STALEY v. COLVIN
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 8/4/2015, RECOMMENDING that the Commissioner's decision finding no disability be vacated and that the matter be remanded under sentence fou r of 42 U.S.C. § 405(g), for further administrative proceedings to include: (1) reevaluation with proper explanation of whether Plaintiff's mental impairments meet or equal the criteria of any listed impairment; (2) reconsideration of th e opinions of Drs. Perkins and Spencer and an explanation conforming with 20 C.F.R. § 416.927 as to the relative weights afforded each opinion; and (3) redetermination of whether any of Plaintiff's prior work constitutes PRW and, if so, the mental demands of such work and whether Plaintiff retains the RFC to return to such work. As a result, Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) should be denied and Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) should be granted in part (i.e., to the extent it requests remand). (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KEITH R. STALEY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:14CV214
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Keith R. Staley, 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 Supplemental Security Income (“SSI”).
(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 11, 13).
For
the reasons that follow, the Court should remand this matter for
further administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for Disability Insurance Benefits
(“DIB”) and SSI on November 19, 2010 (protective filing date),
alleging a disability onset date of June 20, 2003.
The
Social
Security
Administration
denied
(Tr. 113-19.)
Plaintiff’s
DIB
application because he had not worked long enough to qualify for
benefits under that program (Tr. 63-66), and Plaintiff did not
appeal that denial.
Upon denial of Plaintiff’s SSI application
initially (Tr. 52-62, 67-70) and on reconsideration,1 Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”) (Tr. 74).
Plaintiff and his non-attorney representative
attended the hearing.
(Tr. 24-51.)
By decision dated September
28, 2012, the ALJ determined that Plaintiff did not qualify as
disabled under the Act.
(Tr. 9-23.)
On January 8, 2014, the
Appeals Council denied Plaintiff’s request for review (Tr. 1-5),
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 November 19, 2010, the application date.
2.
[Plaintiff] has the following severe impairments:
bipolar disorder, major depressive disorder, impulse
control disorder, mood disorder, unable [sic] to focus,
mood swings and paranoid [sic].
. . . .
3.
[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.
. . . .
1
The record does not contain any documents reflecting the denial of Plaintiff’s
SSI claim at the reconsideration stage, but the ALJ indicated in his decision
that the Social Security Administration denied Plaintiff’s SSI claim on
reconsideration on April 19, 2011. (Tr. 12.)
2
4.
. . . [Plaintiff] has the residual functional
capacity to perform a full range of work at all
exertional levels but with the following non[-]exertional
limitations: limited to short and simple instructions;
limited to a small variety of tasks at a semi-rapid pace;
limited social interaction with coworkers, supervisors
and the public; limited to occasional routine changes in
the work setting; limited to simple, routine, repetitive
tasks.
. . . .
5.
[Plaintiff] is capable of performing past relevant
work as a landscaper, production worker, and a handyman.
This work does not require the performance of workrelated activities precluded by [Plaintiff’s] [RFC].
. . . .
6.
[Plaintiff] has not been under a disability, as
defined in the [] Act, since November 19, 2010, the date
the application was filed.
(Tr. 14-22 (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).
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 [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
3
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 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 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
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 reviewing 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
4
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 . . .
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
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
‘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. Comm’r of the 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
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
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
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
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 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
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 567.5
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
erred
by
failing
to
correctly
apply
the
regulatory factors at step three of the [SEP] when he found that
“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 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
[Plaintiff’s] affective and personality disorders did not meet the
requirements as set forth in Listing 12.04 and Listing[] 12.08”
(Docket Entry 12 at 3);
(2) “[t]he ALJ erred by affording greater weight to the nontreating, non-examining psychologist” (id. at 8);
(3) “[t]he ALJ erred in making [an] [RFC] determination that
was not supported by the evidence of record” (id. at 13); and
(4)
“[t]he
ALJ
erred
by
failing
to
provide
substantial
evidence to support his finding that [Plaintiff] did past relevant
work (“PRW”), and alternatively, if [Plaintiff] did PRW, the ALJ
does not provide the required specific findings regarding the
mental demands of the PRW and the subsequent [s]tep [f]ive analysis
lacks the testimony of a vocational expert” (id. at 14).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 14 at 4-17.)
Evaluation of Listings and Medical Source Opinions6
In Plaintiff’s first issue on review, he challenges the ALJ’s
step three determination that Plaintiff’s mental impairments did
not meet or equal the criteria of Listings 12.04 or 12.08.
(Docket
Entry 12 at 3-8.)
Plaintiff alleges that, had the ALJ considered
the record
whole,
as
a
rather than
“selectively
cit[ed]
the
evidence of record that support[ed] his position” (id. at 5), he
6
As explained in more detail below, Plaintiff’s first and second issues on
review warrant consideration together.
8
would have found, when considering the “B criteria” of those
listings, that Plaintiff suffered marked limitation in activities
of daily living (“ADLs”), social functioning, and concentration,
persistence, or pace and, thus, met the requirements of both
Listings 12.04 and 12.08 (id. at 5-8).
Pursuant to Listings 12.04B and 12.08B, Plaintiff must show
that his mental impairments:
B. Result[] in at least two of the following:
1.
Marked restriction of activities of daily
living; or
2.
Marked difficulties in maintaining social
functioning; or
3.
Marked
difficulties
in
maintaining
concentration, persistence, or pace; or
4.
Repeated episodes of decompensation, each
of extended duration[.]
20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.04B, 12.08B.7
the
ALJ
found
that
Plaintiff’s
mental
impairments
Here,
caused
no
limitation in ADLs, moderate limitation in social functioning and
concentration,
decompensation.
persistence,
(Tr. 15.)
or
pace,
and
no
episodes
of
Although the evidence of record does
7
In this context, to qualify as “marked,” a limitation must “interfere seriously
with [one’s] ability to function independently, appropriately, effectively, and
on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00(C); see
also 20 C.F.R. § 416.920a(c)(4) (explaining that “marked” represents the
fourth-highest of five levels, below “extreme,” but above “none, mild, [and]
moderate”). Decompensation here refers to “exacerbations or temporary increases
in symptoms or signs accompanied by a loss of adaptive functioning . . . .” 20
C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00(C)(4).
“[R]epeated episodes of
decompensation, each of extended duration[,] . . . means three episodes within
[one] year, or an average of once every [four] months, each lasting for at least
[two] weeks.” Id.
9
not compel a finding that Plaintiff’s mental impairments met or
equaled either Listing 12.04 or 12.08, substantial evidence does
not support the ALJ’s “B criteria” findings, as explained more
fully below.
For purposes of formulating Plaintiff’s RFC, the ALJ gave
“great weight” to the opinions of state agency psychologist Dr.
Henry Perkins as “consistent with the record as a whole” (Tr. 20);
however, Dr. Perkins’s “B criteria” assessments conflict with the
ALJ’s parallel findings at step three (compare Tr. 15, with Tr.
57).
For example, Dr. Perkins opined that Plaintiff’s mental
impairments caused moderate limitation in ADLs and resulted in
Plaintiff experiencing one to two episodes of decompensation. (Tr.
57.)
Although the ALJ stated that he gave
“great weight” to Dr.
Perkins’s opinions (Tr. 20), the ALJ provided no explanation as to
why he apparently rejected Dr. Perkins’s “B criteria” assessments
regarding ADLs and decompensation (see Tr. 14-23).
failure
to
explain
this
inconsistency
warrants
The ALJ’s
remand.
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.”); see also Conkle v. Commissioner of Soc.
Sec., No. 2:14–CV–0180, 2015 WL 1046197, at *6 (S.D. Ohio Mar. 10,
2015) (unpublished) (finding no error where ALJ “discussed the
opinions of the state agency reviewers [and] . . . adopted some of
their findings, but modified others in light of additional evidence
10
. . . [and] provided a rationale for each of his conclusions”
(emphasis added)); Ghini v. Colvin, No. 13–cv–02790–REB, 2015 WL
1064228, at *5 (D. Colo. Mar. 9, 2015) (unpublished) (“[W]hile the
ALJ gave these opinions ‘significant weight,’ he stated plainly
that he did not afford them greater weight because he found them
partially inconsistent with the medical evidence, a conclusion
which his opinion substantiates.” (emphasis added)); McMillian v.
Colvin, No. 7:13–cv–19, 2014 WL 931950, at *7 (W.D. Va. Mar. 10,
2014) (unpublished) (holding that “substantial evidence support[ed]
the ALJ’s . . . decision not to adopt [a treating physician’s]
proposed limitations whole-cloth . . . [where] the ALJ . . .
reviewed carefully [the treating physician’s] opinion and . . .
explain[ed] why [the ALJ gave] great weight to much of [the]
opinion, and why certain aspects of that opinion were not entitled
to great weight.” (emphasis added)).
In
addition
explanation
to
the
regarding
above-described,
Dr.
Perkins’s
material
opinions,
the
failure-ofALJ
also
committed step-three error by failing to support his “B criteria”
findings with any other substantial evidence. For example, the ALJ
cited no basis for concluding that Plaintiff had no limitation in
ADLs.
(See Tr. 15.)
At the hearing, although Plaintiff testified
that he draws in coloring books, reads the Bible, and watches TV
(Tr. 40), that he can shower and dress himself and fix simple meals
(Tr. 46), and that he “clear[s] up behind [him]self” (Tr. 47), he
11
also testified that his wife took care of him (Tr. 28), that he did
not have a driver’s license because of medication side effects (Tr.
32), that he stays in his house (Tr. 40), and that he does not
grocery shop with his wife or go to church very often because he
gets into conflict with others (Tr. 47, 48).
Similarly, on a
Function Report, Plaintiff indicated that he does not cook (Tr.
160), does not perform any house work or yard work (Tr. 161), does
not handle
money
instructions
(Tr.
or bills
163).
(id.),
Absent
and
has
problems following
contradiction,
that
evidence
establishes that Plaintiff has, at a minimum, some limitation in
his ability to complete ADLs caused by his mental impairments.
The ALJ also failed to adequately explain his findings of
moderate
limitation
persistence, or pace.
in
social
functioning
and
concentration,
With regard to social functioning, the ALJ
observed that Plaintiff reported having “problems getting along
with family, friends and neighbors,” that he “does not get along
with other people and their attitude,” and that “he could not be
around people, because when he gets mad he wants to hurt someone.”
(Tr. 15.)
That evidence, standing alone, supports a finding of a
marked limitation in social functioning, as it demonstrates that
Plaintiff’s mental impairments “interfere seriously with [his]
ability to function independently, appropriately, effectively, and
on a sustained basis.”
§ 12.00(C).
20 C.F.R. Pt. 404, Subpt. P, App’x 1,
The ALJ did not rely on any other record evidence to
12
counterbalance that evidence.
contain
evidence
that
(Tr. 15.)
could
support
Although the record may
a
finding
of
moderate
limitation in social functioning (see, e.g., Tr. 281, 283-84), the
ALJ here did not reference any such evidence to support his finding
with respect to social functioning.
(Tr. 15.)
The ALJ must cite
to sufficient evidence to build “‘an accurate and logical bridge
from the evidence to [the ALJ’s] conclusions,’” Joyce v. Astrue,
No. 1:06CV27, 2009 WL 313345, at *3 (M.D.N.C. Feb. 5, 2009)
(unpublished) (quoting Blakes ex rel. Wolfe v. Barnhardt, 331 F.3d
565, 569 (7th Cir. 2003)).
The
same
problem
exists
regarding
the
ALJ’s
finding
moderate limitation in concentration, persistence, or pace.
of
The
ALJ reported Plaintiff’s statements that “he does not finish things
that
he
starts,”
that
“he
cannot
focus
to
follow
written
instructions,” and that “he does not pay bills, handle a savings
account or use a checkbook.”
(Tr. 15.)
That evidence, in and of
itself, tends to establish a marked limitation in concentration,
persistence, or pace, and the ALJ does not expressly rely on any
other evidence to support his more limited finding.
Again, the
record may contain evidence that Plaintiff possesses a greater
ability to concentrate (see, e.g., Tr. 49, 219, 270, 284), but the
ALJ did not cite to any such evidence or conduct any analysis to
resolve conflicts in the evidence (Tr. 15).
13
In Plaintiff’s second issue on review, he challenges the ALJ’s
decision to afford Dr. Perkins’s opinions more weight than the
opinions of consultative examiner Dr. Richard L. Spencer.
Entry 12 at 8-13; see also Tr. 53-62, 266-72.)8
8
(Docket
As Plaintiff
Plaintiff also argues that the ALJ erred when he found Dr. Perkins’s opinions
“consistent with whole record” (id. at 11 (citing Tr. 20)), because Dr. Perkins
issued his opinion in February 2011, and could “not [have] review[ed] the entire
record” (id. (citing Tr. 53-62)). Plaintiff’s suggestion that Dr. Perkins’s
opinions should not have received great weight because Dr. Perkins provided such
opinions prior to the record’s completion runs counter to logic. State agency
consultants who provide RFC determinations at the initial and reconsideration
levels of the claims process necessarily give their opinions prior to completion
of the record, and their opinions would not, under Plaintiff’s reasoning, ever
warrant great weight. Moreover, Plaintiff’s position contradicts both binding
and persuasive authority. Such authority makes clear that the consistency of
state agency consultant’s opinions with the record as a whole, including those
records post-dating such opinions, constitutes the proper focus of the inquiry.
For example, in Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984), as
recognized by Plaintiff in his brief (see Docket Entry 12 at 11), the United
States Court of Appeals for the Fourth Circuit held that ALJs may rely on the
opinions of non-examining physicians when such opinions find consistency with the
whole of the record. Similarly, numerous district court cases within the Fourth
Circuit similarly reflect the view that ALJ reliance on non-examining state
agency physicians’s RFC assessments does not constitute error so long as such
opinions find support in the entire record. See, e.g., Thacker v. Astrue, 2011
WL 7154218, at *6 (W.D.N.C. Nov. 28, 2011) (unpublished) (“The fact that the
state agency physician did not have access to the entire evidentiary record —
because the record was incomplete at the time of the assessment — is
inconsequential as the ALJ considered the entire evidentiary record and
substantial evidence supports his determination. Moreover, there is nothing in
the additional medical evidence subsequently submitted by Plaintiff to indicate
that she possessed limitations beyond [the state agency physician’s RFC].”
(internal citation omitted)); Bryant v. Astrue, No. 3:08CV719, 2009 WL 6093969,
at *9 & n.11 (E.D.Va. Jul. 15, 2009) (unpublished) (affirming ALJ’s decision to
give non-examining state agency consultants’ assessments great weight as
“consistent with the actual medical findings and conservative treatment of the
claimant’s treating physicians, and with [the claimant’s] admitted activities of
daily living” even though such consultants “did not have the opportunity to
observe the claimant or the opportunity to consider additional evidence submitted
subsequent to their review of the record”); Bracey v. Astrue, No. 5:07–CV–265–FL,
2009 WL 86572, at *3 (E.D.N.C. Jan. 6, 2009) (unpublished) (finding no error in
ALJ’s reliance on state agency consultants’ opinions where “treatment notes and
clinical findings . . . submitted after the [consultants’s] assessments
indicate[d] similar complaints and assessments as those reviewed by the . . .
consultants” and noting that the ALJ considered the additional evidence, which
did “not demonstrate a marked change for the worse in [the] plaintiff’s health”);
see also Social Security Ruling 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 *2 (July 2, 1996).
14
points out, the ALJ gave Dr. Perkins’s opinions “great weight” and
Dr. Spencer’s opinions “moderate weight” for exactly the same
reason: that such opinions are “consistent with the record as a
whole.”
(Id. at 13 (citing Tr. 20, 21).)
Plaintiff thus faults
the ALJ for failing to give any distinguishing reasons why Dr.
Perkins’s
opinions
opinions.
(Id.)
warranted
more
weight
than
Dr.
Spencer’s
Plaintiff’s argument has merit.
On December 8, 2010, Dr. Spencer performed a consultative
mental examination of Plaintiff and concluded that Plaintiff had
“borderline” intellectual functioning, a “poor” ability to adjust
in social and occupational functioning, and a “poor” prognosis.
(Tr. 270-72.)9
Dr. Spencer’s foregoing opinions conflict with Dr.
Perkins’s opinions, in that Dr. Perkins did not find that Plaintiff
suffered from a borderline intellect (or any other organic mental
disorder)
at
step
two,
found
only
moderate
limitations
in
Plaintiff’s social functioning at step three, and assessed at most
moderate
limitations
in
mental
work-related
formulating Plaintiff’s mental RFC.
functioning
(See Tr. 56, 57, 58-60.)
when
The
ALJ, however, failed to explain why Dr. Perkins’s opinions on those
9
Although the ratings scale for the “B criteria” does not utilize the term
“poor,” see 20 C.F.R. § 416.920a(c)(4) (describing “five-point scale” of “[n]one,
mild, moderate, marked, and extreme”), that term leaves open the possibility that
Dr. Spencer intended to find the equivalent of marked limitations in Plaintiff’s
ability to function socially and occupationally. See Fallstead v. Colvin, No.
C 12–00156 CRB, 2013 WL 5426223, at *5 (N.D. Cal. Sept. 27, 2013) (unpublished)
(noting that treating physician’s opinion used “a dissimilar metric, evaluating
[the claimant’s] social functioning and concentration abilities on an ‘unlimited’
to ‘poor’ scale” and observing that “[w]hether these classify as a ‘marked’
restriction is open to interpretation”).
15
subjects warranted greater weight than Dr. Spencer’s opinions.
(See Tr. 20-21.)
Although Defendant cites treatment records and portions of
Plaintiff’s hearing testimony that support the ALJ’s decision to
accord Dr. Spencer’s opinion only moderate weight (see Docket Entry
14 at 12-13 (citing Tr. 43-45, 284), the ALJ neither referenced any
of that evidence, nor cited any other justification beyond his
boilerplate
conclusion
that
he
found
Dr.
Spencer’s
“consistent with the record as a whole” (Tr. 21).
consider post-hoc rationalizations.
1:10CV671,
2014
WL
1224726,
at
opinions
The Court cannot
See Anderson v. Colvin, No.
*1
(M.D.N.C.
Mar.
25,
2014)
(unpublished) (Osteen, C.J.) (citing Securities & Exch. Comm'n v.
Chenery Corp., 332 U.S. 194 (1947)).
To the contrary, Chenery
limits the Court to reviewing the rationalizations initially put
forth by an administrative agency.
Id.10
Accordingly, the Court
also should remand for proper resolution of the conflict between
the conclusions of Dr. Perkins and Dr. Spencer.
2.
RFC, PRW, and Lack of Vocational Expert Testimony
The
recommendation
of
remand
for
reconsideration
of
Plaintiff’s mental limitations may result in the adoption of a
different RFC, thus mooting Plaintiff’s third assignment of error,
10
Although the Court uses a harmless error standard of review, Dyrda v. Colvin,
47 F.Supp.3d 318, 326 (M.D.N.C. 2014) (Schroeder, J.), the Court cannot “parse
the administrative transcript and make several dispositive findings of fact that
the ALJ did not make,” Anderson, 2014 WL 1224726, at *4.
16
which
attacks
determination
in
largely
(see
Docket
conclusory
Entry
12
fashion
at
the
13-14),
ALJ’s
as
well
RFC
as
Plaintiff’s fifth assignment of error, which contests the ALJ’s
reliance on Rule 204.00 of the Medical-Vocational Guidelines, in
lieu of obtaining testimony from a vocational expert (see id. at
17).
Although
the
recommendation
to
remand
might
also
moot
Plaintiff’s fourth (and other remaining) assignment of error, i.e.,
that the ALJ improperly found Plaintiff capable of performing his
PRW (see id. at 14-17), the ALJ made significant errors in his
analysis of Plaintiff’s ability to perform his PRW that warrant
further discussion.
In regards to PRW, Plaintiff asserts that he last worked in
1999, and that he intermittently served time in prison between 1999
and 2008.
(Id. at 15 (citing Tr. 35, 127-29, 268).)
Additionally,
Plaintiff emphasizes that his earnings records show no work income
in the last 15 years that qualified as substantial gainful activity
(“SGA”) and that the state agency disability examiner found on
initial review that Plaintiff had no PRW.
Tr. 60, 125-29).)
(Id. at 15-16 (citing
Plaintiff further argues that the ALJ failed to
make specific findings of fact regarding the mental demands of
Plaintiff’s prior work in violation of 20 C.F.R. §§ 416.920(e) and
416.960,
Plaintiff
and
that
“capable
the
of
ALJ
also
performing
confused
his
matters
[PRW]
as
a
by
finding
landscaper,
production worker, and a handyman,” and then supported that finding
17
by remarking that Plaintiff “was doing housekeeping work until he
had a conflict with the supervisor and then quit that job” and that
Plaintiff “had no problems with doing the [housekeeping] job, so
therefore he would be able to do his [PRW].”
(Id. at 16-17 (citing
Tr. 21 (emphasis added)).)
The Commissioner’s regulations define PRW as “work that [a
claimant has] done within the past 15 years, that was [SGA], and
that lasted long enough for [the claimant] to learn to do it.”
C.F.R. § 416.960(b)(1).
20
Generally, the Commissioner considers
earnings in the 15 years prior to the disability adjudication at
issue,
Social
Disability
Security
Claimant’s
Ruling
Capacity
82-62,
to
Do
Titles
Past
II
and
Relevant
XVI:
Work,
a
in
General, 1982 WL 31386, at *2 (1982) (“SSR 82-62”), which in the
instant case would mean a period from September 28, 1997, to
September 28, 2012.
as
SGA,
the
consideration.”
In evaluating whether work activity qualifies
amount
20
of
C.F.R.
earnings
§
represents
416.974(a)(1).
the
To
“primary
assist
in
determining whether a claimant’s past work constitutes SGA, the
regulations
establish
earnings
generally does not constitute SGA.
thresholds
below
which
work
See 20 C.F.R. § 416.974(b)(2).
Plaintiff’s earnings records, as the “primary consideration,”
20 C.F.R. § 416.974(a)(1), constitute the starting point of the PRW
analysis; however, the administrative record does not contain
earnings information covering the entire 15-year window in this
18
case.
Those records show only Plaintiff’s total earnings per year
from 1985 to 1999 and earnings by employer for the years 1996 to
2000, but no earnings information whatsoever from 2001 to 2012.
(Tr. 128-29.)
Plaintiff
Moreover, for the years 1997, 1998, 1999, and 2000,
earned
respectively.
(Id.)
$1,189.39,
$.00,
$1,544.60,
and
$.00,
Thus, Plaintiff clearly did not have any PRW
in either 1998 or 2000 and, lacking information regarding the
length of time Plaintiff held his prior jobs (as discussed in more
detail below), the record leaves open the possibility that his 1997
and 1999 earnings fell below the presumptive monthly income levels
for SGA.
See https://www.socialsecurity.gov/oact/cola/sga.html
(1997 - $500; 1999 - first half $500, second half $700) (last
visited
July
29,
2015);
see
also
Bernal
v.
Colvin,
No.
1:13–cv–0707–BAM, 2015 WL 1012441, at *7 (E.D. Cal. Mar. 6, 2015)
(unpublished) (“Either Plaintiff worked solely as a hand packager
for a little over one month, which may be an insufficient amount of
time for the ALJ to reasonably determine that the job lasted long
enough for Plaintiff to have learned it; or Plaintiff worked as a
hand packager for two months or longer, making his average monthly
income below SGA levels.
Perhaps both of these statements are
accurate, or perhaps both statements are incorrect.
The Court
simply cannot make a rational interpretation based on such vague
evidence.”).
19
In addition to the lack of evidence that Plaintiff’s past work
qualified as PRW from an earnings standpoint, examination of the
record evidence regarding the three jobs the ALJ cited as PRW
further underscores the errors in the ALJ’s PRW finding.
In
regards to Plaintiff’s past work as a “handyman,” the record does
not provide much clarification regarding the particulars of that
job.
At one point, Plaintiff referred to his prior housekeeping
work as a “handyman” position.
(See Tr. 144.)
Assuming that the
“handyman” and “housekeeper” job constitute the same position, in
1997,
Plaintiff
performed
work
for
“North
Carolina
Hotel
Associates,” which an earlier record in 1996 further identified as
the “Days Inn - Winston-Salem.” (Tr. 128.) Plaintiff testified at
the hearing that he worked as a housekeeper at the Days Inn for
three weeks in 1999 and quit after a conflict with his employer.
(Tr. 33.)11
Although the record contains no information regarding
the hourly wage Plaintiff earned as a housekeeper, his average
weekly hours, or the actual dates of his employment in 1997,12 even
assuming he earned the federal minimum wage in effect as of
September
1,
1997
($5.25
per
hour),
see
www.dol.gov/whd/
minwage/coverage.htm (last visited July 14, 2015), total earnings
11
No earnings records exist for Plaintiff for the Days Inn in 1999 and thus
Plaintiff appears to have misremembered the dates of his employment with that
employer. (Tr. 128-29.)
12
Plaintiff indicated on a Work History Report that he “only remember[ed] the
names of the places [he] work[ed]” and did “not remember when, how much [he] made
or what [he] did.” (Tr. 154.) Lacking even the dates of this employment, the
record does not conclusively establish that this employment even occurred within
the 15-year PRW window, which began on September 28, 1997.
20
of $1,189.39 would only represent approximately five and a half
weeks of full-time work (i.e., 40 hours per week).
Doubt exists as
to whether five and a half weeks constitutes sufficient time job
for
Plaintiff
to
have
learned
how
to
perform
the
handyman/housekeeper job, particularly when the record contains no
testimony or other information regarding the duties of that job.
See Dictionary of Occupational Titles, § 321.137-010, 1991 WL
672778 (G.P.O. 1991) (describing “Housekeeper” position as having
Specific
Vocational
Preparation
of
“Level
6”,
i.e.,
workers
generally spend over one year and up to and including two years to
learn to perform job). Similarly, because the record lacks details
of the handyman/housekeeping job’s duties, the Court cannot trace
the
ALJ’s
reasoning
regarding
whether
Plaintiff’s
mental
RFC
accommodates that job. In other words, the record neither supports
the initial determination that Plaintiff’s housekeeping/handyman
job constituted PRW, nor the conclusion that Plaintiff, despite his
mental limitations, remains able to perform that work.
The ALJ’s conclusions regarding Plaintiff’s ability to perform
his prior work as a landscaper and a production worker find even
less support in the record.
(Tr. 21.)
Plaintiff indicated that he
did landscaping work for the City of Winston-Salem (Tr. 144), but
his earnings records only show income from Winston-Salem in 1996,
outside the 15-year PRW window.
See 20 C.F.R. § 416.965(a) (“[The
SSA does] not usually consider that work [a claimant does] 15 years
21
or more before the time [the SSA is] deciding whether [a claimant
is] disabled applies. A gradual change occurs in most jobs so that
after 15 years it is no longer realistic to expect that skills and
abilities acquired in a job done then continue to apply.
The 15-
year guide is intended to insure that remote work experience is not
currently applied.”).
Even if the Court found that Plaintiff’s
landscaping work fell within the 15-year window for PRW, the ALJ
failed to elicit any information regarding the duties of that job
and thus the Court cannot ascertain whether Plaintiff’s mental
limitations would permit him to return to such work.
As
far
as
production
work,
Plaintiff
indicated
that
he
performed such work for a company called “Chesapeake” (Tr. 144),
but his detailed earnings records for the years 1996 to 2000 do not
reflect such an employer (Tr. 128-29.)
Elsewhere in the record,
Plaintiff indicated that he worked as a temporary employee for
Chesapeake loading pallets for two months in 2011 (Tr. 178), but
the record contains no earnings records to substantiate that
information
(Tr.
128-29).
This
conflicting
and
incomplete
information insufficiently supports the ALJ’s finding that such
work constitutes PRW.
Further, the record contains no information
regarding the actual duties of the production worker job and thus
does not support the ALJ’s conclusion that Plaintiff remained able
to perform such work.
See Limerick v. Chater, Civ. Action No.
94-5149, 56 F.3d 77 (table), 1995 WL 324487, at *2 (10th Cir. May
22
31, 1995) (unpublished) (“The ALJ uncritically referred to the
occupations
of
waitress
plaintiff’s
[PRW]
substantial
evidence
.
.
.
and
.
showing
telephone
Our
the[]
record
solicitor
as
lacks
requisite
conditions
the
[for
[the]
PRW]
were
satisfied by the jobs identified by the ALJ, who made no findings
in this regard.
The scant evidence about waitressing shows only
that plaintiff did it for “2 months” at some unspecified time in
the past.
As for telephone soliciting, all we know is that
plaintiff worked briefly and part-time at two such jobs (four days
per week for two months at one and three days per week for four
months at the other) sometime in 1983 and/or 1984 . . . .”).
In sum, the ALJ’s finding that Plaintiff can return to his PRW
as
a
landscaper,
production
worker,
and
handyman
requires
reassessment on remand, even if the re-examination of Plaintiff’s
mental limitations again results in a finding adverse to Plaintiff
at step three and the adoption of an RFC similar to the one
previously adopted.
III.
CONCLUSION
Plaintiff has established errors warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings to include: (1) reevaluation with proper
explanation of whether Plaintiff’s mental impairments meet or equal
23
the criteria of any listed impairment; (2) reconsideration of the
opinions of Drs. Perkins and Spencer and an explanation conforming
with 20 C.F.R. § 416.927 as to the relative weights afforded each
opinion; and (3) redetermination of whether any of Plaintiff’s
prior work constitutes PRW and, if so, the mental demands of such
work and whether Plaintiff retains the RFC to return to such work.
As a result, Defendant’s Motion for Judgment on the Pleadings
(Docket Entry 13) should be denied and Plaintiff’s Motion for
Judgment on the Pleadings (Docket Entry 11) should be granted in
part (i.e., to the extent it requests remand).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 4, 2015
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?