AYERS v. COLVIN

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)

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