PEREZ v. SOCIAL SECURITY ADMINISTRATION

Filing 22

MEMORANDUM OPINION AND ORDER. Signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR. on 11/18/2015, that the Commissioner's decision finding no disability is REVERSED and that the matter is REMANDED under sentence four of 42 U.S.C. § 405(g). The Commissioner is directed to remand the matter to the ALJ for further proceedings consistent with this order. To this extent, the Commissioner's Motion for Judgment on the Pleadings (Doc. 17 ) is DENIED, and Plaintiff's Motion for Judgment Reversal/Modification of Decision (Doc. 12 ) 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. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MARY L. PEREZ,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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1:13CV324

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Mary L. Perez (“Plaintiff”), proceeding pro se,
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 (“DIB”) and Supplemental
Security Income (“SSI”) under Titles II and XVI of the Act.
Presently before this court are Plaintiff’s Motion for Judgment
Reversal/Modification of Decision and accompanying brief (Docs. 12,
13, 21),1 and the Commissioner’s Motion for Judgment on the Pleadings
and accompanying memoranda (Docs. 17, 18, 20).
1

This court has before

The court has endeavored to liberally construe Plaintiff’s pro
se pleadings. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972).

it the certified administrative record,2 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 DIB and SSI on April 16, 2009,

alleging a disability onset date of October 12, 2007.
39-42.)

(Tr. at 12,

The applications were denied initially and upon

reconsideration.

(Id. at 39-61.)

hearing before an ALJ.

Plaintiff then requested a

(Id. at 62-74.)

At the June 15, 2011

hearing, Plaintiff proceeded without the assistance of counsel.
(Id. at 24-38.)
After the hearing, the ALJ determined that Plaintiff was not
disabled under the Act.3

(Id. at 12-19.)

The ALJ concluded that (1)

Plaintiff had not worked during the relevant period, and (2)
2

Transcript citations refer to the Administrative Transcript
of Record filed manually with the Commissioner’s Answer. (Doc. 10.)
3

“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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Plaintiff had severe impairments, including “disorders of the back”
and obesity.

(Id. at 14.)

However, the ALJ concluded that the

disorders did not meet or equal a listed impairment.

(Id.)

The ALJ

then determined that Plaintiff had the Residual Functional Capacity
(“RFC”)4 to perform a full range of light work, but should not climb,
should be limited to only occasional handling and crawling, should
perform no work around unprotected heights and dangerous machinery,
and should have a sit/stand option, as she could sit and stand for
thirty minutes at a time.

(Id. at 15-18.)

Based on the fact that

Plaintiff could perform all or substantially all of the exertional
demands of light work, and given claimant’s age as a “younger
individual,” and the fact that she had at least a high school
education and could communicate in English, the ALJ found that the
Medical-Vocational Guidelines directed a finding that Plaintiff is
“not disabled.”

(Id. at 18-19 (citing 20 C.F.R. pt. 404, subpt. P,

app. 2, § 202.21).)

4

Accordingly, the ALJ entered a decision that

“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 (citation
omitted).
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Plaintiff was not disabled and denied Plaintiff benefits.

(Id. at

19.)
Plaintiff requested that the Appeals Council review the ALJ’s
decision.

(Id. at 7-8.)

On December 14, 2012, 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 4-6.)

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, 453
F.3d at 561.

However, the scope of review of such a decision is

“extremely limited.”
1981).

Frady v. Harris, 646 F.2d 143, 144 (4th Cir.

“The courts are not to try the case de novo.”

Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Oppenheim v.

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, 667 F.3d at

472 (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
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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 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 (internal

quotation marks omitted).
III. PLAINTIFF’S ASSERTIONS OF ERROR
Plaintiff asks this court to reverse the decision of the
Commissioner, and in support of her request, Plaintiff makes several
arguments.

First, Plaintiff asserts that the ALJ failed to properly

consider issues related to her knees, uterine bleeding, and back.
(Pl.’s Appellant Brief (“Pl.’s Br.”) (Doc. 13) at 7.)

Second,

Plaintiff contends that the ALJ focused too intently on her obesity.
(Id.)

Third, Plaintiff contends that “new exhibits” demonstrate

that her “ongoing medical issues . . . have not gotten better, but
in fact, have progressively gotten worse.”
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(Id.)

Moreover, upon review of the decision of the ALJ, 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 credibility analysis.

The court has received and reviewed

Plaintiff’s briefing, the Commissioner’s briefing, the entire
record, and all additional pleadings. As explained below, remand is
in order.
IV.

ANALYSIS
Regarding credibility, Craig v. Chater provides a two-part test

for evaluating 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.’”

Craig v.

Chater, 76 F.3d 585, 594 (4th Cir. 1996) (citing 20 C.F.R. §§
416.929(b) & 404.1529(b)). If the ALJ determines that such an
impairment exists, the second part of the test then requires him to
consider all available evidence, including the claimant’s statements
about pain, in order to determine whether the claimant is disabled.
Id. at 595-96.

While the ALJ must consider a claimant’s statements

and other subjective evidence at step two, he need not credit them
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to the extent they conflict with the objective medical evidence or
to the extent that the underlying impairment could not reasonably
be expected to cause the symptoms alleged.

Id.

Where the ALJ has

considered the relevant factors and has heard the claimant’s
testimony and observed claimant’s demeanor, the ALJ's 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,
but committed error at step two.

First, the ALJ stated that he had

“careful[ly] consider[ed]” the evidence and found that Plaintiff’s
impairments “could reasonably be expected to cause the alleged
symptoms . . . .”

(Tr. at 15-16.)

The ALJ therefore discharged his

duty under the first step of the Craig analysis.
To understand how the ALJ erred at the second step of the Craig
analysis, knowledge of a recently published case from the Fourth
Circuit Court of Appeals is necessary.

Specifically, in Mascio v.

Colvin, the Fourth Circuit found that an ALJ erred by using, at part
two of the credibility assessment, “boilerplate” language that “the
claimant’s statements concerning the intensity, persistence and
limiting effects of [his pain] are not credible to the extent they
are inconsistent with the above residual functional capacity
assessment.”

780 F.3d at 639.

This method “‘gets things backwards’

by implying ‘that ability to work is determined first and is then
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used to determine the claimant’s credibility.’”

Id. (quoting

Bjornson v. Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012)).

Instead,

“the ALJ here 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.”

Mascio, 780

F.3d at 639.
Here, the ALJ clearly erred at step two of the Craig analysis
in the instant case by considering the credibility of Plaintiff’s
testimony through the use of the same objectionable “boilerplate”
used in Mascio. Specifically, the ALJ found that 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 16.)

The question, therefore, becomes whether the error is harmless.
Mascio is instructive on this issue as well. In Mascio, the
Fourth Circuit explained what harmless error would look like in these
circumstances, stating that “[t]he ALJ’s error would be harmless if
he properly analyzed credibility elsewhere.”
639.

Mascio, 780 F.3d at

The Fourth Circuit made it clear that an ALJ discharges this

obligation when he “explain[s] how he decided which of [the
claimant’s] statements to believe and which to discredit.”
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Id. at

640. However, in Mascio the ALJ 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 [the claimant’s] residual functional
capacity.”

Id.

The lack of an explanation required remand.

Id.

Therefore, per Mascio, the question here now becomes whether
the ALJ explained how he decided which of the claimant’s statements
to believe and which to discredit. The court concludes that the ALJ
failed in this regard and that remand is therefore in order.
More specifically, in this case, the ALJ’s credibility analysis
summarizes some, but not all, of Plaintiff’s hearing testimony as
to her alleged limitations:
At the hearing, the claimant testified that she
suffers from chronic low back pain. She stated that she
has daily and daily [sic] back spasm[s] and rated her pain
at 7-8 on a scale of 1-10. In addition, the claimant
complained of bilateral knee pain. The claimant
estimated that she could stand and walk comfortably for
no more than 20 minutes. She estimated that she could sit
for approximately 30 minutes. The claimant stated that
she is able to drive a car but has difficulty focusing.
(Tr. at 15.)
Nevertheless, the ALJ did not mention Plaintiff’s testimony
that she could not climb; work around unprotected heights because
of her balance; engage in repetitive bending, stooping, kneeling,
crouching, or crawling; or carry more than three to five pounds.
(Id. at 31-32.)

Plaintiff testified further that she had trouble
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focusing because of medication she took for pain and that she could
not take that medication if she had to drive.

(Id. at 33.)

Plaintiff also testified that she suffered from uterine bleeding,
causing a severe low blood count for which she had to have a blood
transfusion, and that as a result there were instances “during the
day that [she] would have to take a nap or just rest.”

(Id. at 36-37.)

Consequently, given this selective recitation of Plaintiff’s
testimony, it is far from clear if the ALJ considered all of
Plaintiff’s hearing testimony.
The court is well aware that in most cases, a statement by the
ALJ that he considered all of the evidence, is sufficient to
demonstrate that the ALJ considered the entire record.

See, e.g.,

Grubby v. Astrue, No. 1:09cv364, 2010 WL 5553677, at *6 (W.D.N.C.
Nov. 18, 2010) (unpublished) (citing Rappaport v. Sullivan, 942 F.2d
1320, 1323 (8th Cir. 1991) (concluding that because the ALJ stated
that he considered the entire record in making his decision, the court
could reject the claim that the claimant’s wife’s testimony was not
considered)).

The court notes too that here the ALJ said he

considered the entire record, which would include Plaintiff’s
testimony.

(Tr. at 15.)

Nevertheless, given the ALJ’s use of the

objectionable boilerplate, his selective recitation of Plaintiff’s
testimony, and, as described below, his tacit adoption of some (but
not all) of that testimony, the court cannot adequately review the
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ALJ’s credibility analysis.

See Radford v. Colvin, 734 F.3d 288,

295 (4th Cir. 2013) (“A necessary predicate to engaging in
substantial evidence review is a record of the basis for the ALJ's
ruling.”); see also Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003) (concluding that an ALJ is required to build an
“accurate and logical bridge” between the evidence and his
conclusions) (citation omitted).
More specifically, the ALJ seems to credit some of Petitioner’s
testimony while discounting other testimony. For example, Plaintiff
testified that she could not climb or work around unprotected heights
and the ALJ so limited her in the RFC. (Tr. at 15, 31-32.)

Plaintiff

also testified that she could only lift three to five pounds, had
difficulties concentrating, and needed rests and naps during the
workday; however, without meaningful explanation, the ALJ limited
her to light work5 and included no limitations on concentration or

5

The court notes too that Plaintiff testified that she could
stand “20 minutes tops.” (Tr. at 32-33.) However, without
explanation, the ALJ limited her to a sit/stand option of thirty,
rather than twenty minutes. The ALJ therefore apparently also
partially discredited Plaintiff’s testimony regarding her ability
to stand for twenty minutes at the most and concluded she could stand
for thirty minutes.
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accommodations for resting.6 (Tr. at 15, 32-33, 37.) Light work
requires frequently lifting up to ten pounds and occasionally lifting
up to twenty pounds and therefore considerably exceeds the lifting
and carrying capacity of three to five pounds to which Plaintiff
testified.

20 C.F.R. §§ 404.1567(b), 416.967(b).

The ALJ does itemize some medical evidence in his joint
RFC/credibility analysis.

(Tr. at 15-18.)

However, nowhere, other

than the objectionable boilerplate (described above) and an
additional insufficient statement (described below), does the ALJ
explain how he decided which of Plaintiff’s statements to believe
and which to discredit.
It is true that in his decision, the ALJ stated that “[t]he
claimant’s testimony as well as the medical evidence reflects the
claimant has been prescribed and has taken appropriate medications
for the alleged impairments, which weighs in claimant’s favor, but
the medical records reveal that the medications have been relatively
effective in controlling the claimant’s symptoms.” (Tr. at 16.)
Yet, this sentence does not amount to a proper credibility analysis,
because it does not explain how the ALJ decided which of Plaintiff’s
Additionally, the court observes that although Plaintiff
testified that she took pain medication that impacted her ability
to sustain concentration (Tr. at 33), the ALJ found that “[t]he
claimant has not indicated any side effects to medications.” (Id.
at 16.) Consequently, this finding by the ALJ is not supported by
substantial evidence and bolsters the court’s decision to remand this
matter for further proceedings.
6

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statements to believe and which to discredit. Specifically, it is
not clear from the sentence quoted above if the ALJ is referencing
all of Plaintiff’s testimony, or only the testimony the ALJ decided
to set forth in his decision.

Nor is it clear from this sentence

what medication or what medical records the ALJ is referencing.
Moreover, this statement still does not explain why the ALJ credited
some of Plaintiff’s alleged limitations and discredited others.

All

this compounds the court’s concerns articulated above as to the ALJ’s
credibility analysis.

Consequently, the court concludes that the

ALJ’s credibility analysis is incomplete, not subject to review in
the present form, and that this error is not harmless.7

7

See, e.g., Roxin v. Comm’r, Soc. Sec. Admin., Civil No. SAG–
14–2311, 2015 WL 3616889, at *2 (D. Md. June 5, 2015) (unpublished)
(remanding where use of objectionable boilerplate language was
deemed prejudicial); Jones v. Colvin, No. 4:14-CV-00200–RN, 2015 WL
4773542, at *9 (E.D.N.C. Aug. 13, 2015) (unpublished) (“Having failed
to properly and thoroughly analyze Jones's credibility, ALJ Allen
failed to cure any issue created from the use of problematic
boilerplate language criticized in Mascio.”); Carver v. Colvin, No.
1:13CV13, 2015 WL 4077466, at *10-12 (M.D.N.C. July 6, 2015)
(unpublished) (recommending remand where the ALJ failed to
articulate meaningful reasons beyond the objectionable boilerplate
language); Thrasher v. Colvin, No. 7:13–CV–245–FL, 2015 WL 1431702,
at *3-4 (E.D.N.C. Mar. 27, 2015) (unpublished) (remanding where use
of objectionable boilerplate language and subsequent credibility
analysis rendered it unclear why the ALJ credited some of the
plaintiff’s testimonial statements, but discounted others); Wright
v. Colvin, No. 5:13–CV–686–D, 2015 WL 1275397, at *2 (E.D.N.C. Mar.
19, 2015) (unpublished) (remanding for further proceedings where the
ALJ used the objectionable boilerplate language and failed to explain
otherwise why he credited some and disregarded other portions of the
plaintiff’s testimony).
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The court has an additional concern that weighs in favor of
remand.

Plaintiff argues that the ALJ overlooked evidence regarding

her uterine bleeding, which caused low blood hemoglobin, in making
his determination of no disability. (Pl.’s Br. (Doc. 13) at 7.)

As

briefly mentioned above, Plaintiff presented evidence of her uterine
bleeding at the hearing. Specifically, the ALJ asked Plaintiff if
she had “any other health problems.”

(Tr. at 36.)

Plaintiff

responded that she did “have additional medical issues” and that she
was “seeing a doctor for it” and referenced “these [issues] on the
last reports that were sent to [her] about additional medical
information.”

(Id.)

Plaintiff then stated that she “tend[s] to

hemorrhage” from her uterus, that this “caused severe low blood
count,” and that, as a result, she had to “take double doses of iron
pills and vitamin E . . . just to combat the fatigue.”

(Id.)

Plaintiff also stated that there were instances during the day that
she needed to take a nap or rest based on iron deficiency, that she
lacked “energy,” and that she had a blood transfusion due to the
hemorrhaging.

(Id. at 37.)

Despite this, the ALJ did not address uterine bleeding at any
point in his decision.

This is potentially problematic because the

record contains multiple references to Plaintiff’s uterine bleeding
and the court is left to speculate as to why they were never addressed
by the ALJ.

For example, on May 23, 2007, before her alleged onset
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date, Plaintiff was described as having a clinical history of
“intermenstrual vaginal bleeding.”

(Tr. at 309.)

Plaintiff also

listed medroxyprogesterone as a medication she took for “prolonged
menstruation” in a form supplied to the Commissioner (see id. at 188)
and later she also listed that she was taking iron tablets twice daily
for severe anemia (see id. at 209).

Plaintiff also wrote in her

additional medical information form that she had a low red blood cell
count and received a transfusion at Baptist Hospital in
Winston-Salem.

(Tr. at 203.)

This court is troubled by the ALJ’s

complete silence as to Plaintiff’s uterine bleeding and resulting
fatigue in his findings, especially given the above-mentioned
deficiencies in the ALJ’s credibility analysis.
Finally, the court does not find the Commissioner’s arguments
to the contrary persuasive.

The Commissioner essentially argues

that the ALJ’s recitation of the objective medical evidence
constituted a sufficient credibility analysis under Mascio.
(Comm’r’s Suppl. Br. (Doc. 20) at 2-5.)

However, this assertion does

not address the gravamen of the court’s concern, which is that the
court has been left to speculate as to why the ALJ credited some
portions of Plaintiff’s testimony, while discrediting other
portions.
The Commissioner also essentially asserts that the ALJ did not
overlook Plaintiff’s uterine bleeding and, alternatively, that any
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error was at most harmless. (Id. at 1, 5-7.) Instead, the Commissioner
contends that the ALJ found Plaintiff’s assertions of uterine
bleeding so insignificant or unsupported as to not warrant any
analysis whatsoever. (Id.) This is perhaps plausible, and the court
expresses no opinion on the matter.

Yet, again, when the ALJ

declines to address testimony and evidence such as this on the record,
the court is left in the untenable position of having to weigh
evidence and testimony in the first instance and having to speculate
as to the ALJ’s intent.

The court declines to do so in this case,

especially in light of the Mascio error discussed above.
In sum, on remand the Commissioner should conduct a proper
credibility analysis in light of the principles articulated in Mascio
and should further address Plaintiff’s allegations and any evidence
of uterine bleeding. The court expresses no opinion regarding
whether, at the end of the day, Plaintiff is disabled under the Act
and the court declines consideration of the additional issues raised
by Plaintiff at this time.

Hancock v. Barnhart, 206 F. Supp. 2d 757,

763-64 n.3 (W.D. Va. 2002) (on remand, the ALJ’s prior decision has
no preclusive effect, as it is vacated and the new hearing is
conducted de novo).
V.

CONCLUSION
IT IS THEREFORE ORDERED that the Commissioner’s decision

finding no disability is REVERSED and that the matter is REMANDED
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under sentence four of 42 U.S.C. § 405(g).

The Commissioner is

directed to remand the matter to the ALJ for further proceedings
consistent with this order.

To this extent, the Commissioner’s

Motion for Judgment on the Pleadings (Doc. 17) is DENIED, and
Plaintiff’s Motion for Judgment Reversal/Modification of Decision
(Doc. 12) 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 18th day of November, 2015.

_____________________________________
United States District Judge

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