Thompson v. Colvin

Filing 35

ORDER denying 31 Motion for Judgment on the Pleadings and granting 33 Motion for Judgment on the Pleadings. Signed by Magistrate Judge Robert B. Jones, Jr. on 3/31/2016. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:14-CV-242-RJ
LARRY DOUGLAS THOMPSON,
Plaintiff/Claimant,

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the court on the parties' cross-motions for judgment on the pleadings
[DE-31, DE-33] pursuantto Fed. R. Civ. P. 12(c). Claimant Larry Douglas Thompson ("Claimant")
filed this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review ofthe denial
of his application for a period of disability and Supplemental Security Income ("SSI") payments.
The time for filing responsive briefs has expired and the pending motions are ripe for adjudication.
Having carefully reviewed the administrative record and the motions and memoranda submitted by
the parties, Claimant's Motion for Judgment on the Pleadings is denied, Defendant's Motion for
Judgment on the Pleadings is allowed, and the final decision of the Commissioner is upheld.

I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and SSI on October 14,
2010, alleging disability beginning July 1, 2009. (R. 263-68). His claim was denied initially and
upon reconsideration. (R. 73-101). A hearing before an Administrative Law Judge ("ALJ") was
originally scheduled for December 6, 2012 (R. 169-95), but neither Claimant nor Claimant's
representative was present at the appointed time and the ALJ dismissed Claimant's request for

hearing on December 7, 2012. (R. 102-06). Claimant filed a response (R. 208-12), and on March
7, 2013, the Appeals Council remanded the case for the ALJ to determine whether Claimant had
shown good cause for not appearing at the hearing, and if so, to give Claimant another opportunity
for a hearing. (R. 107-10). Finding good cause for the earlier failure to appear, another ALJ held
a hearing on October 10, 2013, at which Claimant was represented by counsel. (R. 29-56). At the
hearing, Claimant amended his alleged onset date to September 17, 2009. 1 (R. 35). On January 6,
2014, the ALJ issued a decision denying Claimant's request for benefits. (R. 10-28). On October
30,2014, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed
a complaint in this court seeking review of the now-final administrative decision.

II. STANDARD OF REVIEW
The scope ofjudicial review of a final agency decision regarding disability benefits under the
Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial
evidence supports the Commissioner's factual findings and whether the decision was reached
through the application ofthe correct legal standards. See Coffman v. Bowen, 829 F .2d 514, 517 (4th
Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial
evidence, shall be conclusive .... " 42 U.S.C. § 405(g). Substantial evidence is "evidence which
a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount
of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla ..
. and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial

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In his decision, the ALJ lists the alleged onset date as July 1, 2009, but then states that he considered whether Claimant
was disabled since September 16, 20 I 0. (R. 13). These dates are not challenged by the parties and do not appear to be
material to the consideration of whether substantial evidence supports the ALJ's decision.

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evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270
F.3d 171, 176 (4thCir. 2001)(quoting Craigv. Chafer, 76F.3d585, 589 (4thCir. 1996),superseded

by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial
evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence
and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling

Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth
in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently
working; and (2) must have a "severe" impairment that (3) meets or exceeds [in
severity] the "listings" of specified impairments, or is otherwise incapacitating to the
extent that the claimant does not possess the residual functional capacity to (4)
perform ... past work or (5) any other work.

Albrightv. Comm 'r ofthe SSA, 174 F.3d 473,475 n.2 (4th Cir. 1999). "If an applicant's claim fails
at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chafer, 65
F.3d 1200, 1203 (4th Cir. 1995)(citation omitted). The burden of proof and production during the
first four steps of the inquiry rests on the claimant. !d. At the fifth step, the burden shifts to the ALJ
to show that other work exists in the national economy which the claimant can perform. !d.
When assessing the severity of mental impairments, the ALJ must do so in accordance with
the "special technique" described in 20 C.F .R. § 416.920a(b)-(c). This regulatory scheme identifies
four broad functional areas in which the ALJ rates the degree of functional limitation resulting from
a claimant's mental impairment(s): activities of daily living; social functioning; concentration,

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persistence or pace; and episodes of decompensation. !d. § 416.920a(c)(3). The ALJ is required to
incorporate into his written decision pertinent findings and conclusions based on the "special
technique." !d.§ 416.920a(e)(3).

In this case, Claimant alleges that the ALJ failed to properly weigh the opinion evidence, the
limitation to unskilled work does not account for the moderate limitation the ALJ found Claimant
had in maintaining concentration, persistence, or pace, and the ALJ erred by applying the MedicalVocational Guidelines ('tthe Grids"). Pl.'s Mem. Supp. Pl.'s Mot. J. Pleadings ("Pl.'s Mem.") [DE32] at 4-20.

IV. FACTUAL HISTORY
A.

ALJ's Findings
Applying the above-described sequential evaluation process, the ALJ found Claimant "not

disabled" as defined in the Act. At step one, the ALJ found Claimant was no longer engaged in
substantial gainful employment. (R. 15). Next, the ALJ determined Claimant had the following
severe impairments: obesity, seizure disorder, lumbar spine degenerative disc disease, chronic kidney
stones and urinary tract infections, and depressive disorder. !d. The ALJ also found Claimant had
nonsevere impairments of migraine headaches, hypertension, and an incisional hernia. (R. 15-16).
However, at step three, the ALJ concluded these impairments were not severe enough, either
individually or in combination, to meet or medically equal one ofthe listed impairments in 20 C.F .R.
Part 404, Subpart P, Appendix 1. !d. Applying the technique prescribed by the regulations, the ALJ
found that Claimant's mental impairments have resulted in mild limitations in his activities of daily
living and social functioning, moderate limitations in concentration, persistence, and pace, and no
episodes of decompensation. (R. 20).

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Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the
ability to perform a reduced range of sedentary work, 2 limited to the performance of unskilled work.

In making this assessment, the ALJ found Claimant's statements about his limitations not fully
credible. (R. 17, 22-23).
At step four, the ALJ concluded Claimant did not have any past relevant work. (R. 27).
Nonetheless, at step five, upon considering Claimant's age, education, work experience and RFC,
the ALJ determined Claimant is capable of adjusting to the demands of other employment
opportunities that exist in significant numbers in the national economy. (R. 28).

B.

Claimant's Testimony at the Administrative Hearing
At the time of Claimant's administrative hearing, Claimant was 35 years old and living with

his 14-year-old son. (R. 34). Claimant is 5'9 11 and weighs 300 pounds, although he stated that he
should weigh 225 pounds. Id Claimant testified that his weight fluctuates and six months ago he
weighed 280 pounds. (R. 34-35). Claimant attained an 11th grade education and believed he only
made it that far in school due to the No Child Left Behind program. (R. 36-37). Claimant had been
in special education classes since he was five years old. (R. 3 7). Claimant stated that he can "read
the basics" but would not be able to read the headlines in a newspaper. Id Claimant and his son
currently live on his parents' property, and his parents pay the water and electricity bills. (R. 3 7-3 8).

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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. Although a sedentary job is defmed 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. 20 C.F.R. § 416.967(a); S.S.R. 96-9p, 1996 WL 374185, at
*3 (July 2, 1996). "Occasionally" generally totals no more than about 2 hours of an 8-hour workday. "Sitting" generally
totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of sedentary work
includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20
C.F .R. Part 404, Subpart P, Appendix 2, Table 1. Id.

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Claimant stated, however, that when he lives with a girlfriend, he has been shown how to pay his
bills and knows how to pay his water and electricity bills. (R. 38). Claimant does not own a
computer and cannot use one. Id Claimant can print to write a basic letter, but cannot write in
cursive, and can exchange money. Id
Claimant last had a full-time job in 2008, where he worked for a year and a half as a first
mate on a commercial fishing boat. (R. 38-40). Claimant testified that he had to be able to move
100 pounds at a time of heavy equipment and nets. (R. 39). Claimant stopped working due to
kidney stones and back problems, and has not worked since. (R. 40). Claimant has had two back
surgeries, and had his right kidney removed in 2009 (which contained a kidney stone the size of a
golfball). (R. 40-41). Claimant has also had several surgeries on his left kidney, including one to
remove a kidney stone the size of a silver dollar. (R. 41 ). Claimant believes he will have to have
surgery on both his back and his kidney in the future. (R. 41-42). Claimant is not on dialysis, but
takes medication to prevent kidney stones from growing. (R. 42). Claimant also has hypertension,
and testified that his medication keeps it "somewhat" under control. ld
Claimant has chronic pain, which he testified is constant and is worse when he walks a lot.
(R. 42-43). Bending or twisting hurts because of Claimant's kidney stones, and Claimant has
bulging herniated discs in his back that bother him if he sits for too long. (R. 43). Claimant is able
to get some pain relief by lying down with no noise and no one around. ld Claimant takes pain
medication, which gives him some pain relief, but he is afraid to increase the dosage because he does
not want to become addicted to the medication. Jd Claimant takes 11 different medications, and
testified that there are "almost 10 different side effects to each medication[,]" with the most severe
side effects being panic attacks, anxiety, and hypertension. (R. 44). Claimant has panic attacks three

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to four times in a typical month. !d. Claimant's pain leads to stress, which leads to panic attacks
and more hypertension. !d. During a panic attack, Claimant has trouble breathing and being around
others, and his blood pressure rises. (R. 45). Claimant has had four individual counseling sessions
with a psychiatrist, and his last session was in August of2013. (R. 45-46).
During the daytime, Claimant can sit for 20 minutes at a time in his recliner, before having
to get up and walk for five minutes and then lying down for a couple of hours. (R. 46). Claimant
estimated that he can walk for half of a block before having to stop. (R. 4 7). Claimant uses a cane
all of the time, which was prescribed by his doctor along with a walker and a seat for the bathtub.

!d. Claimant uses the walker for when his back and leg go out, which he testified happens six to ten
times every month. (R. 47-48). Claimant also has a handicapped sticker for his car. (R. 48).
Claimant can stand for 10 minutes before needing to sit, and cannot climb a flight of stairs. !d.
Clamant's doctor told him not to do any lifting, but Claimant stated that he can lift five to ten
pounds. !d. Claimant uses the shower seat every time he takes a shower, and can get dressed by
himself after his son brings him his clothes, but cannot tie his shoes. (R. 49). Claimant is able to
use the bathroom without assistance. !d.
Claimant has severe migraine headaches six times in a typical month, which start at the base
of his skull. (R. 50). Claimant stays in a dark room with a cold rag on his head until the headache
goes away, and sometimes has to go to the emergency room or to his primary care doctor for his
headaches. !d. Claimant sees a doctor monthly, and is currently taking oxycodone and diazepam
for his migraines, but they do not control his pain. !d. Claimant has trouble sleeping and takes
trazodone. (R. 51). On average, Claimant sleeps for three hours before waking up for 30 to 40
minutes, then goes back to sleep for an hour to an hour and a half. !d. Claimant tosses and turns

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during the night, and has nightmares as a result of one of his medications. !d. Due to the lack of
sleep, Claimant has trouble focusing during the day, and by the time he is able to concentrate, the
day is largely over. (R. 51-52). Claimant has to nap during the day because he experiences
drowsiness from his medications, along with drymouth and difficulty concentrating, talking, and
functioning. (R. 52). Claimant testified that he cannot pay attention to television or a movie any
more. (R. 52-53). Claimant's son is 14 years old, and Claimant's mother comes over in the
mornings to ensure that Claimant takes his medication and Claimant's son is up for school. (R. 53).
After Claimant takes his medication in the morning, he has to get back into bed to nap. !d. Claimant
does not enjoy being around others, even his son, and prefers to be alone in a quiet room. (R. 53-54).
Claimant does not go to the mall or attend ball games, because he cannot handle the pain of sitting
in the bleachers and the anxiety ofbeing surrounded by people. (R. 54). Claimant would like to be
able to watch a game, but cannot because of his pain. !d. Claimant believes his impairments have
been getting worse. !d.
Dr. Wells Brown, a Vocational Expert, was present at the hearing but did not testify.

V. DISCUSSION
A.

The ALJ's Consideration of the Medical Opinion Evidence
Claimant contends that the ALJ erred in evaluating the medical opinion evidence, specifically

the opinions of Dr. Shelton, Dr. Boyette, and the opinions of the non-examining agency reviewers.
Pl.'s Mem. [DE-32] at 5-12, 14-18. In response, the Government argues that substantial evidence
supports the ALJ's consideration of the medical opinion evidence. Def.'s Mem. [DE-34] at 12-21.
Regardless of the source, the ALJ must evaluate every medical opinion received. 20 C.F .R.
§ 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical

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source than to the opinion of a non-examining source. Id. § 416.927(c)(l). Additionally, more
weight is generally given to opinions of treating sources, who usually are most able to provide "a
detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources, such as
consultative examiners. !d. § 416.927(c)(2). Though the opinion of a treating physician is generally
entitled to "great weight," the ALJ is not required to give it "controlling weight." Craig, 76 F.3d at
590 (quotations & citations omitted). In fact, "if 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." Id.; see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (stating "[t]he ALJ
may choose to give less weight to the testimony of a treating physician ifthere is persuasive contrary
evidence"); Mastro, 270 F .3d at 178 (explaining "the ALJ holds the discretion to give less weight
to the testimony of a treating physician in the face of persuasive contrary evidence") (citation
omitted).
If the ALJ determines that a treating physician's opinion should not be considered
controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking
into account the following non-exclusive list: (1) whether the physician has examined the applicant,
(2) the treatment relationship between the physician and the applicant, (3) the supportability of the
physician's opinion, (4) the consistency ofthe opinion with the record, and (5) whether the physician
is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.P.R. §
404.1527). The ALJ is not required, however, to discuss all of these factors. Ware v. Astrue, No.
5:11-CV-446-D, 2012 WL 6645000, at *2 (E.D.N.C. Dec. 20, 2012) (unpublished) (citing Oldham

v. Astrue, 509 F. 3d 1254, 1258 (lOth Cir. 2007); Munson v. Astrue, No. 5:08-CV-110-D(3), 2008
WL 5190490, at *3 (E.D.N.C. Dec. 8, 2008) (unpublished)). While an ALJ is under no obligation

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to accept any medical opinion, see Wireman v. Barnhart, No. 2:05-CV -46, 2006 WL 2565245, at
*8 (W.D. Va. Sept. 5, 2006) (unpublished), he must nevertheless explain the weight afforded such
opinions. See S.S.R. 96-2p, 1996 WL 374188, at *5 (July2, 1996); S.S.R. 96-6p, 1996 WL374180,
at * 1 (July 2, 1996). An ALJ may not reject medical evidence for the wrong reason or no reason.
Wireman, 2006 WL 2565245, at *8.

i.

Dr. Shelton's Opinion

On December 11, 2010, Dr. Shelton performed a psychological consultative examination of
Claimant and issued a written opinion. (R. 437-3 9). Claimant argues that the ALJ erred in weighing
Dr. Shelton's opinion by failing to discuss all of the factors required by 20 C.P.R. § 416.927, by
failing to consider that Dr. Shelton is a "double specialist" as he is a psychologist and an expert in
Social Security disability evaluation, by failing to "accept and include or reject and explain" Dr.
Shelton's opinion, and by improperly rejecting parts of Dr. Shelton's opinion for lack of supporting
evidence. Pl.'s Mem. [DE-32] at 7-10 .
. The ALJ discussed Dr. Shelton's opinion, along with the other psychological opinion
evidence, as part of the step two analysis. As an initial matter, the ALJ's decision must be read as
a whole and it is not dispositive at which step certain evidence is discussed. See Harley v. Colvin,
No. 5:14-CV-853-D, 2015 WL 9699531, at *10 (E.D.N.C. Dec. 2, 2015) (unpublished) (concluding
the relevance of findings in the ALJ' s decision was not negated because they appeared at a different
step of the sequential evaluation where "the ALJ' s decision must be read as a whole") (citation
omitted), adopted by2016 WL 126372 (E.D.N.C. Jan. 11, 2016). The ALJ discussed Dr. Shelton's
opinion as follows:
On December 11, 2010, Robert Shelton, Psy.D., completed a psychological
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consultative examination. During his interview, he noted the claimant's reports of
chronic pain, sadness, isolation, poor sleep, and fatigue. The claimant admitted that
Cymbalta improved these symptoms. On exam, the claimant showed decreased
memory and concentration and attention abilities. He was able to recite five digits
forward and three digits backward in digit-span testing, which is essentially average
performance. He recalled three out of five objects after a five-minute delay, which
shows some but not great deficit in recall. He performed addition and subtraction
without error, but said he was unable to perform multiplication or serial seven
subtraction. Dr. Shelton diagnosed depressive disorder, not otherwise specified, and
assigned a Global Assessment of Functioning score of 52, indicating moderate
symptoms or moderate difficulty in social or occupation functioning. He opined the
claimant was able to understand, retain, and follow instructions, but said the claimant
may have difficulty sustaining the attention needed to perform simple, repetitive
tasks. Dr. Shelton opined the claimant may have decreased social functioning and
frustration tolerance due to his reported chronic pain, as well as limited ability to
tolerate the stress and pressures of day-to-day work activity (Exhibit B7F).
Dr. Shelton's assessment is given significant weight. His opinion that the claimant
would be able to understand, retain, and follow instructions is given great weight
because it is consistent with the claimant's performance during Dr. Shelton's testing,
his past work history, his lack of mental health treatment (or recommendations for
such treatment), and his demonstrated ability to read and write (See the last few pages
of Exhibit B5F for examples of the claimant's writing). His opinions that the
claimant may have some difficulty with social functioning, stress tolerance, and
sustaining attention to perform simple tasks are given little weight because they are
inconsistent with the lack of evidence of record showing significant interpersonal
difficulties, the claimant's past work history, and the claimant's ability to live with
and provide primary care for (and hold primary custody over) his minor son.
(R. 18).
Claimant argues that the ALJ erred by crediting only certain limitations in Dr. Shelton's
opinion, as the ALJ must either "accept and include or reject and explain." Pl.'s Mem. [DE-32] at
9. In support of this proposition, Claimant cites to Hines v. Barnhart, 453 F.3d 559, 566 (4th Cir.
2006) (citingDiazv. Chafer, 55 F.3d 300,307 (7th Cir. 1995) ("AnALJ may not select and discuss
only that evidence that favors his ultimate conclusion ....")). Claimant's reliance on Hines,
however, is misplaced. There, the Fourth Circuit discussed how an ALJ erred by selectively

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describing a claimant's activities of daily living and leaving out the claimant's explanation that he
tried to do certain activities but often was unable to complete them due to his pain. Hines, 453 F.3d
at 565-66 ("The ALJ selectively cited evidence concerning tasks which Mr. Hines was capable of
performing .... [t]his recitation of the evidence ignores Mr. Hines' further testimony that he has
pain 'mostly all the time' and thattaking Darvocet 'mak[es] it feel better and it's not really gone."').
The Hines opinion did not address consideration of medical opinion evidence, and further,
Claimant's argument that the ALJ must accept and include' or reject and explain is without merit.
"The ALJ is not required to conform the RFC to include every limitation in [a medical] opinion,
provided the decision sufficiently reflects the ALJ's reasoning and is supported by substantial
evidence." Bundyv. Colvin, No. 5:14-CV-55-FL, 2015 WL 450915, at *5 (E.D.N.C. Feb. 3, 2015)
(unpublished) (citing Armentrout v. Astrue, No. 3:10CV504, 2011 WL 4625931, at *7 (E.D. Va.
June 2, 2011) (unpublished) ("While the ALJ assigned 'significant' probative weight to the opinion,
the ALJ was not then required to adopt every limitation and incorporate them into the RFC
analysis."), adopted by 2011 WL 4625912 (E.D. Va. Oct. 3, 2011)). The question for this court is
thus whether the ALJ's discussion of Dr. Shelton's opinion "is adequate for the court to conduct a
meaningful review." Id
Claimant contends that the ALJ erred by failing to discuss all of the factors set forth in 20
C.F.R. § 416.927, particularly by failing to consider that Dr. Shelton is a "double specialist" as he
is both a psychologist and an expert in Social Security disability evaluation. Pl.'s Mem. [DE-32] at
8-1 0. The ALJ is not required, however, to discuss all of these factors, and Claimant's argument as
to this point is without merit. Ware, 2012 WL 6645000, at *2. Claimant also argues that the ALJ
erred by rejecting Dr. Shelton's opinion for being inconsistent with Claimant's work history and
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provision of primary care for his son, when the opinion shows that Dr. Shelton was aware of these
facts at the time the consultative examination took place. Pl.'s Mem. [DE-32] at 9-10. Similarly,
Claimant argues that the ALJ impermissibly rejected Dr. Shelton's opinion for being inconsi~tent
with the lack of evidence showing interpersonal difficulties when the very reason consultative
examinations are sought is to address the insufficiency of the evidence. ld Claimant's arguments
here impermissibly ask this court to re-weigh the evidence and substitute its own conclusions for
those ofthe Commissioner. Hays v. Sullivan, 907 F. 2d 1453, 1456 (4th Cir. 1990). The issue for
determination is whether substantial evidence supports the ALJ's consideration of Dr. Shelton's
opinion. Bundy, 2015 WL 450915, at *5. "An ALJ's determination as to the weight assigned to a
medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up
'specious inconsistencies,' Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has failed
to give a sufficient reason for the weight afforded a particular opinion, see 20 C.F .R. § 404.1527(d)
(1998)." Dunn v. Colvin, 607 F. App'x 264, 267 (4th Cir. 2015) (unpublished).
Here, substantial evidence supports the ALJ's stated reasons for crediting parts of Dr.
Shelton's consultative opinion and discounting others. The ALJ gave great weight to Dr. Shelton's
opinion that Claimant would be able to understand, retain, and follow instructions, as it was
consistent with Claimant's performance during Dr. Shelton's testing, Claimant's past work history,
Claimant's lack of mental health treatment or recommendations for treatment, and Claimant's ability
to read and write. (R. 18). Indeed, the record evidence demonstrates that during testing with Dr.
Shelton, Claimant was able to recite five digits forward and three digits backward in digit-span
testing, recall three of five objects after a five-minute delay, and perform addition and subtraction
but not multiplication, which Dr. Shelton depicted as adequate immediate retention and recall,
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delayed recall, and adequate recent memory, although he noted that Claimant's attention and
concentration were poor. (R. 438-39). Additionally, Claimant testified that he last worked as the
first mate on a commercial fishing boat and stopped working because he was injured and did not
mention having difficulties interacting with his co-workers. (R. 39-40). A review of Claimant's
medical records demonstrates that while his treatment notes mentioned that he had depression and
anxiety and listed prescription medications to address those conditions, Claimant was never
recommended for further mental health treatment, despite being referred by his primary physician
to outside providers for other services. See (R. 475-April 25, 2011 treatment note indicating
Claimant was being referred to a spinal specialty practice); (R. 464-November 7, 2011 treatment note
indicating Claimant was referred to Renee Johnson for a herniated nucleus pulposus); (R. 787November 16, 2012 treatment note indicating Claimant was referred to Dr. McGuire for hernia
surgery). Finally, the record contains examples of Claimant's handwriting, demonstrating his ability
to read and write, as discussed by the ALJ. (R. 304-11, 418-19).
The ALJ gave little weight to Dr. Shelton's opinions that Claimant may have difficulty with
social functioning, stress tolerance, and sustaining attention to perform simple tasks because those
limitations were inconsistent with the lack of evidence showing Claimant had difficulties interacting
with others, Claimant's work history, and the fact that Claimant lived with and was the primary
caretaker for his minor son. (R. 18). Again, Claimant testified that he stopped working after an
injury and not because of difficulties interacting with coworkers, and testified that he lived with and
had custody of his minor son. (R. 34, 39-40). Additionally, the record evidence does not show that
Claimant had difficulty interacting with others outside of the employment context. In an adult
function report, Claimant stated that he lives with his sister, cares for his son, talks on the phone

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every so often, goes to church every Sunday, and has no problems getting along with family, friends,
neighbors, and authority figures, but did state that he was laid off from an unidentified job because
he could not get along with others. (R. 304-11). Claimant also reported to Dr. Shelton that he has
one friend and a few acquaintances he keeps in contact with and he has been engaged to a woman
for six years. (R. 438). Despite Claimant's contention that "[it] is entirely illogical to reject Dr.
Shelton's opinion for lack of supporting evidence when his opinion was obtained specifically
because oj the insufficiency of evidence[,]" Pl.'s Mem. [DE-32] at 10, this argument is without merit
where the consistency and supportability of a physician's opinion are factors that are properly
considered pursuant to 20 C.F .R. § 416.927. See Johnson, 434 F.3d at 654. Accordingly, where the
record evidence supports the reasons given by the ALJ to credit or discount parts of Dr. Shelton's
opinion, substantial evidence supports the ALJ's consideration of Dr. Shelton's opinion.
ii.

Dr. Boyette's Opinion

Dr. Boyette, Claimant's treating physician, completed a medical source statement on
February 19,2013. (R. 803-10). Claimant argues that the ALJ erred by failing to consider that Dr.
Boyette's opinion was consistent with Dr. Shelton's opinion, mistakenly categorized Dr. Boyette's
treatment as conservative, improperly relied on Claimant's daily activities when Claimant could not
successfully perform those activities, and improperly concluded that the upper extremity limitations
imposed by Dr. Boyette were not supported by complaints or objective findings. Pl.'s Mem. [DE-32]
at 8, 10, 16-17.
The ALJ discussed Dr. Boyette's opinion as to Claimant's mental functioning as follows:
The mental functioning medical source statement from primary care physician C.O.
Boyette, M.D., completed on February 19, 2013, has been considered. Dr. Boyette
opined the claimant experienced many depressive symptoms such as anhedonia, sleep

15

disturbance, decreased energy, feelings of guilt or worthlessness, difficulty
concentrating or thinking, and delusions. Dr. Boyette concluded the claimant had
marked restriction in activities of daily living, maintaining social functioning, and
maintaining concentration, persistence, or pace. His form defined "marked" as "[a]n
impairment which (sic) seriously affects ability to function independently,
appropriately and effectively." In handwritten comments at the end of his form, Dr.
Boyette noted the claimant had various other (all physical) impairments, all of which
(including the depression) were "not fixable." He concluded the claimant was totally
and permanently disabled (Exhibit B23F).
I give Dr. Boyette's assessment little weight. First, Dr. Boyette is not a mental health
specialist, he is a family medicine specialist and provides primary medical care.
Thus, he does not have the specialized expertise such sources possess that renders
their opinions of mental functioning more germane. Second, and more importantly,
Dr. Boyette's opinions are not supported by other evidence of record, including his
own treatment notes. As mentioned above, the claimant rarely brought mental
complaints when receiving treatment from Dr. Boyette. When he did mention
symptoms, he usually mentioned only poor sleep and low energy .. There is no
indication the claimant reported or was noted to be experiencing delusions in Dr.
Boyette's treatment notes, a symptom he said the claimant experienced in this
statement. His opinions of marked limitations are not supported by Dr. Boyette's
limited, conservative, and consistent treatment, which was limited to prescription of
anti -depressant and sleep aid medication. Further these opinions are not consistent
with Dr. Boyette's failure to recommend mental health specialist intervention.
(R. 18-19). As to Dr. Boyette's opinion about Claimant's physical functioning, the ALJ stated:
Dr. Boyette also offered a medical source statement regarding the claimant's physical
functioning on February 19, 2013. In that statement, Dr. Boyette opined the claimant
had a poor prognosis and was limited by multiple symptoms including fatigue, pain,
and weakness. Dr. Boyette remarked the claimant's pain was constantly severe
enough to interfere with his concentration and attention such that he would not be
able to perform simple work tasks. He said the claimant could stand and walk only
five minutes at a time, could sit only five minutes before having to shift position,
could sit four hours total in an eight-hour workday, stand one hour total in an eighthour workday, and walk one hour total in an eight-hour workday. He opined the
claimant could not perform repetitive reaching, handling, or fingering with his arms
or perform any pushing or pulling with his arms. He said the claimant could perform
simple grasping 30 percent of the time and fine manipulation 40 percent of the time
with both hands. Dr. Boyette stated the claimant could not perform repetitive use of
foot controls, and was limited to lifting 10 pounds frequently and 20 pounds
occasionally, with carrying limited to 5 pounds frequently and 20 pounds
occasionally. Dr. Boyette stated the claimant could occasionally bend and never

16

perform squatting, crawling, or climbing. He said the claimant could have no
exposure to unprotected heights or moving machinery, marked changes in humidity
or temperature, and said the claimant could never operate motor vehicles. He found
moderate restriction to exposure to pulmonary irritants. Finally, Dr. Boyette
concluded the claimant was totally disabled, had "advanced" degenerative disc
disease, and that his symptoms were not amenable to treatment (Exhibit B24F).
I give little weight to Dr. Boyette's assessment. Though a treating source, Dr.
Boyette's assessment is not entitled to controlling or even significant weight because
it is inconsistent with a great amount of other evidence of record. His driving
restriction is not supported by the claimant's recent driving (See Exhibit B27F). His
standing and walking restrictions, as well as upper extremity restrictions are
inconsistent with the claimant's recent use of a bushax and other activities performed
in June 2013 and leading to acute injuries. The manipulative and other upper
extremity limitations are not supported by any complaints or objective findings
showing pain or dysfunctions in the arms.
(R. 26-27).
As to Dr. Boyette's opinion regarding Claimant's mental issues, while Claimant argues that
the ALJ erred by failing to discuss that Dr. Boyette's opinion was consistent with Dr. Shelton's
opinion, as addressed above, the ALJ is not required to explicitly discuss all of the factors laid out
in 20 C.F.R. § 416.927, and Claimant's argument as to this point is without merit. Ware, 2012 WL
6645000, at *2. Claimant also argues that the ALJ erred by mischaracterizing Dr. Boyette's
treatment of Claimant as conservative, when in actuality "the prescription of anti-depressant and
sleep aid medication is actually more significant because Dr. Boyette is not a specialist." Pl.'s Mem.
[DE-32] at 10. Claimant's argument asks the court to re-weigh the evidence already considered by
the ALJ, which the court may not do. Hays, 907 F. 2d at 1456. The issue for determination is
whether substantial evidence supports the ALJ's consideration of Dr. Boyette's opinion. Bundy,
2015 WL 450915, at *5. The ALJ noted that Claimant rarely complained of mental health issues to
Dr. Boyette, and when he did so, Claimant complained of poor sleep and low energy; there was no

17

indication in Dr. Boyette's treatment notes that Claimant suffered from delusions, which Dr. Boyette
marked in the assessment; despite opining that Claimant had marked symptoms, Dr. Boyette
continuously recommended "limited, conservative, and consistent treatment" of anti -depressant and
sleep aid medications; and Dr. Boyette never recommended further mental health treatment. (R. 19).
A review of Dr. Boyette's treatment notes illustrates that Claimant never complained of delusions,
and Claimant's complaints of mental health issues were limited to complaints of decreased energy
and poor sleep, despite consistent notations by Dr. Boyette that Claimant had anxiety and depression.

See (R. 465-0ctober 10, 2011 treatment note where Claimant complained of decreased energy and
poor sleep). And as discussed above, Claimant was never recommended for further mental health
treatment, despite being referred by Dr. Boyette to outside providers for other services. See (R. 4 75April25, 2011 treatment note indicating Claimant was being referred to a spinal specialty practice);

(R. 464-November 7, 2011 treatment note indicating Claimant was referred to Renee Johnson for
a herniated nucleus pulposus); (R. 787-November 16, 2012 treatment note indicating Claimant was
referred to Dr. McGuire for hernia surgery). Finally, while Claimant asks the court to determine that
Dr. Boyette's treatment of Claimant was not conservative, there is nothing unreasonable about the
ALJ's inference that Claimant's treatment was conservative where Dr. Boyette did not recommend
mental health treatment and consistently prescribed prescription anti -depressants and sleep aids, and
this is a proper basis for discounting Dr. Boyette's opinion. See Richardson v. Colvin, No.
4:14-CV-00125-FL, 2015 WL 5725546, at *6 (E.D.N.C. Aug. 11, 2015) (unpublished) (finding
conservative treatment lends little support to claims of debilitating symptoms), adopted by 2015 WL
5737613 (E.D.N.C. Sept. 30, 2015).
As to Dr. Boyette's opinion regarding Claimant's physical issues, Claimant argues that the

18

ALJ erred by mischaracterizing the quality of Claimant's daily activities and by determining that the
upper extremity restrictions were not supported by any complaints or objective findings. Pl.'s Mem.
[DE-32] at 16-18. The ALJ discounted the severe physical limitations imposed by Dr. Boyette
because they conflicted with documented instances of Claimant performing activities inconsistent
with those limitations, such as driving, using a bushax, and working on a truck. (R. 27). While
Claimant correctly points out that the ALJ may not selectively discuss a claimant's activities, see

Hines, 453 F.3d at 565-66, and the ALJ erred by relying on these activities where Claimant was
injured performing them, Claimant's argument is without merit where Claimant did not injure
himself as a result of his physical limitations. See (R. 833-June 2, 2013 emergency room treatment
note describing Claimant's care after Claimant cut his toe while using a bushax); (R. 824-June 5,
2013 emergency room treatment note describing Claimant's care after Claimant cut his forearm on
the blade of a truck engine); (R. 852-September 27, 2013 emergency room treatment note describing
Claimant's care after Claimant was injured in a car accident when the vehicle he was driving was
t-boned by another vehicle). The facts here are distinguishable from instances where claimants
attempt to perform activities but are unable to complete them to due to their limitations or have to
stop because of their pain. See Hines, 453 F.3d at 565-66 ("[t]his recitation of the evidence ignores
Mr. Hines' further testimony that he has pain 'mostly all the time' and that taking Darvocet 'mak[es]
it feel better and it's not really gone."').
Additionally, Claimant's argument as to the upper extremity limitations asks this court to
impermissibly re-weigh evidence already considered by the ALJ. Hays, 907 F. 2d at 1456. Claimant
argues that he has numerous impairments that could result in upper-body limitations, and the ALJ
erred by discounting Dr. Boyette's upper extremity limitations based on a lack of complaints or

19

objective findings showing pain in the upper extremities. Pl.'s Mem. [DE-32] at 17. Claimant may
not point to his other impairments, however, and argue that the ALJ's conclusion is unfounded.

Frazier v. Astrue, No. 4:06-CV-254-FL, 2008 WL 138050, at *14 (E.D.N.C. Jan. 10, 2008)
(unpublished). A review of Dr. Boyette's treatment notes shows that Claimant did not complain of
any upper extremity pain or problems, as noted by the ALJ. Accordingly, where a treating
physician's opinion is inconsistent with his own treatment notes and other evidence of record, as is
the case here, the ALJ may give the opinion limited weight. Dunn, 607 F. App'x at 269 (citing

Meyer v. Colvin, 754 F.3d 251,256 (4th Cir. 2014)). Although there is some evidence in the record
which would lend support to Dr. Boyette's opinion, such as Claimant's degenerative disc disease,
there is more than a "scintilla of evidence" supporting the ALJ' s decision to afford little weight to
this opinion. Id at 271 (concluding the ALJ did not err in affording limited weight to a treating
source opinion where "there is more than a 'scintilla of evidence' in the record supporting the ALJ' s
conclusion that [the physician's] opinion is incongruent with both his own treatment notes and some
of the other medical evidence in the record."). Thus, substantial evidence supports the ALJ's
consideration of Dr. Boyette's opinion.
iii.

State Agency RFC Assessments

The record also includes the RFC assessments compiled by the State Agency physicians as
part of the consideration of Claimant's case at the initial and reconsideration levels. (R. 74-86, 88101 ). Claimant argues that the ALJ erred in weighing these opinions by assigning weight to certain
limitations in a pick and choose fashion and ignoring the responsibility to accept and include or
reject and explain the opinions, by ignoring the fact that similar psychological limitations were
included in every medical opinion of record, and by erroneously relying on the fact that restrictions

20

imposed by the physicians were not supported by medical findings showing increased pain with
certain movements. Pl.'s Mem. [DE-32] at 10-11, 17-18.
The ALJ discussed the mental RFC assessments as follows:
Finally, in accord[ance] with the guidelines in SSR 96-6p, I have carefully considered
the residual functional capacity assessments completed by the State Agency and the
findings of fact made by the State Agency and other program physicians regarding
the nature and severity of the claimant's impairments. These assessments have been
considered as expert medical opinions of non-examining sources. The State Agency
psychological consultants both opined the claimant had mild limitation in activities
of daily living, moderate limitation in ability to maintain social functioning and
ability to maintain concentration, persistence, or pace, and no episodes of
decompensation of extended duration. Both concluded the claimant could perform
simple, routine, repetitive tasks (Exhibits B3A and B5A).
I give only some weight to both assessments. I note firstly that while both consultant
psychologists found moderate limitation in ability to maintain social functioning, as
well as moderate limitations regarding contact with the public, accepting instructions
and criticism from supervisors, and getting along with coworkers, neither consultant
included any social limitations in their narrative statements describing the claimant's
work abilities (both consultants remarked "[the claimant] is capable of interacting
with the public and accepting criticism from supervisors. [He] could respond
appropriate (sic) to criticism and interact appropriately with fellow coworkers.").
Since neither consultant added any social limitations in their narrative, I give little
weight to their opinions regarding a marked limitation in maintaining social
functioning. However, their opinions regarding simple work tasks and some
limitation in maintaining attention and concentration are given great weight, as these
opinions are consistent with the claimant's performance on Dr. Shelton's testing, Dr.
Shelton's opinions, and the claimant's past work history.
(R. 19-20). As to the physical RFC assessments, the ALJ stated:
The State Agency physician opined the claimant was able to perform sedentary work
with occasional climbing of ramps and stairs, no Climbing of ladders, ropes, or
scaffolds, occasional performance of all other postural activities, and no concentrated
exposure to hazards (Exhibit B5A).
This assessment is given partial weight. The sedentary exertional limitation is
supported by the claimant's consistent reports of low back and radiating left lower
extremity pain and the exacerbation of this pain caused by prolonged standing,
walking, and moving of weight. However, the postural limitations are not supported

21

by objective medical findings showing increased pain with such movements. I note
that sedentary work inherently requires no significant stooping, which prevents
excessive bending at the waist that could exacerbate the claimant's low back pain
(See SSR 83-10).
(R. 27).
As an initial matter, Claimant's arguments that the ALJ erred by addressing the limitations
contained in the state agency opinions in a pick and choose fashion because the ALJ must accept and
include or reject and explain the opinion and by failing to explicitly address all of the factors
discussed in 20 C.F .R. § 416.927, particularly the consistency with other opinions, are without merit.

Bundy, 2015 WL 450915, at *5; Ware, 2012 WL 6645000, at *2. The question for this court is
whether the ALJ' s discussion of the state agency opinions "is adequate for the court to conduct a
meaningful review." Bundy, 2015 WL 450915, at *5. As to the state agency opinions about
Claimant's mental impairments, the ALJ discounted their findings that Claimant had a marked
limitation in maintaining social functioning because the narrative section of those opinions did not
support that limitation. (R. 19-20). Indeed, while both Dr. V anderPlate and Dr. Mayhew indicated
that Claimant was moderately limited in his ability to "interact appropriately with the general
public," "accept instructions and respond appropriately to criticism from supervisors," and" get
along with coworkers or peers without distracting them or exhibiting behavioral extremes," when
asked to describe those social interaction limitations in narrative form, they both stated that
"[Claimant] is capable of interacting with the public and accepting criticism from supervisors.
[Claimant] could respond appropriately to criticism and interact appropriately with fellow workers."
(R. 83, 97-98). The ALJ may properly discount the "check the box" portion of the state agency
opinion when those limitations are not consistent with the narrative portion. Blum v. Comm 'r, Soc.

22

Sec. Admin., No. SAG-12-1833, 2013 WL 2902682, at *2 (D.Md. June 11, 2013) (unpublished)
("[T]he relevant portion of the physicans' opinion is not Section I, which sets forth a series of'check
the box' rankings, but Section III, which provides a detailed narrative functional capacity
assessment.") (citing Program Operations Manual System ("POMS") § DI 34510.060B,
https://secure.ssa.gov/apps 10/poms.nsf/lnx/042451 0060).
The ALJ gave great weight to the conclusions that Claimant could perform simple work tasks
and that he had some limitation in maintaining attention and concentration, finding that those
limitations were consistent with Claimant's performance on Dr. Shelton's testing, Dr. Shelton's
opinions, and Claimant's past work history. (R. 20). The consistency and supportability of a
physician's opinion are factors that are properly considered pursuant to 20 C.P.R.§ 416.927. See

Johnson, 434 F.3d at 654. As discussed above, Dr. Shelton opined that Claimant would be able to
understand, retain, and follow instructions, and during testing, Claimant demonstrated adequate
immediate retention and recall, delayed recall, and recent memory. (R. 438-39). Claimant also
testified that he stopped working due to injuries, not mentioning any problems interacting with
coworkers. (R. 39-40).
As to the state agency opinions about Claimant's physical impairments, the ALJ noted that
the sedentary exertionallimitation was consistent with Claimant's repeated complaints oflow back
and radiating left lower extremity pain, and the exacerbation of this pain caused by standing,
walking, and moving weight. (R. 27). The record evidence supports the ALJ's reasoning, as
Claimant routinely complained to Dr. Boyette about low back pain and radiating pain in his left leg
and Dr. Boyette indicated that Claimant had trouble with movement in his notes. (R. 473-74-April
25, 2011 treatment note); (R. 470-71-July 12, 2011 treatment note); (R. 462-November 7, 2011

23

treatment note); (R. 656-57-January 12, 2012 treatment note); (R. 779-January 17, 2013 treatment
note). The ALJ noted, however, that the postural limitations were not supported by objective
medical findings showing increased pain with such movements but in any event, "sedentary work
inherently requires no significant stooping, which prevents excessive bending at the waist that could
exacerbate the claimant's low back pain (See SSR 83-10)." (R. 27). During an examination with
Dr. McAvoy on October 14, 2011 at the Rocky Mount Orthopaedics & Sports Medicine Center, Dr.
MeAvoy noted that Claimant had chronic low back pain and used a cane to ambulate, but had 5 out
of 5 strength in his lower extremities, complaints of discomfort with a straight leg raise on the left
side, 5 out of 5 strength in all groups, and no gross malalignment that could be clinically appreciated.
(R. 460). Further, a review of the medical record evidence does not indicate that Claimant
complained of increased pain with postural movements such as stooping, kneeling, and crouching,
such that limitations on performing such movements would be appropriate. The consistency and
supportability of a physician's opinion with the medical evidence of record are factors that are
properly considered pursuant to 20 C.P.R. § 416.927. See Johnson, 434 F.3d at 654. Further, a
sedentary work limitation inherently limits a claimant to sitting for approximately six hours total in
an eight-hour workday, and "[b]y its very nature, work performed primarily in a seated position
entails no significant stooping." S.S.R. 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983). Accordingly,
where the ALJ relied on the consistency and supportability of the state agency opinions, substantial
evidence supports the ALJ's consideration of those opinions.
I

Finally, Claimant argues that the ALJ erred in considering the medical opinion evidence by
failing to recontact the medical sources or seek a consultative examination after rejecting consistent
limitations opined by every medical expert of record, and instead relying on his lay analysis of the
24

raw medical data. Pl.'s Mem. [DE-32] at 11-12. The ALJ may order a consultative examination to
attempt to resolve an inconsistency in the evidence or when the evidence is insufficient to make a
disability determination. 20 C.F .R. § 416.919a(b). The decision to order a consultative examination
is within the discretion ofthe ALJ. See Bishop v. Barnhart, 78 F. App'x 265, 268 (4th Cir. 2003)
(per curiam) (unpublished) ("[T]he ALJ has discretion in deciding whether to order a consultative
,examination.") (citing 20 C.F.R. § 404.1519a).

Here, there was no need for a consultative

examination because the record contained sufficient evidence regarding Claimant's impairments for
the ALJ to reach a decision as to whether Claimant was disabled. See White v. Colvin, No.
5: 13-CV-00757-RN, 2015 WL 1438747, at* 10 (E.D.N.C. Mar. 27, 2015) (unpublished) (concluding
a consultative examination was not required because there was substantial evidence in the record for
the ALJ to conclude the claimant was not disabled) (citations omitted). The fact that the ALJ
discounted limitations consistent among the various medical opinions does not require the ALJ to
obtain another opinion. See Clontz v. Astrue, No. 2:12-CV-00013-FDW, 2013 WL 3899507, at *7
(W.D.N.C. July 29, 2013) (unpublished) (rejecting argument that the ALJ was required to obtain a
consultative examination because the ALJ gave only some weight to claimant's treating physicians
and to the state agency's non-examining physicians' mental assessments). Accordingly, where there
was substantial evidence in the record for the ALJ to make a disability determination, the ALJ did
not err by failing to recontact a medical source or seek a consultative examination.

B.

The ALJ's Determination of Claimant's Mental RFC
Claimant contends that the limitation to unskilled work does not account for his moderate

limitation in concentration, persistence, or pace, relying on Mascio v. Colvin, 780 F .3d 632 (4th Cir.
2015). Pl.'s Mem. [DE-32] at 12-14. The Government argues in response that this case is

25

distinguishable from Mascio because the ALJ provided an adequate explanation for how the RFC
limitation accounted for Claimant's moderate limitation in concentration, persistence, or pace.
Def.'s Mem. [DE-34] at 21-26. In Mascio, the Fourth Circuit held that "an ALJ does not account
'for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical
question to simple, routine tasks or unskilled work.'" 780 F .3d at 63 8 (quoting Winschel v. Comm 'r
ofSoc. Sec., 631 F.3d 1176,,1180 (11th Cir. 2011) Goiningthe Third, Seventh, and Eighth Circuits)).

The court explained that "the ability to perform simple tasks differs from the ability to stay on task"
and that " [o]nly the latter limitation would account for a claimant's limitation in concentration,
persistence, or pace." ld The court also indicated that there could be instances where a limitation
in concentration, persistence, and pace does not affect the Claimant's ability to work and would be
appropriately excluded from the RFC. In such circumstances, however, an explanation from the ALJ
is required. ld
Here, the ALJ credited the opinion ofDr. Shelton that Claimant would be able to understand,
retain, and follow instructions and of the state agency doctors that Claimant would be able to
perform simple, routine, and repetitive tasks. (R. 18-19). And as discussed above, substantial
evidence supports the ALJ's decision to afford little weight to Dr. Shelton's conclusion that
Claimant may have difficulty sustaining attention to perform simple tasks. (R. 18). During testing
with Dr. Shelton, while Claimant "showed decreased memory and concentration and attention
abilities," he was still performing at an "essentially average" level. Id The ALJ further noted that
"[t]o account for the distracting nature of chronic pain and the [C]laimant's demonstrated deficits
in memory and concentration, the undersigned limited the [C]laimant to performance of unskilled
work. The [C]laimant's past work history, medical treatment and exam findings, and opinion
26

evidence as discussed above all indicate he can perform work within these parameters." (R. 27).
Thus, in this case, it is evident from the ALJ's decision that the limitation to unskilled work
adequately addressed Claimant's ability to stay on task, which is distinguishable from the facts in
Mascio. See Beltonv. Colvin, No. 1:14CV777, 2015 WL5023087, at *7 (M.D.N.C. Aug. 24, 2015)

(unpublished) (distinguishing Mascio where consultative examined opined that "although Plaintiff
struggled with maintaining concentration, persistence, and pace, she was not precluded from
understanding, retaining, and following instructions and not precluded from performing simple,
routine, repetitive tasks"), report and recommendation adopted by 2015 WL 5712732 (M.D.N.C.
Sept. 29, 2015). Accordingly, the ALJ properly accounted for Claimant's moderate difficulties in
maintaining concentration, persistence, and pace in the RFC.

C.

The ALJ's Application of the Grids
Claimant argues that if the ALJ had credited his non-exertionallimitations, the ALJ could

not have relied on Rule 201.24 of the Grids to determine that Claimant was not disabled, and remand
is thus appropriate to determine the extent to which the non-exertionallimitations would erode the
unskilled sedentary occupational base. Pl.'s Mem. [DE-32] at 19-20. In response, the Government
argues that substantial evidence supports the ALJ' s determination that Claimant did not have any
non-exertionallimitations beyond the limitation to unskilled work. Def.'s Mem. [DE-34] at 26-27.
Claimant's argument here is without merit, where it is derivative of his earlier arguments as to the
ALJ' s consideration of the medical opinion evidence and Claimant's mental limitations. As
discussed above, substantial evidence supports the ALJ' s consideration of those issues.
VI. CONCLUSION

For the reasons stated above, Claimant's Motion for Judgment on the Pleadings [DE-31] is
27

DENIED, Defendant's Motion for Judgment on the Pleadings [DE-33] is ALLOWED, and
Defendant's final decision is affirmed.
So ordered, this the 31st day ofMarch, 2016.

R~

United States Magistrate Judge

28