Filing 17

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 1/27/2017, RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED t o 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 herein. To this extent, Plaintiff's motion for judgment (Docket Entry 12 ) should be GRANTED and Defendant's motion for judgment on the pleadings (Docket Entry 14 ) be DENIED. (Daniel, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA ROBERT W. AYERS, ) ) ) ) ) ) ) ) ) ) Plaintiff, v NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant. I:LíCY934 ) MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Robet'V7. Ayers, brought this action pursuant to Section 205(9) of the Social Security Act (the "Act"), as amended (42 U.S.C. $$ a05þ)), to obtain review of a Ftnal decision of the Commissioner of Social Securityl denying his claims for a Period of Disability ("POD") and Disability Insurance Benefits ("DIB") under Title II of the Act. The Cout has before it the cettified administrative tecord and ctoss-motions for judgment. I. PROCEDURAL HISTORY Plaintiff filed an application for onset date of February 1,201,1,. a POD and DIB in May of 20L2 alleging a disability Çt. 1.4,231-232.)2 The application was denied initially and I Nancy Berryhill recently became the Acting Commissioner of Social Secutity. Putsuant to Rute 25(d) of the Federal Rules of Civil Procedure, Nancy Beryhill should be substituted for Carolyn \X/. Colvin as Defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section 205(9) of the Act, 42 U.S.C. $ a05(g). 2 Transcript citations refer to the Administrative Transctþt of Record fi.led manually with the Commissioner's Answer. (Docket Entry 7.) again upon reconsideration. (d. at1.20-28, 130-31.) Plaintiff then requested a heanng before an Âdministrative LawJudge (",{LJ") (id. at 138) and at the }./'ay 1',201'4hearíng were Plaintiff, his attorney, and a vocational expet ("VE"). (Id. at 42-15.) The ALJ detetmined Act. (d. at 1,1,-1,9.) On October. 1', 201,5, the Appeats Council denied Plaintiffs request fot review, making the ALJ's decision the Commissionet's final decision for purposes of review. (d. at1'-4.) that Plaintiff was not disabled undet the II. FACTUAL BACKGROUND Plaintiff was 47 years old on the alleged disabitity onset date. (Id. at1,7.) He had a limited education and was able to communicate in English. (Id.) III. STANDARD FOR REVIEW The Commissioner held that Plaintiff was not under a disability within the meaning of the Act. Under 42 U.S.C. $ 405(9), the scope of judicial teview of the Commissionet's final decision is specific and narrow. Srzith u. Schwei/<er,795 F.2d 343,345 (4th Cit. 1986). This Court's review of that decision is limited to detetmining whethet there is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. $ a05(g); Hanter u. Sølliuan, 993 F.2d 31, 34 (4th Cir. 1,992); HEs u. Salliuan, 907 F.2d 1,453, 1,456 (4tb Cir. 1990). Substantial evidence is "such relevant evidence âs a reasonable mind might accept as adequate to support a conclusio rt." Hilnter, 993 F .2d at 34 (cittng Nchardson (1,971)). It "consists of more prepondetance." Id. (quottng u. Perales,402 U.S. 389, 401' than a mete scintilla" "but may be somewhat less than L^aws u. Celebreçe, 368 2 F.2d 640, 642 (4th Cir. 1,966)). a The Commissioner must make findings of fact and tesolve conflicts in the evidence. Hajr,907 F.2dat 1456 (citingKingu. Calìfun0,599F.2d597,599 (4th Cir. 1979)). The Court does not conduct a de novo review Schweiker, 7g5 F.2ð, ^t of the evidence not of the Commissioner's findings. 345. In teviewing for substantial evidence, the Court does not undertake to re-weigh conflicting evidence, to make credibility determinations, or to substitute its judgment for that of the Commissioner. Crøigu. Chater,76F.3d 585,589 (4th Cir. 1,996) (citing Hryq907 F.zd ^t 1,456). "Whete conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the fCommissionet's] designate, the Il/alker u. Bowen,834 F.2d 635, 640 (7th Cir. ALJ)." Craig76tr.3d at 589 (quottng 1987). The denial of benefits will be teversed only if no reasonable mind could accept the tecord as adequate to support the detetmination. See Wchard¡0n,402 U.S. at 401. The issue before the Coutt, therefore, is not whethet Plaintiff is disabled, but whether the Commissionet's finding that Plaintiff is not disabled is suppotted by substantial evidence and was reached based upon a correct application of the televant law. See id.; Cofnan u. Bowen,829 tr.2d 51,4,51.1 (4th Cir. 1,987). IV. THE ALJ'S DISCUSSION The Social Security Regulations define "disability" for the purpose of obtaining disability benefits as the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impafument3 which can be expected to tesult in 3 ,{ "phystcal or mental is ân impairment impairment" resulung ftom "anatomical, physiological, or psychological abnormalities which are demonstrable by medrcally acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. $ 423 (d)(3). J death or which has lasted ot c n be expected to last for a continuous petiod of not less than 12 months." 20 C.F'.R. S 404.1505(a); see also 42 U.S.C. $ a%(d)(t)(a). To meet this definition, aclaimantmust have a severe impairmentwhich makes itimpossible to do previous work S or. ^ny other substantial gainful acttvitya that exists in the nattonal economy. 20 C.F.R. 404.1505(a); see also 42 U.S.C. S 423(dX2XÐ. A. The Five-Step Sequential Analysis The Commissioner follows a five-step sequential analysis to ascettain whethet the claimant is disabled, which is set forth in 20 C.F.R. $ 404.1520. Sec. See Albright u. Comm'r of Soe Admin.,174F.3d 473,475 n.2 (4th Cir. 1,999). The ALJ must determine: (1) l7hether the claimant is engaged in substanaal gainful activity claímantis working). Q) If (2.e., whether the so, the claimant is not disabled and the inquiry ends. IØhether the claimant has a severe impairment. If not, then the claimant is not disabled and the inquiry ends. (3) l7.hether the impairment meets or equals to medical critena of 20 C.F.R., Part 404, Subpart P, Appendix 1, which sets forth a list of impairments thatwarrant a finding o f disability without considering vocation aI criteria. I f so, the claimant is disabled and the (4) inquþ is halted. l7hether the impairment prevents the claimant ftom petforming past relevant work. If not, the claimant is not disabled and the inquiry is halted. a "substantial gainful acttvity" is work that (1) involves perfotming significant or ptoductive physical or mental duties, and Q) is done (ot intended) for pay or ptofit. 20 C.F.R. S 404.1510. 4 (5) \)Thether the claimant is able to perform any other v/ork considedng both his If so, the lrst determined that Plaintiff had not engaged in substantial gainful residual functional capacitys ("RFC") and his vocational abilities. claimant is not disabled. 20 c.F.R. S 404.1520. Here, the ALJ activity since his alleged onset date of Febtuary L,201.1.. Gt. 13.) The .ALJ next found in step two that Plaintiff had the following severe impairments: chronic left knee pain status- post total left knee replacement, obesity, and leatning disotder. Qd.) At step three, the ALJ found that Plaintiff did not have an impaitment or combination of impairments listed in, or 1. (Id.) At step four, the ALJ determined that medically equal to, one listed in Appendix Plaintiff could not return to his past televant wotk. (Id. at 17.) At step five, the ALJ determined that considering Plaintiffs age, education, work expetience, and RFC, thete wete jobs in the national economy that he could B. perfotm. (Id. at 1,8.) Residual Functional Capacity Determination Prior to step four, the ALJ determined PlaintifPs RFC based on his evaluation of the evidence. (Id. at1,5-17 .) Based on the evidence as a whole, the ALJ detetmined that Plaintiff retained the RFC to perform light work except that he: must have the option to sit/stand s in L-hour inctements "Residual functional capacity" is the most a claimant can do in a work setting despite the physical and mental Limitations of her impairment and any telated symptom (e.g., pan). See 20 C.F.R. $ 40a.15a5(a) (1); ne al¡o Hines u Bamhart,453 F.3d 559,562 (4th Cir. 2006). The RFC includes both a "physical exertional or strength limitation" that assesses the claimant's "ability to do sedentary, light, medium, heavy, or vely heavy work," as well âs "nonexettional limitations (mental, sensory or skin impairments)." Hall u. Harris,658 F.2d 260,265 (4th Cir. 1981). 5 thtoughout the day without going off task; is limited to occasional use of his left lowet extremity for foot conttols; can occasionally climb ramps and stairs but can nevet climb ladders, ropes, or scaffolds; can never kneel or ctawl; can occasionally crouch and balance; can never stoop wrth left lower extremity; must avoid concentrated exposute to moving machinery and unprotected heights; Mentally, the claimant is limited to jobs that do not requite teading instuctions or reports ot fixed production r^te or pace. (Id. at 15.) C. Past Relevant Work The ALJ found in step four that Plaintiff had past relevant work as an itonwotker. (Id. ^t 17.) The ALJ found that Plaintiff was unable to petform his past televant wotk. D. (Id.) Adiustment to Other Work The claimant bears the initial burden of proving the existence of a disability. 42 U.S.C. S 423(dX5); 20 C.F.R. S 404.1512; Smith u. Calfano,592tr.2d 1235,1,236 (4th Cir. 1979). If the claimant has established at step four that he cannot do any work he has done in the past because of his severe impaitments, the burden shifts to the that jobs exist Commissioîet at step fìve to show in significant numbers in the national economy which the claimant perfotm consistent with his RFC, age, education, and past work experience . could Hanter,993 F.2d at35; Il/il¡on u. Calfan0,61.7 F.2d 1050, 1053 (4th Cir. 1980). The ALJ found here that glven PlaintifFs age, education, work experience, and RFC, there wete jobs in the national economy that he could perform, such as a clerk, ticket taker, and small pats assemblet. (Tt. 18.) V. ANALYSIS In pertinentpzrtt, Plaintiff contends that the ALJ failed to ptopetly account in the RFC for his moderate limitations in concentration, petsistence, or pace ("CPP"). (Docket Etttty 6 1,3 at 1,2-1,5.) For the following reasons, the Court agrees. On March 1.8, 20L5, the United States Court of Appeals for the Fourth Circuit published its opinion in Mascio u. Co/uin,780 F.3d 632 (4th Cn.2015). In Mascì0, the Fourth Citcuit determined that remand was appropriate fot thtee distinct reasons, one of which is relevant to the analysis of this case. because the hypothetical the did not include any three r'rrenta"l Specificatly, the Foutth Circuit temanded in Mascio ALJ posed to the VE, and the cotresponding RFC assessmerit, limitations other than unskilled wotk, despite the fact that, at step of the sequential evaluation, the ALJ determined that the claimant had modetate difficulties in maintaining CPP. Mascio,780 F.3d at 637-38. The Fourth Circuit specifically held that it "agree[s] with othet citcuits that a¡ALJ does not account for a claimant's limitations in concentraion, persistence, and pace by restricting the hypothetical question to simple, toutine tasks or unskilled work." Id. at 638 (quoting Il/in¡chel a. Comm'r of Soe Sec., 631. F.3d 1 1,7 6, 1180 (11th Cu. 201,1)) (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 fot a claimant's limitation in concentration, petsistence, or pace." Although the Fourth Circuit noted that the ALJ's Id. erot might have been cuted by an explanation as to why moderate difficulties in CPP did not translate into a limitation in the claimant's RFC, it held that absent such an explanation, temand was necessary.Id.6 6 that a claimant had a moderate limitation, as opposed to a mild or no limitation, was generally insignificant. See Handl u. Conm'r, Soc. Sec. Admin., No. S,{'G-09-166, 2015 WL 9302972, at *3 n.4 Q). Md. Dec. 22,2015) (unpublished). The finding that potentially Prc-Mascio, an ALJ's firdirg 7 Here, the AIJ determined at step three that the claimant CPP. Çr M.) In support, the A{'s has diffìculty assessment, had modetate limitations in in its entirety, was, "He testified that he concentrating. He indicated that he cannot pay attention fot ptolonged petiods of time. @xhibit B5E). He can handle stress but has diffìculty in handling changes in routine." (Id. at1,4.) "Pursuant to Mascio,once an ALJ has made â step three fìndingthata claimant suffers ftom moderate difficulties in concenttation, petsistence, or pace, the ALJ must either include a corresponding limitation in het RFC assessment, or explain why no such limitation is necessary." See Talmo u. Clrum'r, Soc. Sec., Civil Case No. ELH-14-221'4, 201'5 WL2395108, at x3 (D.Md. }r/:ay 1.9,201,5) (unpublished). Here, the ÂLJ did neithet. Specifically, the ALJ did not include a limitation in the RFC assessment that accounts for Plaintiffs moderate limitations in CPP. Instead, the ,{.LJ concluded that Plaintiff had the mental RFC to perform "jobs that do not requite teading instructions or reports or fixed production r^te or pace." (Tr 15.) Despite the Commissioner's arguments to the contrary (Docket Entry 1 5 at 1 1-13), this is insufficient to account fot Plaintiff limitations in CPP. More specifically, at most, this mental RFC finding accommodates only PlaintifPs moderate limitations in pace, but not his moderate limitations in concenttation or persistence, because it includes a restriction to â "fixed production ràte ot pace." (Ir. 15 (emphasis triggered a listing was that of a "mzrked" limitation. Id. Thus, the omission of a meaningful explanation to justift a "moderate" finding would likely have been, at most, harmless error. Id. Now, post-Marø'a, a reviewing court must undetstand the tationale behind a finding of moderate limitation to assess the validity of the presence ot absence of coresponding limitations in an RFC. Id. An ALJ fi.dirg a moderate limitation, therefore, has to ensure that the precise nature of that limitation is addressed in sufficient detail. Id. Hete, as explained below, the analysis in this case does not meet that standatd. 8 added).) See, e.!., Cole u. Coluin, No. 5:16-CV-34-BO, 201,7 WL 325936, atx2 (E-D.N.C. Jan. 23,201.7) (unpublished) ("However, the RFC fotmulated by the ALJ fincluding quotas], while it does address plaintiffs limitations in tegatd to pace, does not âccount for plaintiffs difficulties with petsistence or concentration."). Beyond that, the only othet restriction in the ALJ's mental RFC finding is fot iobs that do not "require reading instructions ot teports." (Tt. 15.) Howevet, the reading testtiction is unrelated to Plaintiffs moderate restrictions in CPP, and instead apparently relates to the limitations stemming from Plaintiffs learning disability and/or education. The ALJ found Plaintiffs learning disability to be a sevete impafument, whicþ-according to Plaintiffs testimony-resulted ín a "very limited ability to read and wtite," Ql 1'3, 46.)7 The undersigned thus concludes that the ALJ's mental RFC finding insufficiendy addtessed Plaintiffs moderate limitations in CPP. Therefore, unless the ALJ's decision explains elsewhere why additional mental restdctions are unnecessary, her decision is unreviewable and a remand for furthet ptoceedings is in ordet. Colrin, No.2:15-CY-1,6255,201,7 WL1,91,1,74, at *4 (S.D.W.Ya.Jan. 1.7, 2017) (unpublished) ('AU did not explain his reasons for including a condition that Claimant cânnot read or wdte anything above a sixth grade reading level and, in any event, this condition has no ditect bearing on Claimant's ability to stay on task[.]");þleru. Coluin, No. 1:15CV225,201,6WL831,944,at x3 04.D.N.C. Feb. 29,201,6) (unpublished) ("The additional limitations in Plaintiffs RFC limiting him 7 See, e.g.,Procloru. to work that does not involve reading or writing fails to account for his moderate limitations in concentration, persistence, or pace."), recomrnendalion ødopred Slip Op. (À{.D.N.C. March 23, 2016); Spigner a. Coluin, No. CV 9:1,5-2828-TMC-BM, 201.6 WL 3892453, at *7 p.S.C. July 5, 2016) (unpublished) ("Although the ALJ did assþ a limitation as to teading, such a limitation does not appe r to take into account any inabiJity to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in wotk settings.") (citation omitted), report and recommendation adoþted,No. CV 9:1.5-2828-TMC,2016WL3878257 P.S.C. July 1 8, 2016) (unpublished). 9 The ALJ ptovides no such explanation. The only assessment of Plaintiffs mental stafl¡s contained in the ALJ's decision addtesses his leatning disability. It states: Regarding his alleged leatning disotdet, the claimant ptesented to Dt. Stephen McCullough in August 2005 for psychological evaluation. (Exhibit B8F). As mentioned above, he obtained a Full Scale IQ of 82, which is in the Low Avetage tange of intellectual functioning. On examination, thete was no obvious evidence of difficulties with teality testing or gross cognitive impaitment. The claimant demonsttated a telattve weakness in subtests that measwed his ability to store, manipulate, and retrieve information from shott-term ot immediate memoly. Dr. McCullough diagnosed the claimant with mathematics disotder. (tr. 16.) Nothing in this assessment explains why the ALJ's mental RFC assessment is sufficient to âccount for Plaintiffs moderate limitations in CPP. On the one hand, it observes that Plaintiff demonstrated no "gross cognitive impairment," while on the othet hand, it futher identifies a "weakness" as to short term memory. Qd.) The ALJ's analysis is inadequate. leaves the undersigned to speculate âs It to whethet the ALJ inadvertently neglectecl to account for PlaintifÎs limitations in CPP or whether the ALJ somehow believed she had-tacitly and without any explana¡1ç¡¡-aççounted fot these limitations in her RFC finding. Finally, the Court notes that the ALJ here appeated to credit Plaintiffs assertion that he "has difficulty in handling changes in routine" because she cited three finding that Plaintiff suffered from modetate limitations in appears that the as part it in support of her step CPP. (Tt. 14.) It therefore ÂI.¡ .onridered Plaintiffls repoted difficulty in handling changes in toutine of his moderate limitations in CPP. There is, howevet, no resffiction in the RFC 10 accommodating Plaintiffs reported limitation in this area, nor is there an explanation in the decision addressing why no such restriction in the RFC is necessary' ,\tl this prevents the Court from engaging in meaningful judicial teview. As a result, the Court concludes that remand is ptoper so that the ALJ may build a logical bridge between the evidence of record and her conclusions. Mascio,780 F.3d at 638 ("Perhaps the ,{'LJ can explain why Mascio's moderate limitation in concenttation, petsistence, or pace does not translate ^t step three into a limitation in Mascio's tesidual functional capacity. . .þ]"t because the ALJ hete gave no explanation, a remand is in order.")' None of this necessarily means that Plaintiff is disabled under the Act and the undersigned expresses no opinion on that matter. Nevertheless, the undetsigned concludes that the proper course here is to remand this matter for further administrative proceedings. The Coun declines consideration of the additional issues raised by Plaintiff at this time. Hancoc,ë u. Barnltart,206 F.Supp.2d757,763-764 CX/.D. Ya.2002) (on temand, the prior decision of no preclusive effect, as it is vacated and the new hearing is conclucted). VI. CONCLUSION After acarcfulconsiderationoftheevidenceoftecotd,theCouttfindsthatthedecision of the ALJ is not susceptible to judicial teview. ,{.ccordingly, this Court RECOMMENDS rhat rhe Commissioner's decision finding no d,isability be REVERSED, and the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. $ a05G). The Commissioner should be directed to remand the matter to the ALJ for futher administrative action as set out above. To this extent, Plaintiffls motion fot judgment (DocketEntry 1'2) 11 should be 14) be GRANTED and Defendant's motion fot judgment on the pleadings (Docket Etttty DENIED LWeùs¡ee Smes tìtå-åiËür¡ùÊ Judßs January 27,2077 Durham, Noth Carch¡a t2

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