Mascio v. Colvin

• Decision Date: 18 March 2015
• Docket Number: No. 13–2088.,13–2088.
• Citation: 780 F.3d 632
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

780 F.3d 632

Bonnilyn A. MASCIO, Plaintiff–Appellant

v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–AppelleeandMichael J. Astrue, Commissioner of Social Security, Defendant.

No. 13–2088.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 11, 2014.

Decided: March 18, 2015.

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.

Before AGEE, DIAZ, and FLOYD, Circuit Judges.

Opinion

Reversed and remanded with instructions by published opinion. Judge DIAZ wrote the opinion, in which Judge AGEE and Judge FLOYD joined.

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 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 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 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 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 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 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 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 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...