McLaughlin v. ColvinMcLaughlin v. Colvin
MEMORANDUM OPINION GRANTING PLAINTIFF’S ALTERNATIVE ■ MOTION FOR REMAND
Plaintiff Judith McLaughlin seeks judicial review under
I
Background
Plaintiff was born in 1963, has a high-school education, and previously worked as an administrative assistant. R. at 33, 210-11. Plaintiff protectively filed an application for DIB on November 16, 2012, alleging disability beginning on July 22, 2011, due to, among other impairments, fibromyalgia, migraines, major depressive disorder, anxiety disorder, and panic disorder. R. at 185-86, 206, 209. The Commissioner denied Plaintiffs application initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 80-120, 125-28. On May 19, 2014, ALJ Stewart Goldstein held a hearing at which Plaintiff and a vocational expert (“VE”) testified. R. at 41-79. On July 31, 2014, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of July 22, 2011, through the date of the decision. R. at 18-40. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiffs request for review on December 31, 2014. R. at 1-6, 14. The ALJ’s decision thus became the final decision of the Commissioner. See
On February 27, 2015, Plaintiff filed a complaint in this Court seeking review of the Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.
II
Summary of Evidence
A. State Agency Medical Consultants
On April 9, 2013, a state agency consultant, Richard K. Lyon, Ph.D., using the psychiatric review technique (“PRT”) under
On April 23, 2013, another state agency consultant, W. Hakkarinen, M.D., assessed Plaintiffs physical RFC. R. at 91-92. Dr. Hakkarinen opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand
On July 11, 2013, another state agency consultant, A. Serpick, M.D., again assessed Plaintiffs physical RFC. R. at 109-10. Dr. Serpick opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 109-10. Plaintiff occasionally could climb, balance, stoop, kneel, crouch, and crawl. R. at 110. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 1Í0.
On July 27, 2013, another state agency consultant, Maurice Prout, Ph.D., again used the PRT to evaluate Plaintiffs mental impairments under Listings 12.04 and 12.06. R. at 106-08. Dr. Prout opined that, under paragraph B of the applicable listings, Plaintiffs mental impairments caused her to experience (1) mild restriction in activities of daily living; (2) mild difficulties in maintaining social functioning; (3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no episodes of decompensation of extended duration. R. at 107. Dr. Prout did not find evidence to establish the presence of the criteria under paragraph C of the applicable listings. R. at 107. Dr. Prout thus assessed Plaintiffs mental RFC (R. at 110-12) and opined that she was moderately limited in her ability to (1) understand, remember, and carry out detailed instructions; (2) maintain attention and concentration for extended periods; (3) 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; and to (4) respond appropriately to changes in the work setting. R. at 111-12. Plaintiff otherwise was not significantly limited. R. at 111-12.
B. Hearing Testimony
1. Plaintiff’s Testimony
The ALJ reviewed Plaintiffs testimony in his decision:
In her written statements and testimony, [Plaintiff] reported experiencing widespread pain (including pain in her shoulders, neck, back, hips, upper and lower extremities, and knees), muscle spasms and stiffness, left foot swelling, migraine headaches, fatigue, brain fog, feelings of depression and anxiety, panic attacks, auditory hallucinations, suicidal ideation, sleep disturbance, and difficulty leaving her house [R. at 208-19, 233-50]. She estimated in her testimony that she experiences a panic attack approximately once weekly, and migraine headaches two to three times monthly, lasting for two to three days. She reported having difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, using her hands, remembering, completing tasks, concentrating, understanding, and following instructions [R. at 208-19, 233-50]. [Plaintiff] reported taking medication for her impairments [R. at 208-19, 233-50], and she testified that she experiences drowsiness as a medication side effect. Despite her impairments, [Plaintiff] reported- in her written statements and testimony that she is able to drive short trips, provide care to a pet cat, prepare simple food daily, wash dishes, straighten a room daily, shop in stores, pay bills, count change, handle a savingsaccount, use a checkbook/money orders, search for work to perform at home, watch television and movies, make jewelry, socialize with others on the Internet daily, maintain two friends, and follow simple written instructions [R. at 233-45].
R. at 27-28; see R. at 48-73.
2. YE Testimony
The VE testified that a hypothetical individual with Plaintiffs same age, education, and work experience with the RFC outlined below in Part III could not perform Plaintiffs past relevant work but could perform the unskilled, light
Ill
Summary of ALJ’s Decision
On July 31, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the alleged onset date of disability of July 22, 2011; and (2) had an impairment or a combination of impairments considered to be “severe” on the basis of the requirements in the Code of Federal Regulations; but (3) did not have an impairment or a combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P, app. 1; and (4) was unable to perform her past relevant work; but (5) could perform other work in the national economy, such as a merchandise marker, sales attendant, or cashier. R. at 23-34. The ALJ thus found that she was not disabled from July 22, 2011,-through the date of the decision. R. at 34.
In so finding, the ALJ found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except that she is able to only occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. She is able to occasionally balance, stoop, kneel, crouch, and crawl. She is able to perform simple, routine tasks with the addition of new or more complex tasks not occurring more frequently than once every two weeks on average, and the opportunity for a few extra minutes of supervision at times of task change.
R. at 27. The ALJ also considered Plaintiffs credibility and found that her “medically determinable impairments could reasonably be expected to cause the alleged symptoms;' however, [her] statements concerning the intensity, persistence and lim
[w]ith regard to concentration, persistence or pace, [Plaintiff] has moderate difficulties. [Plaintiff] reported experiencing difficulty remembering, completing tasks, concentrating, understanding, and following instructions [R. at 238-45]. However, upon consultative psychological examination, [Plaintiff] exhibited normal cognition upon Mini-Mental State Examination (MMSE), and intact attention, intact recall, a goal directed and coherent thought process, no loosing of associations, no flight of ideas, and ability to abstract [R. at 607-16]. Additionally, treating medical sources noted that [Plaintiff] exhibited fair recent and remote memory, fair attention and concentration, an adequate fund of information, logical associations, and no psychosis upon examination [R. at 663-66, 674-90], Furthermore, [Plaintiffs] ability to drive short trips, provide care to a pet cat, prepare simple food daily, search for work to perform at home, shop in stores, pay bills, count change, handle a savings account, use a checkbook/money orders, make jewelry, and follow simple written instructions indicates that her limitations in this area are no more than moderate [R. at 233-45],
R. at 26.
IV
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months.
To determine whether a claimant has a disability, within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations.
First, the Commissioner will consider a claimant’s work activity. If the claimant is engaged' in substantial gainful activity, then the claimant is not disabled.
Second, if the claimant is not'engaged in substantial gainful activity, the Commissioner looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination of impairments that significantly limits the claimant’s physical or mental ability to do basic work activities. Pass v. Chater,
Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of age, education, and work experience.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of the claimant’s past relevant work..
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant’s RFC as determined at step four, age, education, and work experience. See Hancock v. Astrue,
V
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct legal standards and whether the factual findings are supported
In evaluating the evidence in an appeal of a denial of benefits, the court does “not conduct a de novo review of the evidence,” Smith v. Schweiker,
VI
Discussion
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security Ruling
SSR 96-8p explains how adjudicators should assess RFC and instructs that the RFC
“assessment must first identify the individual’s functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions” listed in the regulations. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” The Ruling further explains that the residual functional capacity “assessment 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,
Plaintiff argues that, in assessing her RFC and in presenting hypothetical questions to the VE, the ALJ failed to consider adequately her moderate difficulties in maintaining concentration, persistence, or pace,, contrary to Mascio. PL’s Mem. Supp. Mot. Summ. J. 5-6, ECF No. 14-1. In Mascio, the Fourth Circuit held 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,
“The Social Security Administration has promulgated regulations containing ‘listings of physical and mental impairments which, if met, are conclusive on the issue of disability.’ A claimant is entitled to a con-
“The ALJ’s decision must show the significant history and medical findings considered and must include a specific finding as to the degree of limitation in each of the four functional areas.” Felton-Miller v. Astrue,
Here, the ALJ’s hypothetical questions to the VE and the corresponding RFC assessment limiting Plaintiff to “simple, routine tasks” do not account for Plaintiffs moderate difficulties in maintaining concentration, persistence, or pace. See Mascio,
The VE testified, however, that an individual “off task” more than 15% of the workday because of the need to take unscheduled breaks could not perform any work. R. at 77. Although “[i]t is reasonable to assume that [Plaintiffs] moderate limitations translate into a decrease in productivity,” Sterling v. Colvin, No. 1:13-CV-01132-SEB,
VII
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 17) is DENIED. Plaintiffs Motion for Summary Judgment (ECF No. 14) is DENIED. Plaintiffs alternative motion for remand (ECF No. 14) is GRANTED. Defendant’s final decision is REVERSED IN PART under the fourth sentence of
Notes
. The Fourth Circuit has noted that, "in social security cases, we often use summary judgment as a procedural means to place the district court in position to fulfill its appellate function, not as a device to avoid nontriable issues under usual
. “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.”
. “The Social Security Administration has taken administrative notice of the Dictionary of Occupational Titles, which is published by the Department of Labor and gives detailed physical requirements for a variety of jobs.” Massachi v. Astrue,
, The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs.”
. Social Security Rulings are "final opinions and orders and statements of policy and interpretations” that the Social Security Administration has adopted.