Mack v. Colvin
Filing
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ORDER vacating decision of the Commissioner, denying relief sought by Pltf; granting Pltf's 8 Amended Motion for Summary Judgment; denying Deft's 9 Motion for Summary Judgment; and remanding the matter for further consideration. Signed by Senior Judge Graham Mullen on 9/27/2017. (ejb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:16-cv-290
ELIJAH MACK,
Plaintiff,
Vs.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.
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ORDER
THIS MATTER is before the Court upon Plaintiff’s Amended Motion for Summary
Judgment (Doc. No. 8) and Commissioner’s Motion for Summary Judgment (Doc. No. 9). Having
carefully considered such motions and reviewed the pleadings, the court enters the following
findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
I.
Administrative History
Plaintiff filed an application for a period of disability and Disability Insurance Benefits
on December 15, 2014, alleging a disability onset date of December 15, 2014. Plaintiff
subsequently amended his alleged onset date to January 22, 2015. Plaintiff’s claim was denied
both initially and on reconsideration. Thereafter, Plaintiff requested and was granted a hearing
before an administrative law judge (“ALJ”). After reviewing the record and conducting an inperson hearing, the ALJ issued a decision which was unfavorable to Plaintiff, from which
Plaintiff appealed to the Appeals Council. Plaintiff’s request for review was denied, making the
ALJ’s decision the final decision of the Commissioner of Social Security (“Commissioner”).
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Thereafter, Plaintiff timely filed this action, seeking judicial review of the ALJ’s
decision.
II.
Factual Background
In his decision, the ALJ first determined that Plaintiff has not engaged in substantial gainful
activity since his alleged onset date (Tr. 22). At the second step, the ALJ concluded that Plaintiff
has the following combination of severe impairments: degenerative disease of the lumbar spine,
degenerative joint disease of the hips, degenerative joint disease of the knees, status post fractures
on the lower back, pelvis, and lower extremities, organic brain disorder secondary to traumatic
brain injury, affective disorder, and anxiety disorder. Id. At the third step, the ALJ found that the
Plaintiff did not have an impairment or combination of impairments that meet or medically equal
the severity of one the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 23).
However, in reaching this determination the ALJ did find that Plaintiff has moderate difficulties
with regard to concentration, persistence, or pace. (Tr. 26).
The ALJ then found that Plaintiff has residual functional capacity (RFC) to perform light
work with the following limitations:
except that [Plaintiff] could stand and/or walk 4 out of 8 hours; frequently operate foot
controls with the right lower extremity; frequently climb ramps/stairs, occasionally climb
ladders, ropes, and scaffolds, frequently stoop, and occasionally kneel, crouch, and crawl;
perform simple, routine, repetitive tasks; have his time off task accommodated by normal
breaks; have occasional public interaction; and tolerate few changes in the routine work
setting.
(Tr 27). As a result, the ALJ found in the fourth step that Plaintiff is unable to perform any past
relevant work. (Tr. 45). However, at the fifth step, the ALJ concluded that there are jobs that exist
in significant numbers in the national economy that Plaintiff can perform, including wiper, marker,
and electronic worker. (Tr. 45–46). Accordingly, the ALJ found that Plaintiff is not disabled
under the Act.
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III.
Standard of Review
The only issues on review are whether the Commissioner applied the correct legal
standards and whether the Commissioner’s decision is supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). Review by a federal court is not de novo, Smith v. Schwieker, 795 F.2d 343, 345 (4th
Cir. 1986); rather, inquiry is limited to whether there was “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion,” Richardson, 402 U.S. at 400.
Even if the undersigned were to find that a preponderance of the evidence weighed against the
Commissioner’s decision, the Commissioner’s decision would have to be affirmed if supported
by substantial evidence. Hays, 907 F.2d at 1456.
IV.
Discussion
Plaintiff raises four challenges to the ALJ’s decision: (1) that the ALJ did not perform a
proper function-by-function analysis in assessing Plaintiff’s RFC, (2) that the ALJ’s hypothetical
question to the vocational expert (VE) was not proper, (3) that the ALJ did not properly consider
Plaintiff’s subjective allegations, and (4) that the ALJ did not properly consider the opinion of
Plaintiff’s treating physician.
Plaintiff’s second claim, that the ALJ’s hypothetical question to the VE was improper,
asserts that the RFC’s use of the phrase “simple, routine, repetitive tasks” was insufficient in that
it failed to consider his moderate limitations in concentration, persistence, or pace. This Court
agrees and remands on this basis.
In Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit “agree[d] with other
circuits that an ALJ does not account ‘for a claimant's limitations in concentration, persistence,
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and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.’” 780
F.3d at 638 (quoting Winschel v.Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)
(joining the Third, Seventh, and Eighth Circuits)). “The ability to perform simple tasks differs
from the ability to stay on pace. Only the later limitation would account for a claimant’s limitation
in concentration, persistence or pace.” Id.
Defendant argues that the hypothetical question—and thus the RFC determination—was
proper because the ALJ also noted that Plaintiff could have only occasional interaction with the
public, could tolerate few changes in work routine setting, and could be accommodated by normal
breaks. Additionally, Defendant argues that the ALJ adequately explained how his findings
translated into the work-related limitations in the RFC finding.
However, an application of Mascio to the record here shows that the ALJ did not adequately
take into account Plaintiff’s moderate limitations in concentration, persistence, and pace.
Although the accommodation for normal breaks may reflect Plaintiff’s limitation in concentration,
it does not account for a moderate limitation in pace. Restricting a claimant to a “non-production
pace,” “an environment that does not involve assembly line pace,” or a “low production setting”
would sufficiently account for limitations in pace, but no similar restriction was given here. See,
e.g., White v. Colvin, No. 3:14-cv-722, 2016 WL 1123103, at *4 (W.D.N.C. Apr. 21, 2016); Taylor
v. Colvin, No. 3:14-cv-510, 2016 WL 1032345, at *7 (W.D.N.C. Mar. 15, 2016).
Further, even if it an ALJ’s RFC is well-explained and otherwise supported by substantial
evidence, a limitation to simple tasks or instructions cannot “account for a limitation in
concentration, persistence or pace.” Mascio, 780 F.3d at 638. Rather, only if the ALJ found that
the concentration, persistence, or pace limitation does not affect Plaintiff’s ability to work “would
[it] have been appropriate to exclude it from the hypothetical tendered to the vocational expert.”
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Id. Here, there is no indication that the ALJ found that Plaintiff’s ability to work was not impacted
by his moderate limitations in concentration, persistence, or pace.
Thus, the undersigned concludes that this matter should be remanded for a new hearing.
V.
Conclusion
The undersigned has carefully reviewed the decision of the ALJ and Appeals Council, the
transcript of the proceedings, Plaintiff’s motion and briefs, Commissioner’s responsive pleadings,
and Plaintiff’s assignments of error. Because the ALJ did not properly assess Plaintiff’s residual
functional capacity, the case must be remanded. Accordingly, Plaintiff’s Motion for Summary
Judgment will be granted, the Commissioner’s Motion for Summary Judgment will be denied, and
the decision of the Commissioner will be vacated.
ORDER
IT IS, THEREFORE, ORDERED that
(1)
the decision of the Commissioner, denying the relief sought by Plaintiff, is
VACATED;
(2)
the Plaintiff’s Amended Motion for Summary Judgment (Doc. No. 8) is
GRANTED; and
(3)
the Commissioner’s Motion for Summary Judgment (Doc. 9) is DENIED; and
(4)
the matter is hereby REMANDED for further consideration.
Signed: September 27, 2017
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