EARLEY v. BERRYHILL
Filing
19
MEMORANDUMP OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 8/5/2019. RECOMMENDED that the Commissioner's decision finding no disability be vacated and that the ma tter be remanded under sentence four of 42 U.S.C. § 405 (g), for further administrative proceedings as to why, for purposes of establishing an RFC, restricting Plaintiff to SRRTs adequately accounts for his moderate limitation in CPP (or, alter natively, whether additional restrictions should apply and/or whether jobs that can accommodate any such additional restrictions exist in substantial numbers. As a result, Defendant's Motion for Judgment on the Pleadings (Docket Entry 17 ) should be denied and Plaintiffs Motion for Summary Judgment Remanding for Rehearing the Commissioner's Final Administrative Decision (Docket Entry 15 ) should be granted. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
STEPHEN B. EARLEY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social
Security,1
Defendant.
1:18CV155
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Stephen B. Earley, 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 12 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 15, 17; see also Docket Entry 16 (Plaintiff’s Brief);
Docket Entry 18 (Defendant’s Memorandum).
For the reasons that
follow,
matter
the
Court
should
remand
this
for
further
administrative proceedings.
1
The United States Senate confirmed Andrew M. Saul as the Commissioner of
Social Security on June 4, 2019, and he took the oath of office on June 17, 2019.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul
should be substituted for Nancy A. Berryhill as the Defendant in this suit.
Neither the Court nor the parties need take any further action 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 a disability onset date of
November 1, 2006.
(Tr. 145-51.)
Upon denial of that application
initially (Tr. 62-69, 78-81) and on reconsideration (Tr. 70-77, 8487), Plaintiff requested a hearing de novo before an Administrative
Law Judge (“ALJ”) (Tr. 91-92).
Plaintiff, his attorney, and a
vocational expert (“VE”) attended the hearing.
(Tr. 26-61.)
The
ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 10-21.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-6, 9, 141-44), thereby making
the ALJ’s ruling the Commissioner’s final decision for purposes of
judicial review.
In
rendering
that
decision,
the
ALJ
made
the
following
findings:
1.
[Plaintiff] last met the insured status requirements
of the . . . Act on September 30, 2010.
2.
[Plaintiff] stated that he did not engage in
substantial gainful activity during the period from his
alleged onset date of November 1, 2006 through his date
last insured of September 30, 2010.
. . .
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: migraines and chronic pain
syndrome.
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
2
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform a full
range of work at all exertional levels but with the
following nonexertional limitations: [Plaintiff] is
limited to simple, routine, and repetitive tasks due to
pain.
. . .
6.
Through the date last insured, [Plaintiff] was
capable of performing past relevant work as a Dump Truck
Driver. This work did not require the performance of
work-related activities precluded by [Plaintiff’s]
residual functional capacity.
. . .
7.
[Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from November 1, 2006, the
alleged onset date, through September 30, 2010, the date
last insured.
(Tr. 15-20 (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).
Hines v.
However, “the scope
of . . . 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.
3
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).
reviewing
court must
uphold
the
factual
findings
Instead, “a
of
the
ALJ
[underlying the denial of benefits] 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, 390 (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) (internal brackets 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 [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
4
whether
a
claimant
is
disabled,
the
responsibility
for
that
decision falls on the [Social Security 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 [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
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
account
a
claimant’s
age,
education,
and
work
experience
addition to [the claimant’s] medical condition.”
Id.
regulations
process’
establish
a
‘sequential
evaluation
in
“These
to
determine whether a claimant is disabled.” Id. (internal citations
omitted).
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 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).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
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.
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 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 government cannot carry its “evidentiary burden of
proving that
[the
claimant]
remains
4
able
to
work
other
jobs
“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 workrelated 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
available in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.5
B.
Assignment of Error
In Plaintiff’s first and only issue on review, he argues that
“[t]he
ALJ’s
failure
to
account
for
[Plaintiff’s
moderate]
limitations in concentration, persistence, and pace [(‘CPP’)] by
restricting
the
RFC
to
simple,
routine
and
repetitive
tasks
[(‘SRRTs’)] warrants remand” under Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015).
(Docket Entry 16 at 9 (bold font and single-
spacing omitted).)
Plaintiff maintains that, “[i]n Mascio, the
[United States Court of Appeals for the] Fourth Circuit held that
‘an ALJ does not account for a claimant’s limitations in [CPP] by
restricting the hypothetical question to simple, routine tasks or
unskilled
work.’”
(Id.
(citing
Mascio,
780
F.3d
at
638).)
According to Plaintiff, although the “Court has recognized that
Mascio allows for the possibility that an ALJ can adequately
explain why the mental RFC in question sufficiently encompasses a
moderate limitation in [CPP]” (id. at 10 (citing Adams v. Colvin,
No.
1:15CV673,
2016
WL
4007608
5
(M.D.N.C.
July
26,
2016)
A claimant thus can qualify as disabled 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.”).
8
(unpublished), recommendation adopted, 2016 WL 6651324 (M.D.N.C.
Nov. 10, 2016) (unpublished) (Osteen, Jr., C.J.), Wall v. Colvin,
No.
1:15CV1089,
2016
WL
5360682
(M.D.N.C.
Sept.
23,
2016)
(unpublished), recommendation adopted, slip op. (M.D.N.C. Oct. 14,
2016) (Osteen, Jr., C.J.))), “in this case, however, the ALJ
nowhere explains or supports his decision to restrict [Plaintiff]
only to [SRRTs] despite his moderate limitations in [CPP]” (id.).
Plaintiff’s contentions have merit and warrant remand.
The Fourth Circuit has indeed held that “the ability to
perform simple tasks differs from the ability to stay on task” and
that “[o]nly the latter limitation would account for a claimant’s
limitation in [CPP].”
Mascio, 780 F.3d at 638.
However, as a
neighboring district court has explained:
Mascio does not broadly dictate that a claimant’s
moderate impairment in [CPP] always translates into a
limitation in the RFC. Rather, Mascio underscores the
ALJ’s duty to adequately review the evidence and explain
the decision . . . . An ALJ may account for a claimant’s
limitation with [CPP] by restricting the claimant to
simple, routine, unskilled work where the record supports
this conclusion, either through physician testimony,
medical source statements, consultative examinations, or
other evidence that is sufficiently evident to the
reviewing court.
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (magistrate judge’s recommendation adopted by
district judge) (unpublished) (emphasis added); see also Hutton v.
Colvin, No. 2:14-CV-63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16,
2015)
(unpublished)
(finding
reliance
9
on
Mascio
“misplaced,”
because ALJ “gave abundant explanation” for why unskilled work
adequately accounted for claimant’s moderate limitation in CPP, by
highlighting
the
claimant’s
daily
activities
and
treating
physicians’ opinions).
Here, however, the ALJ’s decision includes no such explanation
as
to
why
a
limitation
to
SRRTs
sufficiently
Plaintiff’s moderate limitation in CPP.
accounts
for
At step three of the SEP,
the ALJ provided the following analysis:
Although [Plaintiff] does not have a severe mental
impairment, the [ALJ] finds that, due to pain,
[Plaintiff] has significant impairments in his ability to
understand, remember, and apply information, as well as
in his ability to maintain [CPP].
In making this
finding, the [ALJ] has considered the “paragraph B”
criteria that are normally associated with mental
impairments . . . .
The [ALJ] finds that, due to pain, [Plaintiff] had
moderate limitation in understanding, remembering, or
applying information; had mild limitation in interaction
with others; had moderate difficulty maintaining [CPP];
and had mild limitation in adapting or managing oneself.
(Tr. 16 (emphasis added).) The ALJ tied Plaintiff’s limitations in
the mental areas of functioning to his pain rather than a mental
impairment,
but
neither
gave
any
further
explanation
of
why
Plaintiff’s pain caused mild limitations in two functional areas
and moderate limitations in two other areas, nor, specifically, why
Plaintiff’s pain caused moderate, as opposed to mild, marked or
extreme limitations in CPP.
(See id.)
10
The
ALJ
compounded
his
lack
of
explanation
by
noting,
presumably as support for his findings in the mental areas of
functioning,
that
“[n]o
state
agency
psychological
consultant
concluded that a mental listing [wa]s medically equaled.”
(Id.)
That statement, however, only tells half the story – no state
agency psychological consultant, at either the initial or the
reconsideration level of review, evaluated Plaintiff’s abilities in
the mental areas of functioning, because the single decision-maker
at the initial level and the state agency medical consultant at the
reconsideration
level
reviewed
very limited
evidence
relating
primarily to Plaintiff’s benign pituitary cyst, noted that his pain
management records pertained to time periods after Plaintiff’s date
last insured (“DLI”) and, therefore, concluded that insufficient
evidence existed to evaluate Plaintiff’s claim (see Tr. 65-66, 7274).
The record before the ALJ, by contrast, contained many more
records
pre-dating
Plaintiff’s
DLI
detailing
Plaintiff’s
intercostal neuralgia following a cholecystectomy and repeated
trips to the pain clinic for a nerve block, narcotics, and multiple
epidural steroid injections. (See Tr. 243-363.) Moreover, the ALJ
later recognized that the state agency decision-makers lacked
sufficient evidence to evaluate Plaintiff’s claim and accorded
their assessments “no weight.”
(Tr. 20 (emphasis added).)
Moreover, the ALJ did not discuss Plaintiff’s concentration
deficits at all in his RFC discussion.
11
(See Tr. 17-20.)
A
neighboring
district
court
recently
addressed
similar
circumstances:
[W]hen viewing the decision as a whole, the ALJ fails to
analyze how [the p]laintiff’s perceived pain from her
limitations affect her ability to concentrate. . . .
[T]he ALJ based [the p]laintiff’s moderate CPP limitation
on her pain. . . .
The ALJ did not just see a connection between [the
p]laintiff’s mental status and her concentration; he saw
a connection with [the p]laintiff’s pain as well.
Nonetheless, the ALJ failed to analyze [the p]laintiff’s
pain in relation to her concentration and whether that
pain warranted further limitations in the RFC. While the
ALJ did find that [the p]laintiff’s credibility was
diminished in respect to the persistence or limiting
effects of her symptoms, he did not discuss what pain was
credible and what effect that pain, or the absence there
of, had on [the p]laintiff’s concentration. In the end,
what was apparently enough to warrant finding a moderate
limitation in CPP was never mentioned in the RFC
analysis. The [c]ourt is left to guess that [the
p]laintiff’s pain did not affect her concentration.
Because the [c]ourt cannot take part in such a guessing
game, the lack of explanation warrants remand. Mascio,
780 F.3d at 638 (“Perhaps the ALJ can explain why [the
claimant’s] moderate limitation in [CPP] at step three
does not translate into a limitation in [her RFC]. . . .
But because the ALJ here gave no explanation, a remand is
in order.”)
Johnson v. Berryhill, No. 1:17-CV-00034-RJC, 2018 WL 1185510, at *4
(W.D.N.C. Mar. 7, 2018) (unpublished).
In other words, the ALJ’s
decision does not provide a “logical bridge,” Clifford v. Apfel,
227 F.3d 863, 872 (7th Cir. 2000), between the ALJ’s conclusion
that Plaintiff suffered moderate concentration deficits and the
ALJ’s decision that Plaintiff could perform SRRTs in the work
place, without any further concentration-related restriction.
12
Given these considerations, the ALJ’s decision runs afoul of
Mascio and requires remand.
III. CONCLUSION
Plaintiff has established grounds for relief.
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 as to why, for purposes of establishing
an RFC, restricting Plaintiff to SRRTs adequately accounts for his
moderate limitation in CPP (or, alternatively, whether additional
restrictions should apply and/or whether jobs that can accommodate
any such additional restrictions exist in substantial numbers.
As
a result, Defendant’s Motion for Judgment on the Pleadings (Docket
Entry 17) should be denied and Plaintiff’s Motion for Summary
Judgment
Remanding
for
Rehearing
the
Commissioner’s
Final
Administrative Decision (Docket Entry 15) should be granted.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 5, 2019
13
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