RAMSEY v. COLVIN
Filing
19
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 11/6/2015; that the Commissioner's decision finding no disability be reversed and that the matter be remanded under sentence four of 4 2 U.S.C. § 405(g), for further administrative proceedings to include reevaluation of the severity of Plaintiff's fibromyalgia and other impairments and a reassessment of Plaintiff's credibility as to her subjective complaints of pain. As a result, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 14 ) should be granted in part (i.e., to the extent that it requests remand), and Defendant's Motion for Judgment on the Pleadings (Docket Entry 17 ) should be denied. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SALLY HARSHAW RAMSEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:13CV553
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Sally Harshaw Ramsey, brought this action pursuant
to the Social Security Act (the “Act”) to obtain judicial review of
a final decision of Defendant, the Commissioner of Social Security,
denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”).
(See Docket Entry 2.)
The Court has before it the certified administrative record (cited
herein as “Tr. __”), as well as the parties’ cross-motions for
judgment (Docket Entries 14, 17). For the reasons that follow, the
Court
should
remand
this
matter
for
further
administrative
proceedings.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging a disability onset
date of May 15, 2006.
(Tr. 236-48.)
Upon denial of those
applications initially (Tr. 78-111, 146-56) and on reconsideration
(Tr. 112-45, 163-80), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 184, 187-89).
Plaintiff,
her attorney, and a vocational expert (“VE”) attended the hearing
(Tr. 31-51), at which Plaintiff amended her alleged onset date to
November 21, 2009, the day after an ALJ’s unfavorable decision on
a prior application for DIB and SSI (see Tr. 35, 52-66).
The ALJ
subsequently determined that Plaintiff did not qualify as disabled
under the Act. (Tr. 18-30.) The Appeals Council thereafter denied
Plaintiff’s request for review, thus making the ALJ’s determination
the Commissioner’s final decision for purposes of judicial review.
(Tr. 1-5.)
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2011.
2.
[Plaintiff] has not engaged in substantial gainful
activity since November 21, 2008, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
congestive heart failure[,] hypertension, obesity,
asthma, bipolar disorder, and post-traumatic stress
disorder.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform sedentary work with lifting or
2
carrying 10 pounds occasionally, no balancing or
crouching, and no operation of a motor vehicle. She is
also restricted to performing simple, routine, repetitive
tasks involving only occasional interaction with coworkers and none with the general public.
. . .
6.
[Plaintiff] cannot perform any past relevant work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from November 21, 2008, through
the date of this decision.
(Tr. 23-30 (internal parenthetical citations omitted).)1
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
1
The ALJ’s references to “November 21, 2008” as the alleged onset date
(Tr. 23; see also Tr. 30) constitute typographical errors. Review of the hearing
transcript (see Tr. 35) and the date of the prior ALJ’s decision (Tr. 52-66)
demonstrates that Plaintiff amended her onset date to November 21, 2009.
3
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
reviewing
court must
uphold
the
factual
findings
Instead, “a
of
the
ALJ
[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and 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. 1992) (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 brackets 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 [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
4
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the Court], therefore, is not whether [the claimant] is disabled,
but whether the ALJ’s finding that [the claimant] is not disabled
is supported by substantial evidence and was reached based upon a
correct application of the relevant law.” Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
activity
by
reason
of
any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
promulgated . . . detailed regulations incorporating longstanding
medical-vocational evaluation policies that take into account a
2
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. [SSI] . . . provides benefits to indigent disabled persons. The
statutory definitions and the regulations . . . for determining disability
governing these two programs are, in all aspects relevant here, substantively
identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
5
claimant’s age, education, and work experience in addition to [the
claimant’s] medical condition.”
Id.
“These regulations establish
a ‘sequential evaluation process’ to determine whether a claimant
is disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the RFC] and [the claimant’s]
vocational capabilities (age, education, and past work experience)
to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this
step, the government cannot carry its “evidentiary burden of
proving that
[the
claimant]
remains
able
to
work
other
jobs
available in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.5
4
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks 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, 658 F.2d at 265. “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.
5
A claimant thus can qualify as disabled via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
7
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “[t]he ALJ’s step two finding that fibromyalgia was not a
severe
impairment
was
not
supported
by
substantial
evidence”
(Docket Entry 15 at 2);
(2) “[t]he ALJ erred by failing to credit the opinions of
[Plaintiff’s] treating physicians” (id. at 9); and
(3) “[t]he ALJ committed error by failing to inform the [VE]
that [Plaintiff] would be off-task at least 25% of the time, and by
failing
to
tell
the
VE
that
[Plaintiff]
had
moderate
concentrational limitations, and the frequency and duration of her
concentrational lapses” (id. at 16).
Defendant
contends
otherwise
and
urges
evidence supports the finding of no disability.
that
substantial
(Docket Entry 18
at 4-20.)
Fibromyalgia as Severe Impairment
Plaintiff
contends
the
ALJ
should
have
categorized
her
fibromyalgia as an additional severe impairment at step two of the
SEP.
(Docket Entry 15 at 2-9.)
In that regard, Plaintiff
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
8
emphasizes that “[t]he ALJ . . . made no definitive finding as to
whether [Plaintiff] ha[d] fibromyalgia,” noting only that Plaintiff
“ha[d] complained of ‘discomfort’ in her back, arms and thighs, and
that this pain ‘was attributed to’ fibromyalgia.”
(citing Tr. 24).)
(Id. at 2
According to Plaintiff, Dr. Robert A. Roubey, a
rheumatologist who examined Plaintiff “specifically to determine
whether
[Plaintiff]
ha[d]
fibromyalgia,”
(id.),
found
that
Plaintiff exhibited 16 of the 18 tender points characteristic of
fibromyalgia and indeed concluded that Plaintiff “likely ha[d]
fibromyalgia” (id. at 2-3 (citing Tr. 351-52)). Further, Plaintiff
asserts that her treating physician, Dr. Arthur Axelbank, also
“belie[ved]
that
[Plaintiff’s]
pain
was
caused
largely
by
fibromyalgia” because he “had a long talk with [Plaintiff] about
her fibromyalgia, . . . gave her a book about [fibromyalgia],” and
found Plaintiff’s “upper body aches and pains . . . consistent with
fibromyalgia.”
(Id. at 3-4 (citing Tr. 495-96, 578).)6
Plaintiff
argues that the ALJ’s failure to discuss these relevant findings
“shows a reluctance on the part of the ALJ to concede material
facts that favor [Plaintiff] . . . [and] judicial bias, which [the
6
Plaintiff additionally argues the relevancy
finding that fibromyalgia constituted a “precipitating
mental impairments. (Docket Entry 15 at 4 (citing Tr.
a licensed clinical social worker, the therapist lacks
diagnose fibromyalgia and thus Plaintiff’s reliance on
mark.
9
of a psychotherapist’s
stressor” of Plaintiff’s
638, 642).) However, as
the medical expertise to
this evidence misses the
Court should] treat[] as separate error and a ground for reversal.”
(Id. at 3.)
Moreover, Plaintiff disputes the sufficiency of the ALJ’s
stated
bases
for
the
non-severity
finding.
(Id.
at
5-9.)
Plaintiff faults the ALJ’s reliance upon the lack of objective
findings
in
Plaintiff’s
treatment
records,
such
as
skeletal
deformities, edema, impaired balance and gait, decreased range of
motion and strength, and neurological deficits, where “there is no
evidence that such symptoms are indicia of fibromyalgia.”
(Id. at
6 (citing Robertson v. Astrue, No. 6:10–597–HMH–KFM, 2011 WL
1559209, at *10 (D.S.C. Mar. 22, 2011) (unpublished) (in turn
citing Malloy v. Astrue, 604 F. Supp. 2d 1247, 1249 (S.D. Iowa
2009))).)
For purposes of step two, an impairment fails to qualify as
“severe” if it constitutes only “a slight abnormality . . . that
has no more than a minimal effect on the ability to do basic work
activities.”
Policy Interpretation Ruling Titles II and XVI:
Considering Allegations of Pain and Other Symptoms in Determining
Whether a Medically Determinable Impairment is Severe (“SSR 963p”), 1996 WL 374181, at *1 (July 2, 1996) (emphasis added).
Applicable regulations further identify “basic work activities” as:
(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying,
or handling;
(2) Capacities for seeing, hearing, and speaking;
10
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers
and usual work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. §§ 404.1521(b), 416.921(b).
Plaintiff bears the burden of proving severity at step two.
Hunter, 993 F.2d at 35; see also Kirby v. Astrue, 500 F.3d 705, 708
(8th Cir. 2007) (“Severity is not an onerous requirement for the
claimant to meet, but it is also not a toothless standard . . . .”
(internal citation omitted)).
To carry that burden, Plaintiff
“must provide medical evidence showing . . . an impairment(s) and
how
severe
it
is
.
.
.
.”
20
C.F.R.
§§
404.1512(c),
416.912(c) (emphasis added); see also Social Security Ruling 85-28,
Titles II and XVI:
Medical Impairments that Are Not Severe (“SSR
85-28”), 1985 WL 56856, at *4 (1985) (“A determination that an
impairment(s) is not severe requires a careful evaluation of the
medical findings which describe the impairment(s) and an informed
judgment about its (their) limiting effects on the individual’s
physical and mental ability(ies) to perform basic work activities
. . . .
alone
is
At the second step of [the SEP], then, medical evidence
evaluated
in
order
to
assess
the
effects
of
the
impairment(s) on ability to do basic work activities.” (emphasis
11
added)); Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th Cir.
2003) (“The step two severity determination is based on medical
factors alone . . . .” (emphasis added)); Washington v. Astrue, 698
F. Supp. 2d 562, 579 (D.S.C. 2010) (“A severe impairment must
result
from
anatomical,
physiological,
or
psychological
abnormalities which can be shown by medically acceptable clinical
and laboratory diagnostic techniques. . . .
A claimant’s own
description of her physical or mental impairments is not enough
. . . .
alone
is
[SSR] 85-28 specifically provides that medical evidence
evaluated
in
order
to
assess
the
effects
of
the
impairment(s) on ability to do basic work activities.” (internal
quotation marks omitted) (emphasis added)); Flint v. Sullivan, 743
F.
Supp.
777,
782
(D.
Kan.
1990)
(“A
claimant’s
statements
regarding the severity of an impairment are not sufficient.”),
aff’d, 951 F.2d 264 (10th Cir. 1991).
As an initial matter, the parties dispute whether the ALJ even
found that Plaintiff suffered from fibromyalgia.
Entry 15 at 2, with Docket Entry 18 at 5-6.)
(Compare Docket
As mentioned above,
Plaintiff asserts that the ALJ did not make a “definitive finding
as to whether [Plaintiff] ha[d] fibromyalgia.” (Docket Entry 15 at
2.)
In contrast, the Commissioner asserts that, “[i]n discussing
the evidence related to fibromyalgia, the ALJ [did] not attempt[]
to discredit the diagnosis, but to show that Plaintiff’s condition
d[id] not impose significant physical limitations.”
12
(Docket Entry
18 at 5-6 (emphasis added).)
However, the wording of the ALJ’s
decision favors Plaintiff’s interpretation – the ALJ acknowledged
only that Plaintiff’s “discomfort in her back, arms and thighs
. . . was attributed to fibromyalgia” (Tr. 24 (emphasis added)),
and later, in summarizing his step two findings, referred to
Plaintiff’s condition not as “fibromyalgia” but as “complaints of
back and joint discomfort” (id.).
Given that interpretation, the ALJ erred by failing to even
find Plaintiff’s fibromyalgia a medically determinable impairment
at step two. Most significantly, the record reflects that treating
physician Dr. Axelbank included “fibromyalgia” among Plaintiff’s
diagnoses on his Physical Medical Source Statement. (See Tr. 676.)
Beyond that diagnosis, Dr. Roubey’s examination established that
Plaintiff had a “history of myalgia, 16 [of] 18 tender points,
normal lab tests, and no other abnormalities explaining [her] pain”
(Tr. 351), which satisfied the criteria expressly recognized by the
Commissioner
as
appropriate
determinable impairment.
to
find
fibromyalgia
a
medically
See Social Security Ruling 12-2p, Titles
II and XVI: Evaluation of Fibromyalgia, 2012 WL 3104869, at 2-3
(July 25, 2012) (“SSR 12-2p”) (providing that an ALJ “may find that
a
person
has
a[]
[medically
determinable
impairment]
of
[fibromyalgia] if he or she has all three of the following: 1. A
history of widespread pain . . . in all quadrants of the body . . .
and axial skeletal pain . . . that persisted for at least 3 months.
13
The pain may fluctuate in intensity and may not always be present.
2. At least 11 positive tender points on physical examination.
. . . 3. Evidence that other disorders that could cause the
symptoms or signs were excluded.”). Thus, the ALJ erred by failing
to
find
Plaintiff’s
fibromyalgia
a
medically
determinable
impairment.
The ALJ’s error in not recognizing Plaintiff’s fibromyalgia as
a medically determinable impairment appears to have caused the ALJ
to analyze the severity of the condition inconsistently with
applicable standards, see SSR 12-2p, 2012 WL 3104869, at *2-3
(describing recognized criteria for evaluating fibromyalgia); see
also Robertson, 2011 WL 1559209, at *10 (finding “full range of
motion, normal neurological examination, no muscle atrophy, and no
loss of sensation” irrelevant to assessment of fibromyalgia).
Specifically, the ALJ relied solely on findings not associated with
fibromyalgia, such as the absence of skeletal deformities, edema,
problems with balance or gait, decreased range of motion, decreased
strength, and neurological deficits to support his non-severity
determination (see Tr. 24), likely because the ALJ did not give
proper consideration to Plaintiff’s fibromyalgia diagnosis (see Tr.
23-24).
Where (as here) an ALJ concludes that a claimant suffers from
at least one severe impairment, any failure to categorize an
additional impairment as severe generally does not constitute
14
reversible error, because, “upon determining that a claimant has
one severe impairment, the [ALJ] must continue with the remaining
steps in his disability evaluation.”
Maziarz v. Secretary of
Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); accord
Oldham v. Astrue, 509 F.3d 1254, 1256-57 (10th Cir. 2007); Lewis v.
Astrue, 498 F.3d 909, 911 (9th Cir. 2007); Lauver v. Astrue, No.
2:08CV87, 2010 WL 1404767, at *4 (N.D.W. Va. Mar. 31, 2010)
(unpublished); Washington v. Astrue, 698 F. Supp. 2d 562, 579
(D.S.C. 2010); Jones v. Astrue, No. 5:07CV452FL, 2009 WL 455414, at
*2 (E.D.N.C. Feb. 23, 2009) (unpublished).
In this case, however,
the ALJ’s analysis at the remaining steps of the SEP materially
conflicts with the ALJ’s step two determination and, thus, the
Court
should
decline
to
excuse
the
ALJ’s
handling
of
the
fibromyalgia issue as harmless error.
More specifically, in deriving the RFC, the ALJ analyzed
Plaintiff’s credibility following the two-part process set out by
Social Security Ruling 96-7p, Policy Interpretation Ruling Titles
II and XVI: Evaluation of Symptoms in Disability Claims: Assessing
the Credibility of an Individual’s Statements (“SSR 96-7p”), and
applied
by
the
Fourth
Circuit
in
Craig,
76
F.3d
at
594-95.
Significantly, at part one, the ALJ made a threshold determination
that Plaintiff had “medically determinable impairments [that] could
reasonably be expected to cause the alleged symptoms.”
(Tr. 27
(emphasis added).) In describing her symptoms, Plaintiff testified
15
that her fibromyalgia has a “tremendous” effect on her every day
(Tr. 40), and that her pain occurs “all over” her body and mostly
in her neck and lower hips (Tr. 41).
Plaintiff indicated that the
medications she took did not alleviate her pain.
(Id.)
Thus, the
ALJ’s part one Craig finding indicated he determined that Plaintiff
had a medically determinable impairment that could cause the daily,
significant pain Plaintiff attributed to fibromyalgia.
Yet, at
step two of the SEP, the ALJ found Plaintiff’s “back and joint
discomfort” non-severe (Tr. 24), did not find that Plaintiff had
fibromyalgia, and did not find that Plaintiff had any severe
impairments which could reasonably be expected to cause daily,
significant pain all over her body (see Tr. 23 (finding severe
Plaintiff’s
congestive
heart
failure,
hypertension,
obesity,
asthma, bipolar disorder, and post-traumatic stress disorder)).
This conflict prevents the Court from engaging in a meaningful
review of the ALJ’s findings regarding the severity of Plaintiff’s
impairments and Plaintiff’s credibility.
See Clifford v. Apfel,
227 F.3d 863, 872 (7th Cir. 2000) (“[The ALJ] must build an
accurate and logical bridge from the evidence to his [or her]
conclusion.”).
In sum, the ALJ’s erroneous finding at step two regarding
Plaintiff’s fibromyalgia, which conflicts with a portion of his
credibility findings, warrants remand.
16
In light of the recommendation to remand and the fact that,
upon remand, the ALJ will reassess the severity of Plaintiff’s
impairments, her credibility, and the RFC, the Court need not
address Plaintiff’s second assignment of error regarding the ALJ’s
evaluation of treating source opinions. However, Plaintiff’s third
assignment of error warrants further discussion.
In her third
issue on review, Plaintiff maintains that the ALJ’s inclusion of
simple,
routine,
repetitive
tasks
(“SRRTs”)
in
the
RFC
and
hypothetical question to the VE failed to convey Plaintiff’s
moderate
because
limitation
SRRTs
do
in
not
concentration,
address
“the
[Plaintiff’s] concentrational breaks.”
persistence,
length
and
and
pace,
duration
of
(Docket Entry 15 at 17
(citing cases from the Third, Sixth, Seventh, Eighth, Ninth, Tenth,
and Eleventh Circuits, as well as cases from district courts
outside of the Fourth Circuit).)
After the ALJ’s decision in this case and the completion of
the parties’ briefing before this Court, the Fourth Circuit decided
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), which directly
addressed
the
relationship
between
moderate
limitation
in
concentration, persistence, or pace and inclusion of SRRTs and
unskilled work in the RFC and hypothetical question.
Id. at 638.
In Mascio, the Fourth Circuit held as follows:
[W]e agree with other circuits that an ALJ does not
account “for a claimant’s limitations in concentration,
persistence, and pace by restricting the hypothetical
17
question to simple, routine tasks or unskilled work.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180
(11th Cir. 2011) (joining the Third, Seventh, and Eighth
Circuits). As Mascio points out, the ability to perform
simple tasks differs from the ability to stay on task.
On the latter limitation would account for a claimant’s
limitation in concentration, persistence, or pace.
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
[RFC].
For example, the ALJ may find that the
concentration, persistence, or pace limitation does not
affect Mascio’s ability to work, in which case it would
have been appropriate to exclude it from the hypothetical
question tendered to the [VE]. See id. at 1181. But
because the ALJ here gave no explanation, a remand is in
order.
Mascio, 780 F.3d at 638.
In light of the intervening decision in Mascio, upon remand,
should the ALJ find that Plaintiff has moderate limitation in
concentration, persistence, or pace, the ALJ must explain how he or
she accounted for such a limitation in both the RFC and the
hypothetical question, if any, to the VE.
CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be reversed and that the matter be remanded
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings to include reevaluation of the severity
of
Plaintiff’s
reassessment
of
fibromyalgia
Plaintiff’s
and
other
credibility
18
impairments
as
to
her
and
a
subjective
complaints of pain.
As a result, Plaintiff’s Motion for Judgment
on the Pleadings (Docket Entry 14) should be granted in part (i.e.,
to the extent that it requests remand), and Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 17) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 6, 2015
19
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