BRANDON v. COLVIN
Filing
23
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 2/23/2016; that the Commissioner's decision finding no disability is VACATED and that the matter is REMANDED for further administrative proceedings consist ent with this Memorandum Opinion and Order. To this extent, the Commissioner's Motion for Judgment on the Pleadings (Doc. 16 ) is DENIED, and Plaintiff's Motion for Judgment on the Pleadings (Doc. 11 ) is GRANTED. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BERNARD K. BRANDON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
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1:13CV51
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Bernard K. Brandon (“Plaintiff”) brought this
action pursuant to 42 U.S.C. § 405(g) to obtain review of a
final decision of the Commissioner of Social Security
(“Commissioner”) denying his claims for Social Security
Disability and Supplemental Security Income benefits under
Titles II and XVI of the Social Security Act (“the Act”).
Presently before this court are Plaintiff’s Motion for
Judgment on the Pleadings (Doc. 11), and the Commissioner’s
Motion for Judgment on the Pleadings (Doc. 16).
This court also
has before it the certified administrative record, 1 and this
matter is now ripe for adjudication.
1
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer. (Doc. 8.)
After a careful consideration of the evidence of record,
the Decision of the Administrative Law Judge (“ALJ”), and the
governing legal standard, this court will find that remand is
proper.
I.
BACKGROUND
Plaintiff filed an application for Supplemental Security
Income benefits on March 29, 2011, alleging a disability
beginning on March 29, 2011. (Tr. at 20). The claim was denied
initially and upon reconsideration. (Id.) A hearing before an
ALJ was held on June 13, 2012. (Id.)
After the hearing, the ALJ determined that Plaintiff was
not disabled under the Act. (Id. at 30.) 2 The ALJ concluded that
(1) Plaintiff had not engaged in substantial gainful activity
during the relevant period, and (2) Plaintiff had severe
2
“The Commissioner uses a five-step process to evaluate
disability claims.” Hancock v. Astrue, 667 F.3d 470, 472-73
(4th Cir. 2012) (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 [his] past relevant work; and
(5) if not, could perform any other work in the national
economy.” Id. A finding adverse to the claimant at any of
several points in this five-step sequence forecloses a
disability designation and ends the inquiry. Id.
“Additionally, if the claimant’s disability can be determined at
any step, the inquiry need not continue.” Bryant v. Colvin, 571
F. App’x 186, 188 (4th Cir.) (citing Hancock, 667 F.3d at 472),
cert. denied, ____ U.S. ____, 135 S. Ct. 727 (2014).
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impairments including: umbilical hernia; history of tricuspid
valve endocarditis and tricuspid valve replacement; restrictive
lung disease; and depression. (Id. at 22.) At step three, the
ALJ concluded that the impairments, either alone or in
combination, did not meet or equal a listed impairment. (Id. at
23.) The ALJ then determined that Plaintiff had the residual
functional capacity (“RFC”) 3 to perform light work except for
unskilled jobs and that he could understand, remember, and carry
out simple instructions and sustain attention and concentration
to perform simple tasks. (Id. at 24.) Based on that
determination and given Plaintiff’s status as “an individual
closely approaching advanced age,” his limited education and
ability to communicate in English, and his lack of past relevant
work or job skills, the ALJ found that the Medical-Vocational
Guidelines and the vocational expert’s testimony directed a
3
“RFC is a measurement of the most a claimant can do
despite [the claimant’s] limitations.” Hines v. Barnhart, 453
F.3d 559, 562 (4th Cir. 2006) (20 C.F.R. § 404.1545(a)). 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),” to
determine “his maximum capacity for sustained performance of the
physical and mental requirements of jobs.” Hall v. Harris, 658
F.2d 260, 265 (4th Cir. 1981). “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 (citing 20 C.F.R. § 404.1529(a)).
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finding that Plaintiff is “not disabled.” (Id. at 29-30 (citing
20 C.F.R. pt. 404, subpt. P, app. 2, §§ 202.10, 204.00).)
Accordingly, the ALJ denied Plaintiff’s application in a
June 21, 2012 decision. (Id. at 30.) The Appeals Council denied
Plaintiff’s request for review, making the ALJ’s determination
the Commissioner’s final decision for purposes of review. (Id.
at 1.) Plaintiff filed the present action on January 21, 2013.
II.
LEGAL STANDARD
Federal law authorizes judicial review of the
Commissioner’s denial of social security benefits. 42 U.S.C.
§§ 405(g), 1383(c); Hines v. Barnhart, 453 F.3d 559, 561 (4th
Cir. 2006) (citations omitted). However, “courts are not to try
the case de novo,” Oppenheim v. Finch, 495 F.2d 396, 397 (4th
Cir. 1974), and the scope of review “is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). 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) (citation omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” Id. (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). “It ‘consists of more than a mere scintilla of
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evidence but may be less than a preponderance.’ ” Id. (citation
omitted). Essentially,
“[i]f there is evidence to justify a refusal to direct
a verdict were the case before a jury, then there is
‘substantial evidence.’” It is not [a court’s] place
to weigh the evidence or to substitute [its] judgment
for that of the Secretary if that decision was
supported by substantial evidence.
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (citation
omitted).
“In reviewing for substantial evidence, [courts] do not
undertake to reweigh conflicting evidence, make credibility
determinations, or substitute [their] judgment for that of the
[ALJ].” Hancock, 667 F.3d at 472 (citation omitted). Rather,
“[w]here conflicting evidence allows reasonable minds to differ
as to whether a claimant is disabled, the responsibility for
that decision falls on the [ALJ].” Id. (citation omitted).
Thus, the issue before this court “is not whether
[Plaintiff] is disabled, but whether the ALJ’s finding that []he
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, 588 (4th Cir. 1996).
Upon review of an ALJ’s decision, a court cannot and should
not expect the ALJ to engage in a statement-by-statement review
of the claimant’s testimony; however, an ALJ’s analysis cannot
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be over-broad and instead must provide enough detail to allow
the court to conduct a meaningful review, within the substantial
evidence standard. See Mascio v. Colvin, 780 F.3d 632, 636 (4th
Cir. 2015) (“In that regard, we agree with the Second Circuit
that ‘[r]emand may be appropriate . . . where an ALJ fails to
assess a claimant’s capacity to perform relevant functions,
despite contradictory evidence in the record, or where other
inadequacies in the ALJ’s analysis frustrate meaningful review.’
We find this to be such a case.” (quoting Cichocki v. Astrue,
729 F.3d 172, 177 (2d Cir. 2013)) (emphasis added)); Torres v.
Colvin, CIVIL ACTION NO. 1:14-CV-00007-RLV, 2016 WL 54933, at *8
(W.D.N.C. Jan. 5, 2016) (“Consequently, the ALJ’s decision
cannot be affirmed because the Court cannot conduct a
‘meaningful review’ of his findings to determine whether his
assessment of Plaintiff’s residual functional capacity is
supported by substantial evidence. Therefore, remand is
required.” (citation omitted)); Hicklin-Jones v. Colvin, CIVIL
ACTION No. 3:14-CV-584, 2015 WL 8958542, at *6 (W.D.N.C.
Dec. 15, 2015) (declining to remand where “[t]he Court [wa]s not
left to guess at how the ALJ arrived at his conclusions”).
III. INTERVENING PRECEDENT AND PARTIES’ ASSERTIONS
Upon reviewing the ALJ’s decision, it appeared to this
court that the United States Court of Appeals for the Fourth
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Circuit’s recent ruling in Mascio v. Colvin, 780 F.3d 632 (4th
Cir. 2015), may be applicable. (Order (Doc. 18) at 1-2.) This
court had additional concerns regarding some statements in the
ALJ’s report and evidence in the record. (Id. at 2-3.)
Consequently, the court requested that both parties brief the
matters. (Id.) The court has received and reviewed the
Commissioner’s supplemental briefing, (Doc. 19), and Plaintiff’s
supplemental briefing, (Doc. 22).
Plaintiff argues that Mascio warrants remand for
credibility determinations, given the use of identical
boilerplate as that used in Mascio and the lack of a sufficient
credibility determination elsewhere. (Pl.’s Suppl. Br. (Doc. 22)
at 1-5.) Plaintiff further attacks the ALJ’s credibility
determination by arguing that “[t]he ALJ’s summary of
[Plaintiff’s] testimony contains errors,” (id. at 3-4), and “the
ALJ ignored evidence that did not comport with her credibility
finding.” (Id. at 5.)
Defendant concedes that the ALJ used objectionable Mascio
boilerplate but argues that the error is harmless because “the
ALJ properly analyzed Plaintiff’s credibility” elsewhere and
“explained why she found that Plaintiff’s testimony and other
statements were not fully credible.” (Def.’s Suppl. Br. (Doc.
19) at 2.)
Defendant takes the ALJ’s generalized determinations
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and provides detailed support for them from the record to
demonstrate inconsistency between Plaintiff’s testimony and
other evidence on record and to support the ALJ’s
characterization of Plaintiff’s testimony as “only partially
credible.” (Id. at 2-3.)
IV.
ANALYSIS
Craig v. Chater provides a two-part test to evaluate the
credibility of a claimant’s statements 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.’” 76 F.3d at 594 (quoting 20 C.F.R. §§ 416.929(b) &
404.1529(b)) (emphasis removed). If this threshold test is
satisfied and the ALJ determines that the claimant has shown
that such an impairment exists, id. at 595, the second part of
the test allows the ALJ to “consider[] the credibility of [the
claimant’s] subjective allegations of pain.” Id. at 596. At this
second step, the ALJ must consider all available evidence to
determine “the intensity and persistence of a claimant’s pain
and the extent to which it impairs her ability to work” and
whether the claimant is disabled. Id. at 595-96. While the ALJ
must consider the claimant’s allegations and may not
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“discredit[] [them] solely because they are not substantiated by
objective evidence of the pain itself or its severity,” she need
not credit them “to the extent they are inconsistent with the
available evidence,” including the “objective medical evidence”
or “the extent to which th[e] impairment can reasonably be
expected to cause the pain the claimant alleges she suffers.”
Id. Where the ALJ has considered these factors, heard the
plaintiff’s testimony, and observed his demeanor, the
credibility determination is entitled to deference. Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984).
In this case, the ALJ completed the two-step Craig
analysis, as laid out in her determination, (Tr. at 24-25), but,
in the opinion of this court, the ALJ committed error at step
two in considering the subjective allegations of pain, or at
least insufficiently explaining her reasoning as to the
subjective allegations.
First, the ALJ stated that she had “careful[ly]
consider[ed] the evidence” and “f[ound] that [Plaintiff’s]
medically determinable impairments could reasonably be expected
to cause the alleged symptoms.” (Id. at 25.) Thus, the ALJ
properly discharged her duty under Craig’s first step.
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), elucidates
how the ALJ erred under Craig’s second step. The Mascio ALJ
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erred when using “boilerplate” language at step two of the
credibility assessment, stating that “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. This method problematically “‘gets
things backwards’ by implying ‘that ability to work is
determined first and is then used to determine the claimant’s
credibility.’” Id. (citation omitted). Instead, “the ALJ . . .
should have compared [the claimant’s] alleged functional
limitations from pain to the other evidence in the record, not
to [the claimant’s] residual functional capacity.” Id.
Applying Mascio, the ALJ here erred at Craig’s second step
by considering the credibility of Plaintiff’s testimony through
the use of the same objectionable boilerplate used in Mascio:
Plaintiff’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.” (Tr. at 25.)
Nevertheless, an “ALJ’s error [c]ould be harmless if he
properly analyzed credibility elsewhere.” Mascio, 780 F.3d at
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639. An ALJ discharges this obligation when he “explain[s] 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] residual functional capacity.” Id. at 640. Remand is
needed when an adequate explanation is lacking. See id. To
render the error harmless, the “credibility evaluation must
account for ‘all the available evidence,’ and must contain
‘specific reasons for the finding on credibility, supported by
the evidence in the case record.’” Gentry v. Colvin, No. 2:13CV-66-FL, 2015 WL 1456131, at *6 (E.D.N.C. Mar. 30, 2015)
(citations omitted). The question here is whether the ALJ
properly analyzed Plaintiff’s credibility elsewhere, making the
error harmless.
Explanations insufficient to overcome Mascio boilerplate
have included a situation involving an “administrative record
[that] reflect[ed] conflicting evidence not addressed by the
ALJ, particularly concerning Plaintiff’s ability to stand or
walk for a full workday.” Carver v. Colvin, No. 1:13CV13, 2015
WL 4077466, at *8 (M.D.N.C. July 6, 2015). Problematically, in
Carver, the “ALJ further failed to provide any explanation for
deeming noncredible Plaintiff’s statements concerning his
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inability to stand or walk for a full workday.” Id. at *9
(“[T]he ALJ did not discuss his rejection of Plaintiff’s
statements concerning his ability to stand o[r] walk beyond the
boilerplate assertion that ‘these symptoms are not credible to
the extent they are inconsistent with the above [RFC]
assessment.’”). Further, “the ALJ did not offer any other
explanation for his determination that Plaintiff’s statements
concerning pain specifically lacked credibility” and “[i]nstead
. . . generally described ‘the inconsistency between the
claimant’s statements and the medical evidence of record, as
well as the claimant’s failure to seek treatment for his
impairments.’” Id. at *11 (noting the mismatch between the ALJ’s
assessment about the impact of the inconsistency on the
assessments on pain and vision); see also id. at *12 (“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.”).
Even an ALJ’s description of the plaintiff’s testimony and
discussion of some reasons for partially discounting it were
insufficient where he “never specifically addressed [a]
particular statement in his credibility analysis [that] he
erroneously attributed to [the plaintiff] in his summation of
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her testimony,” making it “unclear whether the ALJ ever
considered [the plaintiff’s] assertion” and “whether the ALJ set
[the plaintiff’s] RFC . . . based — in whole or in part — on an
erroneous assumption.” Byas v. Colvin, No. 1:13CV151, 2015 WL
3791444, at *5 (M.D.N.C. June 17, 2015). That “lack of clarity
prevent[ed] meaningful review” and the matter was remanded. Id.
In cases where a proper credibility determination renders
harmless an improper use of Mascio boilerplate, ALJs have
engaged in “credibility analys[e]s . . . susceptible to judicial
review and supported by substantial evidence.” Belton v. Colvin,
No. 1:14CV777, 2015 WL 5023087, at *7 n.5 (M.D.N.C. Aug. 24,
2015). 4 For example, one ALJ engaged in a sufficient credibility
assessment where, “[i]n making that part two finding, the ALJ
discussed the [relevant] medical history and medical signs . . .
[,] reviewed observations from Plaintiff’s treating providers .
. . [, and] compared Plaintiff’s own statements in the medical
record and at the hearing concerning her daily activities,”
4
One example of a sufficient credibility analysis in a case
not involving Mascio boilerplate consisted of the ALJ
summarizing the claimant’s hearing testimony and then
contrasting it with the record in a back-and-forth manner to
support his finding that her testimony was only partially
credible. Campbell v. Colvin, Civil NO. 3:14CV725-RJC-DSC, 2015
WL 7750194, at *5-6 (W.D.N.C. Sept. 16, 2015) (“The ALJ properly
found that Plaintiff’s statements were only partially credible
and cited to substantial evidence in support of his findings.”).
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rendering “the ALJ’s credibility analysis” compliant “with the
regulations and Fourth Circuit law.” Mason v. Colvin, No.
1:13CV1150, 2015 WL 4460348, at *6 (M.D.N.C. July 21, 2015).
Mascio boilerplate was found harmless where the ALJ
“discussed the medical history and medical signs relevant to
each type of pain Plaintiff alleged,” “reviewed observations
from five of Plaintiff’s treating providers . . . which
indicate[d] that those providers could not find a satisfactory
medical explanation for Plaintiff’s pain,” “evaluat[ing]
Plaintiff’s own statements in the medical record and at the
hearing which tended to show that his pain did not qualify as
disable[ed],” and finally “discuss[ing] the medical opinion
evidence.” Long v. Colvin, No. 1:13CV0659, 2015 WL 1312919, at
*5 (M.D.N.C. Mar. 24, 2015). Although the ALJ did not “recount
each piece of evidence in assessing Plaintiff’s credibility,”
the ALJ used sufficient detail and analysis to sufficiently show
why the statements were characterized as they were and how the
evidence was analyzed. See id.; see also Scott v. Colvin, No.
5:14-CV-291-RJ, 2015 WL 5607830, at *11 (E.D.N.C. Sept. 23,
2015) (discussing a credibility determination where “the ALJ
went on to give specific reasons why he found Claimant to be
only partially credible,” including the level of treatment
versus his alleged impairments, according to the medical record,
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and issues concerning the claimant’s financial status).
Most illustrative for purposes of this case is the
credibility analysis in Young v. Colvin, No. 5:13-CV-823-FL,
2015 WL 1433544 (E.D.N.C. Mar. 27, 2015), “where the ALJ
expressly addressed each of [the] plaintiff’s statements to be
discredited, and thoroughly explained why each lacked
credibility, using medical evidence, [the] plaintiff’s own
testimony, as well as inferences drawn therefrom to support its
decision.” Id. at *3 (emphasis added). There, “where the ALJ
identified plaintiff’s statements which lacked credibility, and
then performed a statement-by-statement analysis, using evidence
and testimony, as well as the inferences drawn therefrom, to
explain why those statements were not credible, the court
determine[d] that the ALJ’s additional use of improper
boilerplate language was harmless.” Id. at *4.
Here, following the objectionable Mascio boilerplate, the
ALJ provided some further analysis:
In evaluating the persuasiveness of the claimant’s
testimony and other statements, the undersigned notes
the following. First, the claimant’s statements are
unsupported by and inconsistent with other evidence of
record. The claimant alleged significant dizziness and
chest pain when walking or standing for more than a
few minutes. However, in multiple treatment notes with
cardiovascular specialists and other treating
physicians, the claimant denied those symptoms,
alleging only some shortness of breath with exertion.
His assertion that his pain and other symptoms have
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been exacerbated often and required emergent treatment
is unsupported by medical evidence documenting such
treatment. His allegation regarding pain with reaching
is not corroborated by any similar complaint to
treating or examining sources. The claimant testified
that he cannot do much around the house, but
specifically reported no difficulty with independent
performance of daily activities during the relevant
time period.
The undersigned also notes the claimant has a very
sparse work history. The claimant’s failure to perform
substantial gainful activity during periods of time
when he was not limited by these or other impairments
suggests his current inability to work may be due to
something other than the limiting effects of his
severe impairments.
Because of these factors, the claimant’s statements
are deemed partially credible. In situations where the
claimant’s statements are not supported by other
evidence of record, they have been given little
weight.
(Tr. at 25.) This analysis indicates to some extent how the ALJ
determined which of Plaintiff’s statements to credit, and which
to discredit, beyond the boilerplate. See Mascio, 780 F.3d at
639-40. The ALJ describes using treatment notes and other parts
of the record to determine which of Plaintiff’s statements to
believe. Specifically, those parts of the testimony that were
inconsistent with “multiple treatment notes,” for example,
contributed to the determination that his statements were
partially credible. (Tr. at 25.)
Although the ALJ appears to engage in some credibility
analysis beyond the Mascio boilerplate, her analysis does not
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quite rise to the level — as illustrated in Young — to
sufficiently demonstrate how she decided which statements to
believe and which to discredit. Given the limited and summary
fashion of her analysis in the context of the entire record,
this court cannot conclude that the credibility analysis here
was sufficient to render the Craig step-two error harmless. 5
5
This court notes that an ALJ is not required to
individually analyze each statement by the plaintiff in its
discussion and analysis. However, and at the crux of the need to
remand here, the ALJ must provide enough detail to allow the
court to conduct a review of that analysis. While a statementby-statement analysis is not required, overbroad
characterizations depriving courts of the ability to conduct a
meaningful review are problematic and can necessitate remand.
See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (“In
that regard, we agree with the Second Circuit that ‘[r]emand may
be appropriate . . . where an ALJ fails to assess a claimant’s
capacity to perform relevant functions, despite contradictory
evidence in the record, or where other inadequacies in the ALJ’s
analysis frustrate meaningful review.’ We find this to be such a
case.” (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir.
2013)) (emphasis added)); Torres v. Colvin, CIVIL ACTION NO.
1:14-CV-00007-RLV, 2016 WL 54933, at *8 (W.D.N.C. Jan. 5, 2016)
(“Consequently, the ALJ’s decision cannot be affirmed because
the Court cannot conduct a ‘meaningful review’ of his findings
to determine whether his assessment of Plaintiff’s residual
functional capacity is supported by substantial evidence.
Therefore, remand is required.” (citation omitted)); HicklinJones v. Colvin, CIVIL ACTION NO. 3:14-CV-584, 2015 WL 8958542,
at *6 (W.D.N.C. Dec. 15, 2015) (declining to remand where “[t]he
Court [wa]s not left to guess at how the ALJ arrived at his
conclusions”). Here, the lack of depth in the analysis combined
with the examples of potential mismatch between the ALJ’s
discussion and Plaintiff’s testimony render the broad analysis
insufficiently specific.
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For example, 6 the ALJ does indicate that “[i]n evaluating
the persuasiveness of the claimant’s testimony and other
statements,” she compared it to other evidence of record. (Tr.
at 25.) To the extent this analysis focused on whether
Plaintiff’s statements were “unsupported by and inconsistent
with other evidence of record,” (id.), it was necessary in part
to review the credibility determination. However, this
determination by the ALJ focused on Plaintiff’s allegations of
dizziness and pain and need for treatment and simply did not
address many of his other alleged symptoms. (Id.) Additionally,
and more concerning, some of the ALJ’s determinations and
evaluations reveal apparent inconsistencies between her analysis
and Plaintiff’s testimony. She credited some, but not all, of
his testimony, supporting her final determination that
“[b]ecause of these factors, the claimant’s statements are
deemed partially credible. In situations where the claimant’s
statements are not supported by other evidence of record, they
have been given little weight.” (Id.)
As described hereinafter, despite accepting some of
Plaintiff’s testimony, the ALJ clearly did not give weight to
6
This court cited, in its request for supplemental
briefing, two additional illustrations of this court’s concerns
with the inconsistencies between the record and the ALJ’s
analysis. (See Order (Doc. 18) at 2-4.)
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other parts of his testimony, as she made findings that directly
contradict claimant’s testimony. In several instances, the ALJ
finds that Plaintiff specifically reported a particular fact or
situation but Plaintiff’s testimony leaves that conclusion less
than clear or even appears to contradict it.
As an example, the ALJ asserts that “[i]n activities of
daily living, the claimant has no restriction” and “[t]he
claimant reported performing all of his daily activities
independently,” concluding that “[t]here is no indication in the
record that the claimant has a limitation in this area.” (Id. at
23.) The ALJ further asserts that “[t]he claimant has lived
independently throughout the relevant period.” (Id.) However, in
coming to this conclusion, the ALJ failed to explain why or how
she discounted Plaintiff’s testimony to the contrary.
Plaintiff’s testimony at the hearing, summarized in
boilerplate fashion by the ALJ as “performing all of his daily
activities independently,” includes sections from the transcript
as follows:
Q.
You said that in the house that you live, the people
do the chores and help you out. Are you able to do any
chores to help out around the house?”
A.
No, I try, but I just can’t do it. I can’t do
anything.
Q.
Tell me what happens when you try.
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A.
When I get out [of] the bed, I went to the kitchen and
tried to maybe wash the dishes. I’d wash maybe 1-2
dishes and stop and I couldn’t do any more because my
cramps in my fingers and I start getting chest pains.
(Id. at 46-47.)
He also testified that “[t]he guys in that rooming house,
they help me do everything. They help me get around, they help
me cook. Basically, they look out for me.” (Id. at 42.)
Additionally, raising the question of living independently,
Plaintiff further testified that he lived in a rooming house
facility and those are the individuals who help him with
cooking, getting around, and “everything.” (Id. at 39, 42.)
The ALJ does not explain how she chose to both credit and
discredit Plaintiff’s testimony with respect to her final
determination that he performs all daily living independently,
beyond asserting that the “statements are deemed partially
credible,” depending on whether they are “supported by other
evidence of record.” (Id. at 25.)
It is not clear to this court
how Plaintiff’s description of daily living is or is not
supported by other evidence of record.
Similarly, the ALJ discounted the opinions of Dr. Pamela A.
Mund regarding Plaintiff’s ability to stand and his leg cramps,
stating that “[h]er statement that the claimant cannot walk more
than 50 feet without resting is not supported by the claimant’s
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reports or her own findings” and “[t]he statement regarding leg
cramps is not supported by commensurate complaints from the
claimant.” (Id. at 27-28.) However, the ALJ also recounted that
Plaintiff could not walk or stand for a significant period of
time “because of the significant chest pain and dizziness that
results from any exertion.” (Id. at 25.) Plaintiff testified
that he was unable to get to the bathroom in sufficient time at
night due to, among other factors, “cramps in my legs and
stuff.” (Id. at 45.) Further, in response to a question about his
ability to walk without resting, Plaintiff testified that he
could walk “[t]hree to four minutes” and then he would have to
stop because of “cramps and slowness of breath, chest pains.”
(Id. at 45-46.) He also testified that “I get, catch the cramps
in my fingers and in my legs when I exert myself and when I move
a lot.” (Id. at 45.) Again, the ALJ fails to explain how or why
she chose to discredit some of these statements by Plaintiff,
while believing and relying on others, to the extent that she
relied upon them.
Additionally, and as noted earlier, the ALJ held that
"[t]he claimant alleged significant dizziness and chest pain
when walking or standing for more than a few minutes. However,
in multiple treatment notes with cardiovascular specialists and
other treating physicians, the claimant denied those symptoms,
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alleging only some shortness of breath with exertion."
25.)
(Id. at
While this finding appears facially adequate, the record
is not nearly so consistent with this finding.
First, only once
could this court find an instance in which claimant actually
denied symptoms of chest pain and dizziness in the treatment
notes. (Id. at 466.)
The treatment notes from this instance
followed a tricuspid valve replacement several months earlier,
which might explain why the symptoms were not present at that
time.
(See id.)
Second, contrary to denying symptoms of chest
pain, in many of the medical records claimant did describe some
form of chest pain or chest discomfort.
(See id. at 107, 111,
321, 330-31, 337, 341-42, 410-11, 414, 435, 439, 458, 462.)
As
a result, while the ALJ appears in part to explain her
credibility issues, the explanation itself is either
inconsistent with, or not supported by, the record.
This court
cannot find "multiple treatment notes" in which "claimant denied
[dizziness and chest pain] symptoms,” and in fact, there appear
to be a number of records in which claimant did describe chest
pain, or at least discomfort. (See also id. at 414 (mentioning
light-headed symptoms).)
While this court does not and will not re-weigh the
evidence and the ALJ’s determinations, it is bound, per Mascio,
to ensure that the ALJ explained how credibility determinations
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were made so that this court can perform a review. See, e.g.,
Davis v. Colvin, Civil Action No. 4:14-cv-00051, 2015 WL
10007370, at *6 (W.D. Va. Dec. 23, 2015) (remanding where “the
ALJ failed to make his credibility determination in a way that
allows for meaningful review” and instead made it in a way that
“frustrates any attempt by the Court to understand how the ALJ’s
evaluation of [the claimant’s] credibility factors into his
disability determination” and failed to “give an adequate
explanation as to why he came to that conclusion” (citing
Mascio, 780 F.3d at 639-40)).
V.
CONCLUSION
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is VACATED and that the matter is REMANDED
for further administrative proceedings consistent with this
Memorandum Opinion and Order. 7
To this extent, the
Commissioner’s Motion for Judgment on the Pleadings (Doc. 16) is
DENIED, and Plaintiff’s Motion for Judgment on the Pleadings
(Doc. 11) is GRANTED.
7
This court notes that to the extent its order must be
construed as a reversal to be within the scope of its powers
under sentence four of 42 U.S.C. § 405(g), it shall be construed
as such, however, given the reasoning behind this order and the
mandate in Mascio itself that the case be vacated and remanded,
see 780 F.3d at 640-41, this court orders that the decision be
vacated.
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A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 23rd day of February, 2016.
_____________________________________
United States District Judge
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