MARSHALL v. COLVIN

Filing 22

MEMORANDUM ORDER signed by JUDGE N. C. TILLEY, JR on 09/30/2016 adopting the Magistrate Judge's Recommendation, that the Plaintiff's Motion for Judgment Reversing the Commissioner [Doc. # 12 ] is DENIED, Defendant's Motion for Judgment on the Pleadings [Doc. # 16 ] is GRANTED, and the action is DISMISSED WITH PREJUDICE. A Judgment dismissing this action will be entered contemporaneously with this Memorandum Order. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN G. MARSHALL,
Plaintiff,
v.
CAROLYN COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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1:14CV542

MEMORANDUM ORDER
On October 14, 2015, the United States Magistrate Judge’s Memorandum
Opinion and Recommendation (“Recommendation”) was filed and notice was
served on the parties pursuant to 28 U.S.C. § 636. [Docs. # 19, 20.] Plaintiff
John G. Marshall timely objected. [Doc. #21.] After a careful consideration of the
evidence of record, this court finds that the Commissioner’s decision is supported
by substantial evidence, and as a result, this court will overrule Mr. Marshall’s
objections and adopt the Recommendation.
I.
Federal law authorizes judicial review of the Commissioner’s denial of social
security benefits. 42 U.S.C. § 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th
Cir. 2006). However, the scope of review of such a decision is “extremely
limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not
to try the case de novo.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir.

1974). Instead, “a reviewing court must uphold the factual findings of the ALJ if
they are supported by substantial evidence and were reached through application
of the correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012) (internal quotation omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Hunter v. Sullivan, 993 F.2d
31, 34 (4th Cir. 1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence but may be somewhat less
than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)
(internal citations and quotation marks omitted). “If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there is substantial
evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its
judgment for that of the [ALJ].” Mastro, 270 F.3d at 176 (internal brackets and
quotation marks omitted). “Where conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls
on the ALJ.” Hancock, 667 F.3d at 472.
II.
Mr. Marshall filed an application for Social Security Disability Benefits on
August 13, 2010 alleging a disability onset date of August 13, 2010. (Tr. at 11.)

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Mr. Marshall’s application was initially denied on August 2, 2011 and upon
reconsideration on October 11, 2011. (Id.) Mr. Marshall requested a hearing before
an Administrative Law Judge (“ALJ”), which was held on February 26, 2013. (Id.)
Mr. Marshall, his attorney, and a vocational expert (“VE”) attended the hearing.
(Id.) At the hearing, Mr. Marshall amended his initial onset date from August 13,
2010 to March 31, 2011. (Id.) In an opinion dated March 29, 2013, the ALJ found
that Mr. Marshall did not qualify as disabled. (Tr. at 8-23.) Mr. Marshall appealed
the ALJ’s finding to the Appeals Council. On May 1, 2014, the Appeals Council
denied Mr. Marshall’s request for review. (Tr. at 1.)
After the Appeals Council denied review, Mr. Marshall brought this action
pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. §
405(g)), to obtain judicial review of a final decision of Defendant Commissioner of
Social Security (“Commissioner”), denying Plaintiff’s claim for Disability Insurance
Benefits (“DIB”) under Title II of the Social Security Act. (Compl. [Doc. #1].)
Commissioner filed an Answer. [Doc. #9.] Subsequently, Mr. Marshall filed a
Motion for Judgment Reversing Or Modifying The Decision of the Commissioner, or
Remanding The Cause for A Rehearing pursuant Rule 7(b) of the Federal Rules of
Civil Procedure [Doc. #12] and supporting Memorandum [Doc. #13]. Commissioner
then filed a Motion for Judgment on the Pleadings [Doc. #16] and supporting Brief
[Doc. #17]. Mr. Marshall subsequently filed his Memorandum In Response to
Motion for Judgment on the Pleadings [Doc. #18].

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III.
Mr. Marshall objects to the Recommendation with regard to two issues: (1)
the Magistrate Judge was incorrect in finding the ALJ’s improper weighing of two
consultative examiners resulted in harmless error and (2) the Magistrate Judge was
incorrect in finding the ALJ’s improper weighing of Mr. Marshall’s housemate’s
statement resulted in harmless error.
A. Opinions of Dr. Morris and Dr. Sullivan
Dr. Morris consultatively examined Mr. Marshall on June 30, 2011. (Tr. at
335.) At this exam, Dr. Morris diagnosed Mr. Marshall with (1)”Status post injury
to right femur, right kneed and lower leg in 1985”, (2) “recent fracture of right
fibula”, and (3) “depression”. (Id.) Dr. Morris then went on to find that
The number of hours that the claimant could be expected to stand and
walk in an eight-hour workday is two hours due to his slow and
antalgic gait; his inability to do toe, heel and tandem walking; his
decreased range of motion in the neck, lower back, right hip, right
knee and both ankles; his tenderness in the right lower extremity and
left lower extremity; and his decreased motor strength in both lower
extremities.
The number of hours that the claimant could be expected to sit in an
eight-hour workday is about six hours with a break every one hour.
(Tr. at 335-336.) Dr. Morris also found that Mr. Marshall needed an assistive
device for walking, could not carry or lift more than ten pounds, postural
limitations, and no heights. (Id. at 336.) The ALJ found Mr. Marshall to have a

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RFC1 to perform light work with limitations that he “can only occasionally stoop
and climb ladders.” (Id. at 16.) The ALJ further limited the RFC by acknowledging
Mr. Marshall’s need to use a cane and requiring “the option to alternate between
sitting and standing at will throughout the workday.” (Id.) In the Recommendation,
the Magistrate Judge notes that the ALJ discussed Dr. Morris’ findings and
opinions and enumerated the findings to which the ALJ gave great weight. ([Doc.
#19] at 10.) However, the ALJ then gives a blanket statement that “the
undersigned assigns no weight to Dr. Morris’ opinions regarding [Mr. Marshall’s]
limitations as they fully contradict the above observations and examination.” (Tr. at
20.; Recommendation [Doc. #19] at 11.) The Magistrate Judge found that the
ALJ’s blanket statement was not sufficient, but went on to find this insufficiency
harmless, because “substantial evidence supports [the ALJ’s] ultimate decision to
afford such opinions ‘no weight’.” (Recommendation [Doc. #19] at 12.) The
Magistrate Judge grounded this finding in the fact that many of the limitations
listed by Dr. Morris seemed to be a direct result of Mr. Marshall’s recent injury and
did not last after the injury healed. (Id. at 11-12.)

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“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (citation omitted). The RFC
includes both a “physical exertional or strength limitation” that assesses the
claimant’s “ability to do sedentary, light, medium, heavy, or very heavy work,” as
well as “nonexertional limitations (mental, sensory, or skin impairments).” Hall,
658 F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ]
considers all relevant evidence of a claimant’s impairments and any related
symptoms (e.g., pain).” Hines, 453 F.3d at 562.

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Mr. Marshall argues that “this error is not harmless when considering Dr.
Morris’ opinions as to Marshall’s limitations versus the ALJ’s residual capacity
finding.” (Pl.’s Objections to Recommendation ([Doc. #21] at 3.) “[T]he Fourth
Circuit has embraced harmless error review of administrative decisions, such that,
if an ALJ erroneously considered or failed to consider some evidence, remand is
not appropriate unless the claimant was prejudiced.” Dyrda v. Colvin, 47
F.Supp.3d 318, 326 (M.D.N.C. 2014). “Errors are harmless in Social Security
cases when it is inconceivable that a different administrative conclusion would
have been reached absent the error.” Austin v. Astrue, 2007 WL 3070601, at *6
(W.D.Va. 2007).
In the present action, Mr. Marshall does not explain how the RFC would
have been different had the ALJ given all of Dr. Morris’ physical limitations
substantial weight. Mr. Marshall also fails to specify what physical limitations the
ALJ disregarded and how this impacted the RFC. See Robinson v. Astrue, 2011
WL 4368396, at *5 (D.S.C. 2011) (holding that when plaintiff failed to
demonstrate how any additional discussion by the ALJ would have produced a
different result, the error was harmless). Because Mr. Marshall does not set forth
any additional limitations he contends the ALJ should have included in the RFC, his
arguments concerning the ALJ’s assessment that Dr. Morris’s findings were not
harmless fails.
Dr. Sullivan evaluated Mr. Marshall at the request of the Social Security
Administration on June 13, 2011. (Tr. at 325-329.) Dr. Sullivan diagnosed Mr.

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Marshall with “dysthymic disorder” and rated Mr. Marshall’s Global Assessment of
Functioning (“GAF”) as 50 to 55, a score reflective of potential serious
psychological symptoms (GAF of 41 to 50) or moderate symptoms (GAF of 51 to
60). (Memorandum [Doc. #19] at n.6.) The ALJ assigned “no weight” to Dr.
Sullivan’s diagnosis of depression. (Tr. at 19.) The Magistrate Judge found that the
ALJ’s decision to give “no weight” to Dr. Sullivan’s diagnosis failed to satisfy the
regulatory requirements for three reasons, but ultimately found this error to be
harmless. (Recommendation [Doc. #19] at 14-18.)
Mr. Marshall counters that the ALJ’s rejection of Dr. Sullivan’s opinion is not
harmless, because the ALJ found that Mr. Marshall “has limitations in
concentration, persistence, or pace,” but did not account for those in the RFC.
(Pl.’s Objections [Doc. #21] at 4.) Mr. Marshall relies on the Fourth Circuit decision
in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), in support of the argument that
this error was not harmless and warrants remand. In Mascio, plaintiffs argued that
the ALJ did not account for the limitation in concentration, persistence, or pace in
the hypotheticals making the RFC inaccurate. In Mascio,
[t]he ALJ's hypothetical, together with the vocational expert's
unsolicited addition of ‘unskilled work,’ matched the ALJ's finding
regarding Mascio's residual functional capacity. Thus, the hypothetical
was incomplete only if the ALJ failed to account for a relevant factor
when determining Mascio's residual functional capacity. According to
Mascio, that is precisely what happened—the ALJ did not consider
her mental limitations despite crediting at step three Mascio's
diagnosis of an adjustment disorder and also finding that Mascio had
moderate difficulties in maintaining her concentration, persistence, or
pace as a side effect of her pain medication.

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Mascio, 780 F.3d at 637-38. The Mascio court went on to find that the ALJ’s
hypothetical was inadequate with regard to plaintiff’s mental limitations. “[A]n ALJ
does not account for a claimant's limitations in concentration, persistence, and
pace by restricting the hypothetical question to simple, routine tasks or unskilled
work.” Id. at 638. Mr. Marshall argues that Mascio is “directly on point” to his
case. However, as the Magistrate Judge addresses, the ALJ in the present action
did not limit the hypothetical only to “simple, routine tasks” or “unskilled work.”
After addressing physical limitations, the ALJ asked the vocational expert about
work limited to “simple, routine tasks; simple, short instructions; simple workrelated decisions; few work place changes; no work at [a] fixed production rate or
pace; occasional interaction [with the] general public, co-workers, [and]
supervisors.” (Tr. at 75-77.) In response, the VE cited three jobs, available in
significant numbers in the national economy, that Mr. Marshall could perform. (Tr.
at 77.) Thus, although the ALJ did not properly articulate reasons for the decision
to give “no weight” to Dr. Sullivan’s diagnosis, the ALJ did properly account for
the mental limitations in Mr. Marshall’s RFC. In addition, as discussed supra, Mr.
Marshall has not suggested how the ultimate outcome of the ALJ’s findings would
be different if Dr. Sullivan’s opinion had been given greater weight, supporting the
finding that any error in this regard was harmless.
B. Julie Spencer’s Third Party Function Report
Mr. Marshall’s final objection to the Recommendation is the ALJ’s
assignment of “little weight to the opinions of Ms. Spencer as she is not a medical

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doctor who can diagnose the claimant’s alleged impairments nor assess their
limitations. Furthermore, she has a natural bias in favor of the claimant due to
their personal relationship.” (Tr. at 20.) Ms. Spencer, Mr. Marshall’s housemate,
completed a third party function report on February 6, 2011. (Id.) As with Mr.
Marshall’s other objections, this court is in agreement with the Magistrate Judge
that “even assuming that the ALJ’s stated reasons for discrediting Ms. Spencer
constituted error, no basis exists for remand of the case. [Mr. Marshall] has failed
to demonstrate how a proper analysis of Ms. Spencer’s report would have resulted
in a different outcome in the case.” (Recommendation [Doc. #19] at 21.) Ms.
Spencer’s testimony seems to corroborate Mr. Marshall’s testimony at the hearing,
which the ALJ did consider. Thus, absent any showing that the ALJ’s decision to
not give greater weight to Ms. Spencer’s testimony prejudiced Mr. Marshall, this
court is in agreement that any error was harmless. See Scott v. Colvin, 2015 WL
5567572, at *6 (W.D.N.C. 2015) (holding that plaintiff's argument that ALJ erred
in not considering third party statements lacked merit, particularly in light of
plaintiff's own testimony as to her capabilities).
IV.
For the reasons stated herein, the Court adopts the Magistrate Judge’s
Recommendation [Doc. #19]. Plaintiff’s Motion for Judgment Reversing the
Commissioner [Doc. #12] is DENIED, Defendant’s Motion for Judgment on the
Pleadings [Doc. #16] is GRANTED, and the action is DISMISSED WITH

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PREJUDICE.
A Judgment dismissing this action will be entered contemporaneously with
this Memorandum Order.
This the 30th day of September, 2016.
/s/ N. Carlton Tilley, Jr.
Senior United States District Judge

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