Opinion
No. 5:19-CV-286-D
08-17-2020
THOMAS FUTCH, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Thomas Futch ("Plaintiff") filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the denial of his application for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #20] be granted, Defendant's Motion for Judgment on the Pleadings [DE #23] be denied, and the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. §405(g) for further proceedings.
STATEMENT OF THE CASE
Plaintiff applied for DIB and SSI on December 29, 2015, with an alleged onset date of October 22, 2014. (R. 16, 317-29.) The application was denied initially and upon reconsideration, and a request for hearing was filed. (R. 16, 113-14, 155-56, 233-35.) A hearing was held on May 17, 2018, before Administrative Law Judge ("ALJ") James E. Williams, who issued an unfavorable ruling on August 31, 2018. (R. 16-84.) On May 13, 2019, the Appeals Council denied Plaintiff's request for review. (R. 1-6.) At that time, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On July 10, 2019, Plaintiff filed the instant civil action, seeking judicial review of the final administrative decision pursuant to 42 U.S.C. §§ 405 and 1383(c)(3).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). 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." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. In making this determination, the ALJ must decide "whether the claimant is able to perform other work considering both [the claimant's RFC] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job." Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). "If the Commissioner meets [this] burden, the ALJ finds the claimant not disabled and denies the application for benefits." Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
III. ALJ's Findings
Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act ("the Act"). As a preliminary matter, the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2016. (R. 18.) At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since October 22, 2014, the alleged onset date. (Id.) Next, the ALJ determined Plaintiff had the following severe impairments: "degenerative disc disease, left knee meniscus tear, hypertension, dermatitis, obesity, borderline intellectual functioning, and somatoform disorder." (Id.)
At step three, the ALJ concluded Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. (R. 19.) The ALJ expressly considered listings 1.02, 1.04, 2.02, 2.03, 2.04, 4.02, 4.04, 6.02, 8.04, 11.04, 12.02, 12.07, and 12.11. (R. 19-20.) The ALJ also stated he evaluated Plaintiff's obesity in accordance with SSR 02-1p. (R. 19.)
Before proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff had
the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he [can] occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He can never work at unprotected heights; around moving, mechanical parts; or in humidity and wetness, or extreme cold. Lastly, he is limited to simple, routine tasks.(R. 21.) In making this assessment, the ALJ found Plaintiff's statements concerning the intensity, persistence, and limiting effects of Plaintiff's symptoms "not entirely consistent with the medical evidence and other evidence in the record." (R. 22.) At step four, the ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. 27.) Nonetheless, at step five, upon considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, namely: cuff folder, nut sorter, and egg processor. (R. 28-29.) The ALJ concluded that Plaintiff had not been disabled under the Act since October 22, 2014, Plaintiff's alleged onset date. (R. 29.)
IV. Plaintiff's Arguments
Plaintiff contends the Commissioner erred by:
(A) failing to account for Plaintiff's moderate limitation in concentration, persistence, or pace in the RFC (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #21] at 10-18; Pl.'s Resp. Opp'n [DE #28] at 1-2);
(B) failing to give specific reasons supported by substantial evidence for rejecting Plaintiff's statements about the severity of his symptoms (Pl.'s Mem. Supp. Mot. J. Pldgs. at 18-21; Pl.'s Resp. Opp'n at 2-3); and
(C) failing to consider new, material evidence submitted at the Appeals Council level that renders the ALJ's decision unsupported by substantial evidence (Pl.'s Mem. Supp. Mot. J. Pldgs. at 21-25; Pl.'s Resp. Opp'n at 3-4).The Commissioner argues the ALJ accounted for Plaintiff's mental limitations in the RFC and gave good reasons for discounting Plaintiff's statements about the severity of his symptoms, and the new evidence submitted to the Appeals Council does not fill an "evidentiary gap for which remand would be necessary for the ALJ to consider the impact of that [evidence]." (Def.'s Mem. Supp. Mot. J. Pldgs. [DE #24] at 6-11.) The undersigned agrees with Plaintiff's arguments for the reasons explained below and therefore recommends the case be remanded.
A. Mental Limitations in the RFC
Plaintiff contends the limitation in the RFC to simple, routine tasks does not account for his moderate limitation in concentrating, persisting, or maintaining pace. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 10-18; Pl.'s Resp. Opp'n at 1-2.) Relatedly, Plaintiff contends the ALJ failed to explain why he did not incorporate limitations for concentration, persistence, and pace into the RFC. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 13-18; Pl.'s Resp. Opp'n at 1-2.) In contrast, the Commissioner argues the ALJ relied on evidence similar to that approved of in Shinaberry v. Saul, 952 F.3d 113, 121-22 (4th Cir. 2020), and therefore, the ALJ's determination not to include additional limitations relating to concentration, persistence, and pace is supported by substantial evidence. (Def.'s Mem. Supp. Mot. J. Pldgs. at 8-9.)
The RFC is an administrative assessment of "an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p, 1996 WL 374184, at *1. In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(4). It is based upon all relevant evidence, which may include the claimant's own description of limitations from alleged symptoms. SSR 96-8p, 1996 WL 374184, at *5; 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). If necessary, an ALJ must "explain how any material inconsistences or ambiguities in the evidence were considered and resolved." SSR 96-8p, 1996 WL 374184, at *7.
An ALJ must "include a narrative discussion describing how the evidence supports each conclusion" in the RFC. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636). The ALJ must specifically explain how certain pieces of evidence support particular conclusions and "discuss[ ] . . . which evidence the ALJ found credible and why." Monroe, 826 F.3d at 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)). The Fourth Circuit has interpreted this to require an ALJ to "build an accurate and logical bridge from the evidence to his conclusion." Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)).
"[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion . . . . [M]eaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion." Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019) (citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). Simply put, this means an ALJ must "[s]how [his] work." Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017) (applying same principle to an ALJ's listing analysis). Such analysis—"[h]armonizing conflicting evidence and bolstering inconclusive findings," Patterson, 846 F.3d at 662—is a "necessary predicate" to determining whether substantial evidence supports the Commissioner's findings, Monroe, 826 F.3d at 189 (quoting Radford, 734 F.3d at 295). "An ALJ has a duty to explain the administrative decision so as to enable meaningful judicial review." Parker v. Colvin, No. 4:13-CV-38-FL, 2014 WL 2604282, at *3 (E.D.N.C. June 11, 2014). Where a court is "left to guess about how the ALJ arrived at his conclusions on [a claimant's] ability to perform relevant functions . . . , remand is necessary." Mascio, 780 F.3d at 637.
The Fourth Circuit held in Mascio that "an ALJ does not account 'for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work." Mascio, 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). The court explained that "the ability to perform simple tasks differs from the ability to stay on task" and that "[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Mascio, 780 F.3d at 638. While there may be times when a "moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in . . . residual functional capacity," the ALJ must explain why this is so. Id.
The discussion of mental limitations in the RFC in Shinaberryapplies the same principle announced in Mascio: once an ALJ has found that a claimant is moderately limited in concentration, persistence, or pace, the ALJ should explain how such limitations are or are not accounted for in the RFC. Shinaberry, 952 F.3d at 121-22. In Shinaberry, the Fourth Circuit determined the ALJ had "sufficiently explained why the mental limitation to simple, routine, and repetitive tasks accounted for Shinaberry's borderline intellectual disability and her moderate limitations in her concentration, persistence or pace." Id. The ALJ had explained the claimant was limited to simple, routine, and repetitive tasks based on limitations regarding the claimant's ability to tolerate stress, follow verbal commands, and make math calculations associated with weakness in processing skills. Id. at 122. The ALJ also found the claimant had trouble with memory tasks but her concentration and task persistence were adequate. Id.
The question here is whether ALJ Williams' findings comply with Mascio. Neither party contends the ALJ imposed a limitation in the RFC directly related to Plaintiff's difficulty with concentration, persistence, and pace. Rather, the Commissioner contends the ALJ sufficiently explained why the RFC's limitation to "simple, routine tasks" accounts for Plaintiff's difficulty with concentration, persistence, and pace because the ALJ noted (and appears to have credited) self- reports by Plaintiff about his ability to concentrate (Def.'s Mem. Supp. Mot. J. Pldgs. at 8 (citing R. 20)) and a consultative examiner's note that Plaintiff's attention span during the consultative examination was "fine" (id.). The Commissioner also notes the ALJ assigned great weight to the consultative examiner's conclusion that Plaintiff could perform simple, routine, repetitive tasks. (Def.'s Mem. Supp. Mot. J. Pldgs. at 8.) There are problems with these arguments.
First, the ALJ's implicit crediting of Plaintiff's self-reports is problematic because the ALJ did not fully credit Plaintiff's statements about the severity of his symptoms. (See R. 22.) Nowhere in the opinion does the ALJ explain why he credits Plaintiff's testimony about being able to sustain attention, but then discredits other aspects of Plaintiff's testimony. This requires explanation. See Mascio, 780 F.3d at 640 ("Nowhere, however, does the ALJ explain how he decided which of Mascio's statements to believe and which to discredit, other than the vague (and circular) boilerplate statement that he did not believe any claims of limitations beyond what he found when considering Mascio's residual functional capacity.").
Second, as Plaintiff notes, "fine" is not a vocationally relevant term and it is not clear how the consultative examiner's finding in this regard, and the ALJ's reliance on it, explains how Plaintiff's deficit in concentration, persistence, and pace is accounted for in the RFC. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 16.) If the ALJ fully credited the consultative examiner's opinion in this regard, i.e. that Plaintiff's ability to sustain attention was "fine," one has to wonder why the ALJ found Plaintiff moderately limited in this regard during the step-three analysis.
Third, the ALJ's discussion of Plaintiff's difficulty with concentration, persistence, and pace at step three is insufficient to substitute for the assessment required at step four. (See R. 20.) There, the ALJ merely cites conflicting evidence and offers no analysis. (Id.) This is not a harmonization of conflicting evidence, cf. Patterson, 846 F.3d at 662, nor is it a "more detailed assessment" of Plaintiff's mental limitations sufficient for an RFC assessment (R. 21 (noting that "the mental residual functional capacity assessment at steps 4 and 5 . . . requires a more detailed assessment")).
Unlike the Shinaberry ALJ, the ALJ here failed to sufficiently explain how he accounted for Plaintiff's deficit in concentration, persistence, and pace in the RFC. Therefore, remand is recommended.
B. Reasons for Discrediting Plaintiff's Statements
Plaintiff also contends the ALJ did not follow the two-step process set forth in 20 C.F.R. § 1529 and expounded upon in SSR 16-3p to the extent he failed to give "specific reasons" for not finding Plaintiff's statements about his symptoms fully credible. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 19-21.) The Commissioner contends the ALJ gave good reasons for not fully crediting Plaintiff's statements. (Def.'s Mem. Supp. Mot. J. Pldgs. at 9-11.) The undersigned disagrees with the Commissioner for the following reasons.
When evaluating a claimant's statements about his symptoms, "[t]he determination or decision must contain specific reasons for the weight given to the [claimant's] symptoms, be consistent with and supported by the evidence, and be clearly articulated so the [claimant] and any subsequent reviewer can assess how the adjudicator evaluated the [claimant's] symptoms." SSR 16-3p, 2017 WL 5180304, at *10.
Here, the ALJ summarized the evidence in the record over several pages and concluded that Plaintiff's statements about the severity of his symptoms were not entirely consistent with the objective medical evidence. (R. 21-26.) On review, the Commissioner argues the evidence cited by the ALJ shows that Plaintiff's "pain was controlled with medication such that he could perform sedentary work activity." (Def.' Mem. Supp. Mot. J. Pldgs. at 10-11.) There are several problems with this argument.
First, the ALJ did not articulate that reason. See Patterson v. Bowen, 839 F.2d 221, 225 n.1 (4th Cir. 1988) (reviewing court may only affirm an ALJ's decisions based on the reasons the ALJ provided); DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983) ("It may be, of course, as the Secretary suggests on appeal, that the ALJ considered all of these factors and proposed to himself cogent reasons for disregarding them. However, on this record we cannot so determine."); Ware v. Astrue, No. 5:11-CV-446-D, 2012 WL 6645000, at *3 (E.D.N.C. Dec. 20, 2012) ("The court cannot supplement the ALJ's explanation with the Commissioner's legal arguments in this court."). Second, the ALJ should not simply list or summarize evidence and state a conclusion. See Thomas, 916 F.3d at 311; Woods, 888 F.3d at 694. Third, as noted above, the ALJ's unexplained crediting and discrediting of Plaintiff's statements about different issues frustrates meaningful review. See SSR 16-3p, 2017 WL 5180304, at *10.
C. New Evidence Submitted to Appeals Council
Plaintiff also asserts that remand is required because the Commissioner failed to consider new, material evidence submitted to the Appeals Council. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 21-25; Pl.'s Resp. Opp'n at 3-4.) The Commissioner contends this new evidence does not create a reasonable probability of a difference in the outcome and, therefore, does not warrant remand. (Def.'s Mem. Supp. Mot. J. Pldgs. at 11-14.)
The Appeals Council will grant review if, among other things, it "receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision." 20 C.F.R. §§ 404.970(a)(5), 416.1470 (a)(5). In this context, "[e]vidence is new if it is not duplicative or cumulative and is material if there is a reasonable [probability] that the new evidence would have changed the outcome." Parham v. Comm'r of Soc. Sec., 627 F. App'x 233, 233 (4th Cir. 2015) (per curiam) (unpublished) (quoting Meyer v. Astrue, 662 F.3d 700, 705 (4th Cir. 2011)). Newly submitted evidence is considered on review to the extent it informs whether substantial evidence supports the Commissioner's decision. Parham, 627 F. App'x at 233 (citing Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en banc), and Meyer v. Colvin, 754 F.3d 251, 257 (4th Cir. 2014)).
The burden of showing materiality has been increased from "reasonable possibility" to "reasonable probability" via updates to the relevant regulations in January 2017. See Laxton v. Berryhill, No. 1:18-CV-446, 2019 WL 2516841, at *6 n.3 (M.D.N.C. May 29, 2019) (explaining change), report and recommendation adopted by 2019 WL 2516442 (M.D.N.C. June 18, 2019).
Here, the newly submitted evidence is an opinion letter from Dr. Kurt Voos, the orthopedic surgeon who performed surgery on Plaintiff's spine in March 2013 and February 2016. (R. 7.) In this letter, Dr. Voos described the surgeries he performed, explained that Plaintiff was "often incapacitated by pain" and "could not sit in a chair more than about 15-20 minutes" over the course of his treatment of Plaintiff, and opined that Plaintiff would miss more than two days of work per month and be off-task for more than 25% of the time. (Id.) The Appeals Council determined there was no reasonable probability Dr. Voos' opinion letter would change the outcome of the ALJ's decision, and thus the Commissioner never considered this evidence. (See R. 1-3.)
On review, the Commissioner provides some good reasons for why Dr. Voos' letter does not undermine the evidence supporting the ALJ's conclusions. Specifically, the Commissioner notes that Dr. Voos does not appear to have considered Plaintiff's pain control while on medication and that Dr. Voos' opinions may be inconsistent with physical examination findings. (Def.'s Mem. Supp. Mot. J. Pldgs. at 12-14.)
On the other hand, there are good reasons the Commissioner should have considered Dr. Voos' letter. First, Dr. Voos is a treating physician whose opinions would normally be entitled to controlling weight (or at least an explanation as to why less weight was being assigned to them). See 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). Second, as Plaintiff notes, it does not appear from the record that any other treating source opined about Plaintiff's functional physical limitations. (Pl.'s Resp. Opp'n at 4.) The only opinions regarding functional physical limitations are from non-examining state agency medical consultants. (R. 26.) The ALJ assigned little weight to these opinions in part because they "undervalue the seriousness of two back surgeries with continued complaints of back pain." (Id.) Third, Dr. Voos' opinions in the letter appear to support Plaintiff's statements about the severity of his pain, which, as discussed above in Section IV.B, the ALJ discounted.
The ALJ has a duty to "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p, 1996 WL 374184, at *7. Dr. Voos' letter appears to create such inconsistencies and ambiguities.
In light of the other issues requiring remand, the court need not determine whether the Appeals Council erred in failing to consider Dr. Voos' letter as new and material evidence. However, Dr. Voos' opinions bear directly upon the ALJ's RFC determination and should, therefore, be considered upon remand.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #20] be GRANTED, Defendant's Motion for Judgment on the Pleadings [DE #23] be DENIED, and the Commissioner's decision be remanded for further consideration.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 31, 2020, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 17th day of August 2020.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge