Filed: Mar. 18, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2088 BONNILYN A. MASCIO, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant – Appellee, and MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Louise W. Flanagan, District Judge. (2:11-cv-00065-FL) Argued: December 11, 2014 Decided: March 18, 2015 Before AGEE, DIAZ
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2088 BONNILYN A. MASCIO, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant – Appellee, and MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. Appeal from the United States District Court for the Eastern District of North Carolina, at Elizabeth City. Louise W. Flanagan, District Judge. (2:11-cv-00065-FL) Argued: December 11, 2014 Decided: March 18, 2015 Before AGEE, DIAZ,..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2088
BONNILYN A. MASCIO,
Plaintiff − Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant – Appellee,
and
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Louise W.
Flanagan, District Judge. (2:11-cv-00065-FL)
Argued: December 11, 2014 Decided: March 18, 2015
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Reversed and remanded with instructions by published opinion.
Judge Diaz wrote the opinion, in which Judge Agee and Judge
Floyd joined.
ARGUED: David J. Cortes, ROBERTI, WITTENBERG, LAUFFER, WICKER &
CINSKI, P.A., Durham, North Carolina, for Appellant. Mark J.
Goldenberg, SOCIAL SECURITY ADMINISTRATION, Baltimore, Maryland,
for Appellee. ON BRIEF: Thomas G. Walker, United States
Attorney, R.A. Renfer, Jr., Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
2
DIAZ, Circuit Judge:
Bonnilyn Mascio appeals the Social Security
Administration’s denial of her application for supplemental
security income benefits. Because we conclude that the
administrative law judge erred by not conducting a function-by-
function analysis, by ignoring (without explanation) Mascio’s
moderate limitation in her ability to maintain her
concentration, persistence, or pace, and by determining Mascio’s
residual functional capacity before assessing her credibility,
we reverse and remand.
I.
A.
Mascio alleges that she is disabled from severe
degenerative disc disease, carpal tunnel syndrome, and
adjustment disorder. 1 In 2008, an administrative law judge
(“ALJ”) found that Mascio was not disabled, but the district
1
An “adjustment disorder” is “a disorder the essential
feature of which is a maladaptive reaction to an identifiable
psychological stress, or stressors, that occurs within weeks of
the onset of the stressors and persists for as long as 6 months;
the maladaptive nature of the reaction is indicated by
impairment in occupational (including school) functioning, or in
usual social activities or relationships with others, or with
symptoms that are in excess of a normal or expectable reaction
to the stressor.” Stedman’s Medical Dictionary 259610 (28th ed.
2006).
3
court reversed and the case was remanded to a second ALJ for
another hearing and disability determination. The second ALJ
found that Mascio was not disabled from March 15, 2005, to
November 30, 2009. 2 Mascio lost her administrative appeal and
filed a complaint in the district court, which granted the
Commissioner’s motion for judgment on the pleadings and upheld
the denial of benefits. This appeal followed.
B.
We review de novo a district court’s decision on a motion
for judgment on the pleadings. Korotynska v. Metro. Life Ins.
Co., 474 F.3d 101, 104 (4th Cir. 2006). We will affirm the
Social Security Administration’s disability determination “when
an ALJ has applied correct legal standards and the ALJ’s factual
findings are supported by substantial evidence.” Bird v. Comm’r
of Soc. Sec. Admin.,
699 F.3d 337, 340 (4th Cir. 2012). Mascio
does not dispute the ALJ’s factual findings but argues that the
ALJ made four legal errors by (1) not conducting a function-by-
function analysis; (2) not including Mascio’s concentration,
persistence, or pace limitation in his hypothetical to the
vocational expert; (3) determining Mascio’s residual functional
capacity before assessing her credibility; and (4) not applying
2
While her first appeal was pending, the Social Security
Administration approved Mascio’s application for benefits from
an onset date of December 1, 2009.
4
the so-called “great weight rule” to Mascio’s subjective claims
of pain.
Before turning to Mascio’s arguments, we provide an
overview of the five-step sequential evaluation that ALJs use to
make disability determinations.
C.
The Social Security Administration regulations describe the
five-step process in detail. See 20 C.F.R. § 416.920(a)(4)
(2014). To summarize, the ALJ asks at step one whether the
claimant has been working; at step two, whether the claimant’s
medical impairments meet the regulations’ severity and duration
requirements; at step three, whether the medical impairments
meet or equal an impairment listed in the regulations; at step
four, whether the claimant can perform her past work given the
limitations caused by her medical impairments; and at step five,
whether the claimant can perform other work.
The first four steps create a series of hurdles for
claimants to meet. If the ALJ finds that the claimant has been
working (step one) or that the claimant’s medical impairments do
not meet the severity and duration requirements of the
regulations (step two), the process ends with a finding of “not
disabled.” At step three, the ALJ either finds that the
claimant is disabled because her impairments match a listed
5
impairment or continues the analysis. The ALJ cannot deny
benefits at this step.
If the first three steps do not lead to a conclusive
determination, the ALJ then assesses the claimant’s residual
functional capacity, which is “the most” the claimant “can still
do despite” physical and mental limitations that affect her
ability to work. Id. § 416.945(a)(1). To make this assessment,
the ALJ must “consider all of [the claimant’s] medically
determinable impairments of which [the ALJ is] aware,” including
those not labeled severe at step two.
Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find
the claimant not disabled because she is able to perform her
past work. Or, if the exertion required for the claimant’s past
work exceeds her residual functional capacity, the ALJ goes on
to step five.
At step five, the burden shifts to the Commissioner to
prove, by a preponderance of the evidence, that the claimant can
perform other work that “exists in significant numbers in the
national economy,” considering the claimant’s residual
functional capacity, age, education, and work experience. Id.
§§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner
typically offers this evidence through the testimony of a
vocational expert responding to a hypothetical that incorporates
the claimant’s limitations. If the Commissioner meets her
6
burden, the ALJ finds the claimant not disabled and denies the
application for benefits.
In this case, at step one, the ALJ determined that Mascio
had not been working. At step two, he found that Mascio had
four severe impairments--degenerative disc disease, carpal
tunnel syndrome, adjustment disorder, and a history of substance
abuse--that, alone or together, met the regulations’ duration
requirement. At step three, he decided that Mascio’s
impairments did not meet or equal any of the impairments listed
in the regulations.
The ALJ then found that Mascio had the residual functional
capacity to perform “light work,” 3 except that she was further
limited to “chang[ing] between sitting and standing every 30
minutes (‘sit/stand option’); only occasional climbing,
balancing, bending, stooping, crouching or crawling; no more
than frequent fingering; no exposure to hazards such as
3
The regulations define light work as
lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a
good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of
performing a full or wide range of light work, [the
claimant] must have the ability to do substantially
all of these activities.
20 C.F.R. § 416.967(b).
7
unprotected heights or dangerous machinery; and, due to her
adjustment disorder, only unskilled work.” A.R. 492. At step
four, he concluded that Mascio could not perform her past work
based on her residual functional capacity. Finally, at step
five, he found that Mascio could perform other work and
therefore was not disabled.
II.
With this background in mind, we turn to Mascio’s
contentions of error.
A.
Mascio first argues that the ALJ erred in assessing her
residual functional capacity because he did not conduct a
function-by-function analysis. We agree that, on the facts of
this case, the ALJ’s failure to perform this analysis requires
remand.
Mascio’s argument rests on Social Security Ruling 96-8p, 4
which explains how adjudicators should assess residual
functional capacity. The Ruling instructs that the residual
functional capacity “assessment must first identify the
individual’s functional limitations or restrictions and assess
4
The Ruling’s title is “Policy Interpretation Ruling Titles
II and XVI: Assessing Residual Functional Capacity in Initial
Claims.”
8
his or her work-related abilities on a function-by-function
basis, including the functions” listed in the regulations. 5 SSR
96-8p, 61 Fed. Reg. 34,474, 34,475 (July 2, 1996). “Only after
that may [residual functional capacity] be expressed in terms of
the exertional levels of work, sedentary, light, medium, heavy,
and very heavy.” Id. 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).”
Id. at 34,478.
Mascio contends that the ALJ did not follow these
procedures. The Commissioner responds that Mascio’s argument is
“moot” because the ALJ found at step four that Mascio could not
perform her past work. We, however, find the Commissioner’s
argument unconvincing because ALJs clearly use the residual
5
The listed functions are the claimant’s (1) physical
abilities, “such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions
(including manipulative or postural functions, such as reaching,
handling, stooping or crouching)”; (2) mental abilities, “such
as limitations in understanding, remembering, and carrying out
instructions, and in responding appropriately to supervision,
coworkers, and work pressures in a work setting”; and (3) other
work-related abilities affected by impairments “such as skin
impairment(s), epilepsy, impairment(s) of vision, hearing or
other senses, and impairment(s) which impose environmental
restrictions.” 20 C.F.R. § 416.945(b)-(d).
9
functional capacity finding at steps four and five. See id. at
34,475-76; see also
id. at 34,476 (“At step 5 of the sequential
evaluation process, . . . [w]ithout a careful consideration of
an individual’s functional capacities to support [a residual
functional capacity] assessment based on an exertional category,
the adjudicator may either overlook limitations or restrictions
that would narrow the ranges and types of work an individual may
be able to do, or find that the individual has limitations or
restrictions that he or she does not actually have.” (emphasis
added)).
Alternatively, the Commissioner urges us to join other
circuits that have rejected a per se rule requiring remand when
the ALJ does not perform an explicit function-by-function
analysis. See, e.g., Cichocki v. Astrue, 729 F.3d 172, 177 (2d
Cir. 2013) (per curiam) (citing cases from the Sixth, Seventh,
Eighth, and Ninth Circuits). We agree that a per se rule is
inappropriate given that remand would prove futile in cases
where the ALJ does not discuss functions that are “irrelevant or
uncontested.”
Id. But declining to adopt a per se rule does
not end our inquiry. In that regard, we agree with the Second
Circuit that “[r]emand may be appropriate . . . where an ALJ
fails to assess a claimant’s capacity to perform relevant
functions, despite contradictory evidence in the record, or
10
where other inadequacies in the ALJ’s analysis frustrate
meaningful review.” Id. We find this to be such a case.
Here, the ALJ has determined what functions he believes
Mascio can perform, but his opinion is sorely lacking in the
analysis needed for us to review meaningfully those conclusions.
In particular, although the ALJ concluded that Mascio can
perform certain functions, he said nothing about Mascio’s
ability to perform them for a full workday. The missing
analysis is especially troubling because the record contains
conflicting evidence as to Mascio’s residual functional
capacity--evidence that the ALJ did not address.
For example, the administrative record includes two
residual functional capacity assessments (Exhibits 12F and 20F)
by state agency disability examiners. These assessments
conflict with each other. Exhibit 12F states that Mascio can
lift 50 pounds, but Exhibit 20F limits her to 20 pounds. Yet
the ALJ’s findings are more consistent with Exhibit 20F, about
which he said nothing. To make matters worse, the ALJ’s
discussion of Exhibit 12F trails off right where he was poised
to announce the weight he intended to give it:
11
A. 496 (emphasis added).
Because we are left to guess about how the ALJ arrived at
his conclusions on Mascio’s ability to perform relevant
functions and indeed, remain uncertain as to what the ALJ
intended, remand is necessary.
B.
Mascio next argues that the ALJ presented a legally
insufficient hypothetical to the vocational expert. 6 The ALJ
asked the expert if jobs existed for a hypothetical person with
Mascio’s age, education, and work experience, where the claimant
is “limited to light work but [can] sit or stand at will about
every 30 minutes, and [can] do only occasional postural
activities such as balancing, stooping, kneeling, crouching,
6
We find it appropriate to address Mascio’s other alleged
errors because they could recur on remand.
12
crawling and climbing; [but cannot be] expos[ed] to hazardous
conditions such as heights or moving machinery; and can do . . .
frequent fingering.” A.R. 586. Notably, the hypothetical said
nothing about Mascio’s mental limitations.
The vocational expert responded that there were unskilled,
light work jobs for that person, including office helper, order
caller, and warehouse checker. 7 The ALJ’s hypothetical, together
with the vocational expert’s unsolicited addition of “unskilled
work,” matched the ALJ’s finding regarding Mascio’s residual
functional capacity. Thus, the hypothetical was incomplete only
if the ALJ failed to account for a relevant factor when
determining Mascio’s residual functional capacity. According to
Mascio, that is precisely what happened--the ALJ did not
consider her mental limitations despite crediting at step three
Mascio’s diagnosis of an adjustment disorder and also finding
that Mascio had moderate difficulties in maintaining her
concentration, persistence, or pace as a side effect of her pain
medication.
7
Although the ALJ’s hypothetical said nothing about
“unskilled work,” the expert added that limitation to her
response. The regulations define unskilled work as “work which
needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R.
§ 416.968(a).
13
The Commissioner argues that the ALJ properly excluded any
limitation for concentration, persistence, or pace because the
ALJ (1) disbelieved Mascio’s need for pain medication because
she had been convicted of selling her prescription pain
medication and had lied to her doctor about using marijuana; and
(2) disbelieved Mascio’s claim that her pain medication caused
daytime fatigue because she never sought treatment for this side
effect. 8
As to the first point, the ALJ’s analysis does not go as
far as the Commissioner’s does. The ALJ concluded only that
Mascio’s conviction and lie “make[] her statements that her pain
is as limiting as she has alleged less credible.” A.R. 496
(emphasis added). The ALJ did not find that she suffered from
no pain or that she never took medication for it.
As to the second point, it is true that the ALJ concluded
that Mascio’s allegation that her pain caused daytime fatigue
was “less credible” because she did not complain about this side
effect to her doctors. A.R. 496. But this leaves us to wonder
8
The Commissioner also says that the ALJ properly excluded
the limitation for concentration, persistence, or pace because
Mascio did not attend five scheduled follow-up appointments with
a mental health counselor. But those appointments related to
her adjustment disorder, not side effects from pain medication.
And, despite Mascio not following up for treatment, the ALJ
credited Mascio’s adjustment disorder as requiring a limitation
to unskilled work.
14
if the ALJ found her claim of fatigue partially or completely
incredible, particularly since the ALJ elsewhere concluded that
Mascio’s pain medication “impacts her thought processes.” A.R.
491. We think this inconsistency needs to be explained.
In addition, we agree with other circuits 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.
Perhaps the ALJ can explain why Mascio’s moderate
limitation in concentration, persistence, or pace at step three
does not translate into a limitation in Mascio’s residual
functional capacity. For example, the ALJ may find that the
concentration, persistence, or pace limitation does not affect
Mascio’s ability to work, in which case it would have been
appropriate to exclude it from the hypothetical tendered to the
vocational expert. See id. at 1181. But because the ALJ here
gave no explanation, a remand is in order.
15
C.
Next, Mascio contends that the ALJ erred by determining her
residual functional capacity before assessing her credibility.
We agree that the ALJ erred, and that the error was not
harmless.
Mascio’s argument stems from the ALJ’s use of the following
language in his opinion:
After careful consideration of the evidence, the
undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to
the extent they are inconsistent with the above
residual functional capacity assessment.
A.R. 495. We agree with the Seventh Circuit that this
boilerplate 9 “gets things backwards” by implying “that ability to
work is determined first and is then used to determine the
claimant’s credibility.” Bjornson, 671 F.3d at645.
The boilerplate also conflicts with the agency’s own
regulations, which direct the ALJ to “determine the extent to
which [the claimant’s] alleged functional limitations and
restrictions due to pain or other symptoms can reasonably be
9
As the government concedes, this language comes from a
template “drafted by the Social Security Administration for
insertion into any administrative law judge’s opinion to which
it pertains.” Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th
Cir. 2012).
16
accepted as consistent with the medical signs and laboratory
findings and other evidence to decide how [the claimant’s]
symptoms affect [his or her] ability to work.” 20 C.F.R.
§ 416.929(a). Thus, the ALJ here should have compared Mascio’s
alleged functional limitations from pain to the other evidence
in the record, not to Mascio’s residual functional capacity.
The boilerplate also suggests that the ALJ acted contrary
to the agency’s rulings. Social Security Ruling 96-8p defines
residual functional capacity as “an administrative assessment of
the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and
mental activities.” SSR 96-8p, 61 Fed. Reg. at 34,475 (emphasis
added). And when explaining that the residual functional
capacity “assessment must be based on all of the relevant
evidence in the case record,” Ruling 96-8p’s illustrative list
includes “[e]ffects of symptoms, including pain, that are
reasonably attributed to a medically determinable impairment.”
Id. at 34,477 (second emphasis added). Thus, a claimant’s pain
and residual functional capacity are not separate assessments to
be compared with each other. Rather, an ALJ is required to
consider a claimant’s pain as part of his analysis of residual
functional capacity.
17
The ALJ’s error would be harmless if he properly analyzed
credibility elsewhere. But here, the ALJ did not. The ALJ gave
three reasons for rejecting Mascio’s statements as to pain:
Mascio (1) had not complied with follow-up mental health
treatment; (2) had lied to her doctor about using marijuana; and
(3) had been convicted for selling her prescription pain
medication.
The first reason has nothing to do with pain. With respect
to the second and third reasons, the ALJ concluded that they
made Mascio’s “statements that her pain is as limiting as she
has alleged less credible.” A.R. 496. Yet in determining
Mascio’s residual functional capacity, the ALJ chose to credit
some, but not all, of her statements.
For example, Mascio testified that “she cannot walk more
than about 100 feet, can stand for only 30 minutes, and can only
lift about 15 pounds.” A.R. 495. It appears that the ALJ
credited the second statement, by including the sit/stand option
in his finding as to residual functional capacity. But despite
Mascio’s assertion that she was limited in her ability to walk
and lift, the ALJ found that Mascio could perform “light work,”
which includes lifting up to 20 pounds and performing “a good
deal of walking.” 20 C.F.R. § 416.967(b) (defining “light
work”). Nowhere, however, does the ALJ explain how he decided
which of Mascio’s statements to believe and which to discredit,
18
other than the vague (and circular) boilerplate statement that
he did not believe any claims of limitations beyond what he
found when considering Mascio’s residual functional capacity.
The ALJ’s lack of explanation requires remand.
D.
Lastly, Mascio maintains that the ALJ erred by not
following the so-called “great weight rule” when evaluating her
alleged pain. We conclude that no such rule exists in this
circuit, and we are not persuaded to adopt it.
According to Mascio, ALJs must afford “great weight” to
subjective evidence regarding a claimant’s allegation that she
suffers from debilitating pain whenever it is uncontradicted or
supported by substantial evidence. She relies on two of our
unpublished decisions to support this proposition. See Felton-
Miller v. Astrue, 459 F. App’x 226, 229 n.1 (4th Cir. 2011);
Smith v. Astrue, 457 F. App’x 326, 329 (4th Cir. 2011).
Of course, unpublished opinions in this circuit do not bind
us. Moreover, Mascio misreads the cases. Right before the
language from Felton-Miller and Smith that Mascio quotes to
support her argument, we noted that our cases have recognized
“that subjective evidence may be entitled to great weight.”
Felton-Miller, 459 F. App’x at 229 n.1 (emphasis added); Smith,
457 F. App’x at 329 (emphasis added). Read in context, we were
not articulating a per se rule requiring that ALJs afford great
19
weight to subjective evidence or else be reversed. Rather, we
were merely stating the obvious--that an ALJ faced with
uncontradicted subjective evidence of a claimant’s pain is
likely to credit that evidence if the ALJ otherwise finds the
claimant credible. See Combs v. Weinberger, 501 F.2d 1361, 1363
(4th Cir. 1974). Similarly, an ALJ evaluating a record with
substantial evidence to support a claimant’s pain allegations
may well credit that evidence.
We also note that adopting Mascio’s prescriptive “great
weight rule” would conflict with the regulations and the
deference owed to the agency. The regulations direct an ALJ to
take into account “all of the available evidence,” not only the
claimant’s pain allegations. 20 C.F.R. § 416.929(c)(1). In
addition, this court must affirm an ALJ’s determination when
supported by substantial evidence. Bird v. Comm’r of Soc. Sec.
Admin., 699 F.3d 337, 340 (4th Cir. 2012). And it is possible
for substantial evidence to support both a claimant’s pain
allegations and the ALJ’s decision that the claimant’s pain does
not affect her ability to work to the extent that the claimant
alleges. Because Mascio’s proposed “great weight rule” is both
unnecessary and unworkable, we decline to adopt it.
20
III.
For the reasons given, we reverse the district court’s
judgment and remand with instructions to vacate the denial of
benefits and remand for further administrative proceedings.
REVERSED AND REMANDED WITH INSTRUCTIONS
21
