Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, signed by MAG/JUDGE JOE L. WEBSTER on 01/03/2017, that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissione r 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, Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) should be DENIED and Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) should 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.(Taylor, Abby)

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IN THE UNITED STATBS DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ROBERT ITILLIAMS, Plaintiff, v CAROLYN ì7. COLVIN, Acting Commissionet of Social Security rt dministration, Defendant. ) ) ) ) ) ) ) ) ) ) 1,:1,SCY428 ) MEMORÄNDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff Rober Williams brought this action to obtain judicial review of a ftnal decision of the Commissioner of Social Security denying his claims for a petiod of disability disability insurance benefits ("DIB") under Tide Court has before it and II of the Social Security Act ("the Act"). The the cenified administtative recotd and ctoss-motions fot judgment. pocket Entries 7, 10, 1,2.) For the reasons set fotth below, the Coutt recommends that Defendant's motion (Docket Errt"y 12) be denied, Plaintiffls motion (Docket Etttty 10) be granted, and that the final decision of the Commissioner be tevetsed and this matter be temanded under sentence fout of 42U.5.C. $ a05G). I. In March 201,2, April 1, 2007 . Qt. a PROCEDURAL HISTORY Plaintiff filed an application fot DIB alleging a disability onset date of 1,37 -1,45.)1 disability onset date of Plaintiff also filed an application for SSI in Match Apti|1,200l. and upon reconsideration. (Ir. 201'2, alleging Qr.1,46-51,.) Plaintiffs DIB claim was denied initially 50-51, 62.) Plainttff thereaftet requested ahearingbefore an ,\dministrative LawJudge ("ÂLJ"). Çr.76-83.) A headng was held on Septembet 1.9,201.3. Qt.28-41,.) The ALJ issued an unfavorable decision on December 1,2,2013. Çr 14-27 .) This decision became the ftnal administrative decision after the Appeals Council declined review. Çr.1,-4.) II. STANDARD OF REVIEW The Commissioner held that Plaintiff was not undet a disability within the meaning the Act. Under of 42 U.S.C. $ a05(g), the scope of judicial review of the Commissionet's fìnal decision is specific and nartow. Smith u. Schweiker,795F.2d343,345 (4th Cir. 1986). This Court's review of that decision is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. $ a05(g); Hanter u. Sølliuan, gg3 F.2d 31, 34 (4th Cir. 1,992); Hay u. Sulliuan, 907 F.2d, 1453, 1,456 (4th Cir. 1990). "substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusio n."' Hunter,993 F.2d at 34 (citing Nchardnn u. Perales,402 U.S. 389, 401. (1971)). "[t] 'consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance."' Id. (quottng I-aws u. Celebreqry,368 F.2d 640, 642 (4th Cir. 1,966)). 1 Transcdpt citations refer to the administrative record which was filed with Defendant's Answet (Docket Entry 7.) 2 The denial of benefits will be reversed only if no reasonable mind could accept the record adequate to support the determination. Nchardton,402 U.S. ^Í. as 401,. The issue befote the Court, therefore, is not whether Plainuff is disabled, but whether the Commissionet's fìnding that Plaintiff is not disabled is suppotted by substantial evidence and was reached based upon a correct application of the televant Iaw. Cofnan u. Bowen, 829 tr.2d 514, 5L7 (4th Cir. 1987). Thus, "la) claimant for disability benefits bears the burden of ptoving a disability," Ha// u. Hørris,658 F.2d 260,264 (4th Cir. 1981), and 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 ot can be expected U.S.C. 5$ to last for a continuous period of not less than 12 monthsl.l"' Id.(quoting 42 423(d)(1XA)). "To regularize the adjudicative process, the Social Secutity Administration has promulgated . . . detailed regulations incotpotating longstanding medical-vocational evaluation policies that take into account a claimant's age, education, and work expetience in addition to fthe claimant's] medical conditton." Id. "These regulations establish a 'sequential evaluatson process' to detetmine whethet 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,, cunently wotking; and (2) must have a 'severe' impairment that (3) meets or exceeds the 'listings' of specified impairments, ot is otherwise incapacitattng to the extent that the claimant does not possess the tesidual functional capacir¡ ("RFC") to (4) perform fthe claimant's] past work or (5) any other 1,74F.3d ^t 475 n.2 (citing 20 C.F'.R. S work." Albright, 404.1520). The law concetning these five steps is well- J estab[shed. See, e.g., Møstro ,. ,4þrt/,270 F.3d 1.71,1'7]-1'80 (4th Ch. 2001); Ha//,658 F.2d at 264-65. III. THE ALJ,s DECISION In his December 1,2,201,3 decision, the Sections 2160 and 223(d) of the ALJ found that Plaintiff was not disabled under ,{ct. [r 23) In making this disability determination, the ÂLJ found that Plaintiff had not engaged in "substanial gainful aclvity" since July 30,2010. Gr 19.) ,{.t step two, the ALJ found that Plaintrff had the following sevete impaitments: obesity, cervical and lumbar degenetative disc disease and arthropathies. (Id.) At step three, the ALJ found that Plaintiff had no impairment or combination of impairments listed in, ot medically equal to, one of the listed impairments in 20 C.F.R. Pt.404, Subpt, P, App. 1. Qd.) The ALJ then determined that Plaintiff retained "the residual functional capacity [("RFC")] to perform light work as defined in 20 C.tr.R. 404.1567 þ) which include "sitting, standing, and walking fot six hours in an eight-hour workday and lifting, carrying, pushing and pulling 10 (ft. 20.) At step four, the ALJ detetmined that Plaintiff was unabie to petform any past relevant work. Çr. 22.) At step five, the -A.LJ pounds ftequently and20 pounds occasionally." detetmined that there wete jobs which Plaintiff could perform consistent with his RFC, age, education, and work experience. Qt23.) IV. DISCUSSION Plaintiff taises two issues on appeal. First, Plaintiff atgues that the ALJ erred in failing to conduct a function-by-function analysis tegarding Plaintiff 4 s ability to perform the full range of tight wotk.2 (Docket E.ttty 11 at 4-6.) Second, Plaintiff ârgues that the ALJ failed to question the vocational expett ("VE") in light of non-exertional impairments. (Id. at 6-8.) For the reasons stated herein, the undersigned concludes that the case should be remanded because it is unclear whethet substantial evidence supports the ALJ's RFC findings. A. Function-By-Function Analysis Plaintiff argues that the ALJ erred in failing to conduct a function-by-function analysis of Plaintiffs ability to perform the full raîge of light wotk. (Docket E.ttty 11 at 4-6.) Specifically, Plaintiff contends that "at no point in his decision did [the ALJ] perform a function by function analysis of fPlaintiffs] ability to walk and stand." (Id.at 4.) Defendant contends that the ,{LJ's nartattve discussion of the "examination fìndings, and treatment notes, subjective statements, and opinion evidence coupled with his finding that Plaintiff could perform the full range of light work" was sufficient to allow this Coutt to facilitate meaningful judicial teview. (Docket E.ttty 1.3 at9.) Accotding to SSR 96-8p, "the RFC assessment must ftst identi$r the individual's functional limitations ot testtictions and assess his or her wotktelated abilities on a function-by-function basis . . terms of the exertional levels of work[.]" . Only aftet that may RFC be exptessed in 1996 WL 37 41,84, at xL. The Ruling: specifìcally requires that the RFC assessment addtess both the temaining exertional and nonexettional capacities of the individual and furthet defines individual's limitations and testrictions of physical exettional capacity as ^rr strength and defines the individual's remaining abiüties to petform each of seven strength demands: Sitting, standing, walking, lifting, cartying, pushing, and pulling. Significandy, the Ruling notes that [e]ach function must be consideted separately. 2 The Court notes that Plaintiff states that the ALJ erred at step three of the SEP. (Docket Entry 11 at 6.) PlaintifPs argument consist of one conclusory statement. Thus, the Court declines to addtess this atgument because Plaintiff fails to âssert how the ALJ erred at step three of the SEP. 5 Bell u. Coluin, No. 1:10CV709,2015 lfl, 41981.0, at *4 (I\4.D.N.C. Feb.2,201,5) (internal quotations and citations omitted). Nonetheless, "there is a distinction between what the ÂLJ mvstclniderand what he must articulatein the decision." Id. (citing Joye u. A:trwe, No. 1,:06CY27,2009 !ØL 31,3345, atx1.4 (À4.D.N.C. Feb. 5, 2009) (emphasis in original)). ,A'n ALJ is not required "to discuss all of a claimant's abílities on a function-by-function basis but, rather, only to 'descdbe the maximum amount of each work-related activity the individual can perform ba¡ed on the euidence auailable irc the case reczrd."' Uuingston u. Coluin, \&T- 4850447, at No. L:11.CV50'1,2014 *4 (À4.D.N.C. Sept. 29,201,4), aifd,615 F. ,{.pp'x 1'59 (4th Cu. 201,5) (citing x14) (emphasis in the odginal). In Mascio u. Coluin, 780 tr.3d 632, Joye, 2009 WI- 31,3345, at 636 (4th Cir. 2015), the Fourth Citcuit held that there is no per ¡'e rule requiring remandif a function-by-function analysis is not performed. Howevet, the Court held that "where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review" remand may be appropriate. Id. (internal quotation and citations omitted). Here, the ALJ does have a narlattve discussion of Plaintiff s testimonl, the objective medical evidence, treatment notes and Plaintiffls ability to conduct daily activities. However, the ,{.LJ fails to conduct a function-by-function analysis of any of PlaintifPs relevant functions including Plaintiffls ability to walk or stand. Furthermore, the ALJ fails to address conflicting evidence in the record frustrating the Court's ability to conduct meaningful review of the r\LJ's decision. For instance, the AIJ noted that a November 30, 201,0 examination tevealed that Plaintiff "had good motion in his hips, knees, and ankles." Çr. 21,; see also Tr. 6 499.) Furthermore, the -ALJ also noted that PlaintifPs sttaight leg taise test was negative. Qt.21' also see Tr.499.) However, in this portion of the ALJ's decision, the ,ALJ failed to mention that Plaintiff had a positive suaight leg raise test on 365,369,411, 521., 524,538.) The a number of occasions. ,A.LJ also reasoned (See Tt. 300, 350,354, that on November 27,201'2, Plaintiff "was stable on cuffent pain manasement and without side effects or problems. His gait was steady and his lumbar spine revealed minimal tightness and he had good strength extremity." (Tt. 21,-22; see also in his lower Tr. 541..) However, the record indicates that on multiple occasions Ptaintiffls gait was considered abnotmal. (See Tr. 263,267-68,322,360,421',429, 431,, 448, 486.) The ALJ also noted that on October 24,201.1, "fu]pon examination, the claimant's back showed some tenderness in the lumbar spine. However, thete was no pain over the sciatic notch and minimalpain with side bending and rotation to either 21,; see side." (Tt ahoTr. 509.) However, the record indicates that Plaintiff had ttouble extending and rotating his back duting the course of many examinations. (See Tr.300, 303, 326, 499, 505, 509,51.2,515, 518, 524,532,553.) LastlI, the ALJ noted that on June 18, 2013, at PlaintifPs pÅmary care appointment, Plaintiff "stated that he had no health concerns." Qr. 22; ¡ee aln Tr. 566.) Nonetheless, it was also noted atthat time that "Plaintiff went to his orthopedist for a steroid injection to his back for chronic back pain." (Tt. 566.) The injection was aborted because Plaintiff had elevated blood pressure at the time. (Id.) Plaintifls chronic back pain, gait, straight leg test, and ability to bend and rotate are relevant to Plaintiffs ability to stand and walk. "A mere recitation of select evidence is not a sufficient substitute fot the function- by-function analysis required by Mascio, patticulady 7 if there is contradictory evidence in the recofd." Greeru u. Coluin,No. 1:14-CV-293-RJC-DSC, 2016WL 830990, at x3 CX/.D.N.C. Mar' 3,201,6). Futhermore, the ALJ relies on the opinion of Dr. Thomas,A.. Dimmigwho detetmined that Plaintiff should be restricted to lifting over 35 pounds, no pushing ot pulling over 50 pounds and limited to light duty work. Çr a9l .) Howevet, Dt. Dimmig did not addtess limitations with respect to PlaintifFs ability to stand or walk. The ALJ's failure to conduct a function-by-function analysis of the televant functions coupled with his lack of discussion of contradictory evidence in the tecord frustrates meaningful review Hafman u. Coluin, No. 7:15- CV-175-FL, 2016 WL 5349748, at x5 (E.D.N.C. Sept. 23, 201.6) (remanding in part because "the ALJ ffailed to] address . . . inconsistent evidence" suggesting that because of the plaintiffs moderate spinal stenosis, he should have been limited to sedentary duty); Thrower u. Coluin,No. 5:15-CV-0029O-FL, 2016WL 4734355, at x4 (E.D.N.C. June 23,201.6), reþort and adopted, No. 5:15-CV-290-FL,201,6 WL 4734596 (E.D.N.C. Sept. 9, recorzmendatiorc 201,6) (concluding that the case should be temanded in pettinent part because the ALJ failed to address inconsistent evidence indicating that the Tl¡omas u. Coluin, plaintiffs migtaine headaches may cause functional limitations); No. 3:15-CV-467 -FDW,201,6 WL 3951,41.7 *3 , at CX/.D.N.C. July 21, 201'6) (fìnding that "the ALJ failed to resolve an inconsistency in the evidence and among physicians whose opinions he afforded great weight, or at minimum, failed to build ^ a the bridge between the evidence and his conclusion"); Newtoru u. Coluiru,No. 3:14-CV-371-RJC-DSC,2015 WL 4411,1,1.0, at *3 CX/.D.N.C. July 20,2015) (concluding that "the analysis sufficient AlJ . . . failed to provide to allow fot meaningful review. While the decision did mention symptoms of 'dtzziness, weakness, headaches, and ttouble concentrating,' when 8 assessing the Plaintiffs functional limitations, it did not address conflicting citations omitted). But see evidence in the tecotd[.]") Griffit u. Coluiru, No. 2:12CV29-RLV, 201,5 WL (intetnal 4478821, at *5 (lX/.D.N.C. Jrly 22,201,5) ("Rather than 'being left to guess at how the ÂLJ arived at her conclusions,' this Court is able to determine what evidence, and to what extent, the ALJ relied on. The ,{LJ did not ignore any coîfta'dictory evidence[.]"). Thus, the ALJ's decision tequites remand.3 None of this necessarily meâns that Plaintiff is disabled undet the Act and the Coutt expresses no opinion on that matter. Nevertheless, the Court concludes that the proper course here is to remand this matter assess for futther administrative ptoceedings. The ALJ should propedy Plaintiffs capacity to perform relevant functions. Addiuonally, the '\LJ should addtess any televant conflicting evidence in the tecotd. V. CONCLUSION IT IS THEREFORE RECOMMENDED that the Commissionet's decision fìnding no disability be REVERSED, and rhar the matter be REMANDED Commissioner under sentence four to the of 42 U.S.C. $ a05(g). The Commissionet should be directed to remand the matter to the ALJ for further administative action as set out above. To this extent, Defendant's Motion forJudgment on the Pleadings Q)ocket Entry 12) should be DENIED and Plainuffs Motion forJudgment on the Pleadings (Docket Entry 10) should ¡ In light of the Coutt's recommendation to remand based upon Plaintiffls ítst argument, the Court declines to address Plaintiffs second argument that the ALJ failed to pose a question to the VE regarding Plaintiff s RFC, Green, 2016 WL 830990, at *3 n.2 ("Having found remand necessary due to error in the function-by-function analysis and RFC determination, the Court need not addtess other ârguments raised in Plarnuffs Motton for Summary Judgment."). 9 be GRANTED to the extent remand is requested, IT IS FURTHER RECOMMENDED that to the extent that Plaintiff seeks an immedi^te ^watd of benefits, his request be DENIED L. IØebster J United States Magistrate Judge January 3,2017 Dutham, North Caroltna 10

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