Widener v. Berryhill

Filing 17

MEMORANDUM OPINION. Signed by Senior Judge Glen E. Conrad on 2/9/2018. (ssm)

CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
.FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

8.13

THOMAS E. WIDENER,
Plaintiff,

v.
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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JULIA

BY:·
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2018

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D PUTY

Civil Action No. 7:17CV00225
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior United States District Judge

Plaintiff has filed this action challenging the final decision of the Commissioner of Social
Security denying plaintiffs claims for disability insurance benefits and supplemental security
income benefits under the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423, and 42
U.S.C. § 1381 et

~.respectively.

Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g)

and 42 U.S.C. § 1383(c)(3). As reflected by the memoranda and argument submitted by the
parties, the issues now before the court are whether the Commissioner's final decision is
supported by substantial evidence, or whether there is "good cause" to necessitate remanding the
case to the Commissioner for further consideration. See 42 U.S. C. § 405(g).
The plaintiff, Thomas Erick Widener, was born on June 26, 1977, and eventually
completed the eleventh grade in school. Mr. Widener has worked as a grocery picker, furniture
mover, and construction worker. He last worked on a regular and sustained basis in 2012. On
April 24, 2014, Mr. Widener filed applications for disability insurance benefits and supplemental
security income benefits.

Mr. Widener alleged disability based on hypochondria, bipolar

disorder, depression, anxiety, panic attacks, paranoia, pain in his left elbow and neck, and
headaches. He now maintains that he has remained disabled to the present time. As to his
application for disability insurance benefits, the record reveals that Mr. Widener met the insured

ERK

status requirements of the Act at all relevant times covered by the Commissioner's decision.
See, gen., 42 U.S.C §§ 416(i) and 423(a).
Mr. Widener's applications were denied upon initial consideration and reconsideration.
He then requested and received a de novo hearing and review before an Administrative Law
Judge. In an opinion dated November 29, 2016, the Law Judge also determined that plaintiff is
not disabled. The Law Judge found that Mr. Widener suffers from several severe impairments,
including anxiety and a history of substanc~ abuse. (Tr. 16). Because of these impairments, the
Law Judge ruled that plaintiff is disabled for all of his past relevant work roles.

(Tr. 25).

However, the Law Judge held that Mr. Widener retains sufficient functional capacity for a full
range of work at all exertional levels subject to certain non-exertional limitations. The Law
Judge assessed Mr. Widener's residual functional capacity as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work at all
exertionallevels but with the following nonexertionallimitations: the claimant is
limited to the performance of simple, routine, tasks. The claimant should not
work with the general public and should not be required to have more than
occasional interaction with co-workers or supervisors.
(Tr. 18). Given such a residual functional capacity, and after considering Mr. Widener's age,
education, and prior work experience, as well as testimony from a vocational expert, the Law
Judge held that plaintiff retains sufficient functional capacity to perform several specific work
roles existing in significant number in the national economy. (Tr. 26). Accordingly, the Law
Judge ultimately concluded that Mr. Widener is not disabled, and that he is not entitled to
benefits under either federal program. See, gen., 20 C.F.R. §§ 404.1520(g) and 416.920(g). The
Law Judge's opinion was adopted as the final decision of the Commissioner by the Social
Security Administration's Appeals Council.

Having exhausted all available administrative

remedies, Mr. Widener has now appealed to this court.
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While the plaintiff may be disabled for certain forms of employment, the crucial factual
determination is whether the plaintiff is disabled for all forms of substantial gainful employment.
See 42 U.S.C. §§ 423(d)(2) and 1382c(a). There are four elements of proof which must be
considered in making such an analysis.

These elements are summarized as follows:

(1)

objective medical facts and clinical findings;· (2) the opinions and conclusions of treating
physicians; (3) subjective evidence of physical manifestations of impairments, as described
through a claimant's testimony; and (4) the claimant's education, vocational history, residual
skills, and age. Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th Cir. 1971); Underwood v. Ribicoff,
298 F.2d 850, 851 (4th Cir. 1962).
After a review of the record in this case, the court is unable to conclude that the
Commissioner's final decision is supported by substantial evidence. The court believes that the
Commissioner reasonably concluded that plaintiff retains sufficient physical capacity to engage
in a full range of exertional activities. However, with regard to non-exertional limitations, the
court must conclude that the Law Judge did not account for all of the manifestations of plaintiffs
mental conditions in the hypothetical questions put to the vocational expert. Thus, the court
finds "good cause" for remand of this case to the Commissioner so that all of plaintiffs workrelated limitations can be considered in assessing his capacity for other work roles.
The medical record confirms that Mr. Widener has reported symptoms of anxiety to his
treating physicians .. However, Mr. Widener did not receive an evaluation or treatment from a
trained psychologist before applying for benefits. Consequently, the state agency referred Mr.
Widener to a psychological consultant, Dr. Marvin A. Gardner, Jr., who evaluated Mr. Widener
on April 20, 2016. Dr. Gardner determined that Mr. Widener's anxiety, panic disorder, and
hypochondriasis would likely cause him to miss more than four days of work per month and that

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Mr. Widener experiences a marked impairment of concentration, persistence, or pace that
prevents him from performing work activities on a consistent basis. (Tr. 507-08). The Law
Judge gave "little weight" to Dr. Gardner's opinion, determining that the report relied on Mr.
Widener's subjective complaints and abnormal presentation at a one-time evaluation, neither of
which the Law Judge found to be consistent with the medical record as a whole. (Tr. 23). The
Law Judge also accorded "little weight" to the opinions of two non-examining state agency
psychologists, who opined that Mr. Widener only experiences mild limitations in concentration,
persistence, or pace. (Tr. 23). As with Dr. Gardner's opinion, the Law Judge concluded that the
non-examining psychologists' opinions were inconsistent with Mr. Widener's medical record.
The Law Judge ultimately determined that Mr. Widener experiences moderate difficulties with
concentration, persistence, or pace. In this context, the Law Judge commented as follows:
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant usually did not complain of significant problems with
concentration, persistence, or pace. Likewise, treating practitioners did not
observe and record such abnormalities. The claimant had some significant mental
status abnormalities at his one consultative evaluation. However, this is a
significant anomaly compared to his many appointments with treating
practitioners.
(Tr. 17).
The difficulty in this case is that in formulating a hypothetical question for the vocational
expert, the Law Judge did not attempt to account for his conclusion that Mr. Widener
experiences moderate difficulties in concentration, persistence, or pace. The Law Judge asked
the vocational expert only to consider the following non-exertionallimitations: that Mr. Widener
is limited to simple, routine tasks involving no interaction with the general public and little to no
interaction with coworkers or supervisors.

(Tr. 66-68).

While the Law Judge adopted the

vocational expert's opinion that plaintiff can perform work as an assembler, packer, or inspector,

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the vocational expert was not asked to consider the significance of moderate limitations in
concentration, persistence, or pace in the performance of such jobs, all of which would
seemingly require sustained attention and concentration. Nevertheless, the Law Judge relied on
the testimony of the vocational expert in determining that Mr. Widener retains sufficient
functional capacity for several specific work roles existing in significant number in the national
economy.
In Walker v. Bowen, 889 F.2d 47 (4th Cir. 1989), the United States Court of Appeals for
the Fourth Circuit commented as follows:
The purpose of bringing in 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. In order for a vocational expert's opinion to be relevant or
helpful, 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. at 50 (citations omitted).
In his opinion, the Administrative Law Judge did not offer any rationale for omitting
moderate limitations in concentration, persistence, and pace in his assessment of plaintiffs
residual functional capacity, or in his hypothetical questions propounded to the vocational expert.
The court notes that in similar cases, the Commissioner often argues that such moderate
limitations are subsumed under a finding that a claimant is capable of performing only simple
and routine tasks.

However, the court is simply unable to conclude that the hypothetical

questions, which assumed that plaintiff can perform unskilled work which requires nothing more
than the execution of simple job instructions, was sufficient to alert the vocational expert to the
existence of moderate limitations in plaintiffs concentration, work persistence, and attendance to
task.

Indeed, the court believes that consideration of such limitations would be especially

important in assessing capacity for production line work such as that required to be an assembler.
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As noted by the United States Court of Appeals for the Tenth Circuit in Wiederholt v.
Barnhart, 121 F. App'x 833, 839 (lOth Cir. 2005):
The relatively broad, unspecified nature of the description "simple" and
"unskilled" does not adequately incorporate the ALJ's additional, more specific
findings regarding Mrs. Wiederholt's mental impairments. Because the ALJ
omitted, without explanation, impairments that he found to exist, such as
moderate difficulties maintaining concentration, persistence, or pace, the resulting
hypothetical question was flawed. Moreover, there is no evidence to suggest that
the VE heard testimony or other evidence allowing her to make an individualized
assessment that incorporated the ALJ's specific additional findings about Mrs.
Wiederholt's mental impairments.
Id. (citations omitted); see also Millhouse v. Astrue, No. 8:08-cv-378-T-TGW, 2009 WL
763740, at *3 (M.D. Fla. March 23, 2009) (stating that "moderate limitations in social
functioning and concentration, persistence, or pace constitute greater restrictions than a
limitation to unskilled work"); Chavanu v. Astrue, No. 3:11-cv-388-J-TEM, 2012 WL 4336205,
at *9 (M.D. Fla. September 21, 2012) (noting that "[s]everal circuits have found that restricting
[a] VE's inquiry to simple, routine, or repetitive tasks, or unskilled work does not accounts [sic]
for a plaintiff's moderate deficiencies in concentration, persistence, or pace," and citing to these
cases); and Sexton v. Colvin, 21 F. Supp. 3d 639, 642-43 (W.D. Va. May 19, 2014) (a limitation
to simple, unskilled work does not necessarily imply, or take into account, moderate limitations
in concentration, persistence, or pace).
In Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015), the United States Court of
Appeals for the Fourth Circuit reached a similar conclusion:
In addition, we agree with other circuits 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." Winschel v.
Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) Goining the Third,
Seventh, and Eighth Circuits). As Mascio points out, the ability to perform
simple tasks differs from the ability to stay on task. Only the latter limitation
would account for a claimant's limitation in concentration, persistence, or pace.

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Id. at 638. The court believes that the rationale of Mascio applies directly to Mr. Widener's
appeal. Thus, the court finds "good cause" for remand of the case to the Commissioner for
further consideration of this critical issue.
In opposing a remand during the hearing before this court, the defendant cited to the
recent Fourth Circuit decision in Sizemore v. Berryhill, 878 F.3d 72 (4th Cir. 2017). The court
finds this case to be distinguishable. In Sizemore, the non-examining state agency consultant
opined that Mr. Sizemore's "mental health issues imposed moderate difficulties in . . .
maintaining concentration, persistence, or pace, but that they were not so severe as to necessarily
qualify him for benefits."' Id. at 77.

The state agency consultant "concluded overall that

Sizemore was 'mentally capable of independently performing basic, routine tasks on a sustained
basis."' Id. The Law Judge accorded "'significant weight"' to the state agency consultant's
opm10n. Id. at 80. In posing hypothetical questions to the vocational expert, the Law Judge
asked whether an individual capable of performing simple one to two step tasks would be able to
perform any available work roles. Id. at 79. The vocational expert concluded that such an
individual could perform several unskilled jobs. Id. Relying on the state agency consultant's
opinion and the vocational expert's response, the Law Judge denied Mr. Sizemore's applications
for benefits. Id. at 80.
In this case, the state agency consultant, Dr. Gardner, opined that, although Mr. Widener
"is able to perform simple and repetitive work tasks[,] ... "[h]e is not able to perform work
activities on a consistent basis as he has a marked impairment of concentration, persistence of
[sic] pace."

(Tr. 507-08).

The Law Judge then asked the vocational expert whether a

hypothetical person capable of completing simple, routine tasks could perform any work roles
existing in significant numbers in the national economy without accounting for Dr. Gardner's

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opinion that Mr. Widener could not perform those activities on a sustained basis. (Tr. 68). The
Law Judge had accorded little weight to Dr. Gardner's opinion. However, the only difference
the court can discern between the opinion of Dr. Gardner and the opinion of the state agency
consultant in Sizemore is that the opinion of Dr. Gardner is favorable to the claimant while the
opinion of the state agency consultant in Sizemore was unfavorable to the claimant.
Accordingly, the court does not believe that Sizemore supports the Law Judge's decision in this
case. Stated differently, the court believes Sizemore is the opposite ofthis case.
Furthermore, as a general rule, it makes little sense to refer the plaintiff for a clinical
evaluation by a psychologist if that psychologist's findings are to be rejected for being a onetime consultation. The Law Judge gave the same weight to Dr. Gardener's opinion as he did to
the opinions of the non-examining state agency consultants. Under 20 C.P.R. §§ 404.1527(d)
and 416.927(d), "more weight" must be accorded to the opinion of a medical source who has
actually examined the claimant. If the Commissioner had reason to believe that Dr. Gardner's
assessment was incomplete, inaccurate, or overstated, the Commissioner had full authority to
require Mr. Gardener to appear for a consultative psychological evaluation by another mental
health specialist designated by the state disability agency. See 20 C.P.R. §§ 404.1517, et seq.,
and 416.917, et seq. Instead, in this case, the state disability agency chose the psychologist who
performed the only mental health examination in the record. Under these circumstances, the
court believes that it was incumbent upon the Commissioner to offer some meaningful reasons to
support the rejection of Dr. Gardner's estimate as to plaintiffs ability to concentrate and sustain
work activities. Simply stated, the Law Judge owes a "duty of explanation." Hammond v.
Heckler, 765 F.2d 424, 426 (4th Cir. 1985). The court should not be left to speculate as to the

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reasons for the administrative decision. Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013); Fox v.
Colvin, 632 F. App'x 750 (4th Cir. 2015).
On appeal to this court, the plaintiff asserts that the final decision of the Commissioner
should be reversed based on the Administrative Law Judge's failure to give sufficient weight to
the findings and opinion of Dr. Gardner and for other deficiencies in the Law Judge's opinion.
Mr. Widener points out that the Law Judge failed to recognize that Dr. Gardener's report relied
not only on Mr. Widener's statements, but also on Dr. Gardner's testing of Mr. Widener's
cognitive functioning. However, even if the court assumed that the Law Judge's reasons for
giving little weight to Dr. Gardner's opinions are supported by substantial evidence, the court
believes the appropriate remedy would still be to remand the case to the Commissioner for
~rther

consideration of these issues. Inasmuch as the court has determined to remand the case

for other reasons, plaintiff will be permitted to make arguments regarding the weight accorded to
Dr. Gardner's opinions to a fact finder at the time of a supplemental administrative hearing.
Also in light of the court's decision to remand the case to the Commissioner, the court declines
to address Mr. Widener's remaining claims of error.
In summary, the court concludes that the critical hypothetical questions posed by the Law
Judge, excluding plaintiffs moderate limitations in concentration, persistence, and pace, were
not consistent with the evidence of record, or the Law Judge's explicit findings. Accordingly,
the court finds "good cause" for remand of this case to the Commissioner for further
consideration and development. If the Commissioner is unable to decide the case in plaintiffs
favor on the basis of the existing record, the Commissioner will conduct a supplemental
administrative hearing, at which time a comprehensive hypothetical question can be put to a
qualified vocational expert. Upon remand, both parties will have the opportunity to present

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additional evidence and argument. An appropriate judgment and order will be entered this day.
The Clerk is directed to send certified copies of this Memorandum Opinion to all counsel
of record.
DATED: This

qtJJ

day ofFebruary, 2018.

~f-~

Senior UnitedStates District Judge

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