ALLMON v. COLVIN
Filing
13
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 11/10/2016; that the Commissioner's Decision finding no disability is VACATED and that the matter is REMANDED for further administrative proceedings consis tent with this Memorandum Opinion and Order. To this extent, the Commissioner's Motion for Judgment on the Pleadings (Doc. 11 ) is DENIED and Plaintiff's Motion for Judgment (Doc. 9 ) is GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, it is DENIED. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANNALISA MARIE FORD ALLMON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
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1:15CV823
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Annalisa Marie Ford Allmon (“Plaintiff”) brought
this action pursuant to Section 1631(c)(3) of the Social Security
Act (the “Act”), codified as amended at 42 U.S.C. § 1383(c)(3),
to obtain review of a final decision of the Commissioner of
Social Security denying her Supplemental Security Income (“SSI”)
under Title XVI of the Act.
Presently before this court are Plaintiff’s Motion for
Judgment and accompanying brief (Docs. 9-10), and the
Commissioner’s Motion for Judgment on the Pleadings and
accompanying memorandum (Docs. 11-12). This court also has before
it the certified administrative record, 1 and this matter is now
1
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer. (Doc. 7.)
ripe for adjudication. After careful consideration of the evidence
of record, the Decision of the Administrative Law Judge (“ALJ”),
and the governing legal standard, this court concludes that the
Commissioner’s decision should be remanded for further proceedings
consistent with this order.
I.
BACKGROUND
Plaintiff protectively filed an application for SSI on
October 26, 2011, alleging a disability onset date, as amended,
of March 18, 2010. (Tr. at 22, 138-43, 168.) The application was
denied initially and upon reconsideration. (Id. at 22, 79-87,
91-100.) Plaintiff then requested a hearing before an ALJ. (Id.
at 101-03.) At the September 13, 2013 hearing were Plaintiff,
her counsel, and a vocational expert (“VE”). (Id. at 30-53.)
After the hearing, the ALJ determined that Plaintiff was not
disabled under the Act. 2 (Id. at 22-26.)
2
“The Commissioner uses a five-step process to evaluate
disability claims.” Hancock v. Astrue, 667 F.3d 470, 472-73 (4th
Cir. 2012) (citing 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)).
“Under this process, the Commissioner asks, in sequence, whether
the claimant: (1) worked during the alleged period of
disability; (2) had a severe impairment; (3) had an impairment
that met or equaled the requirements of a listed impairment; (4)
could return to her past relevant work; and (5) if not, could
perform any other work in the national economy.” Id. A finding
adverse to the claimant at any of several points in this fivestep sequence forecloses a disability designation and ends the
inquiry. Id.
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More specifically, the ALJ concluded (1) that Plaintiff had
not engaged in “substantial gainful activity” during the relevant
period, and (2) that Plaintiff’s fibromyalgia, degenerative disc
disease, and Reynaud’s syndrome were severe impairments. (Id. at
24-25.) However, the ALJ concluded that the disorders did not meet
or equal a listed impairment. (Id. at 26.)
The ALJ then determined that Plaintiff had the Residual
Functional Capacity (“RFC”) 3 to perform medium work, so long as
she was also limited to only the occasional climbing of ladders
and that she altogether avoided concentrated exposure to
extremes in cold temperature. (Id.) The ALJ then concluded that
Plaintiff was able to perform her past relevant work as a
customer service manager, receptionist, general farm worker, and
staff coordinator. (Id. at 26.) Accordingly, the ALJ entered a
Decision that Plaintiff was not disabled and denied her
benefits. (Id.)
3
“RFC is a measurement of the most a claimant can do
despite [the claimant’s] limitations.” Hines v. Barnhart, 453
F.3d 559, 562 (4th Cir. 2006) (citation 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 v.
Harris, 658 F.2d 260, 265 (4th Cir. 1981). “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.
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On December 29, 2014, the Appeals Council denied
Plaintiff’s request for review, making the ALJ’s determination
the Commissioner’s final decision for purposes of review. (Id.
at 10-14.) Plaintiff then initiated this action.
II.
LEGAL STANDARD
Federal law authorizes judicial review of the
Commissioner’s denial of social security benefits. 42 U.S.C.
§ 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
However, the scope of review of such a decision is “extremely
limited.” Fray v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
“The courts are not to try the case de novo.” Oppenheim v.
Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing
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.” Hancock v. Astrue,
667 F.3d 470, 472 (4th Cir. 2012) (internal 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.
1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may
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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 court should
not undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
[ALJ].” 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 that decision falls on the ALJ.”
Hancock,
667 F.3d at 472.
III. PLAINTIFF’S ASSERTIONS OF ERROR
Plaintiff asks this court to reverse the Decision of the
Commissioner. In support of her request, Plaintiff contends, in
pertinent part, that the ALJ erred in evaluating her
credibility. (Pl.’s Br. in Supp. of Mot. for J. on the Pleadings
(“Pl.’s Br.”) (Doc. 10) at 6.) As explained in greater detail
below, this assignment of error has merit and remand is
therefore proper.
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IV.
ANALYSIS
A.
The ALJ’s Credibility Determination is not Susceptible
to Judicial Review
Regarding credibility, Craig v. Chater provides a two-part
test for evaluating a claimant’s statements about symptoms.
“First, there must be objective medical evidence showing ‘the
existence of a medical impairment(s) which results from
anatomical, physiological, or psychological abnormalities and
which could reasonably be expected to produce the pain or other
symptoms alleged.’” Craig v. Chater, 76 F.3d 585, 594 (4th Cir.
1996) (citing 20 C.F.R. §§ 416.929(b) & 404.1529(b)).
If the ALJ determines that such an impairment exists, the
second part of the test then requires him to consider all
available evidence, including the claimant’s statements about
pain, in order to determine whether the claimant is disabled.
Id. at 595-96. While the ALJ must consider a claimant’s
statements and other subjective evidence at step two, he need
not credit them insofar as they conflict with the objective
medical evidence or to the extent that the underlying impairment
could not reasonably be expected to cause the symptoms alleged.
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Id. Where the ALJ has considered the relevant factors 4 and heard
the claimant’s testimony and observed his demeanor, the ALJ's
credibility determination is entitled to deference. Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984).
Here, the ALJ completed the two-step Craig analysis, but
committed error at step two. First, the ALJ stated that he had
“careful[ly] consider[ed]” the evidence and found that
Plaintiff’s “medically determinable impairments could reasonably
be expected to cause the alleged symptoms[.]” (Tr. at 25.) The
ALJ therefore discharged his duty under the first step of the
Craig analysis. Second, the ALJ decided that Plaintiff’s
“statements concerning the intensity, persistence and limiting
4
The relevant regulatory factors are: (i) the claimant’s
daily activities; (ii) the location, duration, frequency, and
intensity of the claimant’s pain or other symptoms; (iii)
precipitating and aggravating factors; (iv) the type, dosage,
effectiveness, and side effects of any medication the claimant
takes or has taken to alleviate her pain or other symptoms; (v)
treatment, other than medication, the claimant receives or has
received for relief of her pain or other symptoms; (vi) any
measures the claimant uses or has used to relieve her pain or
other symptoms; and (vii) other factors concerning the
claimant’s functional limitations and restrictions due to pain
or other symptoms. 20 C.F.R. § 416.929(c)(3). The regulations do
not mandate that the ALJ discuss all these factors in a
decision. See, e.g., Baggett v. Astrue, No. 5:08–CV–165–D, 2009
WL 1438209, at *9 (E.D.N.C. May 20, 2009) (unpublished) (noting
that the law requires “that the ALJ consider these factors, not
that he discuss each of them”).
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effects of these symptoms are not entirely credible for the
reasons explained in this decision.” (Id.) It is at this point,
however, that the ALJ erred by failing to provide any reasoning
in support of his credibility analysis.
More specifically, it is well-settled that “the
[Commissioner] must indicate explicitly that all relevant
evidence has been weighed and its weight.” Stawls v. Califano,
596 F.2d 1209, 1213 (4th Cir. 1979). Although the ALJ need not
cite every piece of possibly relevant evidence in the record,
failure to explain the weight given to “obviously probative
exhibits” is reversible error. Arnold v. Secretary, 567 F.2d
258, 259 (4th Cir. 1977).
A claimant's statements about symptoms and limitations are
obviously probative exhibits. As the Fourth Circuit has
observed, an ALJ has a “duty of explanation” when making
determinations about the credibility of a claimant's testimony.
Smith v. Heckler, 782 F.2d 1176, 1181 (4th Cir. 1986) (citing
Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985)).
This
duty requires the ALJ to make an express finding as to the
claimant's credibility and to give reasons for the credibility
determination. Id. (“If the ALJ discounted [the plaintiff’s]
testimony about lifting and carrying heavy appliances, he needed
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both to say so and to explain why.”); see also Sayre v. Chater,
No. 95–3080, 1997 WL 232305, at *1 (4th Cir. May 8, 1997)
(unpublished) (“If an ALJ finds complaints of pain or the
magnitude of pain to be incredible, the ALJ must give specific
reasons for the finding.”) (citing Hammond, 765 F.2d at 426);
Spencer v. Barnhart, Civil Action No. 7:06CV00420, 2007 WL
1202865, at *1 (W.D. Va. Apr. 20, 2007) (“If the ALJ discredits
the claimant's testimony, he must give ‘specific reasons for the
finding on credibility . . . .’”) (quoting SSR 96-7p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms
in Disability Claims: Assessing the Credibility of an
Individual’s Statements, 1996 WL 374186, at *3 (July 2, 1996)).
In this case, the ALJ explained that he did not find
Plaintiff’s statements regarding her symptoms to be “entirely
credible for the reasons explained in this decision.” (Tr. at
25.) At that point, however, the ALJ failed to set forth any
subsequent reasoning supporting his conclusion. Nor did the ALJ
set forth any reasons elsewhere in his Decision. To the ALJ’s
credit, he did include, between steps one and two, a section
entitled “TESTIMONY AT THE HEARING” and a section entitled
“MEDICAL EVIDENCE.” (Tr. at 24-25.) However, these sections are
entirely descriptive in nature and do not give explicit reasons
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why the ALJ chose to credit some portions of Plaintiff’s
testimony, while choosing to reject others. (Id.) This prevents
the court from determining whether the Decision is legally
correct and supported by substantial evidence. See Mascio v.
Colvin, 780 F.3d 632, 639–40 (4th Cir. 2015) (remanding for the
ALJ's failure to “explain how he decided which of Mascio's
statements to believe and which to discredit, other than the
vague (and circular) boilerplate statement”). 5
By way of example, 6 Plaintiff testified experiencing pain:
[in] [m]y back, elbows, knees, ankles, shoulders,
particularly my lower back. . . . But there are days
when you absolutely cannot touch me it physically is
that bad. But it’s very unpredictable, I don’t know –
sometimes I could wake up in the morning and I’m fine,
other times it takes me an hour to two hours just to
function. My hands don’t move, it hurts to write, it
hurts to do things that I’ve done for 30 years for a
living and there’s a lot of fatigue and emotional
stress because in my mind I think I can still do these
things and my body says no, you can’t.
(Tr. at 34-35; id. (describing pain as generally being an “eight
and a nine” out of ten).) Plaintiff testified further that she
5
Although the ALJ in this case did not use the
objectionable boilerplate set forth in Mascio (compare Mascio,
780 F.3d at 639–40 with Tr. at 25), the logic of Mascio still
applies here, because both Mascio and this case involve a
violation of the ALJ’s duty of explanation.
6
The examples provided above are not exhaustive.
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could stand for about a half an hour and could also only sit for
a half an hour before having to change positions. (Tr. at 38,
43.) She testified that she could “probably” walk the length of
a football field and she testified further that whether she
could walk more depended on whether she was having a good day or
a bad day. (Tr. at 43-44.) Plaintiff also testified that she
lost feeling in her fingers when in the cold, which impacted her
ability to hold items. (Tr. at 40.)
The ALJ then limited Plaintiff to the performance of medium
work with only the occasional climbing of ladders and no
exposure to extremes in cold temperature. 7 (Tr. at 25.)
Consequently, it appears the ALJ credited Plaintiff’s testimony
to the extent she complained of the impact that cold
temperatures had on her grip strength and ability to manipulate
small objects. On the other hand, the ALJ did not include a
sit/stand limitation, despite testimony from the Plaintiff
suggesting that such a limitation was necessary. This could mean
either that the ALJ found Plaintiff’s testimony on the sit/stand
7
Medium work involves “lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to
25 pounds” and requires an individual to be on her feet for up
to six hours during an eight-hour workday. 20 C.F.R.
§ 416.967(b)-(c); SSR 83–10, Titles II and XVI: Determining
Capability to do Other Work – The Medical-Vocational Rules of
Appendix 2, 1983 WL 31251, at *5 (1983).
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issue incredible for reasons he failed to explain, or that the
ALJ simply failed to consider this testimony at all.
Similarly, Plaintiff testified that she could lift ten
pounds, and could make herself do more though “it’s a struggle,”
(Tr. at 43); however, the ALJ determined, without explanation,
that she could lift as much as fifty pounds. (Tr. at 25.) Again,
this could mean either that the ALJ found Plaintiff’s testimony
on this issue incredible for reasons he failed to explain, or
that the ALJ simply failed to consider this testimony at all.
The fact that the court must speculate as to the ALJ’s reasoning
on these issues is troubling. For this reason alone, the ALJ’s
decision requires remand. See Radford v. Colvin, 734 F.3d 288,
295 (4th Cir. 2013) (“A necessary predicate to engaging in
substantial evidence review is a record of the basis for the
ALJ's ruling.”)
Defendant contends that to remand this case would exalt
form over substance, because Plaintiff is clearly not disabled,
and contends further that the ALJ’s credibility determination is
supported by substantial evidence. (Mem. in Supp. of
Commissioner’s Mot. for J. on the Pleadings (Doc. 12) at 15-17.)
It is true that the medical evidence in Plaintiff’s case file is
far from robust. Nevertheless, to focus on this misses the crux
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of the court’s analysis here, which is that for a decision to be
reviewable in the first instance, an ALJ must satisfy his or her
basic duty of explanation. Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000) (observing that the ALJ “must build an accurate
and logical bridge from the evidence to his conclusion”). The
ALJ simply did not do that here and remand is therefore
required. 8
V.
CONCLUSION
After a careful consideration of the evidence of record,
the court finds that the Commissioner’s decision is not
8
Plaintiff raises a number of additional arguments similar
to the one addressed above. (Pl.’s Br. (Doc. 10) at 6.) A number
of these arguments also assert that the findings of the ALJ are
so conclusory and unsupported that they are not subject to
judicial review. (Id. at 7-15.) For example, Plaintiff
accurately points out that despite finding three severe
impairments at step two, the ALJ’s step three finding is a
single sentence stating, “[t]he 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.” (Id. at 9 citing Tr. at 25.)
Plaintiff also correctly points out that the ALJ did not cite to
any medical evidence, medical opinions, or testimony in making
his RFC findings. (Id. at 14 citing Tr. at 24-26.) In fact, at
no point in the Decision does the ALJ mention the opinions of
the non-examining state agency physicians. (See Tr. at 22-26;
see also Tr. at 54-62, 64-73.) Because remand is proper for the
reasons set forth above, the court does not need to definitively
resolve the question of whether Plaintiff’s other assignments of
error also require remand. Nevertheless, on remand, the ALJ
should be mindful of the general duty of explanation such that
the court may, if necessary, review any future Decision.
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susceptible to judicial review and therefore is not supported by
substantial evidence. Remand is therefore proper. The court
expresses no opinion regarding whether, at the end of the day,
Plaintiff is disabled under the Act and the court declines
consideration of the additional issues raise at this time.
Hancock v. Barnhart, 206 F. Supp. 2d 757, 763-64 n.3 (W.D. Va.
2002) (on remand, “[t]he ALJ’s prior decision has no preclusive
effect, as it was vacated and a new hearing conducted de novo”).
IT IS THEREFORE ORDERED that the Commissioner’s Decision
finding no disability is VACATED and that the matter is REMANDED
for further administrative proceedings consistent with this
Memorandum Opinion and Order. 9 To this extent, the Commissioner’s
Motion for Judgment on the Pleadings (Doc. 11) is DENIED and
Plaintiff’s Motion for Judgment (Doc. 9) is GRANTED. To the
extent that Plaintiff’s motion seeks an immediate award of
benefits, it is DENIED.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
9
This court notes that to the extent its order must be
construed as a reversal to be within the scope of its powers
under sentence four of 42 U.S.C. § 405(g), it shall be construed
as such, however, given the reasoning behind this order and the
mandate in Mascio itself that the case be vacated and remanded,
see 780 F.3d at 640-41, this court orders that the decision be
vacated.
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This the 10th day of November, 2016.
_______________________________________
United States District Judge
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