TYLER V. COLVIN, No. 1:2015cv00225 - Document 17 (M.D.N.C. 2016)

Court Description: MEMORANDUM OPINION AND RECOMMENDATION, signed by MAG/JUDGE JOE L. WEBSTER on 2/29/2016. RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). FURTHER RECOMMENDED that the Commissioner be directed to remand the matter to the ALJ for further proceedings consistent with this order. Consequently, to this extent, FURTHER RECOMMENDED that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be DENIED, and Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be GRANTED to the extent remand is requested. FURTHER RECOMMENDED that, to the extent that Plaintiff seeks an immediate award of benefits, his request be DENIED. (Butler, Carol)

Download PDF
TYLER V. COLVIN Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DORIAN TYLER, Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) l:15CY225 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff Dorian D. Tyier, brought this action to obtain teview of a ftnal decision of the Commissioner of Social Security denying his claim for social secutity disability benefits. The Court has befote it the cettified administtative tecord and cross-motions for judgment. For the teasons set forth herein, the Court recommends that Defendant's motion for Judgment on the Pleadings Q)ocket Entry 14) be denied, Plaintiffs motion fot Judgment on the Pleadings (Docket Entry 11) be gtanted, and that this matter be remanded to the Commissioner. I. PROCEDURAL HISTORY Plaintiff filed fot Child's Supplemental Security Income Benefits on August 22,1.999. (Ir. 90-9t.¡t It was determined that Plaintiff On May was disabled on November 2,1,999. (Tr. 55.) 1,, 2008, the Social Security Administration determined Plaintiff was no longer t Unless otherwise noted, transcrþt citations refer to the administrative recotd in this case which was filed with Defendant's Answet. (Docket Enry 7.) Dockets.Justia.com disabled, and Plaintiff tequested a headng before an Administative Law Judge (AL). (It. 64-65,83-89). After the hearing, the ALJ issued an unfavotable decision orl November 20, 2009. [r. 298-306.) Plaintiff fìled a request fot teview and on Decembet 22,2010, the Appeals Council granted his request and remanded his case fot a new hearing. (Tr. 309-10.) On November 28,201.1, Plaintiff appeated again befoÍe the A.LJ and he issued nother unfavorable decision on February I0, 201,2. Çt 314-25.) On April 23, 20'13, the Appeals Council gtanted Plaintiffs request for review and temanded his case fot a nev¡ hearing. 326-29). On January 30, 20L4, a second ALJ issued another unfavotable decision. (fr. Çr. 28- 40.) Subsequently, the Appeals Council denied Plaintifls request for review. (Tt. 7-10.) The Appeals Council's denial rendered the ALJ's decision the final administrative action of the Commissioner in Plaintiffs case. II. STANDARD FOR REVIEW The scope of judicial teview of the Commissioner's final decision is specific and riarrow. Srnith u. Schweiker,795F.2d343,345 (4th Cit. 1986). Reviewis limited to detetmining if thete is substantial evidence in the tecord to support the Commissioner's decision. 42 U.S.C. $ a05G); Hunteru. Sulliuan,gg3F.2d31,,34 (4th Cit. 1,992);Hay u. Salliuan,g}7 F.2d1453,1456 (4th Cir. 1990). In reviewing for substan:dral evidence, the Court does not re-weigh conflicting evidence, make credibility detetminations, or substitute its judgment for that of the Commissioner. Craigu. Chater,76F.3d 585,589 (4th Cit. 1996). The issue before the Court, thetefore, is not whethet Plaintiff is disabled, but whether the Commissionet's finding that he 2 is not disabled is supported by substanúal evidence and was teached based upon a correct application of the relevant la:xt. Id. III. THE COMMISSIONER'S DECISION The ALJ followed the well-established five-step sequential analysis to ascertin whethet the claimant is disabled, which is set forth in 20 C.F.R. Soc. Sec. S 404.1520. See Albright u. Comru'r of Admin.,174 F.3d 473,475 n.2 (4th Cir. 1,999). The ALJ determined at step one that Plaintiff attained age 18 and was no longet disabled as of lúay 2, 2008, based on redetermination of disability under the des fot adults who file new applications. (It. a 30.) The ALJ next found at step two that Plainuffs single severe impaitment was bordedine intelligence. Qd.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1. (Ir. 34.) The ALJ then determined that Plaintiff retained the residual functional capacity ("RFC") to perform a full tange of work at all exertional levels, but his nonexertional limitations included unskilled work with no reading or writing required. (It. 36.) At the foutth step, the ALJ determined that Plaintiff had no past relevant work. (It. 38.) A,t step five, the ALJ detetmined that there were jobs which Plaintiff could perform consistent with his RFC, age, education, and wotk experience. (Id.) IV. DISCUSSION In pertinent patt, Plaintiff contends that the ALJ ered by failing to incorporate in his RFC the moderate limitations in concentration, persistence, ot pace that wete found in step three of the sequential evaluation ptocess. (Docket Entry a J 1,2 at 8-9.) To the contrarf, Defendant contends that the ,{LJ accounted for Plaintiffs limitations persistence , on pace by excluding in concentration, Plaintiff fuom carrying out complex tasks. pocket Entry 15 at1,9.) For the following reasons, the Cout agrees with Plaintiff that the ,{LJ failed to account for his moderate limitations in concenttation, persistence, oÍ pace in his RFC.2 At step three of the sequential evaluation ptocess, the ALJ concluded that Plaintiff suffered from moderate limitations in concentration, persistence, or pace. ^ppaLrent (It. 35) In an effort to account for these moderate limitations, the A,LJ's RFC finding limited Plaintiff to unskilled work, with no reading ot writing. limitations in his hypothetrcal (r. at 36.) The ALJ also put these to the Vocational Expett ("VE") who concluded that an individual with these limitations could perform work as a picking table worket. (Tr. 39-40.) The ALJ adopted these findings at step five. (Tt. at 38.) Nonetheless, these limitations did not account for Plaintiffs moderate difficulties in concentration, persistence, or pce. As explained below, temand is watranted in this matter. "At step three of the sequential evaluation, the ALJ determines whether a claimant's impairments meet ot medically equal any of the impaitments listed in 20 C.F.R. Part 404, Subpart P, Appendix L. Listings 12.00 et. rcq., pertain to mental impairments." 20 C.F'.R. Pt. 404, Subpt. P, App. 1 $ 12.00; Hodge u. Cornm'r, Soc. Sec. Admin., No. CV SAG-14-361'9,201'5 lfl, 5813999, at x1 (D. Md. Sept. 29,201,5). The listing "consists of: (1) a brief statement zPIatnaff also contends that "[t]he ALJ's Listing analysis is not based on substantial evidence because Mr. Tyler meets Listing 12.05C. pocket Ertry 1,2 at2.) The Court declines consider¿tion of theadditionalissues raiseatthistime. Hancocku.Barnhart,206F. S.tpp.2d757,763-764,n.3 flX/.D. Ya.2002) (reasoning that on lemand, the ALJ's ptiot decision has no preclusive effect, as it is vacated and the new headng is conducted de novo). 4 descdbing its subject disordet; Q) 'paragraph A criteria,' which consists of a set of medical findings; and (3) 'pangraphB criteria,'which consists of a set of impairment-reiated functional limitations." 20 C.F.R. Part 404, Subpan P, ,{.ppendix 1. Listings 12.00(4.). Both paragraph A cdteria and the par.agraph the B cdteria must be satisfied fot the ALJ to detetmine that the claimant meets the listed rmparment. Id. "Pangnph B consists of four btoad functional àre s'. (1) activities of daily living; (2) social functioning; (3) concenttation, persistence, or pace; and (4) episodes of decompensation." Id.512.00(C);Martin Adnin.,No. CV SAG-15-335,2015 WI-7295593,at*2 u. Comm'r, Sot. Set. P. Md. Nov. 18,201,5). The AIJ uses "special technique" to detetmine the claimant's degtee of ümitation in each area, based on the extent to which the claimant's impairment "interferes with fthe claimant's] ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. degree of limitation 1/. 5$5$ in the first three areas S 404.1520a(c)(2), The ALJ rates a claimant's as either: none, mild, moderate, matked, or extreme. 404.1520a(c)(4). "In order to satisfy patagraphB, a claímant must exhibit either matked limitations in two of the frst three ateas, or marked limitation in one of the ftst thtee areas with tepeated episodes of decompensation." Hodgq201,5 VlL 581.3999, at*2 (citaaons and quotations omitted); Mørtin,2015 WL 7295593, at*2. "A marked limitation may atise when sevetal activities ot functions ate impaited, ot even when only one is impaired, as long as the degree of limitation is such as to interfere seriously wrth the ability to function independently, apptopriately, effectively, and on a sustained basis." 20 C.F.R. Pt. 404, Subpt. P, App. 1 12.00(c). 5 $ Pertinent to the issues in the present case, "[t]he functional atea persistence, of 'concenÚation, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings."' 20 C.F.R. Part 404, Subpat P, Appendix 1. Listings 12.00(C)(3); Hodgq2015 WL 5813999, at*2. "V-]imitations in concentation, persistence, and pace found at step three must be accounted for in the RFC assessment." Ta/or u. Coluin, No. 1:14CV629,2015 \fL 4726906, at *6 (À,{.D.N.C.,{.ug. 10, 201,5). The Foutth Circuit recently issued a published decision, Ma¡cio u. Coluin,780 F.3d 632 (4th Cir. 201,5), that specifically tesolves the issue Plaintiff taises. In Mascio, the Fourth Citcuit ordered a remand because the hypothetical the ALJ posed to the RFC assess¡¡s¡¡-did not include ^ny VE-and the coresponding meîtlrl ümitations other than unskilled work,3 despite the fact that, at step three of the sequential evaluation, the ALJ determined that the claimant had moderate diffÌculties in maintaining concentration, persistence, or pace. Id. at 637 -38. The Fourth Circuit specifically held that it "agteefs] with othet citcuits that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restricting the hypothetrcal question to simple, routine tasks or unskilled work." Id. at 638 (citation omitted). The Fourth Circuit emphasized the distinction betrveen the ability to perform simple tasks and the ability to stay on task, stating that "[o]nly the latter limitation would account for a the A,LJ posed to the VE, in Ma¡do did not actually limit the claimant to unskilled work, and thus did not match the ALJ's RFC assessment. However, the VE indicated that all of the jobs cited in response to the hypothetical involved "unskilled work" such that, in effect, the hypothetical matched the ALJ's RFC assessment. Mascio,780 F.3d at 637-38. 'The hypothetical 6 claimant's limitation in concentration, persistence , or pace." 1/. Although the Foutth Circuit noted that the ALJ's error might have been cured by an explanation as to why the claimant's moderate difficulties in concentration, petsistence, or pace did not translate into a limitation in the claimant's RFC, absent the explanatlon, temand was necessary. Id. Plaintiff correctly asserts that the ALJ did not follow these procedures. "The ALJ failed to ccount for f^ctot when detetmining fPlaintiffs] [RtrC]." Id. at 638. The ALJ a relevalnt failed to consider Plaintiffs mental limitations despite fìnding at step three that Plaintiff had moderate difficulties in maintaining his concentration, persistence, or pace. (Tr. 34-35.) !íith respect to his I{FC analysis of PlaintifPs nonexertional limitations, the ALJ merely states that Plaintiff should be limited to "unskilled" wotk "with no teading or wdting." (Tr. Consequently, this case is 36.) somewhat distinct from Mascio, which did not include these additional limitations. The question then becomes whethet these distinctions are significant such that these additional limitations watrant a different outcome than Mascio. The additional limitations in Plaintiffs RFC limiting him to work that does not involve reading or wdting fails to account for his moderate limitations in concenttation, petsistence, or pace. Limits pertaining to reading or writing do not account for Plaintiffs inability "to to permit the timely and of tasks commonly found in work settings." 20 C.F.R. Part 404, sustain focused attention and concentration sufficiently long appropriate completion Subpart P, Appendix 1. Listings 12.00(C)Q); Mavio, 780 F.3d ^t 638 ("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 concentation, persisterlce, or pace."). 7 Defendant contends that the ALJ did not ignore Plaintiffls concentration, persistence, or pce. (Docket ,A,LJ's E.rry 1,5 moderate limitation in at1,9.) Defendant argues that in the RFC analysis he stated that Plaintiffs bordetline intelligence "precluded the performance of complex tasks or othet higher cognitive functioning." Cft. 38.) Defendant further sserts that "the ,\LJ noted that there was no evidence of significant limitations on Plaintiffs fto] ability understand, Ç try out, and temembet simple insttuctions, make simple work-related decisions, deal with changes in a routine setting, and respond appropdately to supervisors, co-workers, and usual work settings." (Docket Etttry 1,5 at 19) (Citing Tr. 38.) However, the r{,LJ's analysis is based on limitations with respect to the complexity of the work, and not based on Plaintiffs ability to stay on task. Marcio,780 þ-.3d at 638; Straaghn u. Coluin, No. 1:14CV200, 201,5 WI- 441.4275, at x4 n,5 (À4.D.N.C. July 20, 201,5) (reasoning the ALJ "did not address how the RFC's limitation to 'simple, routine' tasks addtessed his fìnding of 'mild limitations with concentration, petsistence ot pace.' Thus, it appeats that the A.LJ's decision may also run afoul of the recent decision in Mavio") (citation and quotation omitted); Salmon u. Coluiru., No. 1:12CV1,209,2015 ìøL 1,526020, at x3 (44.D.N.C. Apr.2,2015) (finding that "the Fourth Circuit made clear that an ALJ does not account for a claimant's limitations in concentration, persistence, and pace by restdcting the hypothetical question to simple, routine, tashs or unskilled work.") (citations and quotations omitted). Thus, the RFC did not account for Plaintiffs moderate limitations in concenttation, petsistence, or pace. Moreover, the A{ did not explain why he did not ccount for Plaintiffls limitations in concentration, persistence, or pace in his RFC. 8 "fl]h. Fouth Circuit noted the possibility that an ÄLJ could offer an explanation regatding why a claimant's moderate limitation in or concentration, persistence, pace, àt step three did not ttanslate into a limitation in the claimant's RFC assessment, such that the apparent discrepancy would not constitute teversible effor." Mavio,780 F.3d at 638; Martin u. Clmm'r, Soc. Sec. Admin,, No. CV SAG-15-33 5, 2015 WL7295593, at *3 (D. Md. Nov. 1"8,201,5); Powellu. Clmm'r, 1,4-3233,2015 !ØL 4715280, Soc. Sec. Admin., No. CIV. SAG- Md. Aug. 6,201,5) (reasoning that "modetate diffìculties ^tx2 Q. in concentration, persistence, or pce now ttiggers a heightened degree of explanation that tequires the revierving court to determine whether an ALJ has adequately accounted for those difficulties in assessing the claimant's RFC"). "The key is that the reviewing Court must be able to discern the rationale under\'ing the pparent disctepancy" between the findings at step three and the RFC. Powe//,2015 \&T. 4715280, at*2. Here, the Court is left to guess why Plaintiff s limitation to unskilled work is suffìcient to addtess his moderate limitations in concentration, persistence, or pace. At step three the ALJ states that he had given some weight to the opinions of State agency psychological consultants Dr. Glover and Dr. Edmunds fìnding that Plaintiff had modetate difficulties in maintaining concentfation, persistence, or pace. flr. 3a.) Later. in his step three analysis the LJ states that he "concurfred] with Dr. Edmunds' fìnding that the claimant has modetate difficulties" in concentration persistence ot pace. (Tr. 35.) T'he ALJ acknorvledged Dr. Btitt's opinion that PlaintifPs "ability to maintain concentration, persistence, and pace was such that he was verT attentive and generalll' performance would be commensurate with his IQ Level." Qd.) Next, as discussed above, the ALJ only limited Plaintiff to "unskilled" work "r.vith no 9 reading or writing required." (Ir. 36.) In his RF-C evaluation, the ALJ discusses Plaintiffs testimony that he stuggled rvith moving at a fast p^ce at wotk in the past. (1'll. 36-37.) Plaintiff also testified that his body would not let him move or think the rvay othet people do. Çr. 37.) Subsequently, the ALJ found that Plaintiffs "statements concerning the intensity, persistence and limiting effects of þis] symptoms [were] not entirely ctedible. , . :' (ld.) Next, the AIJ only gives some weight to the findings of the state gency psychological consultants. (Id.) The AIJ states that Dr. Glover found that Plaintiffs functional abilities including "getting along with coworkers or peers without distracting them . . . and carrying out velT short and simple insrructions, were not significantly limited." (Id.) The ALJ also noted that Dr. Edmundsa found that Plaintiff had moderate limitat-ions in specific functional abilities such as maintaining attention and concentrating fot extended periods of time but "most of his functional abilities such [as] understandinÉ;, remembering, and carcyins out very short and simple instructions were not significantly limited." Qd.) LastJI, the ALJ gives the most weight to the opinion of Dt, Britt. (Tr. 38.) Howevet, the ALJ only discusses findings regarding the degree of difficulty of the tasks that Plaintiff is able to f)r. Bdtt's do. Qd.) Tbe ALJ does not discuss Dr. Britt's findings concerning concentration, persistence, and pace. Moreover, there is no discussion concerning how the RFC addtesses Plaintiffs limitation in concentration, persistence, or pace, nor did the ALJ explain how the limitations do not need tobeaccountedforintheRFC. TriciaBolet,u. Conm'rofSoc.Sec.Adnin.,No. 1:14CY762,2016 The ALJ refers to a "Dr Edwards" at least twice in his decision. The Court ssumes that the ALJ is referring to Dr. GloriaJ. Edmunds because the ALJ cites Exhibit 18F which is Dr. Edmunds' + opinion. (It. 280.) 10 WL 614708, at x6 (14.D.N.C. Feb. 1,6,201.6) (concluding that "without furthet explanation, the ALJ's crediting of the state agency consultants' opinions does not provide a logical bridge, between the ALJ's conclusion that Plaintiff suffered modetate concenration deficits and the ALJ's decision that Plaintiff could perform simple tasks in the wotk place, without any further concentration-related restriction") (citations and quotations omitted); Gan:ia u. Coluin, No. 5:14-CV-00842-FL,201,6 WL 3198ó0, at *4 @,.D.N.C. Jan. 4,2016) report and renrumendation adopted, No. 5:14-CY-842-trL, because after the 201,6 WI- 31.1,280 (E.D.N.C. Jan. 25,2016) (remanding the case ALJ found that the claimant had moderate difficulties in concentration, persistence, or pace he did not ccount fot the limitation in the RFC, he failed to explain how the RFC determination reflected the claimants limitations in concentration, persistence, and pace, or why moderate limitations claimants ability to in concentration, petsistence, and pace did not impact the worþ. In sum, on remand the Commissioner should conduct a proper analysis of Plaintiffs limitations in concentration, petsistence, or pace in light of the ptinciples atticulated in Mascio. The Court expresses no opinion regarding whether Plaintiff is ultimately disabled undet the ,{.ct and the Court declines consideration of the additional issues taised at this ttme. Hancock, 206 tr. Srrpp. 2d at763-764, n.3 (reasoning that on remand, the ALJ's prior decision has no preclusive effect, as it is vacated and the new hearing is conducted de novo). V. CONCLUSION IT IS THEREFORE RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED 11 to the Commissioner undet sentence four of 42 U.S.C. $ a05(g). RECOMMENDED that the Commissioner IT IS FURTHER be directed to remand the matter to the ALJ fot to this extent, IT IS further proceedings consistent with this order. Consequently, FURTHER RECOMMENDED that Defendant's Motion fot Judgment on the Pleadings pocket Errtty 14) be DENIBD, and Plainuffs Motion for Judgment on the Pleadings (Docket E.rtry 11) be GRANTED to the extent remand is requested. RECOMMENDBD that, to the extent that Plaintiff his tequest be IT IS FURTHER seeks an immediate award DENIED. This 29th day of Febnary,201.6 ter United States Magisüate Judge J T2 of benefits,

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.