Welch v. Berryhill, No. 8:2018cv01929 - Document 18 (D. Md. 2019)

Court Description: MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 8/9/2019. (jrs, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division PEGGY W., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.1 * * * * * * * * * * * ************ Civil No. TMD 18-1929 MEMORANDUM OPINION GRANTING PLAINTIFF’S ALTERNATIVE MOTION FOR REMAND Plaintiff Peggy W. seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying her application for Supplemental Security Income under Title XVI of the Social Security Act. Before the Court are Plaintiff’s Motion for Summary Judgment and alternative motion for remand (ECF No. 14) and Defendant’s Motion for Summary Judgment (ECF No. 17).2 Plaintiff contends that the administrative record does not contain substantial evidence to support the Commissioner’s decision that she is not disabled. No hearing is necessary. L.R. 1 On June 17, 2019, Andrew M. Saul became the Commissioner of Social Security. He is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as a procedural means to place the district court in position to fulfill its appellate function, not as a device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.” Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary judgment accompanied by a remand to the Commissioner results in a judgment under sentence four of 42 U.S.C. § 405(g), which is immediately appealable.” Id. 2 105.6. For the reasons that follow, Plaintiff’s alternative motion for remand (ECF No. 14) is GRANTED. I Background On April 17, 2017, Administrative Law Judge (“ALJ”) Brian B. Rippel held a hearing in Charlottesville, Virginia, where Plaintiff and a vocational expert (“VE”) testified. R. at 28-57. The ALJ thereafter found on July 18, 2017, that Plaintiff was not disabled since the application date of July 31, 2014. R. at 9-27. In so finding, the ALJ found that, with regard to concentrating, persisting, or maintaining pace, Plaintiff had moderate difficulties. R. at 17. [Plaintiff] told Dr. Johnson [a consultative examiner] that she has problems with her memory and concentration. However, Dr. Johnson observed that [Plaintiff’s] thought processes appeared logical and coherent, and her thought content was appropriate. Her recent and remote memory appeared satisfactory. Dr. Dhir [another consultative examiner] noted [Plaintiff’s] complaints that she spends her day limited by pain and generally just watching television. She cares for her own personal needs and bathes. She can make simple meals. She goes to church regularly. She is able to understand and follow simple instructions independently. R. at 17 (citations omitted). The ALJ then found that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 CFR 416.967(a) except: sit-stand option alternating every 20 to 30 minutes while staying on task at the work station; only occasional climbing ramps or stairs, balancing, stooping, kneeling, crouching, crawling; no climbing ladders, ropes, or scaffolds; only occasional exposure [to] workplace hazards (including unprotected heights and hazardous machinery); simple, routine tasks, in entry level, unskilled work; in a low stress job (defined as only occasional independent decision making and changes in the work setting); only occasional interaction with [the] public, co-workers, [or] supervisors. 2 R. at 17.3 In light of this RFC and the VE’s testimony, the ALJ found that Plaintiff could perform work in the national economy such as a sorter/grader, packer/stacker, or assembler. R. at 22. Plaintiff thus was not disabled since the application date of July 31, 2014. R. at 23. After the Appeals Council denied Plaintiff’s request for review, Plaintiff filed on June 26, 2018, a complaint in this Court seeking review of the Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case then was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted. II Disability Determinations and Burden of Proof The Social Security Act defines a disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is “not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. § 416.967(a). “Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” Id. 3 3 To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003). “If at any step a finding of disability or nondisability can be made, the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at 379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013). First, the Commissioner will consider a claimant’s work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination of impairments that significantly limits the claimant’s physical or mental ability to do basic work activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).4 Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at 141, 107 S. Ct. at 2291. 4 4 regardless of age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293. Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is responsible for developing the claimant’s “complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant’s RFC as determined at step four, age, education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the 5 national economy. See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). III Substantial Evidence Standard The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct legal standards and whether the factual findings are supported by substantial evidence. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion. See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). In evaluating the evidence in an appeal of a denial of benefits, the court does “not conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986), or undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v. 6 Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam). IV Discussion Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security Ruling5 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-9, ECF No. 14-1. Plaintiff maintains that the ALJ failed to perform properly a function-by-function assessment of her ability to perform the physical and mental demands of work. Id. at 5. In particular, she contends that the ALJ failed to evaluate properly her migraine headaches, which the ALJ found to be a severe impairment (R. at 14). Id. at 5-7. She also argues that the ALJ failed to include any limitation in the RFC assessment related to her epicondylitis, which the ALJ also found to be a severe impairment (R. at 14). Id. at 7-8. Plaintiff finally maintains that, although the ALJ found that she had moderate limitations in concentrating, persisting, or maintaining pace (R. at 17), the ALJ failed to include any limitation on concentration, persistence, or pace in the RFC assessment. Id. at 8-9. Rather, the ALJ limited her to the performance of work in a low-stress job (defined as involving “only occasional independent decision making and changes in the work setting”) and where she had only occasional interaction Social Security Rulings are “final opinions and orders and statements of policy and interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1). Once published, these rulings are binding on all components of the Social Security Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984); 20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204 n.3. 5 7 with the public, co-workers, or supervisors. R. at 17. For the reasons discussed below, the Court remands this case for further proceedings. SSR 96-8p, 1996 WL 374184 (July 2, 1996), explains how adjudicators should assess RFC and instructs that the RFC “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. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” The Ruling further explains that the residual functional capacity “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).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted) (citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given that remand would prove futile in cases where the ALJ does not discuss functions that are ‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (per curiam)). Rather, remand may be appropriate “where an ALJ fails to assess a claimant’s capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ’s analysis frustrate meaningful review.” Id. (quoting Cichocki, 729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was “left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 2016) (remanding because ALJ erred in not determining claimant’s RFC using function-by-function analysis; ALJ 8 erroneously expressed claimant’s RFC first and then concluded that limitations caused by claimant’s impairments were consistent with that RFC). The Fourth Circuit further held in Mascio 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.’” Mascio, 780 F.3d at 638 (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). “[T]he 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.” Id. The court in Mascio remanded the case for the ALJ to explain why the claimant’s moderate limitation in concentration, persistence, or pace at step three did not translate into a limitation in the claimant’s RFC. Id. In other words, under Mascio, “once an ALJ has made a step three finding that a claimant suffers from moderate difficulties in concentration, persistence, or pace, the ALJ must either include a corresponding limitation in [his] RFC assessment, or explain why no such limitation is necessary.” McLaughlin v. Colvin, 200 F. Supp. 3d 591, 600 (D. Md. 2016) (quoting Talmo v. Comm’r, Soc. Sec., Civil Case No. ELH-14-2214, 2015 WL 2395108, at *3 (D. Md. May 19, 2015), report and recommendation adopted (D. Md. June 5, 2015)). Plaintiff contends that, although the ALJ found her epicondylitis to be a severe impairment, he failed to include any limitation related to this impairment in the RFC assessment. Pl.’s Mem. Supp. Mot. Summ. J. 7-8, ECF No. 14-1. As noted in Part II above, the Commissioner determines at step two of the five-step sequential evaluation process whether the claimant has a medically severe impairment or combination of impairments. “Step two is merely a threshold determination meant to screen out weak claims. It is not meant to identify the impairments that should be taken into account when determining the RFC.” Buck v. Berryhill, 9 869 F.3d 1040, 1048-49 (9th Cir. 2017) (citation omitted). “At step four, on the other hand, the [Commissioner] must look to all the evidence on record and determine more precisely how, if at all, the claimant’s impairments limit her ability to work.” Taylor v. Astrue, Civil Action No. BPG-11-0032, 2012 WL 294532, at *8 (D. Md. Jan. 31, 2012). “It is possible, therefore, for [the Commissioner] to find at step two that a claimant’s condition is severe—because the medical evidence does not conclusively prove otherwise—and yet at step four find no substantial evidence that the condition actually limits the claimant’s ability to work.” Id. Thus, “an ALJ is not required to include a corresponding limitation for each severe impairment.” Copes v. Comm’r, Soc. Sec. Admin., Civil No. SAG-11-3487, 2013 WL 1809231, at *1 (D. Md. Apr. 26, 2013). Plaintiff maintains that she is limited to no more than occasional reaching because she testified that she had difficulty bending her left arm, turning her left arm, and holding her left arm up. Pl.’s Mem. Supp. Mot. Summ. J. 7-8, ECF No. 14-1 (citing R. at 43-44). The ALJ noted, however, that the record reflected Plaintiff’s normal motor function, normal reflexes, and normal movement of all extremities, despite having some decreased range of motion of the left shoulder. R. at 19. Because substantial evidence supports the ALJ’s finding, Plaintiff’s contention regarding the ALJ’s consideration of her epicondylitis is unavailing. Remand is warranted in this case, however, because the ALJ’s limiting Plaintiff’s RFC to occasional independent decision-making, occasional changes in the work setting, and occasional interaction with the public, co-workers, or supervisors (R. at 17) does not account for her moderate limitations in concentrating, persisting, or maintaining pace. See Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015) (“‘Few if any work place changes’ with limited ‘interaction with coworkers or supervisors’ deals largely with workplace adaptation, rather than concentration, pace, or persistence.”); Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009) (per curiam) 10 (rejecting contention that “the ALJ accounted for [the claimant’s] limitations of concentration, persistence, and pace by restricting the inquiry to simple, routine tasks that do not require constant interactions with coworkers or the general public”); Bey v. Berryhill, Civil Action No. CBD-17-2292, 2018 WL 3416944, at *3-4 (D. Md. July 12, 2018); Henry v. Colvin, No. CV 153064-KES, 2016 WL 2851302, at *3 (C.D. Cal. May 13, 2016) (“Limiting job-related decisionmaking is just another way of limiting the claimant to simple or unskilled work.”). Although Defendant contends that the error is harmless (Def.’s Mem. Supp. Mot. Summ. J. 10-11, ECF No. 17-1), [t]he Court cannot classify the error as harmless because the ALJ’s written decision is insufficient to permit adequate review. Because the ALJ’s RFC does not account for all of [Plaintiff’s] limitations, the Court cannot find that the RFC provides an accurate description of the work that [she] is able to do on a regular and continuing basis. In light of the Fourth Circuit’s clear guidance in Mascio, this case must be remanded so that the ALJ can explain how [Plaintiff’s] limitations in the areas of concentration, persistence, and pace can be incorporated into the RFC assessment, or why no additional limitation is necessary to account for these difficulties. Lawson v. Berryhill, Civil No. TJS-17-0486, 2018 WL 1135641, at *5 (D. Md. Mar. 1, 2018). The ALJ “must both identify evidence that supports his conclusion and ‘build an accurate and logical bridge from [that] evidence to his conclusion.’” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (alteration in original) (quoting Monroe, 826 F.3d at 189). An ALJ’s failure to do so constitutes reversible error. Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir. 2017). Because the ALJ’s “analysis is incomplete and precludes meaningful review,” remand is appropriate. Monroe, 826 F.3d at 191. 11 In sum, the inadequacy of the ALJ’s analysis frustrates meaningful review. The Court thus remands this case under the fourth sentence of 42 U.S.C. § 405(g).6 V Conclusion For the reasons stated above, Defendant’s Motion for Summary Judgment (ECF No. 17) is DENIED. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. Plaintiff’s alternative motion for remand (ECF No. 14) is GRANTED. Defendant’s final decision is REVERSED under the fourth sentence of 42 U.S.C. § 405(g). This matter is REMANDED for further proceedings consistent with this opinion. A separate order will issue. Date: August 9, 2019 /s/ Thomas M. DiGirolamo United States Magistrate Judge 6 Plaintiff also asserts that the ALJ erred by failing to explain how he considered the frequency and duration of her migraine headaches when he formulated the RFC assessment. Pl.’s Mem. Supp. Mot. Summ. J. 7, ECF No. 14-1. Because the Court remands this case on other grounds, it need not address this argument; in any event, the ALJ on remand should review his analysis related to Plaintiff’s migraine headaches. See Noel D. v. Comm’r of Soc. Sec., No. 1:17-CV03172-GLS, 2019 WL 1501851, at *4 (D. Md. Jan. 31, 2019). 12

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