MITCHELL v. COLVIN
Filing
14
Memorandum Opinion and Recommendation of United States Magistrate Judge L. Patrick Auld, signed on 03/01/2016. IT IS RECOMMENDED that the Commissioner's decision finding no disability be vacated, and that the matter be remanded under sent ence four of 42 U.S.C. § 405(g) for further administrative proceedings. Plaintiff's Motion for Judgment on the Pleadings 10 should be granted in part, (i.e., to the extent it requests remand), and Defendant's Motion for Judgment on the Pleadings 12 should be denied. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DOUGLAS BRIAN MITCHELL,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:15CV00299
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff,
Douglas
Brian
Mitchell,
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
claims
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)
Defendant has filed the certified administrative record
(Docket Entry 7 (cited herein as “Tr. __”)) and both parties have
moved for judgment (Docket Entries 10, 12); see also Docket Entries
11 (Plaintiff’s Memorandum), 13 (Defendant’s Memorandum)). For the
reasons that follow, the Court should remand this matter for
further administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI (Tr. 193-205),
alleging disability onset dates of September 30, 2008 (see Tr.
193), and March 1, 2009 (see Tr. 200), respectively.
Upon denial
of
those
applications
initially
(Tr.
74-99,
131-38)
and
on
reconsideration (Tr. 100-30, 143-58), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 159-60).
Prior to the hearing, Plaintiff amended his onset date to March 9,
2011, the date of a consultative mental examination.
32.)
(See Tr. 27,
Plaintiff, his attorney, and a vocational expert (“VE”)
attended the hearing.
(Tr. 28-56.)
The ALJ thereafter ruled that
Plaintiff did not qualify as disabled under the Act.
(Tr. 6-20.)
The Appeals Council denied Plaintiff’s request for review (Tr. 13), 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] meets the insured status requirements of
the [] Act through March 31, 2011.
2.
[Plaintiff] has not engaged in substantial gainful
activity since March 9, 2011, the amended alleged onset
date.
3.
[Plaintiff] has the following severe impairments:
post-traumatic
stress
disorder
(PTSD)/anxiety;
schizophrenia; obsessive-compulsive/personality disorder;
history of polysubstance dependence; hepatitis C; sleep
apnea; obesity; and status post left foot fracture.
. . .
4.
[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.
. . .
2
5.
[Plaintiff] has the residual functional capacity to
perform light work . . ., except he should avoid exposure
to hazardous machinery. [Plaintiff] can perform only
simple, routine, and repetitive tasks in a low-production
occupation, with no complex decision-making, constant
change, or dealing with crises.
He can have only
occasional contact with coworkers and the general public.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [he] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from March 9, 2011, through the
date of this decision.
(Tr.
11-19
(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
regulations
establish
a
1 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
‘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) “[t]he ALJ failed to properly account for Plaintiff’s
ongoing hallucinations and panic attacks in his RFC” (Docket Entry
11 at 5); and
2) “[t]he ALJ inadequately accounted for Plaintiff’s admitted
limitations in concentration, persistence and pace in the RFC” and
failed to weigh the opinion of consultative examiner Dr. Scott T.
Schell (id. at 8).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 13 at 3-20.)
1. Hallucinations and Panic Attacks
In Plaintiff’s first issue on review, he asserts that “[t]he
ALJ
failed
to
properly
account
for
Plaintiff’s
hallucinations and panic attacks in [the] RFC.”
at 5.)
ongoing
(Docket Entry 11
In support of that argument, Plaintiff points to his
testimony that panic attacks caused him to lose his jobs as a
welder and as an assistant manager at Rite Aid, as well as the fact
that he suffered panic attacks both before and during the hearing
before the ALJ.
(Id. (citing Tr. 33-35, 36, 48, 52).)
According
to Plaintiff, “experiencing a panic attack while at work would
force him to leave the work station, and at the very least, take
him
off
task,”
and
“his
experience
8
of
auditory
and
visual
hallucinations would interfere with his ability to stay on task and
perform tasks generally.”
conclusion
that
(Id.)
medication
Plaintiff challenges the ALJ’s
compliance
kept
Plaintiff’s
hallunications and panic attacks under control (id. at 5 (citing
Tr. 15)), and argues “that[,] [al]though medications helped his
symptoms, they did not disappear and he continued to experience
visual and audi[tory] hallucinations as well as panic attacks even
when compliant with medications” (id. at 5-6 (citing Tr. 267, 409,
448, 449, 450-51, 514, 750, 776, 788-89)). Plaintiff’s contentions
do not warrant relief.5
The ALJ in this case discussed in detail the medical evidence
reflecting Plaintiff’s mental health treatment, and noted multiple
instances on which Plaintiff’s worsening symptoms correlated to his
non-compliance with medication and treatment, as well as relapses
in substance abuse. (Tr. 15-17; see also Tr. 446 (documenting that
Plaintiff had been out of mental health system for three years and
lacked medication), 450 (noting Plaintiff without his medication
for two weeks), 452 (reflecting that Plaintiff ran out of his
medicines one week prior as well as Plaintiff’s report that voices
5 Plaintiff additionally argues that the ALJ violated Social Security Ruling 968p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional
Capacity in Initial Claims, 1996 WL 374184 (July 2, 1996) (“SSR 96-8p”), and
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015), by failing to perform a
function-by-function analysis in conjunction with the RFC determination. (See
Docket Entry 11 at 6-7.) However, Plaintiff has not identified any contested
function (e.g., sitting, standing, walking, pushing, pulling, squatting,
crouching, kneeling, crawling, balancing, and reaching) the ALJ neglected to
consider, but rather claims the ALJ inadequately considered Plaintiff’s symptoms
(i.e., hallucinations and panic attacks).
(See id. at 5-8.)
Accordingly,
Plaintiff’s reliance on SSR 96-8p and Mascio misses the mark.
9
and
visions
respond
well
to
medication
and
almost
go
away
completely), 456 (indicating Plaintiff had been out of medication
for
about
a
week),
771
(stating
that
Plaintiff
missed
last
appointment and ran out of medications for two weeks), 693 & 725
(reporting Plaintiff’s use of marijuana and cocaine two days before
inpatient mental health treatment), 776 (recording that Plaintiff
lacked his medication).)
concluded
that
In light of this evidence, the ALJ
Plaintiff’s
“signs
and
symptoms
improved
and
stabilized with medications and therapy, when he was compliant with
treatment,” but noted that Plaintiff “continued to have some
anxiety,
paranoia,
(emphasis added).)
and
problems
handling
stress.”
(Tr.
17
The ALJ then accounted for those remaining
mental symptoms by limiting Plaintiff to simple, routine, and
repetitive tasks, as well as precluding work involving significant
production
demands,
complex
decision-making,
constant
change,
dealing with crises, or more than occasional contact with others.
(Id.)
Plaintiff focuses on the emphasized portion of the ALJ’s
above-described statement as proof that the ALJ did not include any
limitations in the RFC resulting from Plaintiff’s hallucinations
and panic attacks.
(See Docket Entry 11 at 5.)
As an initial
matter, the ALJ clearly acknowledged Plaintiff’s claim that he
suffered from some hallucinations and panic attacks, even when
compliant with his medications and therapy, both in reiterating
10
Plaintiff’s hearing testimony to that effect (see Tr. 14; see also
Tr.
35,
49-50,
51-52)
and
the
treatment
records
documenting
Plaintiff’s subjective reports of same (see Tr. 15-16; see also Tr.
448
(reflecting
medication),
409
continued
(documenting
(but
fewer)
reports
hallucinations while on medication)).
of
hallucinations
panic
attacks
on
and
Significantly, however, the
ALJ ultimately found Plaintiff’s allegations of his symptoms only
partially credible (Tr. 17-18), and Plaintiff has not challenged
the sufficiency of the ALJ’s credibility determination (see Docket
Entry 11 at 5-11). Accordingly, the ALJ has sufficiently explained
the basis for the RFC determination, and did not err by failing to
expressly include additional limitations resulting from Plaintiff’s
hallucinations and panic attacks.6
6 Plaintiff also challenges the ALJ’s findings that Plaintiff “had only mild
limitations in his ability to perform activities of daily living and moderate
limitation in social functioning.”
(Docket Entry 11 at 7.)
Plaintiff’s
challenge fails, however, because “activities of daily living” and “social
functioning” constitute part of the “B criteria” the ALJ considers at step three
of the SEP in determining whether Plaintiff’s mental impairments meet or equal
a listing.
(See Tr. 13 (reflecting ALJ’s statement that “[t]he limitations
identified in the ‘paragraph B’ criteria are not a[n] [RFC] assessment but are
used to rate the severity of mental impairments at steps 2 and 3 of the [SEP]”.)
Although Plaintiff takes issue with the ALJ’s findings with respect to his
abilities to perform daily activities and function socially (see Docket Entry 11
at 7-8), Plaintiff has not argued that his mental impairments meet or equal any
listing (see id. at 5-11) and has therefore not shown how the ALJ’s alleged
errors in these realms of functioning would affect the outcome of this case,
Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]o
principle of administrative law or common sense requires us to remand a case in
quest of a perfect opinion unless there is reason to believe that the remand
might lead to a different result”).
11
2. Opinion of Consultative Examiner Dr. Schell7
According to Plaintiff, although “the ALJ mentioned that Dr.
Schell performed a [consultative examination] with [Plaintiff],
[the ALJ] never discusse[d] and weigh[ed] Dr. Schell’s opinion that
. . . [Plaintiff’s] ability to perform simple repetitive tasks
would be adversely influenced by ongoing symptoms of mixed anxiety
and depression, crying spells, obsessive compulsive disorder and
suspiciousness of the motivation of others.”
(Docket Entry 11 at
10 (internal citation omitted) (citing Tr. 15, 340-41).) Plaintiff
urges the prejudicial nature of this error for two reasons: 1) “Dr.
Schell offered one of the only psychological opinions on record”
(id.), where both state agency consultants lacked Plaintiff’s
medical records and thus found insufficient evidence to make any
determination regarding Plaintiff’s mental impairments (id.; see
also Tr. 80, 94-95, 110, 124-25); and 2) Dr. Schell’s opinion
conflicts with the ALJ’s RFC (Docket Entry 11 at 10 (citing LoveMoore
v.
Colvin,
No.
7:12-CV-104-D,
2013
WL
5350870,
at
*2
(E.D.N.C. Sept. 24, 2013) (unpublished), and Dew ex rel. K.W. v.
Colvin, No. 4:12-CV-129-D, 2013 WL 4523617, at *6 (E.D.N.C. Aug.
27, 2013) (unpublished))).
Plaintiff’s contentions have merit and
warrant remand.
7 Because the portion of Plaintiff’s second assigment of error regarding Dr.
Schell warrants remand (for reasons further explained in the discussion above
that follows), consideration of Plaintiff’s second issue on review will focus on
that issue.
12
Under Social Security Administration regulations and rulings,
an ALJ must evaluate all medical source opinions, as well as
expressly indicate and explain the weight he or she affords to such
opinions. See 20 C.F.R. §§ 404.1527(c), 416.927(c) (“Regardless of
its source, [the ALJ] will evaluate every medical opinion [he or
she] receive[s]” and, where an opinion does not warrant controlling
weight, the ALJ must “consider all of the . . . factors [in 20
C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6)] in deciding the
weight [to] give to any medical opinion.”); Social Security Ruling
96-5p, Policy Interpretation Ruling Titles II and XVI: Medical
Source Opinions on Issues Reserved to the Commissioner, 1996 WL
374183, at *5 (July 2, 1996) (“SSR 96-5p”) (noting that ALJs “must
weigh medical source statements . . . [and] provid[e] appropriate
explanations for accepting or rejecting such opinions”); Social
Security Ruling 96-8p, Policy Interpretation Ruling Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims, 1996
WL 374184, at *7 (July 2, 1996) (“SSR 96-8p”) (“The RFC assessment
must always consider and address medical source opinions.
If the
RFC assessment conflicts with an opinion from a medical source, the
[ALJ] must explain why the opinion was not adopted.”); see also
Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (holding
that reviewing court generally “cannot determine if findings are
supported by substantial evidence unless the [ALJ] explicitly
indicates the weight given to all of the relevant evidence”).
13
Dr. Schell performed a mental consultative examination of
Plaintiff on March 9, 2011 (see Tr. 338-41), and noted a tremor in
Plaintiff’s legs and hands, as well as frequent fidgeting of his
hands (see Tr. 338, 339).
Dr. Schell described Plaintiff’s affect
as reflecting “underlying tension,” and did not feel Plaintiff
exaggerated his difficulties.
(Tr. 339.)
Ultimately, Dr. Schell
diagnosed Plaintiff with “[p]osttraumatic stress disorder, chronic,
combat-related[,] [o]bsessive-complulsive disorder[,] [g]eneralized
anxiety
disorder[,]
[a]lcohol
abuse,
in
remission[,]
and
personality disorder, not otherwise specified,” and assessed Global
Assessment of Functioning (“GAF”) scores of “64 within the past
year and 60 at present.”
(Tr. 340.)8
As a result of these mental
impairments, Dr. Schell opined that Plaintiff’s “ability to perform
simple[,] repetitive task[s] [wa]s adversely influenced by ongoing
symptoms of mixed anxiety and depression, crying spells, obsessivecompulsive
others.”
disorder,
and
suspiciousness
of
the
motivation
of
(Tr. 341.)
8 The GAF is a numeric scale from 0 to 100 representing a clinician’s judgment
of an individual’s social, occupational and school functioning “on a hypothetical
continuum of mental health-illness.” American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) (“DSM-IV-R”).
A GAF of 51 to 60 indicates “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with
peers or coworkers).”
DSM-IV-R 34 (bold font omitted).
A GAF of 61 to 70
reflects “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some
difficulty in social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally functioning pretty well,
has some meaningful interpersonal relationships.” Id. (bold font omitted). A
new edition of the leading treatise discontinued use of the GAF. See American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 16 (5th
ed. 2013).
14
Here, the ALJ discussed Dr. Schell’s evaluation and findings
as follows:
At a March 2011 psychological consultative examination
with Scott T. Schell, M.D., [Plaintiff] reported symptoms
of
sleep
pattern
disturbance,
paranoia,
vague
hallucinations, obsessive thinking, crying spells,
hypervigilance, [and] decreased memory and concentration.
He indicated a history of mixed substance abuse but said
he had been sober since 2008.
Upon examination,
[Plaintiff] demonstrated underlying tension.
He
frequently fidgeted his hands but did not show impulse
control problems. [Plaintiff] was able to form a simple
relationship with Dr. Schell and sustain concentration.
Judgment was normal. Global Assessment of Functioning
(GAF) was 60, indicating moderate difficulties in
functioning.
(Tr.
15
(internal
omitted).)
citations
to
the
administrative
transcript
This discussion does not address Dr. Schell’s opinions
regarding the impact of Plaintiff’s mental impairments on his
mental work-related
subsequently
abilities.
assigned
(See
“little
id.)
weight”
to
Further,
the
the
ALJ
opinions
of
consultative medical examiner Dr. Alan Cohen, “limited weight” to
the opinions of state agency physician Dakota Cox, M.D., and
“little weight” to the opinions of state agency psychological
consultants, Michael Hammons, Ph.D., and Daniel Nelson, Psy. D.
(Tr. 17), but neglected to indicate if he accepted or rejected Dr.
Schell’s opinions or to assign a weight to those opinions (see Tr.
17-18).
The ALJ’s failure to do so violates SSR 96-5p, which
provides that ALJs “must weigh medical source statements . . .
[and] provid[e] appropriate explanations for accepting or rejecting
such opinions.”
SSR 96-5p, 1996 WL 374183, at *5 (emphasis
15
added)); see also Gordon, 725 F.2d at 235 (holding that reviewing
court generally “cannot determine if findings are supported by
substantial evidence unless the [ALJ] explicitly indicates the
weight given to all of the relevant evidence” (emphasis added)).9
Finally, the ALJ’s failure to assign a weight to Dr. Schell’s
opinions does not constitute harmless error.
Although an ALJ’s
failure to weigh a medical source’s opinion can amount to harmless
error, such as where the plaintiff otherwise fails to show how a
proper weighing of the opinion would have altered his or her RFC,
see, e.g., Tanner v. Colvin, 602 F. App'x 95, 100–01 (4th Cir.
2015), here, Dr. Schell’s opinion that Plaintiff’s “ability to
perform simple[,] repetitive task[s] is adversely influenced by”
his mental symptoms (Tr. 341 (emphasis added)) calls into question
the
ALJ’s
determination
that
Plaintiff
remained
capable
of
performing simple, routine, and repetitive tasks (Tr. 13). The ALJ
could perhaps explain that he accommodated Dr. Schell’s opinion
that Plaintiff’s mental symptoms adversely influence his ability to
perform
simple,
repetitive
tasks
by
including
the
additional
9 The Commissioner’s argument that, due Dr. Schell’s use of the phrase “adversely
influenced by,” “it is not in the first instance clear that Dr. Schell intended
to proffer an opinion regarding Plaintiff’s functional capacitites” (see Docket
Entry 13 at 19 (citing Tr. 341)) lacks merit.
Dr. Schell’s consultative
examination report provides information on the nature and severity of Plaintiff’s
impairments (see Tr. 340), and the impact of those impairments on Plaintiff’s
ability to perform mental, work-related activities (see Tr. 341). As such, Dr.
Schell’s findings and conclusions constitute “medical opinions” within the
meaning of the regulations.
See 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)
(“Medical opinions are statements . . . that reflect judgments about the nature
and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite your impairment(s), and your physical
or mental restrictions.”).
16
restrictions in the RFC that Plaintiff not perform work involving
significant production demands, complex decision-making, constant
change, dealing with crises, or more than occasional contact with
others.
(See Tr. 13.)
However, the ALJ must provide such an
explanation in the first instance.
See Echols v. Colvin, No.
1:13CV271,
(M.D.N.C.
2015
WL
4527046,
at
*8
July
27,
2015)
(unpublished) (remanding due to ALJ’s failure to weigh treating
source’s opinion and noting, “[a]lthough rational reasons may exist
for the ALJ to assign substantially less weight to [the treating
source’s]
opinion,
the
ALJ
must
explain
his
reasoning”),
recommendation adopted, slip op. (M.D.N.C. Aug. 18, 2015).
To the
extent the ALJ finds Dr. Schell’s opinion that Plaintiff’s workrelated abilities are “adversely influenced” by his mental symptoms
(Tr.
341)
too
vague
to
translate
into
mental
functional
restrictions, the ALJ can recontact Dr. Schell for clarification of
his opinions, see 20 C.F.R. §§ 404.1519p(b), 416.919p(b), or call
on the services of a medical expert at the hearing, see 20 C.F.R.
§§ 404.1512(b)(8), 404.1527(e)(2)(iii), 416.912(b)(8), 416.927(e)
(2)(iii).
In sum, the ALJ’s failure to weigh Dr. Schell’s opinions
constitutes reversible error.
remand,
and
the
possibility
In light of the recommendation to
that
the
ALJ
will
reformulate
Plaintiff’s RFC (or, at least provide a further explanation for the
RFC), no need exists to address Plaintiff’s remaining issue that
17
the ALJ failed to properly account for Plaintiff’s limitations in
concentration, persistence, or pace in the RFC. However, after the
ALJ’s decision in this case, the Fourth Circuit decided Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015), which directly addressed the
relationship
between
a
moderate
limitation
in
concentration,
persistence, or pace and the inclusion of simple, routine, and
repetitive tasks and/or unskilled work in the RFC and hypothetical
question.
Id. at 638.
Specifically, the Fourth Circuit held as
follows:
[W]e agree with other circuits that an ALJ does not
account “for a claimant’s limitations in concentration,
persistence, and pace by restricting the hypothetical
question to simple, routine tasks or unskilled work.”
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180
(11th Cir. 2011) (joining the Third, Seventh, and Eighth
Circuits). As Mascio points out, the ability to perform
simple tasks differs from the ability to stay on task.
Only the latter limitation would account for a claimant’s
limitation in concentration, persistence, or pace.
Perhaps the ALJ can explain why Mascio’s moderate
limitation in concentration, persistence, or pace at step
three does not translate into a limitation in Mascio’s
[RFC].
For example, the ALJ may find that the
concentration, persistence, or pace limitation does not
affect Mascio’s ability to work, in which case it would
have been appropriate to exclude it from the hypothetical
question tendered to the [VE]. See id. at 1181. But
because the ALJ here gave no explanation, a remand is in
order.
Mascio, 780 F.3d at 638.
Given that intervening decision, upon remand, should the ALJ
again
find
that
Plaintiff
has
a
moderate
limitation
in
concentration, persistence, or pace, the ALJ must explain how he or
18
she accounted for such a limitation in both the RFC and the
hypothetical question(s), if any, to the VE.
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, including an explanation of the weight
afforded to the opinions of Dr. Schell and, if credited, an
explanation of how the RFC (as re-affirmed or modified) accounts
for these opinions.
To the extent the ALJ deems Dr. Schell’s
opinions about the adverse impact of Plaintiff’s mental impairments
on his ability to perform any work activities too ambiguous, the
ALJ may seek clarification or additional medical opinion evidence.
As a result, Plaintiff’s Motion for Judgment on the Pleadings
(Docket Entry 10) should be granted in part (i.e., to the extent it
requests remand), and Defendant’s Motion for Judgment on the
Pleadings (Docket Entry 12) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 1, 2016
19
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