COWELS v. COLVIN

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 2/9/2016, RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 9 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be granted, and that this action be dismissed with prejudice. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RICHARD COWLES,

)
)
)
)
)
)
)
)
)
)
)

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

1:15CV105

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Richard Cowles, brought this action pursuant to
Section 205(g) of the Social Security Act (the “Act”) to obtain
judicial review of a final decision of Defendant, the Commissioner
of Social Security, denying Plaintiff’s claims for Disability
Insurance Benefits (“DIB”).

(Docket Entry 2.)

The Court has

before it the certified administrative record (cited herein as “Tr.
__”), as well as the parties’ cross-motions for judgment (Docket
Entries 9, 11).

For the reasons that follow, the Court should

enter judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
January 6, 2012.

(Tr. 186-90.)

Upon denial of that application

initially (Tr. 91-101, 121-29) and on reconsideration (Tr. 102-14,
115-16, 131-38), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 130).

Plaintiff, his non-

attorney representative, and a vocational expert (“VE”) attended
the hearing.

(Tr. 53-80.)

The ALJ then ruled Plaintiff not

disabled within the meaning of the Act.

(Tr. 40-49.)

The Appeals

Council subsequently denied Plaintiff’s request for review, making
the ALJ’s ruling the Commissioner’s final decision for purposes of
judicial review.

(Tr. 4-8.)

In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through December 31, 2015.
2.
[Plaintiff] has not engaged in substantial gainful
activity since January 6, 2012, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
HIV+, degenerative disc disease (DDD), and degenerative
joint disease.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to lift and carry up to 25 pounds frequently and
50 pounds occasionally, and to stand and walk for up to
six hours in an eight-hour work day, and to sit for up to
six hours in an eight-hour workday. [Plaintiff] could
occasionally climb, stoop, and crouch. [Plaintiff] would
not have any acute depth perception.
. . .
2

6.
[Plaintiff] is capable of performing past relevant
work as a deli counter/sandwich maker and an estimator.
This work does not require the performance of workrelated activities precluded by [Plaintiff’s] residual
functional capacity.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the . . . [Act], from January 6, 2012, through
the date of this decision.
(Tr. 45-49 (internal citations omitted).)
II. DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely
limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

In

this case, Plaintiff has not shown entitlement to relief under the
extremely limited review standard.
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead,

the Court “must uphold the factual findings of the ALJ [underlying
the denial of benefits] if they are supported by substantial
evidence and were reached through application of the correct legal
standard.” Hines, 453 F.3d at 561 (internal brackets and quotation
marks

omitted).

“Substantial

evidence

3

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.

1992) (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 [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” 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 [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).

“The issue before

[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
76 F.3d 585, 589 (4th Cir. 1996).
4

Craig v. Chater,

When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting

42

U.S.C.

§

423(d)(1)(A)).1

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five
steps:

“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 the ‘listings’ of

1
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program (SSI) . . . provides benefits
to indigent disabled persons. The statutory definitions and the regulations
. . . for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal
citations omitted).

5

specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.3

Step four then requires the ALJ to assess

2
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
3
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks 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
(continued...)

6

whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.

Id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.4
B.

Assignments of Error

Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “[t]he ALJ erred by failing to consider the applicability
of Listing 14.08H for HIV” (Docket Entry 10 at 4);

3
(...continued)
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 562-63.
4

A claimant thus can establish disability via two paths through the SEP.
The first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).

7

(2) the ALJ erred in his determination of the RFC in that he
a) “fail[ed] to perform a function by function assessment” (id. at
8); b) failed to properly evaluate certain evidence (id. at 8-10,
12-13); and c) improperly evaluated Plaintiff’s credibility (id. at
11-12)
(3) “[t]he ALJ erred by finding that Plaintiff could perform
the job of estimator” (id. at 13).
Defendant

contends

otherwise

and

urges

evidence supports the finding of no disability.

that

substantial

(Docket Entry 12

at 3-20.)
1.

Listing 14.08H
In Plaintiff’s first issue on review, he maintains that the

ALJ erred by “not consider[ing] the applicability of Listing
14.08H” governing “HIV wasting syndrome,” in light of Plaintiff’s
“diagnosis

of

HIV,

his

testimony

and

complaints

to

medical

providers regarding fatigue and bowel problems and his documented
weight loss.”

(Docket Entry 10 at 6.)

In support of this

argument, Plaintiff points to findings in the medical record that
he alleges demonstrate involuntary weight loss of “more than 10
percent of his already low baseline body weight” (id. (citing Tr.
269-70, 272-77, 279)), and ongoing bowel problems (id. (citing Tr.
274, 300), sufficient to meet the criteria of Listing 14.08H.
Plaintiff further cites Radford v. Colvin, 734 F.3d 288 (4th Cir.
2013), for the proposition that “an ALJ cannot summarily conclude
8

that a claimant does not meet a listing because such ‘insufficient
legal analysis
evaluate

whether

findings.’”
295).)

makes

it

impossible

substantial

for

evidence

a reviewing
supports

court to

the

ALJ’s

(Docket Entry 10 at 6 (citing Radford, 734 F.3d at

Plaintiff’s arguments lack merit.

As relevant to the instant case,5 Listing 14.08H requires
proof of “involuntary weight loss of 10 percent or more of baseline
. . . in the absence of a concurrent illness that could explain the
findings” and “[c]hronic diarrhea with two or more loose stools
daily lasting for 1 month or longer.”
App’x 1, § 14.08H.

20 C.F.R. Pt. 404, Subpt. P,

To show that his condition meets a listed

impairment, Plaintiff must establish that his impairment “meet[s]
all of the specified medical criteria” that relate to such listing.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Here, the ALJ’s entire step three finding consists of the
following:
The undersigned finds that these impairments, singly or
in combination, based upon a review of the medical
evidence, do not meet listing level severity, and no
acceptable medical source has mentioned findings
equivalent in severity to the criteria of any listed
impairment.

5
Plaintiff does not argue that his HIV infection has caused “[c]hronic
weakness and documented fever greater than 38 [degrees Celsius] (100.4 [degrees
Fahrenheit]) for the majority of 1 month or longer,” 20 C.F.R. Pt. 404, Subpt.
P, App’x 1, § 14.08H.2. (See Docket Entry 10 at 4-8.)

9

(Tr. 45.)

The ALJ arguably should have discussed Listing 14.08H

due to Plaintiff’s documented status as HIV positive (see Tr. 279),
his complaints of bowel problems (see Tr. 274, 300), and the
numerous references to Plaintiff’s weight loss in the record (see
Tr. 272-75, 277-78).

See Huntington v. Apfel, 101 F. Supp. 2d 384,

390 (D. Md. 2000)(“[A]n ALJ must fully analyze whether a claimant’s
impairment meets or equals a listing where there is factual support
that a listing could be met.” (citing Cook v. Heckler, 783 F.2d
1168, 1172 (4th Cir. 1986))); see also Radford, 734 F.3d at 295
(holding that “insufficient legal analysis [at step three] makes it
impossible for a reviewing court to evaluate whether substantial
evidence supports the ALJ’s findings” (citing Cook, 783 F.2d at
1173)).
However,

any

such

failure

on

the

ALJ’s

part

amounts

to

harmless error, because the record convincingly establishes that
Plaintiff’s HIV infection did not meet the criteria of Listing
14.08H.

Even assuming, arguendo, that the transcript pages cited

by Plaintiff contain the objective medical findings required by
Listing

14.08H,6

Plaintiff

glosses

6

over

the

fact

that

these

Indeed, significant doubt exists as to whether Plaintiff has shown
“[c]hronic diarrhea with two or more loose stools daily lasting for 1 month or
longer” as required by Listing 14.08H. 20 C.F.R. Pt. 404, Subpt. P, App’x 1,
§ 14.08H.1. Plaintiff’s reliance on a January 20, 2011 report to his treating
physician of “loosening of his stools . . . over the past 3-4 weeks” (Tr. 274)
does not suffice primarily because such report occurred nearly a year prior to
his onset date, with no further reports of diarrhea or loose stools to that
physician in the record (see Tr. 269-73, 321-30). Moreover, that report lacks
any indication Plaintiff experienced two loose stools per day (see Tr. 274), as
(continued...)

10

findings must have occurred after his onset date of January 6,
2012, in order to qualify as disabling.

See Alston v. Colvin, No.

14–cv–0244(JS), 2015 WL 5178158, at *9 (E.D.N.Y. Sept. 3, 2015)
(unpublished) (upholding ALJ’s finding that the plaintiff did not
meet Listing 14.08H where no evidence existed the plaintiff had
symptoms of HIV wasting syndrome “during the relevant disability
period” (emphasis added)). Here, all of Plaintiff’s weight loss of
record occurred between April 1, 2010 (see Tr. 279 (reflecting
weight of 77.6 kilograms or 171 pounds)), and July 14, 2011 (see
Tr. 272 (indicating weight of 69.7 kilograms or 154 pounds)), well
prior to his onset date.

Indeed, beginning in November 2011 and

continuing through the last medical evidence of record in February
2013, Plaintiff’s weight either increased slightly or remained
approximately the same.

(See Tr. 270 (November 10, 2011 – 70.8

kilograms or 155 pounds), 302 (April 21, 2012 – 156.4 pounds), 329
(April 26, 2012 – 70.7 kg or 155.5 pounds), 326 (August 9, 2012 –
70.9 kilograms or 156 pounds), 322 (February 15, 2013 – 71.6
kilograms or 158 pounds).)

Under such circumstances, the ALJ’s

failure to explicitly discuss Listing 14.08H constitutes harmless
error.

See Gower v. Commissioner of Soc. Sec., Civ. No. 13-14511,

6
(...continued)
required by Listing 14.08H.1, see 20 C.F.R. Pt. 404, Subpt. P, App'x 1,
§ 14.08H.1. Plaintiff’s April 21, 2012 report of “occasional bowel problems” to
a consultative examiner (Tr. 300) also falls far short of establishing either
“[c]hronic diarrhea” or a duration of “1 month or longer,” 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 14.08H.1.

11

2015 WL 163830, at *29 (E.D. Mich. Jan. 13, 2015) (unpublished)
(deeming

harmless

ALJ’s

failure

to

elaborate

why

claimant’s

impairment did not meeting listing where “[a]ny further discussion
would simply expound upon the absence of evidence”); see also
Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (observing
that “[n]o principle of administrative law or common sense requires
us to remand a case in quest of a perfect opinion unless there is
reason to believe that the remand might lead to a different
result”).
In sum, Plaintiff’s first assignment of error fails to entitle
him to relief.
2.

Residual Functional Capacity
Next, Plaintiff contends that the ALJ erred in determining

Plaintiff’s RFC in three respects.

(See Docket Entry 10 at 8-13.)

First, Plaintiff alleges that the ALJ violated Mascio v. Colvin,
780 F.3d 632 (4th Cir. 2015), by failing to complete a function-byfunction assessment of Plaintiff’s ability to perform work-related
activities. (See Docket Entry 10 at 10-11 (citing Mascio, 780 F.3d
at

636).)

Second,

Plaintiff

asserts

that

the

ALJ

improperly

credited the opinions of Dr. A.K. Goel, a non-examining state
agency physician, over the opinions of consultative examiner Dr.
Lydia Vognar and treating physician Dr. Christopher B. Hurt, and
entirely disregarded a statement from Plaintiff’s former employer,
James Steward.

(See id. at 8-9, 10, 12-13.)
12

According to

Plaintiff, the evidence from Drs. Vognar and Hurt and Mr. Steward
established that Plaintiff could only perform a “reduced range of
sedentary or light work.”

(Id. at 9.) Third, Plaintiff faults the

ALJ for finding that Plaintiff “was generally not credible with the
same sort of boilerplate credibility attack . . . which the Fourth
Circuit has denounced.”
F.3d at 639).)

(Id. at 12 (citing Tr. 46, and Mascio, 790

Plaintiff’s contentions fall short.

Plaintiff first asserts that under Mascio, prejudicial error
arises “where an ALJ fails to assess a claimant’s capacity to
perform relevant functions, despite contradictory evidence in the
record.” (Id. at 11 (citing Mascio, 780 F.3d at 636).)
to

Plaintiff,

the

ALJ

“stated

in

a

conclusory

According

fashion” that

Plaintiff could lift 50 pounds and “stand and walk for [six] hours
in an [eight-]hour workday without additional breaks,” without
“perform[ing] a function by function analysis of these contested
functions with a narrative discussion of how he resolved the
evidentiary conflicts” presented by Plaintiff’s testimony and the
opinions of Drs. Vognar and Hurt.

(Id. at 11-12 (citing Tr. 45,

63-67, 258, 267).)
The ALJ here adequately explained his reasoning for adopting
the RFC.

As the Commissioner argues (see Docket Entry 12 at 12),

the ALJ gave “significant weight” to the opinions of state agency
consultant Dr. Goel (Tr. 48), who opined that Plaintiff could lift
up to 25 pounds frequently and up to 50 pounds occasionally (medium
13

work, see 20 C.F.R. § 404.1567(c)); sit, stand, and walk for six
hours in an eight-hour workday; occasionally climb, stoop, and
crouch; frequently kneel and crawl; and should avoid significant
depth perception (Tr. 110-12).

Dr. Goel’s RFC assessment provides

substantial evidence to support the ALJ’s RFC.
Plaintiff nevertheless takes issue with the ALJ’s reliance on
Dr.

Goel’s

opinions

“without

citation

to

evidence

on

record

explaining his finding” (Docket Entry 10 at 9), and notes that
state agency consultants, as non-examining physicians, typically
warrant less weight than treating and examining physicians such as
Drs. Hurt and Vognar (id. at 9-10 (citing Radford, 734 F.3d at
295)).

However, the mere fact that Dr. Goel did not examine

Plaintiff does not preclude the ALJ from relying on Dr. Goel’s
opinons.

See Bryant v. Astrue, No. 3:08CV719, 2009 WL 6093969, at

*9 & n.11 (E.D. Va. Jul. 15, 2009) (unpublished) (affirming ALJ's
decision to give non-examining state agency consultant’s assessment
great weight as “consistent with the actual medical findings and
conservative treatment of the claimant’s treating physicians, and
with [the claimant’s] admitted activities of daily living” even
though such consultants “did not have the opportunity to observe
the claimant”).
Moreover, the ALJ explained that he gave “significant weight”
to Dr. Goel’s opinions because he found such opinions “consistent
with the objective findings and treatment reports” and noted that
14

“evidence received at the hearing level including testimony and
updated records supports these exertional limitations.”

(Tr. 48.)

The ALJ elsewhere in the decision detailed Plaintiff’s testimony
and the objective findings in the medical evidence (Tr. 46-48), and
no need existed for him to rehash that recitation in his discussion
of Dr. Goel’s opinions, see McCartney v. Apfel, 28 F. App’x 277,
279-80 (4th Cir. 2002) (rejecting challenge to ALJ’s finding for
lack of sufficient detail where other discussion in decision
adequately supported finding and stating “that the ALJ need only
review medical evidence once in his decision”); Kiernan v. Astrue,
No. 3:12CV459-HEH, 2013 WL 2323125, at *5 (E.D. Va. May 28, 2013)
(unpublished) (observing that, where an “ALJ analyzes a claimant’s
medical

evidence

in

one

part

of

his

decision,

there

is

no

requirement that he rehash that discussion” in other parts of his
analysis).
Plaintiff further contends that Dr. Hurt’s opinions warrant
“significant,

if

not

controlling

weight”

due

to

Dr.

Hurt’s

specialization in infectious diseases, the duration and frequency
of

the

treatment

relationship,

supportability of his opinions.

and

the

consistency

(Docket Entry 10 at 12-13.)

and
On

November 1, 2012, Dr. Hurt opined that Plaintiff’s HIV-related
fatigue caused him to need frequent rest periods and limited
Plaintiff to six hours of work per day, less than 10 pounds of

15

lifting, two to three hours of standing, less than two hours of
walking, and five to eight hours of sitting.

(Tr. 267.)

The ALJ discussed Dr. Hurt’s opinions but gave them “little
weight” as unsupported by Dr. Hurt’s own examination findings and
the other evidence of record.

(Tr. 48 (citing Tr. 267-68)); see

also 20 C.F.R. § 404.1527(c) (“If [the ALJ] find[s] that a treating
source’s opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record, [the ALJ] will
give it controlling weight.”).
ALJ’s

decision

to

Substantial evidence supports the

discount

Dr.

Hurt’s

opinions.

Most

significantly, Dr. Hurt’s records reflect no complaints of fatigue
by Plaintiff (see Tr. 269-80, 321-30); rather, as the ALJ observed
(see

Tr.

47-48),

the

records

indicate

that

Plaintiff’s

HIV

infection remained largely asymptomatic (see Tr. 269-80, 321-30)
and that his T-helper lymphocyte (CD4) levels ranged from 480 to
672 and remained stable (see Tr. 270, 275, 280, 301, 322).7
Moreover, Dr. Hurt’s extreme limitations conflict sharply with the

7
“Individuals who have HIV infection . . . may have tests showing a
reduction of their t-helper lymphocytes (CD4 cells).
The extent of immune
suppression correlates with the level or rate of decline of the CD4 count.
Generally, when the CD4 count is below 200/mm3 (or below 14 percent of the total
lymphocyte count) the susceptibility to opportunistic infection is greatly
increased.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1400F.b.2.

16

largely normal findings and mild limitations offered by Dr. Vognar.
(Compare Tr. 267-68, with Tr. 300-05.)
Plaintiff

also

challenges

the

ALJ’s

decision

to

give

“significant weight” to Dr. Vognar’s opinions (Tr. 47), where Dr.
Vognar opined that Plaintif would have difficulty with “prolonged”
standing or walking and with “lifting heavy objects” (Tr. 305), yet
the ALJ found Plaintiff could lift up to 50 pounds, and stand/walk
for up to six hours in an eight-hour workday (Tr. 45).
Entry 10 at 10.)

(See Docket

However, as the ALJ made clear (see Tr. 47), Dr.

Vognar clarified the above-described opinions by stating that
Plaintiff could “sit and stand normally in an [eight]-hour workday
with normal breaks” and that Plaintiff had “mild limitations with
prolonged walking . . . [and] with lifting and carrying weight.”
(Tr. 305 (emphasis added).)

Given these clarifications, the ALJ’s

decision to give Dr. Vognar’s opinions “significant weight” (Tr.
47) does not contradict and, in fact, provides additional support
for, the RFC determination.
Plaintiff

additionally

faults

the

ALJ

for

not

crediting

Plaintiff’s testimony that “he could not lift more than 16 pounds”
(Docket Entry 10 at 11; see also Tr. 65) and “required more than
the usual amount of breaks in a workday” (Docket Entry 10 at 12;
see also Tr. 66-67) as well as for finding Plaintiff “generally not
credible with the same sort of boilerplate credibility attack”

17

forbidden by Mascio (Docket Entry 10 at 12 (citing Mascio, 780 F.3d
at 639)).
Here,

the

ALJ

found

Plaintiff’s

testimony

“not

entirely

credible for the reasons explained in this decision” (Tr. 46
(emphasis added)), which does not constitute the language the
Mascio court found “gets things backwards” by implying that the ALJ
first determined the RFC and then used the RFC to decide the
claimant’s credibility, Mascio, 780 F.3d at 639.

The ALJ then

detailed the reasons why he did not fully credit Plaintiff’s
statements:
[Plaintiff] does not have any significant anatomical
structural deformities and there is no evidence of
ongoing nerve root compression which might be expected
based on the degree of pain alleged.
Further,
[Plaintiff] has not required such aggressive measures for
symptom relief as use of steroid medication, epidural
injections, application of TENS equipment, or enrollment
in physical therapy or a pain management program.
[Plaintiff] has required only over-the-counter medication
for symptom relief. The treatment regimen, therefore,
indicates that [Plaintiff’s] symptoms are not as
intractable as alleged.
In addition, the medical
evidence and observations by the [ALJ] do not reveal any
evidence of a change in motor tone or bulk such as disuse
atrophy,
or
other
change
in
body
habitus
or
constitutional appearance such as weight loss, which
might be expected in a person whose activities are
markedly restricted due to a debilitating disease
process.
These factors indicate that [Plaintiff’s]
allegations of functional restrictions are not fully
credible.
(Tr. 48.)

Substantial evidence supports the ALJ’s credibility

analysis.

18

Thus, the Court should find that the ALJ adequately explained
his reasoning for the RFC, including the weighing of opinion
evidence and Plaintiff’s credibility, in compliance with

Mascio.

See Mollett v. Colvin, Civ. No. 2:12-28018, 2015 WL 1481842, at *3
(S.D.W. Va. Mar. 31, 2015) (unpublished) (“While it might be argued
that [the ALJ] did not parse and compartmentalize the functional
limitation discussion, a reviewer can readily ascertain the ALJ’s
thinking as it is evident in his discussion of the claimant’s
testimony

and

the

other

evidence

of

record.

Under

these

circumstances, nothing more is required.”).8
3.

Past Relevant Work
Lastly, Plaintiff asserts that the ALJ erred by finding that

Plaintiff could return to his past relevant work as an estimator.

8
Plaintiff posits that the ALJ violated Social Security Ruling 06-03p,
Titles II and XVI: Considering Opinions and Other Evidence from Sources Who Are
Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on
Disability by Other Governmental and Nongovernmental Agencies, 2006 WL 2329939
(Aug. 9, 2006) (“SSR 06-03p”), by “wholly ignor[ing] the statement of Mr.
Steward,” Plaintiff’s former employer. (Docket Entry 10 at 9 (citing Tr. 258).)
Mr. Steward submitted a statement indicating that he employed Plaintiff from 2000
to 2001 as an estimator, and that he permitted Plaintiff to take additional
breaks to lie down and relieve back pain that Mr. Steward did not afford other
employees. (Tr. 258.) Although SSR 06-03p requires the ALJ to “consider all
relevant evidence in the case record when [he or she] make[s] a determination or
decision about whether the individual is disabled . . . includ[ing] opinion
evidence from . . . ‘non-medical sources’ who have seen the individual in their
professional capacity,” SSR 06-03p, 2006 WL 2329939, at *4, any failure by the
ALJ here to discuss Mr. Steward’s statement constitutes harmless error. Mr.
Steward last employed Plaintiff in 2001 (see Tr. 258), over 10 years before
Plaintiff’s alleged onset date of disability. Thus, Mr. Steward’s statement
lacked any relevance to Plaintiff’s functional limitations during the relevant
period in this case. To the extent Mr. Steward’s statement had any relevance to
describe Plaintiff’s past relevant work as an estimator as he actually performed
that job, for the reasons more fully described in section 3, infra, the ALJ’s
findings with regard to Plaintiff’s ability to perform his prior work as an
estimator have no material impact on the ultimate outcome of this case.

19

(See Docket Entry 10 at 13-14.)

In particular, Plaintiff points

out that the VE categorized the job of estimator as having a
Specific Vocational Preparation (“SVP”) of 7 (id. at 14; see also
Tr. 75), which means that an employee needs two to four years to
learn the job (id. (citing Tr. 77-78)).

Plaintiff testified that

he only performed the estimator job for one year, and that he “was
training” during the whole year and did not finish that training.
(Tr. 68.)
The Commissioner concedes that the ALJ erred in finding that
Plaintiff could perform his prior job as an estimator (see Docket
Entry 12 at 19), but correctly argues that Plaintiff did not
“contest the ALJ’s finding that Plaintiff would also be capable of
performing his past relevant work as a deli counter/sandwich maker”
(id. at 20 (citing Tr. 49)).

(See Docket Entry 10 at 4-14.)

The

ALJ’s step four finding can permissibly rest on a finding that
Plaintiff can return to a single, former job, so long as that job
qualifies as “past relevant work.”

20 C.F.R. § 404.1560(b)(3)

(providing that, if a claimant can do any of his or her past
relevant work, he or she does not qualify as disabled); 20 C.F.R.
§ 404.1560(b)(1) (defining “past relevant work” as work done within

20

the last 15 years that lasted long enough to learn how to do it and
that amounted to substantial gainful activity).9
In conclusion, Plaintiff has not shown prejudicial error
arising out of the ALJ’s improper finding that he can return to his
past relevant work as an estimator.

See generally Morgan v.

Barnhart, 142 F. App’x 716, 723 n.6 (4th Cir. 2005) (applying
harmless error standard in Social Security appeal); Mays v. Bowen,
837 F.2d 1362, 1364 (5th Cir. 1988) (“Procedural perfection in
administrative proceedings is not required.

This court will not

vacate a judgment unless the substantial rights of a party have
been affected.”).
III. CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment

on

the

Pleadings

(Docket

Entry

9)

be

denied,

that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 11)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 9, 2016

9

Plaintiff does not contest that his deli counter/sandwich maker job
qualified as “past relevant work.” (See Docket Entry 10 at 13-14.)

21