Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA CYNTHIA D. BYAS )
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Plaintiff, )
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v L:13CV151 ) ) CAROLYN W. COLVIN, )
Acting Commissioner of Social )
Secudty, )
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Defendant. ) MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Cynthia D. Byas, btought this action pursuant Sections 205(9) and 1,631,(c)Q) the Social Secutity Âct (the "Act"), amended (42 U.S.C. $$ a05(g) and t383(c)(3)), to obtain review añnaldecision the Commissioner Social Security denying claims for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II XVI Act. The Court has before it cetified administrative record cross-motions for judgment.
I. PROCEDURAL HISTORY fìled applications for SSI on October 13,2009 DIB on Novembet
5,2009, both alleging disability beginning March Çr.1.2, 1.85-1.92, 203-04.)1 The applications were denied initially and agun upon teconsideration. (Tt 82-83, 106-07.) Plaintiff then requested and was ptovided heating befote an Transcrþt citations refer the administrative record. *2 -A.dministrative Law Judge ("ALJ"). Çr.134.) At Septembet 27, 201'1' heating a vocational expert ('1/E"). Çn 1'2) The ALJ wete Plaintifl her ^ttorney, determined that Plaintiff was not disabled under Act. Qr12-21,.) O" December 21,, 201.2 Appeals Council denied Plaintiffs tequest fot teview, making ALJ's determination Commissioner's final decision putposes of teview. [ft. 1-6.)
II. STANDARD FOR REVIEW
The Commissioner held that under a disability within the meaning Âct. Under 42 U.S.C. $ 405(9), scope of judicial review of the Commissioner's final decision is specifìc and narrow. Smìth u. Schweiker,795 F.2d 343, 345 (4th Cir. 1986). This Court's review decision limited detetmining whethet there substantial evidence the record support Commissionet's decision. 42U.5.C. $ a05G); Hønteru. Sulliuan,993F.2d31,,34 (4th Cit. 1.992);HEts u. Salliuan,907 F.2d1453,1,456 (4th Cir. 1990). Substantial evidence "such relevant evidence reasonable mind might accept as adequate suppott a conclusion." Hanter, 993 tr.2d at 34 (citing Nchardson u. Perale4 U.S. 401. (1,971)). It "consists mote than mete scintilla" "but may somewhat less than a preponderance." 1/. (quotingl-^am Celebre7rye,368tr.2d 640,642 (4th Cir. 1,966)). Commissionet must make findings fact and resolve conflicts the evidence. Hqq907F.2d^t1,456 (citing Kinga.Calfan0,599F.2d597,599 (4thCir. 1,979)). Court does conduct a de novo review evidence nor In reviewing for substantial Commissioner's fìndings. Schweiker,795 F.2d ^t *3 evidence, the Coutt does not undertake to re-weigh conflicting evidence, to make credibiliry determinations, or to substitute its judgment for Commissionet. Craigu. Chater,76F.3d585, 589 (4th Cir. 1996) (citing HoJt,907 F.2d^t1.456). "\Where conflicting evidence allows teasonable minds diffet as whethet a claimant is disabled, responsibility for decision falls on the [Commissionet] (ot fCommissioner's] designate, the ALJ)." Cmig76F.3dat589 (quoting IY/al,þ,era. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). denial benefits will be reversed only if no teasonable mind could accept tecord as adequate suppott the determination. See Nchardlon u. Perales, 402 U.S. 389, 40'1. (1971). The issue before Coutt, therefote, not whether is disabled, but whethet the Commissionet's finding disabled is supported by substantial evidence and was teached based upon correct application the televant law. See id,; Cofman Bowen,829 F.2d 514, 51,7 (4th Cir. 1987).
III. THE ALJ'S DISCUSSION Social Security Regulations define "disability" fot the purpose obtaining disability benefits 'lnability do any substantial gainful activity by reason any medically determinable physical ot mental impairment2 which can expected to tesult death or which has lasted or cafl be expected last contirìuous period of less than 1,2 months." 20 C.F.R. S 404.1505(a); see al¡o 42 U.S.C. $$ a23(d)(1)(a), ' A "physical or mental impairment" impairment resulting from "anatomical, physiological, psychological abnormalities which ate demonstrable by medically acceptable clinical laboratory diagnostic techniques." U.S.C. SS 423 (dX3), 1382c(a)(3)(D).
a J *4 1382c(a)Q)(A). To meet this definition, a claimant must have a severe impairment which makes impossible to do previous work or any othet substantial gainful activity3 exists in naional economy. 20 C.F.R. S 404.1505(a); see also 42 U.S.C. SS 423 (d) Q) (A), [1] [3] 82c (a) (3) @).
A. Five-Step Sequential Analysis The Commissioner follows a five-step sequential analysis ascertain whether claimant is disabled, which is set fotth 20 C.F'.R. SS 404.1520,41.6.920. See Albright Comm'r Soe Sec. Admin.,174 F.3d 473, 475 n.2 (4th Cit. 1999). The ALJ must determine sequence:
(1) \)Thether the claimant is engaged substantial gainful activity (ì.e.,whether claimant is working). If so, claimant is disabled inquiry ends. \X/hether the claimant has a severe impairment. If not, then the claimant
Q) is disabled and inquiry ends.
(3) Whether impairment meets or equals medical cdteria 20 C.F.R., Part 404, Subpart P, Appendix which sets forth list impairments tha;twaLtta;r'rt finding disability without considering vocational criteria. If so, the claimant zi disabled and the inquiry halted.
' "substantial gainful acttviry" work (1) involves performing significant or productive physical mental duties, Q) done (or intended) p^y or profit. C.F.R. SS 404,1,51,0, 416.91,0.
(4) ìØhether the impairment prevents the claimant from perfotming past relevant work. If not, the claimant not disabled and the inquiry is halted.
(5) Whether the claimant is able petfotm any othet work considedng both her residual functional capacirya and het vocational abilities. If so, the claima¡t not disabled. c.F.R. SS 404.1520,41.6.920.
Here, in step one, the ALJ found that because a substantive detetmination could be made later sequential evaluation process, the issue whethet Petitionet had engaged substantial gainful acttvity within the relevant time pedod was moot. (Ir. 14.) In step two, ALJ found that Plaintiff had following severe impafuments: "lumbar mechanical pain due facet osteoarthtitis; arthtitis cervical spine; athritis of dght shouldet; hypettension." (Tt. 15.) At step three, the ALJ found Plaintiff did have impaitment or combination impairments listed in, or medically equal to, one listed in ,\ppendix (Id.) Ât fourth step the sequence, ALJ detetmined that Plaintiff capable performing her past relevant work. Gt. 20.) did reach fìfth step analysis because he found could perform past televant work step four. (See id.) "Residual functional capac:ttt¡" most a claimant can do a work setting despite the physical mental limitations of impairment any telated symptom (e¿., pan) . S ee 20 C.F.R. S$ 404.1545(r)(1), aß.9a5@)(1); see also Hines uBarnhart,453 F.3d 559,562 (4th Cir. 2006). RFC includes both "physical exertional ot sttength limitation" assesses claimant's "ability do sedentary, light, medium, heavy, or very hear,ry work," well as "nonexertional limitations (mental, sensory skin impafuments)." Hall a. Harris,658 F.2d 260,265 (4th Cir. 1981).
B. Residual Functional Capacity Determination
Ptior step fout, the ,A.LJ determined Plaintiffs RFC based his evaluation the evidence, including Plaintiffs testimony and the findings treating and examining health care providers, as well as non-examining state consultants. [t. 1,5-20.) Based on the evidence as whole, ALJ determined that Plaintiff tetained RFC perform medium work wrth manipulative and postutal resttictions. (Ir. 15.) Specifically, ALJ found that Plaintiff "can sit, stand, and walk fot up 8 hours each B-hour day. She can ltft/carry push/pull pounds occasionally 25 pounds frequently. She can reach overhead occasionally. She can petfotm tasks requiring stooping, ctouching, kneeling, ctawling frequently." Qd.)
IV. ANALYSIS
Plaintiff makes five arguments that Commissioner erred determining that she disabled purposes Act. First, Plaintiff atgues AIJ etred because he failed obtain Medical Source Statement ftom Plaintiffls treating physician. pocket Er,try 1,7 6-7.) Second, Plaintiff contends A{'s RFC finding to how much could lift and carlT was suppotted by substantial evidence. (Id. at7 -5.) Third, Plaintiff claims the ALJ erred analyzing het ctedibility because ,A.LJ determined her RFC prior to assessing credibility. (Id. at 8-10.) Fourth, Plaintiff argues erred failing accotd het testimony great weight. (Id. at1.0-1,2.) Finally, claims ,\LJ committed facruøl errot in *7 finding that her testimony ctedible. (Id. at 1,3-1,4.) As explained below, the undersigned concludes that remand otder.
A. The Error in Determining PlaintifPs Credibility Requires Remand. In pertinentpairt, contends that the,{,LJ erted detetmining her credibiJity. undersþed agtees and conclucles that the error i.s not harmless. Fourth Circuit Court of Âppeals has adopted tu.o-step ptocess by rvhich -A,LJ must evaluate clumant's sylTrptoms. Fitst, must detetmine if the plaintifPs rnedically documented irnpaitments could reasonably expected cause allegecl s)¡mptoms . Craig I6 F.3d 594. 'I'he second step includes evaluation ^t (ústatements about intensity, subjective evidence, considedng claimant's persistence, limiting effects fthe claimant's] symptoms." Id. at (citing 20 C.F.R. SS 416.929(c)(4) a0a.1,529(Q(\. "The ALJ must considet the following: (1) a claimant's testimony and other statements concerning pain other subjective complaints; Q) claknant's medical history andlabor.atory finclings; (3) any objective meclic¿l er.iclence pain; and (4) any other er.'idence televant severity impaitrnent." Grabb1 Astrwe, No. 1:09cv364,2010 \)fL 5553677, at *3 CX/.D.N.C. Nov. 2010) (citing C*tg,76 F.3d 595;20 C.F'.R. \ a0a.1529(c).) "Other el'idence" tefets factots such claimant's daily activities, dutzrtion and ftequency of pain, treatment other than medication received for telief symptoms, and any othet measures used relieve claimant's alleged pain. Id. SSll 96-7p , Atvsing Credihilitl of øn Indiuidøal'¡ SlalemenLs, also instructs AIJ "consider entire case tecord" *8 and requires credibility detetmination to "contain specific reâsons the fìnding on credibility, suppoted by the evidence the case tecord[.]" SSR 96-7p. Ân ALJ's credibility determination receives "substantial defetence." Saye u. Chater, No. 95-3080, 1,997 WL 232305, x1, (4th Cir. May 8,1,997) (unpublished). ^t
Here, the ALJ followed the Craig two-step analysis determine Plaintiffs credibility. Çr. 1,5-20.) At Step One, he found "tbe fPlaintiffs] medically determinable impairments could teasonably expected cause the alleged symptoms." Çr 1.9.) Thus, AIJ performed fust step the Craiganalysis.
An eror occurted at second step C'raig analysis, however. This is because the Fourth Circuit Coutt Appeals tecently issued published decision, Masdo u. Co/uin,780 F.3d 632 (4thClr.201,5), finding thatanALJ ered by using, atpa;rt rwo ctedibility assessment, "boilerplate" Iangtase that "the claimant's statements concetning intensity, persistence limiting effects þs pain] are credible to extent they are inconsistent with above tesidual functional capacity assessment." Id. This method "'gets things backwatds' i-plytng that ability work determined fìrst then used detetmine claimant's credibility." Id. (quoing Bjomson Astrue, F.3d 640, 644-45 (7th Cir. 201,2)). Instead, "the lin Mascio] should have compared fthe claimant's] alleged functional limitations ftom pain to the othet evidence recotd, fthe claimant's] tesidual functional capacity." Id.
Here, the ÂLJ erred the instant case considering Petitioner's ctedibility through use of same objectionable "boiletplate" used Mascio, by finding that "statements concerning intensity, persistence, limiting effects these symptoms are not credible extent they ate inconsistent with above tesidual functional capacity âssessment." (It. 19.) The question, thetefore, becomes whethet erot harmless.
Ma¡cio instructive on this issue as well. In Mascio, the Foutth Circuit explained what harmless error would look like, stating that "The ÄLJ's eror would be harmless if he properly analyzed credibility elsewhere." Masdo,780 F'.3d at640. The Fourth Circuit made clear that an ALJ discharges this obligation when he "explain[s] how he decided which fthe claimant's] statements to believe which to discredit." Id. However, Ma¡cio A{ failed explain himself accordingly, except to make "the vague (and circular) boilerplate statement he did not believe any claims limitations beyond what he found when considering fthe claimant's] residual functional capaciqr." Id. The lack explanation required temand. Id.
In this case, his credit, the ÂLJ described Petitionet's hearing testimony at considerable length. Çr. 16-17.) A{ also gave some reasons for parttally discounting Petitioner's testimony. For example, the stated Petitioner "does have any evidence ongoing nerve root comptession which might expected based degree pain alleged." (Tt. 19.) ALJ also stated rz;thet genetally Petitioner's treatment regime indicated het "symptoms [were] as *10 intractable as alleged." (Id.) The AIJ also addressed Petitioner's headng statement that she is unable "do anything" spends het time "watching television." (Tr. 19.) AIJ specifìcally discredited this statement, observing that the record failed to demonstrate the change in motor tone, bulk, body habitus, constitutional that one would expect from "debilitating disease process."s (Id.) ^ppeara'nce Howevet, the administrative heating, Petitioner also testifìed that she could pick up two five pounds bags sugar, but fout five pound bags.ó Qr. 43.) Yet, AtJ stated in his decision that Petitioner testified "she cari pick up 25-pound bag of flout or sugar." Çr. 1,6 (emphasis added).) This is ttoublesome because ALJ-who limited to medium work in RFC-never specifically addressed this patticulat statement in his ctedibility analysis, which he erroneously attdbuted to Petitionet his summation testimony. Medium work ptesumes Petitionet can lift rwenty-five pounds frequently and ftfty pounds occasionally. C.F.R. SS 404.1,567 (c), 41,6.967 (c). Consequendy, it unclear whethet ever consideted Petitionet's assertion she cannot lìft twenty pounds. Likewise, unclear whether ALJ set Petitioner's RFC to medium wotk based-in whole ot in patt-on erroneous assumption that Petitioner stated at heating that she could lift twenty-five pounds. This lack of clarity prevents meaningful teview and the undersigned is hesitant âttempt to resolve this issue ftst instance light of the governing standard of review, articulated above.T Consequently, undetsigned concludes that remand is appropriate so that this issue can be resolved propedy.
None this necessadly means that Plaintiff disabled under Act and the undersigned expresses no opinion orì that matter. Nevertheless, light all the above, the undetsigned concludes that the proper course hete remand this mattet for futher administrative ptoceedings. Finally, undersigned declines consideration additional issues raise by this time. Harucock Barnhart, 206F. S,rpp. 2d757,763-64 n.3 [X/.D. Ya.2002) (on temand, the AIJ's ptiot decision as no preclusive effect, as is vacated and the new headng is conducted de novo).
V. CONCLUSION Aftet careful considetation evidence of recotd, Court finds that the Commissioner's decision supported substantial evidence. IT IS THEREFORE RECOMMENDED the Commissionet's decision finding no disability REVERSED, m^ttef be REMANDED to the Commissionet under sentence four U.S.C. $ a05(g). To this extent, the undetsigned RECOMMENDS that Defendant's Motion Judgment 7 A.s noted, the limited Plaintiff to only occasional ovethead teaching and thetefote he seems have patialTy credited Petitioner's testimony as limitation. The undetsgned cannot rule out the possibility that had ALJ considered Plaintiffs testimony as het limitations in lifting, RFC fi"dirg to medium work may have been set diffetently as well.
1,1,
Pleadings (Docket Entry 14) be DENIED , Plaintiffs Motion Judgment Pleadings (Docket E.rt"y 10) be GRÁ.NTED. To extent Plaintiffs motion seeks an immediate awatd benefits, undersigned RECOMMENDS that DENIED.
This y ofJune, 2075. ter
J United States Magistrate Judge 1,2 u undersþed notes the credibility analysis set forth ALJ's decision not always clear as specihcally which of Petitionet's headng allegations is being addtessed and discounted. Gt. 19.) This leaves open the issue whethet all limitations assetted at Petitionet's hearing were properþ addressed. However, Court need resolve that issue, because statement erroneously attributed to Plaintiff AlJ-described above-requires remand. u Thete is some confusion here headng testimony whether Petitionet was stating she unable to pick up twenty pounds sugar oÍ two pounds sugat. Qr a2-43.) In either event, never stated anything that could reasonably intetpreted as a stâtement she could pick up t'wenty-five pounds sugar.