Mills v. N.C. Dep't of Health & Human Servs. ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-487
Filed: 20 December 2016
Haywood County, No. 14 CVS 1162
SUE MILLS, Petitioner,
v.
NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Respondent.
Appeal by petitioner from order entered 4 January 2016 by Judge Bradley B.
Letts in Haywood County Superior Court. Heard in the Court of Appeals 19 October
2016.
Hyler & Lopez, P.A., by Robert J. Lopez, for petitioner-appellant.
Roy Cooper, Attorney General, by Brenda Eaddy, Assistant Attorney General,
for respondent-appellee.
DAVIS, Judge.
This appeal requires us to address the analysis that must be undertaken in
evaluating a claimant’s application for Medicaid disability benefits. Sue Mills
(“Petitioner”) appeals from the trial court’s order affirming a determination by the
North Carolina Department of Health and Human Services (“DHHS”) that she was
not disabled and, therefore, not entitled to such benefits. After careful review, we
vacate the trial court’s order and direct the court to remand this case to DHHS for
further proceedings consistent with this opinion.
MILLS V. N.C. DEP’T OF HEALTH AND HUMAN SERVS.
Opinion of the Court
Factual Background
Petitioner is a 54-year-old woman who has a history of illnesses and symptoms
that began in the 1990s. During her thirties, she was employed as a housekeeper,
resulting in “some deterioration” in her lower back. During her early forties, her
lower back pain worsened, and she experienced anxiety, nerves, and depression. By
the time she turned fifty, Petitioner was suffering from migraine headaches,
continued anxiety and depression, pain in her lower back, problems using her hands,
strain on her neck and shoulders, weakness in her legs, and a variety of other health-
related issues.
Petitioner applied to the Social Security Administration (“SSA”) for Social
Security disability benefits in 2013. An administrative law judge (the “ALJ”)
conducted a disability hearing, and on 24 October 2013, the ALJ issued a decision
(the “Social Security Decision”) determining that Petitioner was not disabled.
Petitioner appealed the Social Security Decision, and her appeal is currently pending
in federal court.
Approximately eight months after the Social Security Decision was issued,
Petitioner applied to the Haywood County Department of Social Services (the “DSS”)
for Medicaid disability benefits. On 23 July 2014, her application was denied.
Petitioner appealed the decision to DHHS, and a hearing was held before State
Hearing Officer Linda Eckert (the “SHO”) on 8 October 2014.
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On 16 October 2014, the SHO issued a Notice of Decision (the “Agency
Decision”), which determined that: (1) Petitioner was 51 years of age and had
obtained a GED; (2) she was not presently working and had not worked since May
2014; (3) Petitioner had no “relevant past work”; (4) she had “a medical history of
chronic pain, degenerative disc disease, thoracic compression fracture, vitamin D
deficiency, chronic obstructive pulmonary disease, migraine headaches, esophageal
reflux, hyperlipidemia, lumbar radiculopathy, lumbar spondylosis, osteopenia,
varicose veins, carpal tunnel syndrome, [and] anxiety and depression”; and (5) “[b]y
May 2015, the [Petitioner] will retain the ability to engage in light work . . . .”
The SHO then summarized Petitioner’s medical history and made the
following pertinent findings of fact:
6. In an October 2013 decision, the [SSA] Administrative
Law Judge opined that the Appellant has the residual
functional capacity to perform light work with occasional
posturals; no climbing of ladders, ropes or scaffolds;
frequent bilateral fingering; and avoidance of concentrated
exposure to hazards. Appellant was also limited to simple,
routine, repetitive work with occasional public contact.
This opinion is given great weight as it is consistent with
and supported by the objective evidence.
7. The Appellant’s medically determinable impairments
are at least theoretically capable of producing at least some
of the general subjective symptoms alleged by the
Appellant. However, the Appellant’s testimony as to the
specific intensity, persistence, and limiting effects of the
pain and other subjective symptoms is not persuasive in
view of the inconsistencies with the medical evidence. For
example, the Appellant testified she experiences migraine
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Opinion of the Court
headaches twice a month which are at a pain level of 20/10;
however, the medical evidence does not reflect that the
Appellant reported to the treating or examining physicians
that she experiences such extreme symptoms. It is not
credible that the Appellant could experience such extreme
symptoms but fail to report them to the treating
physicians.
Based on these findings of fact, the SHO made the following conclusions:
1. Appellant is not engaging in Substantial Gainful
Activity as defined in 20 CFR 416.910.
2. Appellant’s impairments of chronic pain, degenerative
disc disease, vitamin D deficiency, chronic obstructive
pulmonary disease, migraine headaches, esophageal
reflux, hyperlipidemia, lumbar radiculopathy, lumbar
spondylosis, osteopenia, varicose veins, carpal tunnel
syndrome, anxiety and depression are severe but do not
meet or equal the level of severity specific in 20CFR [sic]
Part 404, Appendix 1 to Subpart P (Listing of
Impairments). Appellant’s impairment of thoracic
compression fracture is currently at a disabling severity,
but is not expected to meet the duration requirement of
remaining at a disabling severity for a period of twelve
continuous months as specified in 20 CFR 416.909.
3. Considering the combination of all impairments and
related symptoms, by May 2015 the Appellant will have the
residual functional capacity . . . to engage in light work
with occasional stooping and crouching; no climbing of
ladders, ropes or scaffolds; frequent but not constant
fingering; avoidance of concentrated exposure to heights
and hazards; avoidance of concentrated exposure to dust
and fumes; and to work that is low stress, nonproduction
in nature and does not require extensive interaction with
the general public. The effects of pain have been evaluated
under 20 C.F.R. 404.1529 and Fourth Circuit law as set
forth in Hyatt v. Sullivan, 899 F. 2d 329 (4th Cir. 1990)[.]
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Opinion of the Court
4. The Appellant’s non-exertional limitations of occasional
stooping and crouching; no climbing of ladders, ropes and
scaffolds; frequent but not constant fingering; avoidance of
concentrated exposure to heights and hazards; avoidance
of concentrated exposure to dust and fumes; and to work
that is low stress, nonproduction in nature and does not
require extensive interaction with the general public do not
significantly reduce the occupational base of light work
available in the economy . . . . Considering the Appellant’s
age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in
the national economy as specified in 20 CFR 416.966 that
the Appellant can perform as Vocational Rule 202.13 being
used as a framework directs a finding of “not disabled”. . . .
5. Appellant does not meet the disability requirement
specified in 20 CFR 416.920(g) and therefore is not found
disabled or eligible for Medicaid.
As a result of these findings and conclusions, the SHO determined that the
DSS had properly denied Petitioner’s application for disability benefits. The Agency
Decision became final on 16 October 2014 pursuant to N.C. Gen. Stat. § 108A-79(b).
On 19 November 2014, Petitioner filed a petition for judicial review in
Haywood County Superior Court pursuant to N.C. Gen. Stat. § 108A-79(k). On 19
December 2014, DHHS filed a response along with a motion to dismiss the petition.
Petitioner filed an amended petition on 29 July 2015.
On 2 November 2015, a hearing was held before the Honorable Bradley B.
Letts. The trial court entered an order on 4 January 2016 containing the following
findings of fact:
1. The issue before the administrative agency was
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Opinion of the Court
whether petitioner qualified for Medicaid for the Disabled.
2. [DHHS] applied the Supplemental Security Income
Standard found in the Social Security Act in order to
determine whether Petitioner was qualified for Medicaid
for the Disabled.
3. [DHHS] reviewed and analyzed the medical records
contained in the official record before making its final
decision. Petitioner has several chronic medical conditions,
some of which [DHHS] recognized as severe.
4. [DHHS] reviewed and gave some weight to the
functional capacity test result reported in the Social
Security Administration Office of Disability Adjudication
and Review decision of October 24, 2013. This decision
found Petitioner was not under a disability and had the
ability to work.
5. Based on evidence in the record, [DHHS] determined
that Petitioner did not qualify for Medicaid for the
Disabled.
6. This Court was informed in open court that Petitioner
would not present additional testimony at the judicial
review hearing.
7. Petitioner’s additional evidence consists of medical
records of physician appointments that Petitioner attended
after her hearing before [DHHS]’s Hearing Officer. These
medical records contain the same or similar review of
systems, assessments, diagnosis and/or prognosis as the
medical records contained in the official record. As such,
this additional evidence is merely cumulative of the
medical records contained in the official record.
8. Petitioner has not established that any evidence
presented to the hearing officer at the time of the hearing
had been excluded.
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Opinion of the Court
The court then made the following conclusions of law:
1. This matter is properly before this court pursuant to
N.C. Gen. Stat. §108A-79(k).
2. North Carolina Medicaid for the Disabled qualification
standards are found in the federal Social Security Act. N.C.
Gen. Stat. §108A-56.
3. This Court’s standard of review for questions of law are
de novo. The standard of review where petitioner has
alleged the final decision was arbitrary, capricious, or
unsupported by substantial evidence is the whole record
standard of review. N.C. Gen. Stat. §150B-51.
4. [DHHS] correctly applied the five step sequential
evaluation in its assessment of Petitioner’s application for
Medicaid for the Disabled. 20 CFR Part 416 et seq.
5. Substantial evidence exist[ing] in the official record
show[s] that while some of Petitioner’s illnesses are chronic
and severe, a review of Petitioner’s medical, social,
vocational, and functional capacity evidence does not
establish that she qualifies for Medicaid for the Disabled.
[DHHS]’s determination of such does not indicate a lack of
careful consideration.
6. A matter may be remanded back to the administrative
agency if additional evidence is presented to the judicial
review court that is material to the issues, not merely
cumulative, and could not reasonably have been presented
at the administrative hearing. In this matter the additional
evidence was merely cumulative. Thus, remand to the
agency for review of those records is not required. N.C.
Gen. Stat. §150B-49.
7. The hearing officer did not exclude any evidence
presented by Petitioner at the hearing. N.C. Gen. Stat.
§108A-79(k).
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Opinion of the Court
Based on these findings and conclusions, the trial court affirmed the Agency
Decision. Petitioner filed written notice of appeal on 2 February 2016.
Analysis
I. Standard of Review
Chapter 108A of the North Carolina General Statutes provides a claimant with
the right to appeal an initial decision by a local department of social services denying
her application for Medicaid disability benefits. See N.C. Gen. Stat. § 108A-79(a)
(2015). Pursuant to the statute, the director (or the director’s designated
representative) is required to forward the claimant’s request for an appeal to DHHS,
which must then designate a hearing officer to conduct a de novo administrative
hearing in accordance with Chapter 150B of the North Carolina General Statutes.
See N.C. Gen. Stat. § 108A-79(d). If the claimant is dissatisfied with DHHS’s final
decision upon the agency’s review of her claim, she may file a petition for judicial
review in the superior court of the county in which the claim arose. N.C. Gen. Stat.
§ 108A-79(k).
Chapter 150B of the North Carolina General Statutes provides, in pertinent
part, as follows:
The court reviewing a final decision may affirm the
decision or remand the case for further proceedings. It may
also reverse or modify the decision if the substantial rights
of the petitioners may have been prejudiced because the
findings, inferences, conclusions, or decisions are:
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(1) In violation of constitutional provisions;
(2) In excess of the statutory authority or jurisdiction of
the agency or administrative law judge;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Unsupported by substantial evidence admissible
under G.S. 150B-29(a), 150B-30, or 150B-31 in view
of the entire record as submitted; or
(6) Arbitrary, capricious, or an abuse of discretion.
N.C. Gen. Stat. § 150B-51(b) (2015).
“The standard of review for an appellate court upon an appeal from an order
of the superior court affirming or reversing an administrative agency decision is the
same standard of review as that employed by the superior court.” Dorsey v. UNC-
Wilmington, 122 N.C. App. 58, 62-63, 468 S.E.2d 557, 560 (1996) (citation omitted).
In reviewing an agency decision, this Court applies the “whole record” test.
Fehrenbacher v. City of Durham, 239 N.C. App. 141, 146, 768 S.E.2d 186, 191 (2015)
(citation omitted). “The whole record test requires the reviewing court to examine all
competent evidence (the whole record) in order to determine whether the agency
decision is supported by substantial evidence.” Id. (citation and quotation marks
omitted). This “test does not allow the reviewing court to replace the [agency’s]
judgment as between two reasonably conflicting views, even though the court could
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justifiably have reached a different result had the matter been before it de novo.” Id.(citation and quotation marks omitted).
II. Medicaid Disability Benefits
Medicaid, established by Congressional enactment of Title
XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., is a
cooperative federal-state program providing medical
assistance and other services to certain classes of needy
persons. States which adopt the program and administer it
in conformity with federal laws and regulations receive
federal funds which defray a substantial portion of the
program costs. Participation by a state in the Medicaid
program is entirely optional. However, once an election is
made to participate, the state must comply with the
requirements of federal law. North Carolina adopted the
Medicaid program through the enactment of Part 5, Article
2, Chapter 108 of the General Statutes, amended and
recodified effective 1 October 1981 at Part 6, Article 2,
Chapter 108A.
Lackey v. N.C. Dep’t of Human Resources, 306 N.C. 231, 235, 293 S.E.2d 171, 175
(1982) (internal citations omitted).1
In order to qualify for both Medicaid and Social Security disability benefits, a
claimant must show that she is “unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can
1 In addressing Petitioner’s arguments on appeal, we therefore look for guidance to federal
Social Security regulations and decisions by federal courts interpreting those regulations. See
Henderson v. N.C. Dep’t of Human Resources, 91 N.C. App. 527, 531-32, 372 S.E.2d 887, 890 (1988)
(“Although federal court decisions interpreting the applicable statutes and regulations are not binding
on North Carolina courts . . . we deem the well-reasoned federal decisions discussed herein to be
persuasive authority.” (internal citation omitted)); see also Lackey, 306 N.C. at 236, 293 S.E.2d at 175(“These federal decisions . . . are not necessarily controlling on this court. However, we do deem them
to be persuasive authority on the relevant issues.” (internal citations omitted)).
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be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A) (2012).
[A]n 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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he
applied for work. For purposes of the preceding sentence
(with respect to any individual), “work which exists in the
national economy” means work which exists in significant
numbers either in the region where such individual lives or
in several regions of the country.
42 U.S.C. § 1382c(a)(3)(B).
The following five-step sequential evaluation process is used to determine
whether a claimant is disabled:
If we can find that you are disabled or not disabled at a
step, we make our determination or decision and we do not
go on to the next step. If we cannot find that you are
disabled or not disabled at a step, we go on to the next step.
Before we go from step three to step four, we assess your
residual functional capacity. . . . We use this residual
functional capacity assessment at both step four and at
step five when we evaluate your claim at these steps. These
are the five steps we follow:
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity,
we will find that you are not disabled. . . .
(ii) At the second step, we consider the medical
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Opinion of the Court
severity of your impairment(s). If you do not have
a severe medically determinable physical or
mental impairment that meets the duration
requirement in § 416.909, or a combination of
impairments that is severe and meets the duration
requirement, we will find that you are not
disabled. . . .
(iii) At the third step, we also consider the medical
severity of your impairment(s). If you have an
impairment(s) that meets or equals one of our
listings in appendix 1 to subpart P of part 404 of
this chapter and meets the duration requirement,
we will find that you are disabled. . . .
(iv) At the fourth step, we consider our assessment of
your residual functional capacity and your past
relevant work. If you can still do your past relevant
work, we will find that you are not disabled. . . .
(v) At the fifth and last step, we consider our
assessment of your residual functional capacity
and your age, education, and work experience to
see if you can make an adjustment to other work.
If you can make an adjustment to other work, we
will find that you are not disabled. If you cannot
make an adjustment to other work, we will find
that you are disabled. . . .
20 C.F.R. § 416.920(a)(4) (2016).
This Court has previously summarized this evaluation process as follows:
(1) Is the individual engaged in substantial gainful
activity? (2) If not, does the individual suffer from a severe
impairment, i.e., an impairment that significantly limits
his ability to engage in the basic work activities outlined in
20 C.F.R. Sec. 416.921? (3) Assuming the individual meets
this threshold severity requirement, is the impairment so
severe as to render the individual disabled without inquiry
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into vocational factors such as age, education, and work
experience, i.e., does the impairment meet or equal those
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? (4) If
the severe impairment does not meet or equal those listed
in Appendix 1, does it prevent the individual from doing
past relevant work in light of his “residual functional
capacity?” and, (5) If the severe impairment does prevent
the individual from doing past relevant work, can the
individual do other work, given his age, education, residual
functional capacity, and past work experience?
Lowe v. N.C. Dep’t of Human Resources, 72 N.C. App. 44, 48, 323 S.E.2d 454, 457
(1984).
“If the first three steps do not lead to a conclusive determination, the ALJ then
[moves on to Step 4 to] assess[ ] 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.” Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015) (citation and
quotation marks omitted). Once the claimant meets either Step 3 or Step 4, “[t]he
burden then shifts to the agency to show that the claimant can perform alternative
work existing in the national economy under [Step 5].” Henderson, 91 N.C. App. at
533, 372 S.E.2d at 891; see also Mascio, 780 F.3d at 635.
“[A] necessary predicate to engaging in substantial evidence review is a record
of the basis for the [agency’s] ruling.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir.
2013) (citation omitted). This record “should include a discussion of which evidence
the [agency] found credible and why, and specific application of the pertinent legal
requirements to the record evidence.” Id. (citation omitted). The agency’s decision
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must “include a narrative discussion describing how the evidence supports each
conclusion[.]” Monroe v. Colvin, 826 F.3d 176, 190 (4th Cir. 2016) (citation and
quotation marks omitted). Moreover, the decision must “build an accurate and logical
bridge from the evidence to [its] conclusion.” Id. at 189.
In the present case, Petitioner contends that the SHO did not provide any
“meaningful explanation” in how it reached its conclusion. Specifically, Petitioner
argues that the Agency Decision lacked (1) a “function by function narrative
discussion” to explain “how [her] residual functional capacity was established[;]” (2)
a “discussion related to [the SHO’s] evaluation of the effects of pain[;]” (3) a valid
basis for attaching significant weight to the Social Security Decision; and (4) the use
of vocational expert testimony to aid the SHO in determining whether Petitioner
could find substantial gainful work in the national economy. As discussed more fully
below, we agree with Petitioner that the Agency Decision is deficient in several
material respects and that this case must be remanded for further proceedings.
A. Function-by-Function Narrative Discussion
Petitioner contends that the SHO was required to conduct a function-by-
function narrative discussion to establish her residual functional capacity. We find
instructive on this issue the Fourth Circuit’s decision in Mascio. In that case, an
agency decision denying a claimant’s application for Social Security benefits
determined at Step 4 that the claimant could no longer perform her past work based
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on her residual functional capacity. Mascio, 780 F.3d at 635-36. However, at Step 5
of the evaluation process, the agency determined that the claimant could perform
other work and therefore was not disabled. Id. at 640.
On appeal, the claimant argued that during Step 4 of the evaluation process,
the ALJ had erred in failing to conduct a function-by-function analysis in determining
her residual functional capacity. She asserted that federal SSA regulations required
such 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 636 (citation and quotation marks omitted).
While declining to adopt a per se rule that a function-by-function analysis is
necessary in every case, the Fourth Circuit held that “remand 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. at 636 (citation, quotation
marks, brackets, and ellipsis omitted). The court stated the following:
Here, the ALJ has determined what functions he believes
[the claimant] 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 [the claimant] can perform certain functions, he said
nothing about [her] ability to perform them for a full
workday. The missing analysis is especially troubling
because the record contains conflicting evidence as to [the
claimant’s] residual functional capacity—evidence that the
ALJ did not address.
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Id. at 636-37.
For these reasons, the court observed that it was “left to guess about how the
ALJ arrived at his conclusions” regarding the claimant’s ability to perform “relevant
functions” and that it “remain[ed] uncertain as to what the ALJ intended[.]” Id. at
637. Thus, the court concluded that remand was necessary to cure these deficiencies
in the agency’s decision. Id.
While the facts of the present case are not identical to those in Mascio, the
Fourth Circuit’s opinion nevertheless demonstrates why the SHO’s analysis here was
inadequate. In conducting what was apparently intended to be Step 4 of the
sequential evaluation process,2 the SHO stated as follows:
3. Considering the combination of all impairments and
related symptoms, by May 2015 the Appellant will have the
residual functional capacity . . . to engage in light work
with occasional stooping and crouching; no climbing of
ladders, ropes or scaffolds; frequent but not constant
fingering; avoidance of concentrated exposure to heights
and hazards; avoidance of concentrated exposure to dust
and fumes; and to work that is low stress, nonproduction
in nature and does not require extensive interaction with
the general public. The effects of pain have been evaluated
under 20 C.F.R. 404.1529 and Fourth Circuit law as set
forth in Hyatt v. Sullivan, 899 F. 2d 329 (4th Cir. 1990)[.]
2 It is not entirely clear from the Agency Decision whether the SHO found that Petitioner had
met Steps 1 through 4. However, because the SHO proceeded to Step 5, we assume that the SHO first
determined that Step 4 had been satisfied. We note that in its brief DHHS states that “the [SHO]
found Petitioner had met her burden at step four.” On remand, we direct DHHS to clearly articulate
its application of each step of the sequential evaluation process.
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In reaching this conclusion, however, the SHO did not explain with any degree
of specificity at all the processes it used to conclude that Petitioner was able to engage
in light work.3 Thus, we believe that — as in Mascio — this is a case where
“inadequacies in the [agency]’s analysis frustrate meaningful review.” See Mascio,
780 F.3d at 636 (citation and quotation marks omitted). Because the Agency Decision
lacks the sort of detailed analysis necessary for meaningful appellate review, we
direct DHHS on remand to provide a narrative discussion of whether Petitioner’s
limitations will prevent her from performing the full range of light work.
B. Evaluation of Credibility of Petitioner’s Testimony as to Severity of
Her Symptoms
Petitioner next argues that the Agency Decision lacks a discussion of how the
SHO weighed the credibility of Petitioner’s testimony as to the intensity, persistence,
and limiting effects of her symptoms. In Mascio, the claimant also asserted that the
ALJ failed to properly analyze the credibility of her testimony as to the intensity,
3 20 C.F.R. § 404.1567(b) provides the following definition of “light work”:
Light work involves 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, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he or she
can also do sedentary work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b) (2016).
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persistence, and limiting effects of her pain. Id. at 639. The claimant argued that
the only grounds set out in the agency decision for rejecting her statements as to her
pain were findings that she “(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.” Id.
The Fourth Circuit found that this lack of analysis as to the claimant’s
credibility constituted an additional error warranting remand. The court stated that
“[n]owhere . . . does the ALJ explain how he decided which of [the claimant’s]
statements to believe and which to discredit, other than the vague (and circular)
boilerplate statement that he did not believe any claims of limitations beyond what
he found when considering [the claimant’s] residual functional capacity.” Id. at 640.
Here, the sole finding of fact in the Agency Decision regarding Petitioner’s
credibility was the following:
7. The Appellant’s medically determinable impairments
are at least theoretically capable of producing at least some
of the general subjective symptoms alleged by the
Appellant. However, the Appellant’s testimony as to the
specific intensity, persistence, and limiting effects of the
pain and other subjective symptoms is not persuasive in
view of the inconsistencies with the medical evidence. For
example, the Appellant testified she experiences migraine
headaches twice a month which are at a pain level of 20/10;
however, the medical evidence does not reflect that the
Appellant reported to the treating or examining physicians
that she experiences such extreme symptoms. It is not
credible that the Appellant could experience such extreme
symptoms but fail to report them to the treating
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physicians.
This finding indicates that the SHO found Petitioner’s testimony regarding her
symptoms “not persuasive” because there were “inconsistencies with the medical
evidence.” However, the record reveals that Petitioner testified as to a number of
other symptoms besides migraine headaches, including — without limitation —
severe lower back pain, weakness in her legs, anxiety, and depression. Yet Finding
No. 7 solely discusses Petitioner’s testimony regarding her migraine headaches.
Therefore, to the extent the Agency Decision attempted to impute the lack of
credibility it attached to her testimony regarding the migraine headaches to her
testimony regarding all of her remaining impairments, the agency erred.
C. Reliance on the Social Security Decision
Petitioner also challenges the degree of reliance the SHO placed on the Social
Security Decision. Finding No. 6 of the Agency Decision states as follows:
6. In an October 2013 decision, the [SSA] Administrative
Law Judge opined that the Appellant has the residual
functional capacity to perform light work with occasional
posturals; no climbing of ladders, ropes or scaffolds;
frequent bilateral fingering; and avoidance of concentrated
exposure to hazards. Appellant was also limited to simple,
routine, repetitive work with occasional public contact.
This opinion is given great weight as it is consistent with
and supported by the objective evidence.
SSA regulations provide that “[a]dministrative law judges . . . are not bound
by findings made by State agency or other program physicians and psychologists, but
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MILLS V. N.C. DEP’T OF HEALTH AND HUMAN SERVS.
Opinion of the Court
they may not ignore these opinions and must explain the weight given to the opinions
in their decisions.” SSR 96-6p, 1996 SSR LEXIS 3, 1996 WL 374180 (July 2, 1996).
Thus, while it would have been proper for the SHO to consider the medical and
psychological testimony produced during Petitioner’s Social Security hearing, it was
error for the SHO to simply make the blanket assertion that it was relying on the
Social Security Decision as a whole as opposed to (1) identifying opinions from specific
providers that were obtained during the Social Security hearing; and (2) explaining
why it was according weight to those opinions. Therefore, we direct DHHS on remand
to clarify which specific providers’ opinions from the Social Security hearing that it is
relying upon — if any — and to explain the weight it is giving those opinions.
D. Vocational Expert Testimony
Finally, Petitioner argues that DHHS erred in failing to produce vocational
expert testimony at the 8 October 2014 hearing. She asserts that because she
suffered from nonexertional impairments, such expert testimony was required and
that the SHO erred in instead relying solely on the medical-vocational guidelines
(commonly known as the “grids”).4
4 The “grids” are the Medical-Vocational Guidelines located in Appendix 2 of 20 C.F.R. § 404,
subpart P. Appendix 2 provides information from the Dictionary of Occupational Titles regarding jobs
that exist in the national economy that are classified by exertional and skill requirements. See 20
C.F.R. § 404.1569 (2016). Appendix 2 provides rules that determine whether a person is engaged in
substantial gainful activity and whether the person is prevented by a severe medically determinable
impairment from doing vocationally “relevant past work.” Id.- 20 -
MILLS V. N.C. DEP’T OF HEALTH AND HUMAN SERVS.
Opinion of the Court
20 C.F.R. § 404.1560 provides that “[w]e may use the services of vocational
experts or vocational specialists, or other resources . . . to obtain evidence we need to
help us determine whether you can do your past relevant work, given your residual
functional capacity.” 20 C.F.R. § 404.1560 (2016) (emphasis added). A review of
federal caselaw applying 20 C.F.R. § 404.1560 reveals that vocational expert
testimony is necessary only in certain circumstances during Step 5 of the evaluation
process. See, e.g., Boylan v. Astrue, 32 F.Supp.3d 238, 251-52 (N.D.N.Y. 2012) (“If the
claimant has nonexertional impairments, the ALJ must determine whether those
impairments ‘significantly’ diminish the claimant’s work capacity beyond that caused
by his or her exertional limitations. . . . [and if so], then the use of the Grids may be
an inappropriate method of determining a claimant’s residual functional capacity and
the ALJ may be required to consult a vocational expert.” (citations omitted and
emphasis added)); Sherby v. Astrue, 767 F.Supp.2d 592, 595 (D.S.C. 2010) (“While not
every nonexertional limitation or malady rises to the level of a nonexertional
impairment, so as to preclude reliance on the grids, the proper inquiry is whether the
nonexertional condition affects an individual’s residual functional capacity to perform
work of which he is exertionally capable.” (citation, quotation marks, and ellipsis
omitted)).
On remand, we direct DHHS to evaluate Petitioner’s nonexertional
impairments as compared to her exertional impairments. If it determines that
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MILLS V. N.C. DEP’T OF HEALTH AND HUMAN SERVS.
Opinion of the Court
Petitioner’s nonexertional impairments significantly diminish her capacity to
perform the full range of light work beyond the degree caused by her exertional
impairments, DHHS shall use vocational expert testimony in order to determine
whether jobs exist in significant numbers in the national economy that Petitioner can
perform given her residual functional capacity.5
Conclusion
For the reasons stated above, we vacate the trial court’s 4 January 2016 order
and direct the court to remand this matter to DHHS for additional proceedings
consistent with this opinion.
VACATED AND REMANDED.
Judges INMAN and ENOCHS concur.
5 While DHHS argues that Petitioner was, in fact, examined by a vocational expert in
connection with the Social Security hearing, the Agency Decision — as noted above — merely
references the Social Security Decision as a whole rather than referring to any specific expert
testimony elicited during that hearing. Moreover, we note that the Social Security hearing took place
in 2013.
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