Filing 17

ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 2/23/2017; that the Commissioner's amended motion for leave to file excess pages (Docket Entry 14 ) is GRANTED and the Commissi oner's motion to exceed page limit (Docket Entry 11 ) is DENIED as moot. The Court has considered all of the pleadings of record. RECOMMENDED that that the Commissioner's decision finding no disability be REVERSED, and the matter be REMAND ED 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, Plaintiffs motion for judgment (Docket Entry 9 ) should be GRANTED and Defendant's motion for judgment (Docket Entry 12 ) should be DENIED. (Sheets, Jamie)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA KIM KRISTINE MARTIN, Plaintiff, v NANCY BERRYHILL, Acting Commissioner of the Social Security Administr ation, ) ) ) ) ) ) ) ) ) 1:l6CYt7l ) Defendant. ) ORDER, MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, I(im Iftistine Mattin, brought this action pursuant to Section 1631(c)(3) of the Social Security Act (the "Act"), as amended (42 U.S.C. $ 1383(c)(3)), to obtain teview of a final decision of the Commissioner of Social Securityl denying her claim fot Supplemental Secutity Income ("SSI") under Title XVI of the Acl The Court has before it the certified administrative tecord, cross-motions for judgment, and two motions2 by the Commissionet seeking leave to file a memorandum in excess of twenty pages I. PROCEDURAL HISTORY Plaintiff ptotectively filed an application for SSI in April of A{ 201,2 requesting that the teopen the 201,1 denial of her eatlier filed claim and further alleging an inability to work I Nancy Berryhill recently became the Âcting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Benyhill should be substituted for Caroþ W. Colvin as Defendant in this suit. No further action need be taken to continue this suit by teason of the last sentence of section 205(9) of the Act, 42 U.S.C. $ 405@. ' The Court will grant one of these motions and deny the other as moot. sinceJune 201,1. (r. 42-43,204,21.4-22,231.,233,235.)3 The application was denied initially and again upon reconsideraion. (Id. at 157-60,166-69.) Plaintiff then requested a hearing before an Administrative Law Judge 1"ALJ") and at the July 17,2014 hearing were Plaintiff, her attorney, and a vocational expert ("VE"). Qd. at39-1,09.) The ALJ determined that Plaintiff v/âs not disabled under the Act. (Id. at 10-32.) On January 20, 201,6, the Appeals Council denied Plaintiffs request for teview, making the ALJ's decision the Commissioner's final decision for purposes of review. Qd. at 1.-7 .) II. FACTUAL BACKGROUND Plaintiff was 47 yearc old on the date the application was least a high school education and was able filed. Qd. at31,.) She had at 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. The scope of judicial teview of the Commissioner's final decision is specific and narrow. Smith u. Schweiker,795 tr.2d 343, 345 (4th Cfu. 1986). This Coutt's teview of that decision is ümited to determining whether there is substantial evidence in the record to support the Commissioner's decision. Hanter u. Salliuan,993 F.2d 31, 34 (4th Cir. 1,992); Hay Sulliuan,907 F.2d1453,1,456 as a reâsonable (tb u. Cir. 1990). Substantial evidence is "such televant evidence mind might accept as adequate to support a conclusion." Hanter,993 F.2d at 34 (citing Ncbardnn u. Pera/es,402 U.S. 389,401 (1971)). 3 It "consists of mote than a mete Transcrþt citations refer to the ,{.dministrative Transcrþt of Record filed manually with the Commissioner's Answer. (Docket Enuy 7.) 2 scintilla" "but may be somewhat less than a preponderaîce." 1/. (quoting 368F.2d640,642 (4th Cir. I-^øw¡ a. CelebreTTe, 1,966)). The Commissioner must make fìndings of fact and resolve conflicts in the evidence. HEs,907 F.2d at 1456 (citing Kingu. Califano,599 F.2d 597,599 (4th Cir. 1979)). The Court does not conduct a de novo review Schweiker,795 F.2d ^t of the evidence nor 345. In reviewing fot of the Commissionet's fìndings. substantial evidence, the Coutt does not undetake to re-weigh conflicting evidence, to make credibility detetminations, or to substitute its udgment for that of the Commissioner. Craig u. Chater, T 6 F.3d 585, 589 (4th Cit. 1,996) f (citing Ha1s,90l F.2d at 1456). "\)(/here conflicting evidence allows teasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)." Cmig76F.3da;t 589 (quoting IYalker u. Bowen,834 F.2d 635, 640 (7th Cir. only See 19S7). The denial of benefits will be tevetsed if no reasonable mind could accept the record as adequate to suppoff the detetmination. Nchardson,402 U.S. at 401. The issue before the Coutt, therefote, is not whethet Plaintiff is disabled, but whether the Commissioner's finding that Plainuff is not disabled is supported by substantial evidence and was reached based upon a cot:ect application of the televant law See id.; Cofnan u. Bowen,829 F.2d 51.4, 517 (4th Cir. 1,987). IV. THE AIJ'S DISCUSSION The Social Security Regulations define "disability" for the putpose of obtaining disability benefits as the "inability to do any a J substantial gainful activity by reason of. any medically determinable physical or mental impairmenta 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." 20 C.F.R. S 416.905(a); see also 42 U.S.C. $ 1382c(a)(3XA). To meet this definition, aclaimantmust have a severe impairmentwhich makes itimpossible to do previous work or ^ny other substantial gainful activitys that exists in the national economy. 20 C.F.R. $ a16.905(a); rce a/:o 42U.5.C. $ 1382c(a)(3)(B). A" The Five-Step Sequential Analysis The Commissioner follows a five-step sequential analysis to ascettain whether the claimant is disabled, which is set forth in 20 C.F.R. S 416.920. Sec. See Albright u. Comm'r of Soe Admin.,174F.3d 473, 475 n.2 (4th Cit. 1999). The ALJ must detetmine: (1) \)(/hether the claimant is engaged in substanttal gainful activity (i.e.,whether the claimant is working). Q) 'S7hether If so, the claimant is not disabled and the inquiry ends. the claimant has a severe impairment. If not, then the claimant is not disabled and the inquiry ends. (3) 'S7hether the impairment meets or equals to medical cdteria of 20 C.F.R., Part 404, Subpat P, Á.ppendix 1, which sets forth a list of impairments thatwanant a a A "physical or mental impairment" is an impairment resulting from "anatomical, physiological, or psychological abnormalities which are demonsttable by medically acceptable clinical andlabontory diagnostic techniques." 42 U.S.C. $ 1382c(a)(3)(D). 5 "substantial gainful activity" is work that (1) involves performing significant or productive physical or mental duties, and Q) is done (or intended) for pay or ptofit. 20 C.F.R. S 416.910. 4 finding of disability without consideting vocational criteria. If so, the claknant is disabled and the inquiry is halted. (4) \)Thether the impairment prevents the claimant from perfotming past relevant work. If not, the claimant (5) is not disabled and the inqurry is halted. Whethet the claimant is able to perform any othet work considering both her residual functional capacitye ('RFC") and her vocational abilities. If so, the claímant is not disabled. 20 c.F.R. S 416.920. Here, the ALJ first determined that Plaintiff had not engaged acttvity since in substantial gainful April 11,201.2, her application date. (Ir. 15.) The AtJ next found in step two that Plaintiff had the following severe impairments: liver disease, hepatitis C, degenerative disc disease, headaches, chtonic obstuctive pulmonary disease, asthma, headng loss, mood disorder, anxiety, drug abuse, and alcoholism. Qd.) At step thtee, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, ot medically equal to, one listed in Appendix 1 . could not return to her past relevant (d. at 1,6.) At step four, the ALJ detetmined that Plaintiff work. (Id. at31,.) At step five, the ALJ determined that considering Plaintiffs age, education, work experience, and RFC, there wete jobs 6 in the "Residual functional capactty" is the most a claimant can do in a work setting despite the physicalandmentallimitationsof herimpaitment andany relatedsymptom (e.g.,pan). See20 C.F.R. g al6.9a5(a) (1); see also Hines u Barnhart, 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, heav/, or very heavy work," as well as "nonexertional limitations (mental, sensory ot skin impairments)." Hall a. Hams,658 F.2d 260,265 (4th Cir. 198i). 5 national economy that she could B. petform. (Id. at31-32.) Residual Functional Capacity Determination Prior to step fout, the ALJ determined Plaintiffs RFC based on an evaluation of the evidence. (Id. at19-20.) Based on the evidence as a whole, the ALJ detetmined that Plaintiff retained the RFC to perform light work in that she could lift ot c ffy ten pounds frequently and twenty pounds occasionally and could sit, walk, and stand, each for up to six hours in any combination as needed to complete a notmal eight-hout workday. (Id. at 1,9.) The ALJ futher concluded that Plaintiff could frequently climb ramps or stairs, but could never climb ladders, ropes, or scaffolds. Qd) The ALJ further concluded that Plaintiff could frequently balance, and occasionally stoop, kneel, crouch, and crawl. (Id.) The ALJ next found that she must avoid exposure to workplace hazatds, such as dangetous or moving machinery and unprotected heights, as well as extreme heat and contâct with skin irritants. (Id) The ALJ next found that Plaintiff must avoid concentrated exposure to atmosphedc itdtants. Qd.) The ALJ then found that Plaintiff required a quiet to modetate noise environment and was limited to simple, routine, repetitive tasks ("SRRT's"), consistent with unskilled wotk, further defined as consistent with a Specific Vocational Preparation rating the Diction ary of Occupational Titles. C. of ot 2 as described in '1-. (Id. at 20.) Past Relevant \üüork The ALJ found at step four that Plaintiff was "unable to perform any past televant work." (Id. at31,.) 6 D. Adiustment to Other Work The claimant bears the initial burden of proving the existence of a disability. 42 U.S.C. g 1382c(a)(3XHXi); 20 C.F.R. S 41,6.202-03 Snith u. Calfano,592F.2d 1235, 1,236 (4th Cu. 1,979). If the claimant has established at step fout that she cannot do any wotk she has done in the past because of her severe impairments, the burden shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy which the claimant could perform consistent with her RFC, age, education, and past work experience. Hanter, 993 F.2d at 35; Il/ilson u. Califuno, 61,7 F.2d 1050, 1053 (4th Cir. 1980). The ALJ found here that given Plaintiffs age, education, work experience, and RFC, thete were jobs in the national economy that she could perform, such as a ticket taker, matket, and V. router. Qt 32.) ANALYSIS In pertinentp^tt, Plaintiff contends that the ALJ failed to propetly account in the RFC for her moderate limitations in concentration, persistence, or pace ("CPP"). (Docket Et try 1,0 at 5-7 .) Fot the following reasons, the Coutt agrees. On March 18, 201.5, the United States Court of Appeals for the Fourth Citcuit published its opinion in Mastio u. Coluin,780 F'.3d 632 (4th Cu.2015). In Masdo, the Fourth Circuit determined that remand was apptopriate for three distinct reasons, one of which is relevant to the analysis of this case. because the hypothetical the Specifically, the Fourth Circuit remanded in Mascio ALJ posed to the VE, and the coresponding RFC assessment, did not include any mentâl limitations other than unskilled wotk, despite the fact that, at step three of the sequential evaluation, the ALJ detetmined that the claimant had 7 moderate difûculties in maintaining CPP. Masdo,780 F.3d ^t 637-38. The Fourth Circuit specifically held that it "agtee[s] with othet circuits that anALJ does not account fot a claimant's limitations in concenttation, persistence, and pace by restricting the hypothetical question to simple, toutine tasks ot unskilled work." Id. at 638 (quoting Il/in:chela. Comm'r of Soa Sec.,63L F.3d 1176,11S0 (11th Cu.201,1)) (internal quotation marks omitted). In so holding, the Fourth Circuit emphasized the distinction between the ability to perform simple tasks and the ability to stay on task, stating that "[o]nly the lattet limitation would account fot a claimant's limitation in concentration, petsistence, or pace." Although the Fourth Circuit noted that the A{'s Id. errot might have been cured 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, remand was necessary. Id.7 Here, the ALJ determined at step three that the claimant had modetate limitations in CPP. (Ir. 19.) In support, the ALJ's assessment, in its entirety, was, "[t]he claimant has repotted decteased concenttation and neuropsychiatric testing in April 201,2, showed some difficutty in understanding and following instructions. \X/hile the claimant was d"iagnosed with memory lapses, these were attributed to medications and insomnia as well as het depression." 7 Prc-Ma¡rio, an ALJ's fird-S fhat a claimant had a moderate limitation, as opposed to a mild or no limitation, was generally insignifrcant. See Hanþ u. Comn'r, Soc. Sec. Admin., No. SAG-09-1.66, 201,5 WL 9302972, at *3 n.4 (D. Md. Dec 22,2015) (unpublished). The finding that potentially triggered a listing was that of a "rnarked" limitation. Id. Thus, the omission of a meaningful explanation to iustifu a "moderate" finding would likely have been, at most, harmless error. Id. Now, post-Masdo, a reviewing court must understand the rationale behind a finding of moderate limitation to assess the validity of the presence or absence of cortesponding limitations in an RFC. Id. An A.LJ firdirg a moderate limitation, therefore, has to ensure that the precise nature of that limitation is addressed in sufficient detail. Id. Here, as explained below, the analysis in this case does not meet that standard. 8 (d. at1,9.) "Pursuant to Mauio, once anA{ has made a step three findingthat aclaimant suffers from moderate difficulties in concentration, persistence, or pace, the ALJ must eithet include a corresponding limitation in her RFC assessment, ot explain why no such limitation is necessary." SeeTølmo Lt. Clmm'r, Soc. Sec.,Civil Case No. ELH-1,4-221,4,2015 lfl- 23951'08, at *3 (D.Md. May 1.9,201,5) (unpublished). Hete, the ALJ did neither. More specifically, the ALJ did not include a limitation in the RFC assessment that accounts for PlaintifPs moderate limitations in CPP. Instead, the ALJ concluded that Plainuff "requires a quiet to moderate noise environment and is limited to simple, toutine, tepetitive tasks, consistent with unskilled work, futher defined Preparation tating as consistent with a Specific Vocational of L or 2 described in the Dictionary of Occupational Titles." (Tt. 19.) Despite the Commissionet's arguments to the contrary Q)ocket Etttty 1,3 at1.8-23), this is not, by itself, a suffìcient limitation to account for moderate limitations in CPP. There are, tn fact, marry post-Masdo cases stating that limitations like the aforementioned ate, without more, insufficient to account fot moderate limitations in CPP.8 8 See e.g.,Patton a. Coluin,No. 1:15CV61,6,201,6WL341,7361,,at*3-4 (À4.D.N.C. J:une1.6,201'6) (unpublished) reconnendation adoþtedsltp Op. GVI.D.N.C.July 13, 201,6);Ta/oru. Coluin,No. 1:14CV629, 2015 WL 4726906,at*6-7 (i\4.D.N.C. Aug. 10,2015) (unpublished) reconmendation adoþted Slip Op. (i\,t.D.N.C. Sept.9,2015);Ta/oru. Coluin,No. T:14CV00616,201.5WL4400534,x3 (lüØ.D.Va.July 17, 2015) (unpublished); Herup u. Commissioner, No. SAG-14-2855,201.5 !øL 41 1.1.483, +3 Q).Md. July 7, Md July 2015) (unpublished); IWinkler a. Commissioner,No. SAG-14-2720,201,5WL 4069334,*2-3 2, 2015) (unpublished); Bailelt u. Cohin, No. 5:14-CY-0248, 2015 WL 2449044, *13 (D.S.C. }t'fay 21', 201,5); Talmo a. Commisioner, No. ELH-1,4-221,4, 201,5 WL 23951.08 (D.Md. M.ay 1'9, 201'5) (unpublishe d), recomnendarion adopte,/, slip op. (D. Md. June 5, 2015) (unpublished); S*ggt a, Coluin,No. 3:1,4-cv-00466,201.5 WL 2250890, x4-5 flX/.D.N.C. May 1,3,2015) (unpublished); Salmon u. Coluin, p 1.:1.2CY1.209,201.5WL 1526020,*2-3 (A{.D.N.C. Apt.2,2015) (unpublished)' 9 Nor did the AtJ here sufficiently explain why additional limitations were unnecessary to account for Plaintiffs moderate limitations in CPP. Although the ALJ g ve ^ lengthy recitation of Ptaintiffs treatment for her mental impairments, she did not specifically link any of this recitation to the mental RFC finding fot what was essentially a limitation to SRRT's. Qr. 25-30.) This tecitation alone does not constitute an explanation for why Plaintifls moderate limitations in CPP were sufficiently captured by a limitation to SRRT's. Moreover, the Court is troubled by the ALJ's âssessment of the non-examiûing stâte agency psychiatrists that evaluated the tecotd. Specifically, the ALJ stated: Dr. Newman found the claimant with sevetal matked Iimitations, including the ability to accept insttuction ot tespond apptopriately to criticism, interact with the public, and maintain attention and concenttation for extended pedods. However, he also found that clatmant's use of drugs ot alcohol was matetial to these findings. @". 5 A, pp. 8-11). During the subsequent MRFC assessments, neither Dr. Lloyd not Dr. \X/ax found more than amodetate limitation fot any specific mental ability and both concluded that the claimant could perform simple, routine, repetitive tasks in a non-production, low social setting work environment (Ex. 1 A, pp. 11-13, Ex. 3Â, pp. 13-15). The undetsþed gives some weight to the MRF'C findings as consistent with contemporaneous teating records. G'. 30.) In rendering this analysis, and giving "some weight" to the findings of Dts. Lloyd and \X/ax, the ALJ presumably gave some weight to their conclusions that Plaintiff should be limited to tasks in a non-production, low social setting work environment. Nevertheless, the ALJ never explained why she omitted these limitations ftom the mental RFC finding, not did the ALJ explain why those limitations were unnecessary. 10 Not is the answer to this question self-evident.e Consequently, the Court is left to speculate as to whethet the ALJ, at least in part, tacitJy discounted without explanation the opinions of Dts. Lloyd and ìØax, or, instead, simply forgot to include the production pace limitation in the mental RFC finding. Fot these reasons, the undersigned cannot ptopetly review this case for substantial evidence. Cliford Apft[221 F.3d 863,872 (7th Cir. 2000) (noting that ALJ is required to draw "^Ít ^ccut^te u. and logical bddge from the evidence to [the] conclusion"). The Commissioner's arguments to the contrary âre not persuasive. First, the Commissioner contends that the ALJ's references in her decision to various treatment notes constitute an explanation as to why the mental RFC finding is sufficient. at. pocket Entry 13 20-22.) As explained above, however, the ALJ's tecitation of the record evidence here does not sufficiently explain the apparent discrepancy between het step three finding (that Plaintiff suffered from moderate limitations in CPP) and her RFC assessment (imiting Plaintiff to SRRT's) such that it is susceptible to judicial review. The ALJ did not meaningfully connect the treatment notes cited by the Commissionet to that discrepancy, and the undersigned is unwilling to infer such a connection whete it does not appear clearly waranted.lo e This is especially so given (1) the ALJ's step three finding that Plaintiff had modetate limitations in CPP, (3) record evidence that Plaintiff showed difficulty understanding and repeating words and insftuctions, difficulty following instructions, and difficulty with her memory, and (3) the opinions of Dts. \Wax and Lloyd, discussed furthet above. Çn1'9,26,30.) 10 See, e.5., Ta/m0,2015 WL 2395708, at x3 (remanding where ALJ did not connect treâtment notes cited by Commissioner with step three and RFC disctepancy on issue of moderate CPP) czmPare withTolþert u. Coluin,No. 1:15CV437,201,6WL 6956629, at+9 (À{.D.N.C. Nov. 28, 2016) (unpublished) (affrming ALJ on similar issue where ALJ explained that the plaintiff did not seek mental health treatment and "acknowledged that none of her impairments affected her memory, her ability to 11 Second, and likewise, the Commissioner assetts that Plaintiffs argument is a conclusory claim of simple legal ertor, which is not grounded in the evidence. pocket Etttry 1'3 at 19.) However, this argument largely ignotes the ALJ's step three finding that Plaintiff suffers ftom moderate limitations in CPP. The Commissionet's argument futther fails to acknowledge the other evidence discussed herein,ll and also begs the ultimate question at hand, which is whether the decision in question is subject to judicial teview. As explained above, it is not. Finally, in contending that the ALJ's mental RFC determination satisfied the dictates of Mascio, the Commissioner points to, among other things, the opinions of Drs. ITax and Lloyd, and chanctetizes them as concluding that performing SRRT's. (Docket Entry 1,3 Plain¡ff is capable of maintaining CPP while at 26 referendngTr. 1,21,-22,1,39-40.) This is indeed true, however, âs explained above, Drs. Tovah and \ü/ax also opined that Plaintiff should be limited to a non-ptoduction and non-social environment. Consequently, the Court concludes that remand is proper so that the ALJ may build a logical bridge between the evidence of recotd and her conclusions. Matcio,780 F.3d ^t 638 ("Perhaps the ALJ can explain why Masùo's moderate limitation in concenttation, petsistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity .. .þ]"t because the ALJ hete gave no explanation, a temand is in otder.")' complete tasks, her ability to concenúate andunderstand things, ot her ability to follow insftuctions"); ll/a// a. Coluin, No. 1:15CV01089, 201.6 WL 5360682, at x6 (1\{.D.N.C. Sept. 23,201,6) (unpublished) (affrming A.LJ on similar issue where "the ALJ expressl;' noted that both state agency consultants found that Plaintiff suffered moderate limitation in CPP, but that, despite that concentrational deficit, Plaintiff remained mentaliy able to perform work lfunited to SRRTs") (internal citation omitted), recommendation adopTed, slip op. (l\{.D.N.C. October 14,201,6) (unpublished). 11 See sapra note 8. t2 None of this necessarily means that Plaintiff undersigned expresses no opinion on that is disabled undet the Act and the mattet. Nevertheless, the undersigned concludes that the proper course here is to remand this matter fot furthet administrative ptoceedings. The Court declines consideration of the additional issues taised by Plaintiff at this time. Hancock u. Bømhart,206 F.Supp.2d757,763-764 CX/.D. Ya.2002) (on remand, the pdot decision of no preclusive effect, as it is vacated and the new hearing is conducted). VI. CONCLUSION IT IS HEREBY ORDERED that the Commissioner's amended motion fot leave to file excess pages pocket Entry 14) is GRANTED and the Commissionet's motion to exceed page limit (Docket Entry 11) is DENIED as moot. The Court has considered all of the pleadings of tecotd. FURTHERMORE, IT IS HEREBY RECOMMENDED that that Commissioner's decision finding no disability be REVERSED, and the mattet the be REMANDED to the Commissionet under sentence four of 42 U.S.C. $ a05G). The Commissioner should be directed to remand the matter to the ALJ for futthet administtative action âs set out above. To this extent, Plaintiffs motion for judgment Q)ocket Entry 9) should be GRANTED and Defendant's motion fot judgment (Docket Entry 12) should DENIED. L lïçhuter St*cr h{agistnteJ"dge Febtuary 23,2017 Durham, North Carolina 13 be

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