Opinion
No. 5:19-CV-323-FL
04-01-2020
SHERRY HINES, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-18, -21] pursuant to Fed. R. Civ. P. 12(c). Claimant Sherry Hines ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for Supplemental Security Income ("SSI") payments. Claimant responded to Defendant's motion, [DE-23], and the time for filing a reply has expired. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI on April 19, 2013, alleging disability beginning October 1, 2009. (R. 10, 236-41). Her claim was denied initially and upon reconsideration. (R. 10, 122-43). A hearing before the Administrative Law Judge ("ALJ") was held on January 7, 2016, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 10, 55-99). On March 29, 2016, the ALJ issued a decision denying Claimant's request for benefits. (R. 7-33). On May 23, 2019, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., 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). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "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 v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 416.920a(e)(3).
In this case, Claimant alleges that the ALJ erred in (1) failing to adequately account for Claimant's moderate limitation in maintaining concentration, persistence, and pace and (2) considering each impairment individually rather than considering their combined effects. Pl.'s Mem. [DE-19] at 7-14.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" asdefined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since April 19, 2013, the application date. (R. 12). Next, the ALJ determined Claimant had the following severe impairments: other and unspecified arthropathies, osteoarthritis, gout, diabetes mellitus, obesity, low vision, hypertension, affective disorder, and substance addiction disorder. Id. The ALJ also found Claimant had nonsevere impairments of anemia, hyperlipidemia, and heel spurs. (R. 13). However, at step three, the ALJ concluded these 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, Appendix 1. Id. Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in mild limitations in activities of daily living and social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. (R. 14-15).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 416.967(b). --------
She can lift and carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk six hours in an eight-hour workday; sit six hours in an eight-hour workday; push and pull unlimited other than shown for lift and carry; occasionally operate foot controls with the bilateral lower extremities; occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; [and] frequently balance, stoop, kneel, crouch, and crawl. She is limited to frequent far acuity when performing job activities. She should never be exposed to unprotected heights, moving mechanical
parts, or extreme cold. She is limited to simple, routine, and repetitive tasks.(R. 18-27). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of her symptoms not entirely credible. (R. 21). At step four, the ALJ concluded Claimant has no past relevant work. (R. 27). At step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 27-28).
V. DISCUSSION
A. The ALJ failed to adequately account for Claimant's moderate limitation in maintaining concentration, persistence, or pace.
Claimant contends that the limitation in the RFC to simple, routine, and repetitive tasks is inadequate to account for her moderate difficulty maintaining concentration, persistence, or pace. Pl.'s Mem. [DE-19] at 7-12. An individual's RFC is the capacity she possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." S.S.R. 96-8p, 1996 WL 374184, at *7. Additionally, the RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Id.; see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
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.'" 780 F.3d at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining the Third, Seventh, and Eighth Circuits)). 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." Id. The court acknowledged there could be instances where a moderate limitation in concentration, persistence, or pace at step three does not require a limitation in the RFC; however, the failure to explain such a result is error requiring remand. Id. ("Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in Mascio's residual functional capacity. . . . But because the ALJ here gave no explanation, a remand is in order.").
Claimant analogizes her case to Mascio and contends the ALJ did not properly account for her moderate difficulties in maintaining concentration, persistence, or pace. Pl.'s Mem. [DE-19] at 7-12. Defendant responds that this case is instead analogous to Shinaberry v. Saul, No. 18-2096, 2020 WL 908887, at *5952 F.3d 113, 122 (4th Cir. 2020), where the Fourth Circuit held that the ALJ adequately explained why an RFC limiting Shinaberry to simple, routine, and repetitive tasks adequately accounted for her moderate difficulties maintaining concentration, persistence, and pace. Def.'s Mem. [DE-22] at 6-15.
Here, however, the ALJ did not explain how a limitation to simple, routine, and repetitive tasks accounts for Claimant's moderate limitation in maintaining concentration, persistence, or pace. (R. 18-27). The ALJ summarized the medical and other evidence, explained the weight given to the medical opinions and the statement of Claimant's sister, and concluded that "the residual functional capacity is supported by the medical evidence of record." Id. There is no explanation as to how a limitation to simple, routine, and repetitive tasks accounts for Claimant's difficulty staying on task, as required by Mascio. Cf. Hampson v. Saul, No. 7:18-CV-215-D, 2020 WL 1190439, at *5 (E.D.N.C. Feb. 7, 2020), adopted by 2020 WL 1198720 (E.D.N.C. Mar. 11, 2020) (finding no error because "[t]he ALJ in this case, unlike in Mascio, explained why Claimant did not require further restrictions related to his ability to stay on task, i.e., Claimant's limitations were related to medication side effects, and his cognition and fatigue improved after medication changes."). This court has previously found that an inclusion of additional limitations, such as "for work that involves no quotas or fast-paced production work with uninvolved oral and written instructions in two-hour segments," adequately addresses the ability to stay on task and comports with Mascio. Simmons v. Berryhill, No. 5:17-CV-4-D, 2018 WL 577243, at *7 (E.D.N.C. Jan. 10, 2018), adopted by 2018 WL 576845 (E.D.N.C. Jan. 26, 2018); see also Sizemore v. Berryhill, 878 F.3d 72, 81 (4th Cir. 2017) (holding that limitations to working in a low stress, non-production job with no public contact were sufficient to account for moderate limitations in concentration, persistence, or pace). Here, however, there are no such additional limitations in the RFC; the ALJ's only relevant limitation was to simple, routine, and repetitive tasks. (R. 18); see Gregory v. Berryhill, No. 5:16-CV-00284-FL, 2017 WL 4171969, at *7 (E.D.N.C. Sept. 20, 2017) (finding a limitation "to occupations which require no more than simple, routine repetitive tasks involving no more than simple work-related decisions with few work place changes" was inadequate under Mascio to account for moderate difficulty maintaining concentration, persistence, or pace). Accordingly, remand is appropriate for further explanation as to how the RFC might account for Claimant's ability to stay on task.
B. The ALJ sufficiently considered the combined effects of Claimant's impairments.
Claimant contends that the ALJ improperly analyzed her impairments as discrete conditions rather than considering their combined effects. Pl.'s Mem. [DE-19] at 12-14. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted).
Here, the ALJ has done so. The ALJ determined Claimant had severe impairments of other and unspecified arthropathies, osteoarthritis, gout, diabetes mellitus, obesity, low vision, hypertension, affective disorder, and substance addiction disorder and nonsevere impairments of anemia, hyperlipidemia, and heel spurs. (R. 12-13). The ALJ discussed Claimant's MRI of her left shoulder; her December 2012 physical exam, at which she was diagnosed with hypertension, uncomplicated type II diabetes mellitus, and tobacco use disorder; her September 2012 visit to the emergency department for diabetes; her November 2012 hospitalization related to her diabetes; her April 2013 visit to the emergency department for left knee and left shoulder pain; her March 2014 treatment at Johnston Family Practice, at which she was diagnosed with diabetes, hyperlipidemia, hypertension, a history of substance abuse, marijuana abuse, tobacco use disorder, and bilateral knee pain; and her December 2014 and January 2015 treatment, at which she was additionally diagnosed with gout and iron deficiency anemia. (R. 21-24). The ALJ also discussed Claimant's consultative internal medicine examination in August 2013 regarding Claimant's diabetes, knee pain, arthritis, gout, hypertension, kidney disease, depression, reflux disease, substance use, and vision. Id. The ALJ concluded that Claimant's impairments "do not, either alone or in combination, preclude the claimant from all work activity." (R. 24).
Additionally, the ALJ discussed Claimant's complaints and activities. The ALJ summarized Claimant's hearing testimony, including her testimony about how she struggles to manage her diabetes; her blood transfusions; her ability to lift, grocery shop, walk, read, play games, watch television, cook, and do chores; her gout attacks; her vision and ability to drive; her church attendance; and her mental health. (R. 19-21). The ALJ also discussed the statement of Claimant's sister, who described Claimant's daily activities, ability to care for herself, and mental health. (R. 26).
The ALJ adequately discussed each of Claimant's impairments as well as Claimant's complaints and activities. Accordingly, the ALJ did not fail to consider the combined effects of Claimant's impairments. See Baldwin, 444 F. Supp. 2d at 465.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-18] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-21] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
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 April 15, 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, e.g., 28 U.S.C. § 636(b)(1); 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. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will 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).
Submitted, this the 1st day of April 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge