Watson v. Colvin
Filing
16
OPINION AND ORDER: granting in part 8 Motion for Summary Judgment; denying 10 Motion for Summary Judgment; adopting in part Report and Recommendations re 13 Report and Recommendations. The Court DECLINES to adopt the portions of the Magistr ate Judge's Report and Recommendation ("R&R"), Doc. 13, to which Plaintiff objects. The Court GRANTS Plaintiffs Motion for Summary Judgment, Doc. 8, to the extent it seeks reversal of the Commissioner's decision and DENIES it to t he extent it seeks an award of disability benefits. The Court DENIES Defendant's Motion for Summary Judgment, Doc. 10. The Court thus VACATES and REMANDS the Commissioner's decision for further administrative proceedings consistent with this opinion. Signed by District Judge Henry C. Morgan, Jr. on 7/29/2016. (bgra)
FILE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CLERK, US
.
•
ZOE SAMANTHA WATSON,
Plaintiff,
v.
Civil Action No.: 2:15cv407
CAROLYN W. COLVIN
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Plaintiff Zoe Samantha Watson's ("Plaintiff')
Objections to the Report and Recommendation of the Magistrate Judge. Doc. 14.
For the
reasons explained below, the Court DECLINES to adopt the portions of the Magistrate Judge's
Report and Recommendation ("R&R"), Doc. 13, to which Plaintiff objects. The Court thus
DENIES Defendant Acting Commissioner's ("Defendant") Motion for Summary Judgment,
Doc. 10. The Court GRANTS Plaintiffs Motion for Summary Judgment, Doc. 8, to the extent it
seeks reversal and remand of the Commissioner's decision and DENIES it to the extent it seeks
entry of an order directing the award of benefits.
Therefore, the Court VACATES and
REMANDS the Commissioner's decision for further administrative proceedings.
I.
BACKGROUND
Plaintiff does not object to the recitation of the procedural and factual background of this
case contained in the R&R, which sets forth, inter alia, the following facts.
Plaintiff filed an
application for disability insurance benefits ("DIB") with the Social Security Administration
("SSA") on February 26, 2014, alleging a disability onset date of September 1, 2013. R&R at 1.
The application alleged that Plaintiff suffered from spinal pain, migraines, fibromyalgia, severe
1
depressive disorder, generalized anxiety disorder, and post-traumatic stress disorder.
Id
Plaintiffs application was denied initially, as well as upon reconsideration.1 Id. Plaintiff
requested an administrative hearing, which was conducted on September 30, 2014. Id. at 2; see
also R. 53-74. Following the hearing, the Administrative Law Judge ("ALJ") concluded that
Plaintiff was not disabled within the meaning of the Social Security Act and denied Plaintiffs
claim for disability benefits. R. 33-47. Plaintiff sought to appeal the ALJ's decision, but the
Appeals Council denied her request for review on July 17, 2015, making the ALJ's decision the
Commissioners final decision. R&R at 2; see also R. 1-3.
On September 15, 2015, Plaintiff filed a Complaint against the Acting Commissioner of
Social Security ("Defendant"), seeking judicial review of the Acting Commissioner's decision.
See Doc. 1. Defendant filed an Answer on November 30, 2015.
Doc. 4.
After this Court
referred this matter to a Magistrate Judge on December 4, 2015, Doc. 6, both parties filed
motions for summary judgment, Docs. 8, 10. On May 18, 2016, the Magistrate Judge issued the
R&R, which concludes that substantial evidence supports the ALJ's decision. Doc. 13 at 9-20.
Accordingly, the Magistrate Judge recommends that summary judgment be issued in favor of the
Acting Commissioner. Id. at 20.
Plaintiff filed her objections to the R&R on May 30, 2016. Doc. 14. Defendant filed a
response on June 9, 2016, Doc. 15, and this matter is now ripe for the Court's consideration.
II.
STANDARD OF REVIEW
Pursuant to the Federal Rules of Civil Procedure, the Court reviews de novo any part of a
Magistrate Judge's recommendation to which a party has properly objected. Fed. R. Civ. P.
72(b)(3). The Court may then "accept, reject, or modify the recommended disposition; receive
1Plaintiffs initial application was denied on May 5, 2014. Certified Administrative Record ("R") 86. On June 12,
2014, upon reconsideration, the Social Security Administration found that the denial of Plaintiffs claim was proper.
R. 99-100.
further evidence; or return the matter to the magistrate judge with instructions." Id The Court
reviews those parts of a Magistrate Judge's recommendation to which a party has not objected
for clear error. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Diamond v. Colonial Life
& Ace. Ins. Co., 416 F.3d 310, 315-16 (4th Cir. 2005).
In exercising de novo review of the parts of a Magistrate Judge's recommendation to
which a party has properly objected, the Court analyzes the Commissioner's final decision using
the same standard as that used by the Magistrate Judge. Specifically, the Court's review of the
Commissioner's decision is limited to determining whether that decision was supported by
substantial evidence on the record and whether the proper legal standard was applied in
evaluating the evidence. 42 U.S.C. § 405(g); Johnson v. Barnhart. 434 F.3d 650, 653 (4th Cir.
2005) (per curiam). Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept to support a conclusion." Id (quoting Craig v. Chaten 76 F.3d 585, 589 (4th
Cir. 1996)) (internal quotation mark omitted). Courts have further explained that substantial
evidence is less than a preponderance of evidence, but more than a mere scintilla of evidence.
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Importantly, in reviewing the ALJ's
decision the Court does not "reweigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the [ALJ]." Id. (quoting Craig, 76 F.3d at 589) (internal
quotation mark omitted) (final alteration in original). Thus, if the Court finds that there was
substantial evidence to support the ALJ's factual findings, even if there was also evidence to
support contrary findings, the ALJ's factual findings must be upheld.
III.
ANALYSIS
Plaintiff disagrees with the ALJ's conclusion that she is not eligible for Social Security
Disability Benefits. See Doc. 14 at 2. In her motion for summary judgment, Plaintiff asserts that
the ALJ erred (1) in failing "to account for all of the effects of [Plaintiffs] mental impairments
affecting her concentration, persistence and pace" in his Residual Functional Capacity ("RFC")
determination; and (2) in improperly relying upon "vocational testimony in reaching his decision
that failed to fairly account for all of [Plaintiffs] limitations resulting from her impairments."
Doc. 9 at 3.
In the R&R, the Magistrate Judge rejects Plaintiffs arguments and recommends that the
Acting Commissioner's final decision be affirmed, first, because the ALJ properly accounted for
Plaintiffs mental impairments when making his RFC determination. Doc. 13 at 13. Second, the
Magistrate Judge finds that the Vocational Examiner's ("VE") testimony in response to the
ALJ's hypotheticals properly accounted for Plaintiffs mental impairments. Id. at 18.
In her objections to the R&R, Plaintiff requests that the R&R be rejected and that
summary judgment be entered in Plaintiffs favor, because the ALJ failed to reconcile two
contradictory findings and because such an error resulted in an improper RFC finding, which the
ALJ then improperly used as the basis for hypothetical questions to the VE. Doc. 14 at 2, 7.
Plaintiff argues that the ALJ thus acted in contradiction of Mascio v. Colvin, 780 F.3d 632, 637
(4th Cir. 2015). Id Plaintiffs objections appear identical to the arguments Plaintiff raised
before the Magistrate Judge. See id; see also Doc. 13 at 13.
A. The ALJ Failed to Explain Why Plaintiffs Moderate Limitation in Concentration,
Persistence, or Pace Does Not Affect Plaintiffs Ability to Stay on Task.
In Mascio, the Fourth Circuit held that the ALJ erred "by ignoring (without explanation)
[the plaintiffs] moderate limitation in her ability to maintain her concentration, persistence, or
pace . . ." 780 F.3d at 633. The Fourth Circuit specified 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)). The Fourth Circuit stressed that "the ability to
perform simple tasks differs from the ability to stay on task." Id Indeed, the ability to stay on
task, rather than the ability to perform simple tasks, accounts "for a claimant's limitation in
concentration, persistence, or pace." Id Although the Fourth Circuit noted that an ALJ could
perhaps explain why a "moderate limitation in concentration, persistence, or pace at step three
does not translate into a limitation in" the RFC, absent such an explanation, remand is warranted.
Id.
District courts in this circuit thus have held that an ALJ satisfies Mascio by providing
detailed discussion of a plaintiffs capacity for concentration, persistence, or pace. See, e.g.,
Sizemore v. Colvin, No. 5:15cv53, 2016 WL 483140, at *3 (W.D.N.C. February 5, 2016); see
also Mitchell v. Colvin, No. 7:14cv00041, 2015 WL 5690899, at *5-7 (W.D. Va. Sept. 28,
2015); see also St. Clair v. Colvin, No. 7:13cv00571, 2015 WL 5310777, at *5-7 (W.D. Va.
Sept. 11, 2015). An ALJ also can comply with Mascio by limiting a plaintiff to a non-production
oriented work setting, for such a limitation adequately accounts for an individual's ability to stay
on task. R&, Baker v. Colvin, No. 3:15-cv-00637, 2016 WL 3581859, at *3 (E.D. Va. June 7,
2016) (collecting cases), adopted by 2016 WL 3582071 (E.D. Va. June 28, 2016). In Eastwood
v. Colvin, for example, this Court found that an "ALJ accounted for [a plaintiffs] persistence
through the 'few workplace changes' limitation, accounted for [the plaintiffs] concentration
through the 'little independent decision-making' limitation and accounted for [the plaintiffs]
pace through the 'assembly-line pace' limitation." No. 3:15cvl56, 2016 WL 805709, at *4 (E.D.
Va. Feb. 12, 2016), adopted by 2016 WL 881123 (E.D. Va. March 1, 2016).
However, many district courts in the Fourth Circuit have held that an ALJ fails to comply
with Mascio if he or she conflates a plaintiffs ability to perform simple tasks with a plaintiffs
ability to stay on task. See, e.g., Baez v. Colvin. No. 2:14-cv-00628, 2015 WL 9652888, at *19
(E.D. Va. December 7, 2015) (collecting cases), adopted by 2016 WL 69900 (E.D. Va. January
5, 2016); see also Wedwick v. Colvin. No. 2:14cv267, 2015 WL 4744389, at *23-24 (E.D. Va.
Aug. 7, 2015) (noting that "a limitation in concentration, persistence and pace correlates to a
limitation in ability to stay on task" and finding that the ALJ's failure to address the plaintiffs
ability to stay on task for an entire day, despite a finding that the plaintiff was capable of simple
tasks, requires remand). For example, in Baez, this Court found that an ALJ who ruled that a
plaintiff could "sustain simple work tasks" based on his finding that the plaintiff could "perform
limited duty and go to church still does not explain how [the plaintiffs] moderate limitations in
concentration, persistence, and pace affect his ability to stay on task for an entire work day."
2015 WL 9652888, at *19, adopted by 2016 WL 69900. Similarly, in Taylor v. Colvin. the
Western District of Virginia faulted the ALJ for failing to discuss a plaintiffs ability to stay on
task. No. 7:14cv00616, 2015 WL 7308680, at +1 (W.D. Va. Nov. 19, 2015). The court noted
that "in a case in which plaintiff has alleged disability on the basis of depression, and in which
much of the medical evidence documents treatment of what was diagnosed as major depressive
disorder by the consultative psychologist, the plaintiffs [sic] residual functional capacity, as
found by the Law Judge, makes reference only to limitations to unskilled work not involving
more than occasional interactions with the public." Id Since the ALJ failed to explain why she
believed that the plaintiffs moderate difficulties in concentration, persistence, or pace did not
affect the plaintiffs ability to stay on task, the Western District of Virginia remanded the case
for further proceedings. Id at *2. Likewise, the District of Maryland examined an RFC that
limited the plaintiff "to simple, routine, repetitive tasks involving short, simple instructions in an
environment with few workplace changes, no public contact, and only brief, infrequent contact
with supervisors and coworkers not requiring teamwork or collaboration." Handv v. Comm'r of
Soc. Sec. No. SAG-09-1566, 2015 WL 9302972, at *2 (D. Md. Dec. 22, 2015). The ALJ in
Handv also assessed a moderate limitation in concentration, persistence, or pace.
Id
The
District of Maryland noted that the case "is partially distinguishable from Mascio," because at
step three of the evaluation process, the ALJ, in noting that the plaintiff suffered moderate
limitations in concentration, persistence, or pace, also wrote that the plaintiff "is able to read and
drive a car, both of which require concentration." Id at *3. The court noted that the additional
"analysis suggests that the ALJ felt that [the plaintiffs] ability to concentrate would not present a
serious impediment to his ability to work." Id However, although the RFC "impose[d] several
restrictions corresponding with the finding of moderate difficulties in social functioning[] and
restrictions which appear designed to address cognitive challenges," the court remanded the case
because "there [was] no corresponding restriction for the finding of moderate difficulties in
concentration, persistence, or pace." Id
Here, the ALJ found at step three that Plaintiffs impairments "significantly limit [her]
ability to perform basic work activities by restricting her capacity to . . . interact appropriately
with others in the workplace on a frequent basis and sustain concentration for the completion of
complex or detailed tasks." R. 35-36. The ALJ additionally found that Plaintiff has moderate
difficulties in social functioning and that "[w]ith regard to concentration, persistence or pace, the
claimant has moderate difficulties." R. 37-38. The ALJ noted that despite these difficulties,
Plaintiffs "ability to manage the complicated medical equipment need[ed] for her daughter's
care and her ability to drive[] show that Ms. Watson retains the ability to understand, remember
and carry out at least simple instructions and tasks." R. 38.
The ALJ's RFC limits Plaintiff to performing light work and specifically notes that
Plaintiff "has the ability to perform simple, repetitive tasks with training duration up to a month.
She can perform work activities requiring only occasional interaction with the public, co-workers
and supervisors."2 R. 39. In support of his RFC, the ALJ articulated that the "medical evidence,
including test results, findings from physical examinations, findings from psychological
evaluations and progress notes from mental health care confirm that the claimant has physical
and mental impairments that result in significant functional limitations." R. 40. However, the
ALJ ultimately found that "the evidence does not establish 'disabling' limitations." Id
In discussing Plaintiffs mental impairments, the ALJ asserted that "the claimant's mental
impairments [do] not support more than moderate functional limitations." R. 42. He assigned
only partial weight to Dr. Fenigsohn's opinion, which found that "performing activities on a
consistent basis, interacting with co-workers and the public and dealing with the usual stressors
in competitive work would be 'highly problematic'" for Plaintiff, because this conclusion "is not
consistent with the assigned GAF of 60 or with the findings of Dr. Fenigsohn throughout the
evaluation" and because "Dr. Fenigsohn based his conclusion at least partially on the claimant's
reported physical problems without benefit of the medical records." R. 42, 44. The ALJ further
noted that the "specific limitations posed by the medical impairments are beyond [Dr.
Fenigsohn's] expertise as a licensed professional counselor/Ed.D." R. 42. Yet, the ALJ stressed
that the "medical records ... related to the claimant's mental impairments show that Ms. Watson
is generally depressed and has some symptoms of anxiety and PTSD." R. 43. The ALJ noted
that "[ajlthough the psychiatrist reported some 'marked' limitations,3 the treatment records
document GAFs consistent with moderate symptoms ..." Id The ALJ gave "significant and
greater weight to the opinions of the DDS medical consultants at the reconsideration level of
denial, which included 'moderate' limitations in social functioning and concentration and the
2 During the ALJ's discussion of Plaintiffs RFC, the ALJ refers to Ms. Watson as "Ms. Rodriguez" three times.
See R. 39^t0.
3As noted by the ALJ, a "marked limitation means more than moderate but less than extreme." R. 37.
ability to perform work activities in the 'light' exertional range." R. 44. Finally, the ALJ
concluded that the "evidence of moderate mental symptoms supports the restrictions in
interacting with others in the workplace and carrying out more than simple tasks that are
incorporated in the residual functional capacity." R. 45. The ALJ's analysis thus explains why
he characterized Plaintiffs limitation in concentration, persistence, or pace as no more than
moderate. It also explains why he believed Plaintiff could perform simple tasks.
Although the ALJ explained why Plaintiff could perform simple tasks, he did not
articulate whether she could perform such tasks for an entire workday, in direct contradiction of
Mascio, 780 F.3d at 638.4 Therefore, like the ALJ's assessments in Baez, 2015 WL 9652888, at
*19, and Handv, 2015 WL 9302972, at *2-3, and unlike the ALJ's RFC in Eastwood, 2016 WL
805709, at *4, the ALJ in this case failed to account for Plaintiffs limitation in concentration,
persistence, or pace, and the ALJ did not adequately explain his reasons for omitting such a
limitation from the RFC. Just as citing the plaintiffs ability to perform limited duty, go to
church, drive, and occasionally shop did not explain how the plaintiffs moderate limitation in
concentration, persistence, or pace affected the plaintiffs ability to stay on task for an entire
workday in Baez, 2015 WL 9652888, at *19, Plaintiffs abilities to drive and to manage her
daughter's medical equipment do not address her potential to remain on task throughout the day.
Rather, these activities support the ALJ's conclusion that Plaintiff can perform "simple,
repetitive tasks." R. 39.
Defendant first maintains that "the ALJ fully accounted for Plaintiffs difficulties in
concentration, persistence, or pace in his residual functional capacity determination" by
including "limitations to unskilled work with only simple, repetitive tasks, and training duration
It should be noted that the Fourth Circuit decided Mascio, 780 F.3d 632, after the ALJ issued his decision in this
case.
of up to one month, to account for Plaintiffs complaints of difficulty with concentration." Doc.
11 at 16. However, the ALJ failed to explain his reason for limiting Plaintiff to work that
requires training of up to one month. The fact that the ALJ concludes his RFC analysis by
reiterating the restrictions to simple tasks, however, shows that the limitation to work requiring
no more than one month of training likely refers to simple work. Yet, a restriction to simple,
repetitive tasks does not account for a moderate limitation in concentration, persistence, or pace.
E.g., Mascio, 780 F.3d at 638.
Defendant additionally asserts that the "ALJ did not find, however, and the record does
not show, that Plaintiff had difficulties with the persistence or pace elements of the paragraph B
criteria addressing concentration, persistence, or pace." Doc. 11 at 17 (emphasis in original).
Defendant then cites to Dr. McClain, who "concluded that Plaintiff remained capable of
concentrating and persisting at work duties to completion" Doc. 11 at 17 (citing R. 98)
(emphasis in original). However, the ALJ's analysis is devoid of any specific mention of Dr.
McClain, and Dr. McClain's report actually states that Plaintiffs "ability to complete a normal
workday and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods" is
"moderately limited." R. 97. The report further notes that Plaintiffs mental conditions "may
interfere with her ability to concentrate and attend regularly; however, she would be capable of
performing simple and skilled tasks." Id Although the ALJ's analysis in this case defending his
RFC determination is much more detailed than that at issue in Mascio, 780 F.3d at 636-37, the
fact that the ALJ ignored without explanation whether Plaintiffs mental impairments affect her
ability to stay on task is fatal given the ALJ's finding that Plaintiff suffers from a moderate
limitation in concentration, persistence, or pace.
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The R&R notes that "the ALJ assessed Watson's statements, as well as the observations
of her treating medical professionals, and determined the appropriate weight to be afforded to the
opinions based on the support they received from Watson's medical records." Doc. 13 at 16.
This Court agrees that the ALJ performed a detailed analysis, but this analysis supports the
ALJ's decision that Plaintiff suffers from moderate limitations in concentration, persistence, or
pace as opposed to marked limitations. The Court disagrees with the R&R which states that
"unlike the plaintiff in Mascio, Watson's RFC included specific restrictions to accommodate her
mental impairments and limitations in concentration by limiting her work to 'activities requiring
only occasional interaction with the public, co-workers, and supervisors' and no more than one
month of training." Doc. 13 at 17 (citing R. 39). Indeed, limiting interactions with the public,
co-workers, and supervisors concerns Plaintiffs moderate limitation in social functioning, not
her moderate limitation in concentration, persistence, or pace. And, as discussed above, the ALJ
provides no explanation of why limiting Plaintiff to jobs requiring less than one month of
training accommodates her moderate limitation in concentration, persistence, or pace; instead,
this limitation appears akin to restricting Plaintiff to simple and repetitive tasks. Thus, contrary
to the Magistrate Judge's opinion, this Court is unable to conclude that substantial evidence
supports the ALJ's RFC determination.
B. The ALJ Erred by Relying on the VE's Testimony in Response to a Hypothetical That
Failed to Account for Plaintiffs Limitation in Concentration, Persistence, or Pace.
At the administrative hearing, the ALJ asked the VE three hypotheticals. See R. 70-72.
First, the ALJ asked the VE to consider a hypothetical individual who, in relevant part, was
"capable of performing simple, routine tasks with training duration up to a month" and who
occasionally could interact with the public, co-workers, and supervisors. R. 70-71. The VE
responded that such a person could work as a cleaner, housekeeper, or clerical checker. R. 71.
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The second hypothetical contained the same mental limitations as the first. R. 71. In the third
hypothetical, the ALJ asked about an "individual [who] can only be on task on a frequent basis
during a typical day due to symptoms from impairments." R. 72. The VE responded that there
would be no work suitable for such an individual. Id
The fact that the ALJ asked the last hypothetical shows he remained aware that at least
some plaintiffs with impairments similar to Plaintiffs have trouble staying on task. However,
the ALJ did not explain why he relied on the VE's answer to the first hypothetical as opposed to
the third, for, as discussed above, the ALJ did not discuss Plaintiffs ability or inability to stay on
task during the workday. Therefore, the ALJ erred by relying on the first hypothetical without
explaining why Plaintiff's moderate limitation in concentration, persistence, or pace did not
translate into an inability to stay on task.
IV.
CONCLUSION
Therefore, for the reasons listed above, the Court DECLINES to adopt the Magistrate
Judge's Report and Recommendation, Doc. 13. The Court GRANTS Plaintiff s Motion for
Summary Judgement, Doc. 8, to the extent it seeks reversal of the Commissioner's decision and
DENIES it to the extent it seeks an award of disability benefits.
Defendant's Motion for Summary Judgment, Doc. 10.
The Court DENIES
The Court thus VACATES and
REMANDS the Commissioner's decision for further administrative proceedings consistent with
this opinion.
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The Clerk is REQUESTED to send a copy of this order to all counsel of record.
It is so ORDERED.
/s/
Henry Coke Morgan, Jr.
Senior United States District Judge
HENRY COKE MORGAN, JR.
SENIOR UNITED STATES DISTRICT Jl
Norfolk. Virginia
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