United States District Court, E.D. North Carolina, Western Division
DEBRA S. OWENS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on cross-motions for judgment on
the pleadings. A hearing was held on these matters before the
undersigned on May 18, 2017, in Edenton, North Carolina. For
the reasons discussed below, this matter is remanded to the
Acting Commissioner for further proceedings.
brought this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of the final decision of the
Commissioner denying her claim for disability and disability
insurance benefits ("DIB") and supplemental
security income ("SSI") pursuant to Titles II and
XVI of the Social Security Act. Plaintiff protectively filed
her applications on September 20, 2013, alleging disability
beginning April 25, 2013. After initial denials, a hearing
was held before an Administrative Law Judge (ALJ) who issued
an unfavorable ruling. The decision of the ALJ became the
final decision of the Commissioner when the Appeals Council
denied plaintiffs request for review. Plaintiff then timely
sought review of the Commissioner's decision in this
the Social Security Act, 42 U.S.C. §§ 405(g), and
1383(c)(3), this Court's review of the Commissioner's
decision is limited to determining whether the decision, as a
whole, is supported by substantial evidence and whether the
Commissioner employed the correct legal standard.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir. 2005) (per curiam) (internal quotation and
individual is considered disabled if she is unable "to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
[twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The
Act further provides that an individual "shall be
determined to be under a disability only if [her] physical or
mental impairment or impairments are of such severity that
[she] is not only unable to do [her] previous work but
cannot, considering [her] age, education, and work
experience, engage in any other line of substantial gainful
work which exists in the national economy." 42 U.S.C.
issued by the Commissioner establish a five-step sequential
evaluation process to be followed in a disability case. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four,
but the burden shifts to the Commissioner at step five.
See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
If a decision regarding disability can be made at any step of
the process, however, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
one, if the Social Security Administration determines that
the claimant is currently engaged in substantial gainful
activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination
of impairments. If the claimant has a severe impairment, it
is compared at step three to those in the Listing of
Impairments ("Listing") in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively
presumed. If not, at step four, the claimant's residual
functional capacity ("RFC") is assessed to
determine if the claimant can perform his past relevant work.
If so, the claim is denied. If the claimant cannot perform
past relevant work, then the burden shifts to the
Commissioner at step five to show that the claimant, based on
her age, education, work experience, and RFC, can perform
other substantial gainful work. If the claimant cannot
perform other work, then she is found to be disabled. See 20
C.F.R. § 416.920(a)(4).
one, the ALJ determined that plaintiff met the insured status
requirements and had not engaged in substantial gainful
activity since her alleged onset date. Plaintiffs
osteoarthritis of the right knee, depression, obesity,
essential hypertension, hyperlipidemia, COPD, and coronary
artery disease were considered severe impairments at step
two, but were not found alone or in combination to meet or
equal a listing at step three. The ALJ concluded that
plaintiff had the RFC to perform light work with additional
exertional limitations. The ALJ then found that plaintiff was
able to return to her past relevant work. In the alternative,
at step five, the ALJ considered plaintiffs age, education,
work experience, and RFC, along with the testimony of the
vocational expert ("VE"), to determine that
plaintiff was capable of making a successful adjustment to
other work that exists in significant numbers in the national
economy. Accordingly, the ALJ found that plaintiff had not
been under a disability as defined in the Act.
ALJ's decision in this instance is not supported by
substantial evidence. An ALJ makes an RFC assessment based on
all of the relevant medical and other evidence. 20 C.F.R.
§ 404.1545(a). An RFC should reflect the most that a
claimant can do, despite the claimant's limitations.
Id. An RFC finding should also reflect the
claimant's ability to perform sustained work-related
activities in a work setting on regular and continuing basis,
meaning eight-hours per day, five days per week. SSR 96-8p;
Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir.
2006). The ALJ found that plaintiff was limited to a
restricted range of light work activities, with limitations
to only occasionally climb ramps and stairs, but never climb
ladders and scaffolds; that she can frequently balance and
stoop; occasionally kneel, crouch, or crawl; but never have
exposure to unprotected heights, moving mechanical parts, or
dust, odors, fumes and pulmonary irritants; that she could
perform simple, routine, repetitive tasks but not at a
production rate pace (e.g. assembly line work); make simple
work-related decisions; and frequently interact with
supervisors, coworkers, and the public.
96-8p states that the "RFC assessment is a
function-by-function assessment" that "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)." SSR 96-8p. In Mascio v.
Colvin, the Fourth Circuit Court of Appeals 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." Winschel v. Comm'r of
Soc. Sec, 631 F.3d 1176, 1180 (11th Cir.2011) (joining
the Third, Seventh, and Eighth Circuits). As Mascio points
out, the ability to perform simple tasks differs from the
ability to stay on task. Only the latter limitation would
account for a claimant's limitation in concentration,
persistence, or pace.
780 F.3d 632, 638 (4th Cir. 2015). Here, the ALJ found
plaintiff to have moderate difficulties with concentration,
persistence, and pace. However, the RFC formulated by the
ALJ, while it provided a limitation to simple, routine,
repetitive tasks not at a production rate pace, does not
provide sufficient explanation as to why no limitations for
concentration or persistence were provided for in the RFC. As
the Mascio court noted, "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 (citation
omitted). "[T]he ability to perform simple tasks differs
from the ability to stay on task." Id; see also,
e.g., Scruggs v. Colvin, No. 3:14-CV-00466-MOC, 2015 WL
2250890, at *5 (W.D. N.C. May 13, 2015) (limitation to
simple, routine, repetitive tasks in non-production
environment, without more, does not sufficiently address
claimant's difficulties with concentration, persistence,
a claimant can stay on task is a different inquiry from
whether a claimant can perform simple tasks. The ALJ made no
determination with regards to plaintiffs ability to stay on
task. "If the reviewing court has no way of evaluating
the basis for the ALJ's decision, then 'the proper
course, except in rare circumstances, is to remand to the
agency for additional investigation or
explanation.'" Radford at 295 (citing
Florida Power & Light Co. v. Lorion, 470 U.S.
729, 744 (1985)). Additionally, '"remand may be
appropriate where an ALJ fails to assess a claimant's
capacity to perform relevant functions, despite contradictory
evidence in the record, or where other inadequacies in the
ALJ's analysis frustrate meaningful review.'"
Mascio, 780 F.3d at 636 (internal alteration