BYAS v. COLVIN

Filing 16

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 6/17/2015; that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Co mmissioner under sentence four of 42 U.S.C. § 405(g). To this extent, the undersigned RECOMMENDS that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be DENIED, and that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, the undersigned RECOMMENDS that it be DENIED. (Sheets, Jamie)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CYNTHIA D. BYAS ) ) ) ) ) ) ) ) ) ) Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Secudty, L:13CV151 ) ) Defendant. MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Cynthia D. Byas, btought this action pursuant to Sections 205(9) and 1,631,(c)Q) of the Social Secutity Âct (the "Act"), as amended (42 U.S.C. $$ a05(g) and t383(c)(3)), to obtain review of añnaldecision of the Commissioner of Social Security denying her claims for Disability Security Income ("SSI") under Titles Insurance Benefits II and ("DIB") and Supplemental XVI of the Act. The Court has before it the cetified administrative record and cross-motions for judgment. I. PROCEDURAL HISTORY Plaintiff fìled applications for SSI on October 13,2009 and DIB on Novembet 5,2009, both alleging disability beginning on March 1, 2007. Çr.1.2, 1.85-1.92, 203-04.)1 The applications were denied initially and agun upon teconsideration. (Tt 82-83, 106-07.) Plaintiff then requested and was ptovided a heating befote an 1 Transcrþt citations refer to the administrative record. -A.dministrative Law Judge wete Plaintifl her ("ALJ"). Çr.134.) At the Septembet 27, 201'1' heating ^ttorney, and a vocational expert determined that Plaintiff was not disabled under the ('1/E"). Çn 1'2) The ALJ Act. Qr12-21,.) O" December the Appeals Council denied Plaintiffs tequest fot teview, making the ALJ's 21,, 201.2 determination the Commissioner's final decision fot putposes of teview. [ft. 1-6.) II. STANDARD FOR REVIEW The Commissioner held that Plaintiff was not under a disability within the meaning of the Âct. Under 42 U.S.C. $ 405(9), the scope of judicial review of the Commissioner's final decision is specifìc and narrow. Smìth u. Schweiker,795 F.2d 343, 345 (4th Cir. 1986). This Court's review of that decision is limited to detetmining whethet there is substantial evidence in the record to support the Commissionet's decision. 42U.5.C. $ a05G); Hønteru. Sulliuan,993F.2d31,,34 (4th Cit. 1.992);HEts u. Salliuan,907 F.2d1453,1,456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to suppott a conclusion." Hanter, 993 tr.2d at 34 (citing Nchardson u. Perale4 402 U.S. 389, 401. (1,971)). "consists It of mote than a mete scintilla" "but may be somewhat less than a preponderance." 1/. (quotingl-^am u. Celebre7rye,368tr.2d The Commissionet must make findings 640,642 (4th Cir. 1,966)). of fact and resolve conflicts in the evidence. Hqq907F.2d^t1,456 (citing Kinga.Calfan0,599F.2d597,599 (4thCir. 1,979)). The Court does not conduct a de novo review of the evidence nor of the Commissioner's fìndings. Schweiker,795 F.2d 2 ^t 345. In reviewing for substantial evidence, the Coutt does not undertake to re-weigh conflicting evidence, to make credibiliry determinations, or to substitute its judgment for that of the Commissionet. Craigu. Chater,76F.3d585, 589 (4th Cir. 1996) (citing HoJt,907 F.2d^t1.456). "\Where conflicting evidence allows teasonable minds to diffet as to whethet a claimant is disabled, the responsibility for that decision falls on the [Commissionet] (ot fCommissioner's] designate, the 834 F.2d 635, 640 (7th Cir. ALJ)." Cmig76F.3dat589 IY/al,þ,era. Bowen, 1987). The denial of benefits will be reversed only if no teasonable mind could accept the tecord as adequate See (quoting the to suppott the determination. Nchardlon u. Perales, 402 U.S. 389, 40'1. (1971). The issue before the Coutt, therefote, is not whether Plaintiff is disabled, but whethet the Commissionet's finding that Plaintiff is not disabled is supported by substantial evidence and was teached based upon a correct application of the televant 51,7 law. See id,; Cofman u. Bowen,829 F.2d 514, (4th Cir. 1987). III. THE ALJ'S DISCUSSION The Social Security Regulations define "disability" fot the purpose of obtaining disability benefits as the 'lnability to do any substantial gainful activity by reason of any medically determinable physical ot mental impairment2 which can be expected to tesult in death or which has lasted or cafl be expected to last fot a contirìuous period not less than ' A 1,2 "physical months." 20 C.F.R. or mental impairment" S 404.1505(a); see al¡o is an impairment of 42 U.S.C. $$ a23(d)(1)(a), resulting from "anatomical, physiological, or psychological abnormalities which ate demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. SS 423 (dX3), 1382c(a)(3)(D). a J 1382c(a)Q)(A). To meet this definition, a claimant must have a severe impairment which makes it impossible to do previous work or any othet substantial gainful activity3 that exists in the naional economy. 20 C.F.R. S 404.1505(a); 423 (d) Q) (A), 13 see also 42 U.S.C. SS 82c (a) (3) @). A. The Five-Step Sequential Analysis The Commissioner follows a five-step sequential analysis to ascertain whether the claimant is disabled, which is set fotth in 20 C.F'.R. SS 404.1520,41.6.920. Albright u. Comm'r of Soe Sec. See Admin.,174 F.3d 473, 475 n.2 (4th Cit. 1999). The ALJ must determine in sequence: (1) \)Thether the claimant is engaged in substantial gainful activity (ì.e.,whether the claimant is working). If so, the claimant is not disabled and the inquiry ends. Q) \X/hether the claimant has a severe impairment. If not, then the claimant is not disabled and the inquiry ends. (3) Whether the impairment meets or equals to medical cdteria of 20 C.F.R., Part 404, Subpart P, Appendix 1, which sets forth a list of impairments tha;twaLtta;r'rt a If finding of disability without considering vocational criteria. so, the claimant zi disabled and the inquiry is halted. ' "substantial gainful acttviry" is work that (1) involves performing significant or productive physical or mental duties, and Q) is done (or intended) fot p^y or profit. 20 C.F.R. SS 404,1,51,0, 416.91,0. 4 (4) ìØhether the impairment prevents the claimant from perfotming past relevant work. If not, the claimant is not disabled and the inquiry is halted. (5) Whether the claimant is able to petfotm any othet work considedng both her residual functional capacirya and het vocational abilities. If so, the claima¡t is not disabled. 20 c.F.R. SS 404.1520,41.6.920. Here, in step one, the ALJ found that because a substantive detetmination could be made later in the sequential evaluation process, the issue of whethet Petitionet had engaged in substantial gainful acttvity within the relevant time pedod was moot. (Ir. 14.) In step two, the ALJ found that Plaintiff had the following severe impafuments: "lumbar mechanical pain due to facet osteoarthtitis; arthtitis of the cervical spine; athritis of the dght shouldet; and hypettension." (Tt. 15.) At step three, the ALJ found that Plaintiff did not have an impaitment or combination of impairments listed in, or medically equal to, one listed in ,\ppendix sequence, the relevant 1. (Id.) Ât the fourth step of the ALJ detetmined that Plaintiff was capable of performing her past work. Gt. 20.) The ALJ did not reach the fìfth step of the analysis because he found that Plaintiff could perform past televant work at step a four. (See id.) "Residual functional capac:ttt¡" is the most a claimant can do in a work setting despite the physical and mental limitations of her impairment and any telated symptom (e¿., pan) . S ee 20 C.F.R. S$ 404.1545(r)(1), aß.9a5@)(1); see also Hines uBarnhart,453 F.3d 559,562 (4th Cir. 2006). The RFC includes both a "physical exertional ot sttength limitation" that assesses the claimant's "ability to do sedentary, light, medium, heavy, or very hear,ry work," as well as "nonexertional limitations (mental, sensory or skin impafuments)." Hall a. Harris,658 F.2d 260,265 (4th Cir. 1981). 5 B. Residual Functional Capacity Determination Ptior to step fout, the ,A.LJ determined Plaintiffs RFC based on his evaluation of the evidence, including Plaintiffs testimony and the findings of treating and examining health care providers, as well as non-examining state consultants. [t. 1,5-20.) Based on the evidence as a whole, the ALJ determined that Plaintiff tetained the RFC to perform medium work wrth manipulative and postutal resttictions. (Ir. 15.) Specifically, the ALJ found that Plaintiff "can sit, stand, and walk fot up to hours each in an B-hour day. She can 8 ltft/carry and push/pull 50 pounds occasionally and 25 pounds frequently. She can reach overhead occasionally. She can petfotm tasks requiring stooping, ctouching, kneeling, and ctawling IV. frequently." Qd.) ANALYSIS Plaintiff makes five arguments that the Commissioner erred in determining that she was not disabled fot purposes of the Act. First, Plaintiff atgues that the AIJ etred because he failed to obtain a Medical physician. pocket Er,try 1,7 at 6-7.) Source Statement ftom Plaintiffls treating Second, Plaintiff contends that the A{'s RFC finding as to how much Plaintiff could lift and carlT was not suppotted by substantial evidence. (Id. at7 -5.) Third, Plaintiff claims the ALJ erred in analyzing het ctedibility because the ,A.LJ determined her RFC prior to assessing her credibility. (Id. at 8-10.) Fourth, Plaintiff argues that the ALJ erred by failing to accotd het testimony great weight. (Id. at1.0-1,2.) Finally, Plaintiff claims that the ,\LJ committed 6 facruøl errot in finding that her testimony was not ctedible. (Id. at 1,3-1,4.) As explained below, the undersigned concludes that remand is in otder. A. The Error in Determining PlaintifPs Credibility Requires Remand. In pertinentpairt, Plaintiff contends that the,{,LJ erted in detetmining her credibiJity. The undersþed agtees and conclucles that the error i.s not harmless. The Fourth Circuit Court of Âppeals has adopted a tu.o-step ptocess by rvhich the -A,LJ must evaluate a clumant's sylTrptoms. Fitst, the ALJ must detetmine if the plaintifPs rnedically documented irnpaitments could reasonably be expected to cause her allegecl s)¡mptoms of . Craig I6 F.3d ^t 594. 'I'he second step includes an evaluation subjective evidence, considedng the claimant's persistence, and limiting effects C.F.R. SS (ústatements about the intensity, of fthe claimant's] symptoms." Id. at 595 (citing 20 416.929(c)(4) and a0a.1,529(Q(\. "The ALJ must considet the following: (1) a claimant's testimony and other statements concerning pain or other subjective complaints; Q) claknant's medical history andlabor.atory finclings; (3) any objective meclic¿l er.iclence of pain; and (4) any other er.'idence televant to the severity of the impaitrnent." Grabb1 Nov. 18, u. Astrwe, 2010) (citing No. 1:09cv364,2010 \)fL 5553677, at *3 C*tg,76 F.3d at 595;20 C.F'.R. \ CX/.D.N.C. a0a.1529(c).) "Other el'idence" tefets to factots such as claimant's daily activities, dutzrtion and ftequency of pain, treatment other than medication received for telief of symptoms, and any othet measures used to relieve claimant's alleged of øn Indiuidøal'¡ SlalemenLs, also pain. Id. SSll instructs the 7 96-7p , Atvsing AIJ to "consider the entire the Credihilitl case tecord" and requires a credibility detetmination to "contain specific reâsons fot the fìnding on credibility, suppoted by the evidence in the case tecord[.]" SSR 96-7p. Ân ALJ's credibility determination receives "substantial defetence." Saye 1,997 WL 232305, x1, ^t u. Chater, No. 95-3080, (4th Cir. May 8,1,997) (unpublished). Here, the ALJ followed the Craig two-step analysis to determine Plaintiffs credibility. Çr. 1,5-20.) At Step One, he found that "tbe fPlaintiffs] medically determinable impairments could teasonably symptoms." be expected to cause the alleged Çr 1.9.) Thus, the AIJ performed the fust step of the Craiganalysis. An eror occurted at the second step of the C'raig analysis, however. This is because the Fourth Circuit Coutt of Appeals tecently issued a published decision, Masdo u. Co/uin,780 F.3d 632 (4thClr.201,5), finding thatanALJ ered by using, atpa;rt rwo of the ctedibility assessment, "boilerplate" Iangtase that "the claimant's statements concetning the intensity, persistence and limiting effects of þs pain] are not credible to the extent they are inconsistent with the above tesidual functional assessment." Id. capacity at 639. This method "'gets things backwatds' by i-plytng that ability to work is determined fìrst and is then used to detetmine the claimant's credibility." Id. (quoing Bjomson u. Astrue, 671, F.3d 640, 644-45 (7th Cir. 201,2)). Instead, "the ALJ lin Mascio] should have compared fthe claimant's] alleged functional limitations ftom pain to the othet evidence in the recotd, not to fthe claimant's] tesidual functional capacity." Id. 8 Here, the ÂLJ erred in the instant case by considering Petitioner's ctedibility through the use of the same objectionable "boiletplate" used in Mascio, by finding that her "statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent they ate inconsistent with the above tesidual functional capacity âssessment." the (It. 19.) The question, thetefore, becomes whethet erot is harmless. Ma¡cio is instructive on this issue as well. In Mascio, the Foutth Circuit explained what harmless error would look like, stating that "The ÄLJ's harmless if he properly analyzed credibility eror would be elsewhere." Masdo,780 F'.3d at640. The Fourth Circuit made it clear that an ALJ discharges this obligation when he "explain[s] how he decided which of fthe claimant's] statements to believe and which to discredit." Id. at 6. However, in Ma¡cio the A{ failed to explain himself accordingly, except to make "the vague (and circular) boilerplate statement that he did not believe any claims of limitations beyond what he found when considering fthe claimant's] residual functional capaciqr." Id. The lack of an explanation required temand. Id. In this case, to his credit, the ÂLJ described Petitionet's hearing testimony at considerable length. Çr. 16-17.) The A{ also gave some reasons for parttally discounting Petitioner's testimony. For example, the ALJ stated that Petitioner "does not have any evidence of ongoing nerve root comptession which might be expected based on the degree of pain alleged." (Tt. 19.) The ALJ also stated rz;thet genetally that Petitioner's treatment regime indicated that het "symptoms [were] not 9 as intractable as alleged." (Id.) The AIJ also addressed Petitioner's headng statement that she is unable to "do anything" and spends het time "watching television." (Tr. 19.) The AIJ specifìcally discredited this statement, observing that the record failed to demonstrate ^ppeara'nce the change in motor tone, bulk, body habitus, or constitutional that one would expect from a "debilitating disease process."s (Id.) Howevet, at the administrative heating, Petitioner also testifìed that she could pick up two five pounds bags of sugar, but not fout five pound bags.ó Qr. 43.) Yet, the AtJ stated in his decision that Petitioner testified that "she bag of flout or sugar." Çr. 1,6 (emphasis cari pick up a 25-pound added).) This is ttoublesome because the ALJ-who limited Plaintiff to medium work in the RFC-never specifically addressed this patticulat statement in his ctedibility analysis, which he erroneously attdbuted to Petitionet in his summation of her testimony. Medium work ptesumes Petitionet can lift rwenty-five pounds frequently and ftfty pounds occasionally. 20 C.F.R. 404.1,567 (c), 41,6.967 (c). SS Consequendy, it is unclear whethet the ALJ ever consideted Petitionet's assertion that she cannot lìft twenty pounds. Likewise, it is unclear whether the ALJ set Petitioner's RFC to medium wotk based-in whole ot in patt-on u The undersþed notes that the credibility analysis set forth in the ALJ's decision is not to specihcally which of Petitionet's headng allegations is being addtessed and discounted. Gt. 19.) This leaves open the issue of whethet all the limitations assetted at Petitionet's hearing were properþ addressed. However, the Court need not resolve that issue, because the statement erroneously attributed to Plaintiff by the AlJ-described above-requires remand. always clear as u Thete is some confusion here in the headng testimony as to whether Petitionet was stating she was unable to pick up twenty pounds of sugar oÍ two pounds of sugat. Qr a2-43.) In either event, Plaintiff never stated anything that could reasonably be intetpreted as a stâtement that she could pick up t'wenty-five pounds of sugar. 10 an erroneous assumption that Petitioner stated at her heating that she could lift twenty-five pounds. This lack of clarity prevents meaningful teview and the undersigned is hesitant to âttempt to resolve this issue in the governing standard ftst instance in light of the of review, articulated above.T Consequently, the undetsigned concludes that remand is appropriate so that this issue can be resolved propedy. None of this necessadly means that Plaintiff is disabled under the Act and the undersigned expresses no opinion orì that matter. Nevertheless, in light of all of the above, the undetsigned concludes that the proper course hete is to remand this mattet for futher administrative ptoceedings. Finally, the consideration of the additional issues raise by Plaintiff at this undersigned declines time. Harucock u. Barnhart, 206F. S,rpp. 2d757,763-64 n.3 [X/.D. Ya.2002) (on temand, the AIJ's ptiot decision as no preclusive effect, as it is vacated and the new headng is conducted de novo). V. CONCLUSION Aftet a careful considetation of the evidence of recotd, the Court finds that the Commissioner's decision is not supported by substantial evidence. IT IS THEREFORE RECOMMENDED that the Commissionet's decision finding no disability be REVERSED, and that the m^ttef be REMANDED to Commissionet under sentence four of 42 U.S.C. $ a05(g). To this undetsigned RECOMMENDS that Defendant's Motion 7 the extent, the fot Judgment on the ALJ limited Plaintiff to only occasional ovethead teaching and thetefote he seems to have patialTy credited Petitioner's testimony as to that limitation. The undetsgned cannot rule out the possibility that had the ALJ considered Plaintiffs testimony as to het limitations in lifting, the RFC fi"dirg as to medium work may have been set diffetently as well. A.s noted, the 1,1, Pleadings (Docket Entry 14) be DENIED , and that Plaintiffs Motion fot Judgment on the Pleadings (Docket E.rt"y 10) be GRÁ.NTED. To the extent that Plaintiffs motion seeks an immediate awatd of benefits, the undersigned RECOMMENDS that it be DENIED. This y ofJune, 2075. J ter United States Magistrate Judge 1,2

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