Green v. Colvin
MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 3/20/2017. (ah4s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Civil No. TMD 15-3467
MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff Chyrassie Green seeks judicial review under 42 U.S.C. § 405(g) of a final
decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) denying
her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment (ECF No. 15) and Defendant’s
Motion for Summary Judgment (ECF No. 16).3 Plaintiff contends that the administrative record
does not contain substantial evidence to support the Commissioner’s decision that she is not
Although Plaintiff’s name appears on the docket as “Chryassie Green,” her name appears in the
complaint (ECF No. 1) and throughout the administrative transcript (ECF No. 10) as “Chyrassie
On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P.
The Fourth Circuit has noted that, “in social security cases, we often use summary judgment as
a procedural means to place the district court in position to fulfill its appellate function, not as a
device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards.”
Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, “the denial of summary
judgment accompanied by a remand to the Commissioner results in a judgment under sentence
four of 42 U.S.C. § 405(g), which is immediately appealable.” Id.
disabled. No hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant’s Motion
for Summary Judgment (ECF No. 16) is GRANTED, Plaintiff’s Motion for Summary Judgment
(ECF No. 15) is DENIED, and the Commissioner’s final decision is AFFIRMED.
Plaintiff was born in 1972, has a college education, and previously worked as a teacher,
special-education teacher, database administrator, and user support analyst. R. at 27-28, 233.
Plaintiff applied for DIB on September 24, 2013, alleging disability beginning on June 8, 2012,
due to degenerative arthritis in the spine and chronic adjustment disorder. R. at 16, 204-07, 232.
The Commissioner denied Plaintiff’s application initially and again on reconsideration, so
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). R. at 84-114, 117,
119-21. On December 18, 2014, ALJ Francine L. Applewhite held a hearing in Baltimore,
Maryland, at which Plaintiff and a vocational expert (“VE”) testified. R. at 34-83. On January
14, 2015, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of
disability of June 8, 2012, through the date of the decision. R. at 13-33. Plaintiff sought review
of this decision by the Appeals Council, which denied Plaintiff’s request for review on
September 11, 2015. R. at 1-4, 12. The ALJ’s decision thus became the final decision of the
Commissioner. See 20 C.F.R. § 404.981; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.
Ct. 2080, 2083 (2000).
On November 13, 2015, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. Upon the parties’ consent, this case was transferred to a United States
Magistrate Judge for final disposition and entry of judgment.
The case subsequently was
reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully
Summary of Evidence
The Court reviews here and in Part VI below Plaintiff’s relevant medical evidence.
State Agency Medical Consultants
On December 4, 2013, a state agency consultant, Maurice Prout, Ph.D., using the
psychiatric review technique (“PRT”) under 20 C.F.R. § 404.1520a, evaluated Plaintiff’s mental
impairment under Listing 12.04 relating to affective disorders (R. at 88-89). See 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.04. Dr. Prout opined that, under paragraph B of the applicable listing,
Plaintiff’s mental impairment caused her to experience (1) mild restriction in activities of daily
living; (2) mild difficulties in maintaining social functioning; (3) mild difficulties in maintaining
concentration, persistence, or pace; and (4) no repeated episodes of decompensation of extended
duration. R. at 89. Dr. Prout did not find evidence to establish the presence of the criteria under
paragraph C of the applicable listing. R. at 89. Dr. Prout ultimately found that Plaintiff’s mental
impairment was not severe. R. at 89.
On January 7, 2014, a state agency medical consultant, A.R. Totoonchie, M.D., assessed
Plaintiff’s physical residual functional capacity (“RFC”). R. at 90-91. Dr. Totoonchie opined
that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten pounds frequently;
(2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six
hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 90-91.
Plaintiff occasionally could climb, balance, stoop, kneel, crouch, and crawl, but she had no
manipulative, visual, communicative, or environmental limitations. R. at 91.
On August 14, 2014, another state agency consultant, A. Serpick, M.D., again assessed
Plaintiff’s physical RFC. R. at 104-06. Dr. Serpick opined that Plaintiff could (1) lift and/or
carry twenty pounds occasionally and ten pounds frequently; (2) stand and/or walk for a total of
about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday;
and (4) perform unlimited pushing and/or pulling. R. at 105. Dr. Serpick also opined that
Plaintiff occasionally could climb, balance, stoop, kneel, crouch, and crawl, but she had no
manipulative, visual, communicative, or environmental limitations. R. at 105-06.
On August 21, 2014, another state agency consultant, Robin McCallister, Ph.D., used the
PRT to evaluate Plaintiff’s mental impairments under Listings 12.04, 12.06, and 12.09 relating to
affective, anxiety-related, and substance addiction disorders (R. at 101-03). See 20 C.F.R. pt.
404, subpt. P, app. 1, §§ 12.04, 12.06, 12.09. Dr. McCallister opined that, under paragraph B of
the applicable listings, Plaintiff’s mental impairments caused her to experience (1) mild
restriction in activities of daily living; (2) moderate difficulties in maintaining social functioning;
(3) moderate difficulties in maintaining concentration, persistence, or pace; and (4) no repeated
episodes of decompensation of extended duration. R. at 102. Dr. McCallister did not find
evidence to establish the presence of the criteria under paragraph C of the applicable listings. R.
at 102. Dr. McCallister thus assessed Plaintiff’s mental RFC (R. at 106-08) and opined that she
was moderately limited in her ability to (1) carry out detailed instructions; (2) maintain attention
and concentration for extended periods; (3) complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; (4) interact appropriately with the general
public; and to (5) respond appropriately to changes in the work setting. Plaintiff otherwise was
not significantly limited.
R. at 106-08.
Dr. McCallister opined that Plaintiff could
(1) understand and remember simple and detailed instructions; (2) typically carry out simple and
some detailed instructions in two-hour increments during an eight-hour workday across a fortyhour workweek; (3) typically relate adequately without evidence of the potential for significant
problems with co-workers and supervisors; and (4) adapt to changes and pressures in a routine
work environment. R. at 108.
The ALJ reviewed Plaintiff’s testimony in her decision:
[Plaintiff] alleged that physical and mental symptoms limit her ability to
engage in work activities. Specifically, she averred that her degenerative arthritis
in the spine, and chronic adjustment disorder rendered her disabled [R. at 232].
[Plaintiff] appeared at the hearing and offered testimony that her medications
make her fall asleep. [Plaintiff] stated that 2-3 times a week she will isolate
herself at home. [Plaintiff] indicated that she will not do any activities at those
times. [Plaintiff] stated that she has daily pain in her back, radiating down from
her lower lumbar section into her buttocks.
[Plaintiff] stated that her right hand caused her to drop things at times.
[Plaintiff] stated that she could sit for 15-20 minutes before having to shift
position. [Plaintiff] indicated that she has difficulties with incontinence tied to
her back. [Plaintiff] stated that she must use the restroom about an hour after
drinking. [Plaintiff] testified that she uses pads she changes 2-3 times a day.
[Plaintiff] stated that she will dig and scratch at herself when things are out of her
control. [Plaintiff] submitted a function report indicating that she could walk for
10 minutes before having to stop and rest [R. at 254.] As a consequence,
[Plaintiff] believes she is incapable of all work activity.
R. at 21-22; see R. at 39-77.
The VE testified that a hypothetical person with Plaintiff’s same age, education, and
work experience who had the RFC outlined in Part III below could not perform Plaintiff’s past
work but could perform the sedentary, semi-skilled jobs of data entry operator, civil service
clerk, order control clerk, or actuarial clerk.4 R. at 28-29, 78-80. The VE’s testimony was
consistent with the Dictionary of Occupational Titles.5 R. at 81. A person with a loss of
productivity of 15% to 20% would not be able to maintain full-time employment. R. at 81-82.
Summary of ALJ’s Decision
On January 14, 2015, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity since the alleged onset date of disability of June 8, 2012; and (2) had an
impairment or a combination of impairments considered to be “severe” on the basis of the
requirements in the Code of Federal Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R.
pt. 404, subpt. P, app. 1; and (4) was unable to perform her past relevant work; but (5) could
perform other work in the national economy, such as a data entry operator, civil service clerk,
order control clerk, or actuarial clerk. R. at 18-29. The ALJ thus found that she was not disabled
from June 8, 2012, through the date of the decision. R. at 29.
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). “Although
a sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met.” Id. “Semi-skilled work is work
which needs some skills but does not require doing the more complex work duties.” Id.
§ 404.1568(b). Semi-skilled jobs “are similarly less complex than skilled work, but more
complex than unskilled work.” Id.
“The Social Security Administration has taken administrative notice of the Dictionary of
Occupational Titles, which is published by the Department of Labor and gives detailed physical
requirements for a variety of jobs.” Massachi v. Astrue, 486 F.3d 1149, 1152 n.8 (9th Cir. 2007);
see Pearson v. Colvin, 810 F.3d 204, 205 n.1 (4th Cir. 2015); DeLoatche v. Heckler, 715 F.2d
148, 151 n.2 (4th Cir. 1983); 20 C.F.R. § 404.1566(d)(1). “Information contained in the
[Dictionary of Occupational Titles] is not conclusive evidence of the existence of jobs in the
national economy; however, it can be used to establish a rebuttable presumption.” English v.
Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
In so finding, the ALJ found that Plaintiff had moderate difficulties with regard to
concentration, persistence, or pace. R. at 20. The ALJ noted that Plaintiff “reported that she
could follow written and spoken instructions ‘fairly well.’” [R. at 254.] On exam of August 21,
2012, [Plaintiff’s] memory was adequate [R. at 593.]” R. at 20.
The ALJ then found that Plaintiff had the RFC
to perform light work as defined in 20 CFR 404.1567(b) except no climbing
ladders, ropes, or scaffolds; occasional climbing of ramps or stairs; occasional
stooping, crouching, crawling, or kneeling; no exposure to hazards, such as
unprotected heights; frequent grasping and handling with the right dominant hand;
and work in a low stress jobs [sic], defined as occasional decision-making, and no
fast paced production.
R. at 21.6
The ALJ also considered Plaintiff’s credibility and found that her “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [her] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” R. at 21. The
ALJ gave “some weight” to Dr. McCallister’s opinion but found that “the record as a whole
supports a finding that [Plaintiff], as a result of her severe mental impairments, is limited to low
stress jobs, where low stress is defined as occasional decision-making, and no fast paced
production, but has no other limitations in work-related mental functioning.” R. at 27.
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). “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.”
Disability Determinations and Burden of Proof
The Social Security Act defines a disability as the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.
§§ 404.1505, 416.905. A claimant has a disability when the claimant 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 significant numbers either in the
region where such individual lives or in several regions of the country.”
§§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124
S. Ct. 376, 379-380 (2003). “If at any step a finding of disability or nondisability can be made,
the [Commissioner] will not review the claim further.” Thomas, 540 U.S. at 24, 124 S. Ct. at
379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production
and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.
2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity, then the claimant is not disabled.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments that significantly limits the claimant’s physical or mental ability to do basic work
activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),
404.1521(a), 416.920(c), 416.921(a).7
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience.
20 C.F.R. §§ 404.1520(a)(4)(iii),
404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),
416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite
his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do
most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,
carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at
141, 107 S. Ct. at 2291.
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical
evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to
perform past relevant work, then the claimant is not disabled.
Id. §§ 404.1520(a)(4)(iv),
Fifth, if the claimant’s RFC as determined in step four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at step four, age,
education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).
The Commissioner must prove not only that the claimant’s RFC will allow the claimant to make
an adjustment to other work, but also that the other work exists in significant numbers in the
See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find that the claimant is not
disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will
find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
Substantial Evidence Standard
The Court reviews an ALJ’s decision to determine whether the ALJ applied the correct
legal standards and whether the factual findings are supported by substantial evidence. See
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court “is
not whether [Plaintiff] is disabled, but whether the ALJ’s finding that [Plaintiff] is not disabled is
supported by substantial evidence and was reached based upon a correct application of the
relevant law.” Id. The Court’s review is deferential, as “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.
See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does “not
conduct a de novo review of the evidence,” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986), or undertake to reweigh conflicting evidence, make credibility determinations, or
substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, “[t]he
duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court.” Smith v.
Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
Plaintiff contends that the ALJ erroneously assessed her RFC contrary to Social Security
Ruling8 (“SSR”) 96-8p, 1996 WL 374184 (July 2, 1996). Pl.’s Mem. Supp. Mot. Summ. J. 3-11,
Social Security Rulings are “final opinions and orders and statements of policy and
interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1).
Once published, these rulings are binding on all components of the Social Security
Administration. Heckler v. Edwards, 465 U.S. 870, 873 n.3, 104 S. Ct. 1532, 1534 n.3 (1984);
20 C.F.R. § 402.35(b)(1). “While they do not have the force of law, they are entitled to
deference unless they are clearly erroneous or inconsistent with the law.” Pass, 65 F.3d at 1204
ECF No. 15-1 (citing, inter alia, Fleming v. Barnhart, 284 F. Supp. 2d 256, 271-72 (D. Md.
2003)). Plaintiff maintains that the ALJ failed to perform properly a function-by-function
assessment of her ability to perform the physical and mental demands of work. Id. at 6. In
particular, she contends that the ALJ erroneously failed to include any limitation on
concentration or task persistence in the ALJ’s RFC assessment, instead limiting her to low-stress
jobs and no fast-paced production. Id. Plaintiff further contends that remand is warranted
because the ALJ did not adequately explain her RFC assessment limiting Plaintiff to low-stress
jobs and no fast-paced production. Id. at 7-9. Plaintiff also maintains that the ALJ failed to
include any limitation on her ability to stand and walk in the RFC assessment. Id. at 9. Plaintiff
finally asserts that remand is warranted because the ALJ erred in evaluating her 100% disability
rating from the Department of Veterans Affairs (“VA”) (R. at 323-413). Id. at 9-11. According
to Plaintiff, substantial evidence thus does not support the ALJ’s decision. For the reasons
discussed below, Plaintiff’s assertions are unavailing.
Plaintiff’s Moderate Limitations in Maintaining Concentration, Persistence, or Pace
SSR 96-8p explains how adjudicators should assess RFC and instructs that the RFC
“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. “Only after that may
[residual functional capacity] be expressed in terms of the exertional levels of
work, sedentary, light, medium, heavy, and very heavy.” 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
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted)
(citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand
when the ALJ does not perform an explicit function-by-function analysis “is inappropriate given
that remand would prove futile in cases where the ALJ does not discuss functions that are
‘irrelevant or uncontested.’” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)
(per curiam)). Rather, 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. (quoting Cichocki,
729 F.3d at 177). The court in Mascio concluded that remand was appropriate because it was
“left to guess about how the ALJ arrived at his conclusions on [the claimant’s] ability to perform
relevant functions” because the ALJ had “said nothing about [the claimant’s] ability to perform
them for a full workday,” despite conflicting evidence as to the claimant’s RFC that the ALJ did
not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 2016) (remanding
because ALJ erred in not determining claimant’s RFC using function-by-function analysis; ALJ
erroneously expressed claimant’s RFC first and then concluded that limitations caused by
claimant’s impairments were consistent with that RFC).
Plaintiff contends that, in assessing her RFC, the ALJ failed to consider adequately her
moderate difficulties in maintaining concentration, persistence, or pace, contrary to Mascio.
Pl.’s Mem. Supp. Mot. Summ. J. 6-7, ECF No. 15-1. In Mascio, the Fourth Circuit held 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.’” Mascio, 780
F.3d at 638 (quoting Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)).
“[T]he ability to perform simple tasks differs from the ability to stay on task. Only the latter
limitation would account for a claimant’s limitation in concentration, persistence, or pace.” Id.
The court in Mascio remanded the case for the ALJ to explain why the claimant’s moderate
limitation in concentration, persistence, or pace at step three did not translate into a limitation in
the claimant’s RFC. Id. In other words, “[p]ursuant to Mascio, once an ALJ has made a step
three finding that a claimant suffers from moderate difficulties in concentration, persistence, or
pace, the ALJ must either include a corresponding limitation in her RFC assessment, or explain
why no such limitation is necessary.” Talmo v. Comm’r, Soc. Sec., Civil Case No. ELH-142214, 2015 WL 2395108, at *3 (D. Md. May 19, 2015), report and recommendation adopted (D.
Md. June 5, 2015).
“The Social Security Administration has promulgated regulations containing ‘listings of
physical and mental impairments which, if met, are conclusive on the issue of disability.’ A
claimant is entitled to a conclusive presumption that he is impaired if he can show that his
condition ‘meets or equals the listed impairments.’” Radford, 734 F.3d at 291 (citation omitted);
see 20 C.F.R. pt. 404, subpt. P, app. 1. In addition to the five-step analysis discussed above in
Part IV and outlined in 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner has promulgated
additional regulations governing evaluations of the severity of mental impairments. 20 C.F.R.
§§ 404.1520a, 416.920a. These regulations require application of a psychiatric review technique
at the second and third steps of the five-step framework, Schmidt v. Astrue, 496 F.3d 833, 844
n.4 (7th Cir. 2007), and at each level of administrative review. 20 C.F.R. §§ 404.1520a(a),
416.920a(a). This technique requires the reviewing authority to determine first whether the
claimant has a “medically determinable mental impairment.”
Id. §§ 404.1520a(b)(1),
If the claimant is found to have such an impairment, then the reviewing
authority must “rate the degree of functional limitation resulting from the impairment(s) in
accordance with paragraph (c),” id. §§ 404.1520a(b)(2), 416.920a(b)(2), which specifies four
broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration,
persistence, or pace; and (4) episodes of decompensation.
Id. §§ 404.1520a(c)(3),
416.920a(c)(3). According to the regulations, if the degree of limitation in each of the first three
areas is rated “mild” or better, and no episodes of decompensation are identified, then the
reviewing authority generally will conclude that the claimant’s mental impairment is not
“severe” and will deny benefits. Id. §§ 404.1520a(d)(1), 416.920a(d)(1). If the claimant’s
mental impairment is severe, then the reviewing authority will first compare the relevant medical
findings and the functional limitation ratings to the criteria of listed mental disorders in order to
determine whether the impairment meets or is equivalent in severity to any listed mental
disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). If so, then the claimant will be found to be
If not, the reviewing authority will then assess the claimant’s RFC.
§§ 404.1520a(d)(3), 416.920a(d)(3). “The ALJ’s decision must show the significant history and
medical findings considered and must include a specific finding as to the degree of limitation in
each of the four functional areas.” Felton-Miller v. Astrue, 459 F. App’x 226, 231 (4th Cir.
2011) (per curiam) (citing 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4)).
Here, the ALJ’s inclusion of a limitation in the assessment of Plaintiff’s RFC and in the
hypothetical questions to the VE to low-stress work, defined as “occasional decision-making”
and “no fast paced production” (R. at 21, 79), accounts for Plaintiff’s moderate difficulties in
maintaining concentration, persistence, or pace. See Russo v. Astrue, 421 F. App’x 184, 192 (3d
Cir. 2011) (holding that hypothetical question that referenced individual who “would not have a
quota to fulfill” accounted for moderate difficulties in concentration, persistence, or pace);
Seamon v. Astrue, 364 F. App’x 243, 248 (7th Cir. 2010) (holding that ALJ captured claimant’s
moderate limitation in concentration, persistence, and pace when ALJ included restriction of “no
high production goals”); Arnold v. Barnhart, 473 F.3d 816, 820 (7th Cir. 2007) (using low
production standards for moderate limitation in concentration, persistence, and pace); Grant v.
Colvin, No. 1:15CV00515, 2016 WL 4007606, at *9 (M.D.N.C. July 26, 2016); Abee v. Colvin,
No. 1:14-CV-76-GCM, 2015 WL 5330452, at *6 (W.D.N.C. Sept. 14, 2015) (“[T]he ALJ’s
findings specifically addressed the Plaintiff’s ability to stay on task as required by Mascio. The
ALJ accounted for the Plaintiff’s limitation in pace by restricting him to ‘sedentary work,’ and he
accounted for his limitation in concentration and persistence by restricting him to a low-stress
work environment with occasional decision-making, occasional changes in the work setting, and
occasional interaction with the general public.”). Plaintiff’s argument that remand is warranted
in this case under Mascio thus is without merit.
Plaintiff asserts, however, that the ALJ erred in failing to explain the mental limitations in
her RFC assessment. Pl.’s Mem. Supp. Mot. Summ. J. 7-9, ECF No. 15-1. While “there is no
rigid requirement that the ALJ specifically refer to every piece of evidence in his decision,” Reid
v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005) (per curiam)), “the ALJ ‘must build an accurate and logical bridge
from the evidence to his conclusion.’” Monroe, 826 F.3d at 189 (quoting Clifford v. Apfel, 227
F.3d 863, 872 (7th Cir. 2000)). In this case, the ALJ sufficiently explained why the mental
restrictions in the RFC assessment adequately accounted for Plaintiff’s moderate limitation in
concentration, persistence, or pace. R. at 19-21, 23-24, 25-27. The ALJ noted that Plaintiff
could follow written and spoken instructions fairly well (R. at 20 (citing R. at 254)) and that her
memory was adequate on examination in June 2014 (R. at 24 (citing R. at 593)). The ALJ
further noted that a psychologist assessed Plaintiff’s functional impairment in July 2014 as “mild
to moderate” (R. at 24 (citing R. at 586)) and that Plaintiff “was consistently assessed with only a
mild to moderate or moderate impairment in functioning” (R. at 25 (citing R. at 586, 610, 620,
645, 654, 661, 663-64, 670)). Furthermore, Plaintiff’s anxiety in July 2014 was “present but not
as overwhelming.” R. at 24 (citing R. at 593). The ALJ also found that Plaintiff’s daily living
activities belied her allegations of disabling symptoms. R. at 26. Moreover, in determining
Plaintiff’s mental RFC to “low stress” work involving occasional decision-making and no fastpaced production, the ALJ gave some weight to Dr. McCallister’s opinion that Plaintiff could,
among other things, understand and remember simple and detailed instructions and carry out
simple and some detailed instructions in two-hour increments during an eight-hour workday (R.
at 27 (citing R. at 108)). The ALJ thus considered Plaintiff’s ability to stay on task and created
“an accurate and logical bridge” from the evidence to her conclusion. See Gates v. Astrue, 338
F. App’x 46, 48 (2d Cir. 2009) (basis for ALJ’s RFC determination that claimant was limited to
low-stress work involving occasional decision-making was “clearly discernible” because of,
inter alia, claimant’s daily living activities).
ALJ’s Physical RFC Assessment
Plaintiff next asserts that, although she had been diagnosed with degenerative joint
disease of the knees and an abnormal gait, the ALJ erred in failing to include any limitation upon
her abilities to stand and walk in the RFC assessment. Pl.’s Mem. Supp. Mot. Summ. J. 9, ECF
No. 15-1. As the Commissioner points out, however, a “mere diagnosis . . . says nothing about
the severity of the condition.” Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (per curiam).
Rather, “[t]here must be a showing of related functional loss.” Gross v. Heckler, 785 F.2d 1163,
1166 (4th Cir. 1986) (per curiam). Here, the ALJ found that Plaintiff’s degenerative joint disease
of the knees was a severe impairment but did not meet or medically equal Listing 1.02 (R. at 1819). See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02. Contrary to Plaintiff’s argument, the ALJ’s
assessment of her RFC to light work involving occasional climbing of ramps or stairs and
occasional stooping, crouching, crawling, or kneeling accounted for her ability to stand and
walk, and was supported by substantial evidence. See R. at 25-27, 90-91, 105, 561-62. Because
Plaintiff “has failed to point to any specific piece of evidence not considered by the
Commissioner that might have changed the outcome of [her] disability claim,” Reid, 769 F.3d at
865, her contention in this regard is unavailing.
ALJ’s Consideration of Plaintiff’s 100% Disability Rating by VA
Plaintiff finally contends that the ALJ failed to evaluate properly her 100% disability
rating by the VA. Pl.’s Mem. Supp. Mot. Summ. J. 9-11, ECF No. 15-1. According to Plaintiff,
in giving “some weight” to the VA rating, the ALJ did not indicate what aspects of the VA rating
decision she accepted and rejected. The Commissioner maintains that the ALJ explained why
she gave less than substantial weight to the VA rating and that the Court should not reweigh this
evidence. Def.’s Mem. Supp. Mot. Summ. J. 10-14, ECF No. 16-1. As discussed below,
Plaintiff’s argument is unavailing.
The Fourth Circuit has held that, “in making a disability determination, the SSA must
give substantial weight to a VA disability rating,” but “an ALJ may give less weight to a VA
disability rating when the record before the ALJ clearly demonstrates that such a deviation is
appropriate.” Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 343 (4th Cir. 2012). The ALJ
in this case acknowledged the standard in Bird before affording the VA decision “some weight”
in assessing the limitations associated with Plaintiff’s impairments. R. at 26. The ALJ found
that Plaintiff’s daily living activities and the objective medical evidence, including Plaintiff’s
treatment notes, X-rays, and MRI, did not support finding Plaintiff more limited than the ALJ’s
RFC assessment. R. at 26, 348, 414. Furthermore, although the VA assigned a 40% disability
rating to Plaintiff’s neurogenic bladder condition (R. at 343), the ALJ explained why this
condition did not limit her any further than the RFC assessment (R. at 25). Thus, unlike in Bird,
the ALJ gave several reasons for discounting the weight given to the VA disability rating. See
Griffin v. Comm’r, Soc. Sec. Admin., Civil No. SAG-16-274, 2017 WL 432678, at *3 (D. Md.
Jan. 31, 2017) (“As the ALJ explained, although the VE assigned [the claimant] a 70 percent
disability rating in 2011, [the claimant] performed substantial gainful employment for several
years despite that rating, and was able to apply for and obtain new positions. Accordingly, the
ALJ adequately explained his decisions for assigning the VA disability ratings little weight, and
there is no violation of Bird.” (citation omitted)); Johnson v. Colvin, No. 5:13-CV-509-FL, 2014
WL 4636991, at *8-9 (E.D.N.C. Sept. 16, 2014).
Plaintiff maintains, however, that, in doing so, the ALJ was not qualified to interpret the
results of her X-rays and MRI. Although “an ALJ cannot play the role of doctor and interpret
medical evidence when he or she is not qualified to do so,” Murphy v. Astrue, 496 F.3d 630, 634
(7th Cir. 2007), “the weighing of various evidence is precisely the typical province of the ALJ.”
Caines v. Colvin, No. 8:14-CV-00388-JDA, 2015 WL 5178170, at *12 (D.S.C. Sept. 3, 2015).
“If such a comparison was considered playing doctor, as proposed by Plaintiff, then the whole of
the administrative review would be an illegality.” Id. Rather, “[a] typical case of an ALJ
impermissibly ‘playing doctor’ is when the ALJ draws medical conclusions themselves about a
claimant without relying on medical evidence.” Foster v. Astrue, No. CV-09-307-JPH, 2011 WL
1807426, at *9 (E.D. Wash. May 11, 2011) (citing Green v. Apfel, 204 F.3d 780, 782 (7th Cir.
2000)). Plaintiff’s assertions regarding the ALJ’s consideration of her 100% disability rating by
the VA thus are without merit.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct
legal standards here.
Thus, Defendant’s Motion for Summary Judgment is GRANTED,
Plaintiff’s Motion for Summary Judgment is DENIED, and the Commissioner’s final decision is
For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 16) is
Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. The
Commissioner’s final decision is AFFIRMED. A separate order will issue.
Date: March 20, 2017
Thomas M. DiGirolamo
United States Magistrate Judge
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