Opinion
No. 5:19-CV-00384-FL
06-18-2020
Kellie Sharp, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Kellie Sharp challenges Administrative Law Judge ("ALJ") Wanda L. Wright's denial of her application for social security income. Sharp claims that ALJ Wright erred in (1) evaluating the opinion evidence and (2) determining her residual functional capacity ("RFC"). Both Sharp and Defendant Andrew Saul, Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 22, 24.
After reviewing the parties' arguments, the court has determined that ALJ Wright erred in her determination. ALJ Wright's consideration of the medical evidence is inconsistent. Because of that error, the undersigned cannot determine whether substantial evidence supports her RFC determination. The undersigned magistrate judge thus recommends that the court grant Sharp's motion, deny the Commissioner's motion, and remand the matter to the Commissioner for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In October 2012, Sharp applied for disability benefits and supplemental security income. In both applications, she alleged a disability that began in October 2010. After the Social Security Administration denied her claim at the initial level and upon reconsideration, Sharp appeared before ALJ Wright for a hearing to determine whether she was entitled to benefits. ALJ Wright determined Sharp had no right to benefits because she was not disabled. Tr. at 24-48.
After the Appeals Council denied Sharp's request for reconsideration, she filed a complaint with this court. See Sharp v. Berryhill, No. 5:16-CV-00698-FL (E.D.N.C.). The court remanded the matter to the Commissioner for further consideration. See D.E. 23, No. 5:16-CV-00698-FL (E.D.N.C. June 23, 2017).
ALJ Wright held another hearing in March 2018. ALJ Wright determined Sharp had no right to benefits because she was not disabled. Tr. at 958-90.
ALJ Wright found that Sharp had the following severe impairments: degenerative disc disease, asthma, diabetes, obesity, depression, anxiety, post-traumatic stress disorder ("PTSD"), pain associated with physical and psychological disorders, and a history of seizure disorder, lupus, pulmonary embolism, tachycardia, and migraines. Tr. at 960. ALJ Wright also found that Sharp's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 961.
ALJ Wright then determined that Sharp had the RFC to perform light work with other limitations. Tr. at 964. She can occasionally climb ramps and stairs but cannot climb ladders, ropes, or scaffolds. Id. Sharp can occasionally balance, stoop, kneel, crouch, or crawl. Id. She requires a sit/stand option at 30-minute intervals throughout the workday. Id.
Sharp should avoid concentrated exposure to moving machinery, hazardous machinery, and moving, mechanical parts. Id. She should not operate a motor vehicle. Id. Sharp must also avoid concentrated exposure to excessive noise and pulmonary irritants such as fumes, odors, dust, gases, and poorly ventilated areas. Id.
Sharp can understand, remember, and carry out simple instructions, which is defined to mean activity consistent with a reasoning level of two or three in the Dictionary of Occupational Titles. Id. She can sustain concentration, attention, and pace sufficient enough to carry out simple instructions in two-hour intervals over the course of an eight-hour workday. Id. Sharp can work in proximity to, but not in coordination with, coworkers and supervisors. Id. And she can have superficial contact with the public. Id.
ALJ Wright concluded that Sharp could not perform her past relevant work as a registered nurse. Tr. at 958. But considering her age, education, work experience, and RFC, ALJ Wright found that jobs existed in significant numbers in the national economy that Sharp could perform. Tr. at 39-40. These jobs include routing clerk, office helper, and photocopy machine operator. Tr. at 989. Thus, ALJ Wright found that Sharp was not disabled. Tr. at 990.
After unsuccessfully seeking review by the Appeals Council, Sharp commenced this action in September 2019. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Sharp v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
The medical record is detailed in the relevant sections below.
In 2010, Sharp suffered a work-injury and developed left-sided lower back pain that radiated into her lower left extremity. Tr. at 65, 456-87, 492-540, 612-20, 651-91, 793, 795, 910- 11. Although she received pain medications, physical therapy, and steroid injections, her pain persisted. Id.
Dr. C. Thomas Gualtieri, a neuropsychologist, noted Sharp's chronic joint pain, pulmonary embolisms, and other impairments. Tr. at 695-702. He remarked that Sharp's anxiety and depression fell into the severe range on several tests, and she had impaired attention. Id. Neurocognitive testing also showed deficits in memory, response time, and processing speed. Id. Dr. Gualtieri concluded that Sharp's pain, anxiety, and depression likely attributed to her test performance. Id.
Dr. John Bruno, an independent medical examiner, evaluated Sharp in March 2014. He concluded that her January 2013 decompressive hemilaminectomy surgery did not succeed. Tr. at 703-07. He noted that Sharp continued to have a significant amount of impairment. Tr. at 805.
Sharp continued to report back and leg pain, despite treatment with medications and physical therapy. Tr. at 708-18, 730-36, 747-81, 790, 793-805, 423-47, 878, 882, 887, 920, 2123-26, 2221-22.
Wendy Munn, P.T, completed a Functional Capacity Evaluation ("FCE") in August 2013. Tr. at 852-53. It found that Sharp could occasionally sit, stand, walk. Id. She could lift 10 pounds with two hands, lift 12 pounds from waist to eye level, and lift four pounds from the floor to waist level. Id. Based on these findings, and an examination, Trudy Koslow, M.Ed., a vocational rehabilitation counselor, determined that Sharp could not attain gainful employment because of significant physical restrictions. Tr. at 367.
D. Opinion Evidence
Sharp asserts that ALJ Wright erred in evaluating the opinion evidence. The Commissioner contends that ALJ Wright properly explained the weight she gave to the various opinions. The undersigned finds ALJ Wright's consideration of this evidence is inconsistent.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight, but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, deserve no special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
"In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted). But "[i]n some cases, the failure of an ALJ to explicitly state the weight given to a medical opinion constitutes harmless error, so long as the weight given to the opinion is discernible from the decision and any grounds for discounting it are reasonably articulated." Bryant v. Colvin, No. 5:11-CV-648-D, 2013 WL 3455736, at *5 (E.D.N.C. July 9, 2013) (internal quotation marks and citations omitted).
1. Dr. Miller
Sharp contends that ALJ Wright erred in according significant weight to Dr. Miller's August 2013 opinion that she was permanently limited to light work. Dr. Miller based his assessment on the FCE, which received limited weight. The Commissioner argues that ALJ Wright explained the weight she assigned to the FCE, so any error in evaluating Dr. Miller's opinion is harmless and would not change the outcome of the disability decision. The undersigned cannot agree with the Commissioner's position nor find that substantial evidence supports her evaluation of this medical opinion.
The FCE determined that Sharp could occasionally sit, stand, and walk, and lift or carry up to ten pounds using both hands. But the RFC determined that Sharp could sit, stand, or walk up to six hours in an eight-hour workday. The Regulations define "occasional" exertion as occurring up to one-third of the workday. So, under that definition, the FCE allowed Sharp to sit, stand, or walk about 2.65 hours in an eight-hour workday. Similarly, the RFC's capacity for lifting and carrying—frequently ten pounds and occasionally up to 20 pounds—exceeds the amount permitted by the FCE. Thus, assigning substantial weight to Dr. Miller's opinion, but adopting conclusions that conflict with the underlying findings, is inconsistent.
In preparing the FCE, the physical therapist who examined Sharp noted her decreased muscle strength, flexation, and range of motion. And the physical therapist remarked that Sharp frequently adjusted her standing and sitting positions.
In assigning less weight to the FCE, ALJ Wright noted that Sharp's condition had improved following surgery. But Sharp disputes a finding that her condition improved following surgery. ALJ Wright noted Sharp's generally normal examination findings, but there is also evidence to the contrary. Providers increased Sharp's pain medications following surgery. Even three years after her surgery, providers continued to prescribe pain medication to her. Although other modalities, like a TENS unit and Sterapred Dosepak, provided some relief, Sharp contends that they did not eliminate her symptoms to allow her to engage in light work on a continuing basis. And, as discussed below, other providers did not find her condition improved, and Dr. Bruno remarked that her surgery was a failure.
It is not the court's province to reweigh conflicting evidence. See Johnson, 434 F.3d at 653 (reviewing court should not seek to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ). But ALJ Wright did not explain the conflict between the evidence of Sharp's status following surgery. So to cite Sharp's post-surgical improvement, an uncertain finding, as support for Dr. Miller's opinion that she can perform light work, is tenuous at best and undermines the substantial weight she afforded to it.
Sharp also observes that Dr. Miller's assessment considered only her back impairment, and not her other severe impairments. For this same reason, ALJ Wright assigned limited weight to Dr. Miller's May 2013 opinion that Sharp could return to her previous work at a light exertional level, with no prolonged standing and lifting limited to ten pounds. The undersigned agrees that ALJ Wright's reasoning is inconsistent when she accorded limited weight to Dr. Miller's May 2013 finding that she could return to her previous work with restrictions, because the finding did not consider all of Sharp's conditions, including her mental impairments, but found the same factor was not an obstacle to assigning substantial weight to Dr. Miller's August 2013 assessment that Sharp could perform light work.
In sum, the reasoning behind ALJ Wright's consideration of Dr. Miller's opinions is contradictory. So the undersigned cannot find that substantial evidence supports her assessment of this medical provider's opinions. Thus, remanding the matter to the Commissioner for further consideration of the medical opinion evidence is warranted.
2. Dr. Bruno
Sharp argues that ALJ Wright erred in evaluating Dr. Bruno's July 2014 assessment, which she accorded partial weight. Tr. at 987-88. Dr. Bruno conducted an Independent Medical Examination ("IME") for Sharp's workers compensation claim. Dr. Bruno's examination found that she had a limited range of motion and positive results on straight leg raise tests. Dr. Bruno noted that Sharp had constant back pain radiating into her leg, and he opined that her January 2013 surgery failed. He determined she could not perform her previous job.
In assigning partial weight to Dr. Bruno's opinion, ALJ Wright noted that he was not a treating physician. She also remarked that Dr. Bruno's assessment conflicted with Dr. Donald Hope's findings and the medical record, which showed that Sharp's condition improved after surgery. ALJ Wright also remarked that Dr. Bruno's statement that Sharp has a significant amount of impairment was vague.
But, as noted above, the record does not clearly establish an improvement in Sharp's condition following her January 2013 back surgery. Although he found her condition less severe and speculated there may be symptom magnification, Dr. Hope noted Sharp's reports of pain and weakness, and experiencing falls, following her surgery. Tr. at 920. Dr. Hope also opined that Sharp was not a good candidate for surgical intervention and surgery would not likely have "sustained a reasonably successful outcome." Tr. at 923. So it appears that Dr. Hope's opinion, which ALJ Wright gave limited weight, partially supports Dr. Bruno's findings.
Dr. Bruno statement that "the [imaging] films and everything looked wonderful," does not undermine his finding that Sharp's pain continued because, he explained, back fusion surgery is often unsuccessful. Tr. at 426. And while ALJ Wright found Dr Bruno's assessment imprecise, he remarked that he was not asked to assess specific functional limitations. Tr. at 429. But Dr. Bruno would assign limitations on sitting, standing, lifting, and postural movements to someone with Sharp's symptoms and findings. Id. So several of Dr. Bruno's statements were not taken in the context he offered them and thus provide little justification for the weight assigned to his opinion.
The undersigned finds that the record does not support ALJ Wright's reasons to assign limited weight to Dr. Bruno's opinion. While the court will not reweigh the evidence, the ALJ must provide sound reasons explaining her consideration of the medical opinions. Here, the undersigned cannot agree with several of her proffered justifications to accord limited weight to Dr. Bruno's assessment. So additional consideration of Dr. Bruno's opinion is warranted.
3. Vocational Counselor
Sharp also challenges ALJ Wright's consideration of Koslow's assessment. In April 2014, this rehabilitation counselor found that Sharp could not work because she had significant restrictions and could not perform the tasks of her last position. ALJ Wright gave this opinion minimal weight, finding that it was vague, offered no specific functional limitations, and provided no supporting rationale. Tr. at 987.
In reaching her findings, Koslow reviewed the medical records and met with Sharp. The record noted providers' conclusions that Sharp could not work, side effects from medications precluded certain activities like driving, and she needed to alternate positions frequently. Koslow noted that Sharp moved around a lot, and estimated she could stand for 15 minutes, walk 10-15 minutes without assistance, and sit for 20-30 minutes. These findings align with the FCE. And the assessment not only offers specific restrictions, but Koslow's 18-page report provides the rationale underlying her findings.
Although vagueness may offer a valid basis to assign less weight to an opinion, the undersigned cannot agree that Koslow's opinion is entirely ambiguous. The report sets forth the "significant physical restrictions" Sharp has, including difficulty with household chores and personal care, as well as limitations in sitting, standing, walking, bending, and carrying. So this proffered reasons to accord Koslow's assessment only minimal weight is not borne out by the record.
ALJ Wright noted that Koslow's deposition testimony was uncompelling because she did not know or could not remember certain records to support her opinion. Tr. at 987. The undersigned cannot agree with ALJ Wright's characterization of Koslow's testimony.
Koslow testified that she drew her conclusions from her own observations of Sharp, physician's reports, Sharp's statements to providers about her symptoms, and the FCE. Tr. at 386. When asked if providers said Sharp could not or should not work, Koslow stated she was unsure but believed the difference was immaterial. Tr. at 386-87. And given the many records she reviewed, it does not seem unreasonable that, without examining them again, Koslow could not recall which specific records reflected Sharp could not work or should not work. Tr. at 387. Koslow also remarked that each case she reviews is unique, even if the people have similar impairments such as back issues. Tr. at 387. Koslow noted that, in her experience with such cases, few had been able to obtain competitive employment. Id. So, when viewed in their context, these portions of Koslow's testimony do not appear to be unequivocal or unreliable as ALJ Wright found.
But the undersigned can find no error in ALJ Wright's assessment of Koslow's conclusion that Sharp could not obtain gainful employment. Tr. at 987. This determination deserved no special consideration as it is an issue reserved to the Commissioner.
In sum, except for her finding that Sharp could not work, ALJ Wright's reasons to accord Koslow's assessment limited weight lack support in the record. So remand for further consideration of this opinion evidence is appropriate.
E. Residual Functional Capacity
Sharp maintains that the RFC is flawed because ALJ Wright failed to explain her finding about Sharp's limitation in maintaining concentration, persistence, or pace. Sharp also contends that the record does not support ALJ Wright's finding that she could perform unskilled work. The Commissioner argues that ALJ Wright properly explained her finding regarding Sharp's mental restrictions and crafted the RFC to account for those limitations. He also claims that the record supports a finding that Sharp is capable of unskilled work.
The undersigned finds that ALJ Wright's RFC accounted for Sharp's mental limitations, and there is evidence supporting her determination that Sharp can do unskilled work. But given the errors in evaluating the opinion evidence, more review may impact the RFC determination. So the undersigned finds that remand is warranted for further consideration of Sharp's RFC.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
The ALJ must provide "findings and determinations sufficiently articulated to permit meaningful judicial review." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination "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) (quoting SSR 96-8p). Furthermore, "[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence." Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Fourth Circuit precedent "makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 F. App'x 750, 755 (4th Cir. 2015).
In Mascio, the Fourth Circuit found that a limitation to simple, routine tasks or unskilled work may fail to address a moderate limitation in concentration, persistence, or pace. 780 F.3d at 638. The Fourth Circuit "agree[d] with other circuits 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" because "the ability to perform simple tasks differs from the ability to stay on task." Id. (quotation omitted). Because the ALJ failed to explain why the plaintiff's "moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in [plaintiff's] residual functional capacity," the Fourth Circuit remanded Mascio. Id. Although an ALJ's findings at step three may not require any additional limitations for concentration, persistence, or pace in the RFC, the ALJ must at least provide a sufficient explanation in the decision to allow the court to conduct meaningful review of the RFC determination. See Scruggs v. Colvin, No. 3:14-CV-466-MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015); Reinhardt v. Colvin, No. 3:14-CV-00488-MOC, 2015 WL 1756480, at *3 (W.D.N.C. Apr. 17, 2015).
1. Concentration, Persistence, or Pace
At step three, ALJ Wright found that Sharp's mental impairments caused moderate limitations in concentrating, persisting, or maintaining pace. Tr. at 963. In reaching this finding, ALJ Wright observed that state agency consultants found Sharp was mildly limited in concentration, persistence, or pace. Tr. at 986. ALJ Wright gave significant weight to their opinions generally. Id. She agreed that Sharp could perform simple tasks, adapt to minor workplace changes, and have limited interactions. Id. But under the revised Paragraph B criteria, ALJ Wright concluded that Sharp had moderate limitations in concentration, persistence, or pace. Id. She noted that her determination followed Dr. Gualtieri's finding about Sharp's impaired attention. Tr. at 986-97.
The RFC limited Sharp to understanding, remembering, and carrying out simple instructions and sustaining concentration, attention, and pace sufficient enough to carry out simple instructions in two-hour intervals. Tr. at 964.
The Commissioner asserts that the mental limitations in the RFC distinguish this case from Mascio. But the assessed restriction may still be insufficient to distinguish the RFC from Mascio's holding. See, e.g., Capps v. Berryhill, No. 17-CV-2438, 2018 WL 4616018, at *6 (D. Md. Sept. 26, 2018) (RFC limitation restricting claimant to work that involved carrying out simple tasks in two-hour increments did not comply with Mascio). But see Owens v. Comm'r, Soc. Sec. Admin., No. SAG-14-3692, 2015 WL 5052688, at *4 (D. Md. Aug. 24, 2015) (distinguishing Mascio because claimant's moderate limitations in concentration, persistence, or pace were specifically addressed by the finding that he can perform simple tasks in two-hour increments).
The court need not decide whether the added restrictions follow Mascio's holding and adequately account for Sharp's moderate difficulties in concentration, persistence, and pace. Instead, there is a basis for remand where the RFC analysis neglects to explain how the mental limitations account for deficits in this functional area.
ALJ Wright failed to explain how simple instructions performed in two-hour intervals addressed Sharp's moderate limitations in concentration, persistence, or pace. Lacking a "logical bridge" from the evidence in the administrative record to her specific finding on Sharp's moderate limitations in concentration, persistence, or pace, the undersigned cannot find that substantial evidence supports the RFC determination. So this issue establishes a basis for remand.
2. Unskilled Work
Sharp also argues that the RFC wrongly concluded she could perform unskilled work. She asserts that her impaired memory and concentration, documented in the medical record, preclude the demands of unskilled work. The Commissioner contends that there is substantial evidence supporting a finding that Sharp is capable of unskilled work. The undersigned finds that the record supports ALJ Wright's determination. But because remand requires further evaluation of the evidence, which may impact the RFC determination, this issue requires additional consideration.
"Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time ... and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed." 20 C.F.R. § 416.968(a). The Fourth Circuit has found that Reasoning Level two jobs are compatible with an RFC of "simple, routine, repetitive tasks of unskilled work[.]" Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. Oct. 24, 2019).
The jobs identified by the VE identified jobs at step five all have reasoning levels of two. The Dictionary of Occupational Titles ("DOT") says the following about reasoning level two work: "Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations." See DOT, App. C, 1991 WL 688702.
Sharp objects to ALJ Wright's findings that "it was consistently noted in the record that [she] had no memory deficits and had intact judgment and insight." Tr. at 962. Sharp maintains that the records ALJ Wright relies on do not support her conclusions. For example, ALJ Wright cites treatment records that address Sharp's physical impairments and predate her disability onset date, as well as records after her last insured date that relate to her stroke.
Sharp also notes Dr. Gary Bachara's opinion, to which ALJ Wright assigned significant weight (tr. at 985), fails to fully support her assessment. Although Sharp could immediately recalled five digits forward and three digits backwards, she could recall only three of five objects after five minutes. Tr. at 985.
But Dr. Bachara found that Sharpe had good remote memory. Id. And he opined that she could understand, retain, and follow instructions and perform simple, repetitive tasks. Id. So Dr. Bachara's examination found some memory issues but still concluded she could perform work consistent with the RFC determination.
Sharp also cites Dr. Gualtieri's findings, which noted depression, anxiety, panic, fatigue, and chronic pain. He found that Sharp's anxiety and depression fell into a severe range, and he noted her low memory scores and impaired attention. Sharp also points out that testing revealed her reduced processing speed. She argues that this evidence shows she would have trouble completing tasks in a timely manner.
The Commissioner maintains that while ALJ Wright may not have discussed each piece of evidence that references impairments in Sharp's memory, attention, or concentration, she reviewed the entire record and noted several findings showing evidence both favorable and unfavorable to her claim that she had trouble with these mental functions.
Although there was evidence that Sharp had trouble with her attention, concentration, or memory, there is also evidence showing that, at times, she showed no trouble with these abilities. ALJ Wright did not state that Sharp had no issues with these mental abilities, only that the record often showed no memory deficits and intact insight and judgment. Tr. at 962. And Dr. Bachara concluded that, despite her testing results which showed some memory issues, Sharp could understand, retain, and follow instructions and perform simple, repetitive tasks.
So despite Sharp's arguments that the record establishes her difficulty in memory, attention, and concentration, there is substantial evidence supporting ALJ Wright's finding that she is still capable of unskilled work.
But as noted above, remanding this case for reexamination of the opinion evidence may affect the RFC determination. So the undersigned finds that Sharp's ability to perform unskilled work should also be reevaluated as part of the contemporaneous consideration of the opinion evidence.
Finding no error in ALJ Wright's conclusion that Sharp can perform unskilled work, the undersigned nonetheless recommends that the court remand this matter for further consideration of Sharp's RFC because remand is appropriate for additional consideration of other issues which may impact the RFC determination.
III. Conclusion
For all these reasons, the undersigned recommends that the court grant Sharp's Motion for Judgment on the Pleadings (D.E. 22), deny Saul's Motion for Judgment on the Pleadings (D.E. 24), and remand this matter to the Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: June 18, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge