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)
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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