Bigby v. Commissioner of Social Security Administration

Filing 37

ORDER rejecting 29 Report and Recommendation, reversing the Commissioner's decision, and remanding case for further administrative proceedings. Signed by Honorable David C Norton on September 28, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
MARY FRANCES BIGBY,

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

No. 1:16-cv-00890-DCN
ORDER

This matter is before the court on United States Magistrate Judge Shiva V.
Hodges’s Report and Recommendation (“R&R”) recommending that this court affirm the
final decision of the Commissioner of Social Security (the “Commissioner”) to deny
plaintiff Mary Frances Bigby’s (“Bigby”) application for disability insurance benefits
(“DIB”) and social security insurance benefits (“SSI”). For the reasons set forth below,
the court rejects the R&R, and reverses and remands the Commissioner’s decision.
I. BACKGROUND
A.

Procedural History

Bigby filed an application for SSI and DIB on May 31, 2012. Tr. 18. In each
application, Bigby alleged disability beginning January 15, 2012 (the “alleged onset
date”). Id. The Social Security Administration denied Bigby’s claims initially and on
reconsideration. Id. Bigby requested a hearing before an administrative law judge
(“ALJ”), and ALJ Harold Chambers held a hearing on July 10, 2014. Tr. 32–69. The
ALJ issued a decision on December 3, 2014, finding that Bigby was not disabled under
the Social Security Act (the “Act”). Tr. 15–31. Bigby requested Appeals Council review

1

of the ALJ’s decision. The Appeals Council declined Bigby’s request, Tr. 1–6, rendering
the ALJ’s decision the final action of the Commissioner.
On March 18, 2016, Bigby filed this action seeking judicial review of the ALJ’s
decision. The magistrate judge issued the R&R on February 3, 2017, recommending that
this court affirm the ALJ’s decision. Bigby filed objections to the R&R on February 17,
2017, and the Commissioner responded to Bigby’s objections on March 3, 2017. The
matter is now ripe for the court’s review.
B.

Medical History

Because Bigby’s medical history is not directly at issue here, the court dispenses
with a lengthy recitation thereof and instead notes a few relevant facts. Bigby was born
on April 29, 1968 and was 43 years old on the alleged onset date. Tr. 286. She
communicates in English and has a high school education. Tr. 286.
C.

ALJ’s Decision

The ALJ employed the statutorily required five-step sequential evaluation process
to determine whether Bigby had been under a disability since the alleged onset date. The
ALJ first determined that Bigby had not engaged in substantial gainful activity during the
relevant period. Tr. 20. At step two, the ALJ found that Bigby suffered from the
following severe impairments: obesity, degenerative joint disease with on-going knee
pain and knee surgeries, sciata with chronic low back pain, headaches, and depression.
Id. At step three, the ALJ determined that Bigby’s impairments did not meet or equal one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”).
Tr. 21–22. Before reaching the fourth step, the ALJ determined that Bigby had the
residual functional capacity (“RFC”) to “lift up to ten pounds on an occasional basis, lift

2

and carry less than ten pounds on a frequent basis” and that Bigby could never climb
ladders, ropes, and scaffolds, and should avoid even moderate exposure to workplace
hazards. Tr. 22. Additionally, the ALJ determined that Bigby could perform “simple,
routine, repetitive tasks.” Id. At step four, the ALJ found that Bigby was unable to
perform her past relevant work, but based on her age, education, and RFC, Bigby could
perform certain jobs that existed in significant numbers in the national economy. Tr. 25.
Therefore, the ALJ concluded that Bigby had not been under a disability within the
meaning of the Act since the alleged onset date.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
§ 636(b)(1). A party’s failure to object is accepted as agreement with the conclusions of
the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber, 423
U.S. 261, 270–71 (1976).
Judicial review of the Commissioner’s final decision regarding disability benefits
“is limited to determining whether the findings of the [Commissioner] are supported by
substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a mere scintilla of
evidence but may be somewhat less than a preponderance.” Id. (internal citations
omitted). “[I]t 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

3

[Commissioner] if his decision is supported by substantial evidence.” Id. Where
conflicting evidence “allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the [ALJ],” not on the reviewing
court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citation omitted).
However, “[a] factual finding by the ALJ is not binding if it was reached by means of an
improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517
(4th Cir. 1987).
III. DISCUSSION
Bigby argues that the RFC is not supported by substantial evidence, making two
specific objections to the R&R: (1) the ALJ presented an incomplete hypothetical to the
vocational expert (“VE”), and (2) the ALJ failed to provide support from the case record
in assessing Bigby’s credibility. The court finds that remand is appropriate because the
ALJ presented an incomplete hypothetical to the VE, and so does not address Bigby’s
objection about the ALJ’s credibility assessment.
The ALJ found that Bigby suffers from a mild restriction in daily activities,
moderate difficulties in social functioning, moderate difficulties in concentration,
persistence or pace, and no episodes of decompensation, which have been of extended
duration. Tr. 21. The ALJ concluded that Bigby did not “exhibit any work-related
limitation function due to any mental condition,” Tr. 24, but failed to sufficiently explain
the exclusion of such mental limitation. The ALJ cites to Dr. Khalid Soherwardy’s (“Dr.
Soherwardy”) exams which “reveal intact thought process, appropriate thought content, a
normal mood and affect, good memory, and good concentration and attention,” but then
gives this opinion “limited weight.” Tr. 24. Despite finding that Bigby had “moderate

4

difficulties in concentration, persistence and pace,” Tr. 21, the ALJ’s hypothetical to the
VE failed to incorporate Bigby’s mental limitations. A review of the transcript from the
hearing reveals that the ALJ’s hypothetical to the VE was:
“The work which can be done is limited to the performance of simple,
routine, and repetitive tasks; and there can be occasional interaction with
the public, and occasional interaction with coworkers, although the person
actually could be around coworkers throughout the workday.
Tr. 59.
It is clear that an ALJ must explain how he evaluated the claimant’s moderate
limitation in concentration, persistence, and pace. In Mascio v. Colvin, 780 F.3d 632 (4th
Cir. 2015), the Fourth Circuit held that an ALJ’s hypothetical to the VE limiting the
plaintiff to performing simple, routine, unskilled tasks did not account for a claimant’s
limitations in concentration, persistence and pace. The Mascio court noted that “the
ability to perform simple tasks differs from the ability to stay on task.” Id. at 638. This
court has found that an ALJ’s hypothetical containing a restriction to “simple, routine,
repetitive tasks” failed to address the claimant’s ability to stay on task. See Westerlund
v. Colvin, 2015 WL 9286495 at *9 (D.S.C. Nov. 18, 2015) (finding the ALJ’s limitation
in the hypothetical to “simple, routine, repetitive tasks” did not account for his moderate
limitation in concentration, persistence, or pace”). Remand is required “when: 1) a
finding of mental limitation in concentration, persistence, or pace is not reflected in the
RFC; 2) the mental limitation was not incorporated in the hypothetical given to the VE;
and 3) the ALJ did not sufficiently explain the exclusion of such mental limitation.”
Wilson v. Colvin, 2016 WL 625088, at *4 (D.S.C. Jan. 15, 2016). Here, despite finding
that Bigby had “moderate difficulties in concentration, persistence and pace,” Tr. 21, the

5

ALJ’s hypothetical to the VE failed to incorporate Bigby’s mental limitations. As all of
the factors in Wilson are fulfilled here, remand is appropriate.
In Herren v. Colvin, 2015 WL 5725903, at *6 (W.D.N.C. Sept. 30, 2015), the
ALJ presented a similar hypothetical with restrictions for only occasional interactions
with the public and supervisors. The Herren court found that while the hypothetical
contained a restriction to “simple, routine, repetitive tasks,” it failed to address the
claimant’s ability to stay on task as required by Mascio. Id. Here, the ALJ’s
hypothetical accounted for interaction with the public and co-workers. However, as in
Herren, the limitations are limited to the interactions with the public and co-workers, and
do not account for Bigby’s ability to stay on task. Along the same lines, in Weeks v.
Colvin, 2015 WL 5242927, at *2 (E.D.N.C. Sept. 8, 2015), the court found remand
appropriate where the hypothetical included performing “simple, routine, repetitive tasks
with only occasional contact with the general public in an environment with few
workplace changes,” because while the hypothetical sufficiently accounted for difficulties
with concentration and persistence, it did not account for difficulties with pace.
Similarly, here, the limitation in the hypothetical—“to the performance of simple,
routine, and repetitive tasks . . . ; [allowing] occasional occasional interaction with the
public, and occasional interaction with coworkers, although the person could be around
coworkers throughout the day”—does not account for pace. Tr. 59–60. Namely, there is
no reference to or limitation of production, pace, speed, or any such temporal limitations.
In contrast, in Dixon v. Colvin, 2016 WL 520293, at *7 (E.D.N.C. Jan. 21, 2016)
the court found the ALJ’s limitations for only occasional contact with coworkers and the
general public, a low production occupation, no complex decision-making and no

6

constant changes addressed claimant's moderate difficulties in concentration, persistence,
or pace. However, here the ALJ limits only Bigby’s interaction with the public and coworkers, and says nothing about production or decision-making. Tr. 59–60.
A review of the record demonstrates that the ALJ determined that Bigby’s mental
limitations rose to the level of severe. Tr. 20. This is also reflected in the transcript of the
hearing, when the ALJ stated, “Well, I’ll just leave it in there as a, as a severe
impairment[.]” Tr. 48. The ALJ determined that Bigby had “moderate difficulties in
concentration, persistence, and pace . . . based [on] the moderate difficulty on the
claimant’s diagnosis of depression with a worried and anxious mood, which can affect
social functioning and concentration.” Tr. 21. In making this determination, the ALJ
acknowledged “that the claimant is only prescribed an anti-depressant medication
(Zoloft) from her treating physician, does not seek counseling, or psychiatric care, and
has never required psychiatric hospitalization. Id. Additionally, the ALJ gave “limited
weight to Dr. Soherwardy’s opinion regarding the claimant’s mental capacity and
agree[d] with the prior ALJ’s decision that limits the claimant to simple, repetitive,
routine tasks.” Tr. 24. Despite giving this opinion limited weight, the ALJ then stated
that Dr. Soherwardy “does not recommend psychiatric care and notes that the claimant
does not exhibit any work-related limitation in function due to any mental condition.” Tr.
21. Furthermore, the ALJ states “While I note that there is no psychiatric care in the
record, the claimant does carry a diagnosis of depression with a worried and anxious
mood and is likely affected by her chronic pain.” Tr. 24.
The court finds that the ALJ did not adequately explain how he considered
Bigby’s moderate limitations in the RFC. Without an explanation as to why Bigby’s

7

moderate limitation in social functioning did not translate into work-related limitations—
which would provide an explanation for the ALJ’s incomplete hypothetical to the VE—
the court is left to guess as to how the ALJ concluded that Bigby could perform the
relevant functions in light of her mental limitations. Fauber v. Colvin, 2016 WL
8736904, at *5 (W.D. Va. Aug. 12, 2016) (remanding in part due to ALJ’s failure to
mention in the hearing or decision the impact of claimant’s moderate social functioning
limitation on the claimant’s RFC). See also Scruggs v. Colvin, 2015 WL 2250890, at *5
(W.D.N.C. May 13, 2015) (“Because the court is left to guess as to how the ALJ
concluded that Plaintiff could perform the relevant functions in light of her mental
limitations, the court finds that substantial evidence does not support his decision and that
remand is therefore appropriate”); cf. Helms v. Colvin, 2016 WL 2848368, at *3 (D.S.C.
May 16, 2016) (ALJ sufficiently explained the exclusion of the mental limitation in the
hypothetical to the VE by citing to opinion of the state agency consultant and two other
doctors’ treatment notes which supported the state agency consultant’s assessment of
claimant’s coherent goal-directed though processes, normal cognitive processing speed,
and improved anxiety).
Here, the ALJ's hypothetical questions to the VE and the corresponding RFC
assessment limiting Bigby to performing “simple, routine, and repetitive tasks, with
occasional interaction with the public and occasional interaction with co-workers” but the
ability to “be around co-workers throughout the day” do not account for Bigby’s
moderate difficulties in maintaining concentration, persistence or pace. Accordingly,
remand is appropriate, see Mascio, 780 F.3d at 636, and the court need not address
Bigby’s remaining arguments.

8

IV. CONCLUSION
Based on the foregoing, the court REJECTS the magistrate judge’s R&R,
REVERSES the Commissioner’s decision, and REMANDS the case for further
administrative proceedings.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 28, 2017
Charleston, South Carolina

9