TUCKER v. BERRYHILL
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 8/6/2019; that the Commissioner's decision finding no disability be vacated and that the matter be re manded under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings, to include 1) reassessment of the RFC in light of Plaintiff's moderate deficit in CPP in compliance with Mascio, and 2) reconsideration and reweighing of the opinions of the state agency medical and psychological consultants in accordance with 20 C.F.R. §§ 404.1527 and 416.927. As a result, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) should be granted in part, i.e., to the extent it requests remand, and Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) should be denied. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RUTH ISOM TUCKER,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,1
Defendant.
)
)
)
)
)
)
)
)
)
)
1:18CV481
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Ruth Isom Tucker, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”).
(Docket Entry 2.)
Defendant has filed the certified administrative record (Docket
Entry 8 (cited herein as “Tr. __”)), and both parties have moved
for judgment (Docket Entries 10, 12; see also Docket Entry 11
(Plaintiff’s Memorandum); Docket Entry 13 (Defendant’s Memorandum);
Docket Entry 14 (Plaintiff’s Reply)). For the reasons that follow,
the Court should remand this matter 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
is 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 and SSI, alleging a disability onset
date of June 1, 2012.
(Tr. 214-19, 220-27.)
Upon denial of those
applications initially (Tr. 63-94, 129-39) and on reconsideration
(Tr. 95-126, 143-60), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 161-63).
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 33-62.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 7-23.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
211-13), 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] met the insured status requirements of
the [] Act through December 31, 2017.
2.
[Plaintiff] has not engaged in substantial gainful
activity since June 1, 2012, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
aortic occlusion status post bypass, degenerative disk
disease, chronic obstructive pulmonary disease, and
depressive disorder.
. . .
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 medium work . . . except the claimant
would be limited to sitting, standing, and walking each
for six hours out of an eight-hour workday, but for no
more than one hour at [a] time for sitting, standing, or
walking;
frequent
balancing,
stooping,
kneeling,
crouching, and crawling; frequent climbing ramps and
stairs; occasional climbing ladders, ropes, poles, and
scaffolds; avoiding concentrated exposure to fumes,
dusts,
gases,
and
pulmonary
irritants;
avoiding
concentrated exposure to hazards such as unprotected
heights and moving machine parts; and concentrating on
task for two hours at a time before changing tasks or
being redirected.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from June 1, 2012, through the
date of this decision.
(Tr.
12-22
(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).
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).
3
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
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
4
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 [(‘SSA’)]
has . . . detailed regulations incorporating longstanding medicalvocational evaluation policies that take into account a claimant’s
age, education, and work experience in addition to [the claimant’s]
2
The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
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
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).
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
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
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 his “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
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.
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,
(continued...)
7
B.
Assignments of Error
According to Plaintiff, the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ err[ed] when he fail[ed] to incorporate [into
the RFC] non-exertional limitations on the ability to stay on task
where he first f[ou]nd[] that [Plaintiff] was moderately impaired
in the maintenance of concentration, persistence, or pace (‘CPP’)”
(Docket Entry 11 at 5 (citing Tr. 13); see also Docket Entry 14 at
1-5); and
2) “[t]he ALJ err[ed] by failing to incorporate all the
limitations credited into the hypothetical question put to the [VE]
. . . [and] also err[ed] by failing to provide adequate reasons for
rejecting the contrary opinions of the non-examining [s]tate agency
medical consultants” (id. at 14; see also Docket Entry 14 at 2-3).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 13 at 3-13.)
1. CPP
Plaintiff’s first assignment of error asserts that “[t]he ALJ
err[ed]
when
he
fail[ed]
to
incorporate
[into
the
RFC]
non-exertional limitations on the ability to stay on task where he
first f[ou]nd[] that [Plaintiff] was moderately impaired in the
maintenance of [CPP].”
(Docket Entry 11 at 5 (citing Tr. 13); see
5
(...continued)
review does not proceed to the next step.”).
8
also Docket Entry 14 at 1-5.)
In support of that position,
Plaintiff’s Brief observes that, “[i]n Mascio[ v. Colvin, 780 F.3d
632 (4th Cir. 2015)], the Fourth Circuit held that an ALJ does not
account for a claimant’s limitations in CPP by restricting the RFC
or the hypothetical question to the [VE] to simple, routine, or
repetitive tasks [‘SRRTs’], . . . [because] ‘the ability to perform
simple tasks differs from the ability to stay on task[ and o]nly
the latter limitation would account for a claimant’s limitation in
[CPP].’” (Docket Entry 11 at 6 (quoting Mascio, 780 F.3d at 638).)
According to Plaintiff, the RFC’s reference to “‘concentrating on
task for two hours at a time before changing tasks or being
redirected’” (id. (quoting Tr. 14)) fails to “‘adequately account
for a moderate limitation in the ability to stay on task, absent
further explanation,’ because a limitation to working in [two]-hour
increments ‘does not account for any breaks in addition to those
encompassed by a normal workday’” (id. at 7 (quoting Ludlow v.
Commissioner, No. SAG-15-3044, 2016 WL 4466790, at *2 (D. Md. Aug.
23, 2016) (unpublished) (observing that, pursuant to SSA policy, “a
normal workday includes a morning break, a lunch period, and an
afternoon break at approximately 2-hour intervals”)); see also id.
at 7-8 (quoting Capps v. Berryhill, No. CBD-17-2438, 2018 WL
4616018, at *5 (D. Md. Sept. 26, 2018) (unpublished) (holding that
ALJs “must consider that the normal [eight]-hour workday already
includes breaks approximately every two [] hours and provide
9
further explanation as to how [a] restriction [to maintain CPP for
two-hour intervals] adequately accounts for a moderate limitation
in the ability to stay on task or else it does not meet the Mascio
requirements” (internal quotation marks omitted)))).
Plaintiff
posits that the ALJ’s decision “does not reveal any explanation for
the missing limitation on the ability to work on-task for a full
work day, or a finding that the moderate limitation in CPP does not
affect [Plaintiff’s] ability to work.”
(Docket Entry 11 at 11.)
The United States Court of Appeals for 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].”
F.3d
at
638.
However,
as
a
neighboring
district
Mascio, 780
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,
10
2015) (unpublished) (rejecting argument under Mascio where ALJ
“gave
abundant
accounted
for
highlighting
explanation”
claimant’s
the
that
unskilled
moderate
claimant’s
work
adequately
limitation
CPP,
activities
daily
in
by
and
treating
physicians’ opinions).
In this case, the ALJ’s decision provides an insufficient
explanation as to why its reference to “concentrating on task for
two hours at a time before changing tasks or being redirected” (Tr.
14) sufficiently accounted for Plaintiff’s moderate deficit in CPP.
At step three of the SEP, the ALJ provided the following rationale
for finding Plaintiff moderately limited in CPP:
With regard to [CPP], the evidence of record showed that
[Plaintiff] was diagnosed with depressive disorder [(Tr.
405-61)].
The
records
showed
that
[Plaintiff’s]
subjective complaints from her depressive disorder
included, but was [sic] not limited to, poor focus, poor
concentration, forgetfulness, difficulty completing
tasks, racing thoughts, fatigue, and hopelessness and
helplessness [(Tr. 328)].
The [ALJ] finds that
[Plaintiff’s] symptoms were consistent with a diagnosis
of depressive disorder.
(Tr. 14.)
(noting
As Plaintiff points out (see Docket Entry 11 at 11
that
ALJ’s
step
three
CPP
finding
contained
“no
qualification or hedging about the significance of the moderate
limitations
in
CPP”)),
the
ALJ’s
explanation
confirms
that
Plaintiff’s reported mental symptoms matched her diagnosis of
depressive disorder, but provides no basis (beyond the subjective
nature of Plaintiff’s reports, which the ALJ found “not entirely
11
consistent” with the record (Tr. 16)) for his finding of moderate
(as opposed to none, mild, marked, or extreme) limitation in CPP.
Additionally, Plaintiff properly has noted that the RFC’s
reference to “‘concentrating on task for two hours at a time before
changing tasks or being redirected’” (Docket Entry 11 at 6 (quoting
Tr. 14)) fails to “‘adequately account for a moderate limitation in
the ability to stay on task, absent further explanation,’ because
a limitation to working in [two]-hour increments ‘does not account
for any breaks in addition to those encompassed by a normal
workday’” (id. at 7 (quoting Ludlow, 2016 WL 4466790, at *2)).
Although, on its face, the ALJ’s reference to “concentrating on
task
for
two
hours
at
a
time”
(Tr.
14)
appears
to
address
Plaintiff’s ability to stay on task, a recent discussion by this
Court highlights why Plaintiff’s RFC provides no pertinent, mental
limitation at all:
The ALJ’s RFC explicitly limits [the p]laintiff’s ability
to maintain CPP and stay on task to two-hour periods of
time.
[The p]laintiff contends that such a finding
amounts to no restriction because it effectively treats
[the p]laintiff as if she could stay on task for an
eight-hour workday because customary work breaks occur
approximately every two hours. However, the ALJ did not
find that [the p]laintiff maintained the ability to stay
on task for two-hour periods to perform all manner of
work; rather, the ALJ found that [the p]laintiff could
stay on task for two-hour blocks of time only when
performing SRRTs in a low stress work setting, which, in
addition to the nature of the work being performed, [wa]s
further defined to mean no production-pace or quota-based
work, rather a goal-oriented job primarily dealing with
things as opposed to people, with no more than occasional
work with the public as a component of the job, and no
more than occasional changes in the work setting. Thus,
12
the ALJ clearly did include a limitation in the RFC to
account for the state agency psychological consultants’
. . . opinion regarding [the p]laintiff’s ability to
maintain concentration.
Scott v. Berryhill, No. 1:16CV48, 2017 WL 500000, at *5 (M.D.N.C.
Feb. 7, 2017) (unpublished) (emphasis added) (internal citations,
quotation marks, and brackets omitted), recommendation adopted,
slip op. (M.D.N.C. Mar. 1, 2017) (Eagles, J.).
In contrast to Scott, the ALJ here did not include any mental
restriction that would address Plaintiff’s moderate limitation in
CPP.
(See Tr. 14.)
Because, under SSA policy, “‘customary [work]
breaks . . . occur approximately every two hours,’” Hawley v.
Astrue, No. 1:09CV246, 2012 WL 1268475, at *7 (M.D.N.C. Apr. 16,
2012)
(unpublished)
(quoting
Perkins
v.
Astrue,
No.
EDCV–08–1383–OP, 2010 WL 375117, at *6–7 (C.D. Cal. Jan. 25, 2010)
(unpublished) (in turn relying on Social Security Ruling 96-6p,
Policy Interpretation Ruling Titles II and XVI: Consideration of
Administrative
Psychological
Findings
of
Consultants
Fact
and
by
Other
State
Agency
Program
Medical
and
Physicians
and
Psychologists at the Administrative Law Judge and Appeals Council
Levels of Administrative Review; Medical Equivalence, 1996 WL
374180 (July 2, 1996))), recommendation adopted, 2012 WL 3584340
(M.D.N.C. Aug. 20, 2012) (Beaty, C.J.) (unpublished), the ALJ’s
reference in the RFC to “concentrating on task for two hours at a
time” (Tr. 14) did not provide any limitation to account for
13
Plaintiff’s moderate deficit in CPP, but instead just left in place
the standard work schedule (without explaining why Plaintiff could
meet the demands of such a schedule despite her moderate deficit in
CPP).
Further compounding the ALJ’s failure to either include a
restriction accommodating Plaintiff’s moderate deficit in CPP in
the RFC or a sufficient explanation for the absence of such a
restriction, the ALJ’s discussion and weighing of the opinion
evidence as it relates to Plaintiff’s ability to function mentally
does not provide a “logical bridge,” Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000), between the ALJ’s finding of moderate CPP
deficits and the RFC.
In that regard, Plaintiff notes that the
state agency psychological consultant at the initial level of
review limited Plaintiff to “‘[SRRTs] in relatively undemanding
work settings that do not require intensive interpersonal relating
and that require no more than two hours at the time of maintenance
of attention and concentration’” (Docket Entry 11 at 8 (quoting Tr.
75,
90)
(emphasis
added)),
and
the
consultant
at
the
reconsideration stage found that Plaintiff could “sustain attention
and concentration for at least [two] hours at a time to perform a
variety of tasks at low production pace” (id. (quoting Tr. 106-07,
121-22) (emphasis added)).
However, “in spite of [the ALJ’s]
allocation of ‘partial weight’ to the[ consultants’] assessments”
(id. (quoting Tr. 20)), the ALJ neither incorporated into the RFC
14
any of the consultants’ above-emphasized restrictions (see Tr. 14)
nor sufficiently explained their absence.
To the contrary, the ALJ’s decision simply states:
The [ALJ] gives partial weight to the assessments of [the
state agency psychological consultants] and finds that
their assessments were consistent with the evidence of
record, which showed that [Plaintiff] was diagnosed with
depressive disorder . . . . Greater weight was not given
to their assessments, however, because their assessments
were not sufficiently functional or diagnostic in nature.
(Tr. 20 (emphasis added).) The ALJ’s criticism of the consultants’
opinions as “not sufficiently functional” (id.) misses the mark, as
the consultants assessed Plaintiff’s entire mental RFC, completing
limitation ratings for every mental functional ability considered
relevant by the SSA, as well as providing narrative explanations of
their findings.
(See Tr. 73-75, 88-90, 105-07, 120-22; see also
Docket Entry 11 at 10 (“It is curious that the decision should
criticize psychological consultants, whose assessments are noted on
functional categories on the Commissioner’s forms, for findings
that are not sufficiently functional or diagnostic in nature.
Other than their use as a self-justifying phrase, these sentences
are
not
explanations
but
conclusory
statements.”
(internal
citations, quotation marks, and footnote omitted)).)
Plaintiff correctly maintains that the ALJ’s Mascio error
qualifies as prejudicial, because the ALJ’s incorporation of any
mental restrictions (including those offered by the state agency
psychological consultants) into the RFC to account for Plaintiff’s
15
moderate deficit in CPP likely “would have significantly narrowed
the occupations available under the constraints of the hypothetical
question.”
(Docket Entry 11 at 9 (citing Social Security Ruling
85-15p, Titles II and XVI: Capability to Do Other Work — The
Medical-Vocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments, 1985 WL 56857, at *5 (1985) (noting that
mental impairments often reduce occupational base)).)
the
Court
cannot
determine,
on
the
current
Moreover,
record,
whether
additional mental restrictions, such as a non-production or lowstress limitation, would impact the medium, unskilled jobs cited by
the VE (see Tr. 59) and relied upon at step five of the SEP by the
ALJ (see Tr. 21-22).
In sum, Plaintiff’s first issue on review entitles her to
remand.
2. State Agency Consultants’ Opinion Evidence
Lastly, Plaintiff argues that “[t]he ALJ [] err[ed] by failing
to provide adequate reasons for rejecting the [] opinions of the
non-examining
consultants.”
2-3.)
[s]tate
agency
medical
[and
psychological]
(Docket Entry 11 at 14; see also Docket Entry 14 at
In particular, Plaintiff contends that the ALJ failed to
include in the RFC 1) the initial-level state agency psychological
consultant’s opinion that Plaintiff’s depressive disorder limited
her to SRRTs (id. at 15 (citing Tr. 73-75)); and 2) both state
agency medical consultants’ opinions that Plaintiff remained able
16
to perform only occasional climbing, balancing, stooping, kneeling,
crouching, and crawling (id. (citing Tr. 72, 104-05, 119-20)).
Plaintiff’s contentions have merit.
As discussed above, the ALJ failed to provide a sufficient
explanation
for
according
consultants’
opinions
the
partial
state
weight,
agency
and
did
psychological
not
adequately
explain why he credited their opinions that Plaintiff remained able
to concentrate for two hours at a time with additional restrictions
but did not adopt those additional restrictions. Moreover, the ALJ
gave “partial weight” to the state agency medical consultants’
opinions but declined to accord them “greater weight” because the
consultants “did not adequately consider [Plaintiff’s] subjective
complaints or the combined effect of impairments.” (Tr. 20.) That
rationale implies that the ALJ found that Plaintiff’s impairments
caused greater limitations than found by the state agency medical
consultants (which the ALJ confirmed by restricting Plaintiff to
only one hour of sitting, standing, or walking at a time (see Tr.
14)), but certainly does not explain why the ALJ adopted a lesser
degree of restriction with regard to Plaintiff’s ability to climb,
balance, stoop, kneel, crouch, and crawl (compare Tr. 14 (ALJ’s RFC
permitting frequent postural movements), with Tr. 72, 87, 104-05,
119-20 (state agency medical consultants’ RFC permitting only
occasional postural movements)).
speculate
regarding
the
impact
17
Again, because the Court cannot
of
additional
non-exertional
restrictions (if any) on the available jobs, the Court should
remand this matter for further development.
Plaintiff’s second issue on review thus also entitles her to
remand.
III.
CONCLUSION
Plaintiff has established errors warranting 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, to include 1) reassessment of the RFC
in light of Plaintiff’s moderate deficit in CPP in compliance with
Mascio, and 2) reconsideration and reweighing of the opinions of
the
state
agency
medical
and
psychological
consultants
accordance with 20 C.F.R. §§ 404.1527 and 416.927.
in
As a result,
Plaintiff’s Motion for Judgment on the Pleadings (Docket Entry 10)
should be granted in part, i.e., to the extent it requests remand,
and Defendant’s Motion for Judgment on the Pleadings (Docket Entry
12) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 6, 2019
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?