Daley v. Comm’r Soc. Sec. Admin., 741 F. App’x 963 (11th Cir. Nov. 16, 2018)
A pro se Plaintiff appealed from the district court’s remand to the Social Security Commissioner. The court did not reach the issues raised in Plaintiff’s appeal as the district court’s decision failed to state under which provision of § 405(g) it had remanded the case, sentence four or sentence six. Due to “the significant and material differences” between the two types of types of district court remands under 42 U.S.C.S. § 405(g), the court vacated the remand order and remanded the case to the district court to identify the provision of 42 U.S.C. § 405(g) on which it relied.
Woods v. Berryhill, 888 F.3d 686 (4th Cir. 2018).
Plaintiff applied for disability insurance benefits due to arthritis and fibromyalgia; her work history consisted of various production and manufacturing jobs, which required her to lift up to 50 pounds and to walk/stand/crouch for 7 hours per day. The ALJ found that Plaintiff had the RFC to perform medium exertion work, and that she could return to her past relevant work (and he made alternative step 5 findings). The district court affirmed the ALJ’s denial of benefits.
On appeal, Plaintiff argues that the ALJ erred in his treatment of the NCDHHS disability decision, which found that she was entitled to receive Medicaid and was a credible witness. The court noted that disability decisions by other agencies are not binding, but the ALJ “should explain the consideration given to these decisions in the notice of decision for hearing cases.” 71 Fed. Reg. 45,597; see also DeLoatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983). The court also noted that while it has considered the weight to be accorded to a VA disability rating (which is substantial weight because “’the purpose and evaluation methodology” of’ the SSA and VA disability determinations are ‘closely related’ and ‘a disability rating by one of the two agencies is highly relevant to the disability determination of the other agency’”), “[t]his court has not yet addressed the precise weight an ALJ must give to a stage agency’s disability determination.” The court could “see no reason why this logic [as to why VA disability ratings are accorded substantial weight] does not apply to NCDHHS disability decisions”, as “[b]oth NCDHHS and Social Security disability insurance benefits ‘serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability.’” The court therefore found that “’[b]ecause the purpose and evaluation methodology of both programs are closely related, . . . in making a disability determination, the SSA must give substantial weight to’ an NCDHHS disability decision.” Bird v. Comm’r of Soc. Sec., 699 F.3d 337, 343 (4th Cir. 2012).
The court stated that “an ALJ may deviate from this default rule and accord an NCDHHS disability decision less than ‘substantial weight’ if ‘the record before the ALJ clearly demonstrates that such a deviation is appropriate’”; consistent with the Fifth and Ninth Circuits, the court concluded that “in order to demonstrate that it is ‘appropriate’ to accord less than ‘substantial weight’ to an NCDHHS disability decision, an ALJ must give ‘persuasive, specific, valid reasons for doing so that are supported by the record.’” The court provided a few examples, stating “[f]or example, an ALJ could explain which aspects of the prior agency decision he finds not credible and why, describe why he finds other evidence more credible, and discuss the effect of any new evidence made available after NCDHHS issued its decision. . . [t]his list is not exclusive, but the point of this requirement – and of these examples – if that the ALJ must adequately explain his reasoning; otherwise, we cannot engage in a meaningful review.”
Turning to the facts of the case, the court concluded that the ALJ’s assignment of “little weight” to the NCDHHS determination based on a “generic” explanation that they are separate and distinct programs “is neither persuasive nor specific”, and thus the ALJ did not adequately justify his decision to assign the NCDHHS decision less than substantial weight. The court further rejected the Commissioner’s post hoc rationales as issues not discussed by the ALJ, and thus the court could not perform meaningful judicial review.
Turning to other arguments raised by Plaintiff, the court first agreed that the ALJ never explained how he concluded, based on the evidence he found “credible, useful, and consistent”, that Plaintiff could perform the tasks required by “medium work”, such as lifting up to 50 pounds at a time, frequently lifting or carrying up to 25 pounds, or standing or walking for 6 hours. The court also found that the ALJ erred in considering the type of activities Plaintiff could perform without also considering the extent to which she could perform them. The court found the ALJ’s discussion of some of the medical opinions to be “conclusory or sparse”, and “caution[ed] the ALJ to provide better explanation” on remand. Finally, the court was “skeptical” of the ALJ’s decision to accord great weight to a non-examining and non-treating physician while discounting the opinions of physicians who did examine and treat Plaintiff; the court advised the ALJ to “consider these potential shortcomings [i.e., the reviewer’s failure to explain how he arrived at his conclusions, which conflict with the opinions of the examining and treating physicians and Plaintiff’s testimony] on remand.” Reversed and remanded.
Thomas v. Berryhill, 2019 U.S. App. LEXIS 1312, __ Fed. Appx. __ (4th Cir. Jan. 15, 2019).
Plaintiff applied for supplemental security income based on a combination of physical and mental impairments; the ALJ found that Plaintiff had the RFC to perform light exertion work with the following mental limitations: short, simple instructions, routine tasks, no work requiring a production rate or demand pace, occasional public interaction, frequent interaction with coworkers and supervisors, and must avoid work involving crisis situations, complex decision making, or constant changes in a routine setting. The ALJ denied Plaintiff’s claim at step 5; this decision was affirmed by the district court. On appeal, Plaintiff raised two arguments: (1) the ALJ did not sufficiently explain her conclusions regarding Plaintiff’s mental impairments; and (2) the ALJ did not identify or resolve the apparent conflict between the DOT and the vocational expert’s testimony.
Regarding the first argument, the court found that “a proper RFC analysis has three components: (1) evidence, (2) logical explanation, and (3) conclusion. The second component, the ALJ’s logical explanation, is just as important as the other two. Indeed, our precedent makes clear that meaningful review is frustrated when an ALJ goes straight from listing evidence to stating a conclusion.” The court found that the ALJ’s analysis of Plaintiff’s RFC “contains too little logical explanation for us to conduct meaningful appellate review.” The court then pointed out four particular flaws in the ALJ’s analysis which it found “trouble[ing].” First, “the ALJ drew no explicit conclusions about how [Plaintiff’s] mental limitations affect her ability to perform job-related tasks for a full workday – a benchmark established by the Administration’s own regulations.” Second, “the ALJ did not sufficiently explain how she weighed significant evidence related to [Plaintiff’s] mental-health treatment”, including why she declined to discuss Plaintiff’s mental health evaluations with her mental health providers, or why she only cited “normal” mental status examinations rendered by physicians treating her chronic foot pain. Third, “[s]tating a claimant’s RFC before conducting a function-by-function analysis is an error – even though, on its own, it does not necessarily require remand.” Fourth, the ALJ did not adequately explain the limitation that Plaintiff cannot perform work “requiring a production rate or demand pace” and, contrary to the Commissioner’s assertions, these terms are not “common enough for us to know what they mean without elaboration.” The court concluded: “Combined, the above-listed missteps in the ALJ’s RFC evaluation frustrate our ability to conduct meaningful appellate review, requiring us to vacate and remand. In so doing, we express no opinion on whether the ALJ’s RFC findings were correct. We simply ask the ALJ to give us a clearer window into her reasoning.”
Plaintiff’s second argument is that the ALJ erred in failing to identify and resolve the “apparent conflict” between a limitation to “short, simple instructions” (as found in the RFC) and a need to carry out “detailed but involved . . . instructions” (as found in jobs requiring level 2 reasoning). The court noted that an ALJ must ask the vocational expert whether his testimony conflicts with the DOT; if the answer is yes, then “the ALJ ‘must elicit a reasonable explanation for the conflict before relying on’ the testimony. However, even when the answer is no, “the ALJ has an affirmative ‘duty to make an independent identification of apparent conflicts’”, meaning that “the ALJ must recognize and resolve ways in which a VE’s testimony ‘seems to, but does not necessarily’ conflict with the ‘express language’ of the DOT – even if the conflict is not ‘obvious.’” Pearson v. Colvin, 810 F.3d 204, 209-10 (4th Cir. 2015).
After discussing the apparent conflict in Pearson (overhead reaching), the court found “[t]he VE’s testimony is this case contains a comparable conflict with the DOT.” The VE identified three reasoning level 2 jobs, even though the RFC limited Plaintiff to jobs involving only “short, simple instructions.” The court stated: “We believe that [Plaintiff], being limited to short, simple instructions, may not be able to carry out detailed but uninvolved instructions. This is not a categorical rule – some instructions, particularly if they are well-drafted, may be simultaneously short, simple, detailed, and uninvolved. Even so, the conflict between [Plaintiff’s] limitation to short, simple instructions and the VE’s testimony that [she] could perform jobs that include detailed but uninvolved instructions is as apparent as the conflict we identified in Pearson. Since we held that an apparent conflict existed in Pearson, we are satisfied that one exists in this case, too.” Vacated and remanded.
Perry v. Berryhill, 2019 U.S. App. LEXIS 6969 (4th Cir. Mar. 8, 2019).
Plaintiff filed for disability benefits after a stroke; he was found to have both physical and mental limitations due to his stroke. The mental RFC limited him to unskilled work and non-production oriented work setting. The ALJ denied his claim at step 5, which the district court affirmed.
On appeal, Plaintiff challenged the RFC assessment. The court found that the ALJ did not explain what she meant by “non-production oriented work setting”, this phrase was not defined in the regulations, nor was this phrase commonly used in case law or otherwise self-explanatory. As a result, the court concluded it “‘remain[ed] uncertain as to what the ALJ intended’ and cannot meaningfully assess whether there is a ‘logical bridge’ between the evidence in the record and the ALJ’s conclusion.” The court found the “missing explanation… particularly important because it is undisputed that [Plaintiff’s] stroke left him with limitations in concentration, persistence and pace” and those accommodations are not adequately accounted for by the ALJ’s other limitation to “unskilled work.” As the court was left to “guess about how [she] arrived at [her] conclusions” and left it “uncertain as to what [she] intended,” the court vacated and remanded, with instructions for the ALJ to “give us a ‘clearer window into her reasoning.’”
Call us today for a free consultation: 866.438.8773