United States District Court, E.D. North Carolina, Southern Division
JAMES B. ALFORD, Plaintiff,
NANCY 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 September 20, 2017, in Raleigh, 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),
1383(c) for review of the final decision of the Commissioner
denying his claim for disability insurance benefits
("DIB") pursuant to Title II of the Social Security
Act. Plaintiff alleged disability beginning on June 2, 2010.
Plaintiff protectively filed his application for DIB on
September 12, 2012. A hearing was held before an
Administrative Law Judge (ALJ) on December 10, 2014, who
issued an unfavorable ruling on February 12, 2015. This
decision became the final decision when the Appeals Council
denied plaintiffs subsequent request for review. Plaintiff
then timely sought review of the Acting Commissioner's
decision in this Court.
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 he 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 his physical or
mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage
in any other line of substantial gainful work which exists in
the national economy." 42 U.S.C. § 1382c(a)(3)(B).
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 ("SSA")
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 his age, education, work experience, and RFC, can
perform other substantial gainful work. If the claimant
cannot perform other work, then he is found to be disabled.
See 20 C.F.R. § 416.920(a)(4).
ALJ's decision in this instance is not supported by
substantial evidence. First, the ALJ failed to correctly
evaluate plaintiffs mental limitations. The ALJ determined
that plaintiff had moderate difficulties with concentration,
persistence or pace. Tr. 24. The only mental modification the
ALJ included in the RFC, however, was a limitation to simple,
routine, repetitive tasks. Tr. 25. The Fourth Circuit
distinguishes between different kinds of non-exertional
limitations. See Mascio v. Colvin, 780 F.3d 632, 638
(4th Cir. 2015), quoting Winschel v. Comm 'r of Soc.
Sec, 631 F.3d 1176, 1180 (11th Cir. 2011)) ("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."). "[T]he 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." Id.
the ALJ did not include any limitations in the RFC for
plaintiffs limitations in concentration, persistence, and
pace, and did not explain why plaintiffs limitations did not
translate into a limitation in his RFC. Tr. 25-30. This was
in error, and remand is appropriate to determine plaintiffs
the ALJ erred by failing to appropriately weigh the Veterans
Administration ("VA")'s determination of
plaintiffs disability. An ALJ is required to consider all
relevant evidence when making a disability determination,
including the decision of another agency. The VA's
determination "cannot be ignored and must be
considered." SSR no. 06-03p. "[T]he purpose and
evaluation methodology of both" the SSA and the VA when
determining disability is so similar that "a disability
rating by one of the two agencies is highly relevant to the
disability determination of the other agency." Bird
v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 343
(4th Cir. 2012). Therefore, the ALJ must give substantial
weight to the VA's determination. Only when the record
clearly demonstrates that the VA rating does not meet the
SSA's standards is ignoring the VA's rating
determined that plaintiffs disability rating was 70%. Tr. 26,
28. In order to disregard this finding, the ALJ needed to
have identified clear evidence in the record. Instead, the
ALJ only stated that the VA determination was not binding,
without explaining what evidence justified not giving the
determination appropriate weight. Tr. 28.
the ALJ did not consider how plaintiffs pain management plan
affects his ability to do the jobs found to be appropriate.
Medication and its side effects can affect a claimant's
ability to do work. See, e.g.,, Johnson v. Barnhart,434 F.3d 650, 658 (4th Cir. 2005) (noting that symptoms such
as drowsiness can cause serious functional limitations).
Here, the ALJ should have determined whether plaintiffs pain
medications affect his RFC. Plaintiffs degenerative disc
disease has no surgical option, and plaintiff is in a pain
management protocol. He takes his pain medication three times
a day. Tr. 48. The effect of his pain medication on his RFC