WILLIAMSON v. COLVIN
Filing
24
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 5/2/2016. It is therefore RECOMMENDED that the Commissioner's decision finding no disability be vacated and that the matter be remanded u nder sentence four of 42 U.S.C. § 405(g), for further administrative proceedings as to why, for purposes of establishing an RFC, restricting Plaintiff to simple, routine, and repetitive tasks not involving production work but allowing for goal -oriented work 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). As a result, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 18 ) should be granted in part (i.e., to the extent it requests remand) and Defendant's Motion for Judgment on the Pleadings (Docket Entry 21 ) should be denied. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CAROLYN DENISE WILLIAMSON,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:14CV00884
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Carolyn Denise Williamson, 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
Security Income (“SSI”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Supplemental
Defendant has filed
the certified administrative record (Docket Entry 16 (cited herein
as “Tr. __”)), and both parties have moved for judgment (Docket
Entries 18, 21; see also Docket Entry 19 (Plaintiff’s Memorandum),
Docket Entry 22 (Defendant’s Memorandum)).
For the reasons that
follow,
matter
the
Court
should
remand
this
for
further
administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff applied for SSI, alleging a disability onset date of
January 1, 2006.
(Tr. 153-58.)
Upon denial of that application
initially (Tr. 65-77, 92-95) and on reconsideration (Tr. 78-91,
100-04),
Plaintiff
requested
a
hearing
Administrative Law Judge (“ALJ”) (Tr. 105).
de
novo
an
Prior to the hearing,
Plaintiff amended her onset date to January 27, 2011.
166.)
before
(Tr. 42, 43,
Plaintiff, her attorney, and a vocational expert (“VE”)
attended the hearing.
(Tr. 39-64.)
The ALJ subsequently ruled
that Plaintiff did not qualify as disabled under the Act. (Tr. 1933.) The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6), thus 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 January 27, 2011, the application date.
2.
[Plaintiff] has the following severe impairments:
osteoarthritis; thyroid gland issue; and depression.
. . .
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.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform less than the full range of light
work . . . in that she [can] occasionally lift or carry
up to 20 pounds, frequently lift or carry up to 10 pounds
as well as sit, stand, and walk about six hours out of
[an] eight-hour workday. She could occasionally climb
ramps/stairs, balance, stoop, kneel, crouch and crawl and
should never climb ladders, ropes, or scaffolds.
[Plaintiff] could occasionally be exposed to unprotected
heights and moving mechanical parts with moderate
exposure to noise. She would require a sit/stand option.
2
The DOT does not address a sit/stand option; therefore,
the undersigned defines it as allowing [Plaintiff] to
stand up at [her] workstation and stretch for one to two
minutes every half hour. She would be limited to simple,
routine, and repetitive tasks and would not be able to
perform at a production rate pace (e.g. assembly line
work), but can perform goal oriented work (e.g. office
cleaner). [Plaintiff] could frequently interact with
supervisors, co-workers, and the public.
. . .
5.
[Plaintiff] is unable to perform any 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 [Plaintiff] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [] Act, since January 27, 2011, the date
the application was filed.
(Tr.
24-32
(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.
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).
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
(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
4
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).
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
1
regulations
establish
a
The Act “comprises two disability benefits programs. The Disability Insurance
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
‘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 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,
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).
6
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.3
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 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
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
“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
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1)
the
ALJ
erred
by
failing
to
find
that
Plaintiff’s
bilateral carpal tunnel syndrome (“CTS”) and obesity qualified as
severe impairments (see Docket Entry 19 at 10-14, 18-19);
(2) “the ALJ conducted a flawed RFC assessment by failing to
address [Plaintiff’s] manipulative limitations caused by her [CTS]”
(id. at 14)
(3) “the ALJ presented a legally insufficient hypothetical to
the VE resulting in a flawed step 5 finding that [Plaintiff] could
adjust to other work” (id. at 16).
Defendant disputes all of Plaintiff’s assignments of error,
and urges that substantial evidence supports the finding of no
disability.
(See Docket Entry 22 at 3-11.)
1. Severe Impairments
Plaintiff contends the ALJ should have categorized her CTS and
obesity as additional severe impairments at step two of the SEP.
(See Docket Entry 19 at 10-14, 18-19.)
Plaintiff
“diagnosis
faults
of
the
[CTS]
ALJ
by
for
failing
several
.
.
With regard to CTS,
to
discuss
Plaintiff’s
.
medical
providers,”
electromyography (“EMG”) testing (which showed “mild to moderate
bilateral median neuropathies at the wrists, consistent with the
clinical diagnosis of [CTS]” (Tr. 466)), and records pertaining to
8
carpal tunnel release surgery on her left hand on July 31, 2012.
(Docket Entry 19 at 12.)
Plaintiff argues that, because the ALJ
“clearly did not consider all the relevant evidence pertaining to
[Plaintiff’s] well-documented [CTS],” the reviewing court cannot
ascertain
whether
the
ALJ
rejected
Plaintiff’s
“allegations
regarding her functional limitations from [CTS] . . . for no reason
or
an
improper
reason.”
(Id.
at
13.)
Concerning
obesity,
Plaintiff emphasizes that her body mass index (“BMI”) remained in
the “obese” range, varying from 31.4 to 33.9, during the time
relevant
to
the
ALJ’s
decision.
(Id.
at
18.)5
Plaintiff
challenges the ALJ’s failure to “consider [Plaintiff’s] obesity in
conjunction with her right knee osteoarthritis, or [to] acknowledge
that the combined effect of her obesity and osteoarthritis may be
greater than the effect of each impairment individually.”
19
(citing
Social
Security
Ruling
02-1p,
Titles
II
(Id. at
and XVI:
Evaluation of Obesity, 2002 WL 34686281, at *6 (Sept. 12, 2002)
(“SSR 02-1p”)).) Plaintiff’s contentions ultimately do not warrant
relief.
For purposes of step two, an impairment fails to qualify as
“severe” if it constitutes only “a slight abnormality . . . that
5
The National Institutes of Health’s “guidelines classify overweight and obesity
in adults according to Body Mass Index (BMI).
BMI is the ratio of an
individual’s weight in kilograms to the square of his or her height in meters
(kg/m2). For adults, both men and women, the [] [g]uidelines describe a BMI of
25-29.9 as ‘overweight’ and a BMI of 30.0 or above as ‘obesity.’”
Social
Security Ruling 02-1p, Titles II and XVI: Evaluation of Obesity, 2002 WL
34686281, at *2 (Sept. 12, 2002) (“SSR 02-1p”).
9
has no more than a minimal effect on the ability to do basic work
activities.”
Social Security Ruling 96-3p, Policy Interpretation
Ruling Titles II and XVI: Considering Allegations of Pain and Other
Symptoms in Determining Whether a Medically Determinable Impairment
is Severe, 1996 WL 374181, at *1 (July 2, 1996) (emphasis added)
(“SSR 96-3p”). 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;
(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. § 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. § 416.912(c) (emphasis added);
see also Social Security Ruling 85-28, Titles II and XVI:
10
Medical
Impairments that Are Not Severe, 1985 WL 56856, at *4 (1985) (“SSR
85-28”) (“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 . . . .
At the
second step of [the SEP], then, medical evidence alone is evaluated
in order to assess the effects of the impairment(s) on ability to
do
basic
work
activities.”
(emphasis
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
techniques.”
clinical
(internal
quotation
and
laboratory
marks
diagnostic
omitted));
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).
Here,
the
ALJ
erred
by
not
only
failing
to
find
that
Plaintiff’s CTS and obesity qualified as severe impairments, but by
failing
to
determinable
find
that
those
impairments
at
conditions
all.
(See
constituted
Tr.
24.)
medically
Regarding
Plaintiff’s CTS, she presented diagnostic evidence in the form of
11
an EMG (see Tr. 466), as well as clinical findings such as positive
Tinel’s and Phalen’s tests (see, e.g., Tr. 463, 595, 653), which
confirmed
she
suffered
Moreover,
Plaintiff’s
from
mild
doctors
to
moderate
detected
reduced
bilateral
grip
CTS.
strength
multiple times on examination (see, e.g., Tr. 463, 653, 679, 700,
705), which would likely have had “more than a minimal effect,” SSR
96-3p, 1996 WL 374181, at *1, on Plaintiff’s ability to lift,
carry, push, pull, handle (gross manipulation), and finger (fine
manipulation), see 20 C.F.R. § 416.921(b).
Similarly, concerning
obesity, the record demonstrates that Plaintiff’s BMI remained in
the “obese”
range
throughout
the
time relevant
to
the
ALJ’s
decision (see, e.g., Tr. 44, 171, 454, 554), and that Plaintiff
suffered from severe osteoarthritis in both knees (see Tr. 411,
418,
441,
535,
644,
673-74),
which
necessitated
replacement on the right (see Tr. 529-32).
total
knee
Given SSR 02-1p’s
express admonition that ALJs should carefully consider the combined
effect of obesity and osteoarthritis, SSR 02-1p, 2002 WL , at *6,
the ALJ’s failure to find that Plaintiff even suffered from obesity
(let alone severe obesity) constitutes error.
However, the ALJ’s failure to categorize Plaintiff’s CTS and
obesity as severe impairments amounts to harmless error under the
circumstances presented here.
Where (as here) an ALJ concludes
that a claimant suffers from at least one severe impairment (see
Tr. 24 (finding severe Plaintiff’s osteoarthritis, thyroid gland
12
issue, and depression)), any failure to categorize additional
impairments as severe generally does not constitute 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
Washington,
5:07CV452FL,
*4
698
2009
(N.D.W.
F.
WL
Va.
Supp.
2d
455414,
Mar.
at
at
31,
579;
*2
2010)
Jones
(unpublished);
v.
(E.D.N.C.
Astrue,
Feb.
23,
No.
2009)
(unpublished).
Moreover,
Plaintiff
has
not
shown
how
the
ALJ’s
proper
categorization of her CTS and obesity as severe impairments at step
two would have had any impact on the ALJ’s ultimate conclusion that
jobs existed in significant numbers in the national economy that
Plaintiff could perform.
As discussed in more detail below in
conjunction with Plaintiff’s second assignment of error, the ALJ
included manipulative limitations in his hypothetical questions to
the VE (see Tr. 60-62)(although not the RFC, (see Tr. 25-26)), and
Plaintiff has not challenged the VE’s testimony that jobs existed
that accommodated those manipulative restrictions or otherwise
shown that Plaintiff’s CTS further limited her (see Docket Entry 19
at 10-19; see also Tr. 61-62). Nor has Plaintiff demonstrated that
13
her obesity, either considered alone or in combination with her
bilateral knee osteoarthritis, caused limitations beyond those the
ALJ included in the RFC and hypothetical questions.
Entry 19 at 18-19.)
(See Docket
That failing precludes relief on that front.
See Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir. 2005)
(ruling remand for express consideration of obesity unnecessary
where plaintiff failed to specify how her obesity would impact the
ALJ’s analysis); Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir.
2004) (declaring no remand required where plaintiff failed to show,
through objective evidence, “how his obesity further impaired his
ability to work”); Miller v. Astrue, Civ. No. 2:06-00879, 2008 WL
759083, at *3 (S.D.W. Va. Mar. 19, 2008) (unpublished) (holding
that, “where an explicit discussion of the claimant’s obesity will
not affect the outcome of the case, remand is inappropriate”).
Given the foregoing circumstances, the Court should decline to
remand based on Plaintiff’s first assignment of error.
See Morgan
v. Barnhart, 142 F. App’x 716, 723 & n.6 (4th Cir. 2005) (applying
harmless error standard in Social Security appeal); Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of
administrative law or common sense requires us to remand a [Social
Security] case in quest of a perfect opinion [from an ALJ] unless
there is reason to believe that the remand might lead to a
different result.”)
14
2. RFC
Next, Plaintiff asserts that, “[a]s a direct result of failing
to find that [Plaintiff’s] [CTS] is a severe impairment at step
two, the ALJ failed to properly evaluate [Plaintiff’s] manipulative
restrictions in his RFC finding.”
(Docket Entry 19 at 15.)
Plaintiff acknowledges that the ALJ did include some manipulative
limitations in his hypothetical question to the VE, but denies that
this renders the ALJ’s error harmless where “‘the reviewing court
cannot tell if significant probative evidence was not credited or
simply ignored.’” (Id. (citing Cotter v. Harris, 642 F.2d 700, 705
(3d Cir. 1981)).)
These assertions do not entitle Plaintiff to
relief.
Although the ALJ did not include any manipulative restrictions
in the RFC (see Tr. 25), such as limitations on reaching, handling,
fingering, and feeling, he did include such limitations in his
hypothetical questions to the VE (see Tr. 60-62).
The ALJ’s first
hypothetical included all of the limitations in the RFC, plus a
limitation to frequent (as opposed to constant) handling and
fingering.
(Compare Tr. 25, with Tr. 60.)
In response, the VE
testified that an individual with those limitations could perform
the occupations of furniture rental clerk and routing clerk (see
Tr. 61), and the ALJ adopted that testimony in his decision (see
Tr. 32).
Plaintiff neither elaborated on which “manipulative
restrictions”
the
ALJ
should
have
15
included
in
the
RFC,
nor
challenged
the
VE’s
testimony
that
jobs
accommodate frequent handling and fingering.
at 14-15.)6
existed
that
could
(See Docket Entry 19
As a result, any failure by the ALJ to include
manipulative restrictions in the RFC amounts to harmless error.
Fisher, 869 F.2d at 1057 (“No principle of administrative law or
common sense requires us to remand a [Social Security] case in
quest of a perfect opinion [from an ALJ] unless there is reason to
believe that the remand might lead to a different result.”).
3. Hypothetical Question
Lastly, Plaintiff contends that the ALJ failed to account for
Plaintiff’s moderate limitations in concentration, persistence, or
pace (“CPP”) in the RFC.
(Docket Entry 19 at 16.)
Specifically,
Plaintiff asserts that, under Mascio v. Colvin, 780 F.3d 632, 638
(4th
Cir.
2015),
“an
ALJ
does
not
account
for
a
claimant’s
limitations in CPP by restricting the hypothetical question to
simple, routine tasks or unskilled work.” (Docket Entry 19 at 17.)
According to Plaintiff, “[a] claimant’s ability to do unskilled
work says nothing about whether she has concentration lapses, or
how frequently she has them.”
(Id.)
Plaintiff’s argument has
merit and warrants remand.
6
In the ALJ’s second hypothetical, he kept all of the restrictions in the first
hypothetical except that he reduced handling and fingering to only occasional
rather than frequent. (See Tr. 61.) The VE responded that, even with occasional
handling and fingering, the furniture rental clerk remained an available job.
(Id.)
16
Indeed, the Mascio court expressly held that “the ability to
perform simple tasks differs from the ability to stay on task” and
that “[o]nly the latter limitation would account for a claimant’s
limitation in concentration, persistence, or pace.”
F.3d at 638.
Mascio, 780
However, that court also allowed for the possibility
that an ALJ could adequately explain why moderate limitation in
concentration,
persistence,
limitation in the RFC.
Id.
or
pace
would
not
result
in
any
A neighboring federal district court
recently had occasion to discuss this very point:
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
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
17
on
the
claimant’s
daily
activities
and
treating
physicians’
opinions of claimant’s mental abilities).
Here, however, the ALJ’s decision provides no explanation as
to why a mental RFC involving “simple, routine, and repetitive
tasks” which prohibits production pace work but allows for “goal
oriented work” (Tr. 26 (emphasis added)) sufficiently accounts for
Plaintiff’s moderate limitation in concentration, persistence, or
pace (see Tr. 25).
At step three, the only support the ALJ offered
for the moderate limitation consisted of the observation that,
“[d]uring an evaluation, [Plaintiff] reported having some problems
with decreased concentration, but records have not shown that and
it was noted that [Plaintiff’s] problems with depression most
likely stem from her physical problems.”
(Id.)
Regardless of
whether Plaintiff’s moderate concentration deficits arise from her
mental or physical problems, the ALJ did not explain why Plaintiff
remained
able
to
perform
goal-oriented
work
despite
moderate
limitation in her ability stay on task.
Moreover,
the
ALJ’s
remark
in
the
RFC
discussion
that
Plaintiff “was able to attend college for two years, which would
not indicate a problem with her concentration, focus or memory”
(Tr. 31) similarly misses the mark.
That Plaintiff possessed
sufficient ability to stay on task to attend two years of postsecondary executive secretary classes in 1985, 25 years prior to
her amended alleged onset date (see Tr. 46, 172), provides no
18
support
for
a
concentration
conclusion
during
the
that
Plaintiff’s
relevant
period
could
in
sustain
this
case.
Furthermore, although the ALJ did not expressly weigh the opinions
of the state agency mental consultants (see Tr. 31), he clearly did
not credit those consultants’ findings with respect to Plaintiff’s
concentration
limitations:
both
consultants
found
Plaintiff’s
depression non-severe and assessed no limitation in concentration,
persistence, or pace and, for that reason, did not even evaluate
Plaintiff’s mental RFC (see Tr. 71, 85).
As a result, without
further explanation, the ALJ’s decision does not provide “an
accurate and logical bridge,” Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000), between the ALJ’s conclusion that Plaintiff
suffered moderate concentration, persistence, and pace deficits and
the ALJ’s decision that Plaintiff could perform simple, goaloriented tasks in the work place.
Court
should
remand
for
Under these circumstances, the
further
administrative
proceedings
consistent with Mascio.
III.
CONCLUSION
Plaintiff has established an error 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 as to why, for purposes of establishing
an RFC, restricting Plaintiff to simple, routine, and repetitive
19
tasks not involving production work but allowing for goal-oriented
work
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).
As a result, Plaintiff’s Motion for Judgment on the
Pleadings (Docket Entry 18) should be granted in part (i.e., to the
extent it requests remand) and Defendant’s Motion for Judgment on
the Pleadings (Docket Entry 21) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 2, 2016
20
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