr. 31-32.)
Accordingly,
the ALJ ruled that Plaintiff did not have a disability, as defined
in the Act, at any time from the alleged onset date through the
date last insured.
(Tr. 32.)
II.
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 [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
3
Instead,
the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached 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 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 [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).
4
“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).
When confronting that issue, the Court must take 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)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
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.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
2
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
5
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
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 the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3
A finding adverse to the 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
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
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
(‘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.
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 Commissioner 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
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 work-related 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.
5
A claimant thus can establish disability 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.”).
7
B.
Assignments of Error
Plaintiff asserts that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) the ALJ failed to properly consider Plaintiff’s one-eye
blindness in formulating Plaintiff’s RFC and the hypothetical
question (Docket Entry 11 at 3-4);
(2)
assessment
the
to
ALJ
failed
determine
to
conduct
Plaintiff’s
a
RFC
function-by-function
and,
further,
that
determination had no basis in any medical opinion (id. at 5-8); and
(3) the ALJ failed to properly evaluate Plaintiff’s subjective
complaints of pain (id. at 8-12).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 14 at 3-19.)
Plaintiff’s Left-Eye Blindness
Plaintiff first argues that the ALJ erred by finding (at step
two) that Plaintiff has left-eye blindness due to glaucoma and then
disregarding that finding (at steps four and five) when assessing
Plaintiff’s RFC and formulating the hypothetical question to the
VE.
(Docket
Entry
11
at
3-4.)
As
a
result,
according
to
Plaintiff, although the RFC describes Plaintiff’s limitations as to
the need to “‘avoid . . . fine visual acuity or acute perception[,]
or significant reading[,]’ . . . . [such] limitations . . . do not
represent all of the limitations that [Plaintiff] had because of
his left-eye blindness.”
(Docket Entry 11 at 3 (quoting Tr. 27).)
8
Specifically,
Plaintiff
alleges
that
the
ALJ
erred
by
not
“mention[ing] either in the RFC or in the hypothetical an obvious
limitation caused by one-eye blindness - limited depth perception.”
(Id.)
However, the finding at step two that Plaintiff has a severe
impairment - i.e., one-eye blindness - does not require the ALJ to
include any limitations from such impairment when stating the
Plaintiff’s RFC. In that regard, Plaintiff appears to misinterpret
the relationship between step two and the ALJ’s assessment of
Plaintiff’s RFC at step four:
The determination of a “severe” impairment at step two of
the sequential evaluation process is a de minimis test,
designed to weed out unmeritorious claims. See Bowen v.
Yuckert, 482 U.S. 137 (1987). A finding of de minimis
limitations is not proof that the same limitations have
the greater significant and specific nature required to
gain their inclusion in an RFC assessment at step four.
See, e.g., Sykes v. Apfel, 228 F.3d 259, 268 n.12 (3d
Cir. 2000).
Hughes v. Astrue, No. 1:09CV459, 2011 WL 4459097, at *10 (W.D.N.C.
Sept. 26, 2011) (unpublished); see Burkstrand v. Astrue, 346 F.
App’x 177, 180 (9th Cir. 2009) (“To the extent [a claimant]
suggests that a finding of severe impairment at Step 2 necessarily
requires limitations on a claimant’s ability to perform basic work
activities, this argument has no merit.”); Felton-Miller v. Astrue,
459 F. App’x 226, 230 (4th Cir. 2001) (“Step two of the sequential
evaluation is a threshold question with a de minimis severity
requirement.”).
9
Moreover, the ALJ extensively discussed Plaintiff’s visual
impairments as they pertain to Plaintiff’s RFC.
In
that
discussion,
the
ALJ
weighed
(See Tr. 27-30.)
apparently
inconsistent
evidence from two consultative examinations: whereas Dr. Barber
determined that Plaintiff’s left-eye vision qualified as blind with
or
without
glasses
(Tr.
345),
Dr.
Friedland
concluded
that
“[Plaintiff] has the potential for good vision in the [l]eft eye
[with surgery] if there is minimal delay” (Tr. 336).
In that
regard, the ALJ explained that “[t]he vision-related findings
offered by Dr. Friedland are given more weight because she is a
board
certified
internist.”
ophthalmologist
(Tr. 30.)
whereas
Dr.
Barber
is
an
Nor do these consultative examinations
necessarily contradict each other, because Dr. Barber did not
address any surgical measures for Plaintiff’s visual impairments.
(See Tr. 342-347.)
The ALJ also relied on Plaintiff’s statement
“that he drives a vehicle and feels able to do so with the help of
non-prescription reading glasses[,] [concluding that] [Plaintiff’s]
ability to drive is inconsistent with his statements regarding
inability to perform other functions due to his vision.” (Tr. 28.)
Furthermore, the resulting RFC includes limitations as to
vision by noting that Plaintiff “must avoid . . . jobs requiring
fine visual acuity or acute perception; or significant reading.”
(Tr. 27.) First, the limitation as to “acute perception” generally
would appear to encompass a limitation as to depth perception
10
specifically.
The fact that the ALJ raised the issue of depth
perception with the VE, as discussed below, supports the view that
the ALJ intended the term “acute perception” to include depth
perception. (See Tr. 52.) Second, those limitations identified by
the ALJ appear consistent with Dr. Barber’s characterization that
“[Plaintiff] would not be able to do a job that required good
vision.” (Tr. 347.) That Plaintiff disagrees with the conclusions
the ALJ drew from the record evidence does not support remand.
See
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the ALJ.”). Because the ALJ adequately explained
his determination that Plaintiff does not suffer from complete
blindness in his left eye, substantial evidence supports the ALJ’s
determination of Plaintiff’s RFC as it pertains to Plaintiff’s
visual impairments.
Plaintiff
makes
a
similar
argument
as
to
the
ALJ’s
hypothetical question to the VE, asserting that “[t]he VE was not
told that [Plaintiff] was blind in one eye, nor that [Plaintiff]
had
limited
peripheral
vision,
nor
that
he
had
the
limitations mentioned in the medical literature . . . .”
Entry 11 at 4.)
other
(Docket
The ALJ formulated the following hypothetical
question to the VE:
I want you to assume a hypothetical individual of the
same age, education and work background as that of
11
[Plaintiff]. I further want you to assume the individual
is limited to the performance of light work as that term
is defined in the regulation. However, the individual
needs to avoid climbing ladders or similar hazards; being
around dangerous moving machinery; driving; and would
also need a job where there’s no fine visual acuity
required.
So stay away from jobs requiring any
significant reading or that sort of thing.
(Tr. 51.)
In addition, the ALJ subsequently asked the VE, “Would
any of these [proposed available] jobs you described require any
kind of significant depth perception?
More depth perception than
being able to drive short distances in a car?,” to which the VE
answered, “No.
I don’t believe so.”
(Tr. 52.)
“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.”
Hines, 453 F.3d at 566 (internal brackets omitted).
However, “a hypothetical question is unimpeachable if it adequately
reflects a residual functional capacity for which the ALJ had
sufficient evidence.”
Fisher v. Barnhart, 181 F. App’x 359, 364
(4th Cir. 2006) (emphasis in original) (internal quotation marks
and brackets omitted).
Here, the ALJ’s hypothetical questions
incorporated all the impairments expressed in Plaintiff’s RFC,
which, as discussed above, substantial evidence supports. In fact,
the ALJ provided greater detail than that present in the RFC by
inquiring as to whether any of the VE’s proposed jobs required
“significant depth perception.”
(Tr. 52.)
12
Moreover, even if the ALJ had omitted severe impairments from
the hypothetical question, “courts in the Fourth Circuit have found
it to be harmless error for an ALJ to omit a limitation in the
hypothetical question when the resulting jobs presented by the VE
accommodate
10–02677,
the
2013
limitation,”
Powell
v.
WL
at
(D.
3776948,
(unpublished) (citing cases).
*9
Astrue,
Md.
Civ.
July
No.
17,
SKG
2013)
Notably, Plaintiff has not argued
that any of the jobs proposed by the VE actually require greater
visual ability (including greater depth perception) than that
possessed by Plaintiff.
(See Docket Entry 11 at 3-4; see also Tr.
31 (listing jobs proposed by VE).)
Nor does the Dictionary of
Occupational Titles indicate that any of those jobs would require
vision-related capacity lacked by Plaintiff.
See Dictionary of
Occupational Titles §§ 207.685-014, 323.687-014, and 915.473-010
(4th ed. rev. 1991).
Plaintiff additionally contends that Green v. Commissioner of
Soc. Sec., Civ. A. No. 00-23, 2001 WL 364921 (E.D. La. Apr. 20,
2001), supports reversal.
(Docket Entry 11 at 3.)
In that case,
the court determined that the ALJ’s failure to tell the VE about a
variety of the claimant’s conditions, including one-eye blindness,
constituted reversible error.
See Green, 2001 WL 364921, at *5.
The district court’s primary basis for reversal in that case
appeared to be the ALJ’s failure to include in the hypothetical
question
the
claimant’s
major
depression
13
and
deficiencies
of
concentration, despite finding that the claimant actually suffered
from those mental impairments.
Id.
Furthermore, those mental
limitations would have “preclude[d] the jobs for which [the VE] had
found [the claimant] eligible,” id., unlike the present situation
where Plaintiff has not shown that including greater detail as to
Plaintiff’s visual limitations would have eliminated any of the
jobs proposed by the VE.
Green thus does not provide a basis to
overturn the ALJ’s determination.
In sum, Plaintiff’s first ground lacks merit.
2.
RFC Formulation
Second, Plaintiff contends that the ALJ assessed Plaintiff’s
RFC without conducting the required function-by-function analysis
and without relying on any medical opinion.
8.)
(Docket Entry 11 at 5-
In that regard, Plaintiff avers that “[n]owhere in the ALJ’s
decision
is
there
any
finding
as
to
how
many
hours
a
day
[Plaintiff] can sit, walk, stand, lift, carry, push [or] pull.”
(Id. at 5.)
Moreover, according to Plaintiff, “[that] error was
aggravated by the fact that the ALJ did not rely on the physical
RFC assessments proffered by the State agency consultants or anyone
else.
[The ALJ] dismissed the opinions of the state physicians as
having little weight, and made his own RFC assessment.”
(Id.)
RFC measures the most a claimant can do despite any physical
and mental limitations.
404.1545(a), 416.945(a).
Hines, 453 F.3d at 562; 20 C.F.R. §§
An ALJ must determine a claimant’s
14
exertional and non-exertional capacity only after considering all
of a claimant’s impairments, as well as any related symptoms,
including pain.
See Hines, 453 F.3d at 562–63; 20 C.F.R. §§
404.1545(b), 416.945(b).
The ALJ then must match the claimant’s
exertional
an
abilities
to
appropriate
level
sedentary, light, medium, heavy, or very heavy).
404.1567, 416.967.
of
work
(i.e.,
See 20 C.F.R. §§
Any non-exertional limitations may further
restrict a claimant’s ability to perform jobs within an exertional
level.
See 20 C.F.R. §§ 404.1569a(c), 416.969a(c).
An ALJ need not discuss every piece of evidence in making an
RFC determination.
See, e.g., Black v. Apfel, 143 F.3d 383, 386
(8th Cir. 1998); Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995).
However, the ALJ “must build an accurate and logical bridge from
the evidence to [the] conclusion.”
863, 872 (7th Cir. 2000).
function
analysis
administrative
in
ruling
Clifford v. Apfel, 227 F.3d
As to the role of the function-bythat
states:
determination,
“The
RFC
the
assessment
relevant
must
first
identify the individual’s functional limitations or restrictions
and
assess
his
or
her
work-related
abilities
on
a
function-by-function basis . . . Only after that may RFC be
expressed in terms of the exertional levels of work, sedentary,
light, medium, heavy, and very heavy.”
Social Security Ruling 96-
8p, Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims (“SSR 96-8p”).
15
The Fourth Circuit recently addressed this administrative
ruling and the issue of whether an ALJ’s failure to articulate a
function-by-function
analysis
necessitates remand.
Colvin, 780 F.3d 632, 636-37 (4th Cir. 2015).
Mascio
v.
In particular, the
Fourth Circuit examined the use by the ALJ of the following
boilerplate language:
“After careful consideration of the evidence, the
undersigned
finds
that
the
claimant’s
medically
determinable impairments could reasonably be expected to
cause 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 639 (emphasis added) (quoting the administrative record).
In that regard, “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 credibility.’”
Salmon v. Colvin, 1:12CV1209, 2015 WL 1526020, at *4 (M.D.N.C. Apr.
2, 2015) (unpublished) (Biggs, J.).
Accordingly, “[t]he court
explained that the ALJ should have compared [the claimant’s]
alleged functional limitations to the other evidence in the record,
not to [her] RFC.”
Id. (citing Mascio, 780 F.3d at 639).
Although the Fourth Circuit stated “that a per se rule is
inappropriate given that remand would prove futile in cases where
the
ALJ
does
not
discuss
functions
that
are
irrelevant
or
uncontested,” Mascio, 780 F.3d at 636, it concluded that “‘remand
may be appropriate where an ALJ fails to assess a claimant’s
16
capacity to
perform
relevant
functions,
despite
contradictory
evidence in the record, or where other inadequacies in the ALJ’s
analysis frustrate meaningful review,’” id. (internal brackets and
ellipsis omitted) (quoting Cichocki v. Astrue, 729 F.3d 172, 177
(2d Cir. 2013)).
In Mascio, the district court had ruled “that “SSR 96–8p does
not require an ALJ to produce a detailed statement in writing — a
true function-by-function analysis, and that a narrative discussion
of
a
claimant’s
symptoms
and
medical
source
opinions
is
sufficient,” Mascio v. Colvin, No. 2:11CV65-FL, 2013 WL 3321577, at
*3 , (E.D.N.C. July 1, 2013) (unpublished), rev’d, 780 F.3d 632
(4th Cir. 2015), or in the alternative, that such failure to
articulate the function-by-function analysis in writing constituted
harmless error, id. On appeal, the Fourth Circuit remanded because
(amongst other reasons):
[T]he ALJ has determined what functions he believes [the
claimant] can perform, but his opinion is sorely lacking
in the analysis needed for us to review meaningfully
those conclusions.
In particular, although the ALJ
concluded that [the claimant] can perform certain
functions, he said nothing about [the claimant’s] ability
to perform them for a full workday. The missing analysis
is especially troubling because the record contains
conflicting evidence as to [the claimant’s] residual
functional capacity — evidence that the ALJ did not
address.
Mascio, 780 F.3d at 636-37.
Accordingly, in light of Mascio, “the
[C]ourt must determine whether the ALJ’s RFC analysis considered
the relevant functions, whether his decision provides a sufficient
17
basis to review his conclusions, and, ultimately, whether that
decision is supported by substantial evidence in the record.”
Scruggs v. Colvin, No. 3:14CV466–MOC, 2015 WL 2250890, at *4
(W.D.N.C. May 13, 2015) (unpublished) (citing Mascio, 780 F.3d at
636-37).
In the instant case, the ALJ used the identical boilerplate
language and similarly failed to perform a written function-byfunction analysis, i.e., articulate the extent of Plaintiff’s
exertional capabilities as they relate to his various impairments,
before assigning an RFC of light work.
(See Tr. 27-30.)
Moreover,
like in Mascio, here the administrative record reflects conflicting
evidence
not
addressed
by
the
ALJ,
particularly
concerning
Plaintiff’s ability to stand or walk for a full workday.
For
instance, the ALJ indicates that he “[gave] weight to the findings
of [Dr. Barber]” and explained that “[Dr. Barber’s] findings from
[his] examination in relation to the claimant’s physical abilities
are supported by other medical evidence of the record.”
(Tr. 30.)
In fact, the ALJ appeared to rely primarily on the findings of Dr.
Barber,
because
he
did
not
identify
another
medical
source
concerning Plaintiff’s physical impairments to which he assigned
much weight.
In
that
Plaintiff’s
(See Tr. 27-30.)
examination,
right
knee
Dr.
pain,
Barber
“[i]t
concluded
would
be
that,
due
difficult
to
for
[Plaintiff] to do a job that required prolonged periods of standing
18
or walking.”
(Tr. 347.)
Dr. Barber further concluded that
Plaintiff “has gout attacks three to four times a year [and that]
[d]uring gout attacks it would be difficult for him to do a job
that required prolonged periods of standing or walking.”
(Id.)
However, light work “requires a good deal of walking or standing,
or . . . involves sitting most of the time with some pushing and
pulling of arm or leg controls,” 20 C.F.R. § 404.1567, and thus the
inability to stand or walk for prolonged periods does not appear
consistent with light work, see Harrison v. Colvin, No. 1:10–CV–18,
2013 WL 1661096, at *2, (M.D.N.C. Apr. 17, 2013) (unpublished)
(Eagles, J.) (“[B]y finding that [the claimant] was capable of
performing light work, the ALJ implicitly found that she was
capable of standing or walking for approximately six hours in an
eight-hour work day.”).
Moreover,
although
the
State
Agency
physicians
assessed
Plaintiff as capable of standing or walking six hours in an eighthour workday (Tr. 62, 72, 85, 96), the ALJ “[gave] little weight to
the State Agency assessments [because they] do not factor in the
combined effect of [Plaintiff’s] impairments and the opinions are
not supported by other objective findings from the record” (Tr.
30).
Thus, the conclusion that Plaintiff can walk or stand for at
least six hours in a workday - implied by the ALJ’s assignment of
an RFC of light work to Plaintiff - has support only in the medical
opinions to which the ALJ assigned little weight.
19
The ALJ further failed to provide any explanation for deeming
noncredible Plaintiff’s statements concerning his inability to
stand or walk for a full workday.
(See Tr. 27-30.)
In that
regard, the ALJ noted that Plaintiff “said he experiences gout
flare ups, mainly affecting his feet, a total of three months out
of the year, with each flare up lasting about three weeks.”
28.)
(Tr.
As to Plaintiff’s abilities when he does not experience gout
flare-ups, the ALJ remarked that Plaintiff “stated he can stand for
about an hour before the pain requires him to sit . . . . [and]
also said that he can sit for about 20 minutes before the [knee]
pain becomes too great [when he stands up].”
(Tr. 28.)
the
as
ALJ
discussed
Plaintiff’s
credibility
to
Although
his
visual
impairments, the ALJ did not discuss his rejection of Plaintiff’s
statements concerning his ability to stand of walk beyond the
boilerplate assertion that “these symptoms are not credible to the
extent they are inconsistent with the above [RFC] assessment.”
(Tr. 28.)
“Nowhere, however, does the ALJ explain how he decided
which of [the claimant’s] statements to believe and which to
discredit,
other
than
the
vague
(and
circular)
boilerplate
statement that he did not believe any claims of limitations beyond
what he found when considering [the claimant’s] [RFC].
lack of explanation requires remand.”
Plaintiff
further
contends
that
The ALJ’s
Mascio, 780 F.3d at 640.
the
ALJ
erred
in
“not
rely[ing] on the RFC assessments proffered by the state agency
20
consultants
or
any
[other
medical
source,]
.
.
.
.
[thus,]
leav[ing] an ‘evidentiary deficit’ which the ALJ may not fill with
his or her own lay opinion of RFC.”
that
regard,
Plaintiff
asserts
(Docket Entry 11 at 5.)
that,
“although
a
final
In
‘RFC
assessment’ is ultimately left to the ALJ, RFC itself is at least
partly a medical question which requires medical expertise as a
foundation.”
(Id. (emphasis in original).)
In support, Plaintiff
cites to a recent case from a neighboring district (id. at 6-7
(citing Nicholson v. Astrue, 2010 WL 5406997, at *6 (W.D.N.C. Oct.
29, 2010) (unpublished))), in which that court reversed the ALJ’s
RFC determination as “only [] result[ing] from his own unqualified
lay opinion,” Nicholson, 2010 WL 5406997, at *6. In that case, the
ALJ had relied exclusively on an RFC assessment provided by an SSA
employee (a Single Decision Maker, or “SDM”) with no medical
credentials and the court thus concluded that substantial evidence
did not support the ALJ’s RFC assessment.
See id. (“In reality, no
one with medical credentials provided an RFC assessment for the
State Agency.
The ALJ noted the absence of an opinion from an
accepted medical source, but then proceeded to rely exclusively on
the SDM’s opinion, even though he had no medical credentials
either.”).
The instant case presents a different scenario, in which the
ALJ relied on information from multiple, credentialed medical
sources in determining Plaintiff’s RFC.
21
(See Tr. 27-30.)
The
Fourth Circuit recently stated (in an unpublished opinion) that
“[RFC] is an administrative assessment made by the Commissioner
based on all relevant evidence in the case record,” Felton-Miller,
459
F.
App’x
at
230-31
(citing
20
C.F.R.
§§
404.1546(c),
416.946(c); SSR 96-8p), and found that an “ALJ [may] properly
base[] his RFC finding on [a claimant’s] subjective complaints, the
objective
medical
evidence,
and
the
opinions
of
treating,
examining, and nonexamining physicians,” id. Here, even though the
ALJ failed to properly conduct a function-by-function analysis, he
apparently weighed Plaintiff’s statements, the treatment notes, and
the consultative examinations in determining Plaintiff’s RFC. (Tr.
27-30.) In other words, despite the above-identified discrepancies
in the ALJ’s reasoning as to the function-by-function analysis, the
ALJ did not specifically commit error by failing to adopt an RFC
assessment based on relevant medical opinions in the record.
In sum, the ALJ neglected to assess relevant functional
limitations of Plaintiff - the ability to walk or stand for a full
workday - which may preclude Plaintiff’s ability to perform light
work for part (due to gout) or all (due to right-knee pain) of the
year.
For this reason, and in light of Mascio, the Court should
remand this case.
3.
Subjective Complaints of Pain
Finally, Plaintiff contends that the ALJ erred in evaluating
his subjective complaints of pain.
22
(Docket Entry 11 at 8-14.)
Specifically, Plaintiff claims that the “ALJ committed error by
rejecting [Plaintiff’s] pain testimony regarding his shoulder and
knee,
and
by
failing
to
give
adequate
reasons
for
rejection],” in violation of Fourth Circuit precedent.
(citing
Craig,
76
F.3d
at
594-95),
10-12.)
In
[that
(Id. at 8
particular,
Plaintiff asserts that “[i]t is logically impossible to have made
this finding [that insufficient medical evidence exists to support
the alleged pain] after having found that the objective evidence
showed
[Plaintiff’s]
degenerative
joint
disease
of
the
right
shoulder to be reasonably likely to produce pain in the amount and
degree alleged.”
(Id. at 8 (internal quotation marks omitted).)
Social Security Ruling 96-7p, Policy Interpretation Ruling
Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements (“SSR 967p”), as applied by the Fourth Circuit in Craig, 76 F.3d at 594-95,
provides a two-part test for evaluating a claimant’s statement
about symptoms.
“First, there must be objective medical evidence
showing ‘the existence of a medical impairment(s) which results
from anatomical, physiological, or psychological abnormalities and
which could reasonably be expected to produce the pain or other
symptoms alleged.’”
Id. at 594 (quoting 20 C.F.R. § 404.1529(b)).
Notwithstanding the foregoing:
This threshold test does not, as the regulation is
careful to emphasize, entail a determination of the
“intensity,
persistence,
or functionally
limiting
effects” of the claimant’s asserted pain. See 20 C.F.R.
23
§§ 416.929(b) & 404.1529(b).
At this stage of the
inquiry, the pain claimed is not directly at issue; the
focus is instead on establishing a determinable
underlying impairment — a statutory requirement for
entitlement to benefits, see 42 U.S.C § 1382c(a)(3)(A) —
which could reasonably be expected to be the cause of the
disabling pain asserted by the claimant.
Id. at 594.
If a claimant meets that threshold obligation, the
fact finder must proceed to part two and evaluate the intensity and
persistence of the claimant’s pain, as well as the extent to which
it affects her ability to work.
Id. at 595.
In making this
evaluation, the fact finder:
must take into account not only the claimant’s statements
about her pain, but also all the available evidence,
including the claimant’s medical history, medical signs,
and laboratory findings, any objective medical evidence
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), and any
other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id. (internal citations and quotation marks omitted).
At
the
outset,
Plaintiff
mis-characterizes
the
two-part
evaluation of pain outlined in Craig by claiming that, after
finding sufficient medical evidence to satisfy part one, “[i]t is
logically impossible” to then find at part two that the pain
allegations “‘are not supported by much medical evidence’” (Docket
Entry 11 at 8 (quoting Tr. 28).)
Because the first part represents
only a threshold inquiry as to whether a claimant has an impairment
capable of producing pain, the ALJ may find that medical evidence
sufficient to satisfy part one does not meet the requirements of
24
part two.
See Smith v. Astrue, 457 F. App’x 326, 329 (4th Cir.
2011) (“Craig notes that [part] one of the pain analysis is focused
solely ‘on establishing a determinable underlying impairment — a
statutory
requirement for
Craig, 76 F.3d at 594)).
entitlement
to
benefits.’”
(quoting
“Craig explains that, after the claimant
crosses this threshold, ‘the intensity and persistence of the
claimant’s pain, and the extent to which it affects her ability to
work, must be evaluated.’”
Id. (quoting Craig, 76 F.3d at 595).
Here, at part one of the pain analysis, the ALJ made a
threshold determination that Plaintiff has impairments which could
reasonably be expected to cause his alleged symptoms.
(Tr. 28.)
The ALJ next explained, using the boilerplate language identified
in Mascio (as discussed in Part II.B.2, above), that “[Plaintiff’s]
statements
concerning
the
intensity,
persistence
and
limiting
effects of these symptoms are not credible to the extent they are
inconsistent with the above [RFC].”
(Tr. 28.)
In Mascio, the
Fourth Circuit explained that “a claimant’s pain and [RFC] 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 [RFC].”
Mascio, 780 F.3d at 639.
However, the court
then noted that such an “error would be harmless if [the ALJ]
properly analyzed credibility [as to the claimant’s statements
concerning pain] elsewhere.”
(Id.)
In that case, the ALJ found
the claimant’s statements concerning pain not credible because the
25
claimant had lied to her doctor about her marijuana use and she had
been convicted for selling her prescribed pain medication.
(Id.)
Notwithstanding those reasons, the Fourth Circuit held that the ALJ
failed to sufficiently explain “which of the claimant’s statements
to believe and which to discredit” and that the insufficient
explanation necessitated remand.
Id. at 640.
Here, beyond the above-referenced boilerplate language, the
ALJ did not offer any other explanation for his determination that
Plaintiff’s
credibility.
“the
statements
concerning
(Tr. 27-30.)
inconsistency
between
pain
specifically
lacked
Instead, the ALJ generally described
the
claimant’s
statements
and
the
medical evidence of record, as well as the claimant’s failure to
seek treatment for his impairments.”
(Tr. 28.)
The ALJ then
thoroughly explained those factors as they relate specifically to
Plaintiff’s
visual
impairments,
but
failed
to
do
Plaintiff’s physical impairments or any related pain.6
regard,
the
ALJ
did
not
discuss
whether
so
as
to
In that
Plaintiff’s
daily
activities, statements made to various physicians, or some other
factor led the ALJ to find Plaintiff’s statements regarding his
physical impairments not credible.
(See Tr. 27-30.)
Thus, the
ALJ’s decision does not make clear whether “the inconsistency
between the claimant’s statements and the medical evidence of
6
Although the ALJ engaged in a narrative discussion of Plaintiff’s treatment
records concerning pain in his right shoulder and leg, he did not express whether
these records support or undermine the credibility of Plaintiff’s statements
concerning pain. (See Tr. 29.)
26
record, as well as the claimant’s failure to seek treatment for his
impairments” (Tr. 28) damaged Plaintiff’s credibility as to his
physical impairments and the resulting pain as well as Plaintiff’s
credibility as to his visual impairments.
Moreover, the ALJ suggested that at least some of Plaintiff’s
statements qualified as credible, by noting that “the above [RFC]
is supported by . . . the credible portion of [Plaintiff’s]
testimony and other statements.”
(Tr. 30.)
However, like in
Mascio, 780 F.3d at 640, the ALJ failed to provide any explanation
as to which statements he believed and which he discredited (see
Tr. 27-30).
Defendant argues that the ALJ adequately addressed Plaintiff’s
credibility by raising the issue of Plaintiff’s failure to seek
treatment for his conditions.
(Docket Entry 14 at 17.)
In that
regard, Defendant cites to a Fourth Circuit case in which the ALJ
found a claimant’s statements concerning pain not credible where
the claimant did not fill his prescription for pain medication and
discontinued his physical therapy.
(See id. (citing Hunter v.
Sullivan, 993 F.2d 31, 36 (4th Cir. 1992)).)
However, the ALJ’s
opinion does not clarify whether the failure to seek treatment
damages Plaintiff’s credibility as to all Plaintiff’s impairments
or Plaintiff’s visual impairments only.
(See Tr. 28.)
Although
the ALJ specifically discusses how Plaintiff’s failure to pursue
surgery renders Plaintiff’s vision testimony not credible, he
27
provides no such explanation for Plaintiff’s other impairments and
thus the reach of the ALJ’s general statement concerning failure to
seek treatment remains unclear.
Circuit
found
the
ALJ’s
(See id.)
In Hunter, the Fourth
determination
of
that
claimant’s
credibility supported by substantial evidence where it was “based
upon specific evidence in the record.”
Hunter, 993 F.2d at 36.
The ALJ did not offer any such specific evidence here as to how
Plaintiff’s failure to seek treatment rendered his statements of
pain regarding his physical impairments not credible and thus
Defendant’s argument fails.
In sum, the ALJ’s failure to articulate any reason (beyond the
boilerplate language) for rejecting Plaintiff’s complaints of pain
regarding his physical impairments constitutes error and, thus, the
Court should remand.
III. CONCLUSION
Plaintiff
has
established
grounds
for
relief
as
to
his
contentions that the ALJ failed to properly conduct a function-byfunction analysis and failed to properly assess his subjective
complaints of pain.
28
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 to conduct a proper function-by-function analysis and
to
appropriately
assess
Plaintiff’s
credibility
as
to
his
subjective complaints of pain. As a result, Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 13) should be denied and
Plaintiff’s Motion for Judgment on the Pleadings (Docket Entry 10)
should be granted in part (i.e., to the extent it requests remand).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 6, 2015
29
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