GREER v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 4/6/2016; that the Commissioner's decision finding no disability be vacated, that Plaintiff's Motion for Judgment on the Pleadin gs (Docket Entry 10 ) be granted in part (i.e., to the extent it requests remand), that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be denied, and that this matter be remanded for further administrative proceedings as t o why, for purposes of establishing an RFC, restricting Plaintiff to simple, routine, repetitive tasks adequately accounts for her moderate limitation in concentration, persistence, or pace (or, alternatively, whether additional restrictions should apply and/or whether jobs that can accommodate any such additional restrictions exist in substantial numbers). (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RUTH A. GREER,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:14CV00143
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Ruth A. Greer, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying Plaintiff’s
Income (“SSI”).
claim
(Docket Entry 2.)
for
Supplemental
Security
The Court has before it the
certified administrative record (manually filed and cited herein as
“Tr. __”), as well as the parties’ cross-motions for judgment
(Docket Entries 10, 12; see also Docket Entry 11 (Plaintiff’s
Brief); Docket Entry 13 (Defendant’s Memorandum)). For the reasons
that follow, the Court should remand this matter for further
administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff applied for SSI, alleging a disability onset date of
March 1, 2008.
(Tr. 168-71.)
Upon denial of that application
initially (Tr. 27, 165-67) and on reconsideration (Tr. 158-61),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 155-57).
Plaintiff, her attorney, a medical
expert (“ME”), and a vocational expert (“VE”) attended the hearing.
(Tr. 1173-1202.) The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 12-26.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 911), making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since March 24, 2009, the application date.
2.
[Plaintiff] has the following severe impairments:
chronic obstructive pulmonary disease (“COPD”), mild
degenerative disc disease, hypothyroidism, chronic pain
syndrome, bipolar disorder, and personality disorder.
. . .
3.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of an impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1.
. . .
4.
[Plaintiff] has the residual functional capacity to
perform less than the full range of light work . . .
with mental and environment limitations.
[Plaintiff] can stand[]or walk six hours in an eight-hour
workday; sit six hours in an eight-hour workday; and lift
and/or carry 10 pounds frequently and 20 pounds
occasionally.
She is limited to performing simple,
routine, repetitive tasks. She must avoid exposure to
pulmonary irritants.
2
. . .
5.
[Plaintiff] has no past relevant work.
. . .
9.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [] Act, since March 24, 2009, the date the
application was filed.
(Tr.
17-26
(bold
font
and
internal
parenthetical
citations
omitted).)
II.
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 [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given those limitations, the Court should remand this case for
further administrative proceedings.
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).
Instead,
the 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.” Hines, 453 F.3d at 561
3
(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 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 [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 Commissioner].”
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
[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).
4
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)).1
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a 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
1
The Act “comprises two disability benefits programs. The Disability Insurance
Benefits Program . . . 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
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 the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2
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
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 179.3
Step four then requires the ALJ to assess
2
“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
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3
“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 work-related 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
(continued...)
6
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 claimant’s 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 Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.4
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
3
(...continued)
“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.
4
A claimant thus can establish disability 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 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.”).
7
1) “[t]he ALJ’s finding that [Plaintiff] is capable of light
work was not supported by substantial evidence” (Docket Entry 11 at
2);
2) “[t]he ALJ erred by failing to develop the record and by
showing impermissible bias in favor of denying [Plaintiff’s] claim”
(id. at 16); and
3) “[t]he ALJ erred by posing a hypothetical question that did
not
take
into
account
all
of
[Plaintiff’s]
non-exertional
impairments” (id. at 18).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 13 at 3-11.)
1. RFC
In
Plaintiff’s
first
issue
on
review,
she
asserts
that
substantial evidence fails to support the ALJ’s light-exertion RFC.
(Docket Entry 11 at 2-15.) In particular, Plaintiff contends that,
due to a long history of severe chest pain and shortness of breath
caused by her COPD, “the thought of [Plaintiff] walking six hours
a day, lifting 20 pounds up to a third of a day, and lifting 10
pounds up to two-thirds of a day is simply unimaginable.”
14.)
(Id. at
Additionally, Plaintiff argues that the ALJ’s failure to
discuss pulmonary function testing (“PFT”) conducted in June 2008
and
showing
“severely
impaired
diffusion
capacity”
(Tr.
947)
constitutes a separate “basis for reversal” (Docket Entry 11 at
14). Lastly, Plaintiff maintains that the testimony of the ME, Dr.
8
Mitchell S. Collman, does not constitute substantial evidence to
support the ALJ’s light-exertion RFC, because Dr. Collman admitted
on cross-examination that Plaintiff “cannot do . . . all of the
walking, lifting, carrying, etc., required for light work.”
at 15 (italics in original).)
(Id.
Plaintiff’s contentions lack merit.
As an initial matter, Plaintiff’s statement that, “because
this case was decided at step five, the Commissioner had the burden
of going forward with evidence that [Plaintiff] has the RFC for
light work” (id. at 3) constitutes a misstatement of the law.
Plaintiff
shouldered the
Commissioner
bore
“the
burden
burden
of
of
proving
proof
at
her
RFC,
step
and
five,
the
which
determines whether the claimant is able to perform work available
in the national economy.”
See Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987); see also Clarification of Rules Involving Residual
Functional Capacity Assessments; Clarification of Use of Vocational
Experts and Other Sources at Step 4 of the Sequential Evaluation
Process; Incorporation of “Special Profile” Into Regulations, 68
Fed.
Reg.
51153-01,
51155
(Aug.
26,
2003)
(“[The
claimant]
shoulder[s] the dual burdens of production and persuasion through
step 4 of the [SEP]. Although [the claimant] generally bear[s] the
burden of proving disability throughout the [SEP], there is a
limited shift in the burden of proof to [the Commissioner] only if
the
[SEP]
proceeds
to
the
fifth
step.
.
.
.
When
[the
Commissioner] decide[s] that [the claimant] [is] not disabled at
9
step 5, this means that [the Commissioner] ha[s] determined that
there is other work [the claimant] can do.
To make this finding,
[the Commissioner] must provide evidence that demonstrates that
jobs exist in significant numbers in the national economy that [the
claimant] can do, given [his or her] RFC, age, education, and work
experience.
evidence.
In legal terms, this is a burden of production of
This burden shifts to [the Commissioner] because, once
[the claimant] establish[es] that [he or she] [is] unable to do any
past relevant work, it would be unreasonable to require [him or
her] to produce vocational evidence showing that there are no jobs
in the national economy that [he or she] can perform. . . .
That
shift does not place on [the Commissioner] the burden of proving
RFC.” (emphasis added)).
Turning to Plaintiff’s principal RFC argument, the ALJ here
supported his light-exertion RFC finding with substantial evidence.
The ALJ discussed Plaintiff’s testimony and the objective medical
evidence regarding her lung impairment in a fair degree of detail.
(See Tr. 19-23.)
The ALJ then found as follows:
Ultimately, [Plaintiff’s] statements concerning her
impairments and their impact on her ability to work do
not support a finding of disability, in light of
[Plaintiff’s] own description of her activities and
lifestyle, the degree of medical treatment required, the
reports of treating and examining practitioners, and the
findings made on examination. Regarding [Plaintiff’s]
COPD, the evidence demonstrates that [Plaintiff’s]
condition can generally be controlled by prescribed
medications.
Exacerbations of [Plaintiff’s] COPD
occurred in the context of ongoing tobacco use,
noncompliance with medications, and/or poly-substance
10
use. Moreover, [Plaintiff] returned to baseline within
less than 12 months.
(Tr. 23.)
The ALJ also weighed the opinion evidence relating to
Plaintiff’s
physical
“significant
weight”
limitations
to
Dr.
(see
Collman’s
Tr.
24),
opinion
that
and
gave
Plaintiff
remained capable of performing light work but must avoid pulmonary
irritants (id.; see also Tr. 1197-98).
Consistent with that
determination, the ALJ then gave “[l]imited weight” to the opinion
of the state agency medical consultant, who opined that Plaintiff
could perform medium work (see Tr. 766), because “the evidence
received at the hearing level demonstrates that [Plaintiff] ha[d]
greater exertional limitations” (Tr. 24).
The ALJ thus supported
his RFC determination with substantial evidence.
Although Plaintiff faults the ALJ for failing to expressly
discuss Plaintiff’s PFT from June 2008 (see Docket Entry 11 at 5,
13-14; see also Tr. 546), “‘there is no rigid requirement that the
ALJ
specifically
refer
to
every
piece
of
evidence
in
his
decision,’” Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865
(4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211
(11th Cir. 2005)). The record contains hundreds of medical records
pertaining
to
Plaintiff’s
March
2008
hospitalization
for
exacerbation of her lung condition and her protracted recovery (see
Tr. 265-479, 482-90), and the ALJ adequately summarized Plaintiff’s
course of treatment (see Tr. 19-20).
Moreover, the ALJ clearly
discussed Plaintiff’s 2009 and 2010 PFT (see Tr. 23; see also Tr.
11
700-02, 755-64), which showed improved lung function as compared to
her June 2008 PFT (compare Tr. 546, with Tr. 701-02, 756-63), and
supported the ALJ’s assessment that Plaintiff’s lung condition
returned to baseline within 12 months of any exacerbation (see Tr.
23). Thus, Plaintiff has not shown how the ALJ’s express reference
to the June 2008 PFT would have changed the RFC or the ultimate
outcome of the case.
(See Docket Entry 11 at 2-15.)
Plaintiff additionally contends that “[t]he ALJ failed to
mention” that a September 2009 PFT conducted by Dr. M.A. Samia at
a consultative examination “assessed [Plaintiff] as easily fatigued
and short of breath on exertion” and “stated that the report showed
mild to moderate obstruction” when “the report does not actually
say this.”
(Id. at 8 (citing Tr. 23, 700).)
However, in a related
footnote, Plaintiff makes clear that she does not contend that the
ALJ misstated the PFT report but, rather, that the record lacked
the pages from Dr. Samia’s report that reflected the assessment of
“mild to moderate obstruction.”
704).)
(See id. n.5 (citing Tr. 699-
Plaintiff asserts that the omission of those pages “itself
is ground for remand.”
(Id. at 8.)
Although the record evidently does not contain several pages
of Dr. Samia’s narrative report (compare Tr. 699, with Tr. 700; see
also
Tr.
23
(reflecting
ALJ’s
summarization
of
Dr.
Samia’s
findings, many of which do not appear on any of the pages of Dr.
Samia’s report in the record)), the absence of those pages does not
12
require a remand under the circumstances presented.
“[T]o reverse
on [such] grounds, the court must find that the plaintiff has been
harmed because of the error” and “[t]he burden of showing that the
harm resulted from the error . . . rests with the plaintiff.”
Santiago v. Astrue, No. 3:10-CV-0937 CFD TPS, 2011 WL 4460286, at
*3 (D. Conn. Mar. 15, 2011) (unpublished), recommendation adopted,
2011 WL 4460206 (D. Conn. Sept. 27, 2011) (unpublished) (citing
Shinseki v. Sanders, 556 U.S. 396, 410 (2009)).
Here, despite
counsel for Plaintiff’s involvement in the case since at least
March 10, 2010 (see Tr. 162-63), the record fails to reflect any
effort by Plaintiff or her counsel to obtain the missing pages of
Dr. Samia’s report, to demonstrate that the missing pages omit the
findings the ALJ described (see Tr. 23), or to otherwise show how
the missing pages could have affected the outcome.
Moreover, as
discussed above, given the substantial record support for the ALJ’s
finding of improvement in Plaintiff’s lung impairment in 2009 and
2010, Plaintiff has not shown how further consideration of Dr.
Samia’s 2009 report could favorably impact her case.
Santiago,
2011 WL 4460286, at *3 (finding no reversible error despite the
plaintiff’s claim of missing medical records where “[t]he plaintiff
has not explained how the missing records have caused him to be
harmed” and “has also failed to explain what value the missing
records might have on this case”).
13
Lastly, contrary to Plaintiff’s assertions (see Docket Entry
11 at 15), the ME did not testify that Plaintiff lacked the
capacity to perform all of the requirements of light work. Rather,
Dr. Collman testified that, although Plaintiff could not do all of
the requirements of medium work, she could perform light work, and
that he would recommend Plaintiff engage in some walking, lifting,
and carrying if she pursued pulmonary rehabilitation.
(See Tr.
1197-98.)
In conclusion, Plaintiff’s first assignment of error fails to
warrant relief.
2. Failure to Develop the Record
Next, Plaintiff asserts that the ALJ erred by failing to
fulfill his duty to develop the record.
16-18.)
(See Docket Entry 11 at
More specifically, Plaintiff contends that, because the
ALJ “rejected” the opinions of post-hearing consultative examiner
Dr. Elliott Sharon, the ALJ’s duty to develop the record compelled
him to “replace [Dr. Sharon’s opinion] with a credible expert’s
explanation of [Plaintiff’s] condition and its severity.”
16.)
(Id. at
Plaintiff further faults the ALJ for “question[ing] [ME] Dr.
Collman no more than was necessary to establish that [Plaintiff]
failed to meet a listing” and, in particular, for failing to “ask
Dr. Collman to interpret the PFT of March 5, 2010.”
Plaintiff’s contentions lack merit.
14
(Id. at 17.)
“[T]he ALJ has a duty to explore all relevant facts and
inquire into the issues necessary for adequate development of the
record, and cannot rely only on the evidence submitted by the
claimant when that evidence is inadequate.”
Cook v. Heckler, 783
F.2d 1168, 1173–74 (4th Cir. 1986) (emphasis added) (citations
omitted).
The ALJ discharges his duty to develop the record where
“the record
is
adequate
disability claim.”
to
make
a
determination
regarding
a
France v. Apfel, 87 F. Supp. 2d 484, 490 (D.
Md. 2000); accord Kersey v. Astrue, 614 F. Supp. 2d 679, 693 (W.D.
Va. 2009).
failed
to
Accordingly, in order to demonstrate that the ALJ
develop
the
record,
a
claimant
must
show
that
“evidentiary gaps” existed that prejudiced his or her rights,
Blankenship v. Astrue, No. 3:11-cv-00005, 2012 WL 259952, at *13
(S.D.W. Va. Jan. 27. 2012) (unpublished) (citing Marsh v. Harris,
632 F.2d 296, 300 (4th Cir. 1980)), and that he or she “could and
would have adduced evidence that might have altered the result,’”
id. (quoting Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000)).
The ALJ in this case fulfilled his duty to develop the record.
Plaintiff
cites
no
authority
for
the
proposition
that,
upon
discounting the opinions of the post-hearing consultative examiner,
the ALJ’s duty to develop the record compelled him to order a new
consultative examination.
(See Docket Entry 11 at 16.)
Indeed,
the ALJ’s decision to afford “little weight” to Dr. Sharon’s
opinions as inconsistent with the record (Tr. 24) does not mean
15
that Dr. Sharon’s objective findings and diagnoses had no value to
the ALJ (see Tr. 23 (ALJ’s discussion of Dr. Sharon’s findings and
diagnoses)), or imply that Dr. Sharon’s report lacked clarity or
completeness.
Moreover, the ALJ relied on the opinions of the ME
at the hearing to guide the ALJ’s determinations regarding whether
Plaintiff’s lung impairment met or equaled any of the listed
impairments (see Tr. 17) and regarding Plaintiff’s RFC (see Tr.
24).
Thus, contrary to Plaintiff’s assertion, the ALJ clearly did
not “settle for his own layman’s estimate of the case rather than
obtain a credible medical opinion.”
(Docket Entry 11 at 16.)
Moreover, the ALJ did not commit error with regard to his
questioning of the ME at the hearing.
Although Plaintiff faults
the ALJ for ending his questioning once Dr. Collman opined that
Plaintiff’s lung impairment did not meet or equal any listings (see
id. at 17; see also Tr. 1197), Plaintiff’s counsel cross-examined
Dr. Collman and elicited his opinion that Plaintiff remained
capable of light work and should avoid pulmonary irritants (see Tr.
1197-98).
If Plaintiff believed that the circumstances warranted
further lines of questioning of Dr. Collman, her counsel could have
asked Dr. Collman those questions at the hearing.
Similarly,
Plaintiff challenges the ALJ’s failure to ask Dr. Collman to
“interpret the PFT of March 5, 2010” (Docket Entry 11 at 17), but
neither the ALJ nor Dr. Collman indicated that the data from the
PFT needed any further interpretation (see Tr. 1197).
16
Plaintiff’s
counsel had the opportunity to ask Dr. Collman to interpret or
explain the PFT data and failed to do so.
(See Tr. 1197-98.)
Under these circumstances, Plaintiff’s argument that the ALJ
did not fulfill his duty to develop the record fails as a matter of
law.
3. Hypothetical Question
In Plaintiff’s final issue on review, she argues that the
ALJ’s hypothetical question to the VE failed to include several of
Plaintiff’s non-exertional limitations.
22.)
(Docket Entry 11 at 18-
More specifically, Plaintiff asserts that the ALJ failed to
include in the hypothetical any limitations due to her chronic
pain, shortness of breath, need for 30-minute breaks for breathing
treatments, and moderate limitation in concentration, persistence,
or pace.
(Id.)
With regard to the latter limitation, Plaintiff
contends that the ALJ’s inclusion of simple, routine, repetitive
tasks in the RFC does not sufficiently account for Plaintiff’s
moderate
limitation
in
concentration,
persistence,
(Docket Entry 11 at 21-22 (citing Tr. 18, 1199).)
or
pace.
Plaintiff’s
allegations concerning her pain, shortness of breath, and need for
breaks lack merit, but her contention with regard to her moderate
limitation in concentration, persistence, or pace warrants remand.
Plaintiff’s assertion that the ALJ’s hypothetical question to
the VE lacked any limitations due to her chronic pain and shortness
of breath falls short.
Here, the ALJ fully analyzed Plaintiff’s
17
subjective complaints of pain and shortness of breath under 20
C.F.R. § 416.929, including by considering the objective medical
evidence, Plaintiff’s testimony about those symptoms, and evidence
of her daily activities.
(Tr. 19-24.)
The ALJ thereafter found
Plaintiff’s subjective symptom reporting “not entirely credible”
(Tr. 23), a finding not specifically challenged (see Docket Entry
11 at 2-22), which the Court should deem supported by substantial
evidence. Moreover, the ALJ limited Plaintiff to light work (which
involves lifting and carrying of no more than 20 pounds, see 20
C.F.R. § 416.967(b)) and precluded exposure to pulmonary irritants
(see Tr. 19), which accommodated Plaintiff’s complaints of pain and
shortness
of
complaints.
breath,
to
the
extent
the
ALJ
credited
those
Under these circumstances, the ALJ’s failure to
further limit Plaintiff’s RFC because of alleged pain and shortness
of
breath
does
not
constitute
error.
See
Stallworth
v.
Commissioner of Soc. Sec., No. 1:12cv496, 2013 WL 2897879, at *10
(S.D. Ohio Jun. 13, 2013) (unpublished) (finding ALJ’s failure to
include additional RFC limitations based on pain fell within ALJ’s
“zone of choice” because supported by substantial evidence).
Plaintiff’s argument that the ALJ “also failed to account for
[Plaintiff’s] time-consuming use of breathing devices” in the
hypothetical question similarly fails.
Plaintiff
testified
as
follows
breathing treatments:
18
(Docket Entry 11 at 20.)
regarding
her
need
for
daily
When I get up, you know, first thing in the morning and
I get up around 7:30/8:00 I’ve got to take the breathing
treatment. And then about 12:00/1:00 is the time I take
another one. And then right at night, before I go to
bed, I have to take another one and that varies between
8:30 and 9:00.
(Tr. 1188.) The VE testified that the jobs he cited in response to
the hypothetical question did not constitute production jobs, and
that employees can take “morning and afternoon breaks and then a
lunch break.”
(Tr. 1200.)
As Defendant argues (see Docket Entry
13 at 8), Plaintiff has thus not shown why she could not take her
morning and evening breathing treatments outside of the work day,
and use her midday lunch break for the noon breathing treatment.
Under
such
circumstances,
the
ALJ
did
not
err
by
omitting
Plaintiff’s alleged need for breaks for breathing treatments from
the hypothetical question. See Burton v. Astrue, 310 F. App’x 960,
963 (9th Cir.
2009)
(finding
no
error
in
ALJ’s hypothetical
question where the claimant had not “shown why he would not be able
to use his nebulizer on regularly scheduled breaks”).
Regarding Plaintiff’s concentration, persistence, and pace,
after the ALJ issued his decision and the parties completed their
briefing before this Court, the United States Court of Appeals for
the Fourth Circuit decided Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015), which directly addressed the relationship between a moderate
limitation in concentration, persistence, or pace and the inclusion
of simple, routine, repetitive tasks and/or unskilled work in the
19
RFC and hypothetical question(s).
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
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.
Only 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.
Id.
As a neighboring court recently explained:
Mascio does not broadly dictate that a claimant’s
moderate impairment in concentration, persistence, or
pace always translates into a limitation in the RFC.
Rather, Mascio underscores the ALJ’s duty to adequately
review the evidence and explain the decision . . . . An
ALJ may account for a claimant’s limitation with
concentration, persistence, or pace by restricting the
claimant to simple, routine, unskilled work where the
record supports this conclusion, either through physician
testimony, medical source statements, consultative
examinations, or other evidence that is sufficiently
evident to the reviewing court.
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (Magistrate Judge’s Report & Recommendation
adopted by District Judge) (unpublished) (emphasis added); see also
20
Hutton v. Colvin, No. 2:14-CV-63, 2015 WL 3757204, at *3 (N.D.W.
Va. June 16, 2015) (unpublished) (finding reliance on Mascio
“misplaced” and that ALJ “gave abundant explanation” for why
unskilled
work
adequately
accounted
for
claimant’s
moderate
limitation in concentration, persistence, or pace, where ALJ relied
on
the
claimant’s
daily
activities
and
treating
physicians’
opinions of claimant’s mental abilities).
Here, the ALJ’s decision provides no explanation as to why a
limitation
to
sufficiently
“simple,
accounted
concentration,
routine,
for
persistence,
repetitive
Plaintiff’s
or
pace
tasks”
moderate
(see
(Tr.
18)
limitation in
id.).
The
ALJ’s
explanation for finding a moderate limitation in concentration,
persistence, or pace, i.e., that “[Plaintiff] is limited to simple,
routine, repetitive tasks, due to her bipolar and personality
disorders” (id.), merely reiterates the ALJ’s mental RFC and does
not explain why Plaintiff’s moderate concentration deficits did not
translate into any other limitations in the RFC.
Although the ALJ
gave “[s]ignificant weight” to the state agency psychological
consultant’s
opinion
that
“[Plaintiff]
was
capable of
.
.
.
performing simple tasks” (Tr. 24 (citing Tr. 737-40)), that same
consultant
noted
maintaining
added)).
that
attention
Plaintiff
and
“may
have
concentration”
some
(Tr.
739
difficulty
(emphasis
As a result, without further explanation, the ALJ’s
crediting of the state agency psychological consultants’ opinions
21
does not provide a “logical bridge,” Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000), between the ALJ’s findings that Plaintiff
suffered moderate concentration deficits and that Plaintiff could
perform simple, routine, repetitive tasks, without any further
concentration-related restriction.
Moreover, the ALJ did not
address Plaintiff’s concentration deficits at all in his RFC
discussion.
(See Tr. 19-25.)
In sum, the ALJ’s failure to explain why a restriction to
simple, routine, repetitive tasks in the RFC adequately accounted
for Plaintiff’s moderate limitation in concentration, persistence,
or pace runs afoul of Mascio and requires a remand.
III.
CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated, that Plaintiff’s Motion for
Judgment on the Pleadings (Docket Entry 10) be granted in part
(i.e., to the extent it requests remand), that Defendant’s Motion
for Judgment on the Pleadings (Docket Entry 12) be denied, and that
this matter be remanded for further administrative proceedings as
to why, for purposes of establishing an RFC, restricting Plaintiff
to simple, routine, repetitive tasks adequately accounts for her
moderate limitation in concentration, persistence, or pace (or,
alternatively, whether additional restrictions should apply and/or
22
whether jobs that can accommodate any such additional restrictions
exist in substantial numbers).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 6, 2016
23
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