Hill v. Colvin

Filing 22

REPORT AND RECOMMENDATIONS GRANTING 18 MOTION for Summary Judgment filed by Carolyn W. Colvin, DENYING 17 MOTION for Summary Judgment /Petition for Review of Social Security Commissioner's Decision filed by Jonathan Jay Hill Signed by: Judge Magistrate Judge Thomas M. DiGirolamo. Signed by Magistrate Judge Thomas M. DiGirolamo on 6/8/2016. (jrs, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
JONATHAN JAY HILL,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. DKC 15-1027

REPORT AND RECOMMENDATION
Plaintiff Jonathan Jay Hill seeks judicial review under 42 U.S.C. §§ 405(g) and
1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the
“Commissioner”) denying his applications for disability insurance benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act.
Before the Court are Plaintiff’s Motion for Summary Judgment and alternative motion for
remand under the fourth sentence of 42 U.S.C. § 405(g)1 (ECF No. 17), Defendant’s Motion for
Summary Judgment (ECF No. 18), and Plaintiff’s “Reply Memorandum to Defendant’s Motion
for Summary Judgment” (ECF No. 21).2 Plaintiff contends that the administrative record does

1

The fourth sentence of 42 U.S.C. § 405(g) provides that “[t]he court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g).
2

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

not contain substantial evidence to support the Commissioner’s decision that he is not disabled.
Under Standing Order 2014-01, this matter has been referred to the undersigned for pretrial
management and for proposed findings of fact and recommendations under 28 U.S.C.
§ 636(b)(1)(B) and L.R. 301(5)(b)(ix). No hearing is necessary. L.R. 105(6). For the reasons
that follow, it is RECOMMENDED that Defendant’s Motion for Summary Judgment (ECF No.
18) be GRANTED, Plaintiff’s Motion for Summary Judgment and alternative motion for
remand under the fourth sentence of 42 U.S.C. § 405(g) (ECF No. 17) be DENIED, and
Defendant’s final decision be AFFIRMED.
I
Background
Plaintiff was born in 1966, has a high-school education, and previously worked as a
collision-center manager, service writer in the automotive industry, insurance adjuster,
millwright, and service and parts manager. R. at 28-29, 262, 267-68. Plaintiff protectively filed
applications for DIB and SSI on May 29, 2013, alleging disability beginning on May 19, 2012,
due to stroke, a hole in his heart, heart surgery, severe neurocognitive deficits, sleep apnea,
herniated discs in the lower back, fatigue, depression, brain damage, right-sided clumsiness and
decreased dexterity, and memory and concentration problems. R. at 200-13, 262, 266. The
Commissioner denied Plaintiff’s applications initially and again on reconsideration, so Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”). R. at 84-137, 142-53. On
June 30, 2014, ALJ Michael A. Krasnow held a hearing in Washington, D.C., at which Plaintiff
and a vocational expert (“VE”) testified. R. at 31-83, 175-92. After the hearing, Plaintiff
amended his claim to a closed period of disability from May 19, 2012, to August 8, 2013. R. at
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.
2

342, 346-47. On August 19, 2014, the ALJ issued a decision finding Plaintiff not disabled from
the alleged onset date of disability of May 19, 2012, through August 8, 2013. R. at 17-30.
Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff’s request
for review on February 9, 2015. R. at 1-5. The ALJ’s decision thus became the final decision of
the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481; see also Sims v. Apfel, 530 U.S. 103,
106-07, 120 S. Ct. 2080, 2083 (2000).
On April 10, 2015, Plaintiff filed a complaint in this Court seeking review of the
Commissioner’s decision. ECF No. 1. After Defendant filed the administrative transcript (ECF
No. 11) and the parties filed their cross-motions for summary judgment, the case was referred to
the undersigned for a report and recommendation for the disposition of the parties’ motions (ECF
No. 13). The matter is now fully submitted.
II
Summary of Evidence
A.

Opinion Evidence
On May 19, 2012, Plaintiff suffered a cerebrovascular accident (“CVA” or “stroke”) and

was discharged from the hospital on May 21, 2012. R. at 500-28.
On August 6, 2013, a state agency medical consultant, J. Biddison, M.D., assessed
Plaintiff’s physical residual functional capacity (“RFC”). R. at 93-95, 105-07. Dr. Biddison
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 93, 105. Plaintiff frequently could balance, stoop, kneel, crouch, crawl, and climb ramps
and stairs (but never ladders, ropes, or scaffolds).

3

R. at 94, 106.

Although he had no

manipulative or visual limitations, Plaintiff’s speaking was limited, and he was to avoid all
exposure to hazards such as machinery and heights. R. at 94-95, 106-07.
On September 5, 2013, Francis Fishburne, Ph.D., conducted a consultative psychological
evaluation of Plaintiff. R. at 798-803. Dr. Fishburne found that Plaintiff
earned a WAIS-IV Full Scale IQ score of 96 that falls in the average range of
abilities. His WMS-IV memory scores fell in the average range. He related well
with this examiner and tolerated the evaluation without difficulty. Should he
qualify for financial benefits, he would not require the assistance of a responsible
adult to manage those benefits.
R. at 802. Dr. Fishburne’s rated Plaintiff’s GAF at 85. R. at 802.3
On September 16, 2013, another state agency consultant, J. Patrick Peterson, Ph.D., J.D.,
using the psychiatric review technique under 20 C.F.R. §§ 404.1520a and 416.920a, evaluated
Plaintiff’s mental impairments under Listing 12.06 relating to anxiety-related disorders (R. at 9192, 103-04). See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.06. Dr. Peterson opined that, under
paragraph B of Listing 12.06, Plaintiff’s mental impairment caused him to experience (1) no
restriction in activities of daily living; (2) no difficulties in maintaining social functioning;
(3) mild difficulties in maintaining concentration, persistence, or pace; and (4) no episodes of
decompensation of extended duration. R. at 91-92, 103-04. Dr. Peterson did not find evidence
to establish the presence of the criteria under paragraph C of Listing 12.06. R. at 92, 104. Dr.

3

The GAF, or global assessment of functioning, scale rates psychological, social, and
occupational functioning; it is divided into ten ranges of functioning. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) [hereinafter
DSM-IV-TR]. A GAF rating between 81 and 90 indicates “[a]bsent or minimal symptoms (e.g.,
mild anxiety before an exam), good functioning in all areas, interested and involved in a wide
range of activities, socially effective, generally satisfied with life, no more than everyday
problems or concerns (e.g., an occasional argument with family members).” Id. at 34. The
current edition of the manual eliminated the GAF scale for reasons including “its conceptual lack
of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and
questionable psychometrics in routine practice.” Am. Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 16 (5th ed. 2013).
4

Peterson ultimately found that Plaintiff’s mental impairment was not severe. R. at 92, 104. On
February 27, 2014, another state agency consultant, Wendy Silver, Psy.D., affirmed Dr.
Peterson’s opinion as written. R. at 119-20, 132-33.
On February 24, 2014, another state agency medical consultant, E. Harris, M.D., again
assessed Plaintiff’s physical RFC. R. at 121-22, 134-35. Dr. Harris opined that Plaintiff could
(1) lift and/or carry 20 pounds occasionally and 10 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 121, 134.

Plaintiff

occasionally could climb, balance, stoop, kneel, crouch, and crawl. R. at 121, 134. He had no
manipulative, visual, communicative, or environmental limitations. R. at 121-22, 134-35.
On June 24, 2014, Steven Diener, M.D., completed a “Functional Assessment (Physical)”
evaluating Plaintiff’s condition between May 19, 2012, and December 1, 2013. R. at 908-09.
According to Dr. Diener, Plaintiff could sit for three and stand/walk for two hours in an eighthour workday. R. at 908. Dr. Diener opined that Plaintiff “was somewhat incapacitated—unable
to function in any meaningful job or routine[?] during this time.”

R. at 908.

Plaintiff

occasionally could bend/stoop, balance, and reach above shoulder level. R. at 909. He could not
climb, squat, crouch, push/pull, crawl, or kneel. R. at 909. Plaintiff could carry a minimal
amount of weight, such as five pounds, but could not lift any weight. R. at 909. According to
Dr. Diener, Plaintiff needed rest periods throughout the day. R. 909.
On June 26, 2014, Milan Joshi, M.D., completed a “Medical Assessment of Ability to Do
Work Related Activities (Mental Assessment).” R. at 910-13. According to Dr. Joshi, Plaintiff’s
ability to make occupational adjustments was poor, and he was unable to function at work during
the time Dr. Joshi saw him from January to July 2013. R. at 910-11. Further, because of his

5

decreased concentration, focus, crying spells, major depression, and organic affective disorder,
Plaintiff’s ability to make performance and personal-social adjustments was poor. R. at 911-12.
B.

Plaintiff’s Testimony
The ALJ reviewed Plaintiff’s testimony in his decision:
[Plaintiff] alleges disabling limitations due to stroke, hole in the heart,
heart surgery, severe neurocognitive deficits, sleep apnea, herniated discs in the
lower back, fatigue, depression, brain damage, right-sided clumsiness and
decreased dexterity, and memory and concentration problems [R. at 265-80].
[Plaintiff] testified that he had a stroke in May 2012. He had right-sided
paralysis. He was able to shower on his own after two to three weeks; he had
difficulty getting dressed; he wore slip-ons shoes because he could not tie shoes.
Around the house, he tried to help with chores but was unsuccessful. He forgot
half the list when he went to the grocery store and would burn the food when he
tried to cook. He could not walk very far. For example, he could walk through a
parking lot and grocery store, but then he would need to sit down. He used the
computer and keyboard partly for physical therapy. He attended religious
services once per month. He watched his kids play lacrosse. While working at
the hardware store, he could stand and walk long enough to load his truck but then
he was able to sit and drive. [Plaintiff] tried various psychotropic medications,
but they made him more depressed. He developed pseudobulbar affect and
experienced forgetfulness, anger outbursts, and crying fits. In August 2013,
[Plaintiff] started a medication regimen that began to stabilize his mood [R. at 3773].

R. at 25.
C.

VE Testimony
The VE testified at the hearing that a hypothetical individual with Plaintiff’s age,

education, work experience, and the RFC outlined in Part III below could not perform Plaintiff’s
past work but could perform the unskilled, sedentary4 jobs of security worker, quality-control
worker, or grading and sorting worker. R. at 74-76. The VE’s testimony was consistent with the

4

“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),
416.967(a). “Unskilled work is work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time.” Id. §§ 404.1568(a), 416.968(a).
6

Dictionary of Occupational Titles.5 R. at 76. A person with the limitations described in Dr.
Diener’s physical assessment (R. at 908-09) or Dr. Joshi’s mental assessment (R. at 910-13)
could not perform any work that existed in substantial numbers in the regional and national
economies. R. at 77-79. An individual functioning with a 20% deficit in productivity would not
be employable. R. at 79. Further, an individual absent from work at least two days per month
also would not employable. R. at 79-80.
III
Summary of ALJ’s Decision
On August 19, 2014, the ALJ found that Plaintiff (1) had not engaged in substantial
gainful activity from the alleged onset date of disability of May 19, 2012, through August 8,
2013; 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 his past relevant work;
but (5) could perform other work in the national economy, such as a security worker, qualitycontrol worker, or grading and sorting worker. R. at 22-30. The ALJ thus found that he was not
disabled from May 19, 2012, through August 8, 2013. R. at 30.
In so finding, the ALJ found that Plaintiff had a moderate limitation in concentration,
persistence, or pace. R. at 24. The ALJ explained:
5

“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), 416.966(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).
7

[Plaintiff] reported difficulty with memory, completing tasks, and concentration
[R. at 290-98]. He stated he could pay attention for only five to 15 minutes at a
time (Id.). He read slowly and needed to re-read instructions (Id.). He testified
regarding problems with forgetfulness.
However, intelligence testing in
September 2013 revealed average functioning and memory [R. at 798-803]. He
performed multi-step tasks including certain household chores [R. at 290-98].
Therefore, the evidence establishes only moderate limitation in concentration,
persistence, and pace.
R. at 24.
The ALJ found that Plaintiff had the RFC “to perform sedentary work as defined in 20
CFR 404.1567(a) and 416.967(a) except [Plaintiff] can occasionally climb ramps, stairs, ropes,
ladders, and scaffolds, balance, stoop, kneel, crouch, and crawl; and he is limited to simple,
routine, repetitive tasks with no production rate for pace of work.” R. at 24. In determining
Plaintiff’s RFC, the ALJ considered Plaintiff’s credibility and found that his “medically
determinable impairments could reasonably be expected to cause the alleged symptoms;
however, [his] statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible for the reasons explained in this decision.” R. at 25. The
ALJ found that
various factors weigh against [Plaintiff’s] credibility. First, he performed
significant work activity during the closed period. He worked as many as 18
hours per week in a hardware store [R. at 37-73, 246-49, 798-803]. Second,
[Plaintiff] was already unemployed at the time of his stroke, suggesting that he
did not stop working due to the stroke [R. at 346-47]. Instead, [Plaintiff] was laid
off in January 2012 (Id.). Third, [Plaintiff’s] regular activities during the closed
period suggest greater abilities than alleged. He reportedly started driving four
months after his stroke; he played football with his children in September 2012;
he participated in his scout group; he performed “handy man” tasks for one or two
hours per week, such as hanging pictures and repairing doors [R. at 37-73].
Fourth, [Plaintiff] received unemployment benefits and applied for jobs during the
closed period, suggesting notable functional abilities (Id.). He testified that he
would have taken a job if offered one while receiving unemployment benefits.
Fifth, [Plaintiff] made inconsistent statements about alcohol use. At the hearing,
he testified that he drinks one or two drinks a few times per week. Yet, treatment
notes from November 2012 state that [Plaintiff] was drinking three to four drinks
per day [R. at 618-761].
8

R. at 25-26. The ALJ also found that the medical evidence did not substantiate disabling
limitations. R. at 26.
The ALJ afforded “no weight” to Dr. Joshi’s June 2014 opinion (R. at 910-13) because it
was “not consistent with the medical evidence of record or Dr. Joshi’s own treatment notes.” R.
at 27. The ALJ gave “little weight” to Dr. Diener’s June 2014 opinion (R. at 908-09) because it
was “internally inconsistent.”

R. at 27.

The ALJ afforded “significant weight” to Dr.

Fishburne’s September 2013 assessment (R. at 798-803) because it was “consistent with
treatment notes, which indicate improvement since [Plaintiff’s] stroke.” R. at 27. Finally, the
ALJ gave “significant weight” to the opinions of the state agency medical consultants because,
among other things, the evidence as a whole supported their conclusions. R. at 27-28.
IV
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.”

42 U.S.C.

§§ 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
9

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.

20 C.F.R.

§§ 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).6
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.
6

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.
10

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
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.”

20 C.F.R.

§§ 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),

416.920(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
national economy.

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

11

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).
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

12

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).
VI
Discussion
As discussed below, it is recommended that the Court grant Defendant’s Motion for
Summary Judgment and deny Plaintiff’s Motion for Summary Judgment or for remand under the
fourth sentence of 42 U.S.C. § 405(g).
A.

Mascio v. Colvin
Plaintiff first contends that, in assessing his RFC, the ALJ failed to consider adequately

his moderate difficulties in maintaining concentration, persistence, or pace, contrary to Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015). Pl.’s Mem. Supp. Mot. Summ. J. 24-26, ECF No. 17-1. 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.
According to Plaintiff,
[t]he only mental limitation in the ALJ’s RFC was that the Plaintiff “is limited to
simple, routine, repetitive tasks with no production rate for pace of work.” Even
assuming that “no production rate for pace work” means something different than
simple, routine work, it still says nothing as to [Plaintiff’s] ability to stay on task,
and the ALJ’s decision contains no discussion as to how it is that [Plaintiff] would

13

have no problem with staying on task despite having moderate limitations in
concentration, persistence or pace.
Pl.’s Mem. Supp. Mot. Summ. J. 25, ECF No. 17-1. As discussed below, Plaintiff’s contention
is unavailing.
“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.”
416.920a(b)(1).

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
14

“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
disabled.

If not, the reviewing authority will then assess the claimant’s RFC.

Id.

§§ 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)). With regard to the four functional areas, which
correspond to the paragraph B criteria of the listings for mental disorders, “[a]ctivities of daily
living include adaptive activities such as cleaning, shopping, cooking, taking public
transportation, paying bills, maintaining a residence, caring appropriately for [the claimant’s]
grooming and hygiene, using telephones and directories, and using a post office.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 12.00(C)(1). “In the context of [the claimant’s] overall situation, [the
Commissioner assesses] the quality of these activities by their independence, appropriateness,
effectiveness, and sustainability. [The Commissioner] will determine the extent to which [the
claimant is] capable of initiating and participating in activities independent of supervision or
direction.” Id. Moreover, “[s]ocial functioning refers to [the claimant’s] capacity to interact
independently, appropriately, effectively, and on a sustained basis with other individuals. Social
functioning includes the ability to get along with others, such as family members, friends,
neighbors, grocery clerks, landlords, or bus drivers.”

15

Id. § 12.00(C)(2).

Further,

“[c]oncentration, 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).

“On mental status examinations,

concentration is assessed by tasks such as having [the claimant] subtract serial sevens or serial
threes from 100. In psychological tests of intelligence or memory, concentration is assessed
through tasks requiring short-term memory or through tasks that must be completed within
established time limits.”

Id.

Finally, “[e]pisodes of decompensation are exacerbations or

temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as
manifested by difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace.” Id. § 12.00(C)(4). “Episodes
of decompensation may be demonstrated by an exacerbation in symptoms or signs that would
ordinarily require increased treatment or a less stressful situation (or a combination of the two).”
Id. Episodes of decompensation may be inferred from “medical records showing significant
alteration in medication; or documentation of the need for a more structured psychological
support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and
directing household); or other relevant information in the record about the existence, severity,
and duration of the episode.” Id. “The term repeated episodes of decompensation, each of
extended duration in these listings means three episodes within 1 year, or an average of once
every 4 months, each lasting for at least 2 weeks.” Id.
Here, the ALJ’s inclusion of a limitation in the assessment of Plaintiff’s RFC to “no
production rate for pace of work” 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

16

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); Linares v. Colvin, No.
5:14-CV-00120, 2015 WL 4389533, at *4 (W.D.N.C. July 17, 2015) (“The ALJ accounted for
Plaintiff’s limitation in pace by restricting her to ‘nonproduction pace,’ and he accounted for her
limitation in concentration and persistence by restricting her to a stable work environment with
only occasional public contact.”); see also Chase v. Comm’r, Soc. Sec. Admin., Civil No. SAG14-2961, 2016 WL 199410, at *3 (D. Md. Jan. 15, 2016) (determining that ALJ’s assessment of
claimant’s RFC to “no production rate or paced work” accounted for claimant’s moderate
limitation in concentration, persistence, or pace); Shirey v. Comm’r, Soc. Sec. Admin., Civil No.
SAG-15-261, 2015 WL 7012718, at *4 (D. Md. Nov. 10, 2015); Rayman v. Comm’r, Soc. Sec.
Admin., Civil No. SAG-14-3102, 2015 WL 6870053, at *3 (D. Md. Nov. 6, 2015) (“[T]he
limitation to an environment with few changes and no production quotas assures that [the
claimant] is not required to produce any particular volume of work-product and is not distracted
or required to adapt to changes in the workplace. Thus, the ALJ accounted for any time that [the
claimant] would be off-task due to his limited ability to maintain focus.”); Gair v. Comm’r, Soc.
Sec. Admin., Civil No. SAG-14-3652, 2015 WL 5774982, at *2 (D. Md. Sept. 28, 2015) (finding
that ALJ adequately accounted for claimant’s moderate limitation in concentration, persistence,
or pace by limiting him to work with no strict production quotas). Plaintiff’s argument that
remand is warranted in this case under Mascio thus is without merit.

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B.

ALJ’s Consideration of Opinion Evidence
The ALJ also considered the opinion evidence in this case and gave no weight to Dr.

Joshi’s opinion because it was not consistent with the doctor’s treatment notes and the medical
evidence of record. R. at 27. A treating source’s opinion on issues of the nature and severity of
the impairments will be given controlling weight when well supported by medically acceptable
clinical and laboratory diagnostic techniques and when the opinion is consistent with the other
substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Conversely,
however, “the ALJ holds the discretion to give less weight to the testimony of a treating
physician in the face of persuasive contrary evidence.” Mastro v. Apfel, 270 F.3d 171, 178 (4th
Cir. 2001).

“[I]f a physician’s opinion is not supported by clinical evidence or if it is

inconsistent with other substantial evidence, it should be accorded significantly less weight.”
Craig, 76 F.3d at 590; see Meyer v. Colvin, 754 F.3d 251, 256 (4th Cir. 2014) (“[A] treating
physician’s opinion is to be accorded comparatively less weight if it is based on the physician’s
limited knowledge of the applicant’s condition or conflicts with the weight of the evidence.”
(citing Craig, 76 F.3d at 590; 20 C.F.R. § 404.1527(c))).

An ALJ may reject a treating

physician’s opinion in its entirety and afford it no weight if the ALJ gives specific and legitimate
reasons for doing so. See Bishop v. Comm’r of Soc. Sec., 583 F. App’x 65, 67 (4th Cir. 2014)
(per curiam) (citing Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 (9th Cir. 2001); Craig, 76
F.3d at 589-90).
Here, the ALJ noted that Dr. Joshi’s opinion that Plaintiff had serious limitations in
making occupational adjustments, performance adjustments, and personal-social adjustments
was inconsistent with the doctor’s rating of Plaintiff’s GAF between 60 and 75, suggesting slight
or mild to moderate symptoms or difficulties in functioning. R. at 27. Although Plaintiff

18

contends that the ALJ’s affording little weight to the GAF scores in this case contradicted the
ALJ’s reliance on this inconsistency (R. at 28), the inconsistency of Dr. Joshi’s opinion with the
doctor’s assessments of Plaintiff’s GAF was a specific and legitimate reason to afford no weight
to Dr. Joshi’s opinion. See Melton v. Comm’r of Soc. Sec. Admin., 442 F. App’x 339, 341 (9th
Cir. 2011); Draper v. Colvin, No. CV-15-01211-PHX-DGC, 2016 WL 1695678, at *5 (D. Ariz.
Apr. 28, 2016) (“[The ALJ] was comparing the GAF score assessed by a particular psychologist
during a particular examination to an opinion based on the same examination. It was permissible
for the ALJ to rely on the GAF score for this purpose.”).
Plaintiff also maintains that the ALJ erred in affording little weight to Dr. Diener’s
opinion that between May 19, 2012, and December 1, 2013, he could only sit for three hours and
stand or walk for two hours in an eight-hour day. Substantial evidence, however, supports the
ALJ’s finding that this opinion was inconsistent with Plaintiff’s report in January 2013 that he
felt 90% physically improved. R. at 27, 763. In short, Plaintiff’s arguments regarding the
weight afforded by the ALJ to the opinions of Drs. Joshi and Diener are unavailing.
C.

ALJ’s Consideration of Plaintiff’s Credibility
The Fourth Circuit recently reiterated the following standard in evaluating a claimant’s

complaints of pain or other symptoms. Dunn v. Colvin, 607 F. App’x 264, 272-73 (4th Cir.
2015). Whether “a person is disabled by pain or other symptoms is a two-step process. First,
there must be objective medical evidence showing the existence of a medical impairment(s)
which results from anatomical, physiological, or psychological abnormalities and which could
reasonably be expected to produce the pain or other symptoms alleged.” Id. at 272 (quoting
Craig, 76 F.3d at 594). “At this stage of the inquiry, the pain claimed is not directly at issue; the
focus is instead on establishing a determinable underlying impairment—a statutory requirement

19

for entitlement to benefits—which could reasonably be expected to be the cause of the disabling
pain asserted by the claimant.” Id. at 272-73 (quoting Craig, 76 F.3d at 594). Second, after the
first inquiry is complete, the ALJ must evaluate “the intensity and persistence of the claimant’s
pain, and the extent to which it affects her ability to work.” Craig, 76 F.3d at 595; see 20 C.F.R.
§§ 404.1529(c)(1), 416.929(c)(1).

“[T]his evaluation must take into account not only the

claimant’s statements about her pain, but also ‘all the available evidence,’ including the
claimant’s medical history, medical signs, and laboratory findings, any objective medical
evidence of pain (such as evidence of reduced joint motion, muscle spasms, deteriorating tissues,
redness, etc.) . . . .” Craig, 76 F.3d at 595 (citation omitted); see 20 C.F.R. §§ 404.1529(c)(1)(2), 416.929(c)(1)-(2). The ALJ must also take into account “any other evidence relevant to the
severity of the impairment, such as evidence of the claimant’s daily activities, specific
descriptions of the pain, and any medical treatment taken to alleviate it.” Craig, 76 F.3d at 595;
see 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Social Security Ruling7 (“SSR”) 96-7p,
1996 WL 374186, at *3 (July 2, 1996).
Yet while “a claimant’s allegations about [his] pain may not be discredited solely
because they are not substantiated by objective evidence of the pain itself or its
severity, they need not be accepted to the extent they are inconsistent with the
available evidence, including objective evidence of the underlying impairment,
and the extent to which that impairment can reasonably be expected to cause the
pain the claimant alleges [he] suffers.”
Stitely v. Colvin, 621 F. App’x 148, 150 (4th Cir. 2015) (per curiam) (alteration in original)
(quoting Craig, 76 F.3d at 595).
7

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
n.3.
20

[T]here must be . . . a medical impairment . . . which, when considered with all
evidence . . . (including statements of the individual or his physician as to the
intensity and persistence of such pain or other symptoms which may reasonably
be accepted as consistent with the medical signs and findings), would lead to a
conclusion that the individual is under a disability.
42 U.S.C. § 423(d)(5)(A).
Thus, in light of the foregoing, an ALJ may rely upon evidence of a claimant’s daily
activities to evaluate subjective complaints of pain, as “[t]he only fair manner to weigh a
subjective complaint of pain is to examine how the pain affects the routine of life.” Mickles v.
Shalala, 29 F.3d 918, 921 (4th Cir. 1994); see 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i).
Here, the ALJ appropriately considered Plaintiff’s activities in discounting his credibility (R. at
25-26), including his part-time employment, as “[w]ork activity that is not both substantial and
gainful is still ‘evidence relevant to the severity of [the claimant’s] impairment[s],’ and as such
must be considered in assessing the severity of a claimant’s symptoms.” Sherman v. Colvin, No.
4:13-CV-00020, 2014 WL 3344899, at *9 (W.D. Va. July 8, 2014) (alteration in original) (citing
20 C.F.R. §§ 404.1529(c), 416.929(c)); see Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir.
2004) (part-time work may demonstrate ability to perform substantial gainful employment
(citing Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992)); Patton v. Astrue, No.
1:10CV211, 2011 WL 6300361, at *5 (W.D.N.C. Dec. 16, 2011) (claimant’s work and activities
while in prison, among other things, provided substantial evidence to support ALJ’s adverse
credibility finding).

Substantial evidence thus supports the ALJ’s finding that Plaintiff’s

activities belied his allegations regarding the functional limitations of his impairments, and
Plaintiff’s other arguments regarding the ALJ’s credibility determination are without merit. See
Johnson, 434 F.3d at 658; Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (per curiam)
(upholding a finding of no disability where claimant managed his household, grocery shopped,

21

cooked, washed dishes, and walked to town every day); SSR 96-7p, 1996 WL 374186, at *5
(ALJ must consider factors such as consistency of claimant’s statements with other information
in record, including consistency of claimant’s own statements). In short, substantial evidence
supports the determination of Plaintiff’s credibility by the ALJ, who in this case applied the
correct legal standards.
D.

ALJ’s Consideration of Evidence
Plaintiff further asserts that the ALJ erred in considering evidence outside the claimed

period of disability and in not reciting in his decision some of the evidence within the closed
period. Pl.’s Mem. Supp. Mot. Summ. J. 5-15, 31-32, ECF No. 17-1. The ALJ may consider
evidence outside the disability period that is probative, however. Townsend v. Sec’y U.S. Dep’t
of Health & Human Servs., 553 F. App’x 166, 168 n.2 (3d Cir. 2014) (per curiam); cf. Bird v.
Comm’r of Soc. Sec. Admin., 699 F.3d 337, 345 (4th Cir. 2012) (finding that consideration of
medical evidence outside relevant time period is proper when such evidence may be “reflective
of a possible earlier and progressive degeneration”); Cox v. Heckler, 770 F.2d 411, 413 (4th Cir.
1985) (evidence should not be disregarded merely because evaluation occurred outside relevant
time period so long as it may be relevant to prove disability during relevant time period). In any
event, even if the ALJ had erred in considering evidence dated after August 8, 2013, the burden
is on the party attacking an agency’s determination to show that prejudice resulted from the
error. Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S. Ct. 1696, 1705-06 (2009). “Where
harmfulness of the error is not apparent from the circumstances, the party seeking reversal must
explain how the error caused harm.” McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011).
“[R]eversal is not required when the alleged error ‘clearly had no bearing on the procedure used
or the substance of [the] decision reached.’” Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th

22

Cir. 2004) (quoting Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248, 84
S. Ct. 1236, 1245 (1964)). Although Plaintiff contends that the ALJ erred in considering such
evidence, he fails to demonstrate any prejudice affecting the ALJ’s consideration of Plaintiff’s
impairments, as the ALJ accounted for Plaintiff’s sleep apnea and pseudobulbar affect in the
RFC assessment. R. at 28. Moreover, even if the ALJ had erred in failing to recite certain
evidence within the closed period, “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)), and
Plaintiff “has failed to point to any specific piece of evidence not considered by the
Commissioner that might have changed the outcome of his disability claim.” Id. Plaintiff’s
argument in this regard thus is without merit.
E.

ALJ’s Hypothetical Questions to VE
Plaintiff also maintains that the ALJ failed “to note that the VE testified that a person

with the limitations noted by either Dr. Joshi or Dr. Diener would be precluded from work” and
that the ALJ “failed to incorporate the Plaintiff’s nonexertional limitations in his hypothetical
questions to the VE.” Pl.’s Mem. Supp. Mot. Summ J. 37, 38, ECF No. 17-1. As Defendant
points out, however, the ALJ’s RFC assessment and hypothetical questions presented to the VE
need only include limitations supported by the record (Def.’s Mem. Supp. Mot. Summ. J. 21,
ECF No. 18-1). See Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (concluding that ALJ’s
hypothetical question need only include those impairments supported by record); see also Fisher
v. Barnhart, 181 F. App’x 359, 364 (4th Cir. 2006) (per curiam) (hypothetical question is
unimpeachable if it adequately reflects RFC for which ALJ had sufficient evidence (citing
Johnson, 434 F.3d at 659)); Craigie v. Bowen, 835 F.2d 56, 57-58 (3d Cir. 1987) (holding that

23

ALJ is not required to credit VE testimony elicited in response to hypothetical question that
includes limitations that ALJ finds not to be credible).

For the reasons discussed above,

substantial evidence supports the ALJ’s consideration of Plaintiff’s credibility and weight given
to the various opinions when determining Plaintiff’s RFC.

Plaintiff’s assertion regarding

incomplete hypothetical questions by the ALJ to the VE thus is without merit. See Tanner v.
Comm’r of Soc. Sec., 602 F. App’x 95, 101 (4th Cir. 2015) (per curiam) (“For the first time on
appeal, [the claimant] argues that the agency did not meet its burden of proof regarding her
ability to perform alternative work, because the vocational expert concluded that, given her
functional limitations, there were no jobs that she could perform. In so contending, however,
[the claimant] overlooks the circumstance that the vocational expert only reached that conclusion
upon questioning from her counsel, and that her counsel posed hypothetical questions that
included severe functional limitations not supported by the medical evidence. Indeed, when the
ALJ posed hypotheticals to the VE that set out all of [the claimant’s] credible limitations, the VE
responded that [the claimant] could perform the jobs of packer, assembler, marker pricer, sorter,
and inspector.”).
In sum, for the reasons stated above, it is RECOMMENDED that Defendant’s Motion
for Summary Judgment (ECF No. 18) be GRANTED, Plaintiff’s Motion for Summary Judgment
and alternative motion for remand under the fourth sentence of 42 U.S.C. § 405(g) (ECF No. 17)
be DENIED, and the Commissioner’s final decision be AFFIRMED.
VII
Recommendation
For the reasons set forth above, it is respectfully recommended as follows:
(1) The Court GRANT Defendant’s Motion for Summary Judgment (ECF No. 18);

24

(2) The Court DENY Plaintiff’s Motion for Summary Judgment (ECF No. 17);
(3) The Court DENY Plaintiff’s alternative motion for remand under the fourth sentence
of 42 U.S.C. § 405(g) (ECF No. 17);
(4) The Court AFFIRM Defendant’s final decision; and
(5) The Court CLOSE this case.
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be served and filed within
fourteen days under Fed. R. Civ. P. 72(b) and L.R. 301(5)(b). Failure to file written objections to
the proposed findings, conclusions, and recommendations of the Magistrate Judge contained in
the foregoing report within fourteen days after being served with a copy of the 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.

Date: June 8, 2016

/s/
Thomas M. DiGirolamo
United States Magistrate Judge

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