Opinion
4:20-CV-50-D
09-07-2021
JUANITA WOOTEN, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-23, -27] pursuant to Fed.R.Civ.P. 12(c). Plaintiff Juanita Wooten (“Plaintiff” or, in context, “Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her application for a period of disability, Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”). Both parties submitted memoranda in support of their respective motions [DE-24, -28]. Plaintiff responded to Defendant's motion for judgment on the pleadings [DE-31] and the time for filing a reply has expired. Accordingly, the pending motions are ripe for adjudication. The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Plaintiff's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Plaintiff protectively filed an application for a period of disability, DIB, and SSI on October 28, 2016, alleging disability beginning September 30, 2009. Transcript of Proceedings (“Tr.”) 439-54. Both claims were denied initially. Tr. 364, 368. Plaintiff filed a request for reconsideration (Tr. 372-73), and was denied upon reconsideration on June 9, 2017 (Tr. 378, 382). On June 27, 2017, Plaintiff requested a hearing before the Administrative Law Judge (“ALJ”). Tr. 387-89. A hearing before the ALJ was held on November 28, 2018, at which Plaintiff, represented by counsel, and a vocational expert (“VE”) appeared and testified. Tr. 219-51. On February 21, 2019, the ALJ issued a decision denying Plaintiff's request for benefits. Tr. 185-214.
On April 21, 2019, Plaintiff requested a review of the ALJ's decision by the Appeals Council (Tr. 435-38) and submitted additional evidence as part of her request (Tr. 5-6). After reviewing and incorporating the additional evidence into the record, the Appeals Council denied Plaintiff's request for review on February 5, 2020. Tr. 1. Plaintiff then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive ....” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). “Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, “the court must ‘review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'” Felts v. Astrue, No. 1:11-CV-00054, 2012 WL 1836280, at *1 (W.D. Va. May 19, 2012) (quoting Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity [“SGA”], ” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity [“RFC”] to (4) perform . . . past work or (5) any other work.Albright v. Comm'r Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. §§ 404.1520a(b)-(c) and §§ 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and, adapting or managing oneself. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. §§ 404.1520a(e)(4), 416.920a(e)(4).
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Plaintiff “not disabled” as defined in the Act. Tr. 208. At step one, the ALJ determined Plaintiff had not engaged in substantial gainful employment since September 30, 2009, the alleged onset date. Tr. 191. Next, at step two, the ALJ determined Plaintiff had the following severe impairments: acquired keratosis of the feet, pes planus, degenerative joint disease of the bilateral knees, hypertension, borderline intellectual functioning, bipolar disorder, and polysubstance abuse. Tr. 191. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 191-92.
Applying the technique prescribed by the regulations, the ALJ found that Plaintiff's mental impairments have resulted in moderate limitation in understanding, remembering, or applying information; moderate limitation in interacting with others; moderate limitation in concentrating, persisting, or maintaining pace; and, moderate limitation in adapting or managing oneself. Tr. 19293.
Prior to proceeding to step four, the ALJ assessed Plaintiff's RFC, finding Plaintiff had the ability to perform light work with the following limitations:
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
[S]he can occasionally climb ramps and stairs. The claimant can occasionally balance, stoop, kneel, crouch, or crawl. She can never climb ladders, ropes, or scaffolds. The claimant cannot work at unprotected heights or with dangerous machinery. She cannot perform work that requires operation of vehicles. The claimant can understand, remember, carry out, and adapt to simple routine tasks that do not require interaction with general public. She can work in proximity to, but not coordination with, co-workers. The claimant can have occasional superficial interaction with co-workers and occasional interaction with supervisors.Tr. 196. In making this assessment, the ALJ found that Plaintiff's statements regarding the intensity, persistence, and limiting effects of her alleged symptoms were not entirely consistent with the medical evidence and other evidence in the record. Tr. 197.
At step four, the ALJ found that Plaintiff has no past relevant work. Tr. 207. At step five, upon consideration of Plaintiff's age, education, work experience or lack thereof, and RFC, the ALJ determined that there are jobs that exist in significant numbers in the national economy that the claimant can perform. Tr. 207-08.
V. OVERVIEW OF PLAINTIFF'S CONTENTIONS
In this case, Plaintiff alleges the ALJ erred by: (1) failing to assess Plaintiff's limitations in a function-by-function analysis; (2) failing to incorporate non-exertional limitations on the ability to stay on task where the ALJ first found that Plaintiff was moderately impaired in the maintenance of concentration, persistence, or pace (“CPP”); and, (3) failing to discuss facts in evidence that contradict or tend not to support the ALJ's conclusions. Pl.'s Mem. [DE-24] at 2. Each will be discussed below. Plaintiff's first and third alleged errors will be discussed together, as they similarly relate to the ALJ's discussion, explanation, and assessment of Plaintiff's RFC.
VI. DISCUSSION
A. Limitations accounting for Plaintiff's moderate impairment in CPP
Plaintiff contends that the ALJ erred by failing to incorporate non-exertional limitations on Plaintiff's ability to stay on task where the ALJ first finds that Plaintiff was moderately impaired in the maintenance of CPP. Pl.'s Mem. [DE-24] at 2. At issue, is whether the ALJ adequately accounts for Plaintiff's impairment in CPP in the RFC assessment. Id. at 14-15. Plaintiff argues that the ALJ either fails to include RFC limitations that account for her moderate CPP impairment, or fails explain why no additional limitations were necessary, as required by the Fourth Circuit in Mascio. Id. at 15. The court agrees.
“A Social Security claimant's RFC represents ‘the most [she] can still do despite [her] limitations.'” Dowling v. Comm'r Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir. 2021) (quoting 20 C.F.R. § 416.945(a)(1)). It is “an administrative assessment of ‘an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis' despite impairments and related symptoms.” Brooks v. Berryhill, No. 2:16-CV-80-FL(2), 2018 WL 944382, at *3 (E.D. N.C. Jan. 23, 2018) (quoting S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). In making this assessment, “the ALJ must consider all of the claimant's medically determinable impairments of which the ALJ is aware, including those not labeled severe at step two.” Shinaberry v. Saul, 952 F.3d 113 (4th Cir. 2020) (quoting Monroe v. Colvin, 826 F.3d 176, 178 (4th Cir. 2016)). Further, an RFC assessment must be “based on all of the relevant medical and other evidence.” Ward v. Colvin, 90 F.Supp.3d 510, 513 (E.D. N.C. 2015) (citing 20 C.F.R. § 404.1545(a)(3)).
“[A] proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311 (4th Cir. 2019). The ALJ “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).” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)). Where a court is “left to guess about how the ALJ arrived at his conclusions on [claimant's] ability to perform relevant functions . . ., remand is necessary.” Mascio, 780 F.3d at 637.
In Mascio v. Colvin, the Fourth Circuit joins other circuits in holding “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 Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). The court finds that “the ability to perform simple tasks differs from the ability to stay on task[, ]” and “[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Mascio, 780 F.3d at 638. However, the Fourth Circuit does “not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC.” Shinaberry, 952 F.3d at 121. Instead, the Fourth Circuit states “that ‘an ALJ can explain why [a claimant's] moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation' in the claimant's RFC.” Id. (quoting Mascio, 780 F.3d at 638) (alteration in original). “For example, the ALJ may find that the concentration, persistence, or pace limitation does not affect [the claimant's] ability to work, in which case it would [be] appropriate to exclude it from the hypothetical tendered to the vocational expert.” Id. (alterations in original). Yet, without such explanation by the ALJ, remand is required. Williams v. Saul, No. 4:20-CV-92-FL, 2021 WL 3399820, at *4 (E.D. N.C. June 16, 2021) (citing Mascio, 780 F.3d at 638; Shinaberry, 952 F.3d at 122; Iva K. v. Soc. Sec. Admin., No. 1:19-cv-02954-JMC, 2020 WL 3060752, at *4 (D. Md. June 9, 2020)).
Here, at step three of the sequential evaluation process, the ALJ determines that Plaintiff suffers from a moderate limitation in CPP. Tr. 192. Supporting this finding, the ALJ states:
Although the claimant alleges she experiences difficulties concentrating, the claimant has evidenced mostly normal objective findings with no signs of attention or concentration deficits. During the four psychological examinations, the claimant was able to spell the word world backwards, perform serial threes, and complete addition, subtraction, multiplication, and indicated she could cook, clean, use public transportation, watch television, play games on her cell phone, shop, and perform personal care tasks. During the hearing, the claimant testified she could read, cook, add, subtract, multiply, play games, and watch television. The claimant reported to the psychological consultative examiners that she could watch television, clean, perform personal care tasks, cook, date, care for her dog, and visit with friend and family. As such, the severity of the claimant's limitations in concentrating, persisting, or maintaining pace is no more than moderate.Tr. 192-93 (internal citations omitted).
Subsequently, in the RFC the ALJ limits Plaintiff to light work with additional limitations that Plaintiff can only “understand, remember, carry out, and adapt to simple routine tasks that do not require interaction with general public[, ] . . . work in proximity to, but not [sic] coordination with, co-workers[, ] . . . [and have] occasional superficial interaction with co-workers and occasional interaction with supervisors.” Tr. 196. No other limitations are included by the ALJ directly accounting for Plaintiff's impairment in CPP.
Under Mascio, because the ALJ determined at step three that Plaintiff suffered from a moderate impairment in CPP, the ALJ was required to either include an RFC limitation to account for these limitations or explain why no such RFC limitation was required. See Shinaberry, 952 F.3d at 121; Mascio, 780 F.3d at 638; see also Futch v. Saul, No. 5:19-CV-286-D, 2020 WL 5351603, at *4 (E.D. N.C. Aug. 17, 2020). Plaintiff contends that the ALJ failed to do so, and thus, remand is required. Pl.'s Mem. [DE-24] at 14-17. Defendant argues that “the ALJ discussed the medical evidence showing that Plaintiff's memory and attention were sufficient to enable her to maintain the level of attention and concentration to perform simple, routine tasks with limitations on her ability to be around others.” Def.'s Mem. [DE-28] at 12. Defendant argues that the ALJ adequately explains how the current RFC limitations account for Plaintiff's CPP impairment. The court finds Defendant's argument unpersuasive.
Notably absent in the ALJ's RFC assessment here is any explanation of how the current RFC limitations account for Plaintiff's impairment in CPP. That is, the ALJ does not explain how limitations to simple routine tasks not requiring interaction with the public, work in proximity to co-workers, and only occasional interaction with supervisors, “enable [Plaintiff] to stay on task and concentrate throughout the workday.” Taylor v. Saul, No. 4:19-CV-66-FL, 2020 WL 6389835, at *4 (E.D. N.C. July 9, 2020). While it is conceivable that the current restrictions set forth in the RFC “were intended to address [Plaintiff's] limitations with concentration, persistence, and pace, [] the court cannot trace the ALJ's reasoning on that point in the absence of an express explanation that ties the restrictions to [Plaintiff's] limitations.” Taylor, 2020 WL 6389835, at *4-5. Mascio makes clear that when an ALJ fails to adequately explain how a claimant's CPP impairment is accounted for, remand is required. Id.; see also Huff v. Berryhill, No. 7:18-CV-00054, 2019 WL 2193860, at *3 (W.D. Va. May 21, 2019) (requiring remand when the ALJ limited the claimant to “‘low-stress' work with ‘only occasional interaction with the public or co-workers[, ]'” but “failed to explain how these additional limitations sufficiently accommodate [the claimant's] moderate difficulties with concentration, persistence, and pace”); Washington v. Saul, No. 1:19-1825-SVH, 2020 WL 3428852, at *15 (D.S.C. June 22, 2020) (requiring remand when the ALJ limited the claimant to “perform simple, repetitive tasks with low production quotas, [and] no interaction with the general public, only occasional interaction in proximity with others, and no work in coordination with others[, ]” but fails to explain how these accommodate for the claimant's limitations in CPP).
Defendant argues in the alternative that the ALJ properly discredited Plaintiff's moderate CPP impairment in the RFC. See Def.'s Mem. [DE-28] at 12-13. That is, Defendant appears to argue that the ALJ adequately explains why no limitation was required for Plaintiff's impairment in CPP. Id. In support of this argument, Defendant cites to medical records and statements by the ALJ in the RFC, indicating that Plaintiff's concentration was “normal.” Id. at 11-12. While the ALJ is permitted to explain why additional limitations are not needed to account for a moderate impairment in CPP (Shinaberry, 952 F.3d at 121 (citing Mascio, 780 F.3d at 638)), the ALJ fails to do so here. Although the ALJ does cite to records potentially showing that Plaintiff could work despite her impairment, there is also contradictory evidence in the RFC. For example, the ALJ partially credits a counselor for Vocational Rehabilitation Services Individualized Plan for Employment, who “opined [Plaintiff] was unable to concentrate for reasonable periods of time without being easily distracted and poor concentration.” Tr. 206. The ALJ also notes on multiple occasions, that while the medical evidence shows “mostly intact psychological objective findings such as . . . normal . . . concentration[, ]” it also shows that Plaintiff suffered from “distractibility.” Tr. 205-07. Without any explanation by the ALJ reconciling these statements, the court finds unpersuasive any argument by Defendant that the ALJ adequately explained why no limitations were needed for Plaintiff's CPP impairment.
Under Mascio, the ALJ was required to either include an RFC limitation to account for Plaintiff's moderate CPP impairment or explain why no further limitations were required. See Mascio, 780 F.3d at 638; Shinaberry, 952 F.3d at 121; see also Futch v. Saul, 2020 WL 5351603, at *4. The undersigned finds that the ALJ has not done either, and therefore, remand is warranted. Accordingly, the undersigned recommends this case be remanded to the Commissioner for further proceedings. On remand, the Commissioner should make findings and provide sufficient explanation in order to permit meaningful judicial review for substantial evidence, if necessary.
B. ALJ's discussion, explanation, and assessment of Plaintiff's RFC
Plaintiff's remaining arguments address two issues, both relating to the ALJ's RFC findings and assessment.
First, Plaintiff contends that the ALJ erred in failing to assess Plaintiff's limitations using a function-by-function analysis. Pl.'s Mem. [DE-24] at 2, 8-14. Specifically, Plaintiff argues that the ALJ erred by not including limitations for walking and standing in Plaintiff's RFC. Id. at 9. Defendant argues that the ALJ properly assessed Plaintiff's abilities on a function-by-function basis, and any limitations beyond those already included in the RFC are not warranted. Def.'s Mem. [DE-28] at 6-10.
Second, Plaintiff contends that the ALJ erred by failing to discuss facts in evidence that contradict the ALJ's conclusions in Plaintiff's RFC assessment. Pl.'s Mem. [DE-24] at 2, 17-24. Plaintiff argues that facts contradicting or tending not to support a conclusion should be noted, and the ALJ should have discussed whether to allocate weight to these facts in light of the entire record. Id. In essence, Plaintiff argues that substantial evidence does not support the ALJ's RFC determination. Defendant argues that the ALJ properly assessed all relevant evidence, and the ALJ's findings are supported by substantial evidence. Def.'s Mem. [DE-28] at 6-10, 14-16.
In light of the court's above recommendation to remand this matter, the undersigned does not address Plaintiff's remaining two arguments as the ALJ's findings on remand may be substantially different. See Craig, 76 F.3dat 589 (“The issue before us . . . is not whether Craig is disabled, but whether the ALJ's finding that she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law.”), superseded on other grounds, 20 C.F.R. § 416.927(d)(2) (2017). On remand, however, Defendant should consider Plaintiff's remaining two arguments [see DE-24 at 8-14, 17-24] and should ensure that Plaintiff's RFC is supported by substantial evidence. It will be incumbent on Defendant to properly consider all of the relevant evidence and to explain the findings as to the weight afforded the evidence in accordance with the applicable law and regulations. See Ivey v. Barnhart, 393 F.Supp.2d 387, 390 (E.D. N.C. 2005) (“remand is appropriate where an ALJ fails to discuss relevant evidence that weighs against his decision”).
The ALJ should also include a narrative discussion of how the evidence supports the conclusions reached, in order to facilitate meaningful review if the case is again before the court. See Monroe, 826 F.3d at 189 (quoting Mascio, 780 F.3d at 636). The court does note that an ALJ is not required to discuss every piece of evidence in the record. See Reid v. Comm'r Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citations omitted). However, before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless, 131 F.3d at 439-40.
VII. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE-23] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-27] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until September 17, 2021 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by September 23, 2021.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).