Oates v. Colvin

Filing 20

ORDER denying 16 Motion for Summary Judgment; denying 18 Motion for Summary Judgment. The Commissioner's determination is VACTED and this matter is REMANED for further consideration, as directed herein. Signed by Magistrate Judge David Keesler on 8/24/17. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:16-CV-726-DCK
STACY NELSON OATES,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Motion For Summary
Judgment” (Document No. 16) and Defendant’s “Motion For Summary Judgment” (Document
No. 18). The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.
§636(b)(1)(B), and these motions are ripe for disposition. After careful consideration of the
written arguments, the administrative record, and applicable authority, the undersigned will direct
that Plaintiff’s “Motion For Summary Judgment” be denied; that Defendant’s “Motion For
Summary Judgment” be denied; and that the Commissioner’s decision be vacated and this matter
be remanded for further consideration.
BACKGROUND
Plaintiff Stacy Oates (“Plaintiff”), through counsel, seeks judicial review of an unfavorable
administrative decision on his application for disability benefits. (Document No. 1). On or about
August 23, 2012, Plaintiff filed an application for supplemental security income under Title XVI
of the Social Security Act, 42 U.S.C. § 1383, alleging an inability to work due to a disabling
condition beginning January 1, 2011. (Transcript of the Record of Proceedings (“Tr.”) 32). The
Commissioner of Social Security (the “Commissioner” or “Defendant”) denied Plaintiff’s

application initially on or about April 19, 2013, and again after reconsideration on or about June
13, 2013.

(Tr. 32, 117, 126).

In its “Notice of Reconsideration,” the Social Security

Administration (“SSA”) included the following explanation of its decision:
On your application you stated that you are disabled because of
Bipolar Disorder, High Blood Pressure, Pain, Anxiety, Reflux and
Schizophrenia.
The medical evidence shows that your condition is not severe
enough to be considered disabling. We realize that your condition
keeps you from doing some types of work, but it does not keep you
from doing less demanding work. Based on your age, education,
and past work experience, you can do other work. It has been
decided, therefore, that you are not disabled according to the Social
Security Act. You are able to think, act in your own interest,
communicate, handle your own affairs, and adjust to ordinary
emotional stresses without significant difficulties.
We do not have sufficient vocational information to determine
whether you can perform any of your past relevant work. However,
based on the evidence in file, we have determined that you can adjust
to other work.
(Tr. 126).
Plaintiff filed a timely written request for a hearing on or about June 22, 2013. (Tr. 32).
On January 15, 2015, Plaintiff appeared and testified at a hearing before Administrative Law Judge
Clinton C. Hicks (the “ALJ”). (Tr. 33, 45-78). In addition, Brenda Cartwright, a vocational expert
(“VE”), and Bradford D. Myler, Plaintiff’s attorney, appeared at the hearing. (Tr. 32, 47, 74-78).
Plaintiff amended his alleged disability onset date to August 23, 2012. (Tr. 49).
The ALJ issued an unfavorable decision on April 6, 2015, denying Plaintiff’s claim. (Tr.
32-40). On or about May 12, 2015, Plaintiff filed a request for review of the ALJ’s decision, which
was denied by the Appeals Council on or about August 25, 2016. (Tr. 1-4, 28). The ALJ decision
became the final decision of the Commissioner when the Appeals Council denied Plaintiff’s review
request. (Tr. 1).

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Plaintiff’s “Complaint” seeking a reversal of the ALJ’s determination was filed in this
Court on October 20, 2016. (Document No. 1). On January 11, 2017, the undersigned was
assigned to this case as the referral Magistrate Judge. The parties filed a “Joint Stipulation of
Consent to Jurisdiction By US Magistrate Judge” (Document No. 11) on May 2, 2017. On May
2, 2017, the case was reassigned to the undersigned.
On May 31, 2017, the Court granted Plaintiff’s consent motion for an extension of time to
file a motion for summary judgment. (Document No. 15). In addition, the Court ordered “that
Plaintiff’s counsel shall confer with Defendant’s counsel prior to filing a motion for summary
judgment and discuss Plaintiff’s alleged errors, as well as whether Mascio v. Colvin,780 F.3d 632
(4th Cir. 2015), is applicable to this case.” Id. The record does not appear to indicate that the
parties conferred as directed.
Plaintiff’s “Motion For Summary Judgment” (Document No. 16) and “Plaintiff’s
Memorandum Of Law In Support Of A Motion For Summary Judgment Pursuant To Fed. R. Civ.
P. 56” (Document No. 17) were filed June 29, 2017; and Defendant’s “Motion For Summary
Judgment” (Document No. 18) and “Memorandum Of Law In Support Of The Commissioner’s
Motion For Summary Judgment” (Document No. 19) were filed July 27, 2017. 1 Plaintiff declined
to file a response/reply brief, and the time to do so has lapsed. See “Social Security Briefing
Order,” Case No. 3:13-MC-198-FDW, (Document No. 1) (W.D.N.C. Dec. 23, 2013).
The pending motions are now ripe for review and disposition.

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The undersigned notes that there appears to be some inconsistency between the information provided for
Plaintiff’s counsel on the docket and that included with the brief. Counsel is respectfully advised to confirm
with the Clerk’s Office that all information is accurate and current.

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STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court’s review
of a final decision of the Commissioner to: (1) whether substantial evidence supports the
Commissioner’s decision; and (2) whether the Commissioner applied the correct legal standards.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990).
The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the
evidence or to substitute its judgment for that of the Commissioner – so long as that decision is
supported by substantial evidence. Hays, 907 F.2d at 1456 (4th Cir. 1990); see also, Smith v.
Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012). “Substantial evidence has been defined as ‘more than a scintilla and [it] 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.’” Smith v. Heckler, 782 F.2d
1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).
Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and
to resolve conflicts in the evidence. Hays, 907 F.2d at 1456; King v. Califano, 599 F.2d 597, 599
(4th Cir. 1979) (“This court does not find facts or try the case de novo when reviewing disability
determinations.”); Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that
it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistences in the
medical evidence, and that it is the claimant who bears the risk of nonpersuasion.”). Indeed, so
long as the Commissioner’s decision is supported by substantial evidence, it must be affirmed even
if the reviewing court disagrees with the final outcome. Lester v. Schweiker, 683 F.2d 838, 841
(4th Cir. 1982).

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DISCUSSION
The question before the ALJ was whether Plaintiff was under a “disability” as that term of
art is defined for Social Security purposes, at any time between August 23, 2012, and the date of
his decision.2 (Tr. 32, 40). To establish entitlement to benefits, Plaintiff has the burden of proving
that he was disabled within the meaning of the Social Security Act. Bowen v. Yuckert, 482 U.S.
137, 146 n.5 (1987).
The Social Security Administration has established a five-step sequential evaluation
process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:
(1)

whether claimant is engaged in substantial gainful activity if yes, not disabled;

(2)

whether 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 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 claimant has the residual functional capacity
(“RFC”) to perform her/his past relevant work - if yes, not
disabled; and

(5)

whether considering claimant’s RFC, age, education, and
work experience he/she can make an adjustment to other
work - if yes, not disabled.

20 C.F.R. § 404.1520(a)(4)(i-v).

Under the Social Security Act, 42 U.S.C. § 301, 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)).
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The burden of production and proof rests with the claimant during the first four steps; if
claimant is able to carry this burden, then the burden shifts to the Commissioner at the fifth step to
show that work the claimant could perform is available in the national economy. Pass, 65 F.3d at
1203; Monroe v. Colvin, 826 F.3d 176, 179-80 (4th Cir. 2016). In this case, the ALJ determined
at the fifth step that Plaintiff was not disabled. (Tr. 39-40).
First, the ALJ determined that Plaintiff had not engaged in any substantial gainful activity
since August 23, 2012, his alleged disability onset date. (Tr. 34). At the second step, the ALJ
found that bipolar disorder; depression; and chronic obstructive pulmonary disease, and gout,
were severe impairments.3 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 impairments
listed in 20 C.F.R. 404, Subpart P, Appendix 1. (Tr. 34-35).
Next, the ALJ assessed Plaintiff’s RFC and found that he retained the capacity to perform
light work, with the following limitations:
he requires the option to alternate between sitting and standing twice
per hour; he cannot climb ropes, ladders, and scaffolds; he is
limited to no more than occasional climbing of ramps and stairs; and
he is further limited to simple, routine and repetitive tasks with no
more than occasional interaction with the public.
(Tr. 36). In making his finding, the ALJ specifically stated that he “considered all symptoms and
the extent to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSRs
96-4p and 96-7p.” Id.

The determination at the second step as to whether an impairment is “severe” under the regulations is a
de minimis test, intended to weed out clearly unmeritorious claims at an early stage. See Bowen v. Yuckert,
482 U.S. 137 (1987).
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At the fourth step, the ALJ held that Plaintiff had not been able to perform his past relevant
work. (Tr. 39).
At the fifth and final step, the ALJ concluded based on the testimony of the VE and
“[c]onsidering the claimant’s age, education, work experience, and residual functional capacity,”
that “jobs exist in significant numbers in the national economy” that Plaintiff could perform. (Tr.
39). Specifically, the ALJ noted that the VE testified that according to the factors given by the
ALJ, occupations claimant could perform included day worker; routing clerk; order caller; and
small parts assembler. (Tr. 40). Therefore, the ALJ concluded that Plaintiff was not under a
“disability,” as defined by the Social Security Act, at any time between August 23, 2012, and the
date of his decision, April 6, 2015. (Tr. 40).
Plaintiff on appeal to this Court makes the following assignments of error: (1) the ALJ
erred by not considering “all of the opinions and evidence in the record and fail[ing] to reconcile
his determination with the opinions of the SAPCs;” and (2) the ALJ failed to include a limitation
to account for Plaintiff’s moderate difficulty with CPP. (Document No. 17, p.6).
The undersigned is persuaded that Plaintiff’s second alleged error provides sufficient cause
for remand.
Applicability of Mascio v. Colvin
In his second assignment of error, Plaintiff concisely argues that the ALJ erred in the
formulation of the RFC, by failing to adequately account for Plaintiff’s limitations in
concentration, persistence, and pace (“CPP”) in accordance with Mascio v. Colvin, 780 F.3d 632,
638 (4th Cir. 2015) (Document No. 17, p.11). Plaintiff asserts that
The ALJ’s erroneous residual functional capacity necessarily
renders the Step 5 determination unsupported by substantial
evidence. The hypothetical question asked to the VE here was
incomplete, as it improperly did not include a limitation to account
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for Plaintiff’s moderate difficulties in CPP. Mascio, 780 F.3d at
638. A limitation to simple, routine, repetitive tasks does not
account for Plaintiff’s limited ability to stay on task. Id. Further,
the hypothetical did not include a limitation concerning Plaintiff’s
limited ability to relate to coworkers and supervisors. [A]
hypothetical question is unimpeachable ‘if it adequately reflect[s]’
a residual functional capacity for which the ALJ had sufficient
evidence.” Fisher v. Barnhart, 181 Fed. App’x. 359, 363 (4th Cir.
2006) (quoting Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005)).
Id. (emphasis added).
In response, Defendant asserts that the ALJ did not ignore the Plaintiff’s limitations in
concentration, persistence, and pace, “but instead, the ALJ specifically accounted for those
limitations in his hypothetical question to the VE and in his RFC finding in the decision.”
(Document No. 19, p.15) (citing Tr. 32-40). Defendant seems to suggest that this case is
distinguishable from Mascio because the RFC finding here limited Plaintiff to simple, routine,
repetitive tasks, and “no more than occasional interaction with the public.” Id. (citing Tr. 36).
The undersigned is not persuaded that the ALJ adequately accounted for Plaintiff’s
moderate limitations in concentration, persistence, and pace in his RFC finding. Pursuant to
Mascio, the limitation to “simple, routine, repetitive tasks,” without more explanation for how
Plaintiff’s limitations affect his ability to work, is not adequate. (Tr. 36). In Mascio, the Fourth
Circuit opined that
we agree with other circuits 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.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth
Circuits). As Mascio points out, the ability to perform simple
tasks differs from the ability to stay on task. Only the latter
limitation would account for a claimant’s limitation in
concentration, persistence, or pace.
Mascio, 780 F.3d at 638.

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Here, the ALJ’s hypothetical to the VE limited Plaintiff to “[s]imple, routine, repetitive
tasks;” however, the ALJ did not discuss Plaintiff’s ability to stay on task and to work for a full
workday. See (Tr. 75).4 To the extent the ALJ here also limited Plaintiff’s interaction with the
public, the undersigned is not persuaded that such additional RFC restriction sufficiently addresses
the limitations with concentration, persistence, and pace. Moreover, Defendant does not cite any
caselaw that applies Mascio as Defendant seeks to apply that decision to this case. (Document
No. 19, pp.15-16).
In short, the undersigned finds Plaintiff’s position on this issue to be compelling.
(Document No. 17). “[T]he ability to perform simple tasks differs from the ability to stay on task.”
Mascio, 780 F.3d at 638. The ALJ’s failure to adequately address Plaintiff’s limitations as to
concentration, persistence, and pace frustrates meaningful review.
While Defendant may ultimately be correct that Plaintiff can perform work in the national
economy, the undersigned finds that the ALJ’s opinion is deficient based on the Fourth Circuit’s
decision in Mascio v. Colvin. See also Kidd v. Colvin, 1:15-CV-208-GCM-DCK, 2017 WL
443469 (W.D.N.C. Jan. 10, 2017) aff’d by 2017 WL 442898 (W.D.N.C. Feb. 1, 2017); Boyd v.
Berryhill, 3:16-CV-069-GCM-DCK, 2017 WL 1080926 (W.D.N.C. Feb. 22, 2017) aff’d by 2017
WL 1086334 (W.D.N.C. March 21, 2017); Shook v. Berryhill, 1:16-CV-105-DCK, 2017 WL
833060 (W.D.N.C. March 2, 2017); Brooks v. Berryhill, 5:16-CV-086-RLV-DCK, (W.D.N.C.
March 8, 2017); and Mills v. Berryhill, 3:16-CV-598-DCK, 2017 WL 1682548 (W.D.N.C. Apr.
28, 2017).

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Notably, the hearing in this case was held about three months before the Mascio decision was published,
and the ALJ’s decision came out just a few weeks after Mascio. However, as noted above, counsel in this
case had plenty of time to consider the implications of Mascio and were specifically directed to confer on
that subject.

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CONCLUSION
Based on the foregoing, the undersigned is not persuaded that substantial evidence supports
the Commissioner’s decision and that the Commissioner applied the correct legal standards. As
such, the undersigned will order that the Commissioner’s decision be vacated and that this matter
be remanded for further consideration. On remand, an ALJ should review each of Plaintiff’s
alleged errors and properly account for limitations in concentration, persistence and pace, in
accordance with Mascio.
IT IS, THEREFORE, ORDERED that: Plaintiff’s “Motion For Summary Judgment”
(Document No. 16) is DENIED; and Defendant’s “Motion For Summary Judgment” (Document
No. 18) is DENIED; and the Commissioner’s determination is VACATED and this matter is
REMANDED for further consideration, as directed herein.

Signed: August 24, 2017

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