Fulton v. Colvin

Filing 13

REPORT AND RECOMMENDATIONS re 11 MOTION for Summary Judgment filed by Kristen Leigh Fulton, 12 MOTION for Summary Judgment filed by Carolyn W. Colvin. Signed by Magistrate Judge Stephanie A Gallagher on 4/14/2016. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KRISTEN LEIGH FULTON

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v.
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COMMISSIONER, SOCIAL SECURITY
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Civil Case No. JFM-15-2419

REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2014-01, the above-captioned case has been referred to me to
review the parties’ dispositive motions and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the parties’ cross-motions for
summary judgment. [ECF Nos. 11, 12]. I find that no hearing is necessary. See Loc. R. 105.6
(D. Md. 2014). This Court must uphold the decision of the Agency if it is supported by
substantial evidence and if the Agency employed proper legal standards. 42 U.S.C. §§ 405(g),
1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). For the reasons set forth below, I recommend that Ms. Fulton’s motion be
denied, that the Commissioner’s motion be granted, and that the Commissioner’s judgment be
affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
Ms. Fulton filed an application for Disability Insurance Benefits (“DIB”) on September
15, 2011, and protectively filed an application for Supplemental Security Income (“SSI”) on
August 22, 2011. (Tr. 25, 222-32). In both applications, Ms. Fulton alleged a period of
disability beginning August 14, 2011. (Tr. 222, 226). Her applications were denied initially on
December 16, 2011, and on reconsideration on July 27, 2012. (Tr. 141-48, 154-57). An
Administrative Law Judge (“ALJ”) held a hearing on February 20, 2014, at which Ms. Fulton
was represented by counsel. (Tr. 36-68). Following the hearing, the ALJ determined that Ms.

Fulton was not disabled within the meaning of the Social Security Act during the relevant time
frame. (Tr. 25-34). The Appeals Council denied Ms. Fulton’s request for review, (Tr. 1-5), so
the ALJ’s decision constitutes the final, reviewable decision of the Agency.
The ALJ found that Ms. Fulton suffered from the severe impairments of cerebral palsy
and organic mental disorder. (Tr. 27). Despite these impairments, the ALJ determined that Ms.
Fulton retained the residual functional capacity (“RFC”) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she
is limited to frequent handling, frequent climbing of ramps and stairs, occasional
climbing of ladders, ropes, and scaffolds, frequent balancing and stooping,
occasional kneeling, frequent crouching, and occasional crawling. She must
avoid concentrated exposure to extreme cold and hazards such as moving
machinery and unprotected heights. She can perform the following 90% of the
time: understand and remember detailed instructions, carry out detailed
instructions, maintain attention and concentration for extended periods, complete
a normal workday and workweek without interruption from psychologically based
symptoms and perform at a consistent pace without an unreasonable number and
length of rest periods, and set realistic goals or make plans independently of
others.
(Tr. 29). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Fulton could perform jobs existing in significant numbers in the national economy and that,
therefore, she was not disabled. (Tr. 32-33).
Ms. Fulton disagrees. She raises three primary arguments on appeal: (1) that the ALJ
failed to properly weigh medical evidence and determine her RFC; (2) that the ALJ failed to
properly evaluate her credibility; and (3) that the ALJ presented an inadequate hypothetical
question to the VE, and consequently relied on flawed VE testimony, pursuant to the Fourth
Circuit’s decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Each argument lacks merit
for the reasons discussed below.
Turning to Ms. Fulton’s first argument, she contends that the ALJ erred by not assigning
controlling weight to the opinions of her treating physician, Dr. Crosse. Pl. Mem. 8-11. Social
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Security regulations provide that:
If we find that a treating source’s opinion on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record, we will give it controlling weight.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). However, if a treating source’s medical opinion is
not assigned controlling weight, the ALJ should consider the following factors in determining the
weight to give the opinion: (1) the length of the treatment relationship, including its nature and
extent; (2) the supportability of the opinion; (3) the opinion’s consistency with the record as a
whole; (4) whether the source is a specialist; and (5) any other factors that tend to support or
contradict the opinion. 20 C.F.R. §§ 404.1527(c) 416.927(c).
In the instant case, Dr. Crosse opined that Ms. Fulton “could not sit, stand or walk
continuously in a work setting, she was markedly limited in use of her bilateral upper
extremities, and she had other significant limitations due to muscle fatigue.” (Tr. 32). Dr.
Crosse also opined that Ms. Fulton would miss more than three days of work per month as a
result of her impairments. Id. The ALJ gave Dr. Crosse’s opinion “less weight,” stating that it
was “not supported by the overall objective medical evidence of record.” (Tr. 32). The ALJ
noted that Dr. Crosse had largely treated Ms. Fulton for minor issues, including coughing and
bronchitis. Id. In addition, the ALJ stated that despite issues with balance and fine motor skills,
Ms. Fulton “took college courses, worked part time, and lived alone with her son, managing her
activities of daily living on her own.” Id. Likewise, the ALJ cited Ms. Fulton’s report to a
psychological consultative examiner, Dr. Amado, that she was “very independent.” Id.
Reviewing the remainder of the ALJ’s discussion, the ALJ cited Ms. Fulton’s testimony
that she worked 15 to 20 hours per week at the time of her hearing, and that she lived alone with
her son and was able to perform activities including light housework and laundry. (Tr. 30). She
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also testified that she could walk as long as two miles at a time, contradicting her report to a
consultative examiner just one month prior that she could only walk one block at a time. (Tr. 3031). In addition, the ALJ reviewed a letter from an examining physician, Dr. Benjamin, who
noted that Ms. Fulton had some difficulty with balance and clumsiness and had demonstrated a
developmental delay since birth. (Tr. 30). Dr. Benjamin opined that Ms. Fulton “might need
more time than normal to complete tasks at work, and she should avoid tasks requiring a great
deal of balance and fine motor skills, as well as heights.” Id. Likewise, the ALJ reviewed
evidence from a psychological consultative examiner, Dr. Amado. Dr. Amado also stated that
Ms. Fulton had developmental delays and needed to process things more slowly than others.
Aside from developmental delays, Dr. Amado felt that Ms. Fulton’s only difficulty was
maneuvering through crowds because of physical, rather than psychological, limitations. Id.
Finally, the ALJ noted the findings from consultative physical examinations performed by Dr.
Gopalan and Dr. Udochi. Dr. Gopalan indicated that Ms. Fulton had some difficulty with
ambulation but did not require the use of an assistive device. (Tr. 31). Ultimately, Dr. Gopalan
opined that Ms. Fulton would have “some difficulty with extended walking, standing, lifting,
carrying, and handling objects. She would have no difficulty with sitting, travelling, hearing or
speaking.” Id. Dr. Udochi did not opine any limitations and noted a largely normal examination.
(Tr. 32).
Considering the entirety of the ALJ’s RFC analysis, the weight assigned to Dr. Crosse’s
opinion was proper under Social Security regulations. The ALJ found that Dr. Crosse’s opinion
should not be given controlling weight because it was not supported by the evidence of record,
including Ms. Fulton’s ability to attend college classes and work part-time. (Tr. 32). The ALJ
also considered relevant factors, as outlined in the Social Security regulations, in assigning

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weight to Dr. Crosse’s opinion.

Specifically, the ALJ noted the length of her treatment

relationship with Ms. Fulton, the nature of Ms. Fulton’s complaints during her examinations, and
the consistency of her opinion with the other record evidence. Id. This analysis comports with
the Social Security regulations outlined above. Importantly, this Court’s role is not to reweigh
the evidence or to substitute its judgment for that of the ALJ, but simply to adjudicate whether
the ALJ’s decision was supported by substantial evidence. See Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). Where conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that decision falls to the ALJ. Mastro v.
Apfel, 270 F.3d 171, 179 (4th Cir. 2001) (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.
1987)). Here, the ALJ adequately supported her findings regarding Dr. Crosse’s opinion with
substantial evidence.
Ms. Fulton next argues that the ALJ failed to properly evaluate her credibility.
Specifically, she contends that the ALJ “failed to provide any explanation for how [the evidence]
does not support Ms. Fulton’s statements about her conditions.” Pl. Mem. at 12. As discussed
above, the ALJ cited the fact that Ms. Fulton was able to work part-time, attend college classes,
and care for herself and her son. (Tr. 30-32). The ALJ noted that although Ms. Fulton initially
stated in a consultative examination that she could walk no more than one block, she later
testified that she was able to walk up to two miles. (Tr. 30-31). In addition, the ALJ cited Ms.
Fulton’s report to Dr. Amado that she was “very independent.” (Tr. 31). Likewise, the ALJ
provided a thorough review of the medical evidence, which generally reflected fewer limitations
than those alleged by Ms. Fulton. Thus, contrary to Ms. Fulton’s argument, the ALJ made
specific findings of how her allegations contradicted the record evidence, and supported her
findings with substantial evidence.

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Turning to Ms. Fulton’s final argument, she contends that the hypothetical question the
ALJ posed to the VE did not adequately account for her finding at step three that Ms. Fulton has
a moderate limitation in maintaining concentration, persistence, or pace, pursuant to the Fourth
Circuit’s holdings in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). In Mascio, the United
States Court of Appeals for the Fourth Circuit determined that remand was appropriate for three
distinct reasons, including, as pertinent to this case, the inadequacy of the ALJ’s evaluation of
“moderate difficulties” in concentration, persistence, or pace. Id. at 638. At step three of the
sequential evaluation, the ALJ determines whether a claimant’s impairments meet or medically
equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Listings 12.00
et. seq., pertain to mental impairments. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. Each listing
therein1 consists of: (1) a brief statement describing its subject disorder; (2) “paragraph A
criteria,” which consists of a set of medical findings; and (3) “paragraph B criteria,” which
consists of a set of impairment-related functional limitations. Id. § 12.00(A). If both the
paragraph A criteria and the paragraph B criteria are satisfied, the ALJ will determine that the
claimant meets the listed impairment. Id.
Paragraph B consists of four broad functional areas: (1) activities of daily living; (2)
social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation.
The ALJ employs the “special technique” to rate a claimant’s degree of limitation in each area,
based on the extent to which the claimant’s impairment “interferes with [the claimant’s] ability
to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. §§
404.1520a(c)(2), 416.920a(c)(2). The ALJ uses a five-point scale to rate a claimant’s degree of
limitation in the first three areas:

none, mild, moderate, marked, or extreme.

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Id. §§

Listing 12.05, which pertains to intellectual disability, and Listing 12.09, which pertains to substance addiction
disorders, do not follow this structure.

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404.1520a(c)(4), 416.920a(c)(4). In order to satisfy paragraph B, a claimant must exhibit either
“marked” limitations in two of the first three areas, or “marked” limitation in one of the first
three areas with repeated episodes of decompensation. See, e.g., 20 C.F.R. Pt. 404, Subpt. P,
App. 1 § 12.02. Marked limitations “may arise when several activities or functions are impaired,
or even when only one is impaired, as long as the degree of limitation is such as to interfere
seriously with [the claimant’s] ability to function.” Id. § 12.00(C).
The functional area of “concentration, persistence, or pace refers to the ability to sustain
focused attention and concentration sufficiently long to permit the timely and appropriate
completion of tasks commonly found in work settings.” Id. § 12.00(C)(3). Social Security
regulations do not define marked limitations in concentration, persistence, or pace “by a specific
number of tasks that [a claimant is] unable to complete.” Id. The regulations, however, offer
little guidance on the meaning of “moderate” limitations in the area of concentration, persistence,
or pace.
The Fourth Circuit remanded Mascio because the hypothetical the ALJ posed to the
VE—and the corresponding RFC assessment—did not include any mental limitations other than
unskilled work,2 despite the fact that, at step three of the sequential evaluation, the ALJ
determined that the claimant had moderate difficulties in maintaining concentration, persistence,
or pace. Mascio, 780 F.3d at 637-38. The Fourth Circuit specifically held that it “agree[s] 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.” Id. at 638 (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir.

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The hypothetical that the ALJ posed to the VE in Mascio did not actually limit the claimant to unskilled work, and
thus did not match the ALJ’s RFC assessment. However, the VE indicated that all of the jobs cited in response to
the hypothetical involved “unskilled work” such that, in effect, the hypothetical matched the ALJ’s RFC assessment.

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2011)) (internal quotation marks omitted). In so holding, the Fourth Circuit emphasized the
distinction between the ability to perform simple tasks and the ability to stay on task, stating that
“[o]nly the latter limitation would account for a claimant’s limitation in concentration,
persistence, or pace.” Id. Even so, the Fourth Circuit noted that the ALJ’s error might have been
cured by an explanation as to why the claimant’s moderate difficulties in concentration,
persistence, or pace did not translate into a limitation in the claimant’s RFC. Id.
In the instant case, the ALJ found Ms. Fulton to have moderate limitations in maintaining
concentration, persistence, or pace at step three of the sequential evaluation. (Tr. 29). In making
this finding, the ALJ stated that Ms. Fulton “was noted to need some extra time to comprehend
and carry out tasks, but she was able to concentrate sufficiently to attend college classes and
work part time.” (Tr. 28). In her RFC assessment, the ALJ found that Ms. Fulton could
“perform the following 90% of the time: understand and remember detailed instructions, carry
out detailed instructions, maintain attention and concentration for extended periods, complete a
normal workday and workweek without interruption from psychologically based symptoms and
perform at a consistent pace without an unreasonable number and length of rest periods, and set
realistic goals or make plans independently of others.”

(Tr. 29).

Thus, the ALJ’s RFC

assessment directly addresses Ms. Fulton’s ability to maintain concentration, persistence, or
pace, limiting that activity, and other related psychological activities, to 90 percent of Ms.
Fulton’s workday.3 Accordingly, the ALJ adequately accounted for Ms. Fulton’s moderate
limitation in concentration, persistence, or pace, and remand is not warranted under Mascio.

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SSR 96-9p provides that a normal workday includes a morning break, a lunch period, and an afternoon break at
approximately 2-hour intervals, and that the occupational base is not eroded where limitations may be
accommodated by these regularly scheduled breaks. Thus, Ms. Fulton’s limitation to maintaining concentration and
attention for 90 percent of the workday would include breaks in addition to those encompassed by a normal
workday.

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CONCLUSION
For the reasons set forth above, I respectfully recommend that:
1. the Court GRANT Defendant’s Motion for Summary Judgment [ECF No. 12];
2. the Court DENY Plaintiff’s Motion for Summary Judgment [ECF No. 11];
3. the Court AFFIRM the Commissioner’s judgment pursuant to sentence four of 42
U.S.C. § 405(g);
4. the Court close this case.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Federal Rule of Civil Procedure 72(b) and Local Rule 301.5(b).
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.

Dated: April 14, 2015

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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