TREXLER v. SOCIAL SECURITY ADMINISTRATION (SSA)

Filing 12

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE signed on 2/22/2016, RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Com missioner under sentence four of 42 U.S.C. § 405 (g). The Commissioner should be directed to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Defendant's Motion for Judgment on the Pleadings (Doc. # 10 ) should be DENIED, and Plaintiff's Motion for Judgment on the Pleadings (Doc. # 7 ) should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED. (Daniel, J)

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

)
)
)
)
)
)
)
)
)
)

1:14CV1085

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Alan Bradley Trexler (“Plaintiff”) brought this action pursuant to Section
205(g) of the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial
review of a final decision of the Commissioner of Social Security denying his claim for
Disability Insurance Benefits under Title II of the Act. The parties have filed cross-motions
for judgment, and the administrative record has been certified to the Court for review.
I.

PROCEDURAL HISTORY
Plaintiff filed his application for Disability Insurance Benefits on August 4, 2011,

alleging a disability onset date of April 17, 2001, later amended to December 31, 2001. (Tr. at
71, 154-55.) 1 His date last insured was September 30, 2007. His claim for Disability Insurance
Benefits for the period from December 31, 2001 to September 30, 2007 was denied initially
(Tr. at 70-86, 109-12), and that determination was upheld on reconsideration (Tr. at 87-103,

1

Transcript citations refer to the Sealed Administrative Record [Doc. #5].

114-21). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (Tr. at 123-24.) Plaintiff attended the subsequent hearing
on December 10, 2013, along with his attorney and an impartial vocational expert. (Tr. at 11.)
The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the
Act. (Tr. at 21.) On October 31, 2014, the Appeals Council denied Plaintiff’s request for
review of the decision, thereby making the ALJ’s conclusion the Commissioner’s final decision
for purposes of judicial review. (Tr. at 1-6.)
II.

LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of [the] review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing 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 standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

2

evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “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 upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). 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

“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program . . . provides benefits to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program . . . 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).

2

3

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. 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 two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more
of the impairments listed in Appendix I of the regulations,” then “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 function[al] capacity (‘RFC’).” Id. at
179. 3 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can

“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’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
3

4

“perform past relevant work”; if so, the claimant does not qualify as disabled. Id. at 179-80.
However, if the claimant establishes an inability to return to prior work, the analysis proceeds
to the fifth step, which “requires the Commissioner to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s] impairments.” Hines, 453
F.3d at 563. In making this determination, 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 Government cannot carry its “evidentiary burden of proving
that [the claimant] remains able to work other jobs available in the community,” the claimant
qualifies as disabled. Hines, 453 F.3d at 567.
III.

DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” since his alleged onset date. (Tr. at 13.) Plaintiff therefore met his burden at step
one of the sequential evaluation process. At step two, the ALJ further determined that Plaintiff
suffered from the following severe impairments: “history of obesity, diabetes mellitus, diabetic
neuropathy, degenerative joint disease of the bilateral knees, degenerative joint disease of the
lumbar spine with a chronic compression fracture at T11, depression, anxiety, and posttraumatic stress disorder.” (Tr. at 14.) The ALJ found at step three that none of these
impairments met or equaled a disability listing. (Tr. at 15-17.) Therefore, the ALJ assessed

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

Plaintiff’s RFC and determined that he could perform light work with the following additional
restrictions: “he must be able to sit and stand at will; he cannot climb ladders, ropes and/or
scaffolds; he needs a cane for ambulation, but not for the performance of job duties; and he
is limited to simple, routine, repetitive tasks.” (Tr. at 17.) Based on this determination, the
ALJ found under step four of the analysis that Plaintiff could not return to any of his past
relevant work. However, based on the vocational expert’s testimony, the ALJ determined at
step five, that, given Plaintiff’s age, education, work experience, and RFC, he could perform
other jobs available in the national economy. (Tr. at 20-21.) Therefore, the ALJ concluded
that Plaintiff was not disabled under the Act. (Tr. at 21.)
Plaintiff now argues that the ALJ erred in formulating both the RFC and the
hypothetical questions to the vocational expert based upon the RFC. Specifically, he contends
that the ALJ (1) failed to perform a function-by-function analysis in formulating the RFC and,
relatedly, failed to clarify the impact of Plaintiff’s cane use and sit/stand requirement on the
number of jobs available at step five of the sequential analysis, and (2) failed to include mental
RFC limitations consistent with his finding of moderate limitations in concentration,
persistence, or pace, as required by Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). After
careful consideration of the record before it, the Court agrees that the ALJ’s failure to comply
with Mascio in formulating Plaintiff’s mental RFC requires remand. The Court therefore
declines consideration at this time of the additional issues raised by Plaintiff.
After the ALJ delivered his decision in this case, the Fourth Circuit issued its decision
in Mascio, addressing, among other issues, the question of whether and how moderate
limitations in concentration, persistence, and pace found at step three must be accounted for
6

in the RFC assessment. 780 F.3d at 638. In Mascio, the Fourth Circuit held 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.” Id. (internal
quotation omitted). This is because “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.” Id. The Fourth Circuit further noted that “[p]erhaps 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 residual functional capacity. 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 tendered to the vocational expert. But because the ALJ here gave no
explanation, a remand is in order.” Id. (internal citation omitted).
In the present case, as in Mascio, the ALJ found at step three that Plaintiff has moderate
difficulties in concentration, persistence, or pace. (Tr. at 16.) However, the mental restrictions
in Plaintiff’s RFC include nothing beyond a limitation to “simple, routine, repetitive tasks.”
(Tr. at 17.) Defendant asserts that remand is not required under Mascio where the ALJ’s
discussion of, and reliance on, substantial record evidence adequately explains why the
plaintiff’s moderate limitation at step three did not translate into any additional RFC
restrictions. (Def.’s Br. [Doc. #11] at 11-13.) See, e.g., Del Vecchio v. Colvin, No. 1:14CV116,
2015 WL 5023857, at *5-6 (W.D.N.C. Aug. 25, 2015); Walker v. Colvin, No. 6:14-cv-00025,
2015 WL 5138281, at *11 (W.D. Va. Aug. 31, 2015); Jones v. Colvin, No. 7:14CV00273, 2015
WL 5056784, at *3-4 (W.D. Va. Aug. 20, 2015). However, in this case, the ALJ expressly
7

relied on the opinion of Dr. William Farrell, the State agency psychological consultant at the
reconsideration level, in limiting Plaintiff to simple, routine, repetitive tasks. Unlike the cases
noted above, Dr. Farrell’s opinion contains further restrictions not reflected in the ALJ’s RFC
assessment. (Tr. at 19.) Specifically, Dr. Farrell found that Plaintiff “has some deficits in
sustained concentration, but claimant is able to sustain sufficient attention to compete simple
routine tasks for a 2-hour period at a non-production pace.” (Tr. at 99.) This restriction was
based on Dr. Farrell’s determination that Plaintiff had moderate limitations in maintaining
attention and concentration for extended periods, and moderate limitations in his ability to
perform at a consistent pace without unreasonable rest periods. (Id.) Dr. Farrell ultimately
concluded that Plaintiff is “able to sustain the mental demands of unskilled work in a low
stress, low social, and low production environment.” (Tr. at 100.) In contrast, the ALJ did
not include in the RFC any restriction to a low stress or low production environment, nor was
there any explanation of this omission. By omitting any reference to Plaintiff’s ability to stay
on task from his RFC, despite his step three findings of moderate limitations in concentration,
persistence and pace, and without explanation in his decision or reconciliation of the state
agency determination, the ALJ failed to comply with Mascio. This error merits remand
because consideration of these issues must be undertaken by the ALJ in the first instance, in
order to allow for appropriate judicial review. 4

In light of this determination, the Court need not reach Plaintiff’s other claims regarding the formulation of
the RFC, and those issues can be further addressed as part of the remand. In addition, to the extent that there
may be issues related to the VA disability determination in this case, those issues can be addressed in light of
Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir.2012) (“The assignment of at least some weight to
a VA disability determination reflects the fact that both the VA and Social Security programs serve the same
governmental purpose of providing benefits to persons unable to work because of a serious disability. Both
programs evaluate a claimant's ability to perform full-time work in the national economy on a sustained and
continuing basis; both focus on analyzing a claimant's functional limitations; and both require claimants to
4

8

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand
the matter to the ALJ for proceedings consistent with this Recommendation. To this extent,
Defendant’s Motion for Judgment on the Pleadings [Doc. #10] should be DENIED, and
Plaintiff’s Motion for Judgment on the Pleadings [Doc. #7] should be GRANTED. However,
to the extent that Plaintiff’s motion seeks an immediate award of benefits, it should be
DENIED.
This, the 22nd day of February, 2016.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

present extensive medical documentation in support of their claims. . . . [Therefore,] in making a disability
determination, the SSA must give substantial weight to a VA disability rating, . . . [and] an ALJ may give less
weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is
appropriate.” (internal citations and quotations omitted)).
9