MARSH v. COLVIN

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 7/26/2016; that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED to the Commissi oner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for further administrative action as set out above. To this extent, Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 9 ) should be GRANTED and Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) should be DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RODNEY H. MARSH,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,

v
CAROLYN Iø. COLVIN,
Acting Commissionet of Social
Security Administration,
Defendant.

1:15CV353

MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rodney H. Marsh, brought this action to obtain judicial review of a fina|
decision of the Commissionet of Social Secutity denying his claims for a period of disability,
disabiliry insurance benefits ("DIB") and Supplemental Secudty Income ("SSI") under Titles

II

and

XVI of the Social Secudty Act ("the Act"). The Court

has before

it

the cenifîed

administrative tecotd and cross-motions for judgment. For the reasons set forth below, the

Court recommends that Defendant's motion (Docket Entty 12) be denied and Plaintiffs

motion (Docket E.,tty 9) be gtanted, and that this matter be temanded for further
administrative action as set forth herein.

I.
In Febtuary

201,0,

Plaintiff filed an application for DIB and SSI alleging a disability

onser date of July 13, 2006.

1

PROCEDURAL HISTORY

Qr. 330-33;334-37 .)1 Plaintiffs claims were denied initially and

Transcrþt citations tefer to the administnttve record which was filed with Defendant's Answer.
pocket Entry 7.)

upon reconsideration. Çr.215-1,9;222-29.) Plaintiff thereafter requested a headng before an

Administrative LawJudge
86-1,1,6.)
207

.)

("ALJ'). (Tt. 231,-32.) A hearing

was held on April 25,2012.

Çt

ALJ Emanuel C. Edwards issued an unfavorable decisiorl onJune 1, 201,2. Qt1,97-

The Âppeals Council gtanted Plaintiffs request for teview of the ALJ's decision, and

thereafter remanded the matter for a new hearing to address Plaintiffs mental limitations.

212-14.) On Septemlser 1.7,201,3, a second hearing

62-81) was held befote

AfJ Joseph

Qr. 43-56.) This decision

became the

Çt.

Pachnowski who also issued an unfavotable decision.

fìnal administtative decision aftet the Appeals Council declined teview.
has exhausted

all

flt.

avallable administtative temedies, and this case

(fr. 1-13.) Plaintiff

is now ripe fot review

pursuant to 42 U.S.C. $ a05(g).

II.

STANDARD OF REVIEW

The Commissioner held that Plaintiff was not under a disability within the meaning of
the

Acl

Under 42 U.S.C. $ 405(9), the scope of judicial review of the Commissioner's fìnal

decision is specific and nartow. Srnith u. Schweiker,795F.2d343,345 (4th Cfu. 198ó). This
Court's review of that decision is limited to determining whethet thete is substantial evidence

in the tecord to support the Commissioner's decision. 42U.5.C. $ a05(g); Hanteru.

Sulliuan,

993 F.2d 31, 34 (4th Cir. 1,992); Hals u. Salliuan, 907 F.2d 1453, 1456 (4th Cit. 1990).
"Substantial evidence is 'such televant evidence as a reasonable mind might accept as adequate

to support

(1971)).

a

conclusioÍ1."' H/./nter,993F.2dat34 (citing Nchardson

"[t]

u. Perales,4O2

U.S. 389,401.

'consists of more than a mere scintilla of evidence but may be somewhat less

than a prepondera;trce."' 1/. (quoting Laws u. Celebre77e, 368 F.2d 640, 642 (4th Cir. 1,966)).

The denial of benefits will be reversed only if no reasoriable mind could accept the tecord

2

as

adequate

to support the determination.

Kichardson,402 U.S.

at 401,. The issue before the

Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's fìnding
that Plaintiff is not disabled is supported by substantial evidence and was teached based upon

acorrectapplicationoftherelevantlaw. Cofrnanu.Bowen,829F.2d514,51.7 (4thCir.

1987).

Thus, "faf claimant for disability benefits bears the burden of ptoving a disability," Hall
u.

Harris,658 F.2d 260,264 (4th Cir. 1981), and in this context, "disability" means the

"'inability to engage in any substantial gainful activity by teason of any medically determinable
physical ot mental impaitment which can be expected to result in death or which has lasted ot
can be expected

to last fot

U.S.C. S 423(dX1XÐ).
A.dministtation

has

a continuous

"To

period of not less than 12 monthsl.f"' Id. (quoting 42

rcgulanze

promulgated

the adjudicative process, the Social Secutity

. . . detailed tegulations

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 conditton."

Id.

"These regulations

establish a 'sequential evaluatton process' to detetmine 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., cunettly working; and (2) must have
a 'severe' impairment that (3) meets or exceeds the 'listings' of specified impairments, or is
otherwise incapacitattng to the extent that the claimantdoes not possess the residual functional
capacity ("RFC") to (4) perform [the claimant's] past work or (5) any other.work." Albright
Cornm'r of Soa
see

also

Sec.

u.

Admin.,174F.3d 473,475 n.2 (4th Cit. 1,999) (citing 20 C.F.R. $ 404.1520);

20 C.F.R. S 416.920. The law concerning these fìve steps is well-established.

J

See, e.!.,

Ma¡tro

u.

Apfel,270F.3d171,,177-180 (4th Cit.2001); Hall,658tr.2dat264-65.

III. THE ALJ's DECISION
In his Jantaty 24, 201.3 decision, the ALJ found that Plaintiff was not disabled under
Sections 216(i),223(d), and'1,614(Ð(3XÐ

of the Act. (Tt. 56.) In making this disability

determination, the ALJ found that Plaintiff had not engaged in "substanttal gainful activity"
since his alleged onset date

ofJuly 1.3,2006. Çr. a6.) At step two, the ALJ found that Plaintiff

had the following severe impairments: chronic hip, atm, knee, and ankle pain, status post back

inlury; bilateral foot and hand numbness; migraine headaches; diabetes mellitus; lumbat
degenerative disc disease; hypertension; arthdtis; chronic obstuctive pulmonary disease;
anxiety disorder; affective mood disotdet; and substance abuse disotder. (Id.) At step thtee,
the ALJ found that Plaintiff had no impairment or combination of impairments listed in, or
medically equal to, one of the listed impairments in 20 C.F.R. Pt.404, Subpt. P, App.

1. Gr.

48.) The ALJ then determined that Plaintiff retained the RFC to petfotm light work with the
following limitations

:

[D]r. to back pain and tepoted

numbness in his exttemities, fPlaintiffl can only
occasionally stoop and crouch and frequently but not continuously handle. He
must also avoid concentrated exposute to dust, gases, fumes, and smoke. Due

to symptoms of anxiety, fPlaintiffl is limited to petfotming simple toutine
repetitive tasks.

Gt. 50.) At step four, the ALJ determined that Plaintiff was unable to petfotm
relevant

any past

work. flr. 5a.) At step five, the '{LJ determined that there were jobs which Plaintiff

could perform consistent with his RFC, age, education, and work expedence. (Tr. 55 )

4

IV.

DISCUSSION

Plaintiff raises two issues on appeal. First, Plaintiff argues that the '{.LJ etred in his
consideration of medical opinion evidence. (Docket Entty 10 at 5-8.) Second, Plaintiff argues

that the ALJ erred in inadequately accounting fot Plaintifls moderate limitations in
concenttation, persistence, or pace in Plaintiffs RFC. (Id. at 8-11.) The latter is discussed
below, which the undersigned concludes is gtounds fot temand.

A. Concentration, Persistence, orPace/Application of the Gdds
Plaintiff ârgues that the ALJ's fìndings that Plaintiff be limited to performing simple,

routine, repetitive tasks inadequately accounts

fot

Plaintiff

s

concentration, persistence, or pace. (Id.) Plaintiff relies upon Ma¡cio

modetate limitations in
u.

Coluin,where the Foutth

Circuit held that "an AI-J does not account fot a claimant's limitations in concentration,
persistence, and pace by restricting the hypothetical question

to simple, routine tasks ot

unskilled work." 780 F.3d 632,638 (4th Cir. 201,5) (internal quotations and citations omitted).
The Court further reasoned that "the ability to perform simple tasks differs from the ability to

stay

on task. Only the latter ümitation would account for a claimant's limitation in

concentration, persistence, or pace." Id. The Fourth Circuit also added that

þ]erhaps the ÂLJ can explain why

claimant's] modetate limitation in
concentration, persisteflce, or pace at step three does not ftanslate into a
limitation in [a claimant's] tesidual functional capacity. Fot example, the ALJ
may find that the concentration, persistence, or pace limitation does not affect
[a claimant's] ability to wotk, in which case it would have been appropriate to
exclude it ftom the hypothetical tendered to the vocational expert. But because
the ÂLJ hete gave no explanation, a temand is in otder.
Id. (nternal citation omitted)

5

la

In the present
pace,

case, the

ALJ found that "[w]ith regatd to concentration, persistence, or

the claimant has moderate diffìculties. The claimant indicated . . . that he has difficulty

remembering the words to songs . . . and that he sometimes fotgets to take his medications."

Qr

a9.) The ALJ further stated that Plaintiffs sistet indicated that Plaintiff "follows written

and spoken instuctions

fine." (Id.) "Giving [Plaintiffl the benefit of the doubt,"

the ALJ

found that Plaintiff was "moderately limited in this area of functioning." (Id.) The
Commissioner argues that Masio is distinguishable here as the ALJ specifically and "amply
accounted

for PlaintifÎs modetate limitation in concenration, petsistence, or pace in the

[RFC] by restricting him

to simple, routine, repetitive

psychologists." (Docket Entty

1,3

tasks, as found by the state agency

at 7 (citing Tr. 50)). The two state agency psychologists,

whose opinions were given significant weight by the ALJ, opined that Plaintiff was "capable

of concentrating and persisting with simple routine tepetitive tasks."

Tt.

(See

Tt.

1.36, 171.;

see

also

148.)

The undersigned finds it unnecessaq/ to conduct a teview of the ALJ's decision based
upon Ma¡cio because as Plaintiff argues, the ALJ provided no explanation of why he did not
rely upon the testimony of the vocational expert after finding that Plaintiff had both exertional

and nonexettional limitations.2 (Docket Entty 10 at 10.) The holding in Mascio regatding
concentration, persisterrce, or pace v/as determined in the context of "hypotheticals" presented

to the vocational expert

as

to

a

claimant's ability to work. Here, the ALJ telied upon the Grids

at Step Five and did not adopt the vocational expert's ûndings. Thus, the real undedining

z

In its ctoss-motion for judgment, the Commissioner did not address this pottion of PlaintifPs Masrio

argument,
6

issue hete is whether the ALJ propedy applied the gdds rather than reþing upon the testimony

of the vocational expeÍt. The undersigned recommends remand on this issue as the ALJ's
Step Five analysis does not

At

Step Five,

petmit meaningful judicial teview.

if a claimant cannot retutn to his past televant wotk, the burden shifts to

the Commissioner to show that other jobs exist in significant numbets that Plaintiff could

perfotm. HanÍer, 993 F.2d at 35;

lWilson u. Califano, 617

F.2d 1050, 1053 (4th Cir. 1980).

If

a

claimant has no nonexettional impaitments that prevent him from performing the full r^nge

of work at a given exertional level, the Commissionet may rely solely on the Grids to satis$r
his burden of

proof. Cofman,829 F.2d at51,8;

Gory u. Schweiker,71,2F.2d929,930-31 (4th Cir.

1983). However, "[t]he Grids are dispositive of whether a claimant is disabled only when the
claimant suffers from putely exertional impairments." Ai$rop
1,46

u.

Barnhart,36 Fed. Appx. 145,

(4th Cu.2002). To the extent that nonexetional impairments further limit the range

of

jobs available to the claimant, the Gtids may not be telied upon to demonsttate the availability

of altetnate work activities. Grantu. ïchweiker,699tr.2d1,89,1,92 (4th Cir. 1983). Rather, when

a claimant suffets from both exertional and nonexertional limitations, the Gdds are not
conclusive but may only serve as a guide. Il/alker u. Bowen,889 F.2d 47, 49 (4th Cir. 1989)

(citing IYilson u. Hec/</er, 743 F.2d 218 (4th Cir. 1984)).

A

nonexertional limitation is

"limitation that is present whether the claimant is attempting

a

to perform the physical

requitements of the job ot not . . . [s]uch limitations are present at alI times in a claimant's life,
whether dudng exettion or rest." Il/ood1

(quoting Corj471.2 F.2d at

930).

u.

Barnhart,326 tr. S,rpp. 2d7 44,752 (IX/.D. Ya. 2004)

Typically, they ate conditions such as mental disordets

(including depression), envitonmental intolerances, substance addictions,

7

ot

sensoq/

impediments. Id. (crtng 20 C.F.R. $ 1569a, SSR 96-8p; and Il/alker,889 F.2d

^t

48-49).

Futthermore "la] non-exertional limitation is one that places limitations on functioning or
restricts an individual from performing a full range of work in a patticular category." Ahtrop,
36 Fed.

App". at1.47 (citing C0ry,71.2F.2dat930).

However,

"not every nonexertional limitation or

malady rises

to the level of a

nonexettional impaitment, so as to preclude teliance on the [G]dds." Walker, 889 F.2d at 49

(citing Grant,699 tr.2d at 189). The proper inqury is whether the nonexettional condition
affects an individual's RFC to petfotm work of which he is exertionally capable.

Commissionet "must produce

a

Id. If

so, the

vocational expert to testi$r that the partcular claimant retains

the ability to perfotm specific jobs which exist in the national economy." GranÍ,699 F.2d at
1,92

(citng Ta/or

u. Il/eìruberger, 51.2 F.2d 664 (4th

nonexertional impairment, an 1.J-J must

Cir. 1915)). To directly apply the Grids to

ftst fìnd as fact that the impaitment

a

does not

significantly affect the occupational base of work at the televant exettional level.3

To ditectly âpply the Gdds hete, the ALJ was tequired to detetmine that Plaintiffs
nonexettional limitations did not significantly reduce his ability to perfotm a full tange of wotk
at the light exertional

level. Here, the AIJ simply concluded that "additional limitations have

little or no effect on the occupational base of unskilled light work." (Tr. 55.) However,

No. 88-1614,1.989 \7L 100814, at*3 (4th Ct.
May 8, 1989) (unpublished opiruon) (concluding "it is for the Á.LJ to determine as a question of fact
whether the [nonexertional limitation] complain[ed] of affects [the claimant's] tesidual capacity to
engage in cetain work activities") (citatron and quotations omitted); Smith,71,9 F.2d at725 ('ÌØhether
a given nonexettional condition affects a partscular claimant's residual capacity to engage in certain
job activities is a question of fact;');Phillips u. Astnte,No. 1:10CV289,201.1 \øL 5039779,*3 (Àd.D.N.C.
Oct.24,2011) (unpublished) (concluding that "the ALJ may rely exclusively on the Grids where the
ALJ has ptopedy decided, as an issue of fact, that Plaintiffs non-exettional condition does not
significantly affect" her ability to work) (citation omitted).
3 See, e.9.,

Stratton u. U.S. Deþ'r of Health dy Haman Seras.,

8

without furthet analysis here, the Court is unable to determine whether substantial evidence
exists to support the .,tLJ's findings at Step Fíve. Boler u. Coluin, No. 1:1O-CV-451.,201,3 WL
5423647 , at x4 (À4.D.N.C. Sept. 26,201,3) (unpublished) ("Regardless

of whether an ALJ relies

on the gdds or VE testimony, his step five analysis must capture . . . the concrete consequences

of a clatmant's defìciencies as suppoted by the substantial evidence . . . [and] build an
and logical bridge from the evidence

to þs] conclusions .") (citation and

^ccnta'te

quotations

omitted); ¡ee also Clowers u. Astraq No. 3:12-CV-00229-trDì7, 2013 WL 2351,361., at *6
flX/.D.N.C. }i/:ay 23,2013) (unpublished) (the ALJ specifìcally acknowledged in Plaintiff

s

RFC

that his nonexertional limitation affected his work capacity, but the ALJ "falled to offer any
explanation of how he had factored Plainuffs Inonexertional] limitation into [the -ALJ's] Step
5 assessment that there were jobs in significant numbers that Plaintiff could perform.").

As previously explained, the burden of proof is with the Commissioner at the fifth step

to make findings and suppott them with substanttal evidence; thus, the undersigned believes

that the appropriate course here is to remand this case back to the ALJ
explanation as

fot

adequate

to why Plaintiffls nonexertional limitations do not significantþ affect

the

occupational base of wotk at the relevant exertional level. Bokr, 201.3 WL 5423647 , at*4; xe
also Cobh u. Coluiru,

No. 1:15-1972-JMC-5VH,20L6 ìØL 3085906, at x12 (D.S.C. Apt. 1,201.6),

report and recommendaîion adopted,

201,6) (unpublished)

No. 1:15-CV-01972-JMC,2016 !ØL 3059854 (D.S.C. }if.ay

31.,

("f{he ALJ cited insuffìcient evidence to support his conclusion that

Plaintiffs nonexettional limitations did not significantly teduce the occupational base."). The
Coutt declines consideration of the additional issues taise by Plaintiff at this ttme. Hancocþ. u.

9

Bømhart, 206 F. S,rpp. 2d

7 57

has no pteclusive effect, as

,163-7 64 flW.D. Ya. 2002) (on temand, the ALJ's ptiot decision

it is vacated and the new heating is conducted de novo).

V. CONCLUSION
Aftet a careful consideration of the evidence of record, the Cout finds that

the

Commissioner's decision is not suppotted by substantial evidence. Accordingly, this Coutt

RECOMMENDS that the Commissioner's decision finding no disability be REVERSED,
and the m^tter be

REMANDED to the Commissioner under

sentence four of 42 U.S.C.

S

a05G). The Commissioner should be directed to temand the matter to the ALJ for futher
administrative action as set out above.

To this extent, Plaintifls Motion for

Reversing the Commissioner Q)ocket Entry 9) should be

GRÄNTED and Defendant's

Motion forJudgment on the Pleadings (Docket E.rtry 12) should be DENIED.

L lI''dntcr
Stnt*r lrftrgi*trltüJuW

July 26,2016

Durham, North Caroltna

10

Judgment