BRYAN-THARPE v. COLVIN
Filing
13
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 7/29/2016; 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 judgment be entered for Defendant. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KELLY BRYAN-THARPE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:15CV00272
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Kelly Bryan-Tharpe, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 6 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 9, 11; see also Docket Entry 10 (Plaintiff’s Memorandum),
Docket Entry 12 (Defendant’s Memorandum)).
For the reasons that
follow, the Court should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
August 6, 2008.
(Tr. 240-44.)
Upon denial of that application
initially (Tr. 81-100, 138-46) and on reconsideration (Tr. 101-23,
147-54),
Plaintiff
requested
a
hearing
de
novo
before
an
Administrative
Law
Judge
(“ALJ”)
(Tr.
163).
Plaintiff,
her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 32-60.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 10-27.)
The Appeals
Council thereafter granted Plaintiff’s request for review (Tr. 21518) and modified the ALJ’s decision by adding the requirement that
Plaintiff needed a cane for walking and standing to the RFC
determination but concluded that she remained capable of performing
other available work (Tr. 1-9), thus making the ALJ’s ruling, as
modified by the Appeals Council, the Commissioner’s final decision
for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] last met the insured status requirements
of the [] Act on March 31, 2012.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her alleged onset date of
August 6, 2008, through her date last insured of March
31, 2012.
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: fibromyalgia; obesity;
degenerative joint disease of the knee; and bipolar
disorder.
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
2
5.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform sedentary
work . . . in that [Plaintiff] could occasionally lift or
carry up to 10 pounds, frequently lift or carry up to
five pounds as well as stand/walk for about two hours out
of an eight-hour workday and sit for about six hours out
of an eight-hour workday. [Plaintiff] could also perform
occasional postural activities.
She could perform
simple, routine, repetitive tasks in a non-production
environment.
. . .
6.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.
was
. . .
10. Through
the
date
last
insured,
considering
[Plaintiff’s] age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
11. [Plaintiff] was not under a disability, as defined
in the [] Act, at any time from August 6, 2008, the
alleged onset date, through March 31, 2012, the date last
insured.
(Tr.
15-26
(bold
font
and
internal
parenthetical
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).
3
Plaintiff has not established 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 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 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, 401 (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) (brackets and internal
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 Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
4
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the 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.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
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,
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 . . . 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
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.
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
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. Commissioner 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
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).
6
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
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See 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
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 work-related 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 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
(continued...)
7
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 and Appeals Council erred in failing to account
for [Plaintiff’s] limitations in concentration, persistence, and
pace in the [RFC] finding” (Docket Entry 10 at 4); and
(2)
“[t]he
adequately
ALJ
explain
and
the
Appeals
weight
Council
assigned
erred
to
in
the
failing
to
opinion
of
[Plaintiff’s] treating physician” (id. at 6).
Defendant disputes all of Plaintiff’s assignments of error,
and urges that substantial evidence supports the finding of no
disability.
(See Docket Entry 12 at 3-13.)
1. Concentration, Persistence, or Pace
Plaintiff first contends that the ALJ and Appeals Council
failed to account in the mental RFC determination for Plaintiff’s
moderate limitation in concentration, persistence, or pace (“CPP”)
in violation of Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir.
2015).
(See Docket Entry 10 at 4-6.)
Specifically, Plaintiff
maintains that, under Mascio, a restriction to “simple, routine
tasks or unskilled work” does not account for moderate limitation
in CPP because “the ability to perform simple tasks differs from
4
(...continued)
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.”).
8
the ability to stay on task” and only the latter limitation “would
account for a claimant’s limitation in [CPP].”
Mascio, 780 F.3d at 638).)
(Id. at 5 (quoting
Plaintiff further asserts that Mascio
dictates that an ALJ must explain how a “claimant can perform workrelated functions . . . ‘for a full workday.’”
Mascio 780 F.3d at 637).)
(Id. (quoting
According to Plaintiff, the ALJ’s
restriction to “‘simple, routine, repetitive tasks in a nonproduction environment’ addresses an individual’s limitation in
handling the complexity and stress of various types of work and
workplace surroundings (i.e. environment)” but “does not address an
individual’s capacity to maintain [CPP].”
Tr. 17.)
(Id. at 5-6; see also
Plaintiff’s first assignment of error fails to warrant
relief.
The Mascio court did expressly hold 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 [CPP].”
Mascio, 780 F.3d at 638.
In this case,
however, the ALJ did not fail to include a restriction reasonably
related to a moderate limitation in Plaintiff’s ability to stay on
task; to the contrary, as quoted above, the ALJ explicitly included
a restriction to a job “in a non-production environment.”
(Tr.
17.)
Following
Mascio,
federal
district
courts
in
the
Fourth
Circuit have split on whether a restriction to non-production work
9
adequately accounts for moderate limitation in CPP. Compare Wilson
v. Colvin, No. 2:14-cv-3209-TLW-MGB, 2016 WL 625088, at *5 (D.S.C.
Jan.
15,
2016)
(unpublished)
(holding
restriction
to
“non-
production work, no assembly line production, or high speed manner,
. . . [s]tanding alone, . . . does not account for a limitation in
[CPP]”), recommendation adopted, 2016 WL 613891 (D.S.C. Feb. 16,
2016) (unpublished), Jones v. Colvin, No. 4:14-CV-00200-RN, 2015 WL
4773542, at *6 (E.D.N.C. Aug. 13, 2015) (unpublished) (deeming
“work in a low production occupation . . . which would require no
complex decision making, constant change or dealing with crisis
situations” insufficient to account for moderate limitation in
CPP), and Franklin v. Colvin, No. 5:14-cv-84, 2015 WL 4510238, at
*2 (W.D.N.C. July 24, 2015) (unpublished) (concluding ALJ must
“directly
explain”
how
restriction
of
“production/
assembly-line/high-speed work or contact with the public is a
proper accounting for [the claimant’s] limitations in [CPP]”), with
Hill v. Colvin, Civ. No. DKC 15-1027, 2016 WL 3181762, at *8 (D.
Md.
June
8,
2016)
(unpublished)
(finding
limitation
to
“no
production rate or piece work” accounted for the plaintiff’s
moderate difficulties in CPP and collecting cases), Parker v.
Colvin, No. 3:14cv502, 2015 WL 5793695, at *23 (E.D. Va. Sept. 29,
2015) (unpublished) (deciding RFC containing restriction to “nonproduction oriented work setting with no public interaction and
limited
interaction
with
co-workers
10
and
supervisors
.
.
.
appropriately considered [the plaintiff’s] moderate limitations in
[CPP]”), and Linares v. Colvin, No. 5:14-CV-00120, at *4 (W.D.N.C.
July
17,
2015)
(unpublished)
(holding
Mascio
distinguishable
because ALJ restricted the plaintiff to “a stable work environment
at a nonproduction pace with only occasional public contact” which
“specifically addressed [the plaintiff’s] ability to stay on task
as required by Mascio”).
Within
the
Middle
District
of
North
Carolina,
cases
interpreting this aspect of Mascio have reached differing results.
For example, in Pulliam v. Colvin, No. 1:13CV176, 2016 WL 843307
(M.D.N.C. Mar. 1, 2016) (unpublished) (Osteen, C.J.), the Court
reviewed under Mascio a moderate limitation in CPP in the context
of an RFC limiting the claimant “to simple, routine, repetitive
tasks in a non-production and non-quota based environment,” along
with restrictions on interaction with others and an express finding
that the claimant “could maintain focus throughout the day.”
at *1-2.
Id.
Although the Court concluded that the ALJ “failed to
explain why the moderate limitations in [CPP] . . . did not
translate to a limitation in the RFC assessment,” id. at 5, the
Court
did
not
expressly
address
the
effect
of
the
non-
production/non-quota restriction (see id. at 5-7) and, in fact,
noted that the question squarely presented in this case remains
open:
“a
number
of
post-Mascio
cases
stat[e]
that
a
.
.
.
limitation to simple, routine, repetitive tasks in a low production
11
and/or
socially
isolated
environment
may
be,
without
more,
insufficient to account for moderate limitations in [CPP]” id. at
*5 n.7 (emphasis added).
Similarly, in Manns v. Colvin, No. 1:15–CV–133, 2015 WL
5821245 (M.D.N.C. Oct. 5, 2015) (unpublished) (Eagles, J.), the
Court considered a mental RFC which included restrictions to
low-stress work with only occasional decision-making and changes,
and no work at a production rate or pace.
Id. at 1.
The Court
found that, given the significant record evidence of the claimant’s
difficulties in CPP, the ALJ had failed to adequately explain “how
the
mental
RFC
she
found
adequately
undisputed limitations in [CPP].”
Court
did
not
specifically
encompasses
Id. at 3.
analyze
Ms.
Manns’
Again, however, the
whether
a
non-production
restriction sufficiently addresses moderate deficits in CPP.
See
id. at 1-3.
In another case, Cummings v. Colvin, No. 1:14CV465, 2016 WL
792433
(M.D.N.C.
Feb.
26,
2016)
(unpublished)
(Peake,
M.J.),
recommendation adopted, slip op. (M.D.N.C. Mar. 28, 2016) (Osteen,
C.J.), the Court concluded that, “[a]lthough there is a limitation
to a ‘non-production environment,’ neither the ALJ’s decision, nor
the state agency physician’s report which the ALJ credits, links
[the plaintiff’s] difficulties in [CPP] to the non-production
limitation or to any other aspect of the RFC” and that “the record
does not appear to provide the ‘logical bridge’ necessary for this
12
Court to find that the RFC adequately takes into account [the
plaintiff’s] moderate difficulties in [CPP].”
Id. at 4; see also
Burrow v. Colvin, No. 1:15CV163, 2016 WL 1258840, at *4-5 (M.D.N.C.
Mar. 28, 2016) (unpublished) (Webster, M.J.) (citing Cummings and
finding,
under
facts
of
case,
restriction
to
non-production
environment and constraints on social interactions did not account
for the plaintiff’s moderate difficulties in CPP).
However, in
Massey v. Colvin, No. 1:13CV965, 2014 WL 3827574, at *7 (M.D.N.C.
June
19,
2015)
(unpublished)
(Webster,
M.J.),
recommendation
adopted, slip op. (M.D.N.C. Aug. 13, 2015) (Schroeder, J.), the
Court distinguished Mascio and concluded that a restriction to a
non-production oriented job, along with limitations on noise and
contact with others, “properly captured” the plaintiff’s moderate
limitation in CPP.
Id.
The Fourth Circuit has not yet had an occasion, post-Mascio,
to
address
whether
a
restriction
to
non-production
sufficiently accounts for a moderate limitation in CPP.
work
However,
in reaching its conclusion in Mascio that a restriction to “simple,
routine
tasks
or
unskilled
work”
did
not
adequately
address
moderate deficits in CPP, the Fourth Circuit expressly relied on
the Eleventh Circuit’s decision in Winschel v. Commissioner of Soc.
Sec., 631 F.3d 1176 (11th Cir. 2011).
Mascio, 780 F.3d at 638
(“[W]e agree with other circuits that an ALJ does not account “for
a claimant’s limitations in [CPP] by restricting the hypothetical
13
question to simple, routine tasks or unskilled work.”
Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining
the Third, Seventh, and Eighth Circuits).”).
above makes
clear,
the
Winschel
court,
As the quotation
in turn,
relied
decisions from the Third, Seventh, and Eighth Circuits.
upon
Winschel,
631 F.3d at 1180 (citing Stewart v. Astrue, 561 F.3d 679, 684–85
(7th Cir. 2009), Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir.
2004), and Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996)).
Thus, a review of how those appellate courts (and district courts
within those circuits) have ruled in cases involving a moderate
limitation in CPP and a restriction to non-production work in the
mental RFC informs the undersigned Magistrate Judge’s understanding
of how the Fourth Circuit likely would rule on such an issue.
In Ramirez, on which the Winschel court relied, the Third
Circuit held that restrictions to “no more than simple one or
two-step tasks; no travel outside the workplace; and a reasonable
opportunity to receive and make personal telephone calls” did “not
adequately encompass a finding that [the plaintiff] often has
deficiencies in [CPP].” Ramirez, 372 F.3d at 554 (emphasis added).
However, the mental RFC in that case did not include a restriction
to non-production work and, in fact, the court expressly noted the
VE’s testimony that all three jobs cited as suitable for the
plaintiff had daily production quotas.
Id.
Moreover, in a
subsequent Third Circuit case, Russo v. Astrue, 421 F. App’x 184
14
(3d Cir. 2011), the court held that a hypothetical which precluded
“a quota to fulfill . . . account[ed] for [the plaintiff’s]
moderate difficulties with [CPP].”
Id. at 192 (emphasis added).
Since Russo, district courts in the Third Circuit not only have
followed Russo, see, e.g., Bacon v. Colvin, Civ. No. 12-1477-GMS,
2016 WL 556727, at *10 (D. Del. Feb. 12, 2016) (unpublished), but
also have questioned the continuing validity of Ramirez on the CPP
issue in question, see, e.g., Rodgers v. Colvin, Civ. No. 13-75-J,
2014 WL 4748907, at *1 n.1 (W.D. Pa. Sept. 24, 2014) (unpublished)
(“[T]he
Social
Security
regulations
pertaining
to
mental
impairments were revised, and the evaluation of [CPP] was changed
from a five-point scale based on the frequency of the deficiencies
to the current five-point severity scale.
Although both ‘often’
and ‘moderate’ occupy the middle position in their respective
scales, more recent Third Circuit decisions have distinguished
Ramirez based on the difference between ‘often’ suffering from
these deficiencies and being ‘moderately’ limited in those areas.
The continuing validity of Ramirez under the new severity scale,
therefore, is questionable.” (internal citations omitted)).
As discussed above, the Winschel court also explicitly relied
on the Seventh Circuit’s holding that restrictions to simple,
routine tasks with no constant interaction with others did not
suffice for claimants with moderate limitation in CPP, Stewart, 561
F.3d at 684-85.
However, like Ramirez, Stewart did not involve a
15
mental RFC that included a restriction to non-production work, id.;
see also Ramirez, 372 F.3d at 554. Moreover, Stewart cited a Sixth
Circuit case, Smith v. Halter, 307 F.3d 377, 380 (6th Cir. 2001),
which found that precluding production quotas adequately accounted
for moderate limitation in CPP, see Stewart, 561 F.3d at 685.
Further, subsequent to Stewart, the Seventh Circuit concluded that
“the ALJ captured [the plaintiff’s] moderate limitation in [CPP]
when he included a restriction of ‘no high production goals.’”
Seamon v. Astrue, 364 F. App’x 243, 248 (7th Cir. 2010) (citing
Arnold v. Barnhart, 473 F.3d 816, 820 (7th Cir. 2007)); see also
Grasso v. Colvin, Civ. No. 13-C-0112, 2013 WL 4046338, at *14 (E.D.
Wis. Aug. 8, 2013) (unpublished) (finding restrictions to limited
changes and decision-making and no production quotas accommodated
moderate limitation in CPP); Muenzenberger v. Colvin, Civ. No. 12C-138,
2013
WL
3305546,
at
*12
(W.D.
Wis.
July
1,
2013)
(unpublished) (holding “a non-noisy environment and . . . tasks not
requiring a rapid pace” captured moderate limitation in CPP).
More
recently,
the
Seventh
Circuit
held,
without
distinguishing Seamon, that a restriction to work “free of fast
paced production requirements” did not account for the plaintiff’s
moderate deficits in CPP, because the ALJ failed to define “fast
paced production.”
2015).
Varga v. Colvin, 794 F.3d 809, 815 (7th Cir.
Thus, the holding in Varga, when considered in conjunction
with the holdings in Seamon and Stewart, suggests the Seventh
16
Circuit would find that production-related restrictions properly
account for a moderate limitation in CPP, at least where the
production-related restriction appears sufficiently clear.
As described above, the Winschel court (and, in turn, the
Mascio court) also relied on an Eighth Circuit decision, which held
that a restriction to “simple jobs” did not adequately address the
limitations of an individual who “often” suffered difficulties in
CPP, Newton, 92 F.3d at 695.
consider
whether
a
However, the Newton court did not
restriction
to
non-production
work
sufficiently account for moderate limitation in CPP.
would
See id.
Moreover, just over a year later, the Eighth Circuit concluded that
a restriction to jobs that did “not require close attention to
detail”
or
“work
at
more
than
a
regular
pace”
sufficiently
encompassed the limitation of a person who “often” had deficiencies
in CPP.
Since
Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997).5
Brachtel,
district
courts
within
the
Eighth
Circuit
repeatedly have concluded that restrictions to non-production work
adequately account for moderate limitation in CPP.
See, e.g.,
Henderson v. Colvin, Civ. No. C 15-2057, 2016 WL 2894915, at *9
(N.D. Iowa May 17, 2016) (unpublished) (concluding limitation to
“work performed at a regular pace” encompassed moderate deficits in
5
Subsequent to Brachtel, the Eighth Circuit moved even further away from its
holding in Newton, and found that a mere restriction to simple, routine,
repetitive tasks adequately accounted for moderate limitation in CPP. See Howard
v. Massanari, 255 F.3d 577, 581-82 (8th Cir. 2001).
17
CPP); Gibson v. Colvin, No. 14-1023-CV-C-DGK, 2016 WL 1090650, at
*4 (W.D. Mo. Mar. 21, 2016) (unpublished) (finding restriction to
“a work environment free of fast-paced production requirements”
sufficiently accounted for moderate limitation in CPP); Burks v.
Colvin, No. 4:14-CV-01121-DGK-SSA, 2016 WL 316869, at *5 (W.D. Mo.
Jan.
26,
2016)
(unpublished)
(deeming
preclusion
of
“strict
production quota[s] with the emphasis being on a per shift rather
than a per hour basis” adequate to address moderate limitation in
CPP); but see Meyer v. Colvin, No. 1:15-cv-00006-JAR, 2016 WL
949526, at *6 (E.D. Mo. Mar. 14, 2016) (unpublished) (holding that
restriction of “high production-rate jobs, although low and medium
production-rate jobs would be acceptable” did not account for
moderate limitation in CPP (emphasis added)).
Lastly, it appears that the Eleventh Circuit has not addressed
a non-production restriction since Winschel, but that district
courts within the Eleventh Circuit (although split) more often have
found such restrictions adequate to account for moderate limitation
in CPP.
Compare Adams v. Commissioner, No. 6:13-cv-1599-Orl-DAB,
2015 WL 1020559, at *5 (M.D. Fla. Mar. 6, 2015) (unpublished)
(deeming
preclusion
of
“assembly
lines
or
production
quotas”
insufficient to account for moderate difficulties in CPP because
ALJ did not cite to any medical evidence to support mental RFC),
with Jackson v. Colvin, No. 1:14-cv-01868-AJB, 2015 WL 5601876, at
*14 (N.D. Ga. Sept. 23, 2015) (unpublished) (concluding restriction
18
“to work that is low stress and . . . not production paced”
accounted for moderate limitation in CPP), Hicks v. Colvin, No.
1:12-cv-1663-JEC, 2014 WL 3573732, at *10-11 (N.D. Ga. July 21,
2014) (unpublished) (deciding that prohibition of “fast-paced work”
sufficiently addressed moderate difficulties in CPP), and Allen v.
Colvin, No. 1:11-cv-197-MW/CJK, 2013 WL 5188311, at *9 (N.D. Fla.
Sept. 13, 2013) (unpublished) (determining restriction to “low
stress
(non-production
oriented),
simple
work”
accommodated
moderate limitation in CPP (internal brackets omitted)).
In summary, the weight of authority in the circuits that
rendered the rulings undergirding the Fourth Circuit’s holding in
Mascio
supports
the
view
that
the
non-production
restriction
adopted in this case sufficiently accounts for Plaintiff’s moderate
limitation in CPP.
Moreover, that approach makes sense.
In
Mascio, the Fourth Circuit held only that, when an ALJ finds
moderate limitation in CPP, the ALJ must either adopt a restriction
that addresses the “staying on task” aspect of CPP-related deficits
(which a restriction to simple tasks does not, at least on its
face) or explain why the CPP limitation of that particular claimant
did not necessitate a further restriction regarding “staying on
task.” Where, as here, the ALJ has included a specific restriction
that facially addresses “moderate” (not “marked” or “extreme,” see
20 C.F.R. § 416.920a(c)(4)) limitation in the claimant’s ability to
19
stay on task, i.e., a restriction to non-production work,6 Mascio
does not require further explanation by the ALJ, at least absent
some evidentiary showing by the claimant (not offered here) that he
or she cannot perform even non-production-type work because of his
or her particular CPP deficits.
Thus, Plaintiff’s first assignment of error fails to entitle
her to relief.
2. Treating Physician’s Opinion
Next, Plaintiff asserts that the ALJ and Appeals Council
failed to sufficiently explain the basis for rejecting the opinions
of Plaintiff’s treating physician, Dr. Sharon S. Rubin.
Docket Entry 10 at 6-11.)
(See
In particular, Plaintiff challenges the
ALJ’s explanation that Dr. Rubin’s opinions lacked consistency with
her own treatment records, and faults the ALJ for failing to cite
“any of the supposed contradictory findings and observations in Dr.
Rubin’s notes.”
(Id. at 9.)
Moreover, Plaintiff contests “[t]he
ALJ’s only other rationale for rejecting Dr. Rubin’s opinion[s],”
that such opinions lack consistency with Plaintiff’s statements
that she walked her dogs and exercised on a treadmill, because
finding Dr. Rubin “not credible due to the fact that [Plaintiff]
[is]
engaging
in
very
limited,
prescribed
exercise
designed to improve her overall health . . . is
6
activity
absurd and
Notably, the ALJ’s hypothetical question to the VE provided further
clarification of the non-production restriction in that it precluded “production
work or other similar fast-pace jobs with deadlines and quotas.” (Tr. 57.)
20
tolerance of such reasoning is bad policy from a public health
standpoint.” (Id.) According to Plaintiff, other medical evidence
of record supports Dr. Rubin’s opinions, including a consultative
examination conducted by Dr. Amanda Lam and x-rays of Plaintiff’s
knees.
(Id. (citing Tr. 578, 625, 644).)
These assertions fall
short.
The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.
20 C.F.R.
§ 404.1527(c)(2) (“[T]reating sources . . . provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from
reports
of
examinations
individual
or
brief
examinations,
such
hospitalizations.”).
as
The
consultative
rule
also
recognizes, however, that not all treating sources or treating
source opinions merit the same deference. The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
affords an opinion. See 20 C.F.R. § 404.1527(c)(2)(ii). Moreover,
as subsections (2) through (4) of the rule describe in great
detail, a treating source’s opinion, like all medical opinions,
deserves deference only if well-supported by medical signs and
laboratory findings and consistent with the other substantial
evidence in the case record.
See 20 C.F.R. § 404.1527(c)(2)-(4).
21
“[I]f 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.”
(emphasis added).
Craig, 76 F.3d at 590
Here, the ALJ’s evaluation of Dr. Rubin’s
opinions comports with the above-cited regulations and Craig.
Dr.
Rubin
Questionnaire”
Plaintiff
completed
on May
a
form
20, 2011,
suffered from
on
depression,
entitled
which
“Physical
she
obesity,
indicated
and
[RFC]
that
fibromyalgia
characterized by constant, severe neck and back pain, fatigue,
decreased energy, and insomnia.
(See Tr. 581.)
According to Dr.
Rubin, Plaintiff’s pain “[c]onstantly” remained “severe enough to
interfere with attention and concentration needed to perform even
simple work tasks,” and Plaintiff could not perform “even ‘low
stress’ jobs.”
(Tr. 582 (bold font omitted).)
As a result of
Plaintiff’s impairments, Dr. Rubin opined that Plaintiff could sit
for five minutes at a time and for fewer than two hours total in an
eight-hour work day, could stand for five minutes at a time and
stand/walk for fewer than two hours total in a work day, and would
need to shift positions at will and walk for five minutes every
five
minutes.
(See
Tr.
583-84.)7
Additionally,
Dr.
Rubin
predicted that Plaintiff would need to take five-minute unscheduled
7
Dr. Rubin’s opinions regarding Plaintiff’s ability to walk contradict each
other. Although Dr. Rubin limited Plaintiff to fewer than two hours of walking
in an eight-hour work day, she also opined that Plaintiff needed to walk for five
minutes every five minutes, which translates to four hours of walking in an
eight-hour work day. (See Tr. 583-84.)
22
breaks once per hour, would need to use a cane or other assistive
device for standing and walking, could rarely lift fewer than 10
pounds (and never more than that), twist, or stoop, and could never
crouch, squat, or climb.
(See Tr. 584-85.)
Dr. Rubin estimated
that Plaintiff’s impairments would cause her absence from work more
than four days per month (see Tr. 585), and concluded that, as of
January 14, 2011, Plaintiff could not perform “a full-time work
schedule at any level of exertion,” (Tr. 586.)
The ALJ thoroughly described Dr. Rubin’s opinions on the
Questionnaire as follows:
Sharon Rubin, M.D. filled out a Physical [RFC]
Questionnaire for [Plaintiff] in May of 2011 that
indicated that [Dr. Rubin] had been seeing [Plaintiff]
since July of 2009 every four to six months and that she
was diagnosed with depression, obesity, and fibromyalgia
all with stable prognoses. Her symptoms were listed as
abdominal pain, diarrhea, urinary frequency, dysuria,
yeast infections, fatigue, a decrease in energy, nausea,
and insomnia. She indicated that her pain was constant
and located in her back and neck and that it was worse
with walking and movement. [Plaintiff] was identified as
being morbidly obese as well.
It was noted that emotional factors such as depression
contributed to the severity of [Plaintiff’s] symptoms and
functional limitations and that her pain or other
symptoms would be severe enough to interfere with her
attention and concentration needed to perform even simple
work tasks on a constant basis and that she would be
incapable of even low stress jobs.
The questionnaire
indicated that [Plaintiff] could walk less than one city
block without rest or severe pain and that she could sit
for 0-5 minutes at one time before needing to get up. It
also noted that she could sit, stand, and walk less than
two hours in an eight-hour workday and would need periods
of walking around every five minutes for five minutes
each time.
23
[Plaintiff] would require a job that permitted shifting
positions at will from sitting, standing, or walking and
sometimes need to take unscheduled breaks during the
eight-hour workday about every hour for about five
minutes before returning to work.
With prolonged
sitting, her legs would not have to be elevated, but
while engaging in occasional standing and walking, she
would need a cane or other assistive device. [Plaintiff]
could rarely lift or carry less than 10 pounds and never
over that in a competitive work situation. She could
occasionally look down, turn her head form left to right,
look up, and hold her head in a static position.
[Plaintiff] could rarely twist, bend, or stoop and never
crouch, squat, climb ladders, or climb stairs. She did
not have any significant limitations with reaching,
handling, or fingering.
Dr. Rubin indicated that [Plaintiff’s] impairments were
likely to produce good days and bad days and that she
would likely be absent from work as a result of her
impairments or treatment more than four days per month.
She indicated that in her expert opinion, [Plaintiff] was
not capable of working a full-time work schedule at any
level of exertion, eight hours per day, five days per
week.
(Tr. 20.)
The ALJ then provided the following explanation for
affording “little weight” to Dr. Rubin’s opinions:
This opinion is being afforded little weight by the
undersigned because it is inconsistent with the doctor’s
own medical records that all of [Plaintiff’s] extremities
moved well, she had a normal gait and was well-appearing.
The opinion and it[]s limitations are also inconsistent
with [Plaintiff’s] own statements that as late as April
of 2013, she had been walking her dogs every day,
exercising on the treadmill, and working a lot.
(Id. (emphasis added).)
As shown by the emphasized portion of the ALJ’s analysis (and
contrary to Plaintiff’s argument (see Docket Entry 11 at 9)), the
ALJ did specify the inconsistencies between Dr. Rubin’s findings on
examination and her opinions on the Questionnaire.
24
Moreover,
elsewhere in his decision, the ALJ discussed some of Dr. Rubin’s
other
observations
that
lacked
consistency
with
her
extreme
limitations on the Questionnaire.
For example, the ALJ noted Dr.
Rubin’s
resulted
remarks
that
Cymbalta
in
improvement
in
Plaintiff’s depression and clarity (see Tr. 19; see also Tr. 697,
703), that the Flector patch constituted the best pain control for
Plaintiff’s left knee osteoarthritis and that Plaintiff reported
being able to “hop up the stairs with no pain” (id.; see also Tr.
607), and that Plaintiff’s “physical examination was within normal
limits except for some crepitus in the left and right knee” (id.).
Thus, the ALJ’s evaluation sufficiently explains the basis for his
conclusion that Dr. Rubin’s opinions lacked consistency with her
own treatment records.
Plaintiff’s attack on the ALJ’s decision to discount Dr.
Rubin’s
opinions
as
inconsistent
with
Plaintiff’s
regarding exercise similarly misses the mark.
that
Plaintiff’s
impairments
caused
her
statements
Dr. Rubin opined
to
suffer
extreme
limitation on her ability to walk, such as inability to walk a city
block without rest or severe pain, inability to walk even two hours
total in eight-hour work day, and the need to use a cane or other
assistive device when walking or standing.
8
(See Tr. 583-84.)8
Dr. Rubin signed the Questionnaire on May 20, 2011 (Tr. 586), approximately
five months prior to Plaintiff’s November 1, 2011 motor vehicle accident in which
she fractured her left lower leg and suffered lacerations on her left ankle (see
Tr. 544-74). In light of Plaintiff’s testimony that her treating orthopedist,
Dr. Olson, prescribed her cane in February 2012 (see Tr. 43), which harmonizes
(continued...)
25
Plaintiff’s statements to Dr. Rubin in March and April 2013 that
Plaintiff “walks with dogs every day,” that she “ha[d] been working
a lot” as a pet sitter, and had been “exercising more” (see Tr.
697, 703) call into question the validity of Dr. Rubin’s extreme
restrictions on Plaintiff’s ability to walk.
require the
ALJ
to
consider
The regulations
the consistency
of
the
treating
physician’s opinions with the record, see 20 C.F.R. § 404.1527(c),
and
thus
the
inconsistency
ALJ
did
not
Dr.
between
err
in
relying,
Rubin’s
in
opinions
part,
and
on
the
Plaintiff’s
statements regarding her level of physical activity.
Finally, Plaintiff’s assertion that Dr. Lam’s findings and
certain knee x-rays provide support for Dr. Rubin’s opinions falls
short.
Plaintiff argues that Dr. Lam “noted upon examination that
[Plaintiff]
had
16
out
of
18
tender
trigger
points
and
had
decreased strength in the bilateral knees.” (Docket Entry 11 at 89 (citing Tr. 578).)
However, the presence of trigger points
merely supports Plaintiff’s diagnosis of fibromyalgia, and does not
provide support for any specific functional limitations arising out
of
her
fibromyalgia.
Moreover,
Dr.
Lam’s
finding
of
mildly
decreased strength in Plaintiff’s knees and left ankle (4/5) in the
aftermath of Plaintiff’s motor vehicle accident which fractured
8
(...continued)
with consultative examiner Dr. Amanda Lam’s observation on February 17, 2012 that
Plaintiff “[wa]s partial weight bearing with [a] cane” following her accident
(Tr. 576), the basis for Dr. Rubin’s May 2011 opinion that Plaintiff required a
cane to stand and walk remains unclear.
26
Plaintiff’s left lower leg (accompanied by Dr. Lam’s prediction
that Plaintiff might experience only moderate impairment of her
ability to walk when fully healed) (see Tr. 578) does not bolster
Dr. Rubin’s pre-accident opinions assigning extreme limitations on
sitting, standing, and walking.
Lastly, although Plaintiff points
to post-accident knee x-rays showing moderate to severe joint space
narrowing (see Tr. 625, 644), such findings support Plaintiff’s
osteoarthritis diagnosis but do not lend any credence to Dr.
Rubin’s significant, pre-accident functional restrictions.
Simply put, Plaintiff’s contentions of error do not require
remand.
III.
CONCLUSION
Plaintiff has not established an error warranting relief.
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 judgment be entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 29, 2016
27
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