McMICHAEL v. COLVIN
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 08/31/2016. For the reasons stated herein, this Court RECOMMENDS that the Commissioner's decision finding no disability b. REVERSED, and 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 further administrative action as set out above. To this extent, D efendant's motion for judgment on the pleadings pocket Entry 10 ) should be DENIED and Plaintiff's motion for judgment reversing the Commissioner (Docket Entry 8 ) should be GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, his motion should be DENIED.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ERIC McMICHAEL,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
1:15CV528
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE TUDGE
Plaintiff, Eric McMichael, seeks review of a finaI decision of the Commissioner of
Social Security denying his claim for a Period of Disability and Disability Insurance Benefìts
("DIB").
The Court has before it the certified administrative record and cross-motions for
judgment. pocket Entries 6, 8, 10.) For reasons discussed below, it is recommended that
Plaintiffs motion for iudgment reversing the Commissioner (Docket Entry S) be granted,
Defendant's motion for judgment on the pleadings (Docket Entry 10) be denied, and that the
Commissioner's decision be remanded.
I. PROCEDURAL HISTORY
Plaintiff applied for DIB in June
201.3, alleging a disability onset date of Jun e 27 , 201,0.
Qt. 1$-6e.y His applications were denied initially and upon reconsideration.
[r,77 ,90.)
Thereafter, Plaintiff requested ahearingde novo before an Administrative LawJudge ("ALJ").
1
Ttanscript citations refer to the sealed administrative record which was filed with Defendant's
Answer. (Docket Entry 6.)
1
[r 10'l-02.) Plaintiff, his attorney, and a vocational expert ("VE,")
on,tpril 1,,201,4. (r.34-64.) ,{
denial of Plaintiffls application for
appeared ar rhe hearing
decision was issued on August 8,2014, upholding the
DIB. Qr.12-33.)
OnJune7,201.5,the A.ppeals Council
denied PlaintifPs request fot review of the decision, thereby making the ALJ's determination
the Commissioner's fìnal decision for purposes of judicial
review. (Ir.
1-s.)
II. STANDARD OF REVIEW
The Commissioner held that Plaintiff was not under a disabiliry within the meaning
the
,{.ct. Under 42U.5.C.
decision is specific and
S
of
405(g), the scope of judicial review of the Commissioner's fìnal
narow.
S'mith u. Schweiker,795
F.2d 343, 345 (4th Cir. 1986). This
Court's review of that decision is limited to determining whether there is substantial evidence
in the recotd to support the Commissioner's decision. 42 U.S.C. $ a05G); Hunter
u. Sølliuan,
993 F.2d 31, 34 (4th Cir. 1,992); Hay u. Salliuan, 907 F.2d 1453, 1,456 (4th Cir. 1990).
"substantial evidence is 'such relevant evidence
as a reasonable
mind might accept
to support a conclusion."' Huruter,993 F.2d at 34 (cinng Nchardson
401,
(1,971)).
less than a
"[It]
as adequate
u. Perale¡ 402 U.S. 389,
'consists of more than a mere scintilla of evidence but may be somewhat
prepondetznce."' 1/. (quotingLnws
u.
Celebre7ry,368F.2d640,642 (4th Cir. 1,966)).
The denial of benefits will be reversed only if no reasonable mind could accept the record
adequate
to support the determination.
Nchardr^0n,402 U.S.
^t
as
401. The issue before the
Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's finding
that Plaintiff is not disabled is supported by substanaal evidence and was reached based upon
a coffect application of the relevant
law.
Cofrzan u. Bowen, 82g tr.2d 514, 517 (4th Cir. 1987).
2
Thus, "la] claimant for disability benefìts bears the burden of proving a disability," Ha//
u.
Haris,658 F.2d 260,264 (4th Cir. 1981), and in this context, "disability" means
"'inability to engage in any substantial gainful activity by reason of
rhe
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. S 423(dX1XÐ).
Adminisffation
has
"To
regulanze
promulgated
the adjudicative process, the Social
Security
. . . detailed regulations incorporating longsranding
medical-vocational evaluation policies that take into account a claimant's age, education, and
work experience in addition to fthe claimant's] medical condilon."
establish a 'sequential evaluation process' to determine whethe
ra
Id.
"These regulations
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 acttvity,' i.e., cunently working; and Q) musr have
a 'severe' impairment that (3) meets ot exceeds the 'listings'
of specified impairments, or is
otherwise incapacitattng to the extent that the claimant does not possess the residual functional
capaciry ("RF'C") to (4) petform [the claimant's] past work or (5) any other
work."
Albright
u.
Comm'rofSoeSec.Admin.,1.74F.3d473,475n.2(4thCir. 1999) (citing20C.F.R.g404.1520);
¡ee al¡o
20 C.F.R. $ 416.920. The law concetning these five steps is well-established.
Mastro
u.
See, e.!.,
ApJèl,270tr.3d'1,71,,1.77-1,S0 (4th Cir. 2001); Hall,658F.2dat264-65.
III. THE ALJ'S DISCUSSION
The ALJ followed the well-established fìve-step sequential analysis to ascertain whether
3
Plaintiff is disabled, which is set forth in 20 C.F.R.
Sec.
Adnin.,
1,7
4 F.3d 473, 47 5 n.2 (4th Cir.
S
404.1520.
See
Albright u. Comm'r of
1999). In rendering her disability determination,
the ALJ made the following findings later adopted by Defendant:
1.
The claimant meets the insured status requirements of the Social Security
Act through December 31,201,5.
2. The claimant has not engage in substantial
201.0, the alleged
gainful activity since June 27,
onset date Q0 CFR 404.1 571
et rcq.).
3. The claimant has the following
disease and bursitis
of
severe impairments: degenerative joint
the left knee, status post arthroscopic surgery in
September 201,0; lumbar degenerative disc disease, srarus post surgely in
January 201,3; degenerative joint disease of the right knee, starus post
arthtoscopic surgery
Soc.
in November
201,4;
and bilateral
shoulder
impingemeît Q0 CFR 404.1520(c).
4. The claimant 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. (20 CFR 404.1520(d), 404.1,525
and 404.1,526).
5. After careful
consideration of the entire record, the undersigned fìnds that
the claimant has the residual functional capacity ('RFC") to perform light
work as defined in 20 CFR 404.1,567þ) except that the claimant is further
limited to: never climbing ladders, ropes, or scaffolds; occasional climbing
of ramps and stairs, balancing, stooping, kneeling, crouching, and crawling;
occasional contact with workplacehazards such as unprotected heights and
dangetous machinery; occasional overhead reaching with the rþht upper
extremity; and he must be allowed to alternate between sitting and standing
two times an hour.
4
(r.
17,
20.) In light of the above fìndings regarding Plaintiffs
RFC, the ALJ determined
that Plaintiff was unable to perform his past relevant work as a diplomatic security offìcer and
as a chauffe
ur.
Çr.26.)
Based upon
Plaintiffs
age, education,
work experience, and his RFC,
the ALJ concluded "there ate jobs that exist in significant numbers in the naaonal economy
that the claimant can
perform." Qr27
(citing 20 C.F.R.
SS
404.1569,404.1.569(a),416.969,
and 416.969(a)). A.ccordinglI, the ALJ concluded that Plaintiff was not disabled.
Qt.28)
IV. ANALYSIS
In petinent part, Plaintiff contends that the ALJ failed to accounr for Plaintiffs mental
limitations
in the RFC.2 (Docket Entry 11 at 7-1,2.) "At
step three
of the sequential
evaluation, the.A.LJ determines whethet a claimant's impairments meet or medically equal any
of the impaitments listed in 20 C.F.R.Pat 404, Subpat P, Appendix
pertain to mental impairments." Hodge u. Comm'r,
Soc. Sec.
1.
Listings 12.00
et. Mq.,
Admin., No. CV SAG-14-3619,
2015!øL 581,3999,atx1 0). Md. Sept. 29,201,5) (unpublished) (citing20 C.F.R. Pt.404,Subpt.
P, App. 1 S 12.00). Each listing therein contains: (1) a brief statement describing its mental
disorder; Q) "pangraph
A critetra," consisting of a set of medical fìndings; and (3) "pangraph
B criteria," consisting of functional limitations related to the impairment. 20 C.F.R. Pt. 404,
Subpt. P, App. 1 S 12.00(Ð. Both the pangraph
,\ criteria
and the pangraph B criteria must
2 Plainaff also contends that the ALJ's credibility determination is not suppored by substantial
evidence. (Docket E.tt y 11 at 2-7 .) Further, Plaintiff asserts that the Court is unable to determine
the basis of the ,{,LJ's RFC fìndings because she gave little weight to all opinions except for one.
Qd.
at 1'2-1'5.) The court declines consideration of the additional issues raised at this time. Hanrvc,þ u.
Barnhart,206 F. Supp. 2d 757,763-64, n.3 flXz.D. Ya.2002) (reasoning that on remand, the ALJ's prior
decision has no pteclusive effect, as it is vacated and the new hearing is c<¡nducted de novo).
5
be satisfìed for the,{,LJ to determine that the claimant meets the listed impairment. Id.
"Paragraph B consists of four broad functional ate si (1) activities of daily living; (2)
social functioning; (3) concentration, persisrence, or pace; and (4) episodes of
decompensation." Id.
S 1,2.00(C);
Martin u. Comm'r,
Soc. Sec.
Adnin., No. CV SAG-15-335,
2015ìøL7295593,ú*2(D. Md.Nov. 18,2015) (unpublished). TheALJusesa"special
technique" to determine the claimant's degree of limitation in each area, based on the extent
to which the claimant's impaiment "interferes with [the claimant's] ability to
independently, appropriately, effectively, and
on a
sustained
function
basis." 20 C.F.R.
404Jt520a(c)(2). The ALJ rates a claimant's degree of limitation in the fìrst three areas
either: none, mild, mod eta;te, marked, or extreme
.
Id.
S
404.1 520
S
as
a(Q@. "In order to satisfy
patagtaphB, a claimant must exhibit either marked limitations in two of the fìrst three ate
s,
or marked limitation in one of the first three areas with repeated episodes of decompensation."
Hodge, 2015
WL
5813999, at
*2 (citations and quotations omitted) (unpublished). If
the
claimant does not meet the requirements of step rhree, the ALJ conducts an RFC assessment
to determine if the impairment prevents the claimant from returning to past
,. ,4þrt/, 27 0
tr
.3d
17
1, 177 (4th Cir. 2001); Albright,
1,7
work.
See
4 tr .3d at 47 5 n.2.
According to SSR 96-8p,
[Ilh.
adjudicator must remember that the limitations identified
in
the
"patagtaph B" and "pangtaph C" ctitetia are not an RFC assessment but are
used
to rate the severity of mental impairment(s) at steps 2 and 3 of
sequential evaluation
process. The mental RF'C
6
the
assessmerit used at steps 4 and
Ma¡tro
5 of the sequential evaluation process requires a more detailed assessment by
itemizing various functions contained
in the broad categories
paragraphs B and C of the adult mental disorders listings
SSR
96-8p,,1996WL 374184,
at*4.
found in
.
Here, the ALJ noted that Plaintiff was diagnosed with
"adjustment disorder with mixed anxiety and depressed
mood." (Tt. 1,9, 1,41,9.) At
step
two the ALJ found that Plaintiff had mild limitations in social functioning and in
concentration, persistence
or pace. (Tt. 19.) At step three, with
respect
to
social
functioning, the ALJ reasoned that Plaintiff
testified that he uies to avoid being in situations that could increase his mood
or anxiety symptoms,like crowded places. He is able to tolerate beingin stores
and public places; he just goes when they are less crowded. The claimant told
Ms. Anderson that he goes to the mall to walk and people watch when it is less
crowded. He repotted that he is very social around family and close friends.
(Ir.
19.) (internal citation omitted)
With respect to concentration, persistence or pace, the ,{.LJ stated that Plaintiff "has
no more than mild
limitation." Qd.) In addition,
the,A,LJ states that "as of a [Compensation
and Pension examination ("C&P")] for mental disorders in September 201,4, the claimant had
no complaints of impairment or memorT, attention, concentration, or executive functions
2)
[r.1,9-20.)
However, these findings wete made in a C & P examination that evaluated
"fr]esiduals of [t]raumatic þ]rain [i]njury," not in the C & P for mental disorders. [r.1,423.)
The C & P mental disorders examination, also conducted in September
20'1.4,
indicated that
Plaintiffs mental disorder caused an occupational and social impairment which "teduced
fPlaintiffs] reliability and productivity." Qr. 1,420.) Moreover, the following symptoms
7
were checked: depressed mood; anxiety; panic attacks that occur weekly or less often; chronic
sleep impairment; mild memory loss, such as fotgetting names, directions or recent events;
disturbances of motivation and mood; diffìculty in establishing and maintaining effective work
and social relationships; diffìculty in adapting to stressful circumstances, including work or
work like setting; impaired impulse control, such
violence. [t
as unprovoked
irritabitty with periods of
1'422.) It was concluded at the end of the examination that Plaintiffs
"[a]nxiety depression irritability and other mental health symptoms ha[d] increased . . . [and]
fm]ost symptoms noted above are now
severe." (Id.) Without
discussing this evidence the
adjustment disorder was non-severe. (Tr.
above, thete was
in the moderate taflge, occasionally moderately
19.)
ALJ determined that Plaintiffs
Other than the step three analysis highlighted
no discussion of Plaintiffs mild limitations in social functioning or
concentration, persistence or pace elsewhere in the ÂLJ's decision.
Critically, the ALJ exptessly stated that her step three analysis is not a substitute for an
in-depth RFC teview requiring a "more detailed assessment by itemizing various functions
contained in the broad categories found in paragraph B of the adult mental disorders listing in
1,2.00
of the Listing of Impairments." (Tr. 20.) Thus, the ALJ understood that her step
three analysis does not sufficiently considet the effect of PlaintifPs adjustment disorder,
anxiety and depression on "þork-related mental activities generally required by competitive,
temunetative work [, which] include the abilities to: understand, carry out, and remember
instructions; use judgment
in
making work-related decisions; respond appropriately to
supervision, co-workers and work situations; and deal with changes in
8
a
routine work setting."
See
AshraJi u. Coluin, No. 313CV00417RLVDCK, 2015
21,2015) (unpublished) (citing SSR 96-8p , 1996WL
ì7L
930456'1., at
37 4184,
x9 (W.D.N.C. Dec.
at*5)).2
Moreovet, the RFC does not comply with the standard set forth in Masico. In Mastio,
the Fourth Citcuit determined that temand was appropriate for three distinct reasons, one
of
which is relevant to the analysis of this case. Specifìcally, the Fourth Circuit remanded Mastio
because the hypothetical the ,{LJ posed to the VE, and the corresponding RFC assessment,
did not include any mental limitations other than unskilled work, despite the fact that, at step
three
of the sequential
evaluation, the r\LJ determined that the claimant had moderate
difficulties in maintaining concentration, persistence or pace. Manio,7S0 F.3d at 637 -38.
The Fourth Circuit specifìcally held that it "agree[s] with other circuits thatan-{LJ does
not accountfor a claimant's limitations in concenffation, persistence, and pace by resÚicting
the hypothetical question to simple, routine tasks or unskilled
work."
Id. at 638 (quoting
ll/in¡chelu. Comm'rof Soc. Sec.,631F'.3d 11.76,'1,180 (11th Cir. 201,1)) (internal quotation marks
omitted). In so holding, the Fourth Circuit emphasized
the distinction between the ability to
petform simple tasks and the ability to stay on task, stating that "[o]nly the latter limitation
would account fot a claimant's limitation in concentration, persistence, or pace."
Id.
Although the Fouth 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
3
alsolleinhardtu. Coluin,No.3:14-CV-00488-MOC,20'1,5WL1,756480,at+3 CX/.D.N.C. Apr.17,
2015) (unpublished) (reasoning that the ,{.LJ expressly stated that "the pangraph B criteria
not
^re
^
assessment,. . . .and further acknowledged that the'[RFC] assessment . . .
steps 4 and 5
FIFCÌ
^t the remainder
requires a more detailed assessment . . . þowever, the] court is at a loss to discover in
of his determrnauon a discussion of the more detailed . . . [RFC] assessment."'
See
9
did not translate into
a
limitation in the claimant's RFC, it held that absent such an explanation,
remand was necessatry. Id.
Here,
discussed
"þ]y fìnding in step-two
^reas,
that Plaintiff suffers ftom mild limitations in the above-
the ALJ admitted that facts exist which correlate with a limitation on the
Plaintiffs ability to stay on task and possibly perform other work-related functions."
Athcraft,201,5WL9304561,, at x9 (internal citation
a
omitted). "As
Masúo points out, admitting
limitation in concenttation, persistence and pace correlates to a limitation in ability to stay
on task, one that the ALJ neither posed to the VE, nor included in his assessment." ll/edwick
u. Coluin,
No. 2:14CV267,2015
líL
4744389, atx23 (E.D. Va. Aug. 7,201,5) (unpublished)
Moreover, there are no mental limitations at all in the RFC.
Furthermore, the
Ary did not provide a valid explanation
as
to why Plaintiffs
diffìculties in maintaining attention and concenttation did not translate into
a
limitation in the
RF'C. "The key is that the reviewing Court must be able to discern the tationale undetlying
the apparent discrepancy" between the findings at step three and the
Soc. Sec.
Adnin., No. CIV. SAG-14-3233, 2015 WL
(unpublished). A.t step three the ALJ
at *2 (D. Md. Aug. 6,
201,5)
& P mental disorders
or
ot pace." (Tr. 19.) Further, the ALJ
examination suggested that Plaintiff "had no
complaints of impaitment or memorT, attention, concentration, or executive
20.) (intetnal citation
Powellu. Comm'r,
states that "the record does not show any persistent
significant complaints of concentration, persistence
reasons that the C
471,5280,
RFC.
functions." (Tt.
omitted). These findings were in the "[r]esiduals of [t]raumatic þ]rain
[i]njury" C & P examination.
Çl'1423.)
However, the actual C & P for mental disotdets
10
expressly states that Plaintiff "has been experiencing increasing levels of anxiety, depression,
irritability . . . [and] fa]lso complains of some difficulty with attention and concentrarion."
Qr't421,.) The same examination details
the symptoms stemming from PlaintifPs social
functioning and concentration impairments concluding that most of them "are now in the
modetate t^nge, occasionally moderately
severe." Gr. 1,422.) Therefore, the Court cannot
discern from this btief discussion why Plaintiffs mild limitations in concentration, persistence
or pace did not translate to the
RF'C. First, there is no discussion of PlaintifPs ability to do
work related functions despitê his mental impairments. Second, the ALJ cites the wrong
examination to support her assertion that there were no complaints of impairment or memor/:
attention, concentration, or executive functions. As stated above the actual examination
suggests that Plaintiff has moderate mental limitations
tathü than mild. Third, there is at
least some evidence that Plaintiff complained of difficulties in concentation and attention.
"As a result, without further explanation, the ,\LJ . . . . does not provide a'logical bddge,'
between the ÂLJ's conclusion that Plaintiff suffered trruld] concentration deficits and the
-A.LJ's
decision . . . lto not place]
^ny
Bo1et, u. Comm'r of Soc. Sec. Admin.,
.
.. concentration-related restiction" in the RF'C. Triùa
No. 1:14CV762,2016WL 614708, ar x6 (X4.D.N.C. Feb. 16,
201.6) (unpublished) (internal citations
omitted); Cammìngt u. Coluin,201,6 WL 792433, at *4
(X4.D.N.C. Fel:. 26,201,6) (concluding that "the record does not appear to provide the 'logical
bridge' necessalT for this Coutt to find that the RFC adequately takes into account Plaintiffs
moderate difficulties in concenuation, persistence, and
pace"). The ALJ's only other attempt
to explain that the RFC reflects all of Plaintiffs ümitations is the ALJ's boilerplate assertion
11
that the RFC "reflects the degree of limitation the undersigned has found in the 'patagraphB'
mental function analysis."
(ft. 20.)
This is insufficient to satisfy the standard laid our in
Mavio. "!íhile . . . the fact that the ,{,LJ found mild
limitations in the paragraph B criteria
does not necessarily ffanslate to a work-related functional limitation, Ma¡cio cleady imposes .
.a
.
duty to explain why such mild mental health impairments found at step two do not translate
into work-related
limitations
See
Reinhardt,2015 ïØL 1756480,
^t*3.
Therefore,
as
m^ny other courts in the Fourth Circuit have reasoned, the ALJ's failure to account for mild
limitations in the RFC requires remand.a
Additionally, at PlaintifFs hearing the VE testified to three jobs that someone wirh
Plaintifls physical limitations could do including work
folder, and as a parking lot attendant. (Tr.
59.)
a Thompson u. Coluin, No.
as a production inspecror, a garment
Subsequently, the ALJ posed the following
1 :1 5-CV-00234-FDW , 201,6 'ùøL 361 01 6 1., at *3 (\X/.D.N.C.
July 't , 2016)
(unpublished) (concluding that "the -A.LJ gave no explanation how, if at all, Plaintiffs mild mental
limitation factored into the ALJ's RFC analysis or, alternatively, why the limitation was excluded ftom
the RFC formulation'); 8roo,6 u. Coluin, No. 1:15-CV-00191-MOC, 201,6 WL 1.465966, at +6
$V.D.N.C. Apr.1.4,2016) (unpublished) (finding "remand . . . appropriate so that the A.LJ can either
assign limitations based on plaintiff['s] mental impafuments or explain why plaintiffs impairmenrs do
not rise to a level requiring the assignment of any such limitations");Ashtraft,2015'ù7L 9304561.,at
*9; Straaghn u. Coluin, No. 1:14CV200,2015WL 4414275, at+4 (M.D.N.C.
July 20,2015) (unpublished)
(reasoning that the ALJ did not âccount for the plaintiffs mild limitations in concentration, persistence
or pâce by limiting the plaintiff to "simple, routine, tasks secondary to pain and her mental
limitations"); Reinhardt,2Ol5 WL 1,756480, at *3 (reasoning that the ,\LJ failed to address why mild
limitations in concentration, persistence or pace did not translate into a work-related limitation in the
RFC); $ Masters u. Comm'r,2016WL 31,89194, at *3 p. Md. June 7,201,6) (unpublished) (concluding
that while the ,{,LJ found that the plaintiff suffered moderated difficulties in concentration, persistent
and pace, "the ALJ's explanation in support of that finding, however, appears to suggest more of a
mild limitation" but remanding because "the ALJ imposed no limitations in the RFC assessment to
addtess an inability to sustain concentration, and at no point in the opinion does the ALJ discuss, for
example, an ability to sustain concentration during simple tasks but difficulties with complex ones").
12
questions to the VE who responded:
,{il dght. ,\nd generally what are the typical breaks allowed in a normal workday?
One can expect 15 minutes in the morning, 15 minutes in the afternoon, and
perhaps 30 minutes to an hour for a lunch period.
a All rþht. ,Are thete any additional rest breaks, say up to ten percent off task per
a
A
workday?
,4, Yout Honor, most jobs will allow for that, yes.
a A[ tight, if someone were off task 20 percent or more of the
workday, would these or any jobs be available?
,\ No, Your Honor. 'Iwenty percent off task is excessive in terms of normal allowable
break time and would not be consistenr with gainful employment.
a A[ right, and how about absences on a monthly basis? \X/hat's
generally the tolerance for that?
A One could expect eight to '12 days per year, about one day per monrh. At
the uppet end, about one day per month of allowable absenteeism. Beyond that
certainly becomes problematic.
(lr. 60-61.)
Subsequently, the hearing was terminated with no other fìndings related to the
amount of time an employee would have to stay on
task. Qr 61,-62.) It appears that rhe
ALJ attempted to address Plaintiffs mental impairments by posing two hypothetical questions
regarding Plaintifls limitations in his ability to stay on
task. Çr.6'l-62.)
The -A.LJ asked the
VE if being off task 10 percent or 20 percent of the workday was consistent with gainful
employment. Çr. 61,-62.) The VE testified that being off task 20 percent of the workday
would create a situation that "would not be consistent with gainful employment."
(fr.
61.)
Despite the VE's testimony, the ALJ made no findings in the RF'C regarding Plaintiffs ability
to stay on task.
See
AshcraJt,2015
føL
9304561, at *11. (concluding that the ALJ failed to
account for the VE's determination that the inability to focus causing the plaintiff to be
off
task for 20 percent of the work day would prevent him for being able to do the jobs highlighted
by the
VE). Thus, the Court concludes that it is unable to conduct a meaningful review of
13
the r\LJ's RFC assessment.
Defendant contends that the recotd contains only one mental health evaluation finding
that Plaintiff only had mild anxiety symptoms. pocket
Enty 11 at10-11;Tr.1547.) Thus,
according to Defendant, the record "supports the ALJ's conclusion that Plaintiff had no
mental impairments dudng the relevant period that signifìcantly affected his activities of daily
living, social function, or concentration, persistence or pace, and there were no episodes of
decompensation." (Docket Entty
11,
at 1,1,.) However, the ALJ did not mention the
contradictory evidence discussed above. The C & P mental disorders examination suggests
that Plaintiff suffered from moderate limitations with respect to: memory loss, difficulty in
establishing and maintaining effective work and social relationships; diffìculty in adapting to
stressful circumstances, including work or work like setting; and impaired impulse control,
such as unprovoked irritability with periods
of violence. Çr 1422.) ,\dditionally,
the
examination fìndings suggest that "most of the symptoms . . . [are] occasionally moderately
severe." (Id.) .,tll of
these impairments are related
concentration, persistence or
pace.
See
to either
social functioning or
20 C.F'.R. Part 4}4,Subpart P, ,{ppendix 1. Listings
12.00(c).
The ÂLJ discussed another examination evaluating Plaintiffs ftaumatic brain injury but
inaccutately called it the C & P mental disorders examination. (Tr.
inaccurate discussion of the C
19.)
Based on the ALJ's
& P mental disorders examination, finding most of Plaintiffs
mental impaitments to be moderate and occasionally moderately severe, the Court cannot
determine whether the examination was taken into
.14
account. "The Court
acknowledges that
an ,\LJ's 'failure to discuss every specific piece of evidence does not ss¡¿þlish that she failed
to consider
it.'
However, the ALJ's decision must still ultimately'reflect that she conducted
a thorough teview
of the evidence before her."' Sarford u. Coluin, No. 1:14CV885, 2016WL
951.539, at x4 (À4.D.N.C. Mar. 9,201,6) (unpublished) (finding that "the ALJ's decision omitted
all discussion of PlaintifPs physical impairments and the related medical evidence . . . [and
that] the relevant medical evidence was not addressed at any [other] point in the evaluation
process") (internal citation
omitted);
see
al¡o Had¡on u. Coluin,No.
7:12-CV-269-FL,201.3WL
6839672, at x8 (E.D.N.C. Dec. 23, 201,3) (unpublished) (reasoning that the ALJ failed to
discuss relevant inconsistent evidence
in the record and that "his silence . . . raises the question
whether he even considered this evidence, notwithstanding his boilerplate representations that
he considered all the
evidence"). Thus, the ",{.LJ's failure to address evidence that contradicts
her assertion that no mental impairments during the relevant period significantly impacted
PlaintifPs social function, or concentration, persistence or pace requires
expresses no opinion regarding whether
remand. The Court
Plaintiff is ultimately disabled under the Act and the
Court declines consideration of the additional issues raised by Plaintiff at this
time.
Hancoc'k,
206 F. Srrpp. 2d at763-64 n.3 (on remand, the ALJ's pdor decision has no preclusive effect,
as
it is vacated and the new hearing is conducted
de nouo).
V. CONCLUSION
For the reasons stated herein, this Court RECOMMENDS that the Commissioner's
decision finding no disability
b. REVERSED, and the matter be REMANDED to the
Commissionet under sentence four
of 42 U.S.C. $ a05€). The Commissioner should
15
be
directed to remand the mattet to the ,tLJ for further administrative action as set out above.
To this extent, Defendant's motion for judgment on the pleadings pocket Entry 10) should
be
DENIED
8) should be
and Plaintiffs motion for judgment teversing the Commissioner (Docket Entty
GRANTED. To the extent
that Plaintiffs motion seeks an immediate award
of benefits, his motion should be DENIED.
oe
Webster
United States Magistrate Judge
Á.ugust 31,2016
Durham, North Carchna
16
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