Dardozzi v. Colvin

Filing 20

ORDER Denying 18 Motion for Summary Judgment; Granting 19 Motion for Summary Judgment; Affirming the Commissioner's Judgment. Signed by Magistrate Judge Stephanie A Gallagher on 10/18/2016. (bas, Deputy Clerk) .

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

October 18, 2016
LETTER TO COUNSEL
RE:

Gina Dardozzi v. Carolyn Colvin;
Civil No. SAG-16-20

Dear Counsel:
On January 5, 2016, Plaintiff Gina Dardozzi petitioned this Court to review the Social
Security Administration’s final decision to deny her claims for Disability Insurance Benefits and
Supplemental Security Income. (ECF No. 1). I have considered the parties’ cross-motions for
summary judgment. (ECF Nos. 18, 19). I find that no hearing is necessary. See Loc. R. 105.6
(D. Md. 2016). This Court must uphold the decision of the Agency if it is supported by
substantial evidence and if the Agency employed proper legal standards. See 42 U.S.C. §§
405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that standard, I
will deny Plaintiff’s motion, grant the Commissioner’s motion, and affirm the Commissioner’s
judgment pursuant to sentence four of 42 U.S.C. § 405(g). This letter explains my rationale.
Ms. Dardozzi filed claims for Disability Insurance Benefits (“DIB”) and Supplemental
Security Income (“SSI”) on November 22, 2011. (Tr. 12, 157-167). She alleged a disability
onset date of April 1, 2007. Id. Her claims were denied initially and on reconsideration. (Tr.
93-105). A hearing was held on June 3, 2014, before an Administrative Law Judge (“ALJ”).
(Tr. 26-52). Following the hearing, the ALJ determined that Ms. Dardozzi was not disabled
within the meaning of the Social Security Act during the relevant time frame. (Tr. 12-24). The
Appeals Council denied Ms. Dardozzi’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. Dardozzi suffered from the severe impairments of “degenerative
disc disease, status post lumbar spine fusion; depressive disorder; and, substance addiction
disorder (drugs).” (Tr. 14). Despite these impairments, the ALJ determined that Ms. Dardozzi
retained the residual functional capacity (“RFC”) “to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that she is limited to unskilled work.” (Tr. 17). After
considering the testimony of a vocational expert (“VE”), the ALJ determined that Ms. Dardozzi
could perform jobs existing in significant numbers in the national economy and that, therefore,
she was not disabled. (Tr. 23-24).
Ms. Dardozzi raises five primary arguments on appeal: (1) that the ALJ’s holding runs
afoul of the Fourth Circuit’s decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015); (2)
that the ALJ failed to make a function-by-function assessment of mental RFC consistent with
SSR 96-8p; (3) that the ALJ did not pose an adequate hypothetical question to the VE; (4) that

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the ALJ did not properly evaluate the medical opinion evidence; and (5) that the ALJ erred in not
finding Ms. Dardozzi’s testimony as to her symptoms and limitations credible. Pl.’s Mot. 4-5.
Each argument lacks merit and is addressed below.
I.

Mascio Issue

Ms. Dardozzi argues that the ALJ’s opinion violates Mascio v. Colvin. Pl.’s Mot. 18-22.
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. Mascio, 780
F.3d 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. The relevant listings therein consist of: (1) a brief statement describing
a 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.
at § 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. §
404.1620a(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. Id. at § 404.1620a(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. at § 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. at § 12.00(C)(3). Social Security
regulations do not define 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.
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, despite the fact that, at step three of the sequential evaluation, the ALJ
determined that the claimant had moderate difficulties in maintaining concentration, persistence,
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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.
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. Although 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, it held that absent
such an explanation, remand was necessary. Id.
In the instant case, the ALJ concluded that Ms. Dardozzi had “the residual functional
capacity to perform light work … except that she is limited to unskilled work” with an SVP level
of 2. (Tr. 17, 24). With respect to concentration, persistence, or pace, the ALJ cited a 2012
psychological consultative examination that found Ms. Dardozzi was “polite and cooperative,”
“fully oriented and knew the most recent presidents,” and “able to perform serial sevens and
simple math calculations in her head.” (Tr. 16). But Ms. Dardozzi could only recall “two digits
forward and three backward” during serial sevens and “[i]t took two trials for her to repeat three
simple words” – two of which she recalled after a delay. Id. Nor could Ms. Dardozzi
“accurately repeat a simple sentence.” Id. Although Ms. Dardozzi admitted to smoking
marijuana a couple of times a week, as well as smoking marijuana about an hour before the
examination, the ALJ concluded that Ms. Dardozzi’s memory problems were “consistent with
only moderate difficulties, even while high on marijuana.” Id.
Aside from this solitary reference to moderate difficulties with persistence, concentration
or pace, the ALJ provides a lengthy account of evidence that negates any limitations in Ms.
Dardozzi’s ability to sustain concentration. For example, the ALJ cited a March, 2013
neurological examination where Ms. Dardozzi presented “alert and oriented,” with “memory…
intact,” and exhibited “a normal attention span and normal concentration.” (Tr. 21). During the
same examination, Ms. Dardozzi reported her “stress, anxiety and depression … greatly
improved.” Id. And where Ms. Dardozzi’s treating physician, Chandre LaCount, D.O., opined
that Ms. Dardozzi’s “symptoms would cause substantial restrictions in her capacity for sustained
mental alertness, concentration, and persistence in carrying out simply job duties,” the ALJ
assigned this opinion very little weight because it was inconsistent with the record evidence as a
whole and likely “nothing more than a recitation of [Ms. Dardozzi’s] subjective allegations.” Id.
The ALJ also gave little or no weight to similar concentration, persistence, and pace opinions
offered by Ms. Dardozzi’s treating therapist, Beth Katz, LCSWC, in May, 2014 for the same
reasons. (Tr. 22). Indeed, as to Ms. Katz’s opinion, the ALJ elaborated that Ms. Dardozzi “has
recently been noted to be fully oriented and have no deficits in attention and concentration. The
only evidence of any deficit in attention and concentration is the psychological consultative
examination to which the claimant showed up high on marijuana.” (Tr. 22-23) (emphasis
added).

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It is evident from the ALJ’s discussion of concentration, persistence, and pace that Ms.
Dardozzi only exhibited deficits in these areas when high on marijuana. (Tr. 16, 22-23). The
record evidence supports, and the ALJ rightly concludes, that Ms. Dardozzi has “no deficits in
attention and concentration” except when high on marijuana. (Tr. 22-23). Admittedly, the ALJ’s
apparent finding of “moderate difficulties” at Step Three inspired the parties’ confusion. See (Tr.
18). However, the ALJ’s reasoning and supporting evidence, as well as the ALJ’s statements
indicates that the ALJ believes that Ms. Dardozzi had no difficulties in persistence,
concentration, or pace, when abstaining from marijuana. Accordingly, the ALJ was under no
obligation to account for such difficulties in her analysis. Thus, I find that there was no violation
of Mascio.
II.

Function-by-Function Assessment of Mental RFC

Ms. Dardozzi argues that the ALJ did not account for her severe mental impairment of
depressive disorder at steps four and five by failing to perform a function-by-function assessment
of her mental RFC. Pl.’s Mot. 22-25. I disagree. “The RFC assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific medical
facts...and nonmedical evidence...” SSR 96-8p, 1996 WL 374184, at *7. “Work-related mental
activities generally required by competitive, remunerative work include the abilities to:
understand, carry out, and remember instructions; use judgment in making work-related
decisions; respond appropriately to supervision, co-workers and work situations; and deal with
changes in a routine work setting.” Id. at *6. Here, the ALJ provided a narrative discussion of
the medical and non-medical evidence. See (Tr. 17-23). The ALJ cited a March, 2013
neurological examination where Ms. Dardozzi presented a “normal attention span and normal
concentration” and reported that “her stress, anxiety and depression were greatly improved.”
(Tr. 21). The ALJ also summarized a May 22, 2014 Medical Assessment Report by Ms. Katz:
Ms. Katz opined that the claimant would experience a substantial loss of ability to
understand, remember and carry out simple instructions in a competitive
environment. Ms. Katz further opined that the claimant would experience a
substantial loss of ability to respond appropriately to supervision, co-workers and
usual work situations in a competitive environment. Ms. Katz opined that the
claimant would experience a substantial loss of ability to deal with changes in a
routine work setting in a competitive environment. Ms. Katz stated that the
claimant has decreased tolerance, is easily agitated, is very irritable, and has
memory loss and problems with concentration.
(Tr. 22). The ALJ decided, however, to give this opinion very little weight because it was
inconsistent with recent treatment records describing Ms. Katz as “fully oriented and hav[ing] no
deficits in attention and concentration. The only evidence of any deficit in attention and
concentration is the [2012] psychological consultative examination to which the claimant
showed up high on marijuana.” (Tr. 23). The ALJ similarly discounted Ms. Katz’s May 14,
2014 Medical Assessment Report and Dr. LaCount’s August, 2013 Medical Assessment Report,
both of which found that Ms. Dardozzi’s “symptoms would cause substantial restrictions in her
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capacity for sustained mental alertness, concentration, and persistence in carrying out simple job
duties,” because they appeared “to be nothing more than a recitation of the claimant’s subjective
allegations.” (Tr. 21-22).
The above narrative, coupled with the ALJ’s subsequent conclusory statements regarding
Ms. Dardozzi’s mental RFC, sufficiently constitute the function-by-function assessment required
by SSR 96-8p. Therefore, I do not find remand on this point necessary.
III.

Vocational Expert Hypotheticals

Ms. Dardozzi also argues that the ALJ failed to include various physical and mental
limitations in her questions to the VE. Pl.’s Mot. 25-29. As an initial matter, an ALJ is afforded
“great latitude in posing hypothetical questions,” Koonce v. Apfel, 1999 WL 7864, at *5 (4th Cir.
Jan. 11, 1999), and need only pose those that are based on substantial evidence and accurately
reflect a claimant’s limitations. See Copeland v. Bowen, 861 F.2d 536, 540-41 (9th Cir. 1988).
Likewise, a hypothetical question is unimpeachable if it adequately reflects the RFC for which
the ALJ had sufficient evidence. See Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005).
In this case, the ALJ framed a hypothetical based on the RFC “limited to light work
which requires her to stand and or walk for a total of six hours of an eight hour workday … [and]
sit for a total of six hours of an eight hour workday.” (Tr. 43). In response, the VE stated that
Ms. Dardozzi could perform several “light, [] unskilled, SVP 2” jobs existing in the national
economy. (Tr. 43-44). The ALJ then asked a second hypothetical that questioned whether the
VE’s testimony changed when the individual is limited to unskilled work and the exertional level
is sedentary.” (Tr. 44). In response to the second hypothetical, the VE stated that such a person
could still perform several jobs existing in the national economy. (Tr. 44-45). Ms. Dardozzi
contends that the ALJ improperly failed to include weight-bearing and postural limitations as to
Ms. Dardozzi’s physical RFC and mental limitations as to Ms. Dardozzi’s mental RFC.
As discussed above, the ALJ properly assessed and failed to find any limitations to Ms.
Dardozzi’s mental RFC stemming from her depressive disorder. As such, omitting mental
limitations from the VE hypotheticals was not improper. See Copeland, 861 F.2d at 540-41. As
to the physical RFC, the Commissioner rightly concludes that “the ALJ incorporated all of Ms.
Dardozzi’s credible limitations in her hypothetical questions.” Def.’s Mot. 13 (emphasis added).
Indeed, after evaluating all of the evidence, including Ms. Dardozzi’s testimony as to her
physical limitations, the ALJ concluded that Ms. Dardozzi’s “statements concerning the
intensity, persistence and limiting effects of [her medically determinable impairments] are not
entirely credible for the reasons explained in this decision.” (Tr. 18). The ALJ goes on to
discount Ms. Dardozzi’s alleged “extent of pain,” and “limitations” as inconsistent with other
statements made by Ms. Dardozzi to medical providers and family members, as well as
unsupported by the treatment records. Id. The ALJ also cited opinion evidence demonstrating
that Ms. Dardozzi retains a full range of motion despite her severe physical impairments of
degenerative disc disease and status post lumbar spine fusion, including a 2007 examination by
Jean-Paul Wolinsky, M.D. describing Ms. Dardozzi as “ambulating independently, without an
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assistive device” and possessing “full range of motion;” a 2009 evaluation at Rosen-Hoffberg
Rehabilitation and Pain Management reporting that Ms. Dardozzi could “squat and arise …
[although her] [r]ange of motion of the lumbar spine was limited;” and a February, 2012
consultative examination by Douglas Wright, M.D. noting that Ms. Dardozzi “has a normal
gait,” “does not use an assistive device,” was “‘quite animated and athletic’,” and “had full range
of motion of the cervical and lumbar spine [including being] able to touch her toes.” (Tr. 19-20).
The ALJ concludes this narrative by noting that Ms. Dardozzi’s “X-rays and a MRI of her
lumber spine, taken in January 2013, showed no significant new findings since January 2009
imaging. Furthermore, examinations performed in 2014 show full strength in her lower
extremities.” (Tr. 20) (citations omitted). Moreover, the ALJ gave little or no weight to opinion
evidence assigning significant restrictions to Ms. Dardozzi’s abilities to sit, stand, walk, lift,
bend, crouch, climb, and stoop while supplying sound reasoning for doing so. (Tr. 21-22).
Despite these findings, the ALJ limited Ms. Dardozzi to light and unskilled work, accounting for
her severe physical and mental impairments, respectively. The ALJ’s hypotheticals are
supported by ample evidence in the record, and are therefore proper. As a result, remand on this
issue is unwarranted.
Lastly, Ms. Dardozzi claims that the ALJ erred by not resolving a conflict between the
VE’s testimony and the Dictionary of Occupational Titles (“D.O.T.”). Pl.’s Mot. 27 (citing
Henderson v. Colvin, 643 F. App’x 273 (4th Cir. 2016) (unpublished)). In Henderson, the
Fourth Circuit found a conflict between “an RFC that limits [the claimant] to one-to-two step
instructions and GED Reasoning Code 2, which requires the ability to understand detailed
instructions.” 643, F. App’x. at 277. Reading Henderson broadly puts it in conflict with existing
case law, which has repeatedly found that occupations with a reasoning level of 2 are consistent
with a claimant’s ability to perform simple, routine work. See, e.g., Michel v. Comm’r Soc. Sec.
Admin., No. SAG-13-2311, 2014 WL 2565900, at *3 (D. Md. June 5, 2014); Blum v. Comm’r
Soc. Sec. Admin., No. SAG-12-1833, 2013 WL 2902682, at *3 (D. Md. June 11, 2013); see also
Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) (finding no inconsistency between a job
with a reasoning level of three and a hypothetical individual limited to “simple, concrete
instructions”); Hacket v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (holding that “leveltwo reasoning appears more consistent with Plaintiff’s RFC” to “simple and routine work
tasks”). Ultimately, Henderson is distinguishable from the instant case because the ALJ did not
limit Ms. Dardozzi’s RFC to “one-to-two step instructions,” but rather to “unskilled work.”
Unskilled work is defined as “work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time.” 20 C.F.R. § 404.1568. Unskilled work,
then, is tantamount to simple, routine tasks. Consistent with the precedent cited above,
“unskilled work” is consistent with a reasoning level of SVP 2. As an unpublished decision
creating non-binding precedent, Henderson, narrowly construed to suggest a conflict between the
D.O.T. definition of SVP 2 and RFCs limited to “one-to-two step instructions,” does not dictate a
remand in this case.

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IV.

Evaluation of Medical Opinion Evidence

Ms. Dardozzi contends that the ALJ assigned inadequate weight to the opinion of Ms.
Dardozzi’s treating physician, Dr. LaCount. Pl.’s Mot. 29-31. A treating physician’s opinion is
given controlling weight when two conditions are met: 1) it is well-supported by medically
acceptable clinical laboratory diagnostic techniques; and 2) it is consistent with other substantial
evidence in the record. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2). However, where a treating source’s opinion is not supported
by clinical evidence or is inconsistent with other substantial evidence, it should be accorded
significantly less weight. Craig, 76 F.3d at 590. If the ALJ does not give a treating source’s
opinion controlling weight, the ALJ will assign weight after applying several factors, such as, the
length and nature of the treatment relationship, the degree to which the opinion is supported by
the record as a whole, and any other factors that support or contradict the opinion. 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6). The ALJ must also consider, and is entitled to rely on,
opinions from non-treating doctors. See SSR 96-6p, 1996 WL 374180 at *3 (“In appropriate
circumstances, opinions from State agency medical and psychological consultants and other
program physicians and psychologists may be entitled to greater weight than the opinions of
treating or examining sources.”).
Contrary to Ms. Dardozzi’s assertion, the ALJ properly evaluated Dr. LaCount’s opinion.
The ALJ assigned Dr. LaCount’s opinion “little weight” because it was inconsistent with the
medical evidence and unsupported by the objective record. (Tr. 21-22). Specifically, the ALJ
noted that, contrary to Dr. LaCount’s statements that Ms. Dardozzi “would need to lie down for
four hours out of an eight hour workday,” “on examination the claimant has from mild to no
limitation in range of motion of the lumbar spine, … full strength of the upper extremeties, and
her imaging studies have remained the same for several years, showing only mild degenerative
changes subsequent to her surgery.” (Tr. 22). The ALJ also expressed concern that Dr.
LaCount’s opinion “appears to be nothing more than a recitation of the claimant’s subjective
allegations,” pointing to Dr. LaCount paraphrasing Ms. Dardozzi’s comments during a medical
examination regarding her ability to sit and stand for lengthy periods. Id. These inconsistencies
provide sufficient justification for the ALJ’s decision to accord only “little weight” to Dr.
LaCount’s opinion.
V.

Credibility

Finally, Ms. Dardozzi maintains that the ALJ failed to properly evaluate her credibility.
Pl.’s Mot. 32. In particular, she believes the ALJ erred in assessing her pain. Id. Although Ms.
Dardozzi attempts to boil the ALJ’s position down to discrediting her pain on the basis of taking
care of her daughter and having sex a couple of times a day, the ALJ actually provides numerous
specific examples where Ms. Dardozzi’s allegations and statements about her symptoms are not
supported or contradicted by the record evidence. Pl.’s Mot. 32. (Tr. 18.) The examples include
inconsistencies between Ms. Dardozzi’s testimony about her bed time and length of sleep at
night due to her impairments versus statements to a consultative examiner about the same issue;
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testimony about concentration problems stemming from her injuries and medications prompting
her to leave a job versus statements made in 2007 to her treating neurologist that “she quit her
job due to workplace-related issues unrelated to her pain;” and testimony that she is in constant
pain without relief versus statements made during a 2014 neurological examination that “she was
happy with her pain management regimen and was experiencing no pain.” (Tr. 18). The ALJ
also assessed Ms. Dardozzi’s credibility based on her in-court demeanor and testimony during
her June, 2014 hearing. The ALJ observed, for instance, that Ms. Dardozzi appeared
uncomfortable wearing a back brace she testified to having worn for four years. Id. Nor could
the ALJ find a prescription for the back brace or support in the record to reflect that Ms.
Dardozzi’s treating health care providers or consultative examiners knew about the back brace;
indeed, a May, 2014 Medical Assessment Report noted that Ms. Dardozzi did not use any
assistive device. Id. The ALJ’s detailed evaluation of the record evidence against Ms.
Dardozzi’s inconsistent and unsupported statements over the years regarding her pain and other
symptoms amply supports the ALJ’s conclusion that Ms. Dardozzi’s alleged limitations were not
entirely credible. Thus, contrary to Ms. Dardozzi’s argument, the ALJ properly evaluated Ms.
Dardozzi’s credibility, and supported her findings with substantial evidence.
For the reasons set forth above, Ms. Dardozzi’s Motion for Summary Judgment (ECF No.
18) is DENIED and Defendant’s Motion for Summary Judgment (ECF No. 19) is GRANTED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s judgment is AFFIRMED.
The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge

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