HYATT v. COLVIN, No. 1:2015cv00750 - Document 14 (M.D.N.C. 2016)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE JOE L. WEBSTER on 8/29/2016, for the reasons stated herein, this Court RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for further administrative action as set out above. To this extent, Defendant's motion for judgment on the pleadings (Docket Entry 12 ) should be DENIED and Plaintiff's motion for judgment reversing the Commissioner (Docket Entry 10 ) should be GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, her motion should be DENIED. (Butler, Carol)
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HYATT v. COLVIN Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTFI CAROLINA W.A.ND H. HY,{'ITT, ) ) Plaintiff, ) ) ) ) ) ) ) ) V C,A,ROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 1:15CV750 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, \Wanda FI. Hyatt, seeks review of a final decision of the Commissioner of Social Security denying her claims for a Period of Disability, Disability Insurance Benefits ("DIB") and Social Security Income ("SSI"). The Court has before it the certified administrative record and cross-motions for judgment. (Docket Enuies 7, 1,0, 1,2.) For reasons discussed below, it is recommended that Plaintifls motion for judgment reversing the Commissioner (Docket Entry 10) be granted, Defendant's motion for judgmenr on the pleadings (Docket Entry 12) be denied, and that the Commissioner's decision be remanded. I. PROCEDURÁ,L HISTORY Plaintiff applied for DIB in May 25, 20'l'1'. date 201.2, alleging a disability onset date of December (ft. 234-37.) Plaintiff also applied for SSI in June 201,2, alleging an onset of December 29, 2009. Çr. 226-233.)t FIer applications were denied initially of and 1 Transcript citations refer to the sealed administrative record which was filed with Defendant's ,\nswer. (Docket Entry 7.) 1. Dockets.Justia.com upon reconsidefation. Çr 73-74, 107-08.) Thereafter, Plaintiff requested a hearing de novo befote an Administtative LawJudge and a vocational expert (",\LJ'). Çt 1,74-75) Plaintiff, her attorney, ("VE") appeared at the hearing on April '1,2014. decision was issued on ,{.ugust 8, 20"1,4, [t. 38-72.) A upholding the denial of PlaintifPs application for DIB and SSI. Çt 20-37.) On July 15, 201,5, the Appeals Council denied Plaintifls request for review of the decision, thereby making the Commissioner's fìnal decision for purposes of judicial AIJ" review. (h. determination the 'l-7 .) II. STANDARD OF REVIEW The Commissioner held that Plaintiff was not under a disabitity within the meaning the Act. of Under 42 U.5.C. $ a05G), the scope of judicial review of the Commissioner's final decision is specific and narrow. Snith u. Scltweiker, 795 F.2d 343, 345 (4th Cir. 198ó). This Court's review of that decision is limited to determining whether there is substantial evidence in the tecord to support the Commissioner's decision. 42 U.S.C. $ a05ft); Hunter u. Salliuan, 993 tr.2d 31, 34 (4th Cir. 1992); HcAr u. Sulliuan, 907 tr.2d '1453, 1,456 (4th Cir. 1990). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate tosupportaconclusion."' Hanter,gg3F.2dat34(cilngMchardsonu.Pera/es,402U.S.389,401 (1971)). "[It] 'consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance."' 1/. (quoting Law'- u. Celebre7rye, 368 tr.2d 640, 642 (4th Cir. 1,966)). The denial of benefìts will be reversed only adequate if no reasonable mind could accept the record as to support the determination. Nchardnn,4O2 U.S. at 401. T'he issue before the Court, therefore, is not whether Plaintiff is disabled, but whether the Commissioner's fìnding 2 that Plaintiff is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. ColJman u. I)owen,82g F.2d 514, 517 (4th Cir. 1987). Thus, "fa) claimant for disability benefìts bears the burden of proving a disability," Hall u. Harh,658 F.2d 260, 264 (4th Cir. 1981), and in this context, "disability" means the "'inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months U.S.C. S 423(dX1X,{) "To ,A'dministation has l.l"' Id. (quoting 42 regtlaÅze the adjudicative process, the Social Security promulgated . . . detailed regulations incorporating longstanding medical-vocatsonal evaluation policies that take into account a claimant's age, education, and work experience in addition to [the claimant's] medical co¡diaon." Id. "These regulations establish a'sequential evaluation process'to determine whether a claimant is disabled." Id. (internal citations omitted). This sequential evaluation ptocess ("SEP") has up to five steps: "The claim^nt (1) must not be engaged in 'substantial gainful activify,' i.e., curcently working; and Q) must have a 'severe' impairment that (3) meets or exceeds the 'listings' of specifìed impairments, or is to the extent that the claimant does not possess the residual otherwise incapacitatsng functional capacity ("RFC") to (4) perform [the claimant'sl past work or (5) any other work." Albright u. Comm'r 404.'1520); See, e.!., see oJ-Soa Set. Adnin.,174 tr.3d 473, 475 n.2 (4th Cir. 1999) (citing 20 C.F.R. S al¡o 20 C.F.R. S 416.920. The law concerning these fìve steps is well-established. Ma¡tro u. ApJèl,270 tr.3d 171,1,77 -1,80 (4th Cir. 2001); Ha//, 658 tr.2d at 264-65. a -) III. THE ALJ'S DISCUSSION The ALJ followed the well-established five-step sequential analysis to ascertain whether Plaintiff is disabled, which is set forth in 20 C.F.ll. Albri¿ht u. Comm'r oJ'\'oc. Sec. SS 404.1520 and 41,6.920. Adnin.,174 F.3d 473,475 n.2 (4th Cir. '1999). In rendering her disability detetmination, the ALJ made the following fìndings later adopted by Defendant: 1.. The claimant meets the insured status requirements of the Social Security ,{.ct through December 31.,2016. 2. The claimant has not engage in substantial gainful activity since December 25, 201.1, the alleged onset date Q0 CFll 404.1571, et nq., and 416.971, et Mq.). 3. The claimant has the following severe impairments: COPD; emphysema; back pain secondary to bulging disc in the lumbar spine; chronic tobacco abuse; chronic headaches; chronic upper respiratory infections; anxiety-related disorder; and affective disorder (20 CFR 404.1,520(c) and 20 CFR a16.920(c)). 4. See The claimant did not have an impairment or combination of impairments that meets ot medically equals the severity of one of the listed impairments in 20 CF'R Part 404, Subpart P, Appendix 1, (20 CFR 404.1,520(d), 40 4.'t 525, 40 4.1 526, 41, 6.9 20 (d), 41, 6.9 25 and 41, 6.9 26). 5. After careful consideration of the entire record, the undersigned fìnds that the claimant has the residual functional capacity lRtrC] ro perform lighr work as defìned in 20 CFR 404.1567(b) and 20 CFR 416.967þ) with exceptions: She must alternate between sitting and standing in thirty-minute intervals throughout the day without going off task. She can occasionally climb ramps, stairs, ladders, ropes, or scaffolds. She can 4 occasionally balance, stoop, or crouch. She must avoid concentrated exposure to extreme cold and heat. She must avoid respiratory irritants such as fumes, odots, dust, gases, and poody ventilated areas. She must avoid operational control of moving machinery and unprotected heights. She can perform simple and repetitive tasks in a low-stress environment that requires only occasional changes in the work setting, occasional decision-making, no fast production rate. She can interact appropriately with coworkers, supervisors, or the public. (Tt. 25-26, 28.) In light of the above findings regarding PlaintifPs RFC, the ALJ determined that Plaintiff was unable to perform her past work as a teacher. (Tr. 30.) Based upon PlaintifPs age, education, work experience, and her RFC, the ALJ concluded that "there were jobs that existed in significant numbers in the national economy that the claimant could have petformed." (Tr. 31(citing 20 C.F'.R. SS 404.1569, 404.1569(a), 416.969, and 41,6.969(a)). Accordingly, the ALJ concluded that Plaintiff was not disabled. [r 32.) IV. ANALYSIS In pertinent part, Plaintiff mental limitations in the contends that the ALJ failed to account for lì.FC.2 (Docket Entry 11. at 1.2-1.8.) The court PlaintifPs has considered the ,{LJ's decision as it relates to Ma¡do u. Coluin,780 F.3d 632 (4th Cir. 201,5). As explained below, because the ALJ's evaluation of Plaintiffs "moderate limitation" in concentration, persistence or pace is inadequate under Mørù0, remand is warranted. 2 Plaintiff also contends that the LJ improperly rejected the opinion Dr. Guarino. (Docket Entry 1,1 of the consultative examiner at 1.2-18.) The court declines consideration of the additional at this itme. Hant'ock u. Ba'rnhart,206 F. Supp. 2d757,763-764, n.3 flX/.D. Ya.2002) (reasoning that on temand, the LJ's prior decision has no preclusive effect, as it is vacated and the issues raised new hearing is conducted de novo). 5 As background, on March "1,8, 2015, the United States Court of Appeals for the Fourth Circuit published its opinion in Ma¡cio. In Mødo, the Fourth Circuit derermined that remand was appropriate for three distinct reasons, one of which is relevant to the analysis of this case. Specifìcally, hypothetical the ALJ posed the Fourth Circuit remanded Ma¡tio because the to the VE, and the corresponding lì.FC assessmenr, did not include arry menta'l limitations other than unskilled work, despite the fact that, at step three of the sequential evaluation, the ALJ determined that the claimant had moderate difficulties in maintaining concentration, persistence or pace. Masù0,780 F.3d The Fourth Circuit specifically held that does not account for a claimant's limitations it ^t 637 -38. "agree[s] with other circuits that an ALJ in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work." Id. at 638 (quoting Win¡chel u. Comm'r oJ'Soe Sec.,63'1. F.3d 1176, 1,130 (11th Cir. 2011)) (internal quotation marks omitted). In so holding, the Fouth Circuit emphasized the distinction between the ability to perform simple tasks and the ability to stay on task, stating that "[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. Although the Fourth Citcuit noted that the ALJ's error might have been cuted by an explanation as to why the claimant's moderate difûculties persistence in concentration, or pace did not translate into a limitation in the claimant's RFC, it held that absent such an explanation, remand was necessary. Id. Here, the ALJ found ar step two that [w]ith tegard to concentration, persistence, or pace, the claimant has moderate difficulties. f)r. Brannon noted the claimant's anxiety appeared to impair her 6 concentration and focus. However, the claimant retains sufficient concentration to perform unskilled tasks. She prepares microwaved meals, washes dishes, does laundry, and mops floors. ('ft. 27.) The RFC limited Plaintiff to "performfing] simple and repetitive tasks several nonexertional limitations, including: in a low-stress environment that requires only occasional changes in the work setting, occasional decision-making, and no fast production Íate. She can interact apptopriately with coworkers, supervisors, or the public." Çt28.) (internal citations omitted). ,tt step four the .LJ gave significant weight to the mental assessment of Dr. Lori Brandon Souther, the state agency psychological consultant.3 (Tr. 30.) Dr. Souther that Plaintiff can perfotm simple toutine repetitive tasks in a low suess setting. [r. found 1,22) Flowever, Dr. S<¡uther also concluded that Plaintiff is moderately limited in the following areas related to concentration, persistence of pace: [t]he ability to c^tty out detailed instructions . . [t]he ability to maintain attention and concentration for extended periods . . . [t]he ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary limits . . . [t]he ability to work in coordinarion with or in proximity to others without being distracted by them . . . [and] [t]he abiliry to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Çr.1,21.) The ALJts determination that Dr. Souther's opinion should be accorded significant weight is problematic because the ALJ failed to address Dr. Souther's conclusion that ¡ The ALJ does not reference Dr. Souther by name but cites to her assessment in the administative record. ('IÍ. 30.) 7 Plaintiff had moderate diffìculties maintaining attention and concentration. Coluin, No. 1:14CV00143, 2016wL 1,367745, at Comþare Greer a. *8 (M.|).N.C. ,{pr. 6, 201,6) (unpublished) (finding that giving signifìcant weight to the state agency consultant did not address the ALJ's failure to account for plaintiffls moderate difficulties in concentration, persistence and pace because although "the state agency psychological consultantfi opin[ed] that 'Plaintiff was capable of performing simple tasks,' that same consultant noted that Plainti ff 'may have some difficulty maintaining attention and concentration"') (internal citations omitted) with ll/ilker¡on u. Coluin, No. 1:15Cv00944, 2016 wL 326431'1, at x5 (M.D.N.C. June 14, 201,6) (finding the ,tLJ's reliance on the state agency consultant's determination was sufficient because the consultant concluded "that, despite moderate limitation in lconcentration, persistence or pacel, Plaintiff could maintain attention concentration for at least two hours at a time as tequired for the perfotmance of simple tasks") (unpublished) (internal citations and quotations omitted); O'Brien u. Coluin, No. 1:15CV00536, 2016WL 2755459, ar *6 (N4.D.N.C. May 1'1,20'1,6) (finding that "the ALJ sufficiently explained why the mental restrictions in the lìFC adequately accounted for PlaintifPs moderate limitation in [concentration, persisrence or pace]" by giving significant weight to a psychologist's opinion fìnding that the plaintiff could sustain adequate concenration, persistence or pace throughout the extended \X/hile the ALJ explained that Plainti ff canmaintain concentration to perform unskilled rasks, such afl explanation does not address Plaintiffs inability concentration for extendecl periods of WL 323838, at x9 (E.D. Ya. time. day). See I-.owe u. Coluin, to maintain attention and No. 3:15CV230 }AG),201.6 Jan. 5,201,6), reþort and retvmmendation adoþted, No. 3:15CV230 8 $AG), 201,6 WL task accounts individual to 32551,6 (E.D. Ya. Jan. fot a limitation in simple tasks or 26,2016)("Only a limitation on the abitity to stay on concentration, persistence or pace. Restricting the unskilled work does not.") (internal citation omitted). Similady, limiting Plaintiff to no fast production rate does not account for the ability to stay on task.a Thus, the hypothetical question posed to the VE that reflected the erroneous RFC did not account for Plaintiffs inability to stay on tasks. Moreover, the A,LJ does not provide an explanation as to why Plaintiffls diffìculties in maintaining attention and concentation do not translate into a limitation in the RF'C. "The key is that the reviewing Court must be able to discern the rationale undedying the apparent discrepancy" between the findings at step three and the Admin., No. CIV. SAG-1,4-3233, 2015 WL 471.5280, RFC. Powell u. Cumm'r, Soc. Set. at x2 Q). Md. Arg. 6, 201,5) (unpublished). The ,tLJ's discussion with regards to concentration, persistence or pace is a Since the Fourth Circuit's ruling in Masdo, the North Carolina district courts have, on numerous occasions, found that limiting the claimant to non-fast pace production does not account for moderate limitations in a claimant's ability to maintain concentration, persistence or pace. See, e,g., Cønnings u. Coluin, No. L14CV465,201,6WL792433, at+4 (M.D.N.C. Feb.26,2016) (finding that limiting the plaintiff to simple, routine, repetitive tasks in a low stress, nonproduction environment did not "adequately account for her moderate limitation in concentration, persistence, or pace "); Suugs a. Coluin, No. 3:14-cv-00466-MOC, 201,5 WL 2250890, zt 85 flX/.D.N.C, May '1,3, 201,5) (finding th^t ability to perform simple, routine, repetitive tasks in a nonproduction environment, ^î does not address moderate diffìculties in concentration, persistence and pace); R41nor u. Coluin,No. 5:14-CY-271-8O,2015 \)ØL 1,548996,at+2 (E.D.N,C..A,pr. 7,201,5) (concluding that limiting the claimant to no fast-paced production, did not constitute limitations related to concentration and persistence when in fact the record indicated limitations in the plaintifFs ability to maintain attention and concenttation for extended periods of time); Hagerdorn u. Coluin, No.2:12-cv-29-RLV,2015 ì7L 441,0288, at 84 flX/.D.N.C. July 20, 201,5) (finding that limitations to simple, routine, and repetitive tasks in a low-production, low-stress work setting, defined as occasional change in job setting or decision making, only accounted fot claimant's ability to understand, cary out, and remember instructions, respond appropriately to work situations, and deal with changes in a routine work setting, and did not address his moderate limitations in concentration). 9 limited. .{s noted above, the ,\LJ reasoned that that "fPlaintiffs] anxiety appeared to impair her concenttation and focus," nofwithstanding her ability to "retainfl sufficient concentration to perform unskilled tasks." [t27.) 'l'he ALJ also gave pafisa| weight to the opinion of Dr. Brannon who opined that Plaintiff could "understand, retain, and carry out simple instructions but . . . her psychological symptoms impaired her concentration." [r. 30.) However, these statements only address the complexity o[work Plaintiff is able to do rather than her inability to sray on rask. Matio,780 F.3d ^t 638. T'he ALJ's only statement that arguably concerns Plaintiffs ability to stay on task is the ALJ's acknowledgment that Plaintiffs lack of concentration causes problems such remembering why she enteted the kitchen. Qr 28) 'f'his as statement only reinforces the opinions of , both state agency psychologists who found that Plaintiff had difficulty maintaining attention and concentration for extended periods 1,367745, at +8; Bo1et, u. Comm'r oJ'Soc. Sec. Adnin, of time. Greer, 2016 UtT, No. 1,:'t4CY762,201.6 WL 61,4708, at x6 (À4.D.N.C. Feb. 16, 201,6) (concluding that "without futther explanation, the ALJ's crediting of the state agency consultants' opinions does not provide a logical bridge, between the AU" conclusion that Plaintiff suffered moderate concentration defìcits and the ALJ's decision that Plaintiff could perform simple tasks in the work place, without any further concentration-related restriction") (unpublished) (citations and quotations omitted); I-owe, 201,6 WL 323838, at *9; Gania x4 (E.D.N.C. Jan. 4,201,6) 31,1280 u. Coluin, see also No. 5:14-CV-00842-F'L, 201,617L 319860, at report and recvnmendation adoþted, No. 5:14-CV-842-FL, 2016 WL (E.D.N.C. Jan. 25,2016) (concluding that although the ALJ found that the claimant 10 had moderate diffìculties in concenttation, persistence or pace he did not account for the limitation in the llFC, and he failed to explain how the RFC determination reflected the claimant's limitations in concentration, persistence or pace, or why moderate limitations in concenttation, persistence or pace did not impact the claimant's abiliry to work). Equally concerning is the ALJ's failure to weigh the other state agency psychological consultant's mental assessments. Dr. Betry B. Aldridge found that Plaintiff had moderare difficulties in concentration, persistence or pace but still had the ability short and simple instructions. (fr. to catty out very 86, 102.) Dr. ,{ldridge also concluded that Plaintiff "would have some difficulty maintaining attention and concentration, but should be able to [concentrate] for 2 hours." Qt 86, 1,02.) Unlike Dr. Aldridge's opinion, Dr. does not attempt to account for the length Souther of time Plaintiff can maintain concentration and attention. 'fhe ,{LJ did not err by giving substantial weight to Dr. Souther's opinion, but the ALJ was still obligated to address Plaintiffls inability to concentrate for an extended period of time. Masdo u. Coluin,780 F.3d at 638. The court is left to guess whether ALJ meant to ctedit Dr. Aldridge's assessment as opposed to Dr. Souther's the assessment. The ,{.LJ's decision cleady indicates that she cited to Dr. Souther's opinion notwithstanding the fact that Dr. ,\ldridge attempted to address Plaintiffls inability ro concentrate for extended periods of time. (Ir. 30.) In any event, it is clear that at least one of the psychologists' assessments was not weighed. Consequently, the court concludes that remand is proper so that the ALJ may build a logical bridge between the evidence of record and her conclusions. Ma*i0,780 F.3d 1.1 ^t 638 ("Perhaps the ,A'LJ can explain why Mascio's moderate limitation persistence, in concentration, or pace at step three does not translate into a limitation in Mascio's functional capacity . . . þ]"t because the residual LJ here gave no explanation, a remand is in order.") In sum, "once an ALJ has made a step three fìnding that a claimant suffers from moderate limitations in concentration, coresponding limitation persistence, or pace, the ALJ must either include in her RFC assessment, or explain why no such limitation a is necessary." Pulliam, 2016 WL 843307, at *6 (citation omitted). In the presenr case, the ALJ did not adequately do analysis so. On remand, the Commissioner of Plaintiffs Lmitations in concentration, persistence should conduct a proper or pace in light of the principles articulated in Mø¡ù0. The Court expresses no opinion regarding whether Plaintiff is ultimately disabled under the .A,ct and the Court declines consideration of the additional issues raised by Plaintiff at this time. Flantvck, 206 F. S.tpp. 2d at 763-764 n.3 (on remand, the ,{,LJ's prior decision has no preclusive effect, as conducted it is vacated and the new hearing is de nouo). V. CONCLUSION For the reasons stated herein, this Court RECOMMENDS that the Commissioner's decision fìnding no disability b. REVERSED, Commissioner under sentence four and the matter be REMANDED ro rhe of 42 U.S.C. $ a05G). The Commissioner should be directed to remand the mattet to the .,{LJ for further administrative action as set out above. To this extent, Defendant's motion for judgment on the pleadings (Docket Entry 12) should '1,2 be DENIED and Plaintiffs motion for judgment reversing the Commissioner (Docket Etrtty 10) should be GRANTED. To the extent that Plaintiffs motion seeks an immediate award of benefits, her motion should be DENIED. oe Webster United States Magisuate Judge August 29,201,6 Durham, North Carcltna 13
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