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Throckmorton v. Berryhill

United States District Court, W.D. Virginia, Danville Division

January 2, 2018

FELICIA FAYE THROCKMORTON, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT & RECOMMENDATION

          Joel C. Hoppe United States Magistrate Judge

         Plaintiff Felicia Faye Throckmorton asks this Court to review the Acting Commissioner of Social Security's (“Commissioner”) final decision denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434, 1381-1383f. The case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 12. Having considered the administrative record, the parties' briefs, and the applicable law, I find that the decision is not supported by substantial evidence. Accordingly, I recommend that the decision be reversed and the case be remanded under the fourth sentence of 42 U.S.C. § 405(g) to give the Commissioner another opportunity to explain her findings and conclusions.

         I. Standard of Review

         The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. 42 U.S.C. §§ 405(g), 1383(c)(3); see also Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not “reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, a court reviewing the merits of the Commissioner's final decision asks only whether the Administrative Law Judge (“ALJ”) applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011); see Riley v. Apfel, 88 F.Supp.2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98-100 (1991)).

         “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). It is “more than a mere scintilla” of evidence, id., but not necessarily “a large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984). Ultimately, this Court must affirm the ALJ's factual findings if “conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996)). However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         A person is “disabled” if he or 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); accord 20 C.F.R. §§ 404.1505(a), 416.905(a). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See Heckler v. Campbell, 461 U.S. 458, 460-62 (1983); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.

         II. Procedural History

         This case involves Throckmorton's fourth attempt since March 2003 to obtain disability benefits. See Administrative Record (“R.”) 10, ECF No. 9-1. Throckmorton filed the underlying applications on August 27, 2012, alleging that she is disabled because of anxiety attacks and depression, migraine headaches, emphysema, bilateral carpal tunnel syndrome, two herniated discs in her back, and toxoplasmosis. R. 78, 88. She says that she has been disabled since May 18, 2012, which is one day after ALJ Charles Boyer issued a written decision denying her third application for benefits. R. 10, 63-73, 78, 88. The Commissioner rejected Throckmorton's current claims initially in November 2012 and on reconsideration in August 2013. R. 98-99, 134-35. On February 5, 2015, Throckmorton appeared with counsel for an administrative hearing before ALJ Brian Kilbane. R. 39-58. Throckmorton and a vocational expert (“VE”) both testified at the hearing. R. 42-53, 53-57.

         ALJ Kilbane issued an unfavorable decision on February 20, 2015. R. 10-31. He first found that Throckmorton had not worked since May 18, 2012, and that she met the Act's insured status requirements through June 30, 2014.[1] R. 13. At step two, ALJ Kilbane found that Throckmorton had “the following severe impairments: degenerative disc disease, degenerative joint disease, asthma, chronic obstructive pulmonary disease . . ., major depressive disorder[, ] and panic disorder without agoraphobia.”[2] Id. None of these impairments, alone or combined, met or medically equaled one of the presumptively disabling impairments listed in the Act's regulations. R. 13-16. As part of his step-three analysis, the ALJ also found that Throckmorton had “mild” limitations performing daily activities, “moderate difficulties” in social functioning, and “moderate difficulties” maintaining concentration, persistence, or pace. R. 15.

         The ALJ next evaluated Throckmorton's residual functional capacity (“RFC”) based on all of her medical impairments.[3] R. 16-25. He determined that Throckmorton could perform “light work”[4] that never involved climbing ladders, ropes, or scaffolding; involved at most frequent kneeling, and occasional balancing, stooping, crouching, and climbing ramps/stairs; and avoided concentrated exposure to fumes, odors, dust, gases, and poor ventilation. R. 16. He also found that Throckmorton retained the mental capacity “to perform simple, unskilled work on a sustained basis in a competitive work environment with no more than occasional interaction with coworkers in the [sic] general public.” Id. This RFC ruled out Throckmorton's return to all of her past relevant work. R. 25. Finally, based on this RFC finding and the VE's testimony, the ALJ concluded that Throckmorton was not disabled after May 18, 2012, because she still could perform several widely available “light unskilled” occupations, such as packer, inspector/grader, and assembler. R. 26-27. The Appeals Council denied Throckmorton's request for review, R. 1- 3, and this appeal followed.

         III. Discussion

          Throckmorton's brief contains several arguments that either challenge specific aspects of ALJ Kilbane's RFC determination, see Pl.'s Br. 4-7, 11, or more broadly object to his evaluation of the medical and other relevant evidence in the record, see Id. at 8-11, 12-15. Her main objection to the RFC determination-and by extension ALJ Kilbane's reliance on the VE's testimony in response to a hypothetical question propounding the same RFC-is that the ALJ did not explain how the restriction to “simple, unskilled work” accommodated his step-three finding that Throckmorton had “moderate difficulties” maintaining concentration, persistence, or pace.[5]See Pl.'s Br. 4-5 (citing Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015)). Throckmorton also objects that ALJ Kilbane's mental RFC assessment is flawed because he appears to have assigned different weights to two facially consistent medical opinions concerning her limited ability to pay attention to and perform even simple, repetitive tasks on a consistent or sustained basis. See Id. at 5-7. The Commissioner urges the court to reject these arguments “because the evidence failed to establish additional restrictions based on [Throckmorton's] moderate deficiencies in concentration, persistence, or pace, and [she] has not shown otherwise in her brief.” Def.'s Br. 6 (citing Holley v. Comm'r of Soc. Sec., 590 F. App'x 167 (3d Cir. 2014)), ECF No. 18. Throckmorton has the better position in this case. “Given the depth and ambivalence of the [current] record, ” however, I find that the court should remand the case to give the Commissioner another opportunity to adequately explain her findings and conclusions. See Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013). Accordingly, I will limit my discussion of the evidence relevant to Throckmorton's difficulty maintaining concentration, persistence, or pace, and I will not address her broader objections to the ALJ's evaluation of the record as a whole. Pl.'s Br. 8-10, 11-15.

         A. The Legal Framework

         A claimant's RFC represents her “maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis”[6] despite her medical impairments. SSR 96-8p, 1996 WL 374184, at *2 (emphasis omitted); see 20 C.F.R. §§ 404.1545, 416.945. It is a factual finding “made by the Commissioner based on all the relevant evidence in the [claimant's] record, ” Felton-Miller v. Astrue, 459 F. App'x 226, 230-31 (4th Cir. 2011) (per curiam), and it must reflect the combined functionally limiting effects of impairments that are supported by the medical evidence or the claimant's credible symptoms, see Mascio, 780 F.3d at 640. The ALJ's RFC assessment must also “include a narrative discussion describing” how medical facts and nonmedical evidence “support[] each conclusion, ” Mascio, 780 F.3d at 636, and explaining why he discounted any “obviously probative” contradictory evidence, Arnold v. Sec'y of Health, Educ. & Welfare, 567 F.2d 258, 259 (4th Cir. 1977); see also Reid, 769 F.3d at 865. As part of this discussion, the ALJ must “build an accurate and logical bridge from the evidence to his conclusion, ” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)), that the claimant retains a certain ability to sustain work-related activities, Mascio, 780 F.3d at 636-37. Meaningful judicial review rarely is possible when the court is “left to guess about how the ALJ” reached that conclusion. Mascio, 780 F.3d at 638; see also Bradley v. Berryhill, No. 4:16cv26, 2017 WL 4707035, at *2- 4 (W.D. Va. Oct. 19, 2017).

         B. Relevant Evidence

         Throckmorton's medical records from the relevant time show that she had been diagnosed with chronic anxiety and depression and had been prescribed several medications (e.g., Celexa, Cymbalta, Lexapro, Paxil, Xanax, Zoloft) for those conditions. See generally R. 379-413, 431-502. Throckmorton's primary care provider, Johanna Thomas, M.D., typically managed these medications. Throckmorton went to Dr. Thomas's clinic for routine follow-up appointments about once a month between July 2012 and January 2015. See id. On most visits, providers observed that Throckmorton was alert, oriented, cooperative, and exhibited normal memory function. R. 380, 383, 386, 395, 398, 401, 404, 410, 454, 457, 460, 469, 482, 488, 492. They very rarely observed that Throckmorton exhibited a “flat affect, ” R. 432, or appeared “sad” and “depressed, ” R. 436, 440. Treatment notes reflect that Throckmorton's chronic anxiety and/or depressive disorder often fluctuated between “controlled” and “not controlled” throughout the relevant period. R. 380, 395, 407, 432, 437, 447, 450, 454, 466, 473, 479, 482, 495, 501. Dr. Thomas or her colleagues occasionally increased or changed Throckmorton's medications. R. 392-93, ...


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