MASSEY v. COLVIN
Filing
21
MEMORANDUM OPINION AND RECOMMENDATION OF UNTIED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 6/19/2015. After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is supported by substantial evidence. Accordingly, this Court RECOMMENDS that Plaintiff's motion for judgment on the pleadings (Docket Entry 13 ) be DENIED, Defendant's motion for judgment on the pleadings (Docket Entry 19 ) be GRANTED, and the final decision of the Commissioner be upheld. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIE DOUGLAS MASSEY,
Plaintiff,
v
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
t13CV965
)
)
)
)
)
)
)
MEMORA.NDUM OPINION AND RECOMMENDATION
Plaintiff,
1631(c)(3)
\ùØillie
Douglas Massey, brought this action pursuant to Sections 205(9) and
of the Social Security Âct (the "Âct"),
as amended (42 U.S.C. $$ a05(g) and
1383(c)(3)), to obtain teview of a [tnal decision of the Commissioner of Social Security denying
his claims for a Period of Disability ("POD"), Disability Insutance Benefits ("DIB"), and
Supplemental Secudty Income ("SSI") under Titles
II
and
XVI of
the
Act.
The Court
has
befote it the certified administtative recotd and cross-motions fot judgment.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed applications for a POD, DIB, and SSI on November 2,2009
alleging a disability onset date of Febtuzly 2,2000.1 Qr.20,21.8-222.) The applications wete
denied initially and again upon reconsideration. Qd. at120-27, 1,36-43.) Plaintiff then
requested a hearing before an Administrative Law Judge
Apdl
1,8,201,2 hearing were
(",\LJ").
(Id. at 145-46.) ,{.t the
Plaintiff, his attorney, and Plaintiff's mother. (Id. at40-72.)
t Transcrþt citations tefer to the administrative record. pocket Entries
9-10.)
.A.
vocational expert ('1/-E") also appeared telephonically. Qd.) The ALJ determined that
Plaintiff was not disabled under the Act. (Id. at20-35.) Plaintiff requested that the Appeals
Council teview the ÂLJ's decision. (td. at 1,4.) On -August 30, 201.3,
it
denied Plaintiff's
request for teview, making the -ÀLJ's determination the Commissionet's fìnal decision for
purposes of
teview. (Id. at1,-5.)
II. LEGAI STANDARD
The Commissioner held that Plaintiff was not undet a disability within the meaning
of
the A.ct. Under 42U.5.C. $ 405(9), the scope of judiciai teview of the Commissioner's final
decision is specific and
narow.
Smith u. Schweiker,795
F.2ð,343,345 (4th Cit. 1986). This
Court's teview of that decision is limited to determining whether there is substantial evidence
in the record to support the Commissioner's decision. 42U.5.C" $ a05(g); Hønteru.
Salliuan,
993 tr.2d 31, 34 (4th Cir. 1992); Hay u" Sulliuan, 907 tr.2d 1453, 1456 (4th Cir. 1990)
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate
to support a conclusioî." Hxlnter,993F.2dat34 (ctlngNchardson
(1,971)).
It
"consists
u. Perales,402
U.S. 389,401,
of more than a mere scintilla" "but may be somewhat
ptepondetaÍrce." Id. (quolng Lnws u. Celebreçry,368 F.2d 640, 642 (4th Cir.
less than
a
1,966)).
The Commissioner must make fìndings of fact and resolve conflicts in the evidence.
HnJt, 907 tr.2d
^t
1456 (citing King u. Calffano, 599 tr.2d 597 , 599 (4th Cir. 1979)). The Coutt
does not conduct a de novo review
Schwei,Qer,795 tr.2d
of the evidence not of the Commissioner's
fìndings.
at 345. In reviewing fot substantial evidence, the Coutt does not
undertake to re-weigh conflicting evidence, to make credibility detetminations, or to substitute
2
its judgment for that of the Commissioner. Craig
u. Chater,
7
6 F.3d 585, 589 (4th Cir. 1996)
(citing HoJt,907 F.2d at 1456). 'lX/hete conflicting evidence allows reasonable minds to
differ as to whether a clatnant is disabled, the tesponsibility for that decision falls on the
[Commissione{ (ot the [Commissioner's] designate, the ALJ)." Craig76F.3dat589 (quoting
Walker u. Bowen, 834 tr.2d 635, 640 (7th Cir. 1987)). The denial
only
See
if no reasonable mind could accept the recotd
Nthard¡on
u.
of benefits will be reversed
to support the determination.
as adequate
Perales,402U.5. 389,401, (1,971). The issue befote the Coutt, thetefote, is not
whether Plaintiff is disabled, but whether the Commissioner's fìnding that Plaintiff is not
disabled
is supported by substantial
application of the relevant
law.
See
evidence and was reached based upon
a
correct
id.; Cofman u. Bowen,829 tr.2d 514, 517 (4th Cir. 1987).
III. DISCUSSION
Plaintiff raises fout issues. First, he contends that the ÀLJ etted by giving little weight
to the opinion of Dr. Joseph
Appollo. (Docket E.ttty
14
at3.)
Second, he contends that the
ALJ did not develop the record and did not mention favotable evidence. Qd. at6.) Third, he
asserts that the ÂLJ etted
in his RFC finding and ered futther by framing a hypothetical
question to the VE that failed to account for his low
IQ.
(Id. at7
.)
Last, Plaintiff contends
that the.ALJ erted by disregarding his low GÂF scores. (Id. at9.)
A. Dr. Appollo
Plaintiff contends that the'ALJ committed reversible error in giving "little weight" to
the medical opinion of Dr. Joseph ,{ppollo. (Id. at 3-5.) Dt. Appollo conducted
consultative evaluation of Plaintiff on January 22,201,0.
a
J
(fr.
a
at 423-435.) -Àccordingly, he
conducted a series of tests, including the WoodcockJohnson Tests of Achievement, the Wide
Range Âssessment
of Memory and I-eatning, and the Wechslet Adult Intelligence
("\MÀIS"). Qd.) All test tesults were "very low." Qr
aß.)
Scale
Dr. Appollo concluded that
Plaintiff "may have difficulty understanding, retaining and following instuctions, but should
be reviewed with any previous academic records." (Itl.
^t
434.) He concluded futther that
Plaintiff "can attend for only shot pedods of time," "can relate to others," and "does not
appear to be able to handle
stress." (Id.) While noting PlaintifFs very low test scotes, Dt.
Appollo also stated they should be reviewed in light of his medical or academic records and
that
"þloot motivation
needs to be ruled
out."
(Id.
at433.) Plaintiff
was diagnosed
with rule
out cognitive disorder, not otherwise specifìed; rule out mild mental retardatton; and was
assigned a global assessment
of functioning ("GAF") scote of 50. (Id. at
434.)
The -dLJ afforded Dt. Appollo's opinion little weight, essentially discounting the low
scores
Plaintiff received on the administered tests, because these results were inconsistent with
his prior petformance
in school. (Ir. 30.) Plaintiff
contends that the ÂLJ's reasons for
discounting Dr. Appollo's opinion are "unsustainable." (Docket Entty
1,4
at
4.)
He argues
that Dr. ,\ppollo's opinion is corroborated by his school IQ scotes and that the ALJ etted by
faiìing to specifically mention
them. (Id. at 5.)
An ,{LJ must evaluate all of the medical opinions in the record in light of:
the
examining relationship, the treatment relationship, the degtee to which the opinion telies on
relevant evidence, the consistency of the opinion with the recotd as a whole, the specialtzalon
of the source of the opinion, and other factors brought to the AIJ's attention. 20 C.F.R.
4
S
404.1,527 (c),416.927
(c). A medical source's opinion
must be both well-supported by medical
signs and laboratory fìndings as well as consistent with other substantial evidence in the case
recotd. Id. "Fff u physician's opinion is not supported by clinical evidence ot if it
inconsistent with other substantial evidence,
is
it should be accorded signifìcantly less weight."
Craigu. Chaîer,76tr.3d 585,590 (4th Cit. 1,996). In teviewing
fot substantial evidence, the
Court does not undettake to re-weigh conflicting evidence, to make credibility determinations,
ot to substitute its judgment fot that of the Commissioner. C-tç76 P.3d at 590 (citation
omitted);
accord
Mastro ,.
Aprt[270 F.3d 17'1,,178 (4th Cir.
2001).
The ALJ's decision to give "little weight" to Dr. Appollo's opinion is suppotted by
substantial evidence. The record indicates that Plaintiff, born \n 1,970, graduated from high
school in 1988, was not in special education classes, and did "faiirly well" in school.2
56, 59-61,281, 423 ("DOB 09 /29
/1970").) The ÂLJ correctly pointed to this as a suffìcient
reason to discount Dr. ,\ppollo's test tesults, especially given that
concerns about possible "poor motivation"
^nd
Dt. ,\ppollo noted his
his suggestion that Plaintiffs test results be
considered in light of his school record. The ÂLJ also took into considetation Dt.
report
in light of the medical
Çl44,
evidence
of record. Qr 2a.) The ,\LJ
'{.ppollo's
concluded that
PlaintifPs mental limitations were no more than mild to modetate and wete adequately
Plutnttff contends that the ALJ erred in finding that he was an honor student. pocket F;nty 1,4 at
5.) Thete is evidence in the tecotd that Plaintiff was on the honot toll. fr. 290,320.) Any error, if
this is indeed an etrot, in the distinction between being on the honot toll and being an honor student
is at most harmless, especially in light of evidence that Plaintiff did reasonably well in mainstream
classes. ,\nd, in any event, even without clanty on this specific issue, the ALJ did not err in giving litde
weight to Dr. Appollo's opinion. Plaintiffs high school performance was one of the many issues in
the tecord the ALJ weighed in determining which evidence to give greater weight to. "The ALJ may
choose to give less weight to the testimony of a trea(tne physician if there is persuasive contrary
evidence." Hanter,993 F.2d at34.
'
5
câptured by the RF'C.
fr.
24-25, 28-30,
47.) Fot example, one factor the ALJ
considered
relevant was the absence of references to any mental impairments in Plaintiffs pdson medical
records, which is noteworthy because Plaintiff spent the prepondetance of his alleged POD
incarcerated. Qr. 29, 47.)
Nevetheless, Plaintiff points to priot IQ scotes he teceived in the late 1970's and eatly
1980's and faults the A.LJ for not explicitly refetencing them in his decision. However, the
,\LJ stated repeatedly that she considered the entite record, and the Coun may tely on
statements.3 Çr.20,22,25,30.) Likewise, an,\LJ need not ptovide
a
these
written evaluation for
document.a The ALJ's "farhute" to discuss all the exhibits, including those mentioned by
each
Plaintiff, in a 500 plus page tecotd is not error. The regulations also suggest that IQ tests
administered decades ago before a claknant\Ã/25
si¡¡ss¡-as
was the case
and have long since grown stale.s A.nd, setting that aside, the oldet
þs¡s-2¡s unteliable
IQ scores are generally
ltigber-and often considerably highet-than the IQ scotes Plaintiff teceived from Appollo.
Yet, even setting this aside, the non-examining state agency physicians also considered
these other
IQ
scores and recornnended an RFC limited
to simple, routine repetitive
tasks,
which is consistent with-though /¿r testrictive than-the RFC ultimately adopted by the
5553677, at *6 CX/.D.N.C.
(unpublished) Q"it;ngRappaporr u. Salliuan,942tr.2d1,320,1,323 (8th Ctu. 1991)).
3 See Grabbl u. AsTrwe, No. 1:09cv364,201.0
4
WL
Nov. 18,
2010)
eg, Diaqu. Chater,55 F.3d 300, 308 (7th Cir. 1995); Mellon u. AsÍrue, No. 4:08-211O-MBS, 2009
WL2777653,at*1,3 p.S.C.Aug. 31,2009) (unpublished); Breweru.AsTrae,No. 7:07-CV-24-FL,2008
WL 46821,85, at*3 (E.D.N.C. Oct21.,2008) (unpublished).
s
See,
Coluin,5:1.2CY187-RLV, 2014WL538799, at *5 [M.D.N.C. Feb. 11,201,4) (fitd-g
IQ scores obtained before claimant was 16 invalid under 20 C.F.R. pt. 404, subpt. P, app'x 1 $
112.00(D)(10));Gibson u.Astrue,No.2:10CV00060, 2011WL 6888532, at *2 flX/.D.Va. Dec. 29,2011)
See
e.g.,Yoance u.
(same).
6
,\LJ. (r77,90,
101 74-84,87-93,96-1.1.9.) The,A.LJ indicated that she had consideted the
medicai opinions of these experts, stated that she "generally agree[d] with them," andgave
their opinions "signifìcant weight." (Tr. 30.) The logical implication here is that the ALJ
found that these older IQ scores did not change the disposition of the RFC ot the disability
determination.
Plaintiff also states that he was ptejudiced by this perceived ertor, but fails to
meaningfully explain
how. Plaintiff
does not contend that he meets a listing at step thtee
fot
an intellectual disability and does not state what additional limitation should have been
included
in his RFC. Dt. ,\ppollo indicated Plaintiff
retaining, and following directions, but can attend
others, and does not appear able to handle stress.
rnay have difficulty undetstanding,
fot shott periods of tjme and relate to
(r. a3a.) In compatison, the ALJ found
that Plaintiff could petform simple, routine, repetitive tasks and was able to toletate only
routine changes in a non-production wotk environment with limited exposure to noise with
no contact with the public and only occasional contact with co-workets or supervisors.
25)
Given that the
AIJ
(fr.
appears to have accounted for Dr. Âppollo's proposed limitations,
even assuming it was error for the ,\LJ not to mention the oldet
IQ scores, which it was not,
prejudice is absent.
Finally,
in attributing litde weight to Dr. Åppollo's opinion, the ALJ indicated that
absent a new brain injury causing a precipitous dtop in his IQ, Appollo's test tesults appeared
invaLid. (It. 30.)
See, e.!., Clarþ. u.
Coluin,No. 1:12CV1.27 ,201,4WL211,2519, at *4 (À4.D"N.C.
lr{ay 20,2014). To understand this conclusion, it is important to know that at vadous points
7
in the record, Plaintiff and his mother indicate that what ultimately turned out to be a lipoma
on Plaintiffls head was actually a brain tumor that caused a detetioratton in his cognitive
abilities. Importantly, Plaintiff asserts, and testified undet oath, that he did not have
mental limitations prior to 2009.
(It.
these
48-50, 56,61.,283,552-53.) Plaintiff, thtough counsel,
nov/ concedes that he did not have btain sutgery, nor did he have a btain
tumor. (Docket
Er,try 14 at 4-5.) In light of all this, the -A,LJ's conclusion that a toutine temoval of
a benign
cyst ftom Plaintifls head would not account for the low test scores Plaintiff received from Dr.
Âppollo is suppoted by substanttal evidence Çr.29-30 referencing393-96,552-53.)
B. The Record
In an ovedapping argumenq Plaintiff next contends that the ALJ erted by failing to
develop the recotd because he did not mention a statement by PlaintifFs mother that he was in
special education classes. (Docket E.rtry 1,4 at
The
AIJ
6.)
This argument is not persuâsive.
is required "to explore all relevant facts and inquire into the issues necessary
for adequate development of the recotd . . . ."
Coo,ë u. Heckler,
1936). 'When the evidence submitted by the claimant
is disabled, the
83
tr
.2d
11168, 1,1,7 3
(4th Cn.
is inadequ^te as to whether the claimant
ÂIJ cannot rely on that evidence alone.
'lX/here the -dLJ fails
T
20 C.F.R.
SS
404.1512(d),416.912(d).
in his duty to fully inquire into the issues necessary for adequate
development of the record, and such failute is prejudicial to the claimant, the case should be
temanded." Mar¡h u. Harris, 632 tr .2d 296, 300 (4th Cir.
1980).
Plaintiff faults the ÂLJ fot "failing to mention" he was in special education
(Docket E.rtty 14 at
6-7.) However,
classes.
substantial evidence supports the conclusion that
8
Plaintiff was not in special education classes and that he did reasonably well in school.
(See
e.g.,Tr.56,59-61.,28L,286,290,424.) Plaintiff himself reported to the agency that he did not
take special education classes.
Qr. 281,.) He later repotted the same to Dt. Appollo. (ft.
424.) Plaintiffs mother reported to an agency employee
education classes.
Qr.236.)
She later teported
and"always made honot toll in
school."
that Plaintiff had not been in special
to the agency that Plaintiff was 'î.ty
smaLr('
Çr 290.)
Yet, Plaintiff points to a notation by Dr. Swati Dakodya stating that "Mother reports
that fPlaintiff] was in special-ed classes and he did faitly in school. He was a bright and
intelligent kid."
(Ir. 455.)
Defendant contends that this statement appears
to
contain
typographical errors. (Docket E.rtty 20 at 10-11.) Plaintiff, on the other hand, argues the
,\LJ should have developed this matter further" Howevet, the '{.LJ did investtgate Plaintifls
academic recotd furthet by asking both Plaintiff and his mothet how Plaintiff petfotmed in
school. (Tr. 48, 56,59-61.) Plaintiff testified he graduated ftom high school in 1988 and did
fairly
well. [r.
44, 56, 59-61,281.) He attributed his lapses in temembedng, concenttation,
reading, and understanding English to his 2009 scalp surgery fot lipoma removal.
(r
48-49,
56,61.) \X/hen questioned by the ,{LJ, Petitioner's mother likewise atffibuted these issues to
his scalp surgery and said that in school he had been "norrø:al" and "a. very smart
guy." (It.
58-59.) When examined by Plaintiffs counsel, Plaintiffs mother stated that Plaintiff was a
"fatÄy good student" and that he made "decent grades." (Tr. 60-61.)
,\t
the administrative
hearing, counsel did not ask Plaintiff or his mothet whether Plaintiff was in special education
classes. In light of the above, the ÀLJ satisfìed his duty to develop the tecotd. The record
9
contains ample evidence and discussion of this issue.
C.
GAF Scores
Plaintiff contends that the ÂLJ erred by distegarding his low G,tF scores6 on the
ground that he continued to drink alcohol. @ocket E.ttry
1,4
at
9.) As explained
below,
Plaintiff has demonstrated, at most, harmless error.
'. GAF score is intended to be used in treatment decision and may have little to no
beating
on
4899989, at
occupational functioning." Lnue u. Astrae,
*4 (W.D.N.C. Sept. 6,
201,1) (unpublished
No. 3:11-CV-014,
opinion),
2011' WL
adoþted 201,1. VlL 4899984
flX/.D.N.C. Oct. 1,4,201,1). Consequent)y,"itis unsutptising that courts have concluded that
'the failure to reference a G,{.F score is not, standing alone, sufficient gtound to reverse
disability determination."' Clemin¡
u.
A¡trae, No. 5:13-CV-00047, 2014 WL 4093424, at
a
x"l.
flX/.D. Va. Aug. 18,201.4) (quotingParis u. Coluin, No. 7:12-CV-00596, 201,4Uil- 534057, at*6
(]X/.D. Va. Feb. 1,0, 201.4); Lnue, 201.1 \XaL 4899989,
Âdditionally, reversal on the grounds that the
ú x5 (quotation
marks omitted).
,\LJ failed to consider a G-ÀF score
"is
patticulady inappropriate'where the,\LJ fully evaluated the tecotds and tteatment notes upon
which the G,\F scores were based."' Id. (qøotingParis,2014
ìfL
534057
, atx6).
Here, the ÀLJ considered the entite t^nge of Plaintifls GÅF scores, noting:
His GAtr scores range from 50-55 to
o
35. Dr. Appollo
reponed
The GAF is a scale ranging fromzero to one hundred used to r^te^î individual's psychological,
social, and occupational functioning. See Ãrr'. Psychratdc Assoc, Diagnostic and Statistical Manual of
Mental Disotders 32-34 (4th Ed., Text Revision 2000). The Fifth Edition of the DSM published in
2013 discontinued use of the GÂF, in part because of "conceptual lack of clanty" and "questionable
psychometrics in routine practice." I)iagnostic and Statistical Manual of Mental Disorders 16 (5th
ed., -Am. Psychiatric Ass'n 2013).
10
his GAF was 50 @,xhibit 5F). ,{.lthough the claimant's GAF
score of 35 indicates maior impaitments in wotk /school/famlLy
relations, there is evidence that the claimant ddnks alcohol. His
scores of 50-55 reflect generally moderate symptoms. It is
noteworthy that G.,\F scores r^îge from 41,-50 (serious
symptoms) and 51-60 (moderate symptoms). The claimant's
chronic alcohol abuse probably contributes to his symptoms, as
well as his situational stressors. Indeed, Gr\F scotes ate only
estimations of an individual's functioning. Thetefore, no more
than mild to moderate limitations cari be inferred from the
modetate mental condition.
(Id.
at29.)
The ALJ stated further that "[t]he undersigned has considered the low GAF scotes
in the record, but the claimant continues ddnking alcohol and those scores
^ppe^r
to be based
on what he said and not on any objective criteria." (Id. at30.)
-A.s
explained above, one of the reasons the ALJ discounted Plaintiffs low GAF scores
is because they "were based on what he said and not on any objective criteria." This is
a
proper rattonale for discounting GAF scores and is borne out by the record hete, given that
the G-,\F scores at issue afe flot given meaningful discussion in the tfeatment notes and also
latgely
^ppeat
to be based on Plaintiffs subjective reporting.T (Docket Etttty 1.4 zt 9-12
referenùn9Tr.398,520-21,533,538,542,548.)
22436040,
ú
See
Morri¡
u.
Bamhart, No. 03-1332,2003WL
x4 (3d Cir. Oct. 28, 2003)
590 n.2); Hanter
Qitiog Craig 76 tr.3d
^t
u.
Coluin,No.
1:10CV401,2013WL2122575,atx7 (N{.D.N.C. May 15,2013);Oliuera. Comm'rof Soc.|ec.,415
Fed. -App'x. 681, 684 (6th Clr. 2011).
The ALJ also evaluated all of the medical tecotds upon which the G,\F scores were
t plaintiff
also appears to allege that the fact that the physicians on whom the ALJ relied never
mentioned PlaintifPs low GAF scores makes the,\LJ's reliance on those physicians' opinions "hrghly
suspect, if not immediately reversible." (Docket Entty 1,4 at 9.) Plaintiff cites no authority for this
ptoposition and the Court is unawate of any.
f,
based and took them into considetation in setting forth Plaintiffs
RFC. Qr.28'30.) While
Plaintiff cleady asserts he is disabled in l-ight of his GAF' scores, he does not meaningfully take
issue
with any of the,\IJ's findings or conclusions
as
to the specific medical records on which
they ate based. Plaintiffs atgument fails fot this teason alone.
Àdditionally, where alcohol andf or drug addiction is a contdbuting factor material to
the determination of disabiliy, and the claimant would not be disabled but fot the drug
addiction or alcoholism, then the claimant is not entitled to disability benefits.
See
42 U.S.C.
423(d)Q)ç). Here, the record demonsrates a history of cannabis, cocaine, and alcohol
S
use.
-{ physical examination record fromJune 2009, shows that Plaintiff teported that he had been
drug-free for seven years.
(Ir. 396.) An assessment from
June 2010, indicates polysubstance dependence
Daymatk Recovery Services in
in full-sustained remission.
Çt a52.) On
October 4,2}1,0,Plaintiff ptesented to the emergency room aftet he had been drinking alcohol
and was exhibiting anger andbizarce
201,0, and refetred
for
behaviot. (Ir. 45S.)
psychiatric treatment.
FIe was discharged on Octobet 6,
Çr. 462.) On October 7,2010, Plaintiff
presented to Daymark Recovery Services and teported that he was deptessed because he could
not find
a
job. Qr 525,530.)
with alcohol.
His therapist noted that he was self-medicating his deptession
(It. 530.) In March
polysubstance dependence was
201,2,
Dr. Daniel Johnston
in remission.
assessed
that Plaintiffs
(It. 5a8.) Consequently, even if PlaintifPs
GAF scores were suffìcient to demonsttate he was disabled, which they are not, substantial
evidence supports the ALJ's conclusion that alcohol use may have affected PlaintifFs GAF
scofes.
12
Finally, as with the ,\LJ's purported failure to consider past IQ scores, Plaintiff fails to
meaningfully explain what futther limitations
Consequently, even
his GAF scores would have
justified.
if the .,\LJ somehow failed in evaluating Plaintiffs GÂF scores, which
is
not the case, Plaintiff has not demonstrated prejudice.
D. The RFC
Last, Plaintiff contends that the ALJ erred by making an RFC fìnding, and fuarrring
a
hypothetical to the VE, that failed to account for his mental limitations stemming from his low
IQ, patticulady "the ftequency and duration of fPlaintifPs] concenü:ational lapses." (Docket
E.ttry 14 at7.)
Here, the ,{LJ stated to the VE:
Assume the existence of an individual who is 41 yeats
old.
Thus,
is consideted to be a younger individual. Has a high school
education, past v/ork as described. Âssume further this
individual has the tesidual functional capacity to petform work at
all exertional levels. Flowever, the person-the individual
should avoid concentrated exposure to hazards. There should
be no more than modeTate exposure to noise. The wotk should
be unskilled-simple, routine, repetitive in nature. No contact
with the public. Occasional contact with co-workers and
supervisots fot the essential functions of the position. Routine
changes in the wotk environment. Should be a non-production
oriented job.
(fr. 69.) When asked tf
that person could do any wotk besides Plaintifls past work, the VE
answeted that "there would be unskilled non-production work at the light level" as a cleaner,
laundry worker, or vehicle cleaner. (Id. at 69-70.)
VE testimony
as
to the existence of jobs will constitute substantial evidence in support
of the -ALJ's decision if itis in tesponse to a hypothetical question based on an accurate RFC
13
See
lYalker u. Bowen,889 F'.2d 47, 50-5'l (4th Cir. 1989). Âdditionally, after the bdefing was
filed in this case, the Fourth Circuit Coutt of ,{.ppeals decided Ma¡ùo
pertinent part-concluded that
a
which-in
u. Coluin,
claimant's limitations in concenttation, persistence, and pace
are not addressed by a hypothetical
limitation to simple, toutine tasks, ot unskilled
wotk.
780
tr.3d 632,638 (4th Clr,.201,5). Neither party has supplemented the btiefing by raising Ma¡ùo
hete, and the undersigned notes that while thete ate similatities between this case and Masù0,
Masdo appears factually distinct ftom the facts of this case.
More specifìcally, at step three in this case Çr. 24.), as tn Ma¡cio, 780 F.3d at 638, the
ALJ concluded that there were modetate limitations in concentration, persistence, or
pace.
There is a further similadty to Masdo here as well, because the ALJ limited Plaintiff to simple,
routine, tepetitive work Çr. 25), whereas the ÂLJ tn Ma¡cio concluded that the plaintiff could
petfotm unskilled
(2.e.,
simple and routine) work, Mavio,780 F.3d at 638 n.7
.
The diffetences
end here, howevet, because unlike Mascio, the ALJ in this case also lirnited Plaintiffs exposure
to noise; his contact with the public, co-workets, and supervisors;
environment; and his ptoduction pace.
changes
in his work
(Id.) In light of all this, the undersigned
concludes
that the ÀLJ's RFC was based on substantial evidence of recotd, and his hypothetical to the
VE mirrored his RFC detetmination and propedy captuted Plaintiff mental limitations. (Tr.
69.) '{.ccotdingly, the VE's testimony constituted substantial evidence upon which the ALJ
apptopriately relied at step five.
IV. CONCLUSION
,\ftet a
careful consideration
of the
evidence
14
of record, the Coutt fìnds that
the
Commissionet's decision
is suppotted by
substantial evidence. ,\ccotdingly, this Court
RECOMMENDS that Plaintiffs motion for judgment on the pleadings @ocket Entry
be
13)
DENIED, Defendant's motion fot judgment on the pleadings (Docket Entry 19) be
GRANTED, and the fìnal decision of the Commissionet be upheld.
June
,2015
Webster
United States Magistrate Judge
15
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