Chamberlain v. Colvin

Filing 25

ORDER denying 21 Motion for Judgment on the Pleadings and granting 23 Motion for Judgment on the Pleadings. The final decision of the Commissioner is UPHELD. Signed by US Magistrate Judge Robert B. Jones, Jr. on 2/13/2018. (Grady, B.)

IN T}iE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:16-CV-337-RJ

JOAN LORETTA CHAMBERLAIN,
Plaintiff/Claimant,

v.
NANCY A. BERRYHILL, 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-21, -23] pursuant to Fed. R. Civ. P. 12(c). Claimant Joan Loretta Chamberlain
("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial
review of the denial of her applications for a period of disability, Disability Insurance Benefits
("DIB"), 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 motfons 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, DIB, and SST on
January 2, 2013, alleging disability beginning July 7, 2012. (R. 240-50). The claims were
denied initially an.d upon reconsideration. (R. 111-68). A hearing before an Administrative Law

Judge ("ALJ'') was held on February 26, 2015, at which Claimant, represented by counsel, a
vocati~nal

expert ("VE"), and Claimant's roommate appeared and testified, and Claimant

amended the onset date to June 24, 2013. (R. 80-109). On April 21, 2015, the ALJ issued a
decision denying Claimant's request for benefits. (R. 60-79). Claimant then requested a review
of the ALJ's decision by the Appeals Council, (R. 58-59), and submitted additional evidence as
part of her request, (R. 317-21 ). After reviewing and incorporating some of the additional
evidence, the Appeals Council denied Claimant's request for review on August 4, 2016. (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 of judicial 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 of the 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 evidence, [the court should not] undertake to re-weigh

conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the

2

[Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 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. §§ 404.1520 and 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.

Albright v. Comm 'r of the 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. Id. 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. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance
with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 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

3

living; social functioning; concentration, persistence or pace; and episodes of decompensation.

Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written
Id. §§

decision pertinent findings and conclusions based on the "special technique."
404.1520a(e)(3), 4 l 6.920a(e)(3).

In this case, Claimant alleges the following errors by the ALJ: (1) improper assessment of
Claimant's residual functional capacity ("RFC"); and (2) improper analysis of whether
Claimant's impairments meet or equal Listing 12.04. Pl.'s Mem. [DE-22] at 2.
IV. 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 had not engaged in
substantial gainful employment since the alleged onset date. (R. 65). Next, the ALJ determined
Claimant had the following severe impairments: depressive disorder, social phobia, and alcohol
use· disorder. Id. The ALJ also found Claimant had a non-severe impairment of plantar spurs.
(R. 66). At step three, the ALJ concluded Claimant's impairments were not severe enough, either

individually or in combination, to meet or medically equal one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. 66-68). Applying the technique prescribed by the

regulations, the ALJ found that Claimant's mental impairments had resulted in mild restriction in
her activities of daily living, and moderate difficulties in social functioning and with regard to
concentration, persistence, or pace, with no episodes of decompensation.

(R. 67).

Prior to

proceeding to step four, the ALJ assessed Claimant's RFC, finding that Claimant had the ability
to perform a full range of work at all exertional levels but with the following restrictions:
[T]he claimant is capable of simple, repetitive tasks in a work environment where
changes in work setting/procedure were infrequent and gradually introduced and
4

where there was only occasional contact with coworkers/supervisors. The work
tasks must not require direct customer service, work in a team setting, or fast-.
paced production rate work.
(R. 68-73).

In making this assessment, the ALJ found Claimant's statements about her

limitations were not entirely credible. (R. 70). At step four, the ALJ concluded Claimant did
have the RFC to perform the requirements of her past relevant work as a kitchen helper. (R. 73).
V. DISCUSSION
A.

The RFC Determination

Claimant contends that the ALJ erred in three ways with respect to the RFC
determination: (1) he failed to properly weigh opinion evidence; (2) he failed to account for
Claimant's mental impairments, specifically arguing that the RFC is insufficient to account for
Claimant's moderate difficulties in concentration, persistence, or pace; and (3) he failed to
properly consider state agencies' disability determinations. Pl.'s Mem. [DE-22] at 8-14.
An individual's RFC is the capacity an individual possesses despite the limitations caused
by physical or mental impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l); see also S.S.R.
96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he residual functional capacity 'assessment
must first identify the individual's functional limitations or restrictions and assess his or her
work-related abilities on a function-by-function basis, including the functions' listed in the
regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The
RFC is based on all relevant medical and other evidence in the record and may include a
claimant's own description of limitations arising from alleged symptoms.

20 C.F.R. §§

404.1545(a)(3), 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant
has numerous impairments, including non-severe impairments, the ALJ must consider their
5

cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v.

Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments
are of sufficient severity to prohibit basic work related activities, an ALJ must consider the
combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently
considered the combined effects of a claimant's impairments when each is separately discussed
by the ALJ and the ALJ also discusses a claimant's complaints and activities.

Baldwin v.

Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The RFC assessment
"must include a discussion of why reported symptom-related functional limitations and
restrictions can or cannot reasonably be accepted as consistent with the medical and other
evidence."

S.S.R. 96-8p, 1996 WL 374184, at *7.

The RFC "assessment must include a

narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations)." Id.; see also Clifford V. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that
the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").

1.

Opinion Evidence

When assessing a claimant's RFC, the ALJ must consider the opinion evidence.

20

C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Regardless of the source, the ALJ must evaluate every
medical opinion received. Id. §§ 404.1527(c), 416.927(c). In general, the ALJ should give more
weight to the opinion of an examining medical source than to the opinion of a non-examining
source. Id. §§ 404.1527(c)(l), 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

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exammers. Id. §§ 404.1527(c)(2), 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 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 if
there is persuasive contrary evidence.").
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 of the 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.F.R. § 404.1527). While an ALJ is under no obligation 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), the weight afforded such opinions must nevertheless be explained. S.S.R. 96-2p, 1996
WL 374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1(July2, 1996). AnALJ
may not reject medical evidence for the wrong reason or no reason.

Wireman, 2006 WL

2565245, at *8. "In most cases, the ALJ's failure to consider a physician's opinion (particularly
a treating physician) or to discuss the weight given to that opinion will require remand." LoveMoore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013)

(citations omitted).

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i.

Ms. Price's Letter

Claimant contends that the ALJ failed to properly consider the letter of Ms. Jennifer
Price, MSW, LCSWA. Ms. Price served as Claimant's outpatient therapist at A Helping Hand of
Wilmington. (R. 550). Ms. Price stated that she had conducted three sessions with Claimant
(12/8/2014, 1/12/2015, and 2/5/2015), and had diagnosed Claimant with the following: major
depressive disorder, recurrent, moderate; social phobia; and alcohol use disorder, mild in early
remission.

Id.

She reported Claimant's daily symptoms were depressed mood, insomnia,

appetite disturbance, fatigue, feelings of worthlessness, low motivation, suicidal thoughts,
anxiety being around people, being afraid people will judge her, blushing/sweating when around
people, and avoiding places/people. Id. Ms. Price stated that Claimant had "difficulty following
through with treatment suggestions at home or in the community" and "continue[d] to struggle
with challenging and changing the negative cognitive thoughts that trigger her depression and
anxiety." Id.
The ALJ evaluated Ms. Price's letter as follows:
The undersigned gives little weight to the opinion of the claimant's most recent
social worker, Ms. Jennifer Price, found iri Exhibit 15F. The statement did not
include an opinion regarding functional limitations, but suggests difficulty· getting
along with other people. Additionally, the undersigned finds that Ms. Price's
statement that the claimant had difficulty following through with treatment
suggestions at home or in the community[] is certainly suggestive that difficulty
following through with treatment suggestions may involve continued use of
alcohol. The undersigned finds that the pointed lack of an opinion addressing
functional limitations is significant considering the social worker went to the
trouble of writing a letter to the Agency. In any event, the treatment notes are not
strong enough to indicate that the claimant cannot perform simple tasks of a low
stress nature with minimal social demands.
(R. 73).

While Ms. Price described herself as Claimant's outpatient therapist, the ALJ described
8

her as a social worker. Either way, based on Ms. Price's credentials, she is not an acceptable
medical source pursuant to the regulations. See 20 C.F.R. §§ 404.1513(a), 416.913(a) (defining
"acceptable medical sources" as licensed physicians, licensed or certified psychologists, licensed
optometrists, licensed podiatrists, and qualified speech-language pathologists).

Nonetheless,

"evidence from other sources," such as licensed clinical social workers and therapists, may be
used "to show the severity of [a claimant's] impairment(s) and how it affects [his] ability" to
engage in-work-related activities. Id. §§ 404.1513(d), 416.913(d); see also S.S.R. 06-03p, 2006
WL 2329939, at *2 (explaining the opinions from "other [medical] sources ... may provide
insight into the severity of [a claimant's] impairment and how it affects [a claimant's] ability to
function").

Since "other sources" such as social workers and therapists "have increasingly

assumed a greater percentage of the treatment and evaluation functions previously handled
primarily by physicians," their "[o]pinions ... are important and should be evaluated on key
issues such as impairment severity and functional effects, along with the other relevant evidence
in the file." S.S.R. 06-03p, 2006 WL 2329939, at *3. Indeed, "depending on the particular facts
in a case, and after applying the factors for weighing opinion evidence, an opinion from a
medical source who is not an 'acceptable medical source' may outweigh the opinion of an
'acceptable medical source,' including the medical opinion of a treating source." Id.
It is unclear to the court how Ms. Price's opinion, even if accorded some weight, would

assist Claimant. Ms. Price's diagnoses were all found to be severe impairments by the ALJ.
Other than her observations of Claimant's behavior in sessions, Ms. Price fails to assert any
limitations or other opinions that conflict with the RFC formulated by the ALJ. Further, the ALJ
discussed Ms. Price's letter and explained his reasons for discounting her opinion-namely, that

9

her treatment notes do not support her opinion that Claimant cannot perform simple tasks of a
low stress nature with minimal social demands.

(R. 73). Accordingly, the court finds that

substantial evidence supports the ALJ's reasoning for discounting Ms. Price's opinion, and
Claimant's assignment of error with respect to this issue is without merit.

ii.

Dr. Silver's Opinion

Claimant contends the ALJ erred by failing to assign a weight for Dr. Silver's opinion.
Pl.'s Mem. [DE-22] at 9~ ··Dr. Silver performed a consultative examination of Claimant on behalf
of the state on April 10, 2013. (R. 416). Dr. Silver diagnosed Claimant with bipolar disorder
with psychotic features, borderline personality disorder, and diverticulitis.

(R. 418).

He

described her impairments as follows:
The claimant is a 49-year old white separated woman with symptoms of bipolar
disorder including periods of depression with many suicidal attempts and
inpatient admissions and also symptoms of mania. She is also very paranoid and
has psychotic symptoms in.that she has had auditory hallucinations, but currently
the lithium and trazodone seem to have helped in that regard. Nonetheless, she is
not working now and when she starts, she will again begin to think that people are
plotting against her. Accordingly, it is going to be very difficult for her to adjust
to the world of work unless there is a diminution in her symptomology[.]
(R. 418-19).
The ALJ discussed Dr. Silver's opinion, including Claimant's alcohol usage, auditory
hallucinations, prescriptions of Lithium and Trazodone, Claimant's daily activities, Dr. Silver's
conclusion that Claimant demonstrated average memory with intact abstract thinking and
judgment, his diagnoses, and that "it would be difficult for the claimant to adjust to the world of
work unless there was a diminution in her symptomology." (R. 71-72). However, the ALJ failed
to expressly assign weight to Dr. Silver's opinion. However, this error is harmless because it is
clear that the ALJ did in fact discuss the opinion, and it is apparent that the ALJ gave some
IO

weight to the opinion where he imposed limitations in the RFC to address Claimant's social
anxiety. See Scott v. Colvin, No. 5:14-CV-291-RJ, 2015 WL 5607830, at *10 (E.D.N.C. Sept.
23, 2015) (finding harmless error where ALJ discussed the opinion of consultative examiner and
it was apparent the ALJ gave some weight to opinion where he imposed limitations on the RFC
to address claimant's anxiety and depression). Further, Dr. Silver is not a treating physician, but
rather a consultative examiner who examined Claimant one time and therefore has no
longitudinal treatment relationship to Claimant.

Accordingly, the court finds any error

committed by the ALJ with respect to this issue is harmless. See id.
iii.

GAF Scores

Claimant contends the ALJ erred by failing to discuss Claimant's GAF scores. Pl. 's
Mem. [DE-22] at 9. The Commissioner argues that the ALJ did cite the GAF score of 20 in June
2012, the ALJ referenced the specific page number containing the GAF score of 40 in January
2014 in· his discussion, and that, even if the ALJ had failed to reference the GAF scores, that,
standing alone, is not a sufficient ground for remand. Def. 's Mem. [DE-24] at 5-6.
The ALJ is not required to recite his or her consideration of each piece of evidence in the
record. See Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762, n. 10 (4th Cir. 1999) ("If a
reviewing court can discern 'what the ALJ did and why he did it,' the duty of explanation is
satisfied") (quoting Lane Hollow Coal Co. v. Dir., Office of Workers' Comp. Programs, 137 F.3d
799, 803 (4th Cir. 1998)); Brewer v. Astrue, No. 7:07-CV-24-FL, 2008 WL 4682185, at *3
(E.D.N.C. Oct. 21, 2008) ("[T]he ALJ is not required to comment in the decision on every piece
of evidence in the record and the ALJ's failure to discuss a specific piece of evidence is not an
indication that the evidence was not considered.") (citing Green v. Shala/a, 51 F.3d 96, 101 (7th

11

Cir. 1995)). "A claimant's GAF score must be considered along with all the other relevant
evidence of record."

Atkinson v. Astrue, No. 5:10-CV-298-FL, 2011 WL 3664346, at *11

-

(E.D.N.C. July 20, 2011), adopted by 2011 WL 3664858 (E.D.N.C. Aug. 17, 2011). However,
"the failure to reference a Global Assessment Functioning score is not, standing alone, sufficient
ground to reverse a disability determination." Love v. Astrue, No. 3:11CV14-FDW-DSC, 2011
WL 4899984 (W.D.N.C. Oct. 14, 2011) (citations omitted). This is particularly true when the
ALJ considers the records and treatment notes upon which the GAF scores were based. See id.
Here, Claimant was assigned a GAF of 20 in June 2012 when she was hospitalized for a
suicide attempt. (R. 372). The ALJ cited this GAF score in h~s RFC discussion, noting also that
Claimant's GAF score on discharge was 75. (R. 70) (citing R. 376). In June 2013, Claimant was
assigned a GAF of 40 by Cortney Tindal, LCASA-A, LPCA, CRC, who was conducting a
clinical assessment of Claimant at A Helping Hand of Wilmington. (R. 464). In January 2014,
Claimant was assigned a GAF of 40 by Zoya Picklesimer LPC, LCAS, CSI, CRC, who was also
conducting a clinical assessment of Claimant at A Helping Hand of Wilmington.

(R. 483).

While the ALJ did not explicitly discuss this GAF score of 40, he did cite the page on which the
GAF score appears, stating, "Treating notes from Helping Hands dated January 2014
documented that the claimant continued to experience depressive symptoms (Exhibit lOF/35)."
(R. 70). Thus, despite the fact that the ALJ did not comment on the GAF score of 40, it is
apparent to the court that the ALJ considered the record as a whole because he cited the exact
page in which the GAF score is contained. See Wiggins v. Astrue, No. 5:11-CV-85-FL, 2012 WL
1016096, at *9 (E.D.N.C. Feb. 2, 2012) (finding ALJ properly evaluated a claimant's mental
impairments even though ALJ did not explicitly mention every GAF score in the record where it

12

was clear ALJ ev~luated treatment records during time period of GAF scores), adopted by 2012
WL 1016055 (E.D.N.C. Mar. 22, 2012); Rodgers v. Colvin, No. 5:13-CV-345-D, 2015 WL
636061, at *12 (E.D.N.C. Feb. 13, 2015). Accordingly, any error in this regard is harmless
where the court "can discern what the ALJ did and why he did it." Mays, 176 F.3d at 762, n.10
(internal quotations marks and citations omitted).
2.

Concentration, Persistence, or Pace

Claimant contends that the ALJ erred by failing to account for her ability to stay on task
in light of her moderate limitations in concentration, persistence, or pace. PL 's Mem. [DE-22] at
11. The Fourth Circuit held in Mascio 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 of Soc. Sec., 631 F.3d
1176, 1180 (11th Cir. 2011) Goining the 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." Id. The court implicitly acknowledged there could be instances where a
moderate limitation in concentration, persistence, or pace at step three does not require a
limitation in RFC; however, the failure to explain such a result is error requiring remand. Id.
("Perhaps the ALJ can explain why Mascio's moderate limitation in concentration, persistence,
or pace at step three does not translate into a limitation in Mascio's residual functional
capacity.... But because the ALJ here gave no explanation, a remand is in order.").
Here, the ALJ found Claimant to have moderate difficulties with regard to concentration,
persistence, or pace and, in the RFC, limited Claimant to performing "simple, repetitive tasks in

13

a work environment where changes in work setting/procedure were infrequent and gradually
introduced and where there was only occasional contact with coworkers/supervisors," as well as
no "direct customer service work

~n

a team setting, or fast-paced production rate work." (R. 67-

68). Cases addressing how the ALJ accounts for limitations in a claimant's ability to maintain
pace or to stay on task generally look to whether or not the ALJ has provided a production-work
limitation in the RFC. See, e.g., Sizemore v. Berryhill, No. 16-1301, 2017 WL 4675712 (4th Cir.
Oct. 17, 2017) (holding that limitations working in a low stress non-production job with no

/

public contact were sufficient to account for

moderat~

limitations in concentration, persistence,

or pace); Bowen v. Berryhill, No. 5:16-CV-65-F, 2017 WL 1194462 (E.D.N.<;. Mar. 31, 2017)
(holding that an RFC of simple, routine, repetitive tasks, no'production work and only occasional
interaction with other people was sufficient to account for moderate limitation in concentration,
persistence, or pace).

Here, the ALJ provided a production-work limitation in the RFC by

limiting Claimant in both task complexity and pace, which sufficiently addresses Claimant's
ability to stay on task in light of her moderate difficulties with regard to concentration,
persistence, or pace.

See Lee v. Colvin, No. 5:15-CV-142-D, 2016 WL 816784, at *1-2

(E.D.N.C. Mar. 15, 2016) (finding that an RFC including a limitation against "fast paced or
quota based work" comports with Mascio). Accordingly, the ALJ did not err in this regard.

3.

State Agencies' Decisions

While it is not entirely clear to the court, Claimant seems to contend that the ALJ erred by
not considering and weighing the affirmative determinations of disability of both the North
Carolina Department of Health and Human Services and the North Carolina Employment
Security Commission. Pl.'s Mem. [DE-22] at 12-14. Claimant appears to argue that, because

14

Medicaid and disability

wer~

mentioned at the hearing, the ALJ erred by not further developing

the record to ascertain more about the adjudications. Id. at 12.

Claimant states that, "the

Plaintiff provided Notice of the Decision of disability by the North Carolina Department of
Health and Human Services," and then cites to a page in the hearing transcript that does not
relate to a notice of disability. Id. (citing R. 107). The court notes Claimant's testimonylocated elsewhere in the hearing transcript-that she "just got Medicaid" due to bone spurs. (R.
91~92).

Claimant also testified that she was awarded unemployment, but it was revoked when

she was admitted into the hospital following a suicide attempt because the state determined she
was disabled at that point and therefore incapable of working. (R. 92-93). Other than this
testimony, there is nothing in the record with respect to state agency determinations of disability.
Therefore, Claimant's argument that the state agencies' determinations deserve to be considered
and weighed is without merit. See Wright v. Colvin, No. 4:14-CV-24-D, 2015 WL 4910094
(E.D.N.C. July 28, 2015) ("As there is no documentation in the record providing the basis for
any compensation Claimant received, there was nothing for the ALJ to consider ... [i]ndeed,
remanding this matter will not resolve this issue given there is no evidence of a disability
benefits decision in the case record.") (citing Wright v. Astrue, No. 5:09-CV-546-FL, 2010 WL
5056020, at *4 (E.D.N.C. Sept. 16, 2010), adopted by 2010 WL 5055-899 (E.D.N.C. Dec. 6,
2010)).
With respect to Claimant's argument that the ALJ erred by neglecting his duty to develop
the record with respect to these stage agency determinations based on the hearing testimony, the
court disagrees.

While "the ALJ must fully and fairly develop the record so that a just

determination of disability may be made, .. , the ALJ is not required to function as the claimant's
15

substitute counsel." Clark v. Shala/a, 28 F.3d 828, 830 (8th Cir. 1994). Moreover, the ALJ's
duty to develop the record "does not permit a claimant, through counsel, to rest on the recordindeed, to exhort the ALJ that the case is ready for decision-and later fault the ALJ for not
performing a more exhaustive investigation." Maes v. Astrue, 522 F.3d 1093, 1097 (10th Cir.
2008); see also 42 U.S.C. § 423(d)(5)(B); 20 C.F.R. § 404.1512(d); Gatling v. Astrue, No. 2:11CV-21-FL, 2012 WL 4359435, at *7 (E.D.N.C. June 28, 2012) (rejecting argument that the ALJ
erred in failing to develop the record where, at the hearing before the ALJ, claimant's counsel did
not indicate or suggest to the ALJ that any medical records from one of the physicians were
missing from the administrative record, nor did counsel ask for the ALJ's assistance in obtaining
any additional medical records); adopted by 2012 WL 4357013 (E.D.N.C. Sep. 21, 2012); White
v. Colvin, No. 5:13-CV-757-RN, 2015 WL 1438747, at *9 (E.D.N.C. Mar. 27, 2015). During the
hearing before the ALJ, Claimant's counsel did not indicate or suggest to the ALJ that the state
agencies' determinations were missing from the record, nor did counsel ask for the ALJ's
assistance in obtaining these determinations. (R. 91-93). Additionally, Claimant has failed to
demonstrate how these determinations might reasonably have changed the ALJ's determination.
See Smith v. Barnhart, 395 F. Supp. 2d 298, 305 (E.D.N.C. 2005) (the claimant proffered to the
court an actual report from the doctor in question); see also Stahl v. Astrue, No. 2:07-CV-19,
2008 WL 2565895, at *6 (N.p. W. Va. Nov. 1, 2007) (finding claimant failed to demonstrate how
an "updated" medical opinion may have reasonably changed the ALJ's determination).
Accordingly, the court finds that the ALJ did not err by failing to obtain the state agencies'
determinations on his own accord.

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B.

Listing 12.04C
Lastly, Claimant contends the ALJ erred by not sufficiently considering Listing 12.04C(2)

or (3). Listing 12.04C(2) or (3) is met when a Claimant exhibits a medically documented history
of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal
limitation of ability to do basic work activities, with symptoms or signs currently attenuated by
medication or psychological support, and one of the following: (2) a residual disease process that
has resulted in such marginal adjustment that even a minimal increase in mental demands or
change in environment would be predicted to cause the individual to decompensate; or (3)
current history of one or more years' inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. pt. 404,
subpt. P, app. 1, § 12.04. The burden of demonstrating that her impairments satisfy this listing is
upon Claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
With respect to Listing 12.04C, the ALJ stated that he considered whether the "paragraph
C" criteria are satisfied, and found that "the evidence fails to establish the presence of the
'paragraph C' criteria." (R. 67). In his discussion of the Listings, the ALJ noted Claimant's
reports in the medical records of "spend[ing] 4-5 hours performing a wide variety of household
chores, yard work, and gardening, as well as preparing complex meals such as beef wellington
that she had learned in culinary school (Exhibit 6E)." Id. He also noted that she accompanies
her roommate to the bank once or twice a month.

Id.

In the RFC discussion, the ALJ

particularly noted that, "all past mental health hospitalizations have involved alcohol and the
testimonies were not convincing that the claimant is now abstinent." (R. 70).
The Commissioner concedes that Claimant likely meets the initial requirement of a

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medically documented history of a chronic affective disorder of at least 2 years' duration. Def. 's
Mem. [DE-24] at 23. Claimant argues that subparagraph (2) is satisfied "by the opinion of Ms.
Susan Peacock['s] warning of 'inpatient hospitalization' without care" and "by the opinion of Dr.
Silver [that] 'she is not working now and when she starts, she will again begin to think that
people are plotting against her' and 'it is going to be very difficult for her to adjust to the world
of work unless there is a diminution of her symptomology. "' Pl. 's Mem. [DE-22] at 17. First,
Ms. Peacock's 2015 opinion was presented for the first time to the Appeals Council, and
therefore was not before the ALJ at the time the decision was rendered and does not relate to the
relevant time period. (R. 7-52). Second, Dr. Silver's opinion alone is insufficient to satisfy this
criteria.

As discussed above, the ALJ did not expressly assign a weight to Dr. Silver's

consultative opinion, however it is clear to the court that the opinion was appropriately
considered. Dr. Silver's opinion was formulated based on a one-time examination of Claimant,
during which he opined that her medications were helping to diminish symptoms of paranoia and
hallucinations. His final opinion that "it is going to be very difficult for her to adjust to the world
of work unless there is a diminution in her symptomology" is insufficient to satisfy the
subparagraph (2) requirement that "even a minimal increase in mental demands or change in
environment would be predicted to cause the individual to decompensate." An opinion that she
will have difficulty adjusting to work is not synonymous with decompensation. Therefore,
Claimant has failed to meet her burden with respect to subparagraph (2).
Claimant argues that her testimony, her roommate's testimony, and the examinations
finding her "socially isolated in her home, her 'safe place"' satisfy subparagraph (3). The term
"highly supportive living arrangement" is not a specifically defined term; however, the

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introductory material to the 12.00 class of Listings explains the following:
F. Effects of structured settings: Particularly in cases involving chronic mental
disorders, overt symptomology may be controlled or attenuated by psychosocial
factors such as placement in a hospital, halfway house, board and care facility, or
other environment that provides similar structure. Highly structured and
supportive settings may also be found in your home. Such settings may greatly
reduce the mental demands placed on you. With lowered mental demands, over
symptoms and signs of the underlying mental disorder may be minimized. At the
same time, however, your ability to function outside of such a structured or
supportive setting may not have changed. If your symptomatology is controlled
or attenuated by psychosocial factors, we must consider your ability to function
outside of such highly structured settings. For these reasons, identical paragraph
C criteria are included in 12.00, 12.02, 12.03, and 12.04. The paragraph C
criterion of 12.06 reflects the uniqueness of agoraphobia, an anxiety disorder
manifested by an overwhelming fear of leaving the home.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(F). District courts have found a highly structured
setting to exist in a prison environment, Morris v. Astrue, 2012 WL 4499348 (D.N.H. Sept. 28,
2012), or at a mental health facility where the plaintiff lived and received treatment and
medication, Handy v. Astrue, 2012 WL 1605651 (D. Md. May 4, 2012). In contrast, other courts
have found no highly supportive living arrangement to exist where a plaintiff lived in a group
home and had his meals prepared and his medication distributed but was otherwise free to come
and go as he pleased, Miller v. Comm 'r of Soc. Security,' 2014 WL 916945 (N.D. Ohio Mar. 10,
2014), and where a plaintiff's girlfriend assisted with certain household chores and sometimes
helped manage finances but where the plaintiff otherwise was able to care for his personal needs
on a regular basis, Santiago v. Colvin, 2014 WL 718424 (S.D.N.Y. Feb. 25, 2014). See also
Gonsalves v. Astrue, 2010 WL 1935753, at *4 (D. Me. May 10, 2010) ("[A] 'highly structured
living arrangement' is something other than living with one's parents while taking care of most
of one's personal needs and making substantial contributions to the household without a high
degree of supervision; it refers to shelters or group homes, inpatient psychiatric treatment, or an
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inability to live on one's own.") (internal citations omitted).
Here, Claimant testified that she lived with her roommate, who does all of her shopping
and cooking. (R. 91). Her roommate testified that Claimant will leave the house once or twice a
month to go to the grocery store or the bank, and that she panics when she drives. (R. 95-96).
Claimant's roommate also testified that Claimant has missed doctor's appointments because she
has anxiety and does not want to leave the house. (R. 96). The ALJ found Claimant's testimony
not entirely credible, and accorded little weigh to Claimant's roommate's testimony, citing
,_
medical records in which Claimant admitted to preparing complex meals, performing a variety of
household chores, doing yard work, gardening, and crocheting. (R. 70-72). The ALJ also noted
that in January 2014, Claimant admitted to receiving a DWI, which he stated "is inconsistent
with the testimony regarding fear of driving." (R. 71). However, even if the ALJ had accorded
great weight to the testimony, it would not satisfy subparagraph (3), as she has- not demonstrated
that merely living with a roommate who does the majority of the housework, cooking, and
driving is enough to qualify as a "highly supportive living arrangement." Accordingly, the court
finds that, even if the ALJ did err by not explicitly relating the evidence to Listing 12.04C, such
error is harmless as Claimant has failed to demonstrate that she meets the criteria of either
subparagraph (2) or (3) of Listing 12.04C.

VI. CONCLUSION
For the reasons stated above, Claimant's Motion for Judgment on the Pleadings [DE-21]
is DENIED, Defendant's Motion for Judgment on the Pleadings [DE-23] is ALLOWED, and the
final decision of the Commissioner is UPHELD.

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SO ORDERED, this the 13th day of February 2018.

Uriited States Magistrate Judge

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