TYLER V. COLVIN
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION, signed by MAG/JUDGE JOE L. WEBSTER on 2/29/2016. 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). FURTHER RECOMMENDED that the Commissioner be directed to remand the matter to the ALJ for further proceedings consistent with this order. Consequently, to this extent, FURTHER RECOMMENDED that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be DENIED, and Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be GRANTED to the extent remand is requested. FURTHER RECOMMENDED that, to the extent that Plaintiff seeks an immediate award of benefits, his request be DENIED. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DORIAN TYLER,
Plaintiff,
v
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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)
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)
l:15CY225
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Dorian D. Tyier, brought this action to obtain teview of a ftnal decision of the
Commissioner of Social Security denying his claim for social secutity disability benefits. The
Court has befote
it the cettified administtative tecord
and cross-motions for judgment. For
the teasons set forth herein, the Court recommends that Defendant's motion for Judgment
on the Pleadings Q)ocket Entry 14) be denied, Plaintiffs motion fot Judgment on the
Pleadings (Docket
Entry 11) be gtanted, and that this matter be remanded to
the
Commissioner.
I.
PROCEDURAL HISTORY
Plaintiff filed fot Child's Supplemental Security Income Benefits on August 22,1.999.
(Ir. 90-9t.¡t It was determined that Plaintiff
On May
was disabled on November 2,1,999. (Tr. 55.)
1,, 2008, the Social Security Administration determined
Plaintiff was no longer
t Unless otherwise noted,
transcrþt citations refer to the administrative recotd in this case which
was filed with Defendant's Answet. (Docket Enry 7.)
disabled, and Plaintiff tequested a headng before an Administative Law Judge
(AL). (It.
64-65,83-89). After the hearing, the ALJ issued an unfavotable decision orl November 20,
2009.
[r.
298-306.) Plaintiff fìled a request fot teview and on Decembet 22,2010, the
Appeals Council granted his request and remanded his case fot a new hearing. (Tr. 309-10.)
On November 28,201.1, Plaintiff appeated again befoÍe the A.LJ and he issued ânother
unfavorable decision on February I0, 201,2.
Çt
314-25.) On April 23, 20'13, the Appeals
Council gtanted Plaintiffs request for review and temanded his case fot a nev¡ hearing.
326-29). On January 30, 20L4, a second ALJ issued another unfavotable decision.
(fr.
Çr. 28-
40.) Subsequently, the Appeals Council denied Plaintifls request for review. (Tt. 7-10.) The
Appeals Council's denial rendered the ALJ's decision the final administrative action of the
Commissioner in Plaintiffs case.
II. STANDARD FOR REVIEW
The scope of judicial teview of the Commissioner's final decision is specific and
riarrow. Srnith
u.
Schweiker,795F.2d343,345 (4th Cit. 1986). Reviewis limited to detetmining
if thete is substantial evidence in the tecord to support the Commissioner's decision. 42 U.S.C.
$ a05G); Hunteru.
Sulliuan,gg3F.2d31,,34 (4th Cit. 1,992);Hay
u.
Salliuan,g}7 F.2d1453,1456
(4th Cir. 1990). In reviewing for substan:dral evidence, the Court does not re-weigh conflicting
evidence, make credibility detetminations,
or
substitute
its judgment for that of
the
Commissioner. Craigu. Chater,76F.3d 585,589 (4th Cit. 1996). The issue before the Court,
thetefore, is not whethet Plaintiff is disabled, but whether the Commissionet's finding that he
2
is not disabled is supported by substanúal evidence and was teached based upon a correct
application of the relevant la:xt. Id.
III. THE COMMISSIONER'S DECISION
The ALJ followed the well-established five-step sequential analysis to ascertâin whethet
the claimant is disabled, which is set forth in 20 C.F.R.
Soc.
Sec.
S
404.1520.
See
Albright u. Comru'r of
Admin.,174 F.3d 473,475 n.2 (4th Cir. 1,999). The ALJ determined at step one that
Plaintiff attained age 18 and was no longet disabled as of lúay 2, 2008, based on
redetermination of disability under the
des fot adults who file new applications. (It.
a
30.)
The ALJ next found at step two that Plainuffs single severe impaitment was bordedine
intelligence. Qd.) At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments listed in, or medically equal to, one listed in Appendix
1. (Ir.
34.) The ALJ then determined that Plaintiff retained the residual functional capacity ("RFC")
to perform a full tange of work at all exertional levels, but his nonexertional limitations
included unskilled work with no reading or writing required.
(It. 36.) At the foutth step, the
ALJ determined that Plaintiff had no past relevant work.
(It. 38.)
A,t step five, the ALJ
detetmined that there were jobs which Plaintiff could perform consistent with his RFC, age,
education, and wotk experience. (Id.)
IV. DISCUSSION
In pertinent patt, Plaintiff contends that the ALJ ered by failing to incorporate in his
RFC the moderate limitations in concentration, persistence, ot pace that wete found in step
three
of the sequential evaluation ptocess. (Docket Entry
a
J
1,2
at 8-9.) To the contrarf,
Defendant contends that the ,{LJ accounted for Plaintiffs limitations
persistence , on pace by excluding
in
concentration,
Plaintiff fuom carrying out complex tasks. pocket Entry
15
at1,9.) For the following reasons, the Cout agrees with Plaintiff that the ,{LJ failed to account
for his moderate limitations in concenttation, persistence, oÍ pace in his RFC.2
At
step three
of the sequential evaluation ptocess, the ALJ concluded that Plaintiff
suffered from moderate limitations in concentration, persistence, or pace.
^ppaLrent
(It. 35) In an
effort to account for these moderate limitations, the A,LJ's RFC finding limited
Plaintiff to unskilled work, with no reading ot writing.
limitations
in his
hypothetrcal
(r.
at 36.) The ALJ also put these
to the Vocational Expett ("VE") who concluded that
an
individual with these limitations could perform work as a picking table worket. (Tr. 39-40.)
The ALJ adopted these findings at step five. (Tt. at 38.) Nonetheless, these limitations did
not account for Plaintiffs moderate difficulties in concentration, persistence, or pâce. As
explained below, temand is watranted in this matter.
"At
step three of the sequential evaluation, the ALJ determines whether a claimant's
impairments meet ot medically equal any
of the impaitments listed in 20 C.F.R. Part 404,
Subpart P, Appendix L. Listings 12.00 et. rcq., pertain to mental impairments." 20 C.F'.R. Pt.
404, Subpt. P, App. 1 $ 12.00; Hodge u. Cornm'r, Soc. Sec. Admin., No. CV SAG-14-361'9,201'5
lfl,
5813999, at x1 (D. Md. Sept. 29,201,5). The listing "consists of: (1) a brief statement
zPIatnaff also contends that "[t]he ALJ's Listing analysis is not based on substantial evidence
because Mr. Tyler meets Listing 12.05C. pocket Ertry 1,2 at2.) The Court declines consider¿tion
of theadditionalissues raiseatthistime. Hancocku.Barnhart,206F. S.tpp.2d757,763-764,n.3
flX/.D. Ya.2002) (reasoning that on lemand, the ALJ's ptiot decision has no preclusive effect, as it is
vacated and the new headng is conducted de novo).
4
descdbing its subject disordet; Q) 'paragraph
A
criteria,' which consists of a set of medical
findings; and (3) 'pangraphB criteria,'which consists of a set of impairment-reiated functional
limitations." 20 C.F.R. Part 404, Subpan P, ,{.ppendix 1. Listings 12.00(4.). Both
paragraph
A cdteria and the
par.agraph
the
B cdteria must be satisfied fot the ALJ to detetmine
that the claimant meets the listed rmparment. Id.
"Pangnph B consists of four btoad functional àre s'. (1) activities of daily living;
(2)
social functioning; (3) concenttation, persistence,
or pace; and (4) episodes of
decompensation." Id.512.00(C);Martin
Adnin.,No. CV SAG-15-335,2015
WI-7295593,at*2
u. Comm'r, Sot. Set.
P. Md. Nov. 18,201,5). The AIJ uses â "special technique" to detetmine
the claimant's degtee of ümitation in each area, based on the extent to which the claimant's
impairment "interferes with fthe claimant's] ability to function independently, appropriately,
effectively, and on a sustained basis." 20 C.F.R.
degree of limitation
1/.
5$5$
in the first three areas
S
404.1520a(c)(2), The ALJ rates a claimant's
as either: none,
mild, moderate, matked, or extreme.
404.1520a(c)(4). "In order to satisfy patagraphB, a claímant must exhibit either matked
limitations in two of the frst three ateas, or marked limitation in one of the
ftst thtee areas
with tepeated episodes of decompensation." Hodgq201,5 VlL 581.3999, at*2 (citaaons and
quotations omitted); Mørtin,2015 WL 7295593,
at*2. "A
marked limitation may atise when
sevetal activities ot functions ate impaited, ot even when only one is impaired, as long as the
degree
of limitation is such
as to
interfere seriously wrth the ability to function independently,
apptopriately, effectively, and on a sustained basis." 20 C.F.R. Pt. 404, Subpt. P, App. 1
12.00(c).
5
$
Pertinent to the issues in the present case, "[t]he functional atea
persistence,
of 'concenÚation,
or pace refers to the ability to sustain focused attention and concentration
sufficiently long to permit the timely and appropriate completion of tasks commonly found in
work settings."' 20 C.F.R. Part 404, Subpat P, Appendix
1.
Listings 12.00(C)(3); Hodgq2015
WL 5813999, at*2. "V-]imitations in concentation, persistence, and pace found at step three
must be accounted for in the RFC assessment." Ta/or u. Coluin, No. 1:14CV629,2015
\fL
4726906, at *6 (À,{.D.N.C.,{.ug. 10, 201,5).
The Foutth Circuit recently issued a published decision, Ma¡cio u. Coluin,780 F.3d 632
(4th Cir. 201,5), that specifically tesolves the issue Plaintiff taises. In Mascio, the Fourth Citcuit
ordered
a
remand because the hypothetical the ALJ posed to the
RFC assess¡¡s¡¡-did not include
^ny
VE-and
the coresponding
meîtlrl ümitations other than unskilled work,3 despite
the fact that, at step three of the sequential evaluation, the ALJ determined that the claimant
had moderate diffÌculties in maintaining concentration, persistence, or pace. Id. at 637 -38.
The Fourth Circuit specifically held that it "agteefs] with othet citcuits that an ALJ does not
account for a claimant's limitations in concentration, persistence, and pace by restricting the
hypothetrcal question to simple, routine tasks or unskilled work." Id. at 638 (citation omitted).
The Fourth Circuit emphasized the distinction betrveen the ability to perform simple tasks and
the ability to stay on task, stating that "[o]nly the latter limitation would account for
a
'The hypothetical the A,LJ posed to the VE, in Ma¡do did not actually limit the claimant to unskilled
work, and thus did not match the ALJ's RFC assessment. However, the VE indicated that all of the
jobs cited in response to the hypothetical involved "unskilled work" such that, in effect, the
hypothetical matched the ALJ's RFC assessment. Mascio,780 F.3d at 637-38.
6
claimant's limitation in concentration, persistence , or pace." 1/. Although the Foutth Circuit
noted that the ALJ's error might have been cured by an explanation as to why the claimant's
moderate difficulties in concentration, petsistence, or pace did not translate into a limitation
in the claimant's RFC, absent the explanatlon, temand was necessary. Id.
Plaintiff correctly asserts that the ALJ did not follow these procedures. "The ALJ failed
to âccount for
f^ctot when detetmining fPlaintiffs] [RtrC]." Id. at 638. The ALJ
a relevalnt
failed to consider Plaintiffs mental limitations despite fìnding at step three that Plaintiff had
moderate difficulties in maintaining his concentration, persistence, or pace. (Tr. 34-35.)
!íith
respect to his I{FC analysis of PlaintifPs nonexertional limitations, the ALJ merely states that
Plaintiff should be limited to "unskilled" wotk "with no teading or wdting." (Tr.
Consequently, this case
is
36.)
somewhat distinct from Mascio, which did not include these
additional limitations. The question then becomes whethet these distinctions are significant
such that these additional limitations watrant a different outcome than Mascio.
The additional limitations in Plaintiffs RFC limiting him to work that does not involve
reading or wdting fails to account for his moderate limitations in concenttation, petsistence,
or pace. Limits pertaining to reading or writing do not account for Plaintiffs inability "to
to permit the timely
and
of tasks commonly found in work settings." 20 C.F.R. Part
404,
sustain focused attention and concentration sufficiently long
appropriate completion
Subpart P, Appendix 1. Listings 12.00(C)Q); Mavio, 780 F.3d
^t
638 ("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 concentation, persisterlce, or pace.").
7
Defendant contends that the ALJ
did not ignore Plaintiffls
concentration, persistence, or pâce. (Docket
,A,LJ's
E.rry
1,5
moderate limitation in
at1,9.) Defendant argues that in the
RFC analysis he stated that Plaintiffs bordetline intelligence "precluded
the
performance of complex tasks or othet higher cognitive functioning." Cft. 38.) Defendant
further âsserts that "the ,\LJ noted that there was no evidence of significant limitations on
Plaintiffs fto] ability understand,
Ç
try out, and temembet simple insttuctions, make simple
work-related decisions, deal with changes in a routine setting, and respond appropdately to
supervisors, co-workers, and usual work settings." (Docket Etttry 1,5 at 19) (Citing Tr. 38.)
However, the r{,LJ's analysis is based on limitations with respect to the complexity of the work,
and not based on Plaintiffs ability to stay on task. Marcio,780 þ-.3d at 638; Straaghn u. Coluin,
No. 1:14CV200,
201,5
WI-
441.4275, at x4 n,5 (À4.D.N.C. July
20, 201,5) (reasoning the ALJ
"did not address how the RFC's limitation to 'simple, routine' tasks addtessed his fìnding of
'mild limitations with concentration, petsistence ot pace.' Thus,
it
appeats that the A.LJ's
decision may also run afoul of the recent decision in Mavio") (citation and quotation omitted);
Salmon u. Coluiru.,
No. 1:12CV1,209,2015 ìøL
1,526020, at x3 (44.D.N.C.
Apr.2,2015) (finding
that "the Fourth Circuit made clear that an ALJ does not account for a claimant's limitations
in concentration,
persistence, and pace by restdcting the hypothetical question
to
simple,
routine, tashs or unskilled work.") (citations and quotations omitted). Thus, the RFC did not
account for Plaintiffs moderate limitations in concenttation, petsistence, or pace.
Moreover, the A{ did not explain why he did not âccount for Plaintiffls limitations in
concentration, persistence, or pace in his RFC.
8
"fl]h. Fouth
Circuit noted the possibility
that an ÄLJ could offer an explanation regatding why a claimant's moderate limitation in
or
concentration, persistence,
pace, àt step three did
not ttanslate into a limitation in the
claimant's RFC assessment, such that the apparent discrepancy would not constitute teversible
effor." Mavio,780 F.3d at
638;
Martin
u.
Clmm'r,
Soc. Sec.
Admin,, No. CV SAG-15-33 5, 2015
WL7295593, at *3 (D. Md. Nov. 1"8,201,5); Powellu. Clmm'r,
1,4-3233,2015 !ØL 4715280,
Soc. Sec.
Admin., No. CIV. SAG-
Md. Aug. 6,201,5) (reasoning that "modetate diffìculties
^tx2 Q.
in concentration, persistence, or pâce now ttiggers a heightened degree of explanation that
tequires the revierving court to determine whether an ALJ has adequately accounted for those
difficulties in assessing the claimant's RFC"). "The key is that the reviewing Court must be
able to discern the rationale
under\'ing the âpparent disctepancy" between the findings at step
three and the RFC. Powe//,2015 \&T. 4715280, at*2.
Here, the Court is left to guess why Plaintiff
s
limitation to unskilled work is suffìcient
to addtess his moderate limitations in concentration, persistence, or pace. At step three the
ALJ states that he had given some weight to the opinions of State agency psychological
consultants Dr. Glover and Dr. Edmunds fìnding that Plaintiff had modetate difficulties in
maintaining concentfation, persistence, or pace.
flr. 3a.) Later. in his step three analysis the
ÂLJ states that he "concurfred] with Dr. Edmunds' fìnding that the claimant has modetate
difficulties" in concentration persistence ot pace. (Tr. 35.) T'he ALJ acknorvledged Dr. Btitt's
opinion that PlaintifPs "ability to maintain concentration, persistence, and pace was such that
he was verT attentive and generalll' performance would be commensurate with his IQ Level."
Qd.) Next, as discussed above, the ALJ only limited Plaintiff to "unskilled" work "r.vith no
9
reading or writing required."
(Ir. 36.) In his RF-C evaluation,
the ALJ discusses Plaintiffs
testimony that he stuggled rvith moving at a fast p^ce at wotk
in the past. (1'll. 36-37.)
Plaintiff also testified that his body would not let him move or think the rvay othet people do.
Çr. 37.) Subsequently, the ALJ found that Plaintiffs "statements concerning the intensity,
persistence and limiting effects
of þis] symptoms [were] not entirely ctedible. , . :' (ld.)
Next, the AIJ only gives some weight to the findings of the state âgency psychological
consultants. (Id.) The
AIJ
states that
Dr. Glover found that Plaintiffs functional abilities
including "getting along with coworkers or peers without distracting them . . . and carrying
out velT short and simple insrructions, were not significantly limited." (Id.) The ALJ also
noted that Dr. Edmundsa found that Plaintiff had moderate limitat-ions in specific functional
abilities such as maintaining attention and concentrating
fot
extended periods
of time but
"most of his functional abilities such [as] understandinÉ;, remembering, and carcyins out very
short and simple instructions were not significantly limited." Qd.) LastJI, the ALJ gives the
most weight to the opinion of Dt,
Britt. (Tr. 38.) Howevet,
the ALJ only discusses
findings regarding the degree of difficulty of the tasks that Plaintiff is able to
f)r. Bdtt's
do. Qd.) Tbe
ALJ does not discuss Dr. Britt's findings concerning concentration, persistence, and pace.
Moreover, there is no discussion concerning how the RFC addtesses Plaintiffs limitation in
concentration, persistence, or pace, nor did the ALJ explain how the limitations do not need
tobeaccountedforintheRFC. TriciaBolet,u. Conm'rofSoc.Sec.Adnin.,No. 1:14CY762,2016
The ALJ refers to a "Dr Edwards" at least twice in his decision. The Court âssumes that the ALJ
is referring to Dr. GloriaJ. Edmunds because the ALJ cites Exhibit 18F which is Dr. Edmunds'
+
opinion. (It. 280.)
10
WL
614708, at x6 (14.D.N.C. Feb. 1,6,201.6) (concluding that "without furthet explanation,
the ALJ's crediting of the state agency consultants' opinions does not provide a logical bridge,
between the ALJ's conclusion that Plaintiff suffered modetate concenration deficits and the
ALJ's decision that Plaintiff could perform simple tasks in the wotk place, without any further
concentration-related restriction") (citations and quotations omitted); Gan:ia u. Coluin, No.
5:14-CV-00842-FL,201,6 WL 3198ó0, at *4 @,.D.N.C. Jan. 4,2016) report and renrumendation
adopted,
No. 5:14-CY-842-trL,
because after the
201,6
WI-
31.1,280
(E.D.N.C. Jan. 25,2016) (remanding the
case
ALJ found that the claimant had moderate difficulties in concentration,
persistence, or pace he did not âccount fot the limitation in the RFC, he failed to explain how
the RFC determination reflected the claimants limitations in concentration, persistence, and
pace, or why moderate limitations
claimants ability to
in concentration, petsistence, and pace did not impact the
worþ.
In sum, on remand the Commissioner should conduct a proper analysis of Plaintiffs
limitations in concentration, petsistence, or pace in light of the ptinciples atticulated in Mascio.
The Court expresses no opinion regarding whether Plaintiff is ultimately disabled undet the
,{.ct and the Court declines consideration of the additional issues taised at this ttme. Hancock,
206 tr. Srrpp. 2d at763-764, n.3 (reasoning that on remand, the ALJ's prior decision has no
preclusive effect, as it is vacated and the new hearing is conducted de novo).
V. CONCLUSION
IT IS THEREFORE
RECOMMENDED that the Commissioner's decision
finding no disability be REVERSED, and that the matter be REMANDED
11
to
the
Commissioner undet sentence
four of 42 U.S.C. $ a05(g).
RECOMMENDED that the Commissioner
IT IS FURTHER
be directed to remand the matter to the ALJ
fot
to this extent, IT
IS
further proceedings consistent with this order. Consequently,
FURTHER RECOMMENDED that Defendant's Motion fot Judgment on the Pleadings
pocket Errtty 14) be DENIBD, and Plainuffs Motion for Judgment on the Pleadings
(Docket E.rtry 11) be GRANTED to the extent remand is requested.
RECOMMENDBD that, to the extent that Plaintiff
his tequest be
IT IS FURTHER
seeks an immediate award
DENIED.
This 29th day of Febnary,201.6
ter
United States Magisüate Judge
J
T2
of benefits,
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