Herron v. Commissioner of Social Security

Filing 26

ORDER re 1 Complaint - Social Security, filed by Michael Wade Herron. It is ORDERED that the Commissioner's decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is REMANDED to the Commissioner for further administrative action. Signed by Magistrate Judge Jacquelyn D Austin on 8/5/2016. (abuc)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Michael Wade Herron,
Plaintiff,
vs.
Carolyn W. Colvin,
Commissioner of Social Security,
Defendant.

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Civil Action No. 8:15-cv-01910-JDA
ORDER

This matter is before the Court for a final Order pursuant to Local Civil Rules
73.02(B)(1) and 83.VII.02, D.S.C.; 28 U.S.C. § 636(c); the parties’ consent to disposition
by a magistrate judge [Doc. 6]; and the Honorable J. Michelle Childs’s January 15, 2016
Order of reference [Doc. 23]. Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social
Security (“the Commissioner”) denying Plaintiff’s claim for supplemental security income
(“SSI”).1 For the reasons set forth below, the decision of the Commissioner is reversed
and remanded for administrative action consistent with this Order, pursuant to sentence
four of 42 U.S.C. § 405(g).

1

Section 1383(c)(3) provides, “The final determination of the Commissioner of Social
Security after a hearing under paragraph (1) shall be subject to judicial review as provided
in section 405(g) of this title to the same extent as the Commissioner’s final determinations
under section 405 of this title.” 42 U.S.C. § 1383(c)(3).

PROCEDURAL HISTORY
In March 2012, Plaintiff filed an application for SSI, alleging disability beginning
December 1, 2008. 2 [R. 158–63.] The claim was denied initially and on reconsideration
by the Social Security Administration (“the Administration”). [R. 104–08, 114–16.] Plaintiff
requested a hearing before an administrative law judge (“ALJ”) and on October 24, 2013,
ALJ Frances W. Williams conducted a hearing on Plaintiff’s claims. [R. 25–76.]
The ALJ issued a decision on December 12, 2013, finding Plaintiff not disabled. [R.
9– 24.] At Step 1, 3 the ALJ found Plaintiff had not engaged in substantial gainful activity
since March 22, 2012, the application date. [R. 14, Finding 1.] At Step 2, the ALJ found
Plaintiff had the following severe impairments: depression, anxiety, personality disorder,
and mild contractures of the two fingers of the left non-dominant hand. [R. 14, Finding 2.]
The ALJ also found Plaintiff had a history of a right ankle fracture in 2007. [R. 14.] At Step
3, the ALJ found 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. Part 404, Subpart
P, Appendix 1. [R. 15, Finding 3.] The ALJ specifically considered Listings 1.02, 12.04,
12.06, and 12.08. [R. 15–16.]
Before addressing Step 4, Plaintiff’s ability to perform his past relevant work, the
ALJ found Plaintiff retained the following residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform

2

At the hearing before the Administrative Law Judge, Plaintiff, through counsel,
amended the alleged onset date to November 1, 2011. [R. 28.]
3

The five-step sequential analysis used to evaluate disability claims is discussed in the
Applicable Law section, infra.
2

medium work as defined in 20 CFR 416.967(c). Specifically,
the claimant is able to lift and carry up to 50 pounds
occasionally and 25 pounds frequently. The claimant can
perform frequent, not constant, fingering with the left
non-dominant hand. The claimant is limited to unskilled work
with no direct interaction with the public and only occasional
team type interaction with co-workers.
[R. 16, Finding 4.] At Step 4, the ALJ noted Plaintiff was unable to perform his past
relevant work as a carpenter [R. 20, Finding 5]; but based on his age, education, RFC, and
the testimony of a vocational expert (“VE”), there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform [R. 20, Finding 9]. On this
basis, the ALJ found Plaintiff had not been under a disability as defined by the Act since
March 22, 2012, the date the application was filed. [R. 21, Finding 10.]
Plaintiff requested Appeals Council review of the ALJ’s decision but the Council
declined review. [R. 1–6.] Plaintiff filed this action for judicial review on May 5, 2015.
[Doc. 1.]
THE PARTIES’ POSITIONS
Plaintiff contends the ALJ’s decision is not supported by substantial evidence and
that remand is necessary for the following reasons:
1.

The ALJ failed to properly evaluate the testimony of Plaintiff’s mother [Doc.
16 at 8–11];

2.

The ALJ erred in rejecting the opinion of Plaintiff’s treating psychiatrist
regarding Plaintiff’s ability to work as set forth in his GAF scores [id. at
11–15];

3.

The jobs identified by the VE in response to the ALJ’s hypothetical are
precluded by nonexertional limitations included in the hypothetical [id. at
15–16]; and

4.

The ALJ erred in finding Plaintiff’s ankle fracture was “not severe” [id. at
16–18].
3

The Commissioner, on the other hand, contends the ALJ’s decision is supported by
substantial evidence and that:
1.

Substantial evidence supports the ALJ’s credibility determination including
the ALJ’s consideration of lay testimony and the side effects of Plaintiff’s
medications [Doc. 17 at 13– 19];

2.

Substantial evidence supports the ALJ’s evaluation of the treating physician’s
GAF scores [id. at 19–23];

3.

Substantial evidence supports the hypothetical proffered to the VE [id. at
23–27]; and

4.

Substantial evidence supports the ALJ’s determination at Step Two where
Plaintiff failed to prove that his right ankle limited his basic work activities [id.
at 27–30].
STANDARD OF REVIEW

The Commissioner’s findings of fact are conclusive if supported by substantial
evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla—i.e., the
evidence must do more than merely create a suspicion of the existence of a fact and must
include such relevant evidence as a reasonable person would accept as adequate to
support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F. Supp. 686, 687
(S.D.W. Va. 1963)) (“Substantial evidence, it has been held, is evidence which a reasoning
mind would accept as sufficient to support a particular conclusion. It consists of more than
a mere scintilla of evidence but may be somewhat less than a preponderance. If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
‘substantial evidence.’”).

4

Where conflicting evidence “allows reasonable minds to differ as to whether a
claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the
[Commissioner’s] designate, the ALJ),” not on the reviewing court. Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th
Cir. 1991) (stating that where the Commissioner’s decision is supported by substantial
evidence, the court will affirm, even if the reviewer would have reached a contrary result
as finder of fact and even if the reviewer finds that the evidence preponderates against the
Commissioner’s decision). Thus, 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 Commissioner so long as the decision is supported by substantial evidence.
See Bird v. Commissioner, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642;
Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).
The reviewing court will reverse the Commissioner’s decision on plenary review,
however, if the decision applies incorrect law or fails to provide the court with sufficient
reasoning to determine that the Commissioner properly applied the law. Myers v. Califano,
611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep’t of Health & Human Servs., 21
F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner’s decision “is in clear
disregard of the overwhelming weight of the evidence, Congress has empowered the
courts to modify or reverse the [Commissioner’s] decision ‘with or without remanding the
cause for a rehearing.’” Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42
U.S.C. § 405(g)). Remand is unnecessary where “the record does not contain substantial
evidence to support a decision denying coverage under the correct legal standard and

5

when reopening the record for more evidence would serve no purpose.” Breeden v.
Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).
The court may remand a case to the Commissioner for a rehearing under sentence
four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir.
1991) (unpublished table decision). To remand under sentence four, the reviewing court
must find either that the Commissioner’s decision is not supported by substantial evidence
or that the Commissioner incorrectly applied the law relevant to the disability claim. See,
e.g., Jackson v. Chater, 99 F.3d 1086, 1090–91 (11th Cir. 1996) (holding remand was
appropriate where the ALJ failed to develop a full and fair record of the claimant’s residual
functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand
was appropriate where record was insufficient to affirm but was also insufficient for court
to find the claimant disabled).

Where the court cannot discern the basis for the

Commissioner’s decision, a remand under sentence four is usually the proper course to
allow the Commissioner to explain the basis for the decision or for additional investigation.
See Radford v. Commissioner, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power
& Light Co. v. Lorion, 470 U.S. 729, 744 (1985);see also Smith v. Heckler, 782 F.2d 1176,
1181–82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its
reasoning” because ALJ did not say he was discounting testimony or why); Gordon v.
Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor
the Appeals Council indicated the weight given to relevant evidence). On remand under
sentence four, the ALJ should review the case on a complete record, including any new
material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant

6

may produce further evidence on remand.”). After a remand under sentence four, the court
enters a final and immediately appealable judgment and then loses jurisdiction. Sargent,
941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).
In contrast, sentence six provides:
The court may . . . at any time order additional evidence to be
taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding . . . .
42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the
basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the
determination of disability at the time the application was first filed; (2) the evidence is
material to the extent that the Commissioner’s decision might reasonably have been
different had the new evidence been before him; (3) there is good cause for the claimant’s
failure to submit the evidence when the claim was before the Commissioner; and (4) the
claimant made at least a general showing of the nature of the new evidence to the
reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C.
§ 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d
26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded by
amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec’y, Dep’t of
Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991).4 With remand under sentence
4

Though the court in Wilkins indicated in a parenthetical that the four-part test set forth
in Borders had been superseded by an amendment to 42 U.S.C. § 405(g), courts in the
Fourth Circuit have continued to cite the requirements outlined in Borders when evaluating
a claim for remand based on new evidence. See, e.g., Brooks v. Astrue, No. 6:10-cv-152,
2010 WL 5478648, at *8 (D.S.C. Nov. 23, 2010); Ashton v. Astrue, No. TMD 09-1107,
2010 WL 3199345, at *3 (D. Md. Aug. 12, 2010); Washington v. Comm’r of Soc. Sec., No.
7

six, the parties must return to the court after remand to file modified findings of fact.
Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending remand and
does not enter a final judgment until after the completion of remand proceedings. See
Allen v. Chater, 67 F.3d 293 (4th Cir. 1995) (unpublished table decision) (holding that an
order remanding a claim for Social Security benefits pursuant to sentence six of 42 U.S.C.
§ 405(g) is not a final order).
APPLICABLE LAW
The Act provides that disability benefits shall be available to those persons insured
for benefits, who are not of retirement age, who properly apply, and who are under a
disability. 42 U.S.C. § 423(a). “Disability” is defined as:
the 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 consecutive months.
Id. § 423(d)(1)(A).
I.

The Five Step Evaluation
To facilitate uniform and efficient processing of disability claims, federal regulations

have reduced the statutory definition of disability to a series of five sequential questions.
See, e.g., Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency”
in considering disability claims). The ALJ must consider whether (1) the claimant is

2:08-cv-93, 2009 WL 86737, at *5 (E.D. Va. Jan. 13, 2009); Brock v. Sec’y of Health &
Human Servs., 807 F. Supp. 1248, 1250 n.3 (S.D.W. Va. 1992). Further, the Supreme
Court of the United States has not suggested Borders’ construction of § 405(g) is incorrect.
See Sullivan v. Finkelstein, 496 U.S. 617, 626 n.6 (1990). Accordingly, the Court will apply
the more stringent Borders inquiry.
8

engaged in substantial gainful activity; (2) the claimant has a severe impairment; (3) the
impairment meets or equals an impairment included in the Administration’s Official Listings
of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4) the impairment prevents
the claimant from performing past relevant work; and (5) the impairment prevents the
claimant from having substantial gainful employment. 20 C.F.R. § 416.920. Through the
fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699
F.2d 189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day
of her insured status to receive disability benefits. Everett v. Sec’y of Health, Educ. &
Welfare, 412 F.2d 842, 843 (4th Cir. 1969). If the inquiry reaches step five, the burden
shifts to the Commissioner to produce evidence that other jobs exist in the national
economy that the claimant can perform, considering the claimant’s age, education, and
work experience. Grant, 699 F.2d at 191. If at any step of the evaluation the ALJ can find
an individual is disabled or not disabled, further inquiry is unnecessary. 20 C.F.R.
§ 416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
A.

Substantial Gainful Activity

“Substantial gainful activity” must be both substantial—involves doing significant
physical or mental activities, 20 C.F.R. § 416.972(a)—and gainful—done for pay or profit,
whether or not a profit is realized, id. § 416.972(b). If an individual has earnings from
employment or self-employment above a specific level set out in the regulations, he is
generally presumed to be able to engage in substantial gainful activity. Id. § 416.974–.975.

9

B.

Severe Impairment

An impairment is “severe” if it significantly limits an individual’s ability to perform
basic work activities. See id. § 416.921. When determining whether a claimant’s physical
and mental impairments are sufficiently severe, the ALJ must consider the combined effect
of all of the claimant’s impairments. 42 U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G). The ALJ
must evaluate a disability claimant as a whole person and not in the abstract, having
several hypothetical and isolated illnesses. Walker v. Bowen, 889 F.2d 47, 49–50 (4th Cir.
1989) (stating that, when evaluating the effect of a number of impairments on a disability
claimant, “the [Commissioner] must consider the combined effect of a claimant’s
impairments and not fragmentize them”). Accordingly, the ALJ must make specific and
well-articulated findings as to the effect of a combination of impairments when determining
whether an individual is disabled. Id. at 50 (“As a corollary to this rule, the ALJ must
adequately explain his or her evaluation of the combined effects of the impairments.”). If
the ALJ finds a combination of impairments to be severe, “the combined impact of the
impairments shall be considered throughout the disability determination process.” 42
U.S.C. §§ 423(d)(2)(B), 1382c(a)(3)(G).
C.

Meets or Equals an Impairment Listed in the Listings of Impairments

If a claimant’s impairment or combination of impairments meets or medically equals
the criteria of a listing found at 20 C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration
requirement found at 20 C.F.R. § 416.909, the ALJ will find the claimant disabled without

10

considering the claimant’s age, education, and work experience.5

20 C.F.R.

§ 416.920(a)(4)(iii), (d).
D.

Past Relevant Work

The assessment of a claimant’s ability to perform past relevant work “reflect[s] the
statute’s focus on the functional capacity retained by the claimant.” Pass v. Chater, 65
F.3d 1200, 1204 (4th Cir. 1995). At this step of the evaluation, the ALJ compares the
claimant’s residual functional capacity6 with the physical and mental demands of the kind
of work he has done in the past to determine whether the claimant has the residual
functional capacity to do his past work. 20 C.F.R. § 416.960(b).
E.

Other Work

As previously stated, once the ALJ finds that a claimant cannot return to her prior
work, the burden of proof shifts to the Commissioner to establish that the claimant could
perform other work that exists in the national economy. See 20 C.F.R. § 416.920(f)–(g);
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).

To meet this burden, the

Commissioner may sometimes rely exclusively on the Medical-Vocational Guidelines (the
“grids”). Exclusive reliance on the “grids” is appropriate where the claimant suffers
primarily from an exertional impairment, without significant nonexertional factors.7 20

5

The Listing of Impairments is applicable to SSI claims pursuant to 20 C.F.R.
§§ 416.911, 416.925.
6

Residual functional capacity is “the most [a claimant] can still do despite [his]
limitations.” 20 C.F.R. § 416.945(a)(1).
7

An exertional limitation is one that affects the claimant’s ability to meet the strength
requirements of jobs. 20 C.F.R. § 416.969a(a). A nonexertional limitation is one that
11

C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e); Gory v. Schweiker, 712 F.2d 929, 930–31
(4th Cir. 1983) (stating that exclusive reliance on the grids is appropriate in cases involving
exertional limitations). When a claimant suffers from both exertional and nonexertional
limitations, the grids may serve only as guidelines. Gory, 712 F.2d at 931. In such a case,
the Commissioner must use a vocational expert to establish the claimant’s ability to
perform other work. 20 C.F.R. § 416.969a; see Walker, 889 F.2d at 49–50 (“Because we
have found that the grids cannot be relied upon to show conclusively that claimant is not
disabled, when the case is remanded it will be incumbent upon the [Commissioner] to
prove by expert vocational testimony that despite the combination of exertional and
nonexertional impairments, the claimant retains the ability to perform specific jobs which
exist in the national economy.”). The purpose of using a vocational expert is “to assist the
ALJ in determining whether there is work available in the national economy which this
particular claimant can perform.” Walker, 889 F.2d at 50. For the vocational expert’s
testimony to be relevant, “it must be based upon a consideration of all other evidence in
the record, . . . and it must be in response to proper hypothetical questions which fairly set
out all of claimant’s impairments.” Id. (citations omitted).

affects the ability to meet the demands of the job other than the strength demands. Id.
Examples of nonexertional limitations include but are not limited to difficulty functioning
because of being nervous, anxious, or depressed; difficulty maintaining attention or
concentrating; difficulty understanding or remembering detailed instructions; difficulty
seeing or hearing. 20 C.F.R. § 416.969a(c)(1).
12

II.

Developing the Record
The ALJ has a duty to fully and fairly develop the record. See Cook v. Heckler, 783

F.2d 1168, 1173 (4th Cir. 1986). The ALJ is required to inquire fully into each relevant
issue. Snyder, 307 F.2d at 520. The performance of this duty is particularly important
when a claimant appears without counsel. Marsh v. Harris, 632 F.2d 296, 299 (4th Cir.
1980). In such circumstances, “the ALJ should scrupulously and conscientiously probe
into, inquire of, and explore for all the relevant facts, . . . being especially diligent in
ensuring that favorable as well as unfavorable facts and circumstances are elicited.” Id.
(internal quotations and citations omitted).
III.

Treating Physicians
If a treating physician’s opinion on the nature and severity of a claimant’s

impairments is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence” in the record, the
ALJ must give it controlling weight. 20 C.F.R. § 416.927(c)(2); see Mastro v. Apfel, 270
F.3d 171, 178 (4th Cir. 2001). The ALJ may discount a treating physician’s opinion if it is
unsupported or inconsistent with other evidence, i.e., when the treating physician's opinion
does not warrant controlling weight, Craig, 76 F.3d at 590, but the ALJ must nevertheless
assign a weight to the medical opinion based on the 1) length of the treatment relationship
and the frequency of examination; 2) nature and extent of the treatment relationship; 3)
supportability of the opinion; 4) consistency of the opinion with the record a whole; 5)
specialization of the physician; and 6) other factors which tend to support or contradict the

13

opinion, 20 C.F.R. § 416.927(c). Similarly, where a treating physician has merely made
conclusory statements, the ALJ may afford the opinion such weight as is supported by
clinical or laboratory findings and other consistent evidence of a claimant’s impairments.
See Craig, 76 F.3d at 590 (holding there was sufficient evidence for the ALJ to reject the
treating physician’s conclusory opinion where the record contained contradictory evidence).
In any instance, a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion. See Mitchell v. Schweiker, 699 F.2d 185, 187 (4th
Cir. 1983) (stating that treating physician’s opinion must be accorded great weight because
“it reflects an expert judgment based on a continuing observation of the patient’s condition
for a prolonged period of time”); 20 C.F.R. § 416.927(c)(2). An ALJ determination coming
down on the side of a non-examining, non-treating physician’s opinion can stand only if the
medical testimony of examining and treating physicians goes both ways.

Smith v.

Schweiker, 795 F.2d 343, 346 (4th Cir. 1986). Further, the ALJ is required to review all of
the medical findings and other evidence that support a medical source’s statement that a
claimant is disabled. 20 C.F.R. § 416.927(d). However, the ALJ is responsible for making
the ultimate determination about whether a claimant meets the statutory definition of
disability. Id.
IV.

Medical Tests and Examinations
The ALJ is required to order additional medical tests and exams only when a

claimant’s medical sources do not give sufficient medical evidence about an impairment
to determine whether the claimant is disabled. 20 C.F.R. § 416.917; see also Conley v.

14

Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The regulations are clear: a consultative
examination is not required when there is sufficient medical evidence to make a
determination on a claimant’s disability. 20 C.F.R. § 416.917. Under the regulations,
however, the ALJ may determine that a consultative examination or other medical tests are
necessary. Id.
V.

Pain
Congress has determined that a claimant will not be considered disabled unless he

furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing
the existence of a medical impairment that could reasonably be expected to produce the
pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In evaluating claims of disabling
pain, the ALJ must proceed in a two-part analysis. Morgan v. Barnhart, 142 F. App’x 716,
723 (4th Cir. 2005) (unpublished opinion). First, “the ALJ must determine whether the
claimant has produced medical evidence of a ‘medically determinable impairment which
could reasonably be expected to produce . . . the actual pain, in the amount and degree,
alleged by the claimant.’” Id. (quoting Craig, 76 F.3d at 594). Second, “if, and only if, the
ALJ finds that the claimant has produced such evidence, the ALJ must then determine, as
a matter of fact, whether the claimant’s underlying impairment actually causes her alleged
pain.” Id. (emphasis in original) (citing Craig, 76 F.3d at 595).
Under the “pain rule” applicable within the United States Court of Appeals for the
Fourth Circuit, it is well established that “subjective complaints of pain and physical
discomfort could give rise to a finding of total disability, even when those complaints [a]re

15

not supported fully by objective observable signs.” Coffman v. Bowen, 829 F.2d 514, 518
(4th Cir. 1987) (citing Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir. 1985)). The ALJ
must consider all of a claimant’s statements about his symptoms, including pain, and
determine the extent to which the symptoms can reasonably be accepted as consistent
with the objective medical evidence. 20 C.F.R. § 416.928. Indeed, the Fourth Circuit has
rejected a rule which would require the claimant to demonstrate objective evidence of the
pain itself, Jenkins v. Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered the
Commissioner to promulgate and distribute to all administrative law judges within the circuit
a policy stating Fourth Circuit law on the subject of pain as a disabling condition, Hyatt v.
Sullivan, 899 F.2d 329, 336–37 (4th Cir. 1990). The Commissioner thereafter issued the
following “Policy Interpretation Ruling”:
This Ruling supersedes, only in states within the Fourth
Circuit (North Carolina, South Carolina, Maryland, Virginia and
West Virginia), Social Security Ruling (SSR) 88-13, Titles II
and XVI: Evaluation of Pain and Other Symptoms:
...
FOURTH CIRCUIT STANDARD: Once an underlying
physical or [m]ental impairment that could reasonably be
expected to cause pain is shown by medically acceptable
objective evidence, such as clinical or laboratory diagnostic
techniques, the adjudicator must evaluate the disabling effects
of a disability claimant’s pain, even though its intensity or
severity is shown only by subjective evidence. If an underlying
impairment capable of causing pain is shown, subjective
evidence of the pain, its intensity or degree can, by itself,
support a finding of disability. Objective medical evidence of
pain, its intensity or degree (i.e., manifestations of the
functional effects of pain such as deteriorating nerve or muscle
tissue, muscle spasm, or sensory or motor disruption), if
available, should be obtained and considered. Because pain
is not readily susceptible of objective proof, however, the
absence of objective medical evidence of the intensity,
16

severity, degree or functional effect of pain is not
determinative.
SSR 90-1p, 55 Fed. Reg. 31,898-02, at 31,899 (Aug. 6, 1990). SSR 90-1p has since been
superseded by SSR 96-7p, which is consistent with SSR 90-1p. See SSR 96-7p, 61 Fed.
Reg. 34,483-01 (July 2, 1996). SSR 96-7p provides, “If an individual’s statements about
pain or other symptoms are not substantiated by the objective medical evidence, the
adjudicator must consider all of the evidence in the case record, including any statements
by the individual and other persons concerning the individual’s symptoms.” Id. at 34,485;
see also 20 C.F.R. § 416.929(c)(1)–(c)(2) (outlining evaluation of pain).
VI.

Credibility
The ALJ must make a credibility determination based upon all the evidence in the

record. Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ
must articulate specific and adequate reasons for doing so, or the record must be obvious
as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985).
Although credibility determinations are generally left to the ALJ’s discretion, such
determinations should not be sustained if they are based on improper criteria. Breeden,
493 F.2d at 1010 (“We recognize that the administrative law judge has the unique
advantage of having heard the testimony firsthand, and ordinarily we may not disturb
credibility findings that are based on a witness’s demeanor. But administrative findings
based on oral testimony are not sacrosanct, and if it appears that credibility determinations
are based on improper or irrational criteria they cannot be sustained.”).

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APPLICATION AND ANALYSIS
Lay Witness Testimony
Plaintiff contends the ALJ improperly ignored the testimony of his mother in
evaluating the evidence of record related to his RFC and his credibility. [Doc. 16 at 10–11.]
Plaintiff argues that SSR 96-7p requires the ALJ to consider the entire case record,
including information provided by other persons about Plaintiff’s symptoms and how they
affect him. [Id.] The Commissioner argues the SSR 06-3p does not mandate the explicit
weighing of third-party lay testimony and that the testimony of Plaintiff’s mother was
duplicative of Plaintiff’s own testimony.

[Doc. 17 at 16.]

Thus, the Commissioner

contends, any failure of the ALJ to discuss this testimony is “harmless error.” [Id. at 17.]
Determining whether an individual is disabled by pain or other symptoms is a
two-step process. First, an ALJ must determine whether a claimant has an underlying
impairment that has been established by objective medical evidence that would reasonably
be expected to cause subjective complaints of the severity and persistence alleged. See
20 C.F.R. § 416.929(b); SSR 96–7p; Craig, 76 F.3d at 591–96 (discussing the
regulation-based two-part test for evaluating pain). The first part of the test “does not . .
. entail a determination of the intensity, persistence, or functionally limiting effect of the
claimant’s asserted pain.” Craig, 76 F.3d at 594 (internal quotation omitted). Second, and
only after claimant has satisfied the threshold inquiry, the ALJ is to evaluate “the intensity
and persistence of the claimant’s pain, and the extent to which it affects [his] ability to
work.” Id. at 595. This second step requires the ALJ to consider the record as a whole,
including both objective and subjective evidence, and SSR 96–7p cautions that a
claimant’s “statements about the intensity and persistence of pain or other symptoms or
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about the effect the symptoms have on his or her ability to work may not be disregarded
solely because they are not substantiated by objective medical evidence.” SSR 96–7p.
If an ALJ rejects a claimant’s testimony about his pain or physical condition, he must
explain the bases for such rejection to ensure that the decision is sufficiently supported by
substantial evidence. Hatcher v. Sec'y, Dep't of Health & Human Servs., 898 F.2d 21, 23
(4th Cir. 1989). “The reasons for the credibility finding must be grounded in the evidence
and articulated in the determination or decision.” SSR 96–7p. “The determination or
decision must contain specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to make clear to the
individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight.” Id.
When making a pain and credibility assessment, an ALJ “must consider the entire
case record, including . . . statements and other information provided by . . . other persons
about the symptoms and how they affect the individual.” SSR 96–7p. Other persons may
include non-medical sources such as spouses, parents, caregivers, siblings, other
relatives, friends, neighbors, and clergy. 20 C.F.R. § 416.913(d). These lay witnesses
“may provide [statements] about how the symptoms affect [a claimant’s] activities of daily
living and his ability to work . . . . ” 20 C.F.R. § 416.929(a). Where a lay witness’s
testimony merely repeats the allegations of a plaintiff’s own testimony and is likewise
contradicted by the same objective evidence discrediting the plaintiff’s testimony, specific
reasons are not necessary for dismissing the lay witness’s testimony. See Lorenzen v.
Chater, 71 F.3d 316, 319 (8th Cir. 1995); Carlson v. Shalala, 999 F.2d 180 (7th Cir. 1993);

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Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Vincent v. Heckler, 739 F.2d 1393,
1395 (9th Cir. 1984).
Here, after setting forth the applicable regulations, the ALJ considered Plaintiff’s
subjective claims under the required two-step process. See Craig, 76 F.3d at 591–96. The
ALJ found Plaintiff’s impairments could reasonably be expected to cause some of the
symptoms he alleged, but determined that Plaintiff’s testimony “concerning the intensity,
persistence and limiting effects” of his symptoms was “not credible to the extent” the
testimony was inconsistent with the ALJ’s RFC determination. [R. 17.]
Plaintiff testified that he has difficulty focusing and concentrating for any significant
period of time. Specifically, Plaintiff testified that he loses his train of thought and cannot
focus when watching television or football games. [R. 45.] Plaintiff testified he watches
half a movie but does not know what happened in the movie. [Id.] Plaintiff also testified
that he forgets to take his medicine until he is reminded by his mother [R. 46] and also
forgets to bathe for extended periods of time [R. 48]. Further, Plaintiff testified that he cuts
grass in stages—“little bit here and little bit there”—because he gets bored. [R. 53.]
Plaintiff’s mother, Carolyn Herron (“Mrs. Herron”), testified that Plaintiff is withdrawn and
scared to be around people in public. [R. 56.] She testified that, when Plaintiff comes to
her house from the building he lives in located in her backyard, he looks to see if anyone
is there; if so, he turns around and goes back to his building. [R. 57.] Mrs. Herron also
testified that Plaintiff is only able to sit and watch a movie with her for 15 to 20 minutes
before he just sits and stares at the wall or floor. [R. 61.] She testified that she will ask him
about what he just watched and he will not know. [Id.] Mrs. Herron testified that Plaintiff
cannot concentrate or focus and, when she gives him a task like raking the front yard, after
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about 15 to 20 minutes, “he just can’t.” [Id.] With respect to his grooming, Mrs. Herron
testified that Plaintiff used to be well groomed but that now she has to remind him to clean
up, shampoo his hair, and shower. [R. 62.]
In considering Plaintiff’s credibility and RFC, the ALJ mentioned neither Plaintiff’s
nor Mrs. Herron’s testimony regarding Plaintiff’s inability to focus on tasks or watch
television or a movie for more than 15 to 20 minutes. In finding Plaintiff’s mental condition
not as limiting as alleged, the ALJ noted that there was no evidence of required in-patient
hospitalization; a report of Plaintiff feeling better with regard to the depression and anxiety
in December 2011; a January 2012 report that Plaintiff was getting out more and visiting
his grandmother; a June 2012 report that Plaintiff’s mental health was stable but with a
great deal of stress; and a July 2012 consultative psychological exam where Plaintiff could
recall three out of three objects from immediate memory after delay. [R. 17.] The ALJ also
noted no evidence of psychosis and that Plaintiff’s attention was intact. [Id.] The ALJ
acknowledged that social stressors affected Plaintiff’s mental health but that he continued
to be stable and that his medications were working well. [R. 18.] The ALJ concluded that,
“[w]ith regard to the claimant’s mental health, the record noted some moderate limitations.
However, limitations to unskilled work with no direct[] interaction with the public and only
occasional team type interaction with co-workers adequately accommodated these
limitations.” [R. 20.]
In his hypothetical to the VE, the ALJ included limitations to medium work with
frequent, not constant, fingering or fine manipulation with the left non-dominant hand and
unskilled work tasks with no direct interaction with the public and occasional team type
interaction with coworkers. [R. 69–70.] Based on these limitations, the VE concluded
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there was work available in the national economy. [R. 70.] If Plaintiff was unable to
maintain contact with coworkers and/or supervisors for more than an hour or two out of the
day, the VE concluded there would be no jobs available for Plaintiff. [R. 72.]
The Court understands the ALJ is not required to mention his evaluation of Mrs.
Herron’s testimony under circumstances where her testimony “merely repeats the
allegations of a Plaintiff’s own testimony and is likewise contradicted by the same objective
evidence discrediting the plaintiff’s testimony”; however, the Court is unable to find the
ALJ’s reasoning for dismissing the testimony of record by either Plaintiff or Mrs. Herron
regarding Plaintiff’s inability to focus for long periods of time and/or to be around people
outside of his immediate family.

Although the ALJ cites treatment notes indicating

Plaintiff’s attention was intact, there is no discussion regarding whether this finding was
sufficient to support a conclusion that Plaintiff possessed the concentration, persistence,
or pace to work for eight hours a day.
The Court finds Plaintiff’s argument that the ALJ erred in considering the testimony
of Mrs. Herron persuasive in that the ALJ did not adequately explain the consideration and
dismissal of Plaintiff’s claims of limitations in his ability to persist or stay on task for eight
hours during a work day. Either the ALJ found the testimony was worthy of no weight and
failed to explain the basis for that reasoning or the ALJ failed to consider this evidence.
In sum, the ALJ’s decision fails to logically explain how Plaintiff’s RFC was determined.
Accordingly, the Court is unable to conclude that the ALJ’s decision with respect to the
RFC assessment is supported by substantial evidence. Consequently, remand for further
explanation by the ALJ is necessary.

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Remaining Allegations of Error
Because the Court found the ALJ’s failure to properly explain the consideration of
testimony by Plaintiff and Mrs. Herron related to Plaintiff’s limitations in concentration is
sufficient grounds to remand this matter for further consideration, the Court declines to
address Plaintiff’s remaining allegations of error. On remand, however, the ALJ should
take Plaintiff’s remaining allegations of error into consideration. The Court notes that
although the ALJ appeared to account for Plaintiff’s mental impairments by limiting him to
unskilled work, the Fourth Circuit Court of Appeals’ holding in Mascio v. Colvin , 780 F.3d
632, 638 (4th Cir. 2015), may require the ALJ to do more.8 On remand, the ALJ is directed
to explain the consideration of the effect of Plaintiff’s moderate limitations in concentration
on the RFC evaluation in accordance with Mascio, including presenting this limitation to the
VE in determining the availability of work in the national economy for Plaintiff in light of all
his medically supported limitations.

8

In Mascio, the claimant asserted that the ALJ presented a legally insufficient
hypothetical to the VE because it failed to include the claimant’s mental limitations. 780
F.3d at 637. The ALJ found the claimant had an adjustment disorder and also that she
had moderate difficulties with concentration, persistence, or pace as a side effect of her
pain medication. Id. at 638. However, the ALJ did not include anything about the
claimant’s mental limitations in the hypothetical to the VE. Id. at 637. The court agreed
with other circuits that have held 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,’” id. at 638 (citing Winschel v. Comm'r of Soc. Sec., 631
F.3d 1176, 1180 (11th Cir. 2011) (noting that the Eleventh Circuit joined the Third,
Seventh, and Eighth Circuits)), and remanded the case because the ALJ gave no
explanation as to why the claimant’s moderate limitation in concentration, persistence, or
pace did not translate into a limitation in her RFC, id.
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CONCLUSION
Wherefore, based upon the foregoing, it is ORDERED that the Commissioner’s
decision be REVERSED pursuant to sentence four of 42 U.S.C. § 405(g), and the case is
REMANDED to the Commissioner for further administrative action consistent with this
Order.
IT IS SO ORDERED.
s/Jacquelyn D. Austin
United States Magistrate Judge
August 5, 2016
Greenville, South Carolina

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