JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Gwenisse Durham Rodwell ("plaintiff' or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 17, 23. Both filed memoranda in support of their respective motions. D.E. 18, 24. The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 9 Nov. 2017 Text Ord. For the reasons set forth below, it will be recommended that plaintiffs motion be allowed, the Commissioner's motion be denied, and this case be remanded.
Plaintiff filed an application for DIB on 13 November 2013 alleging the onset of disability on 8 March 2013. Transcript of Proceedings ("Tr.") 10. The application was denied initially and upon reconsideration, and a request for hearing was timely filed. Tr. 10. On 2 November 2015, a hearing was held before an Administrative Law Judge ("ALJ"), at which plaintiff, who was represented by counsel, and a vocational expert testified. Tr. 30-80. The ALJ issued a decision denying plaintiffs claim on 13 January 2016. Tr. 10-20. Plaintiff timely requested review by the Appeals Council. Tr. 6. The Appeals Council denied the request on 17 January 2017. Tr. 1. At that time, the decision of the ALJ became the final decision of the Commissioner. See 20 C.F .R. § 404.981. Plaintiff commenced this proceeding for judicial review on 2 February 2017, pursuant to 42 U.S.C. § 405(g). See In Forma Pauperis ("IFP") Mot. (D.E. 2); Order Denying IFP Mot. (D.E. 7); Compl. (D.E. 8).
The Social Security Act ("Act") defines disability as the "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A); Pass v. Chafer, 65 F.3d 1200, 1203 (4th Cir. 1995). "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 kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
Plaintiff was 33 years old on the alleged onset date of disability and 35 years old on the date of the hearing. See Tr. 19 ¶ 7; 36. The ALJ found that she has a limited education. Tr. 19 ¶ 8. Her past relevant work included employment as a mental retardation aide
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the All found at step one that plaintiff had not engaged in substantial gainful activity since the alleged onset of disability. Tr. 12 ¶ 2. At step two, the All found that plaintiff had the following medically determinable impairment that was severe within the meaning of the Regulations: disorders of the back, which are discogenic and degenerative, and obesity. Tr. 12 ¶ 3. At step three, the All found that plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the Listings. Tr. 12 ¶ 4.
The All next determined that plaintiff had the RFC to perform a limited range of work at the light exertional level, as follows:
Tr. 13 ¶ 5.
At step four, the ALJ found that plaintiff was unable to perform her past relevant work. Tr. 19 ¶ 6. At step five, the ALJ accepted the testimony of the vocational expert at the hearing and found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of cashier, mail clerk, and electronics worker. Tr. 19-20 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the date of alleged onset of disability, 8 March 2013, through the date of the decision, 13 January 2016. Tr. 20 ¶ 11.
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Perales, 402 U.S. at 401.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
Plaintiff argues that the All's decision should be reversed and benefits awarded or the case remanded for consideration of a closed period of disability on the principal grounds that the All erred in his evaluation of plaintiff's obesity; assessment of plaintiff's credibility; evaluation of the medical opinions of two treating orthopedic surgeons, Ralph A. Liebelt, M.D. and Jonathan R. Prentice, M.D.; purported non-consideration of a closed period of disability; determination that plaintiff did not meet or medically equal Listing 1.04A; and failure to mention the determination by the Disability Income Plan of North Carolina ("DIPNC") that plaintiff is entitled to long-term disability benefits. Because the final ground is dispositive of this appeal, the court will focus its discussion on that ground.
By letter dated 31 March 2015 (Tr. 175-76), the North Carolina Department of State Treasurer notified plaintiff that on that date the Medical Board of the DIPNC approved her application for long-term disability benefits, effective 9 May 2015, ostensibly earned through her work at the Murdoch Developmental Center (see Tr. 39). In his decision, the ALJ did not mention the DIPNC disability determination or cite to the notice letter to her. See Comm'r's Mem. 12 (admitting that the All did not discuss the DIPNC notice letter). Nor did the ALJ mention or cite to the other records in the administrative transcript regarding plaintiff's DIPNC long-term disability benefits, consisting of a cover letter from the State Treasurer dated 14 April 2015 transmitting forms to plaintiff (Tr. 177), a report on the estimated amount of her long-term disability benefits (Tr. 178-79), and a forwarding letter from plaintiff's counsel and a copy of a relevant statute (Tr. 174, 181), discussed further below.
The ALP's failure to address the DIPNC long-term disability determination was error. Under 20 C.F.R. § 404.1504, a decision by any governmental or nongovernmental agency about whether a claimant is disabled is not binding on the Social Security Administration. Nonetheless, the Fourth Circuit has ruled, quoting Social Security Ruling 06-03p, that "another agency's disability determination `cannot be ignored and must be considered.'" Bird v. Colvin, 699 F.3d 337, 343 (4th Cir. 2012) (quoting Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *6 (9 Aug. 2006)). The ruling explains that "[t]hese decisions, and the evidence used to make these decisions, may provide insight into the individual's mental and physical impairment(s) and show the degree of disability determined by these agencies based on their rules." Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *7. Furthermore, the All should explain the weight given the disability decision by the other agency. Id. ("[T]he adjudicator should explain the consideration given to these decisions in the notice of decision for hearing cases. . . ."); see also Owens v. Barnhart, 444 F.Supp.2d 485, 492 (D.S.C. 2006) (holding that an ALJ should be "required to provide sufficient articulation of his reasons for [rejecting another agency's disability determination] to allow for a meaningful review by the courts").
Here, the failure of the ALJ to mention the DIPNC determination leaves unclear what, if any, weight he gave to it, including the extent to which he recognized and took into account any differences in the standards governing the DIPNC determination and Social Security disability standards. The ambiguity is enhanced, in part, by the ALJ's repeated representations that he considered all the evidence of record. See Tr. 10 ("After careful consideration of all the evidence. . . ."); 12 ("After careful consideration of the entire record. . . ."); 13 ¶ 5 (same); 16 ¶ 5 ("After careful consideration of the evidence. . . .").
Moreover, there was discussion of plaintiffs DIPNC long-term disability benefits at the hearing. They initially came up when the ALJ himself inquired about the over $8,000 plaintiff was reported in the record as receiving in 2014 from "employer" DIPNC. See Tr. 166 (earning rep.). The ALJ asked plaintiff whether this amount was worker's compensation or disability benefits. Tr. 39. Plaintiff explained that for a short period she had received short-term disability benefits in connection with her work at the Murdoch Developmental Center, but that she was now receiving long-term disability benefits.
Additionally, in closing argument, plaintiffs counsel pointed to plaintiffs approval for DIPNC long-term disability benefits:
Tr. 75.
The AU then inquired whether the award of long-term disability benefits was documented in the record. Tr. 75-76. Plaintiff herself apparently produced the 31 March 2015 notice letter (Tr. 77),
These circumstances clearly suggest that the ALJ did not simply ignore the DIPNC determination, but did, in fact, consider it, though keeping to himself his evaluation of it. The court could speculate as to the ALJ's analysis of the determination, but that is not its role. See Henson v. Colvin, No. 2:14-cv-17372, 2015 WL 5174325, at *5 (S.D.W. Va. 10 Aug. 2015) ("It is not the role of the Court to search for evidence and articulate for the ALJ's decision [that] which the All himself did not articulate."), rep. & recomm. adopted, 2015 WL 5174236 (2 Sept. 2015); Pushkal v. Colvin, No. 5:12-CV-223-FL, 2013 WL 4828560, at *7 (E.D.N.C.) ("[I]t is not the court's role to speculate about . . . what the [ALJ's] intended but unexpressed meaning might be."), mem. & recomm. adopted, 2013 WL 4828560, at *7 (10 Sept. 2013). Without an adequate explanation of the ALJ's assessment of the DIPNC determination, the court cannot conduct a meaningful substantial evidence review of the All's decision. See Radford, 734 F.3d at 295 ("A necessary predicate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling."); see also Monroe v. Colvin, 826 F.3d 176, 189 (holding that an ALJ must "`build an accurate and logical bridge from the evidence to his conclusion' to enable meaningful substantial evidence review (quoting Clifford, 227 F.3d 863, 872 (7th Cir. 2000))); Baughman v. Colvin, No. 5:13-CV-143-FL, 2014 WL 3345030, at *8 (E.D.N.C.) (ruling that the All failed to "`provide sufficient articulation for his reasons for [dismissing the Medicaid decision] so to allow for a meaningful review by the courts') (quoting Taylor v. Astrue, No. 7:10-CV-149-FL, 2011 WL 2669290, at *5 (E.D.N.C. 7 July 2011)), mem. & recomm. adopted, 2014 WL 3345030, at *1 (8 July 2014). Remand is accordingly required. See Radford, 734 F.3d at 295; see also Monroe, 826 F.3d at 190-91; Henson, 2015 WL 5174325, at *6 (recommending remand where the ALJ did not mention the determination in the record before him awarding plaintiff W. Va. long-term disability benefits); Taylor v. Colvin, No. 4:14-CV-81-FL, 2015 WL 4208773, at *5 (E.D.N.C. 16 June 2015) (same re DIPNC long-term disability benefits), mem. & recomm. adopted, 2015 WL 4208802, at *1 (8 July 2015); Best v. Colvin, No. 4:13-CV-231-D, 2015 WL 400560, at *6-7 (E.D.N.C. 12 Jan. 2015) (recommending remand where plaintiff testified before the ALJ about DIPNC determination awarding him long-term disability benefits but first submitted the determination letter and related records to the Appeals Council) (collecting cases), mem. & recomm. adopted, 2015 WL 400560, at *1 (28 Jan. 2015); Batchelor v. Colvin, 962 F.Supp.2d 864, 867-68 (E.D.N.C. 2013) (No. 5:11-CV-533-FL) (ordering remand for failure of the ALJ to discuss a disability determination by the North Carolina Department of Health and Human Services in the record before the ALJ) (collecting cases).
The Commissioner contends that remand is not required because the error by the ALJ should be deemed harmless. See Comm'r's Mem. 11-13. She cites, among other reasons, the lack of an explanation for the DIPNC determination or citation to supporting medical evidence in the DIPNC-related records; the nonbinding nature of the DIPNC determination on the Social Security Administration; and the purported differences in the standard for the award of DIPNC long-term disability benefits from the standard for the award of DIB. The failure to address the DIPNC determination, though, is tantamount to harmful error and alone requires remand. See, e.g., Best, 2015 WL 400560, at *7; Batchelor, 962 F. Supp. 2d at 867-68. This fact defeats the Commissioner's further contention that plaintiff failed to identify prejudice resulting from the ALF's error.
In any event, after-the-fact speculation by the Commissioner as to what might have justified the ALJ in discounting the DIPNC determination is no substitute for the analysis upon which the ALJ actually relied. Moreover, the court cannot dismiss the possibility that proper analysis of the DIPNC determination would have resulted in a different outcome of this case.
The Commissioner also cites the Appeals Council's determination that the DIPNC-related records were duplicates of records already in the administrative transcript and that neither these records nor the other evidence in the administrative transcript provided a basis for changing the ALJ's decision. But the Appeals Council provided no explanation of its apparent discounting of the DIPNC determination. The Appeals Council's ruling therefore provides no more insight into disposition of the DIPNC determination than the ALJ's decision. See Best, 2015 WL 400560, at *7.
For the foregoing reasons, IT IS RECOMMENDED that plaintiffs motion (D.E. 17) for judgment on the pleadings be ALLOWED, the Commissioner's motion (D.E. 23) for judgment on the pleadings be DENIED, and this case be REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum and Recommendation.
In making this ruling, the court expresses no opinion on the weight that should be accorded any piece of evidence. That is a matter for the Commissioner to decide.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 22 January 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
Any response to objections shall be filed within 14 days after the filing of the objections.
20 C.F.R. § 404.1567(b); see also Dictionary of Occupational Titles ("DOT"), app. C § IV, def. of "L-Light Work" (U.S. Dep't of Labor 4th ed. rev. 1991), 1991 WL 688702. "Light work" and the other terms for exertional level as used in the Regulations have the same meaning as in the DOT. See 20 C.F.R. § 404.1567.
Tr. 39.
