Scott-Grant v. Berryhill

Filing 15

ORDER granting in part and denying in part 11 Motion for Summary Judgment; denying 13 Motion for Summary Judgment; and the ALJs determination is REVERSED3 and REMANDED to the Commissioner for further proceedings consistent with this ORDER. Signed by Chief Judge Frank D. Whitney on 5/7/18. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:17-cv-00542-FDW
KAREN D. SCOTT-GRANT,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER is before the Court on Plaintiff Karen D. Scott-Grant’s Motion for
Summary Judgment (Doc. No. 11) filed on January 19, 2018, and Defendant Acting Commissioner
of Social Security Nancy A. Berryhill’s (“Commissioner”) Motion for Summary Judgment (Doc.
No. 13) filed on March 20, 2018.
Having reviewed and considered the written arguments, administrative record, and
applicable authority, and for the reasons set forth below, the Court GRANTS in part and DENIES
in part Plaintiff’s Motion for Summary Judgment; DENIES the Commissioner’s Motion for
Summary Judgment; and REVERSES the Commissioner’s decision and REMANDS this matter
pursuant to Sentence Four 42 U.S.C. § 405(g) 1 for proceedings consistent with this Order.
I. BACKGROUND
In April 2013, Plaintiff filed an application for Title II and Title XVI disability benefits,
alleging disability beginning August 3, 2012. (Tr. 213, 219, 63). After her application was denied

“The court shall have 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.” 42 U.S.C. § 405(g).
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initially and upon reconsideration (Tr. 135,146, 154), Plaintiff requested a hearing (Tr. 164). After
the hearing on April 14, 2016, the ALJ issued an unfavorable decision. (Tr. 13). Plaintiff’s request
for review by the Appeals Council was subsequently denied. (Tr. 1).
The ALJ determined Plaintiff was not disabled from the alleged onset date through the date
of the decision. (Tr. 16). The ALJ found that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date and that she had the following severe impairments: “diabetes
mellitus type II, hypertension, unspecified arthropathy, mood disorder and anxiety disorder.” (Tr.
18). The ALJ determined that none of these impairments nor any combination of the impairments
met or medically equaled a per se disabled medical listing under 20 C.F.R. Pt. 404, Subpt. P, App.
1. (Tr. 19). The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”) to
perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b):
[E]xcept she is limited to frequent, but not constant, handling and
fingering bilaterally; she must be permitted to alternate between
sitting and standing at 30 minute[] intervals; she is limited to
occasional climbing of ladders; frequent climbing of stairs,
balancing, stooping, crouching, kneeling and crawling; no
concentrated exposure to hazards such as moving machinery or
unprotected heights; she is further limited to simple routine and
repetitive tasks involving no more than occasional public contact.
(Tr. 20). In response to a hypothetical that factored in Plaintiff’s age, education, work experience,
and RFC, the vocational expert (“VE”) testified that such an individual can perform jobs in the
national economy that exist in significant numbers. (Tr. 24). Thus, the ALJ concluded that
Plaintiff was not disabled, as defined under the Social Security Act. (Tr. 25).
Plaintiff has exhausted all administrative remedies and now appeals pursuant to 42 U.S.C.
§§ 405(g) and 1382(c)(3). Plaintiff claims that the ALJ’s decision should be reversed because the
ALJ failed to make a complete finding of Plaintiff’s mental residual functional capacity and relied

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on testimony from the VE that appears to conflict with the Dictionary of Occupational Titles
(“DOT”).
II. STANDARD OF REVIEW
Section 405(g) of Title 42 of the United States Code provides judicial review of the Social
Security Commissioner’s denial of social security benefits. When examining a disability
determination, a reviewing court is required to uphold the determination when an ALJ has applied
correct legal standards and the ALJ’s factual findings are supported by substantial evidence. 42
U.S.C. § 405(g); Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d 319, 322 (4th Cir. 2013); Bird
v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). A reviewing court may not
re-weigh conflicting evidence or make credibility determinations because “it is not within the
province of a reviewing court to determine the weight of the evidence, nor is it the court’s function
to substitute its judgment for that of the Secretary if his decision is supported by substantial
evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 2013).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)
(alteration and internal quotation marks omitted). “It consists of more than a mere scintilla of
evidence but may be less than a preponderance.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir.
2015) (internal quotation marks omitted). Courts do not reweigh evidence or make credibility
determinations in evaluating whether a decision is supported by substantial evidence; “[w]here
conflicting evidence allows reasonable minds to differ,” courts defer to the ALJ’s decision.
Johnson, 434 F.3d at 653.
“In order to establish entitlement to benefits, a claimant must provide evidence of a
medically determinable impairment that precludes returning to past relevant work and adjustment

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to other work.” Flesher v. Berryhill, 697 F. App’x 212 (4th Cir. 2017) (citing 20 C.F.R. §§
404.1508, 404.1520(g)). In evaluating a disability claim, the Commissioner uses a five-step
process. 20 C.F.R. § 404.1520. Pursuant to this five-step process, the Commissioner asks, in
sequence, whether the claimant: (1) worked during the alleged period of disability; (2) had a severe
impairment; (3) had an impairment that met or equaled the severity of a listed impairment; (4)
could return to his past relevant work; and (5) if not, could perform any other work in the national
economy. Id.; see also Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017) (citing Mascio v.
Colvin, 780 F.3d 632, 634 (4th Cir. 2015)); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). The
claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five. See Lewis, 858 F.3d at 861; Monroe v. Colvin, 826 F.3d 176, 179–80
(4th Cir. 2016).
“If the claimant fails to demonstrate she has a disability that meets or medically equals a
listed impairment at step three, the ALJ must assess the claimant’s residual functional capacity
(“RFC”) before proceeding to step four, which is ‘the most [the claimant] can still do despite [her
physical and mental] limitations [that affect h[er] ability to work].’” Lewis, 858 F.3d at 861–62
(quoting 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)). In Lewis, the Fourth Circuit explained the
considerations applied before moving to step four:
[The RFC] determination requires the ALJ to “first identify the individual’s
functional limitations or restrictions and assess his or her work-related abilities on
a function-by-function basis, including the functions listed in the regulations.”
Mascio, 780 F.3d at 636 (internal quotations omitted); see also SSR 96-8p, 1996
WL 374184, at *1 (July 2, 1996). Once the function-by-function analysis is
complete, an ALJ may define the claimant’s RFC “in terms of the exertional levels
of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p, 1996 WL
374184, at *1. See generally 20 C.F.R. §§ 404.1567, 416.967 (defining “sedentary,
light, medium, heavy, and very heavy” exertional requirements of work).
When assessing the claimant’s RFC, the ALJ must examine “all of [the claimant’s]
medically determinable impairments of which [the ALJ is] aware,” 20 C.F.R. §§
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404.1525(a)(2), 416.925(a)(2), “including those not labeled severe at step two.”
Mascio, 780 F.3d at 635. In addition, he must “consider all [the claimant’s]
symptoms, including pain, and the extent to which [her] symptoms can reasonably
be accepted as consistent with the objective medical evidence and other evidence,”
20 C.F.R. §§ 404.1529(a), 416.929(a). “When the medical signs or laboratory
findings show that [the claimant has] a medically determinable impairment(s) that
could reasonably be expected to produce [her] symptoms, such as pain, [the ALJ]
must then evaluate the intensity and persistence of [the claimant’s] symptoms so
that [the ALJ] can determine how [her] symptoms limit [her] capacity for work.”
20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).
Lewis, 858 F.3d at 862.
Proceeding to step four, the burden remains with the claimant to show he or she is unable
to perform past work. Mascio, 780 F.3d at 635. If the claimant meets their burden as to past work,
the ALJ proceeds to step five.
“At step five, the burden shifts to the Commissioner to prove, by a preponderance
of the evidence, that the claimant can perform other work that ‘exists in significant
numbers in the national economy,’ considering the claimant’s residual functional
capacity, age, education, and work experience.” [Mascio, 780 F.3d at 635 (quoting
20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c)(2), 416.1429)]. “The Commissioner
typically offers this evidence through the testimony of a vocational expert
responding to a hypothetical that incorporates the claimant’s limitations.” Id.
Lewis, 858 F.3d at 862. If the Commissioner meets this burden in step five, the claimant is deemed
not disabled and the benefits application is denied. Id.
III. ANALYSIS
Plaintiff argues that this case should be remanded for the ALJ’s failure to give a complete
function-by-function analysis of Plaintiff’s nonextertional mental functions. (Doc. No. 12 at 5).
Specifically, Plaintiff finds the ALJ’s determination deficient for not making a finding as to
Plaintiff’s ability to stay on task. (Doc. No. 12 at 6). The Commissioner disagrees, arguing that
the ALJ’s narrative discussion supports the RFC findings. (Doc. No. 14 at 5).
An ALJ’s RFC assessment “must . . . identify the individual’s functional limitations or
restrictions and assess his or her work-related abilities on a function-by-function basis . . . .”
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Mascio, 790 F.3d at 636 (quoting SSR 96-8p); see also Lewis, 858 F.3d at 862. However, the lack
of an explicit function-by-function analysis does not require remand per se. Mascio, 790 F.3d at
636. “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)), but remand is not appropriate when a function is irrelevant or
uncontested, id.
When the ALJ finds in step three moderate difficulties in concentration, persistence, or
pace, “the RFC must reflect the claimant’s work functions as to this limitation unless the ALJ
explains why a limitation in concentration, persistence, or pace at step three does not translate into
a limitation on the claimant’s capacity to do work-related activities.” Watts v. Berryhill, No. 3:16cv-850-FDW, 2017 WL 6001639, at *4 (W.D.N.C. Dec. 4, 2017) (citing Mascio, 780 F.3d at 638;
SSR 96-8p). The ability to concentrate, persist, or maintain pace refers to the “ability to sustain
focused attention and concentration sufficiently long to permit the timely and appropriate
completion of tasks commonly found in work settings.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 404
12.00(C)(3). The Fourth Circuit has held that an ALJ does not account for a claimant’s difficulties
in concentration, persistence, or pace by restricting work functions to “simple, routine tasks or
unskilled work” but does account for such difficulties by restricting the “ability to stay on task.”
Mascio, 780 F.3d at 638 (citations omitted); but see Sizemore v. Berryhill, 878 F.3d 72, 81 (4th
Cir. 2017) (finding RFC limiting claimant to “simple one, two-step tasks in a low stress work
environment with no public contact” sufficient to account for moderate difficulties in
concentration, persistence, or pace when supported by two doctors' opinions). However, as
explained previously by this Court, the Fourth Circuit did not conclude that the only way to account

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for moderate difficulties in concentration, persistence, or pace is to include in the RFC the language
“ability to stay on task.” Watts, 2017 WL 6001639, at *4.
Although the Commissioner correctly highlights portions of the ALJ’s narrative analysis
that support the ALJ’s determination, the Commissioner did not cite, nor can the Court find, any
analysis that explains why a moderate limitation in concentration, persistence, or pace at step three
does not translate into a limitation on the Plaintiff’s capacity to do work-related activities or that
explains how the RFC addresses Plaintiff’s moderate limitation in concentration, persistence, or
pace. (Doc. No. 14). This omission is not irrelevant or uncontested in light of consultative
examiner Dr. Warren J. Steinmuller’s statement qualifying his opinion that Plaintiff “appeared to
have adequate attention to perform simple tasks” with it is “[u]nclear if [Plaintiff] would be able
to maintain this throughout her work day.” (Tr. 1327).2 This omission frustrates the Court’s
review for substantial evidence. Therefore, the Court remands the case and declines to address
matters not addressed herein.
IV. CONCLUSION
For these reasons, Plaintiff’s Motion for Summary Judgment (Doc. No. 11) is GRANTED
in part and DENIED in part; the Commissioner’s Motion for Summary Judgment (Doc. No. 13) is
DENIED; and the ALJ’s determination is REVERSED3 and REMANDED to the Commissioner
for further proceedings consistent with this ORDER.

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The Court only reiterates what is in the record and does not address whether such statement is an opinion from a
medical source.
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In reversing the Commissioner’s decision, the Court expresses no opinion on the merits of Plaintiff’s claim for
disability. The Court expressly provides that an order of “reversal” here does not mandate a finding of disability on
remand. The Court finds the ALJ’s decision deficient for the reasons stated herein, and consequently, that decision
as written cannot stand. See, e.g., Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (“The ALJ’s decision must
stand or fall with the reasons set forth in the ALJ’s decision[.]” (citations omitted)).

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IT IS SO ORDERED.
Signed: May 7, 2018

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