HARVEY v. COLVIN
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 3/9/2017; that the Commissioner's decision finding no disability be vacated, and that the matter be remanded under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings regarding Plaintiff's RFC and ability to perform jobs available in the national economy. As a result, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 8 ) should be granted in part (i.e., to the extent it requests remand), and Defendant's Motion for Judgment on the Pleadings (Docket Entry 10 ) should be denied. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHARON HARVEY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
1:16CV574
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Sharon Harvey, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 6 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 8, 10; see also Docket Entry 9 (Plaintiff’s Memorandum);
Docket Entry 11 (Defendant’s Memorandum)).
For the reasons that
follow,
matter
the
Court
should
remand
this
for
further
administrative proceedings.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging an onset date of April 4,
2011.
(Tr. 146-47.)
Upon denial of that application initially
(Tr. 68-77, 89-92) and on reconsideration (Tr. 78-88, 96-99),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”)
(Tr.
100-01).
Plaintiff,
her
vocational expert (“VE”) attended the hearing.
attorney,
and a
(Tr. 31-67.)
The
ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 12-25.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-6, 9-11, 245-49), thereby
making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through June 30, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since April 4, 2011, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
lumbar degenerative disc disease with radiculopathy and
hyperlipidemia.
. . .
4.
[Plaintiff] 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.
. . .
2
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except she can sit
for six hours and stand and/or walk for six hours in an
eight hour working day with fifteen minute breaks every
four hours; is limited to frequent operation of foot
controls with the lower extremities bilaterally; frequent
reaching overhead with the upper extremities bilaterally;
frequent climbing of ramps and stairs; no climbing of
ladders and scaffolds; frequent stooping, kneeling, and
crouching; and only occasional crawling.
Further,
[Plaintiff] is limited to occasional exposure to
unprotected heights; frequent exposure to moving
mechanical parts; occasional exposure to weather and
weather extremes, such as extreme heat, cold, and
humidity and wetness; and nonconcentrated exposure to
dust, odors, fumes, and pulmonary irritant[s].
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, [Plaintiff]
has acquired work skills from past relevant work that are
transferable to other occupations with jobs existing in
significant numbers in the national economy.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from April 4, 2011, through the
date of this decision.
(Tr.
17-25
(bold
font
and
internal
parenthetical
citations
omitted).)
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
3
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given those limitations, the Court should remand this case for
further administrative proceedings.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the 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.” Hines, 453 F.3d at 561
(internal brackets and 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. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
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 [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
4
adopted by the Commissioner].”
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
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, 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,’” id.
(quoting
42
U.S.C.
§
423(d)(1)(A)).2
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
2
The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program provides benefits to indigent disabled
persons. The statutory definitions and the regulations . . . for determining
disability governing these two programs are, in all aspects relevant here,
substantively identical.”
Craig, 76 F.3d at 589 n.1 (internal citations
omitted).
5
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
4
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks 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, 658
F.2d at 265. “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.
7
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
B.
Assignment of Error
In Plaintiff’s sole issue on review, she faults the ALJ for
“failing to resolve inconsistencies between his RFC and the medical
opinion evidence.”
(Docket Entry 9 at 4 (bold font omitted).)
In
particular, Plaintiff contends that the ALJ found limitations to
occasional standing, walking, and bending reflected in a functional
capacity
evaluation
(“FCE”)
(see
Tr.
386),6
and
subsequently
adopted by Plaintiff’s treating orthopedic surgeon, Dr. Jeffrey D.
Jenkins (see Tr. 426), “‘consistent with the evidence of record’”
(Docket Entry 9 at 4 (quoting Tr. 22)), but adopted an RFC which
expressly allowed for “standing and walking up to 6 hours each in
an 8 hour work day” and frequent stooping and crouching (id.
(emphasis added) (citing Tr. 18)).
According to Plaintiff, the
5
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
6
The FCE defined “Occasional” to mean from one to 33 percent of a “[d]ay,” but
did not clarify whether a “[d]ay” represented an eight-hour work day. (See Tr.
386.) Assuming that Mr. Gilbert intended a “day” to constitute a standard eighthour work day with two fifteen minute breaks and one 30-minute meal break, see
Social Security Ruling 96-9p, Policy Interpretation Ruling Titles II and XVI:
Determining Capability to Do Other Work – Implications of a Residual Functional
Capacity for Less Than a Full Range of Sedentary Work, 1996 WL 374185, at *6
(July 2, 1996) (“SSR 96-9p”), “occasional” would translate to a maximum of two
hours and twenty minutes.
8
ALJ’s failure to explain how those RFC findings could harmonize
with the FCE findings the ALJ adopted violated Social Security
Ruling 96-8p, Policy Interpretation Ruling Titles II and XVI:
Assessing Residual Functional Capacity in Initial Claims, 1996 WL
374184,
at
*7
(July
2,
1996)
(“SSR
96-8p”)
and
20
C.F.R.
§ 404.1527(b) (Docket Entry 9 at 5), and caused the ALJ to
erroneously discount the opinions of consultative examiner Dr.
Lynde
Knowles-Jonas
Plaintiff
urges the
(see
id.
Court
to
at
6
find
(discussing
the ALJ’s
Tr.
22-23)).
foregoing
error
prejudicial, because the ALJ’s adoption of the FCE’s limitations to
occasional standing and/or walking would “prevent the performance
of the light jobs relied upon by the ALJ at the hearing to deny
[Plaintiff’s]
claim,
.
.
.
[and]
would
also
likely
limit
[Plaintiff] to . . . sedentary work,” which, under Rule 201.06 of
the Medical-Vocational Guidelines, would result in a finding of
disability.
(Id. at 5 (citing 20 C.F.R. § 404.1567, and 20 C.F.R.
Pt. 404, Subpt. P, App’x 2, § 201.06).)
Plaintiff’s contentions
have merit.
The ALJ’s evaluation of the FCE suggests, as Plaintiff argues
(see Docket Entry 9 at 5), that the ALJ interpreted the FCE to
limit Plaintiff to the exertional demands of light work with
certain postural restrictions, and that the ALJ believed the FCE’s
exertional
and
postural
limitations
determination:
9
harmonized
with
the
RFC
The [ALJ] finds it instructive that upon FCE in May 2012,
[Plaintiff] could perform light work with some postural
limitations . . . . [T]he undersigned has given partial
weight to [FCE administrator Thomas R.] Gilbert’s
opinions following FCE as well as Dr. Jenkins’s adoption
of those findings and opinions in May 2012. While the
opinions as to [Plaintiff’s] exertional limitations as
well as various postural limitations are consistent with
the evidence of record, the extent of the remaining
opinions as to the cervical and manipulative limitations
are not entirely supported by the treatment notes or
[Plaintiff’s] reported activities of daily living.
Accordingly, Mr. Gilbert’s and Dr. Jenkins’s opinions
have been given some, but not great weight in making this
[RFC] finding.
(Tr. 22 (emphasis added) (internal citations omitted).)7
The ALJ
limited Plaintiff to the light exertional level in the RFC, and
expressly found that Plaintiff could “stand and/or walk for six
hours in an eight hour working day,” frequently stoop, kneel, and
crouch, and occasionally crawl.
(Tr. 18 (emphasis added).)
The ALJ’s reliance on the FCE (and Dr. Jenkins’s opinion
adopting the FCE’s findings) to support the RFC cannot withstand
scrutiny
given
inconsistency.
the
FCE’s
hopeless
ambiguity
and
internal
For example, Mr. Gilbert offered three different
opinions regarding Plaintiff’s ability to walk and stand.
Mr.
Gilbert initially opined that Plaintiff could “[p]erform continuous
walking, stand/walking, standing . . . on an occasional basis.
(Tr. 382 (emphasis added).) In a later portion of the FCE, Mr.
Gilbert
provided
a
chart
in
which
7
he
placed
an
“X”
in
the
The ALJ’s reference to “cervical . . . limitations” (Tr. 22) appears to
constitute a typographical error, as the FCE does not contain any limitations
pertaining to Plaintiff’s cervical spine (see Tr. 382-92).
10
“Occasional” columns for “Stand,” “Walk,” and “Stand/Walk.”
386.)
(Tr.
This time, however, Mr. Gilbert did not specify whether
Plaintiff’s
ability
to
walk
on
an
occasional
(See id.)
continuous or intermittent walking.
basis
involved
In yet another
section of the FCE, Mr. Gilbert recorded his observations of
Plaintiff engaging in various exertional movements, and provided
predicted “functional limitations,” based on those observations,
including
that Plaintiff
could
walk
one
mile
in
30
minutes,
stand/walk for one hour and 30 minutes (see Tr. 391), and stand for
60 minutes (see Tr. 392).
Not only do Mr. Gilbert’s opinions regarding Plaintiff’s
abilities to walk and stand differ with each other, but an ALJ
could interpret Mr. Gilbert’s opinions in four vastly different
ways:
(1)
that
Plaintiff
can
walk
(either
continuously
or
intermittently), stand/walk, and stand for two hours and twenty
minutes
each
in
a
work
day,
totaling
seven
hours
of
some
combination of walking, stand/walking, or standing, (which would
represent
standing
and/or
walking
for
the
entire
work
day,
factoring in 60 minutes of standard breaks, see SSR 96-9p, 1996 WL
374185, at *6); (2) that Plaintiff can engage in any combination of
walking (continuous or intermittent), stand/walking, and standing,
that altogether totals two hours and twenty minutes in a work day;
(3) that Plaintiff can walk one mile in 30 minutes, stand/walk for
90 minutes, and stand for 60 minutes at a time; or (4) that
11
Plaintiff can walk for 30 minutes, stand/walk for 90 minutes, and
stand for 60 minutes total in a work day.
Only the first and third
interpretations arguably harmonize with the ALJ’s RFC, but the
ALJ’s
decision
does
not
explain
how,
given
these
varied
interpretations of the FCE, he reconciled the FCE to comport with
the RFC determination (see Tr. 18-23).
Mr. Gilbert also offered conflicting findings with regard to
the amount of lifting Plaintiff can perform.
Mr. Gilbert first
opined that Plaintiff “demonstrated the ability to perform at the
sedentary/light
physical
demand
level
for
occasional
lifting
(lifting 20 [pounds] frequently from 30 to 60 inches).” (Tr. 382
(bold emphasis in original and underlined emphasis added).) On the
next page of the report, Mr. Gilbert opined that Plaintiff could
occasionally lift “20 [pounds] from 30 to 60 inches.”
(Tr. 383;
see also Tr. 384 (reporting that Plaintiff “demonstrated the
ability to lift 20 [pounds] occasionally from 30 to 60 inches”)
(emphasis added).)
In still another section of the FCE, Mr.
Gilbert listed Plaintiff’s ability to occasionally lift at 25
pounds and frequently lift at zero pounds.
(Tr. 391.)
However,
the ALJ found that Plaintiff could “perform light work as defined
in [the applicable regulation]” (Tr. 18), which, in turn, defines
light work to involve the ability to lift 20 pounds occasionally
and 10 pounds frequently, see 20 C.F.R. § 404.1567(b).
Again, the
ALJ explained neither how he reconciled Mr. Gilbert’s conflicting
12
opinions regarding Plaintiff’s ability to lift, nor how the ALJ’s
interpretation of the FCE harmonizes with an RFC for the full range
of lifting associated with light exertion work.
(See Tr. 18-23.)
Further conflicts exist between the RFC and Mr. Gilbert’s
opinions concerning Plaintiff’s ability to engage in postural
movements.
Mr. Gilbert opined that Plaintiff could “[p]erform
. . . repetitive stooping, bending, and crouching, and static
kneeling activities on an occasional basis” and should “[a]void
crawling, . . . repetitive kneeling and static squatting/crouching
activities.”
(Tr. 382 (emphasis added).)
Yet, the ALJ found that
Plaintiff retained the RFC to frequently stoop, kneel, and crouch,
and occasionally crawl.
conflict,
the ALJ’s
(See Tr. 18.)
decision
fails
As with the other areas of
to
explain
postural limitations comport with the RFC.
how
the
FCE’s
(See Tr. 18-23.)
Furthermore, the ALJ’s error in that regard does not qualify
as harmless.
Uncertainty regarding how the ALJ reconciled the
FCE’s conflicting opinions regarding Plaintiff’s ability to stand
and walk calls into question his finding at step five of the SEP
that light-exertion jobs existed in the national economy that
Plaintiff could perform. (See Tr. 24-25.)
At the hearing, the ALJ
posed a hypothetical question to the VE which matched the ALJ’s RFC
determination, including allowing up to six hours of standing
and/or walking in an eight-hour work day.
(See Tr. 63-64.)
In
response, the VE testified that an individual with the limitations
13
expressed in that hypothetical question could perform the lightexertion jobs of companion, cafeteria attendant, and stock checker
(see Tr. 64), and the ALJ found that Plaintiff could perform those
jobs at step five of the SEP (see Tr. 24-25).
However, the
Dictionary of Occupational Titles does not specify how many hours
of standing and/or walking per work day those jobs entail (see
Dictionary of Occupational Titles, No. 309.677-010, 1991 WL 672667
(Companion), No. 311.677-010, 1991 WL 672694 (Cafeteria Attendant),
No. 299.667-014, 1991 WL 672642 (Stock Checker, Apparel) (G.P.O.
4th ed. rev. 1991)), and the VE did not provide any testimony on
that specific subject (see Tr. 60-66).
Thus, given the ALJ’s
failure to explain how he interpreted the FCE’s ambiguous walking
and standing limitations that he expressly credited in formulating
the RFC (see Tr. 22), the Court cannot determine on the current
record whether Plaintiff could perform the walking and standing
required by those jobs.
In sum, the ALJ’s failure to explain how he reconciled the
internal conflicts within the FCE or the inconsistency between his
crediting of the FCE’s exertional and postural limitations and the
standing, walking, and postural limitations in the RFC rendered his
RFC determination and, in turn, his ultimate finding that jobs
existed
in
significant
numbers
14
in
the
national
economy
that
Plaintiff
could perform,
unsupported
by
substantial
evidence,
requiring remand.8
Upon remand, the ALJ should not rely on Dr. Jenkins’s adoption
of the FCE, given its ambiguity and apparent inconsistency, to
formulate the RFC, but may recontact Dr. Jenkins for clarification
of his opinions and/or may obtain another medical opinion as to
Plaintiff’s ability to perform work-related activities.
III.
CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated, and that the matter be remanded
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings regarding Plaintiff’s RFC and ability to
perform jobs available in the national economy.
As a result,
Plaintiff’s Motion for Judgment on the Pleadings (Docket Entry 8)
should be granted in part (i.e., to the extent it requests remand),
and Defendant’s Motion for Judgment on the Pleadings (Docket Entry
10) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 9, 2017
8
In light of the recommendation to remand this matter for the ALJ to reevaluate
the FCE (and Dr. Jenkins’s opinion adopting the FCE’s limitations), the Court
need not address Plaintiff’s argument that the ALJ’s improper evaluation of the
FCE/Dr. Jenkins’s opinions caused the ALJ to erroneously find the opinions of
consultative examiner Dr. Lynde Knowles-Jonas vague and out of proportion to the
findings from the majority of Plaintiff’s other examinations. (See Docket Entry
9 at 6.)
15
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