HYATT v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE JOE L. WEBSTER on 8/29/2016, for the reasons stated herein, this Court RECOMMENDS that the Commissioner's decision finding no disability be 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, Defendant's motion for judgment on the pleadings (Docket Entry 12 ) should be DENIED and Plaintiff's motion for judgment reversing the Commissioner (Docket Entry 10 ) should be GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, her motion should be DENIED. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTFI CAROLINA
W.A.NDÂ H. HY,{'ITT,
)
)
Plaintiff,
)
)
)
)
)
)
)
)
V
C,A,ROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
1:15CV750
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, \Wanda FI. Hyatt, seeks review of a final decision of the Commissioner of
Social Security denying her claims
for a Period of Disability, Disability Insurance Benefits
("DIB") and Social Security Income ("SSI"). The Court has before it the
certified
administrative record and cross-motions for judgment. (Docket Enuies 7, 1,0, 1,2.) For
reasons discussed below,
it is recommended that Plaintifls motion for judgment
reversing
the Commissioner (Docket Entry 10) be granted, Defendant's motion for judgmenr on the
pleadings (Docket Entry 12) be denied, and that the Commissioner's decision be remanded.
I. PROCEDURÁ,L HISTORY
Plaintiff applied for DIB in May
25, 20'l'1'.
date
201.2, alleging a
disability onset date of December
(ft. 234-37.) Plaintiff also applied for SSI in June 201,2, alleging
an onset
of December 29, 2009. Çr. 226-233.)t FIer applications were denied initially
1 Transcript citations refer to the sealed administrative record which was filed with Defendant's
,\nswer.
(Docket Entry 7.)
1.
of
and
upon reconsidefation.
Çr
73-74, 107-08.) Thereafter, Plaintiff requested a hearing de
novo befote an Administtative LawJudge
and a vocational expert
(",\LJ'). Çt 1,74-75)
Plaintiff, her attorney,
("VE") appeared at the hearing on April '1,2014.
decision was issued on ,{.ugust 8,
20"1,4,
[t.
38-72.) A
upholding the denial of PlaintifPs application for
DIB and SSI. Çt 20-37.) On July 15, 201,5, the Appeals Council denied Plaintifls
request
for
review
of the decision, thereby
making the
Commissioner's fìnal decision for purposes of judicial
AIJ"
review. (h.
determination the
'l-7 .)
II. STANDARD OF REVIEW
The Commissioner held that Plaintiff was not under a disabitity within the meaning
the
Act.
of
Under 42 U.5.C. $ a05G), the scope of judicial review of the Commissioner's final
decision is specific and narrow. Snith u. Scltweiker, 795 F.2d 343, 345 (4th Cir. 198ó). This
Court's review of that decision is limited to determining whether there is substantial evidence
in the tecord to support the Commissioner's decision. 42 U.S.C.
$
a05ft); Hunter u. Salliuan,
993 tr.2d 31, 34 (4th Cir. 1992); HcAr u. Sulliuan, 907 tr.2d '1453, 1,456 (4th Cir. 1990).
"Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate
tosupportaconclusion."' Hanter,gg3F.2dat34(cilngMchardsonu.Pera/es,402U.S.389,401
(1971)). "[It] 'consists of more than
a mere scintilla
of evidence but may be somewhat
less
than a preponderance."' 1/. (quoting Law'- u. Celebre7rye, 368 tr.2d 640, 642 (4th Cir. 1,966)).
The denial of benefìts will be reversed only
adequate
if no reasonable mind could accept
the record
as
to support the determination. Nchardnn,4O2 U.S. at 401. T'he issue before the
Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's fìnding
2
that Plaintiff is not disabled is supported by substantial evidence and was reached based upon
a correct application
of the relevant law.
ColJman u. I)owen,82g
F.2d 514,
517 (4th
Cir.
1987).
Thus, "fa) claimant for disability benefìts bears the burden of proving a disability," Hall
u.
Harh,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 or
can be expected to last for a continuous period of not less than 12 months
U.S.C. S
423(dX1X,{) "To
,A'dministation
has
l.l"' Id. (quoting 42
regtlaÅze the adjudicative process, the Social Security
promulgated
. . . detailed regulations incorporating longstanding
medical-vocatsonal evaluation policies that take into account a claimant's age, education, and
work experience in addition to [the claimant's] medical co¡diaon."
Id.
"These regulations
establish a'sequential evaluation process'to determine whether a claimant is disabled." Id.
(internal citations omitted).
This sequential evaluation ptocess ("SEP") has up to five steps: "The claim^nt
(1)
must not be engaged in 'substantial gainful activify,' i.e., curcently working; and Q) must have
a
'severe' impairment that (3) meets or exceeds the 'listings'
of specifìed impairments, or is
to the extent that the claimant
does not possess the residual
otherwise incapacitatsng
functional capacity ("RFC") to (4) perform [the claimant'sl past work or (5) any other work."
Albright u. Comm'r
404.'1520);
See, e.!.,
see
oJ-Soa Set.
Adnin.,174 tr.3d 473, 475 n.2 (4th Cir. 1999) (citing 20 C.F.R. S
al¡o 20 C.F.R. S 416.920. The law concerning these fìve steps is well-established.
Ma¡tro
u.
ApJèl,270 tr.3d 171,1,77 -1,80 (4th Cir. 2001); Ha//, 658 tr.2d at 264-65.
a
-)
III. THE ALJ'S DISCUSSION
The ALJ followed the well-established five-step sequential analysis to ascertain
whether Plaintiff is disabled, which is set forth in 20 C.F.ll.
Albri¿ht u. Comm'r oJ'\'oc.
Sec.
SS
404.1520 and 41,6.920.
Adnin.,174 F.3d 473,475 n.2 (4th Cir. '1999). In rendering her
disability detetmination, the ALJ made the following fìndings later adopted by Defendant:
1.. The claimant meets the insured status requirements of the Social Security
,{.ct through December 31.,2016.
2. The claimant
has not engage in substantial gainful activity since December
25, 201.1, the alleged onset date Q0 CFll 404.1571, et nq., and 416.971,
et
Mq.).
3. The claimant has the following
severe impairments: COPD; emphysema;
back pain secondary to bulging disc in the lumbar spine; chronic tobacco
abuse; chronic headaches; chronic upper respiratory infections;
anxiety-related disorder; and affective disorder (20 CFR 404.1,520(c) and
20 CFR a16.920(c)).
4.
See
The claimant did not have an impairment or combination of impairments
that meets ot medically equals the severity of one of the listed impairments
in 20 CF'R Part 404, Subpart P, Appendix 1, (20 CFR 404.1,520(d),
40 4.'t 525, 40 4.1 526, 41, 6.9 20 (d), 41, 6.9 25 and 41, 6.9 26).
5. After careful
consideration of the entire record, the undersigned fìnds that
the claimant has the residual functional capacity lRtrC] ro perform lighr
work as defìned in 20 CFR 404.1567(b) and 20 CFR 416.967þ) with
exceptions: She must alternate between sitting and standing in
thirty-minute intervals throughout the day without going off task. She
can occasionally climb ramps, stairs, ladders, ropes, or scaffolds. She can
4
occasionally balance, stoop, or crouch. She must avoid concentrated
exposure to extreme cold and heat. She must avoid respiratory irritants
such as fumes, odots, dust, gases, and poody ventilated areas. She must
avoid operational control of moving machinery and unprotected heights.
She can perform simple and repetitive tasks in a low-stress environment
that requires only occasional changes in the work setting, occasional
decision-making, no fast production rate. She can interact appropriately
with coworkers, supervisors, or the public.
(Tt. 25-26, 28.) In light of the above findings regarding PlaintifPs RFC, the ALJ
determined that Plaintiff was unable
to perform her past work as a teacher. (Tr. 30.)
Based upon PlaintifPs age, education, work experience, and her RFC, the ALJ concluded
that "there were jobs that existed in significant numbers in the national economy that the
claimant could have petformed." (Tr. 31(citing 20 C.F'.R. SS 404.1569,
404.1569(a),
416.969, and 41,6.969(a)). Accordingly, the ALJ concluded that Plaintiff was not disabled.
[r
32.)
IV. ANALYSIS
In pertinent part, Plaintiff
mental limitations in the
contends that the ALJ failed
to account for
lì.FC.2 (Docket Entry 11. at 1.2-1.8.) The court
PlaintifPs
has considered the
,{LJ's decision as it relates to Ma¡do u. Coluin,780 F.3d 632 (4th Cir. 201,5). As explained
below, because the ALJ's evaluation of Plaintiffs "moderate limitation" in concentration,
persistence or pace is inadequate under Mørù0, remand is warranted.
2 Plaintiff also contends that the ÂLJ improperly rejected the opinion
Dr. Guarino. (Docket Entry
1,1
of the consultative examiner
at 1.2-18.) The court declines consideration of the additional
at this itme. Hant'ock u. Ba'rnhart,206 F. Supp. 2d757,763-764, n.3 flX/.D. Ya.2002)
(reasoning that on temand, the ÂLJ's prior decision has no preclusive effect, as it is vacated and the
issues raised
new hearing is conducted de novo).
5
As background, on March
"1,8,
2015, the United States Court
of Appeals for
the
Fourth Circuit published its opinion in Ma¡cio. In Mødo, the Fourth Circuit derermined
that remand was appropriate for three distinct reasons, one of which is relevant to the
analysis
of this case.
Specifìcally,
hypothetical the ALJ posed
the Fourth Circuit remanded Ma¡tio because the
to the VE, and the corresponding lì.FC assessmenr, did not
include arry menta'l limitations other than unskilled work, despite the fact that, at step three
of the sequential evaluation, the ALJ determined that the claimant had moderate difficulties
in maintaining concentration, persistence or pace. Masù0,780 F.3d
The Fourth Circuit specifically held that
does not account for a claimant's limitations
it
^t
637 -38.
"agree[s] with other circuits that an ALJ
in concentration,
persistence, and pace by
restricting the hypothetical question to simple, routine tasks or unskilled
work."
Id. at 638
(quoting Win¡chel u. Comm'r oJ'Soe Sec.,63'1. F.3d 1176, 1,130 (11th Cir. 2011)) (internal
quotation marks omitted).
In so holding, the Fouth Circuit emphasized the distinction
between the ability to perform simple tasks and the ability to stay on task, stating that "[o]nly
the latter limitation would account for a claimant's limitation in concentration, persistence,
or pace."
Id.
Although the Fourth Citcuit noted that the ALJ's error might have been
cuted by an explanation as to why the claimant's moderate difûculties
persistence
in concentration,
or pace did not translate into a limitation in the claimant's RFC, it held that
absent such an explanation, remand was necessary. Id.
Here, the ALJ found ar step two that
[w]ith tegard to concentration, persistence, or pace, the claimant has moderate
difficulties. f)r. Brannon noted the claimant's anxiety appeared to impair her
6
concentration and focus. However, the claimant retains sufficient
concentration to perform unskilled tasks. She prepares microwaved meals,
washes dishes, does laundry, and mops floors.
('ft. 27.) The RFC limited Plaintiff to
"performfing] simple and repetitive tasks
several nonexertional limitations, including:
in a low-stress environment that requires
only
occasional changes in the work setting, occasional decision-making, and no fast production
Íate.
She can interact apptopriately with coworkers, supervisors, or the
public." Çt28.)
(internal citations omitted).
,tt
step four the Â.LJ gave significant weight to the mental assessment of Dr. Lori
Brandon Souther, the state agency psychological consultant.3 (Tr.
30.) Dr. Souther
that Plaintiff can perfotm simple toutine repetitive tasks in a low suess setting.
[r.
found
1,22)
Flowever, Dr. S<¡uther also concluded that Plaintiff is moderately limited in the following
areas related to concentration, persistence
of pace:
[t]he ability to c^tty out detailed instructions . . [t]he ability to maintain
attention and concentration for extended periods . . . [t]he ability to perform
activities within a schedule, maintain regular attendance, and be punctual
within customary limits . . . [t]he ability to work in coordinarion with or in
proximity to others without being distracted by them . . . [and] [t]he abiliry to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods.
Çr.1,21.)
The ALJts determination that Dr. Souther's opinion should be accorded significant
weight is problematic because the ALJ failed to address Dr. Souther's conclusion that
¡ The ALJ does not reference Dr. Souther by name but cites to her assessment in the administative
record. ('IÍ. 30.)
7
Plaintiff had moderate diffìculties maintaining attention and concentration.
Coluin,
No. 1:14CV00143, 2016wL
1,367745, at
Comþare Greer
a.
*8 (M.|).N.C. ,{pr. 6, 201,6) (unpublished)
(finding that giving signifìcant weight to the state agency consultant did not address the
ALJ's failure to account for plaintiffls moderate difficulties in concentration, persistence and
pace because although "the state agency psychological consultantfi opin[ed] that 'Plaintiff
was capable of performing simple tasks,' that same consultant noted that Plainti
ff
'may have
some difficulty maintaining attention and concentration"') (internal citations omitted) with
ll/ilker¡on u. Coluin, No. 1:15Cv00944, 2016
wL
326431'1, at x5 (M.D.N.C. June 14, 201,6)
(finding the ,tLJ's reliance on the state agency consultant's determination was sufficient
because
the consultant concluded "that, despite moderate limitation
in lconcentration,
persistence or pacel, Plaintiff could maintain attention concentration for at least two hours at
a time as tequired
for the perfotmance of simple tasks") (unpublished) (internal citations and
quotations omitted); O'Brien
u. Coluin,
No. 1:15CV00536, 2016WL 2755459,
ar
*6 (N4.D.N.C.
May 1'1,20'1,6) (finding that "the ALJ sufficiently explained why the mental restrictions in the
lìFC adequately accounted for PlaintifPs moderate limitation in [concentration, persisrence
or pace]" by giving significant weight to a psychologist's opinion fìnding that the plaintiff
could sustain adequate concenration, persistence or pace throughout the extended
\X/hile the ALJ explained that Plainti
ff canmaintain
concentration to perform unskilled rasks,
such afl explanation does not address Plaintiffs inability
concentration for extendecl periods of
WL 323838, at x9 (E.D. Ya.
time.
day).
See I-.owe u. Coluin,
to
maintain attention and
No. 3:15CV230 }AG),201.6
Jan. 5,201,6), reþort and retvmmendation adoþted, No. 3:15CV230
8
$AG),
201,6
WL
task accounts
individual
to
32551,6 (E.D. Ya. Jan.
fot a limitation in
simple tasks
or
26,2016)("Only a limitation on the abitity to stay on
concentration, persistence
or pace.
Restricting the
unskilled work does not.") (internal citation omitted).
Similady, limiting Plaintiff to no fast production rate does not account for the ability to stay
on task.a Thus, the hypothetical question posed to the VE that reflected the erroneous
RFC did not account for Plaintiffs inability to stay on tasks.
Moreover, the A,LJ does not provide an explanation as to why Plaintiffls diffìculties in
maintaining attention and concentation do not translate into a limitation in the
RF'C. "The
key is that the reviewing Court must be able to discern the rationale undedying the apparent
discrepancy" between the findings at step three and the
Admin.,
No. CIV.
SAG-1,4-3233, 2015
WL
471.5280,
RFC.
Powell u. Cumm'r, Soc. Set.
at x2 Q). Md. Arg. 6,
201,5)
(unpublished). The ,tLJ's discussion with regards to concentration, persistence or pace
is
a Since the Fourth Circuit's ruling in Masdo, the North Carolina district courts have, on numerous
occasions, found that limiting the claimant to non-fast pace production does not account for
moderate limitations in a claimant's ability to maintain concentration, persistence or pace. See, e,g.,
Cønnings u. Coluin, No. L14CV465,201,6WL792433, at+4 (M.D.N.C. Feb.26,2016) (finding that
limiting the plaintiff to simple, routine, repetitive tasks in a low stress, nonproduction environment
did not "adequately account for her moderate limitation in concentration, persistence, or pace ");
Suugs a. Coluin, No. 3:14-cv-00466-MOC, 201,5 WL 2250890, zt 85 flX/.D.N.C, May '1,3, 201,5)
(finding th^t
ability to perform simple, routine, repetitive tasks in a nonproduction environment,
^î
does not address moderate diffìculties in concentration, persistence and pace); R41nor u. Coluin,No.
5:14-CY-271-8O,2015 \)ØL 1,548996,at+2 (E.D.N,C..A,pr. 7,201,5) (concluding that limiting the
claimant to no fast-paced production, did not constitute limitations related to concentration and
persistence when in fact the record indicated limitations in the plaintifFs ability to maintain attention
and concenttation for extended periods of time); Hagerdorn u. Coluin, No.2:12-cv-29-RLV,2015 ì7L
441,0288, at 84 flX/.D.N.C. July 20, 201,5) (finding that limitations to simple, routine, and repetitive
tasks in a low-production, low-stress work setting, defined as occasional change in job setting or
decision making, only accounted fot claimant's ability to understand, cary out, and remember
instructions, respond appropriately to work situations, and deal with changes in a routine work
setting, and did not address his moderate limitations in concentration).
9
limited. .{s noted above, the ,\LJ
reasoned that that "fPlaintiffs] anxiety appeared to
impair her concenttation and focus," nofwithstanding her ability to "retainfl sufficient
concentration to perform unskilled
tasks." [t27.)
'l'he ALJ also gave pafisa| weight to
the opinion of Dr. Brannon who opined that Plaintiff could "understand, retain, and carry
out simple instructions but . . . her psychological symptoms impaired her concentration."
[r. 30.)
However, these statements only address the complexity o[work Plaintiff is able to
do rather than her inability to sray on
rask. Matio,780 F.3d
^t
638.
T'he ALJ's only statement that arguably concerns Plaintiffs ability to stay on task is
the ALJ's acknowledgment that Plaintiffs lack of concentration causes problems such
remembering why she enteted the
kitchen. Qr 28) 'f'his
as
statement only reinforces the
opinions of , both state agency psychologists who found that Plaintiff had difficulty
maintaining attention and concentration for extended periods
1,367745, at +8; Bo1et, u. Comm'r oJ'Soc. Sec. Adnin,
of time.
Greer, 2016 UtT,
No. 1,:'t4CY762,201.6 WL
61,4708, at x6
(À4.D.N.C. Feb. 16, 201,6) (concluding that "without futther explanation, the ALJ's crediting
of the
state agency consultants' opinions does not provide a logical bridge, between the
AU"
conclusion that Plaintiff suffered moderate concentration defìcits and the ALJ's
decision that Plaintiff could perform simple tasks
in the work place, without any further
concentration-related restriction") (unpublished) (citations and quotations omitted);
I-owe, 201,6
WL 323838, at *9; Gania
x4 (E.D.N.C. Jan. 4,201,6)
31,1280
u. Coluin,
see also
No. 5:14-CV-00842-F'L, 201,617L 319860, at
report and recvnmendation adoþted,
No. 5:14-CV-842-FL, 2016 WL
(E.D.N.C. Jan. 25,2016) (concluding that although the ALJ found that the claimant
10
had moderate diffìculties in concenttation, persistence or pace he did not account for the
limitation in the llFC, and he failed to explain how the RFC determination reflected the
claimant's limitations
in concentration, persistence or
pace, or why moderate limitations in
concenttation, persistence or pace did not impact the claimant's abiliry to work).
Equally concerning is the ALJ's failure to weigh the other state agency psychological
consultant's mental assessments. Dr. Betry B. Aldridge found that Plaintiff had moderare
difficulties in concentration, persistence or pace but still had the ability
short and simple instructions.
(fr.
to
catty out very
86, 102.) Dr. ,{ldridge also concluded that Plaintiff
"would have some difficulty maintaining attention and concentration, but should be able to
[concentrate]
for 2 hours." Qt 86, 1,02.) Unlike Dr. Aldridge's opinion, Dr.
does not attempt to account for the length
Souther
of time Plaintiff can maintain concentration and
attention. 'fhe ,{LJ did not err by giving substantial weight to Dr. Souther's opinion, but
the ALJ was still obligated to address Plaintiffls inability to concentrate for an extended
period of
time.
Masdo u. Coluin,780 F.3d at
638. The court is left to guess whether
ALJ meant to ctedit Dr. Aldridge's assessment as opposed to Dr. Souther's
the
assessment.
The ,{.LJ's decision cleady indicates that she cited to Dr. Souther's opinion notwithstanding
the fact that Dr. ,\ldridge attempted to address Plaintiffls inability ro concentrate for
extended periods of
time. (Ir. 30.)
In any event, it is clear that at least one of the psychologists' assessments was not
weighed. Consequently, the court concludes that remand is proper so that the ALJ may
build a logical bridge between the evidence of record and her conclusions. Ma*i0,780 F.3d
1.1
^t
638 ("Perhaps the ,A'LJ can explain why Mascio's moderate limitation
persistence,
in concentration,
or pace at step three does not translate into a limitation in Mascio's
functional capacity
. . . þ]"t
because the
residual
ÂLJ here gave no explanation, a remand is in
order.")
In
sum, "once an ALJ has made a step three fìnding that a claimant suffers from
moderate limitations
in concentration,
coresponding limitation
persistence, or pace, the ALJ must either include
in her RFC
assessment,
or explain why no such limitation
a
is
necessary." Pulliam, 2016 WL 843307, at *6 (citation omitted). In the presenr case, the
ALJ did not adequately do
analysis
so. On remand, the Commissioner
of Plaintiffs Lmitations in
concentration, persistence
should conduct a proper
or
pace
in light of
the
principles articulated in Mø¡ù0. The Court expresses no opinion regarding whether Plaintiff
is ultimately disabled under the .A,ct and the Court declines consideration of the additional
issues raised by
Plaintiff at this
time.
Flantvck, 206 F. S.tpp. 2d at 763-764 n.3 (on remand,
the ,{,LJ's prior decision has no preclusive effect, as
conducted
it is vacated and the new hearing
is
de nouo).
V. CONCLUSION
For the reasons stated herein, this Court RECOMMENDS that the Commissioner's
decision fìnding no disability
b. REVERSED,
Commissioner under sentence four
and the matter be REMANDED ro rhe
of 42 U.S.C. $ a05G). The Commissioner should
be
directed to remand the mattet to the .,{LJ for further administrative action as set out above.
To this extent, Defendant's motion for judgment on the pleadings (Docket Entry 12) should
'1,2
be DENIED and Plaintiffs motion for judgment reversing the Commissioner (Docket
Etrtty 10) should be GRANTED. To the extent that Plaintiffs motion seeks an immediate
award of benefits, her motion should be
DENIED.
oe
Webster
United States Magisuate Judge
August 29,201,6
Durham, North Carcltna
13
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