Neufeld v. Colvin

Filing 16

ORDER granting 11 Motion for Summary Judgment; denying 13 Motion for Summary Judgment. Commissioner decision is Reversed and this matter is Remanded for a new hearing consistent with this Order.. Signed by District Judge Robert J. Conrad, Jr on 6/15/16. (ssh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-174-RJC
SANDRA J. NEUFELD,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of
)
Social Security Administration,
)
)
Defendant.
)
__________________________________________ )

ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion for Summary Judgment
and Memorandum in Support, (Doc. Nos. 11, 12); and Defendant’s Motion for Summary Judgment
and Memorandum in Support, (Doc. Nos. 13, 14).
I.

BACKGROUND
A.

Procedural Background

Plaintiff Sandra J. Neufeld (“Plaintiff”) seeks judicial review of Defendant’s denial of her
social security claim. (Doc. No. 1). On October 6, 2011, Plaintiff filed an application for a period
of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C.
§ 405 et seq. Plaintiff also filed an application for supplemental security income under Title XVI
of the Social Security Act, 42 U.S.C. § 1383 et seq. on that same date. In both applications,
Plaintiff alleged an inability to work due to disabling conditions beginning on December 15, 2010.
(Doc. No. 10: Administrative Record (“Tr.”) at 262–276). The Commissioner initially denied
Plaintiff’s application on November 21, 2011, (Tr. 150–154), and upon reconsideration on March

21, 2012, (Tr. 157–160). Plaintiff filed a timely written request for a hearing on May 9, 2012.
(Tr. 177–179).
On May 21, 2013, Plaintiff, represented by counsel, appeared and testified at a hearing
before an Administrative Law Judge (“ALJ”). (Tr. 38–64). The ALJ issued a decision on
September 5, 2013, denying Plaintiff’s claim. (Tr. 18–36). Plaintiff filed a request for review of
the ALJ’s decision on October 8, 2013, (Tr. 18–36), which was granted by the Appeals Council
on November 19, 2014, (Tr. 221–224). On February 20, 2015, the Appeals Council issued a
decision affirming the ALJ’s decision. (Tr. 1–8). Therefore, the September 5, 2013 ALJ decision
became the final decision of the Commissioner on February 20, 2015.
Plaintiff’s Complaint seeking judicial review and a remand of her case was filed in this
Court on April 19, 2015. (Doc. No. 1). Plaintiff’s Motion for Summary Judgment, (Doc. No. 11),
was filed September 28, 2015, and Defendant’s Motion for Summary Judgment, (Doc. No. 13),
was filed November 20, 2015. The pending motions have been fully briefed and are ripe for
adjudication.
B.

Factual Background

The question before the ALJ was whether Plaintiff was under a “disability” as that term of
art is defined for Social Security purposes,1 at any time between December 15, 2010, when
Plaintiff’s disabling conditions commenced, and the date of the Appeals Council’s decision on
February 20, 2015. To establish entitlement to benefits, Plaintiff has the burden of proving that
she was disabled within the meaning of the Social Security Act. Bowen v. Yuckert, 482 U.S. 137,

Under the Social Security Act, 42 U.S.C. § 301 et seq., the term “disability” is defined
as an “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.” Pass v.
Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (quoting 42 U.S.C. § 423(d)(1)(A)).
1

146 n.5 (1987). The ALJ concluded that Plaintiff was not under a disability at any time from
December 15, 2010, through the date of his decision, September 5, 2013. (Tr. 18–36).
This case is governed by The Social Security Administration’s familiar five-step sequential
evaluation process for determining if a person is disabled.2 In this case, the ALJ determined at
step five that Plaintiff was not disabled. (Tr. 28).
Specifically, the ALJ first concluded that Plaintiff had not engaged in any substantial
gainful activity since December 15, 2010, the alleged disability onset date. (Tr. 23). At step two,
the ALJ found that Plaintiff had severe impairments of a history of lumbar fusion, lumbar
radiculopathy, fecal incontinence, depression, and generalized anxiety disorder. (Id.). At the third
step, the ALJ determined that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id.).
Next, the ALJ assessed Plaintiff’s RFC and found that she retained the capacity to perform
sedentary work with the following additional limitations: requires a cane to ambulate, though it is
not necessary at her workstation; requires a change of position once per hour; and is further limited
to simple, routine, repetitive tasks, in a nonproduction environment. (Tr. 24).
At the hearing, a vocational expert (“VE”) testified regarding Plaintiff’s past relevant work,
(Tr. 59), and pursuant to the VE’s testimony, the ALJ found that Plaintiff was unable to perform

2

The five steps are: (1) whether the claimant is engaged in substantial gainful activity—if yes,
not disabled; (2) whether the claimant has a severe medically determinable physical or mental
impairment, or combination of impairments that meet the duration requirement in § 404.1509—if
no, not disabled; (3) whether the claimant has an impairment or combination of impairments that
meets or medically equals one of the listings in appendix 1 and meets the duration requirement—
if yes, disabled; (4) whether the claimant has the residual functional capacity (“RFC”) to perform
his or her past relevant work—if yes, not disabled; and (5) whether, considering the claimant’s
RFC, age, education, and work experience, he or she can make an adjustment to other work—if
yes, not disabled. 20 C.F.R. § 404.1520(a)(4)(i)–(v).

her past relevant work. (Tr. 27). At the fifth and final step, the ALJ concluded, based on the VE’s
testimony, that there are jobs that exist in significant numbers in the national economy that Plaintiff
can perform. (Tr. 28). Therefore, the ALJ concluded that Plaintiff was not under a “disability,”
as defined by the Social Security Act, at any time between December 15, 2010, and the date of his
decision on September 5, 2013. (Tr. 28).
II.

STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3), limits this Court’s review of a

final decision of the Commissioner to determining: (1) whether substantial evidence supports the
Commissioner’s decision, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); and (2) whether
the Commissioner applied the correct legal standards, Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). The District Court does not review a final decision of the Commissioner de novo.
Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); King v. Califano, 599 F.2d 597, 599 (4th
Cir. 1979). The Social Security Act provides: “The findings of the [Commissioner] as to any fact,
if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). In Smith v.
Heckler, the Fourth Circuit noted that “substantial evidence” is “more than a scintilla and must do
more than create a suspicion of the existence of a fact to be established. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” 782 F.2d 1176,
1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).
The Fourth Circuit has long emphasized that it is not appropriate for a reviewing court to
weigh the evidence anew, or to substitute its judgment for that of the Commissioner, if the
Commissioner’s final decision is supported by substantial evidence. Hays, 907 F.2d at 1456; see
also Smith v. Schweiker, 795 F.2d at 345. Indeed, this is true even if the reviewing court disagrees
with the outcome. Provided there is “substantial evidence” in the record to support the final

decision below, the Court will uphold the final decision. Lester v. Schweiker, 683 F.2d 838, 841
(4th Cir. 1982).
III.

DISCUSSION
On appeal to this Court, Plaintiff argues, among other things, that the ALJ’s RFC finding

is not based on substantial evidence.3 (Doc. No. 11-1 at 19). Specifically, Plaintiff contends that
the ALJ failed to provide a full function-by-function analysis of her mental limitations and, in
doing so, failed to fully account for her moderate difficulties in concentration, persistence, or pace
in the RFC finding.
In making an RFC determination, SSR 96-8p “instructs that the [RFC] ‘assessment must
first identify the individual’s functional limitations or restrictions and assess his or her workrelated abilities on a function-by-function basis, including the functions’ listed in the regulations.”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). “Only after a functionby-function analysis has been completed may” the RFC finding be made. Mascio, 780 F.3d at
636. The RFC must address both the exertional and non-exertional capacities of the claimant and
must be expressed in terms of work-related functions. SSR 96-8p. Nonexertional capacity
considers work-related limitations and restrictions that do not depend on the claimant’s physical
strength, such as the ability to communicate, understand and remember instructions, or respond
appropriately to supervision. Id. “The basic mental demands of competitive, remunerative,
unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember

3

Plaintiff also argues that remand is warranted because the ALJ failed to properly
evaluate medical opinions and provided an incomplete hypothetical to the VE. (Doc. No. 11-1 at
19). As discussed below, the Court does not reach these arguments as it finds that the ALJ’s
decision does not conform to the requirements of Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015).

simple instructions; to respond appropriately to supervision, coworkers, and usual work situations;
and to deal with changes in a routine work setting.” SSR 85-15; see also SSR 96-8p.
Additionally, SSR 96-8p provides that “[t]he RFC assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific medical facts
(e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” It must
also “include a discussion of why reported symptom-related functional limitations and restrictions
can or cannot reasonably be accepted as consistent with the medical and other evidence.” SSR 968p. Although it declined to adopt a “per se rule requiring remand when the ALJ does not perform
an explicit function-by-function analysis,” the Fourth Circuit stated in Mascio that “[r]emand 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.” Mascio, 780 F.3d at 636 (quoting Cichocki v. Astrue, 729 F.3d 172,
177 (2d Cir. 2013)). Furthermore, an ALJ does not properly account for a claimant’s limitations
in concentration, persistence, or pace by restricting the RFC, and consequently the hypothetical
presented to the VE, to simple, routine tasks or unskilled work. Mascio, 780 F.3d at 638. The
Circuit also noted that “the ability to perform simple tasks differs from the ability to stay on task.”
Id.
Here, despite finding that Plaintiff had moderate difficulties in concentration, persistence,
or pace, the ALJ did not perform an explicit function-by-function analysis as required by SSR 968p. While the ALJ did conduct some analysis of the medical evidence of record and discuss his
reasoning for the weight given to Plaintiff’s statements and subjective complaints, it is not clear
how the evidence aligns with the necessary functions, which is a required showing. See Mascio,
780 F.3d at 636.

In his brief paragraph regarding concentration, persistence, or pace, the ALJ found that
Plaintiff had “moderate difficulties.” (Tr. 24). The ALJ then went on to note the assessments of
two of Plaintiff’s treating physicians, both of which similarly indicated that Plaintiff would “have
difficulty with attention and concentration due to pain.” (Tr. 27). The ALJ summarily claimed that
these statements supported the RFC assessment; however, he failed to incorporate any such
limitations in his RFC finding or explain how Plaintiff’s mental limitations do not affect her ability
to work. (Id.). Without explanation, such inconsistencies leave the Court “to guess about how the
ALJ arrived at his conclusions on [Plaintiff’s] ability to perform relevant functions.” Mascio, 780
F.3d at 637. Therefore, the Court finds that the ALJ’s analysis and discussion of Plaintiff’s
limitations relating to her moderate difficulties in concentration, persistence, or pace are
insufficient.
The ALJ’s RFC finding provided that Plaintiff is “limited to simple, routine, repetitive
tasks, in a nonproduction environment.” (Tr. 24). Defendant contends that the “nonproduction
environment” limitation accounts for Plaintiff’s difficulties in concentration, persistence, or pace.
Since the Mascio decision, district courts in this Circuit have considered whether additional
limitations, such as a nonproduction environment, sufficiently account for a moderate limitation
in concentration, persistence, or pace. The majority of district courts in North Carolina, including
this Court, have found that they do not.4 Accordingly, the Court finds that here, as in the majority
4

See, e.g., Biddell v. Colvin, No. 1:15-cv-80-MOC, 2016 WL 815300, at *5 (W.D.N.C.
Feb. 29, 2016) (finding that limitations to simple, routine, repetitive tasks involving only one- to
three-step instructions, a non-production pace, occasional contact with the public, no intense
interaction with supervisors and coworkers, in a setting with no confrontation or brainstorming
and dealing with things and not people do not account for a claimant’s moderate limitations in
concentration, persistence, or pace); Weeks v. Colvin, No. 5:14-cv-155-D, 2015 WL 5242927, at
*2 (E.D.N.C. Sept. 8, 2015) (holding that a limitation to simple, routine, repetitive tasks with
only occasional contact with the general public and few workplace changes did not sufficiently
address claimant’s limitations in pace); Jones v. Colvin, No. 4:14-cv-200-RN, 2015 WL

of the cases noted, the limitations provided in the RFC do not adequately address Plaintiff’s
moderate limitations in concentration, persistence, or pace as required by Mascio. The Court also
finds that, contrary to Mascio, the ALJ failed to discuss Plaintiff’s ability to stay on task for a full
workday. See Mascio, 780 F.3d at 637 (faulting the ALJ for failing to discuss the claimant’s ability
to perform the relevant work-related functions for a full workday); see also Newton v. Colvin, No.
3:14-cv-371-RJC-DSC, 2015 WL 4411110, at *3 (W.D.N.C. July 20, 2015); Scruggs v. Colvin,
No. 3:14-cv-00466-MOC, 2015 WL 2250890, at *4–5 (W.D.N.C. May 13, 2015).
In sum, the Court finds that the ALJ did not perform the required function-by-function
analysis or provide the necessary narrative discussion to support his findings. An explanation of
how Plaintiff’s mental limitations affect her ability to perform work-related functions, as well as
her ability to perform them for a full workday, is necessary here. While the Court recognizes that
the RFC is the ALJ’s province, he must make clear to this Court that he considered all of Plaintiff’s
impairments in formulating the RFC and at steps four and five. As outlined above, a necessary

4773542, at *4 (E.D.N.C. Aug. 13, 2015) (finding that limitations to simple, routine, repetitive
tasks in a low production occupation that would require no complex decision making, constant
change, or dealing with crisis situations did not account for the claimant’s moderate limitations
in concentration, persistence, or pace); Hagedorn v. Colvin, No. 2:12-cv-85-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 accounted only for the claimant’s
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 the claimant’s moderate
limitations in concentration); Salmon v. Colvin, No. 1:12-cv-1209-LCB, 2015 WL 1526020, at
*3 (M.D.N.C. Apr. 2, 2015) (holding that a limitation to simple, routine, repetitive tasks in in
which the claimant could apply commonsense understanding to carry out instructions furnished
on a written, oral, or diagrammatic form did not account for moderate limitations in
concentration, persistence, or pace nor the claimant’s ability to say on task); but see Linares v.
Colvin, No. 5:14-cv-120-GCM, 2015 WL 4389533, at *4 (W.D.N.C. July 17, 2015) (finding that
limitations to simple, routine, repetitive tasks in a stable work environment at a nonproduction
pace with only occasional public contact sufficiently accounted for the claimant’s moderate
limitations in concentration, persistence, or pace because the “nonproduction pace” accounted
for limitations in pace and the “stable work environment with only occasional public contact”
accounted for limitations in concentration and persistence).

predicate for this Court to engage in substantial evidence review is a record that adequately
explains the ALJ’s findings and reasoning. Because it is left to guess how the ALJ concluded that
Plaintiff could perform the relevant functions in light of her mental impairments and other
limitations in concentration, persistence, or pace, the Court finds that substantial evidence does
not support the ALJ’s decision and that remand is appropriate.5
IV.

CONCLUSION
Under the fourth sentence of 42 U.S.C. § 405(g), the Court has the “power to enter, upon

the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” See also Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991). In light of the ALJ’s lack of
analysis, explanation, and determination of Plaintiff’s mental RFC, the Court reverses the
Commissioner’s decision and remands the case for a new hearing.
On remand, the ALJ is directed to conduct a new hearing, take any action necessary to
complete the administrative record, and issue a new decision consistent with Social Security
regulations and this Order. Specifically, the ALJ is directed to: (1) consider, evaluate, and explain
the weight afforded to all medical opinions in the record; (2) reevaluate Plaintiff’s mental
impairments in accordance with Social Security regulations as well as Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015); (3) conduct a thorough function-by-function analysis that explicitly indicates
the weight given to all of the relevant evidence, including all medical opinions, resolves any
conflicts between such evidence, and explicitly discusses Plaintiff’s limitations related to her
mental difficulties; (4) further consider and evaluate Plaintiff’s RFC, including her mental RFC;
and, if necessary, (5) obtain further vocational expert testimony. In conducting the function-by5

Having found remand necessary due to error in the ALJ’s analysis and determination of
Plaintiff’s mental RFC, the Court need not address Plaintiff’s remaining assignments of error.

function analysis, the ALJ must use “narrative discussion describing how the evidence supports
each conclusion.” Mascio, 780 F.3d at 636 (citing SSR 96-8p). A mere recitation of select
evidence is not a sufficient substitute for the function-by-function analysis required by Mascio,
particularly if there is contradictory evidence in the record.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion for Summary Judgment, (Doc. No. 11), is GRANTED;
2. Defendant’s Motion for Summary Judgment, (Doc. No. 13), is DENIED; and
3. The Commissioner’s decision is REVERSED and this matter is REMANDED for a new
hearing consistent with this Order.
Signed: June 15, 2016