Reinhardt v. Colvin

Filing 17

MEMORANDUM OF DECISION and ORDER granting 13 Motion for Summary Judgment; denying 15 Motion for Summary Judgment. Signed by District Judge Max O. Cogburn, Jr on 4/17/2015. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-cv-00488-MOC
MELODY DAWN REINHARDT,

)
)
Plaintiff,
)
)
)
Vs.
)
)
CAROLYN W. COLVIN, Acting Commissioner of )
Social Security,
)
)
Defendant.
)

MEMORANDUM OF DECISION
and
ORDER

THIS MATTER is before the court upon plaintiff’s Motion for Summary
Judgment and the Commissioner’s Motion for Summary Judgment. 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. 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 conducting a 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 and the ALJ’s decision affirmed by the

Appeals Council, making the ALJ’s decision the final decision of the Commissioner
of Social Security (“Commissioner”). Thereafter, plaintiff timely filed this action.
II.

Factual Background
It appearing that the ALJ’s recitations of fact are supported are accurate, the

undersigned adopts and incorporates such findings herein as if fully set forth. Such
findings are referenced in the substantive discussion which follows. The court does
not, however, adopt the ALJ’s ultimate conclusions based on such facts.
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 v. Perales, supra. 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 v. Sullivan, supra.

IV.

Substantial Evidence
A.

Introduction

The court has read the transcript of plaintiff’s administrative hearing, closely
read the decision of the ALJ, and reviewed the extensive exhibits contained in the
administrative record. The issue is not whether a court might have reached a
different conclusion had he been presented with the same testimony and evidentiary
materials, but whether the decision of the administrative law judge is supported by
substantial evidence. The undersigned finds that it is not.
B.

Sequential Evaluation

A five-step process, known as “sequential” review, is used by the
Commissioner in determining whether a Social Security claimant is disabled. The
Commissioner evaluates a disability claim under Title II pursuant to the following
five-step analysis:
a.

An individual who is working and engaging in substantial gainful
activity will not be found to be “disabled” regardless of medical
findings;

b.

An individual who does not have a “severe impairment” will not be
found to be disabled;

c.

If an individual is not working and is suffering from a severe
impairment that meets the durational requirement and that “meets or
equals a listed impairment in Appendix 1” of Subpart P of Regulations
No. 4, a finding of “disabled” will be made without consideration of
vocational factors;

d.

If, upon determining residual functional capacity, the Commissioner
finds that an individual is capable of performing work he or she has
done in the past, a finding of “not disabled” must be made;

e.

If an individual’s residual functional capacity precludes the
performance of past work, other factors including age, education, and
past work experience, must be considered to determine if other work
can be performed.

20 C.F.R. § 404.1520(b)-(f). In this case, the Commissioner determined plaintiff’s
claim at the fourth step of the sequential evaluation process and then provided an
alternative determination at the fifth step.
C.

The Administrative Decision

At step one, the ALJ found that plaintiff had not engaged in substantial gainful
activity since March 8, 2011, her alleged onset date. Administrative Record (“AR”)
at 15.

At step two, the ALJ found that plaintiff had the following severe

impairments: spine disorder with neuropathy in the arms, neck, and shoulder. Id.
At step three, the ALJ found that plaintiff did not have an impairment or combination
of impairments that met or equaled the severity of an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. AR at 18. Before reaching step four, the ALJ made
a Residual Functional Capacity (“RFC”) determination, finding that plaintiff had the
RFC to lift/carry twenty pounds occasionally and ten pounds frequently; stand/walk
for up to 8 hours with normal breaks; and sit for 8 hours with normal breaks. AR at
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18. The ALJ further found that plaintiff was limited to frequent pushing/pulling and
operating controls with her left upper extremity; that she would have limitation in
range of movement in extension, flexion, and lateral movement of her neck at 45 to
50 degrees; that she could not work around ladders, ropes, or scaffolds; that she
would be able to frequently climb, stoop, and kneel; and that she could occasionally
balance, crouch, and crawl. Id. With such RFC, the ALJ then found at step four
found that she could perform her past relevant work as a waitress. AR at 20. In the
alternative, the ALJ found with the help of a Vocational Expert (“VE”) that plaintiff
could perform other jobs existing in significant numbers in the national economy.
AR at 21.
Under step four and step five, the ALJ found that plaintiff was not disabled
from March 8, 2011, her alleged onset date, through May 9, 2013, the date of the
ALJ’s decision. AR at 22.
D.

Discussion
1.

Plaintiff’s Assignments of Error

Plaintiff has made the following assignments of error:
(1) the ALJ erroneously found that she did not have a severe mental
impairment;

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(2) the ALJ did not assign proper weight to an opinion from a consultative
examiner;
(3) the ALJ failed to consider an opinion from a non-examining state agency
medical consultant;
(4) the ALJ did not properly consider her mental impairments in his residual
functional capacity (“RFC”) assessment; and
(5) the ALJ failed to include any mental limitations in his hypothetical to the
VE.
2.

Discussion
A.

Failure to Consider Mental Impairments in Assessing RFC

The briefs in this matter were filed before decision issued in Mascio v. Colvin,
--- F.3d ----, 2015 WL 1219530 (4th Cir. March 18, 2015). That decision appears
very relevant as plaintiff is specifically contending that the ALJ failed to give
appropriate consideration to her mental impairments (found at step two to cause mild
limitations in in activities of daily living, social functioning, and maintaining
concentration, persistence, or pace), in determining her RFC before reaching step
four.

In dismissing plaintiff’s argument, the Commissioner herein argued, as

follows:
while the ALJ must consider both severe and non-severe limitations in
reaching the RFC determination, the fact that the ALJ found mild
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limitations in the paragraph B criteria does not necessarily translate to
a work-related functional limitation for the purposes of the RFC
assessment.
Govt. Brief (#16) at 15 (footnote, quotation marks, and citations to out-of-circuit
district court opinions omitted). While an appropriate argument when made, the
Commissioner’s position now appears to be in direct conflict with the decision in
Mascio which held, as follows:
Perhaps the ALJ can explain why Mascio's moderate limitation
in concentration, persistence, or pace at step three does not translate
into a limitation in Mascio's residual functional capacity. For example,
the ALJ may find that the concentration, persistence, or pace limitation
does not affect Mascio's ability to work, in which case it would have
been appropriate to exclude it from the hypothetical tendered to the
vocational expert. But because the ALJ here gave no explanation, a
remand is in order.
Mascio, 2015 WL at *5 (citation omitted). Here, the ALJ acknowledged in his
decision that “the ‘paragraph B’ criteria are not a residual functional capacity
assessment,” which the ALJ did in fact conduct at step two, and further
acknowledged that the “mental residual functional capacity assessment used at steps
4 and 5 … requires a more detailed assessment by itemizing functions contained in
the broad categories found in paragraph B of the adult mental disorders listings in
12.00….” AR at 18. He then goes on to state that “the following residual functional
capacity assessment reflects the degree of limitation the undersigned has found in
the “paragraph B” mental function analysis.” Id. Despite the preamble, the court is
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at a loss to discover in the remainder of his determination a discussion of the “more
detailed mental residual functional capacity assessment” or where he has provided a
more “detailed assessment by itemizing functions.” While the court agrees with the
Commissioner’s argument that the fact that the ALJ found mild limitations in the
paragraph B criteria does not necessarily translate to a work-related functional
limitation, Mascio clearly imposes on the Commissioner a duty to explain why such
mild mental health impairments found at step two do not translate into work-related
limitations when plaintiff’s RFC for work is considered.
As plaintiff has correctly pointed out in her brief, the “ALJ never returned to
any discussion of her mental impairments in his RFC findings and therefore omitted
any mental impairment when creating an RFC.” Under the recent decision in
Mascio, such error requires remand.
B.

Plaintiff’s Other Assignments of Error

While the court will not consider in depth the remainder of plaintiff’s
assignments of error, plaintiff has argued and the Commissioner has admitted that
the ALJ did not fully credit the favorable opinion of the agency’s own consulting
doctor and then failed to discuss another agency medical opinion which was also
favorable to plaintiff. The Mascio court held that “[r]emand may be appropriate ...
where an ALJ fails to assess a claimant's capacity to perform relevant functions,
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despite contradictory evidence in the record, or where other inadequacies in the
ALJ's analysis frustrate meaningful review.” Mascio, 2015 WL at *3 (quoting
Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir.2013)).
First, the ALJ did not fully credit the favorable opinion of the agency’s own
consulting physician, Dr. McNulty, who was the only examining psychologist to
issue an opinion on plaintiff’s mental impairments. In explaining why he was not
giving full credit to Dr. McNulty’s opinion that plaintiff’s ability to tolerate stress is
moderately to severely impaired, the ALJ pointed to plaintiff’s ability to attend a
GED course for three hours a day. The ALJ offered no explanation as to why he
believed the stress of attending a GED course for three hours a day was the
equivalent of working as a waitress eight hours a day. Again, Mascio is instructive
and provides that “although the ALJ concluded that Mascio can perform certain
functions, he said nothing about Mascio's ability to perform them for a full
workday.” Id. at *3. The Court of Appeals for the Fourth Circuit has long held that
the ability to perform sporadic daily activities is not inconsistent with a claim of
disability. Totten v. Califano, 624 F. 2d 10 (4th Cir. 1980). Building on Totten, an
ALJ must explain how he determined that performing a certain activity for a short
period translates into an ability to perform a different activity for a full workday.
Mascio, 2015 WL at *3 and *6. This duty of explanation is especially important
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where, as here, the ALJ is comparing what appears to be part-time adult educational
activity with full-time work interacting with the public. While an ALJ is empowered
to give less than full weight to the opinions of even agency physicians, an ALJ is
obliged to explain why he concluded that the stress of sitting in a GED course for
three hours a day was the equivalent of tolerating the stress of working eight hours
a day as either a waitress at step four or as an inspector/packer on an assembly line
at step five. On this record, such reason escapes the court.
Second, the ALJ failed to consider in any regard the opinion of another state
agency medical consultant, Dr. Barham, who concluded that plaintiff had a severe
impairment due to her affective disorders. AR at 79. As discussed above, the
Commissioner has admitted this error, but argues that it is harmless because such
opinion was considered by a later employed agency reviewer who gave an opinion
consistent with that ultimately rendered by the ALJ. While the court does believe
that the ALJ simply missed this opinion in what is a substantial record, failure to
consider a favorable medical opinion on a relevant issue from a doctor that the
agency employed is not easily dismissed as a harmless error inasmuch as the
Commissioner’s own regulations provide that “we will evaluate every medical
opinion we receive.” 20 C.F.R. § 404.1527. While concurring with its colleague in
Brock v. Colvin, No. 2:13–cv–0039–FDW–DSC, 2014 WL 5328651, at *9
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(W.D.N.C. Oct. 20, 2014), that such a failure can at times be harmless where the
missed opinion is later included in the another review, in the context of the facts and
circumstances of this case, the court does not find such error was harmless when it
is considered with previous areas of concern outlined herein.
Thus, remand is also appropriate so that the ALJ can set forth his rationale as
provided in Mascio and consider Dr. Barham’s opinion.
E.

Conclusion
The undersigned has carefully reviewed the decision of the ALJ, the transcript

of proceedings, plaintiff’s motion and brief, the Commissioner’s responsive
pleading, and plaintiff’s assignments of error. Review of the entire record reveals
that the decision of the ALJ is not supported by substantial evidence. See Richardson
v. Perales, supra; Hays v. Sullivan, supra. Finding that there was not “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,”
Richardson v. Perales, supra, 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 reversed and remanded for a new hearing.
***
Since the Court conducted independent research and relied on a decision
published after briefing closed, each party is provided an opportunity, but is not
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required, to address the remand decision in supplemental briefs within seven days.
See Fussell v. AMCO Ins. Co., 2013 WL 127675 (E.D.Cal. Jan. 9, 2013) (providing
for tentative ruling and allowance of supplemental briefs where a court relies on unargued authority).
ORDER
IT IS, THEREFORE, ORDERED that
(1)

the decision of the Commissioner, denying the relief sought by plaintiff,
is REVERSED;

(2)

the plaintiff’s Motion for Summary Judgment (#13) is GRANTED;

(3)

the Commissioner’s Motion for Summary Judgment (#15) is DENIED;
and

(4)

this action is REMANDED to the Commissioner for a new hearing not
inconsistent with this Order.

IT IS FURTHER ORDERED that the parties are ALLOWED seven days
within which to file Objections and supplemental briefs, if any. Unless an Objection
is filed within seven days, the Clerk of Court shall, without further Order, enter a
Judgment consistent with this Memorandum of Decision at such time.
Signed: April 17, 2015

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