Williams v. Colvin

Filing 15

MEMORANDUM OF DECISION AND ORDER denying Deft's 13 Motion for Summary Judgment; granting Pltf's 9 Motion for Summary Judgment; reversing the decision of the Commissioner and remanding this case for further administrative proceedings consistent with this opinion. Signed by District Judge Martin Reidinger on 3/8/17. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00064-MR

RAY WILLIAMS,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for
Summary Judgment [Doc. 9] and the Defendant’s Motion for Summary
Judgment [Doc. 13].
I.

PROCEDURAL HISTORY
The Plaintiff Ray Williams filed a protective applications for a period of

disability, disability insurance benefits, and supplemental security income on
September 14, 2012, alleging an onset date of November 2, 2010.
[Transcript (“T.”) 186-96]. The Plaintiff’s claim was denied initially and on
reconsideration. [T. 130-34, 138-46]. Upon the Plaintiff’s request, a hearing
was held on February 24, 2014, before Administrative Law Judge Marshall
D. Riley (“ALJ Riley”). [T. 34-55, 147-48]. On June 23, 2014, ALJ Riley

issued a decision denying the Plaintiff benefits. [T. 15-29]. The Appeals
Council denied the Plaintiff’s request for review, thereby making the ALJ’s
decision the final decision of the Commissioner. [T. 1-6]. The Plaintiff has
exhausted all available administrative remedies, and this case is now ripe for
review pursuant to 42 U.S.C. § 405(g).
II.

STANDARD OF REVIEW
The Court’s review of a final decision of the Commissioner is limited to

(1) whether substantial evidence supports the Commissioner’s decision, see
Richardson v. Perales, 402 U.S. 389, 401 (1971), and (2) whether the
Commissioner applied the correct legal standards, Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). The Court does not review a final decision
of the Commissioner de novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th
Cir. 1986).
The Social Security Act provides that “[t]he findings of the
Commissioner of any Social Security as to any fact, if supported by
substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). The
Fourth Circuit has defined “substantial evidence” as “more than a scintilla
and [doing] more than creat[ing] a suspicion of the existence of a fact to be
established. It means such relevant evidence as a reasonable mind might

2

accept as adequate to support a conclusion.” Smith v. Heckler, 782 F.2d
1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).
The Court may not re-weigh the evidence or substitute its own
judgment for that of the Commissioner, even if it disagrees with the
Commissioner’s decision, so long as there is substantial evidence in the
record to support the final decision below. Hays, 907 F.2d at 1456; Lester v.
Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
III.

THE SEQUENTIAL EVALUATION PROCESS
In determining whether or not a claimant is disabled, the ALJ follows a

five-step sequential process.

20 C.F.R. §§ 404.1520, 416.920.

If the

claimant’s case fails at any step, the ALJ does not go any further and benefits
are denied. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
First, if the claimant is engaged in substantial gainful activity, the
application is denied regardless of the medical condition, age, education, or
work experience of the applicant. 20 C.F.R. §§ 404.1520, 416.920. Second,
the claimant must show a severe impairment. If the claimant does not show
any impairment or combination thereof which significantly limits the
claimant’s physical or mental ability to perform work activities, then no severe
impairment is shown and the claimant is not disabled. Id. Third, if the
impairment meets or equals one of the listed impairments of Appendix 1,
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Subpart P, Regulation 4, the claimant is disabled regardless of age,
education or work experience. Id. Fourth, if the impairment does not meet
the criteria above but is still a severe impairment, then the ALJ reviews the
claimant’s residual functional capacity (RFC) and the physical and mental
demands of work done in the past. If the claimant can still perform that work,
then a finding of not disabled is mandated. Id. Fifth, if the claimant has a
severe impairment but cannot perform past relevant work, then the ALJ will
consider whether the applicant’s residual functional capacity, age, education,
and past work experience enable the performance of other work. If so, then
the claimant is not disabled. Id. In this case, the ALJ’s determination was
made at the fifth step.
IV.

THE ALJ’S DECISION
In denying the Plaintiff’s claim, the ALJ found that the Plaintiff meets

the insured status requirements of the Social Security Act through December
31, 2015, and that he has not engaged in substantial gainful activity since
the alleged onset date of November 2, 2010. [T. 20]. The ALJ then found
that the medical evidence established that the Plaintiff has the following
severe impairments: degenerative disc disease, hypertension, affective
disorder, anxiety disorder, and polysubstance abuse. [T. 20-21]. The ALJ
determined that none of Plaintiff’s impairments, either singly or in
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combination, met or equaled a listing. [T. 21-23]. The ALJ then assessed
the Plaintiff’s residual functional capacity (RFC) [T. 23-27], finding that the
Plaintiff had the RFC to perform medium work with the following limitations:
[T]he claimant should be . . . limited from performing
more than frequent climbing ladders, ropes, or
scaffolds, as well as balancing and stooping.
Mentally, the claimant retains the mental capacity for
simple routine repetitive tasks in a low stress setting
with minimal social demands.
[T. 23]. Based on this RFC, the ALJ then determined that the Plaintiff could
not perform any past relevant work. [T. 27]. The ALJ further concluded that,
considering the Plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that the
Plaintiff can perform. [T. 27-29]. The ALJ therefore concluded that the
Plaintiff was not “disabled” as defined by the Social Security Act from the
amended alleged onset date through the date of her decision. [T. 29].
V.

DISCUSSION
The Plaintiff presents two primary assignments of error. First, the

Plaintiff argues that the ALJ did not perform a function-by-function analysis
of the Plaintiff’s contested ability to walk, stand and sit, as required by Social
Security Ruling (SSR) 96-8p. Second, the Plaintiff argues that the ALJ failed
to account in the RFC for the Plaintiff’s moderate difficulties with

5

concentration, persistence or pace. The Court will address each of these
issues in turn.1
A.

Function-by-Function Analysis

Residual functional capacity (RFC) is an administrative assessment by
the Commissioner of what a claimant can still do despite his or her physical
or mental limitations. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); 20
C.F.R. §§ 404.1546(c); 404.943(c). In assessing a claimant’s RFC, the ALJ
must consider all of the claimant's medically determinable impairments,
including those non-severe impairments, after considering all of the relevant
evidence in the record. 20 C.F.R. § 404.1545(a). In determining a claimant's
RFC, the ALJ must first identify the claimant’s functional limitations or
restrictions and then assess the claimant’s work-related abilities on a
function-by-function basis. SSR 96-8p, 1996 WL 374184, at *1. The ALJ
also must include a narrative discussion detailing how the evidence in the
record supports the RFC assessment. Id. at *7. Only after a function-byfunction analysis has been completed may an RFC be expressed in terms of
the exertional levels of work. Mascio v. Colvin, 780 F.3d at 632, 636 (4th
Cir. 2015).

1

Rather than set forth a separate summary of the facts in this case, the Court has
incorporated the relevant facts into its legal analysis.
6

In Mascio, the Fourth Circuit held that remand may be appropriate
where “an ALJ fails to assess a claimant's capacity to perform relevant
functions, despite contradictory evidence in the record, or where other
inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting
Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (per curiam)). The
Mascio Court declined, however, to adopt a “per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis,”
noting that such rule “would prove futile in cases where the ALJ does not
discuss functions that are ‘irrelevant or uncontested.’” Id. (citation omitted).
In the present case, the ALJ failed to conduct an explicit function-byfunction analysis of the Plaintiff’s ability to sit, stand, and walk – all of which
were contested, relevant functions in this case. While the Plaintiff claimed
that he was severely limited in his ability to sit, stand, and walk, the ALJ found
him capable of exertionally demanding medium work with lifting 50 pounds
and sitting, standing, and walking without the use of a cane up to six hours
during an eight-hour workday.
In making that finding the ALJ gave “great weight” to the nonexamining agency consultants [T. 26], one of whom opined that the Plaintiff
could perform the full range of medium work and one of whom opined that
the Plaintiff could perform medium work with certain climbing, balancing, and
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stooping limitations. [T. 25, 64-76, 78-90, 94-110-, 111-27].2 The ALJ found
that these opinions were “consistent with the evidence of record, including
treatment records and consultative examinations.” [T. 26]. The medical
evidence of record, however, contains multiple references to the Plaintiff’s
pain being persistent, resistant to treatment and exacerbated by walking,
standing and sitting for prolonged periods of time. In June 2011, the Plaintiff
was hospitalized at the Veterans’ Administration Hospital (“VA”) for severe
depression because of his inability to work due to pain running down his right
leg. [T. 341-42]. A prior MRI showed a broad based disc protrusion at L5S1 narrowing the neural foramen in association with hypertrophic changes
of the facet joints. [T. 354]. The Plaintiff started pain management with the
VA in August 2012 undergoing a series of epidural steroid injections at the
L5 level of his spine. [T. 390]. In a follow-up appointment, it was noted that
he had no significant pain relief from these procedures. It was further noted
that, despite the use of pain medication, “the pain level is enough to interfere
with his functional capacity.” [T. 378]. He was diagnosed with lumbar disc
displacement and spondylosis. [Id.].

2

The only consultant to have performed an examination of the Plaintiff did not offer any
opinions regarding the Plaintiff’s functional limitations. [T. 410-13].
8

The Plaintiff underwent another steroid injection at the L5 level of his
spine on August 27, 2012.

[T. 366].

In a follow-up appointment on

September 4, 2012, his doctor noted “he is still experiencing a significant
amount of pain in his right leg. He has received treatment over the past few
weeks for the pain but states it only lasts a few days.” [T. 364]. It was also
noted that the Plaintiff’s chronic depression was exacerbated by these
events as he became hopeful of improvement, but depressed when the
treatments never provided him lasting relief.

He was also becoming

increasingly depressed by his continued inability to sustain work. [Id.].
On September 18, 2012, it was noted of his spinal injections, “he feels
he has not really had any long-term benefit. He rates his pain at about 8-9/10
in severity. He has been continuing to use [T]ramadol for relief.” [T. 353-54].
On exam, he displayed positive straight leg raising, was tender at L5, had
sensory disturbance in the right leg and muscle weakness due to pain
inhibition.

[Id.].

He was assessed with lumbar disc displacement,

lumbosacral spondylosis and right leg radicular pain. A possible surgical
evaluation was discussed but the Plaintiff declined. A possible third steroid
injection was discussed, but the doctor decided to defer any further
interventional treatment “given that he has not really benefitted [from two
injections] thus far.” [T. 355].
9

In October 2012, the Plaintiff expressed frustration with the lack of
relief from injections which in turn increased his stress levels and depression.
[T. 350-52]. It was also noted he stopped working because he could not
stand to be on his feet long with his radiculopathic leg pain. [T. 511]. Despite
having minor relief from oral pain medications, he reported “still
experience[ing] significant pain most of the time.”

[T. 509].

These

complaints of unrelenting leg pain continued in his December 2012 follow-up
appointment with the VA. [T. 499]. In January 2013, Mr. Williams intimated
that “it’s been pretty bad” with increased pain with resulting decreased sleep,
achieving only four to five hours per night. He even reported having fleeting
thoughts of death while in pain but did not plan to kill himself. [T. 485].
On March 8, 2013, the Plaintiff underwent a consultative physical exam
with Dr. Annie Jackson, wherein his neurological signs were noted to be
intact, but that he walked with a narrow based gait with some limping and
was unable to tandem walk or hop on one foot. [T. 411-12]. A lumbar spine
X-ray taken that same day confirmed L5-S1 spondylosis, spondylolisthesis
and facet arthropathy. [T. 408]. On April 5, 2013, the Plaintiff requested an
ambulatory aid. In response to this request, his treating physician prescribed
the Plaintiff a cane and advised him to visit the physical therapy department
to be fitted for it. [T. 457].
10

Follow-up notes later in 2013 and into 2014 continued to show that the
Plaintiff was unable to obtain significant relief from his pain with treatment.
In May of 2013, it was noted that he continued to experience severe pain
from neuropathy in his leg. He noted his pain prevented him from being able
to sleep soundly and for long periods of time. [T. 440]. In July 2013, VA
medical records indicate that the Plaintiff did not feel his medications were
helping his depression and that his physical pain continued to interfere with
his mental well-being. [T. 600]. It was noted in August 2013 that he continued
to use a cane to take pressure off of his back and that his low back pain with
radiation into his right buttock and leg was worse with activity (consistent with
his testimony). It was noted that steroid injections were of no benefit and
that Tramadol provided only some relief. [T. 596]. An X-ray of his lumbar
spine performed a few days later confirmed moderate narrowing of the L5
and S1 disc space with small marginal osteophytes as well as facet
arthropathy at L4-L5 and L5-S1 which was “marked” at L5-S1. [T. 570].
In September 2013, VA records indicate that the Plaintiff continued to
have low back pain which radiated into his right hip and legs. He also
complained of pins and needles sensations and weakness in those locations.
His functional limitations included walking distances. On exam, he displayed
an antalgic gait, used a cane on the right side, and had pain with range of
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motion, reduced strength 4/5 in lower extremities in all planes, generalized
tenderness and a negative SLR. [T. 590]. His physical therapist included
his use of a cane in setting goals. [T. 591]. The Plaintiff did not obtain much
relief from his physical therapy exercises as noted during a follow-up
examination. [T. 588]. In November 2013, VA records again indicate that
the Plaintiff was not able to sleep well due to pain and numbness in his legs.
[T. 581].
The ALJ discounted this medical evidence, finding that the Plaintiff had
“not received the type of treatment one would expect from a completely
disabled person.” [T. 27]. The ALJ further noted that the records indicated
that the Plaintiff’s treatment had been “generally . . . routine and conservative
in nature.” [Id.]. The ALJ fails to explain, however, what type of treatment a
“completely disabled person” would be expected to receive under the
circumstances. The ALJ further fails to explain how the prolonged (and
apparently unsuccessful) use of narcotic medications, physical therapy, and
steroid injections constituted “routine and conservative” treatment or how
such treatment would be indicative of a non-disabling condition.
The ALJ also discounted the Plaintiff’s use of a cane, noting that the
Plaintiff had requested it. While the ALJ is correct that the Plaintiff had
requested the device, the records indicate that the Plaintiff’s treating
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physician prescribed the device and referred him for a fitting. The ALJ further
found that there was “little objective evidence to support the finding that the
[Plaintiff] actually requires the device.” [Id.]. The ALJ, however, does not
cite to any specific part of the record to support this assertion. On the
contrary, there is evidence to suggest that the Plaintiff regularly used the
cane to walk and to relieve pressure from his lower back and right leg. [See
e.g., T. 418, 437, 447, 591, 596]. The consultative examiner noted the
Plaintiff had a mild limping gait when not using his cane. [T. 411]. Further,
in April 2013, a physical therapist noted that the Plaintiff was ambulating with
an antalgic gait pattern and that he required gait training with the use of his
cane. [T. 450]. The ALJ erred in failing to address this evidence and account
for the Plaintiff’s use of a cane to ambulate.
The ALJ also discredited the Plaintiff’s complaints of pain, solely on the
grounds that the Plaintiff had performed some day jobs after the alleged
onset date.

While conceding that the Plaintiff’s work activity did not

constitute disqualifying substantial gainful activity, the ALJ found that such
activity “indicate[d] that the [Plaintiff’s] daily activities have, at least at times,
been somewhat greater than the [Plaintiff] has generally reported.” [T. 2627]. In so finding, the ALJ failed, however, “to build an accurate and logical
bridge from [this] evidence to his conclusion” that the Plaintiff’s complaints of
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pain were not credible. See Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir.
2016) (citation and internal quotation marks omitted). Specifically, the ALJ
failed to give any consideration to the numerous medical notes that indicate
that the Plaintiff attempted various day jobs but was unable to sustain any
work activity due to his chronic back and leg pain. [See T. 350, 352, 364,
385-86, 418, 451-52, 469, 499, 511]. As the Plaintiff’s doctor noted in August
of 2012:
Veteran expresses preference to work vs. draw
disability; however he does have ongoing pain with
his legs that can interfere with his ability to sustain
employment. Will continue to assess his success
with employment and/or need for disability income if
unable to work.
[T. 387]. If anything, the fact that the Plaintiff kept trying to work but was
never able to sustain it due to back and leg pain is an indication of both his
willingness to work and his inability to do so -- not an indication of his lack of
credibility.

The ALJ does not discuss the Plaintiff’s stated reasons for

repeatedly quitting these jobs or his stated desire to sustain employment, nor
does he explain how the Plaintiff’s behavior in seeking (unsuccesfully) to
maintain his employment undermines his credibility. On remand, if the ALJ
decides to discredit the Plaintiff’s complaint of disabling pain, “it will be
incumbent on him to provide a clearer explanation of his reasons for doing

14

so, such that it will allow meaningful review of his decision.” Monroe, 826
F.3d at 190.3
In sum, there is substantial evidence of record to indicate that the
Plaintiff’s pain caused him difficulty in sitting, standing, and walking, which
was not adequately addressed in the ALJ’s decision.

While the ALJ does

not have to incorporate every piece of medical evidence into the decision,
the ALJ must explain his decision adequately so that the Court may engage
in a meaningful review. On remand, the ALJ should conduct a function-byfunction analysis in accordance with the directives of SSR 96-8p, with
particular attention to the exertional requirements of walking, sitting, and
standing relevant to the performance of medium work.
B.

Mental RFC

To account for the Plaintiff’s moderate difficulties with concentration,
persistence, and pace, the ALJ limited the Plaintiff to “simple routine

The ALJ’s perfunctory credibility analysis is particularly problematic in light of the fact
that it is unclear whether the ALJ who held the hearing and actually had the opportunity
to observe the Plaintiff was the one authored the decision at issue. The Plaintiff’s hearing
was held before ALJ Riley, but the decision was signed by ALJ Schwartzberg “for ALJ
Riley.” [See T. 29]. The Commissioner argues that pursuant to the Hearings, Appeals
and Litigation Law Manual (“HALLEX”), the Hearing Officer Chief ALJ (“HOCALJ”) is
authorized to sign a final decision on behalf of an ALJ if that ALJ gives the HOCALJ
written authorization to do so. The Commissioner concedes, however, that she cannot
confirm that ALJ Schwartzberg was the HOCALJ or acting in that capacity when he signed
the decision. [Doc. 14 at 10 n.3]. Thus, it unclear from the record who actually authored
the final decision.
3

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repetitive tasks in a low stress setting.” [T. 23].4 The Fourth Circuit has held
that “an ALJ does not account ‘for a claimant’s limitations in concentration,
persistence, and pace by restricting the hypothetical question to simple,
routine tasks or unskilled work.’” Mascio v. Colvin, 780 F.3d 632, 638 (4th
Cir. 2015) (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180
(11th Cir. 2011)). Because “the ability to perform simple tasks differs from
the ability to stay on task,” Mascio, 708 F.3d at 638 (emphasis added), an
RFC limited to simple, routine tasks or unskilled work fails to adequately
account for moderate limitations in concentration, persistence, and pace.
While limiting the Plaintiff to “simple, routine, repetitive tasks,” the ALJ
set an additional limitation of a “low-stress setting.” [T. 27]. The ALJ,
however, fails to explain this term or how it accounts for any of the Plaintiff’s
moderate limitations in concentration, persistence, and pace. The majority
of North Carolina federal courts which considered this issue post-Mascio has
concluded that an RFC limited to simple, routine tasks or unskilled work in a
“low stress” or “non-production” environment, without more, fails to
adequately account for moderate limitations in concentration, persistence,
and pace. See Franklin v. Colvin, No. 5:14-cv-84-MOC-DLH, 2016 WL

The ALJ also included the non-exertional limitation of “minimal social demands,” which
was included presumably in order to account for the ALJ’s finding that the Plaintiff also
has moderate difficulties in social functioning. [T. 21-22, 23].
4

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1724359, at *6 (W.D.N.C. Apr. 29, 2016) (holding that limiting RFC to
“simple, one-step tasks in a low stress work environment, defined as one
that does not involve production/assembly-line/high speed work or contact
with the public” did not adequately address claimant’s moderate limitations
in concentration, persistence and pace); Jones v. Colvin, No. 4:14-CV00200-RN, 2015 WL 4773542, at *5-6 (E.D.N.C. Aug. 13, 2015) (holding that
limitation to simple, routine, repetitive tasks in low production environment
did not adequately address claimant’s moderate limitations in concentration,
persistence and pace); Hagerdorn v. Colvin, No. 2:12-cv-29-RLV, 2015 WL
4410288, at *4 (W.D.N.C. July 20, 2015) (finding that limitations to simple,
routine, and repetitive tasks in a low-production, low-stress work setting,
defined as occasional change in job setting or decision making, did account
for some of claimant’s mental limitations, such as the ability to understand,
carry out, and remember instructions, respond appropriately to work
situations, and deal with changes in a routine work setting, but not for his
moderate limitations in concentration); Scruggs v. Colvin, No. 3:14–cv–
00466–MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015) (finding that
an ability to perform simple, routine, repetitive tasks in a nonproduction
environment, without more, does not account for claimant’s moderate
difficulties in concentration, persistence and pace); Raynor v. Colvin, No.
17

5:14-CV-271-BO, 2015 WL 1548996, at *2 (E.D.N.C. Apr. 7, 2015)
(remanding where the hypothetical posed to the VE did not pose any
limitations related to concentration and persistence other than limiting
plaintiff to simple, routine tasks and the ALJ’s written decision limited plaintiff
to work with simple instructions and work-related decisions as well as no
fast-paced production); Salmon v Colvin, No. 1:12-cv-1209, 2015 WL
1526020, at *3 (M.D.N.C. Apr. 2, 2015) (holding that a hypothetical limiting
claimant to “simple, routine, repetitive tasks in that [she] could apply
commonsense understanding to carry out instructions furnished on a written,
oral, or diagrammatic form” did not account for claimant’s moderate
limitations in concentration, persistence and pace and did not address her
ability to say on task); but see Linares v. Colvin, No. 5:14-cv-120, 2015 WL
4389533, at *4 (W.D.N.C. July 17, 2015) (distinguishing Mascio where ALJ
limited claimant to simple, routine, repetitive tasks but also limited her to a
stable work environment at nonproduction pace with only occasional public
contact because the nonproduction pace addressed her limitations in pace
and the stable work environment with only occasional public contact
addressed her limitation in concentration and persistence).

The Court

agrees with these decisions and concludes that a remand is necessary in
order for the ALJ to give further consideration of the impact of the noted
18

moderate limitations in concentration, persistence, and pace on the Plaintiff’s
ability to engage in sustained work activity.

ORDER
Accordingly, IT IS, THEREFORE, ORDERED that the Defendant’s
Motion for Summary Judgment [Doc. 13] is DENIED, and the Plaintiff’s
Motion for Summary Judgment [Doc. 9] is GRANTED. Pursuant to the power
of this Court to enter a judgment affirming, modifying or reversing the
decision of the Commissioner under Sentence Four of 42 U.S.C. § 405(g),
the decision of the Commissioner is REVERSED and this case is hereby
REMANDED for further administrative proceedings consistent with this
opinion.
A judgment shall be entered simultaneously herewith.
IT IS SO ORDERED.
Signed: March 8, 2017

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