Little v. Astrue

Filing 17

MEMORANDUM OPINION AND ORDER - the Magistrate Judge's Report and Recommendation is ADOPTED. Plaintiffs Motion for Summary Judgment (ECF No. 8) or, in the Alternative, Motion for Remand (ECF No. 9) is GRANTED and the decision of the Administrativ e Law Judge is hereby VACATED and REMANDED for proceedings consistent with this Memorandum Opinion and Order. Further, Defendant's Motion for Summary Judgment (ECF No. 11) IS DENIED. Signed by District Judge Raymond A. Jackson on 6/6/2013; filed on 6/7/2013. (bnew)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

JUN -7 2013
CLf:HK, us. nisiHicr COURT
NOHKOLK. VA

ELAINE CAROL LITTLE,

Plaintiff,
v.

CIVIL ACTION NO. 2:12cv300

CAROLYN W. COLVIN,

Acting Commissioner of Social Security1,
Defendant.
MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant's objections to the Magistrate Judge's
Report and Recommendation. Having reviewed the relevant pleadings, this matter is now ripe
for decision.
I. FACTUAL AND PROCEDURAL HISTORY

On August 18,2008, Elaine Carol Little ("Plaintiff or "Claimant") filed an application
for disability insurance benefits ("DIB") with the Social Security Administration ("SSA"). In
her application, Plaintiff alleged that she has been disabled since July 29, 2008. The Plaintiff

alleges that her disability is a result of a Transient Ischemic Attack ("TIA") and subsequent,
related health issues. On October 16, 2008, the Commissioner of Social Security denied the
Plaintiffs application for benefits. After reconsideration of its decision, the Commissioner
reaffirmed the denial of benefits on June 19, 2009. Consequently, Plaintiff sought and received a

hearing before a Social Security Administrative Law Judge ("ALJ") on May 11,2010. On June

1The Acting Commissioner of the Social Security Administration ("Commissioner") has changed from Michael
Astrue to Carolyn Colvin.

16, 2010, the ALJ issued a decision denying Plaintiffs DIB claims and on March 30,2012, the
Social Security Administration's Appeals Council, the final review within the agency on
Plaintiffs claims, rejected the her appeal.

Having exhausted all administrative remedies within the Social Security Administration,
Plaintiff filed a complaint with the Court seeking review of the Administrative Law Judge's

opinion. On August 10, 2012, the Court entered an order pursuant to 28 U.S.C. § 636(b)(1)(B)
directing United States Magistrate Judge Tommy E. Miller to conduct hearings, including
evidentiary hearings, and to submit to the Court a report containing proposed findings of facts
and recommendations. On October 18,2012, Judge Miller ordered the parties to file Motions for

Summary Judgment and engage in required briefing. On March 12, 12013, Judge Miller filed his
Report and Recommendation ("R&R") with the Court. In accordance with 28 U.S.C. §

636(b)(1), the parties were given fourteen (14) days from the mailing date of the R&R to object
to its contents with the Court. On March 26, the Defendant filed an objection to the R&R, to
which the Plaintiff failed to respond. On April 10, 2013, this matter was referred to chambers for

judicial decision.
II. LEGAL STANDARD

When considering a party's objections to the findings and recommendations of the

Magistrate Judge, a district judge "must determine de novo any part of the Magistrate Judge's
disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also Wimmer v.
Cook, Ti'4 F.2d 68, 73 (4th Cir. 1985) ("[A]ny individual findings of fact or recommendations
for disposition by [the Magistrate Judge], if objected to, are subject to final de novo

determination... by a district judge...."). Under de novo review, the Magistrate Judge's R&R
carries no presumptive weight, and the district court may accept, reject or modify the report, in

whole or in part, and may recommit the matter to the Magistrate Judge with instructions.

Halloway v. Bashara, 176 F.R.D. 207, 209-10 (E.D. Va. 1997); Fed. R. Civ. P. 72(b)(3) ("The
district judge may accept, reject, or modify the recommended decision, receive further evidence,
or recommit the matter to the Magistrate Judge with instructions."). When conducting this de
novo determination, a district court judge must give "fresh consideration" to the relevant portions

of the Magistrate Judge's R&R. UnitedStales v. Raddatz, 447 U.S. 667, 675 (1980).
A court reviewing a decision made under the Social Security Act must determine whether
the factual findings are supported by substantial evidence and were reached through application
of the correct legal standard. Craig v. Chafer, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial
evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than

a preponderance." Id. (citations omitted). In reviewing for substantial evidence, the Court does
not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for

that of the Commissioner. Id. The Commissioner's findings as to any fact, if supported by
substantial evidence, are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389,
390(1971).
III. DISCUSSION

The Commissioner objects to Judge Miller's conclusion that the Administrative Law

Judge failed to adequately support his credibility determination regarding Plaintiffs statement on
her symptoms, given his use of "boilerplate" language, use of which has been disfavored in a
number of courts. Under existing SSA regulations, the Commissioner (or the ALJ) must make a

series of sequential, fact determinations to establish whether a claimant is eligible for disability
benefits. See 20 C.F.R. § 404.1520. As the regulations require, the ALJ must carefully consider

(1) whether the disability claimant is engaged in substantial gainful activity; (2) has a severe
impairment; (3) has an impairment that equals a condition contained within the Social Security
Administration's official listing of impairments; (4) has an impairment that prevents her from

past relevant work; and (5) has an impairment that prevents her from any substantial gainful
employment. If a claimant is engaged in substantial gainful activity, the analysis stops and
benefits will be denied. If a claimant has no severe impairment or if a claimant does have a

severe impairment but said impairment does not prevent her from undertaking past relevant

work, the analysis stops and benefits will be denied. However, if a claimant has an impairment
that equals a condition contained within the Social Security Administration's official listing of
impairments and that impairment prevents her from any substantial gainful employment, benefits
will be granted.

In seeking review of the ALJ's opinion, the Plaintiff argues that the ALJ made three
errors. First, the Plaintiff asserts that the ALJ erred by failing to follow the treating physician

rule and by not properly considering the Plaintiffs anxiety. Second, that the ALJ failed to

properly evaluated her credibility. Third, that the ALJ erred in finding that the Plaintiff could
perform her past work as a data entry operator. Judge Miller determined that only the second

alleged error warranted addressing and thus did not address the other two assignments of error.
The operative assignment of error is based on the ALJ's determination that the Plaintiffs
subjective statements, relevant to the required residual function capacity determination, lack
credibility. Residual function capacity determination, as Judge Posner notes is "the bureaucratic
term for ability to work." Bjornson v. Aslrue, 671 F.3d 640, 645 (7th Cir. 2012). As part of

making the Residual Function Capacity determination, an ALJ must consider both objective
medical facts on the record as well as credible complaints made by the claimants. Under United

States Court of Appeals for the Fourth Circuit ("Fourth Circuit") precedent, ALJs must undertake
this analysis in two steps. See Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996). Step One
involves the ALJ reviewing the available evidence to determine whether the relevant underlying
medical impairment could reasonably cause the claimant's symptoms. Id. Step Two requires that if
the ALJ finds the underlying medical impairment could reasonably cause the claimant's symptoms,
he must then evaluate the claimant's statements regarding the symptoms. Id. As the Social Security
Administration's policy dictates with respect to this second step:

[OJnce an underlying physical or mental impairment(s) that could reasonably be
expected to produce the individual's pain or other symptoms has been shown, the
adjudicator must evaluate the intensity, persistence, and limiting effects of the
individual's symptoms to determine the extent to which the symptoms limit the
individual's ability to do basic work activities. For this purpose, whenever the
individual's statements about the intensity, persistence, or functionally limiting
effects of pain or other symptoms are not substantiated by objective medical
evidence, the adjudicator must make a finding on the credibility of the individual's
statements based on a consideration of the entire case record. This includes the
medical signs and laboratory findings, the individual's own statements about the
symptoms, any statements and other information provided by treating or
examining physicians or psychologists and other persons about the symptoms and
how they affect the individual, and any other relevant evidence in the case record.
This requirement for a finding on the credibility of the individual's statements
about symptoms and their effects is reflected in 20 CFR 404.1529(c)(4) and
416.929(c)(4). These provisions of the regulations provide that an individual's
symptoms, including pain, will be determined to diminish the individual's
capacity for basic work activities to the extent that the individual's alleged
functional limitations and restrictions due to symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence in
the case record.

SSR 96-7p: Policy Interpretation Ruling Titles II and XVI: Evaluation ofSymptoms in Disability
Claims: Assessing the Credibility ofan Individual's Statements), 1996 SSR LEXIS 4, July 2, 1996

(emphasis added).2
2See also, 20 CFR 404.1529(c)(4) ("How wedetermine the extent to which symptoms, such as pain, affect your
capacity to perform basic work activities. In determining the extent to which your symptoms, such as pain, affect
your capacity to perform basic work activities, we consider all of the available evidence described in paragraphs
(c)( 1) through (c)(3) of this section. We will consider your statements about the intensity, persistence, and limiting
effects of your symptoms, and we will evaluate your statements in relation to the objective medical evidence and

Plaintiff claims that the ALJ failed to comply with the Administration's Policy as well as
the law in this Circuit when he, as evidenced by the use of "boilerplate" decision template

language3, judged the Plaintiffs statements against this own Residual Function Capacity
determination, rather than the full record. This is not the first time the Social Security
Administration and its ALJs have found themselves at odds over the use of this boilerplate

language. Judge Posner of the United States Court of Appeals for the Seventh Circuit ("Seventh
Circuit") addressed the issue extensively last year:

Reading the administrative law judge's opinion, we first stubbed our toe on a
piece of opaque boilerplate near the beginning, where, after reciting Bjornson's
description of her medical condition, the opinion states: "After careful
consideration of the evidence, the undersigned [administrative law judge] finds
that the claimant's medically determinable impairments would reasonably be
expected to cause the alleged symptoms; however, the claimant's statements
concerning the intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the above residual functional
capacity assessment." The government's brief describes this passage as a
"template," by which it means a passage drafted by the Social Security
Administration for insertion into any administrative law judge's opinion to which
it pertains. This "template" is a variant of one that this court (and not only this
court) had criticized previously—that "after considering the evidence of record,
the undersigned finds that claimant's medically determinable impairments would
reasonably be expected to produce the alleged symptoms, but that the claimant's
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible." In Parker v. Astrue, 597 F.3d 920, 922 (7th
Cir. 2010), we called this "meaningless boilerplate. The statement by a trier of
fact that a witness's testimony is 'not entirely credible' yields no clue to what
weight the trier of fact gave the testimony" (emphasis in original); see also Punzio
other evidence, in reaching a conclusion as to whether you are disabled. We will consider whether there are any
inconsistencies in the evidence and the extent to which there are any conflicts between your statements and the rest
of the evidence, including your history, the signs and laboratory findings, and statements by your treating or
nontreating source or other persons about how your symptoms affect you. Your symptoms, including pain, will be
determined to diminish your capacity for basic work activities to the extent that your alleged functional limitations
and restrictions due to symptoms, such as pain, can reasonably be accepted as consistent with the objective medical
evidence and other evidence.").

3The boilerplate language at issue is as follows: "After considering the evidence of record, the undersigned finds
that the claimant's medically determinable impairments could reasonably be expected to produce the alleged

symptoms and that the claimant's statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above residual functional capacity
assessment."

v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011); Martinez v. Astrue, 630 F.3d 693,
696-97 (7th Cir. 2011); Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010). "Such
boilerplate language fails to inform us in a meaningful, reviewable way of the
specific evidence the ALJ considered in determining that claimant's complaints
were not credible. More troubling, it appears that the Commissioner has
repeatedly been using this same boilerplate paragraph to reject the testimony of
numerous claimants, without linking the conclusory statements contained therein
to evidence in the record or even tailoring the paragraph to the facts at hand,
almost without regard to whether the boilerplate paragraph has any relevance to
the case." Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004) (citation
omitted).

Bjornson v. Astrue, 671 F.3d 640, 644-645 (7th Cir. 2012). As Judge Posner further notes:
One problem with the boilerplate is that the assessment of the claimant's "residual
functional capacity" (the bureaucratic term for ability to work) comes later in the
administrative law judge's opinion, not "above"—above is just the foreshadowed
conclusion of that later assessment. A deeper problem is that the assessment of a
claimant's ability to work will often (and in the present case) depend heavily on
the credibility of her statements concerning the "intensity, persistence and limiting
effects" of her symptoms, but the passage implies that ability to work is
determined first and is then used to determine the claimant's credibility. That gets
things backwards. The administrative law judge based his conclusion that
Bjornson can do sedentary work on his determination that she was exaggerating
the severity of her headaches. Doubts about credibility were thus critical to his
assessment of ability to work, yet the boilerplate implies that the determination of
credibility is deferred until ability to work is assessed without regard to
credibility, even though it often can't be. In this regard we note the tension
between the "template" and SSR 96-7p(4), 1996 SSR LEXIS 4,
www.ssa.gov/OP_Home/ rulings/di/01/SSR96-07-di-01.html (visited Jan. 4,
2012), which states that "an individual's statements about the intensity and
persistence of pain or other symptoms or 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." The applicant's credibility thus
cannot be ignored in determining her ability to work (her residual functional
capacity, in SSA-speak).
Id. at 645-646. Although not binding law on this Circuit, the Court finds the Seventh Circuit's
views on this issue highly persuasive. Although the ALJ's full opinion may reflect support for
his view of credibility of the Plaintiffs statements, the use of the boilerplate language calls into
significant question whether the proper decisional process was undertaken by the ALJ in both

reaching his Residual Function Capacity determination and evaluating the Plaintiffs credibility.

In light of these questions, the Court believes it is prudent to remand this case to the ALJ to
clarify this matter. This determination is consistent with other courts in this Circuit. For

example, United States Magistrate Judge James G. Welsh of the Western District of Virginia,
when dealing with substantively similar boilerplate language as in this case, found:
On appeal the plaintiffs first assignment of administrative error is based on the
ALJ's use of circular reasoning in making his assessment of the plaintiffs
testimonial credibility. (Dkt, #12, p. 5). As he argues in his brief, the ALJ's
written decision finding that his testimony was less than fully credible was based
entirely on the ALJ's own conclusion that he retained the ability to work on a
regular and sustained basis. In other words, the ALJ assumed that which he
wished to prove — the logical fallacy of petition principii. By resorting to this
form of circular reasoning, the ALJ credibility finding is simply an assertion by
him that his functional capacity assessment is a true statement and any contrary
statement is, therefore, untrue. Manifestly, an ALJ's credibility statement cannot
be used to prove itself. Its premise lacks a source of reason for its truth different
from that of the conclusion. Thus premised on a logical fallacy, the conclusion is
not based on substantial evidence.

Duffv. Astrue, No. 5:1 lcv00103, ECF No. 18, at *9 (W.D.Va. Nov. 30, 2012).

It is precisely this fallacy which concerns the Court in this case. Further, an ALJ's "bare
conclusion" that a claimant's "statements lack credibility because they are inconsistent with 'the

above residual functional capacity assessment' does not discharge the duty to explain" their
decision under SSA Policy and Fourth Circuit precedent. See Kotofski v. Astrue, No. SKG-09981,2010 WL 3655541, at *9 (D.Md. Sept. 14, 2010). While this Court is aware of other courts
that have found that, despite the use of boilerplate language, enough evidence was referenced by
the ALJ in his decision to support it, the Court cannot find that the ALJ adequately made a
proper Residual Function Capacity determination or evaluated the credibility of the Plaintiffs

statements.4 In fact, it appears that the ALJ undertook his RFC determination before he properly

4CfRacey v. Astrue, No. 5:12cv00036, 2013 WL 589223, at *6(W.D.Va.) (W.D.Va., Feb. 13, 2013) ("The
undersigned agrees with plaintiff and Judges Welsh and Posner that the boilerplate template used by the Social
Security Administration reveals little about how the Law Judge considered and evaluated plaintiffs testimony.
However, it is clear that in the pages that follow the boilerplate language in this case, the Law Judge considered the
8

weighed Plaintiffs credibility. Therefore, the Court finds that the ALJ's factual findings, as
currently constituted, are not supported by substantial evidence. It should be quite clear to the
Social Security Administration at this point that rather than saving time or effort, the boilerplate
language at issue creates more questions and problems than it solves.
IV. CONCLUSION

For the reasons above, the Magistrate Judge's Report and Recommendation is
ADOPTED. Plaintiffs Motion for Summary Judgment (ECF No. 8) or, in the Alternative,
Motion for Remand (ECF No. 9) is GRANTED and the decision of the Administrative Law

Judge is hereby VACATED and REMANDED for proceedings consistent with this
Memorandum Opinion and Order. Further, Defendant's Motion for Summary Judgment (ECF
No. 11) IS DENIED. The Clerk is DIRECTED to send a copy of this Memorandum Opinion
and Order to the parties.
IT IS SO ORDERED.

Norfolk, Virginia

June £ ,2013

Raymond A. Jackson

United States District Judge

evidence of record and provided sufficient support for both his RFC finding and his determination of plaintiffs
credibility regarding the limiting effects of her condition").