PULLIAM v. SOCIAL SECURITY ADMINISTRATION
Filing
20
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 03/01/2016; that the Commissioner's decision finding no disability is VACATED and that the matter is REMANDED for further administrative proceedings consi stent with this Memorandum Opinion and Order. To this extent, the Commissioner's Motion for Judgment on the Pleadings (Doc. 12 ) is DENIED, and Plaintiff's Motion for Judgment (Doc. 9 ) is GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, it is DENIED. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RITA D. PULLIAM,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:13CV176
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Rita D. Pulliam (“Plaintiff”) brought this action
pursuant to Sections 205(g) and 1631(c)(3) of the Social
Security Act (the “Act”), codified as amended at 42 U.S.C.
§§ 405(g) and 1383(c)(3), to obtain review of a final decision
of the Commissioner of Social Security (“Commissioner”) denying
her claims for Disability Insurance Benefits and Supplemental
Security Income under Titles II and XVI of the Act.
Presently before this court are Plaintiff’s Motion for
Judgment and accompanying brief (Docs. 9, 10), and the
Commissioner’s Motion for Judgment on the Pleadings and
accompanying memorandum (Docs. 12, 13).
This court also has
before it the certified administrative record, 1 and this matter
is now ripe for adjudication.
After a careful consideration of
the evidence of record, the decision of the Administrative Law
Judge (“ALJ”), and the governing legal standard, this court
finds that remand is proper.
I.
BACKGROUND
Plaintiff filed applications for Disability Insurance
Benefits and Supplemental Security Income in October of 2008,
alleging a disability onset date of August 23, 2007. (Tr. at
114-25.) The applications were denied initially and upon
reconsideration. (Id. at 55-66, 77-94.) Plaintiff then requested
a hearing before an ALJ. (Id. at 95-96.)
At the March 14, 2011
hearing, were Plaintiff, her counsel, and a vocational expert
1
Transcript citations refer to the Administrative Transcript
of Record filed manually with the Commissioner’s Answer. (Doc. 7.)
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(“VE”). (Id. at 23-54.)
After the hearing, the ALJ determined
that Plaintiff was not disabled under the Act. 2
(Id. at 13-22.)
More specifically, the ALJ concluded (1) that Plaintiff had
not engaged in “substantial gainful activity” during the
relevant period, and (2) that Plaintiff’s fibromyalgia,
affective mood disorder (major depressive disorder, recurrent,
severe with psychotic features; rule out bipolar disorder),
migraine headaches, and degenerative changes to the lumbar spine
were severe impairments.
(Id. at 15.)
However, the ALJ
concluded that the disorders did not meet or equal a listed
impairment.
(Id. at 17.)
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.
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The ALJ then determined that Plaintiff had the Residual
Functional Capacity (“RFC”) 3 to perform light work, so long as
(1) she was limited to sitting, standing, and/or walking for six
hours in an eight-hour workday, (2) she had the option to
sit/stand at will, (3) she did not climb ropes or ladders, (4)
she was limited to only occasionally climbing stairs and ramps
and only occasionally stooping, bending, crouching or squatting,
(5) she was limited to frequently reaching, handling, and
fingering, and (6) she was limited to simple, routine,
repetitive tasks in a non-production and non-quota based
environment.
(Id. at 18.)
The ALJ further found as part of Plaintiff’s RFC that she
was capable of making simple, work-related decisions and could
work in the presence of co-workers, but not in close
coordination with them. (Id.) The ALJ also found that Plaintiff
was not to work with the general public, but that she could
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) (citation 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 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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relate appropriately with supervisors and could handle no more
than frequent changes in work setting or assignment. (Id.) The
ALJ also concluded that Plaintiff could maintain focus
throughout the day.
(Id.)
The ALJ then concluded that Plaintiff was unable to perform
any past relevant work. (Id. at 21.) Next, based on Plaintiff’s
age as a “younger individual,” her high school education and
ability to communicate in English, her work experience, and her
RFC, the ALJ found that there were jobs in the national economy
that she could perform. (Id.) Accordingly, the ALJ entered a
Decision that Plaintiff was not disabled and denied her
benefits.
(Id. at 22.)
Plaintiff requested that the Appeals Council review the
ALJ’s Decision. (Id. at 7-9.) On January 4, 2013, the Appeals
Council denied Plaintiff’s request for review, making the ALJ’s
determination the Commissioner’s final decision for purposes of
review.
II.
(Id. at 1-4.)
Plaintiff then initiated this action.
LEGAL STANDARD
Federal law authorizes judicial review of the
Commissioner’s denial of social security benefits. 42 U.S.C.
§ 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
However, the scope of review of such a decision is “extremely
limited.”
Fray v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
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“The courts are not to try the case de novo.”
Oppenheim v.
Finch, 495 F.2d 396, 397 (4th Cir. 1974). 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) (internal 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.
1993) (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 court should
not undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
[ALJ].”
Mastro, 270 F.3d at 176 (internal brackets and
quotation marks omitted).
“Where conflicting evidence allows
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reasonable minds to differ as to whether a claimant is disabled,
the responsibility for that decision falls on the ALJ.”
Hancock, 667 F.3d at 472 (citation omitted).
III. PLAINTIFF’S ASSERTIONS OF ERROR
Plaintiff asks this court to reverse the Decision of the
Commissioner, and in support of her request, she makes several
arguments.
First, Plaintiff contends that the ALJ’s finding
that she can focus throughout the day is not supported by
substantial evidence. (Pl.’s Br. in Supp. of Mot. for J. (Doc.
10) at 3.) Second, Plaintiff contends that the ALJ failed to
address the opinion of Julia Brannon, Ph.D., regarding
Plaintiff’s ability to concentrate. (Id.) Third, Plaintiff
contends that the ALJ’s hypothetical question to the VE did not
contain all the limitations supported by the record.
(Id.)
Moreover, upon review of the ALJ’s Decision, it appeared to
this court that the recent ruling of the United States Court of
Appeals for the Fourth Circuit in Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015) may be applicable.
Consequently, the court
afforded the parties an opportunity to brief the impact, if any,
of Mascio on the ALJ’s analysis. (Text Order 06/29/2015.) The
court has received and reviewed the Commissioner’s briefing
(Doc. 18), Plaintiff’s supplemental response (Doc. 19), the
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entire record, and all additional pleadings. As explained below,
remand is in order.
IV.
ANALYSIS
The gravamen of Plaintiff’s arguments is that the ALJ
materially erred in assessing her ability to focus.
For the
following reasons, the court agrees and concludes remand is
proper.
A.
The ALJ Failed to Weigh Dr. Brannon’s Medical Opinion
As noted, Plaintiff contends that the ALJ did not properly
weigh the medical opinion of a consulting physician, Dr.
Julia M. Brannon, and that this error was not harmless.
Under
Social Security Administration regulations,
Unless a treating source’s opinion is given
controlling weight, the administrative law judge must
explain in the decision the weight given to the
opinions of a State agency medical or psychological
consultant or other program physician, psychologist,
or other medical specialist, as the administrative law
judge must do for any opinions from treating sources,
nontreating sources, and other nonexamining sources
who do not work for [the Social Security
Administration].
20 C.F.R. §§ 416.927(e)(2)(ii) & 404.1527(e)(2)(ii).
See also
Social Security Ruling (“SSR”) 96-8p, Policy Interpretation
Ruling Titles II and XVI: Assessing Residual Functional Capacity
in Initial Claims, 1996 WL 374184, *7 (July 2, 1996) (concluding
that “[t]he RFC assessment must always consider and address
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medical source opinions” and “[i]f the RFC assessment conflicts
with an opinion from a medical source, the adjudicator must
explain why the opinion was not adopted”); SSR 96-6p, Policy
Interpretation Ruling Titles II and XVI: Consideration of
Administrative Findings of Fact by State Agency Medical and
Psychological Consultants and Other Program Physicians and
Psychologists at the Administrative Law Judge and Appeals
Council Levels of Administrative Review; Medical Equivalence,
1996 WL 374180, at *1 (July 2, 1996) (concluding that ALJ’s “may
not ignore these opinions and must explain the weight given to
these opinions in their decisions”).
The court “cannot
determine if findings are unsupported by substantial evidence
unless the Secretary explicitly indicates the weight given to
all of the relevant evidence.”
Gordon v. Schweiker, 725 F.2d
231, 235 (4th Cir. 1984).
Nevertheless, an ALJ need not discuss each item of evidence
in the record, but instead may limit explanation of the weight
given “to obviously probative exhibits.”
omitted).
Id. at 236 (citation
Furthermore, an ALJ’s failure to expressly state the
weight given to a medical opinion may be harmless error, when
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the opinion is not relevant to the disability determination or
when it is consistent with the ALJ’s RFC determination. 4
Here, Plaintiff was evaluated by Dr. Brannon on January 5,
2009.
(Tr. 263-66.)
Dr. Brannon reached the following
conclusions:
Ms. Pulliam is able to understand, retain simple
instructions. She has difficulty performing tasks
requiring concentration and focus. Her general
knowledge and practical judgment appear to be well
below average. She has low educational attainment and
a few environmental resources. It is somewhat unusual
for a person with her work history to have such
extremely low general fund of knowledge; however, she
does have low educational attainment and grew up in a
very abusive situation as a child, which may
contribute to her deficit of information and academic
achievement. She appears to have gotten along well
with people in the past and should be able to do so
currently except for the major depressive symptoms,
which would interfere with her relationship. The
symptoms of major depression include sad mood,
fatigue, feelings of hopelessness, suicidal ideation,
and some reported symptoms that are consistent with
psychotic functioning. In other words, Ms. Pulliam
reports hearing whispers and seeing shadows that are
fairly consistent. However, there is no ongoing
4
See, e.g., Johnson v. Barnhart, 434 F.3d 650, 655-56 (4th
Cir. 2005) (concluding that court need not evaluate propriety of
weight given to treating physician opinion that was submitted
after date last insured and “not relevant” to the claimed period
of disability); Morgan v. Barnhart, 142 F. App’x 716, 722-23
(4th Cir. 2005) (“[A]ssuming . . . that this opinion is a
medical opinion due special weight under the treating-physician
rule, any error in failing to credit this opinion was
harmless.”); Yuengal v. Astrue, No. 4:10-CV-42-FL, 2010 WL
5589102, at *9 n.9 (E.D.N.C. Dec. 17, 2010) (unpublished)
(concluding that the failure to acknowledge medical opinions was
harmless error).
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symptoms consistent with command hallucinations or
other psychotic functioning. She has very poor mental
computation and would have difficulty managing
benefits in her own best interest given her extremely
low functional aptitude and arithmetic skills.
(Id. at 265-66.)
At step two of her Decision, the point at which the ALJ
found Plaintiff to have an affective mood disorder, the ALJ in
this case specifically named Dr. Brannon and described her
findings in a manner similar to those recited above.
(Tr. at
16.)
Next, at step three, the point at which the ALJ concluded
that Plaintiff did not meet or equal a listing, the ALJ alluded
to Dr. Brannon’s report when she (that is, the ALJ) found
[w]ith regard to concentration, persistence or pace,
the claimant has moderate difficulties. The claimant
has reported difficulty concentrating (Exhibit 23F).
She was noted in a consultative examination to be
capable of understanding and retaining simple
instructions, but it was noted that she would have
difficulty with tasks requiring concentration and
focus (Exhibit 7F). Nonetheless, the claimant
testified that she watches television and does
household chores, both of which require some ability
to sustain attention and concentration for extended
periods.
(Tr. at 17.)
Last, in determining Plaintiff’s RFC, the ALJ again alluded
to Dr. Brannon’s report in concluding that Plaintiff’s
activities of daily living were inconsistent with her
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allegations of total disability, in part, because, “In December
2008, she reported that on a typical day she fixes lunch and
breakfast. She does the sweeping, mopping, and basic
housecleaning, and then sits down because her legs are ‘giving
out’. She indicated that she did not require assistance with
grooming or bathing, and she cooked meals occasionally.” (Id. at
19.)
The problem with all this, however, is that while the ALJ
describes Dr. Brannon’s report, and even references it three
times, she never specifically weighed Dr. Brannon’s medical
opinion. This is a violation of SSR 96-6p, which, as noted,
obliges ALJs to “explain the weight given to [a medical opinion]
in their decisions.” As noted, errors such as this can sometimes
be harmless. This particular error is troubling, however,
because, though Dr. Brannon found that Plaintiff “has difficulty
performing tasks requiring concentration and focus,” (Tr. at
265), the ALJ found in Plaintiff’s RFC that “[s]he has the
ability to maintain focus throughout the workday.” (Tr. at 18). 5
Without an explanation from the ALJ to reconcile this apparent
5
The functional area of “[c]oncentration, persistence, or
pace refers to the ability to sustain focused attention and
concentration sufficiently long to permit the timely and
appropriate completion of tasks commonly found in work
settings.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(3).
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discrepancy, the undersigned is unable to determine if the ALJ
intended to give little weight to Dr. Brannon’s opinion or if
the ALJ inadvertently overlooked key aspects of it. 6
Consequently, the failure to explain why Plaintiff can maintain
focus throughout the workday is not a harmless error.
B.
The ALJ’s Evaluation of Plaintiff’s Deficit in her
Ability to Focus was Inadequate
Moreover, the Decision of the ALJ is problematic for
another, albeit overlapping, reason.
Specifically, the court
has also considered the ALJ’s Decision as it relates to the
dictates of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015).
As
explained below, because the ALJ's evaluation of Plaintiff’s
6
See, e.g., Confere v. Astrue, 235 F. App’x 701, 703 (10th
Cir. 2007) (finding error in part because “[t]he ALJ mentions
[consulting psychologist’s] assessment during his discussion of
the evidence, but he does not state that he is rejecting any
part of it and gives no indication as to why he would disregard
[that part of the] conclusion that [was inconsistent with the
ALJ’s RFC determination]”); Ferguson v. Astrue, No. 4:09–03310–
RMG-TER, 2010 WL 5439755, at *4 (D.S.C. Dec. 28, 2010)
(unpublished) (“When the ALJ fails to provide the reviewing
court an explanation of the basis for finding, or not finding,
functional restrictions, then the ALJ’s decision is without
substantial basis.”); Krapf v. Astrue, No. 09–60763–CIV, 2009 WL
4892337, at *14 (S.D. Fla. Dec. 16, 2009) (unpublished) (finding
error and remanding where “after acknowledging [state agency
psychological consultant’s] opinion, the ALJ never returned to
it; he never accepted it, never rejected it, and never
incorporated it into the RFC finding”); Payne v. Barnhart, 366
F. Supp. 2d 391, 402 (W.D. Va. 2005) (finding error, in part,
because “while the ALJ discussed the findings of [state agency
consulting] psychologist Wyatt, she neglected to state, or even
hint, whether she was accepting or rejecting it”).
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“moderate limitation” in concentration, persistence, or pace was
inadequate under Mascio, remand is also warranted.
As background, on March 18, 2015, the United States Court
of Appeals for the Fourth Circuit published its opinion in
Mascio. In Mascio, the Fourth Circuit determined that remand was
appropriate for three distinct reasons, one of which is relevant
to the analysis of this case. Specifically, the Fourth Circuit
remanded Mascio because the hypothetical the ALJ posed to the
VE, and the corresponding RFC assessment, did not include any
mental limitations other than unskilled work, despite the fact
that, at step three of the sequential evaluation, the ALJ
determined that the claimant had moderate difficulties in
maintaining concentration, persistence, or pace.
Mascio, 780
F.3d at 637-38.
The Fourth Circuit specifically held that it “agree[s] with
other circuits that an ALJ does not account for a claimant's
limitations in concentration, persistence, and pace by
restricting the hypothetical question to simple, routine tasks
or unskilled work.” Id. at 638 (quoting Winschel v. Comm'r of
Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)) (internal
quotation marks omitted). In so holding, the Fourth Circuit
emphasized the distinction between the ability to perform simple
tasks and the ability to stay on task, stating that “[o]nly the
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latter limitation would account for a claimant's limitation in
concentration, persistence, or pace.”
Id.
Although the Fourth
Circuit noted that the ALJ's error might have been cured by an
explanation as to why the claimant's moderate difficulties in
concentration, persistence, or pace did not translate into a
limitation in the claimant's RFC, it held that absent such an
explanation, remand was necessary. Id.
Here, Plaintiff’s case is distinct from Mascio in the sense
that while Mascio’s RFC limited him to only unskilled work, the
RFC in this case included additional limitations (such as, for
example, certain social limitations) and a finding that
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Plaintiff can “maintain focus throughout the workday.” 7 (Tr. at
18.) Yet, as in Mascio, the ALJ here has failed to explain why
the moderate limitations in concentration, persistence, and pace
found at step three did not translate to a limitation in the RFC
assessment.
This is troubling because “[p]ursuant to Mascio, once an
ALJ has made a step three finding that a claimant suffers from
moderate difficulties in concentration, persistence, or pace,
7
The Commissioner cites two cases for the proposition that
mental restrictions like those found by the ALJ here are
sufficient to account for moderate limitations in concentration,
persistence, and pace. (Def.’s Suppl. Br. (Doc. 18) at 3 citing
Miles v. Colvin, No. 5:13-CV-878-FL, 2015 WL 1179522, at *13
(E.D.N.C. Mar. 13, 2015); Knott v. Colvin, No. 1:13CV332, 2014
WL 2453302, at *6 (M.D.N.C. June 2, 2014).) Nevertheless, both
cases are pre-Mascio and are “unpersuasive to the extent that
they contradict the Fourth Circuit.” Hagedorn v. Colvin, Civil
Action No. 2:12CV85-RLV, 2015 WL 4410288, at *4 (W.D.N.C.
July 20, 2015). Additionally, there are, in fact, a number of
post-Mascio cases stating that a moderate limitation to simple,
routine, repetitive tasks in a low production and/or socially
isolated environment may be, without more, insufficient to
account for moderate limitations in concentration, persistence,
or pace. See, e.g., Hagedorn, 2015 WL 4410288; Taylor v. Colvin,
Civil Action No. 7:14CV00616, 2015 WL 4400534 (W.D. Va. July 17,
2015); Hemp v. Comm’r, Soc. Sec. Admin., Civil No. SAG–14–2855,
2015 WL 4111483 (D. Md. July 7, 2015); Winkler v. Comm’r, Soc.
Sec. Admin., Civil No. SAG–14–2720, 2015 WL 4069334 (D. Md.
July 2, 2015); Bailey v. Colvin, C/A No. 5:14–CV–0248 DCN, 2015
WL 2449044 (D.S.C. May 21, 2015); Talmo v. Comm’r, Soc. Sec.,
Civil Case No. ELH–14–2214, 2015 WL 2395108 (D. Md. May 19,
2015); Scruggs v. Colvin, No. 3:14–cv–00466-MOC, 2015 WL 2250890
(W.D.N.C. May 13, 2015); Salmon v. Colvin, 1:12CV1209, 2015 WL
1526020 (M.D.N.C. Apr. 2, 2015).
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the ALJ must either include a corresponding limitation in her
RFC assessment, or explain why no such limitation is necessary.”
See Talmo v. Comm'r, Soc. Sec., Civil Case No. ELH–14–2214, 2015
WL 2395108, at *3 (D. Md. May 19, 2015). 8 Here, however, the ALJ
did neither, despite the fact that the ALJ’s conclusion that
Plaintiff can “maintain focus throughout the workday” is
apparently at odds with Dr. Brannon’s medical opinion indicating
that Plaintiff “has difficulty performing tasks requiring
concentration and focus.” Consequently, the court concludes that
remand is proper so that the ALJ may build a logical bridge
between the evidence of record and its conclusions. Mascio, 780
F.3d at 638 (“Perhaps the ALJ can explain why Mascio's moderate
limitation in concentration, persistence, or pace at step three
does not translate into a limitation in Mascio's residual
8
See, e.g., Fisher v. Colvin, Civil No. TMD 14-1011, 2015
WL 5287120, at *9 (D. Md. Sept. 9, 2015) (”[T]he ALJ in his RFC
assessment and hypothetical questions to the VE also accounted
for Plaintiff's concentration and focus problems that would
cause her to be off task 5% of the workday.”).
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functional capacity . . . [b]ut because the ALJ here gave no
explanation, a remand is in order.”). 9
C.
The Commissioner’s Argument that Any Errors here were
Harmless is Unpersuasive
The Commissioner contends that the overlapping errors
described above are harmless, because the ALJ gave “great
weight” to the non-examining state agency physicians, who
concluded that Plaintiff was not disabled. (Def.’s Mem. in Supp.
of Mot. for J. on the Pleadings (“Def.’s Mem.”) (Doc. 13) at 69; Def.’s Suppl. Br. (Doc. 18) at 1-5.)
The court acknowledges
that errors in cases such as this can, at times, indeed be
9
The ALJ’s step three finding that Plaintiff demonstrated
“some” ability to concentrate for “extended periods” because she
could watch television and do chores does not provide a
sufficient explanation under Mascio. (Tr. at 17.) Pre-Mascio,
an ALJ’s finding that a claimant had a moderate limitation, as
opposed to a mild or no limitation, was generally insignificant.
See Handy v. Comm'r, Soc. Sec. Admin., Civil No. SAG-09-166,
2015 WL 9302972, at *3 n.4 (D. Md. Dec. 22, 2015). The finding
that potentially triggered a listing was that of a “marked”
limitation. Id. Thus, the omission of a meaningful explanation
to justify a “moderate” finding would have been, at most,
harmless error. Id. Now, post-Mascio, a reviewing court must
understand the rationale behind a finding of moderate limitation
to assess the validity of the presence or absence of
corresponding limitations in an RFC. Id. An ALJ finding a
moderate limitation, therefore, has to ensure that the precise
nature of that limitation is addressed in sufficient detail.
Id. Here, the step three analysis in this case does not meet
that standard.
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harmless. 10 In the context of the facts and circumstances of this
case, however, the court is unwilling to find any error harmless
for the following reasons.
First, as a general matter, it is the ALJ, as opposed to
the non-examining state agency medical consultants, who is
tasked with reconciling conflicting evidence, performing a
function-by-function assessment of a claimant's RFC, and making
10
See, e.g., Bryant v. Colvin, 571 F. App'x 186, 190 (4th
Cir.) (“The magistrate judge also found that the ALJ erred by
failing to discuss a report written by consultative examiner Dr.
Jethalal Harkhani in February 2007. See 20 C.F.R. § 404.1527(c)
(obligating ALJs to ‘evaluate every medical opinion’ they
receive). The ALJ found this error harmless as well because Dr.
Harkhani's report was discussed by the two state agency
consultants and was consistent with the medical evidence on the
record. We likewise find the ALJ errors harmless and affirm the
ALJ's determination of Bryant's RFC.”) (emphasis added), cert.
denied, ____ U.S. ____, 135 S. Ct. 727 (2014).
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a disability determination. 11
Second, in this case, the RFC
opinions of the non-examining state agency physicians are
potentially inconsistent, yet the ALJ grouped them together and
adopted both without distinguishing between them.
For example,
Dr. Lori Brandon Souther concluded that Plaintiff was moderately
limited in her ability to concentrate for extended periods; to
act within a schedule, maintain regular attendance, and to be
punctual; and to complete a normal workweek without
psychological interruptions. (Tr. at 281-82.) From this, she
concluded that Plaintiff “appears capable of maintaining the
attention/concentration required for [simple, routine,
11
“[I]mportantly, however, the ALJ - as opposed to the state
agency medical consultants — is tasked with performing a
function-by-function assessment of a claimant's RFC,” Williams
v. Colvin, CIVIL ACTION NO. 3:13CV701-RLV, 2015 WL 9094803, at
*12 (W.D.N.C. Dec. 16, 2015), and “is solely responsible for
determining the RFC of a claimant.” Scruggs, 2015 WL 2250890, at
*3 (citation omitted); see also Garner v. Colvin, No.
1:12CV1280, 2015 WL 710781, at *8 (M.D.N.C. Feb. 18, 2015)
(“Defendant argues that all three IQ tests were considered by
the state agency consultants and therefore the ALJ's failure to
weigh the tests explicitly was harmless. This argument
misunderstands the role of the state agency consultants. The ALJ
is required to balance conflicting evidence and make a
determination of disability, not the consultants. In doing so,
the ALJ is required to discuss relevant evidence that weighs
against his decision. The ALJ did not do this here.
Consequently, the undersigned cannot determine whether the ALJ's
decision was supported by substantial evidence because it is
impossible to tell what weight, if any, was given to the April
2005 and November 2009 IQ tests.”) (footnote and citations
omitted).
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repetitive tasks].” (Id. at 283.) However, Dr. Souther did not
indicate how long Plaintiff could stay on task.
Dr. Steven E. Salmony, on the other hand, made similar
initial findings and from these concluded that Plaintiff “has
the ability to carry out very short and simple instructions and
is or is not able to maintain attention and concentration for 2
hours at a time as required for the performance of simple
tasks.”
(Tr. at 321 (emphasis added).)
Therefore, whereas Dr.
Souther did not mention how long Plaintiff could be expected to
concentrate, Dr. Salmony identified a period of two hours, 12 but
then stated Plaintiff “is or is not able to maintain attention
and concentration” for that duration.
12
This does not clarify the
There is some authority — at least in cases decided before
Mascio — for the proposition that in a given case Social
Security Regulation 96–9p, which speaks to customary breaks
during a workday, fills the gap in the ALJ's express findings.
See, e.g., Hawley v. Astrue, No. 1:09CV246, 2012 WL 1268475, at
*7 (M.D.N.C. Apr. 16, 2012) (“Defendant correctly points to
Social Security Regulation (‘SSR’) 96–9p, which provides a
guideline for customary breaks during a work-day as follows:
‘. . . a morning break, a lunch period, and an afternoon break
at approximately 2–hour intervals.’ Thus, customary breaks or
‘normal breaks,’ would reasonably occur approximately every two
hours.”) (internal citation omitted), adopted by 2012 WL 3584340
(M.D.N.C. Aug. 20, 2012). However, even assuming that this
remains a proper analysis post-Mascio, the court still concludes
that remand is proper for the reasons articulated above.
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issue of whether Plaintiff can focus throughout the day or even
for two-hour increments. 13
Third, and likewise, in crediting Drs. Salmony and Souther
with “great weight,” the ALJ in this case points to the fact
that the opinions of both doctors “indicated that the claimant
was capable of performing simple, routine, repetitive tasks in a
low stress setting with limited social demands.”
(Tr. at 20.)
However, nowhere in her two-sentence assessment of the nonexamining state agency physicians does the ALJ make or
acknowledge the distinction between performing simple tasks and
the ability to stay on task, which was so critical to the Mascio
decision.
Given that the ALJ’s Decision occurred prior to
Mascio, this omission is disconcerting because it suggests that
13
At one point in the briefing, the Commissioner ascribes
this language to a scrivener’s error, (Def.’s Mem. (Doc. 13) at
11), and at another point in the briefing, she admits that this
statement is “confusing,” (Def.’s Suppl. Br. (Doc. 18) at 9
n.1), but argues it is immaterial given that Dr. Salmony
ultimately found that Plaintiff “should be able to perform
[simple, routine, repetitive tasks].” (Id.) The court agrees
that this language adds an additional layer of uncertainty to
the disposition of this case and finds that this uncertainty
also weighs in favor of remand. Beyond this, the court only
notes again that a limitation to simple, routine, repetitive
tasks does not, without more, necessarily account for moderate
deficits in concentration. The court recognizes that Mascio did
not institute a per se rule mechanically requiring remand in all
cases raising similar issues. However, given the factors
outlined above, the court concludes that remand is in order in
this particular case.
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the ALJ in this case may have failed to make the meaningful
distinction identified in Mascio between the ability to perform
simple tasks and the ability to stay on task.
In sum, the court concludes that the ALJ erred in failing
to weigh the medical opinion of Dr. Brannon.
The ALJ erred
further by failing to discharge her duty under Mascio to
meaningfully explain why her step three findings regarding
moderate limitations in concentration, persistence, and pace did
not translate into a limitation in Plaintiff’s RFC.
To find
these errors harmless, however, the court would need to
reconcile apparent inconsistencies between Dr. Brannon’s opinion
and the ALJ’s RFC, the apparent inconsistencies between the
medical opinions of Drs. Souther and Salmony, and even the
apparent inconsistencies within Dr. Salmony’s own medical
opinion.
In the end, the court concludes that all this prevents
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a meaningful review of the ALJ’s Decision and that remand is
therefore required. 14
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. 15
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
14
The court also notes that the ALJ used objectionable
boilerplate language in her credibility analysis. (Tr. at 19
(“These symptoms are not credible to the extent they are
inconsistent with the above [RFC] assessment.”).) In Mascio, the
Fourth Circuit held that this boilerplate “gets things
backwards” and conflicts with the agency's own regulations,
which require the ALJ to determine the extent to which a
claimant's alleged functional limitations are consistent with
the medical findings and other evidence. 780 F.3d at 639. The
Fourth Circuit found, however, that any error associated with
use of this boilerplate is harmless if the ALJ “properly
analyzed credibility elsewhere.” Id. The court need not, and
does not, address whether the error here was harmless or
prejudicial, but simply notes that the Commissioner should
follow the dictates of Mascio on this issue on remand.
15
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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(Doc. 11) is GRANTED. To the extent that Plaintiff’s motion
seeks an immediate award of benefits, it is DENIED.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 1st day of March, 2016.
______________________________________
United States District Judge
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