FARRINGTON v. COLVIN

Filing 12

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 03/01/2017, that Plaintiff's Motion for Judgment Reversing the Commissioner (Docket Entry 8 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 10 ) be GRANTED, and that the final decision of the Commissioner be upheld. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EMMA FARRINGTON, on behalf of
HONøARD FARRINGTON,

)
)
)
)
)

Plaintiff,
V

)
)
)
)
)
)
)

NANCY BERRYHILL,
Acting Commissioner of Social Secutity
Administtation,
Defendant.

1:15CV846

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Emma Farrington, on behalf of the deceased claimant, Howard Farington
("Farrington"), seeks teview of a ltnaldecision of the Commissionet of Social Security denying
his claims fot a period of disability and disability insurance benefits ("DIB") under Title

the Social Security Âct ("the

Âct").t The Court

has befote

it the cettified

record and ctoss-motions fot judgment. (Docket Entries 6, 8,

II of

administtative

10.) For reasons discussed

below, it is recommended that Plaintiffs motion fot judgment on the pleadings be denied,
Defendant's motion fot ludgment on the pleadings be granted, and that the Commissionet's
decision be affumed.

1

Nancy Bctryhìll tecently became the Actrng Commissioner of Social Security. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Betryhill should be substituted for
Carolyn W. Colvin as Defendant in this suit. No furthet action need be taken to continue this suit
by reason of the last sentence of section 205(9) of the Act,42 U.S.C. $ a05G).
1.

I. PROCEDURAL HISTORY
Farrington applied for DIB on or about February 1.4,201,L, alleging a disability onset
date

of September 30,2008. Çr. 176-79.¡z His application was denied initially and upon

reconsideration. Qn 1.1,8-1.21,1.25-27.) Thereaftet, Farington requested
befote an Administtative Law Judge
vocational expert

("V8")

a headng de

("ALJ"). Çt 77-78.) Fattington, his attorney, and a

appeated at the headng on September 16, 2013.

decision by the

AIJ

application for

DIB. Qt T-a2.)

novo

Çr. 46-69.) A

was issued on December 11, 2013, upholding the denial of Farrington's

appealed the ALJ's decision

Fardngton thereaftet tetained anothet attotney who

to the Appeals Council on Februar¡ 4, 201.4. (Ir.

23-25.)

Farrington died on February 28, 2014. On May 12, 2015, the Appeals Council denied
Farrington's request for review of the decision.

(Ir. 18-20.) The Appeals Council theteafter

allowed additional infotmation to be submitted by Fardngton's counsel.

Qt.

1,3-1,4.) On

August 6, 201,5, aftet setting aside its eatlier denial, the Appeais Council agatn denied
Farrington's request for review of the

A{'s

decision, theteby making the ALJ's detetmination

the Commissioner's final decision for purposes of judicial review.

Gt. 1-5.)

Farrington's

widow, Emma Fatrington (proceeding as "Plaintiff in this matter), was named a substitute
party and subsequently fìled the instant Complaint with this

Court. (Docket

F;ntry 2.)

Transcript citatrons refer to the sealed administrative recotd which was filed with
Defendant's Answet. (Docket Entry 6.)
2

2

II. STANDARD OF REVIEW
The Commissioner held that Fardngton
of the Act. Under 42U.5.C.
decision is specific and

$ a05(g),

\Ã/as

not undet

a disability

within the meaning

the scope of judicial review of the Commissioner's fìnal

nattow. Snith u. Schweiker,795 F.2d 343, 345 (4th Cir. 1986)' This

Court's review of that decision is ümited to determining whether there is substantial evidence

in the tecord to support the Commissioner's decision. 42 U.S.C.
993 F.2d 31, 34 (4th Cir. 1.992);

Hay

$ a05(g); Hunter u. Sulliuan,

u. Sølliuan, 907 tr.2d 1,453, 1,456 (4th Cir. 1990).

Substantial evidence is "such televant evidence as a reasonable mind might accept as adequate

to support a conclusion." Hzrnter,993 F.2d at34 (cittngNchardnn

(1971)).

It

"consists

of more

u.

of

1.456 (cittng King u. Calfarco, 599

does not conduct a de novo review

795 F.2d

^t

345. In

a

Celebre77e,368F.2d640,642 (4th Cit. 1966)).

The Commissioner must make fìndings

Schweiker,

Perales,402U.5.389,401'

thart a mete scintilla" "but may be somewhat less than

pteponder^nce." 1/. (quotingLaws

Hay,907 F.2d at

u.

fact and resolve conflicts in the evidence.

F.2d 597 , 599 (4th Cit. 1,919)). The Coutt

of the evidence not of the Commissionet's

reviewing

for

findings.

substantial evidence, the Coutt does not

undertake to re-weigh conflicting evidence, to make ctedibility determinations, or to substitute

its judgment for that of the Commissioner. Craþu. Chater,76F.3d 585,589 (4th Cir. 1996)
(citing Hry4907 F.2d

^t

1,456). "$(/here conflicting evidence allows reasonable minds to

differ as to whether a claimant is disabled, the responsibility for that decision falls on the
fCommissioner] (ot the fCommissioner's] designate,
IØalker u. Bowen,834 F.2d 635, 640 (7th Cir.

the,{.LJ)." Craigl6F.3d

at 589 (quoting

1987). The denial of benefits will be revetsed
.)

only
See

if no reasonable mind could accept the record as adequate to support the determination.

Nchard¡0n,402 U.S. at

401. The issue before the Court, thetefote, is not whethet Plaintiff

is disabled, but whether the Commissionet's finding that Plaintiff is not disabled is supported

by substantial evidence and was teached based upon a cottect application of the televant law.
See

id.; Cofrzan u. Bowen,829 F.2d 51,4,51,7 (4th Cit. 1987).

III. THE

ALJ'S DISCUSSION

The Sociat Security Regulations define "disability" for the purpose of obtaining
disability benefits as the "inability

to do any substantial gainful activity by reason

of. any

medically determinable physical or mental impairment3 which can be expected to result in
death or which has lasted or can be expected to last fot a continuous period of not less than

12 months." 20 C.F.R. S 404.1505(a);

.-

definition, a claimartmust have

work ot
S

^ny

a severe

see

al¡o 42 U.S.C. $ aæ(d)(t)(a).

To meet

this

impairment which makes it impossible to do ptevious

other substantial gainful acavitya that exists in the national economy. 20 C.F.R.

404.1505(a); rce øl¡o 42 U.S.C. S 423(d)(2XÐ.

A. The Five-Step Sequential Analysis
The Commissionet follows a five-step sequential analysis to ascettain whether the
claimant is disabled, which is set forth in 20 C.F.R. S 404.1520.
Sec.

Adnin.,

3

1.7

4 F.3d 473,

47 5

See

Albright u. Comm'r

of Soc.

n.2 (4th Cit. 1'999). The ALJ must determine:

mental impairmenC' is an mpairment resulting from "anatornical,
physiological, or psychological abnormalitres which are demonstrable by medically acceptable clinical
andlaboratory diagnostic techniques." 42 U.S.C. S 423 (dX3).
o "substantial gainful actl'drty" is work that (1) involves performing significant ot productive
physical or mental duties, and Q) is done (ot intended) for pay or ptofit. 20 C.F.R. S 404.1510.

A

"physical

or

4

(1)

Whether the claimant is engaged in substanial gainful activity
claimant is working).

so, the claimant is

.

whethet the

not disabled and the inquiry ends.

\X/hethet the claimant has a severe impairment.

Q)
(3)

If

(2.e.,

If not, then the claimant

is not

disabled and the inquiry ends.

ìØhether the impairment meets or equals to medical criteria of 20 C.F.R., Patt
404, Subpart P, Appendix 1, which sets forth a list of impairments thatwanant a

findingof disabilitywithoutconsidetingvocationalcriteita. If so, thecluma¡tis
disabled and the inqury is halted.

(4)

\X/hether the impairment prevents the claimant from perfotming past relevant

work. If noq the claimant is not disabled

(5)

\)Øhether the claimant is able

and the inquity is halted.

to petform any othet work considering both his

residual functional capacitys ("RF'C") and his vocational abilities.

If

so, the

claimant is not disabled.
20 c.F.R. S 404j,520.
Here, the ALJ

frst

determined that Farington had not engaged in substantial gainful

activity since his alleged onset date of September 30,2008.

(Ir. 35.) The ALJ next found in

step two that Farrington had the following severe impafuments: alcohol dependence,

s

"Residual functional capactty" is the most â claimant can do in a work setting despite the
physical and mental limitations of her rmpafument and any related symptom (e.g.,pan). See 20 C.F.R.
$ a0a.15a5(a) (1); ne ulso Hine¡ u Bamhar4 453 F.3d 559,562 (4th Cir. 2006). The RFC includes both
a "physical exertional or strength limitation" that assesses the claimant's "abilty to do sedentary, light,
medium, heav/, or very heavy work," as well as "nonexertional limitations (mental, sensory or skin
impairments)." Ha// a. Harrn,658 F.2d 260,265 (4th Cir. 1981).
5

adjustment disorder, obesity, degenetative joint disease, cirthosis, and seizutes.

thtee, the ALJ found that Farrington did not have an impurment
impairments listed in, or medically equal to, one listed in Appendix

L.

(Id')

,{.t step

or combination of

Qd.) At step fout, the

that Fattington could not return to his past televant work. (Id. at 40.) At
'{LJ determined
step five, the ALJ determined that considering Fartington's age, education, wotk expedence,
and RFC, there were jobs in the national economy that he could

B.

petfotm.

(Id. at 40-41,.)

Residual Functional Capacity Determination

Prior to step four, the ALJ determined Fardngton's RFC based on the ALJ's evaluation

of the evidence. (Id. at37-40.) Reviewing the evidence

as a

whole, the AIJ detetmined that

Farrington retained the RFC to "petfotm light wotk, ot wotk which requires maximum

Itfttng/carrying and pushing/pulling

of 20 pounds, frequent hfttng/carrylng

and

pushing/pulling of up to 10 pounds, and sitting, standing or walking approximately six houts

of an eight-hour day with normal breaks." (Id. at 37) The ALJ further concluded that
Farrington could occasionally petfotm postutal activities, but with no exposrue to hazarås,
such as dangerous machinery and unsupported

heights. Qd.) The ALJ also concluded that

Fardngton could perform simple, routine, and tepetitive tasks, but that he must avoid
production, euota, and fast-paced jobs. Qd.)

C.

Past Relevant Work

The ALJ found in step four that Farrington had past relevant work as a sous chef and

short order

cook.

Qd.

at 40.) The ALJ found furthet that these jobs were beyond

Farrington's RFC, thus, he could not petfotm his past relevant wotk any longet. (Id.)
6

D.

Adiustment to Other Work

The claimant bears the initial burden of proving the existence of a disability. 42 U.S.C.
S

423(dX5); 20 C.F.R. S 404.151 2; Smith u. Califano, 592 F.2d 1,235, 1,236 (4th Ctt. 1979).

If

the claimant has established at step four that he cannot do any work he has done in the past
because of his severe impairments, the burden shifts to the Commissioner àt step five to show

that jobs exist

in significant numbets in the national

economy which the claimant could

perform consistent with his RFC, age, education, and past wotk expetience
at35; Il/ilson

u. Calìfun0,617

.

Hønter,gg3 tr.2ð,

F.2d 1050, 1053 (4th Cir. 19S0). Here, the ALJ found that given

Fardngton's age, education, work experience, and RFC, thete wete jobs

in the national

economy that he could perform, such as an otder caller, photocopy machine opetatot, and

cashier.

Çr

41,.)

IV. ANALYSIS
Plaintiff contends that the Commissionet etted in determining that Fardngton v¡as not
disabled for purposes of the

Act.

(Docket Entry

9.) Plunttff

raises three

arguments. Fitst,

Plaintiff contends that the ,{LJ failed to account for Farrington's moderate limitations in
concentration, persistence, or pace ("CPP") in the RFC which tesulted in a flawed hypothetical
presented to the

VE regarding Farrington's ability to adjust to othet work. (Id. at 1'2-17.)

Second, Plaintiff argues that the ALJ violated social secutity regulations by failing to accotd

the weight given to the opinions of the state agency medical consultants. (Id. at 17-20.)
Lastly, Plaintiff contends that the ALJ erred by placing excessive weight on Farington's ability

to petform daily activities, which tesulted in a flawed RFC. (Id. at 21,-22.) For the reasons
7

below, the Court concludes thar,all of Plaintifls arguments fail.

A. Moderate Limitations in Concentration,

Persistence, or Pace

Plaintiff argues that the hypothetical presented to the VE was flawed because of the
ALJ's failure to account for Farrington's modetate limitations in CPP. (Id. at 12-11.) To
support this argument, Plaintiff relies upon the holdingin Mascio u. Coluin,780 F.3d 632 (4th

Ctr. 201,5). In Masdo, the Fouth Circuit Court of Âppeals determined that temand was
appropriate for three distinct reasons, one of which is televant to the analysis of this case.
Specifically, the Fourth Circuit remanded in Ma¡ùo because the hypothetical the ALJ posed to
the VE, and the corresponding RFC assessment, did not include
than unskilled work, despite the fact that,

ar.

^ny

step thtee of the sequential evaluation, the ALJ

concluded that the claimant had moderate difficulties in maintaining

^t

mental limitations other

CPP. Matdo,780 F.3d

637-38.

The Fourth Circuit specifically held that it "agtee [s] with other circuits that an ALJ does

not account for a claimant's limitations in [CPP] by testticting the hypothetical question to
simple, toutine tasks or unskilled

work."

Id. at 638 (quoting lY/in¡chel u. Comn'r of Soc.

Sec., 631.

F.3d 1,176,1130 (1lth Cir. 201,1)) (internal quotations omitted). In so holding, the Fourth
Circuit emphasized the distinction between the ability to perfotm simple tasks and the ability
to stay on task, stating that "[o]nly the latter limitation would account for aclaimant's limitation

in [CPP]."

Id.

Although the Fourth Circuit noted that the ALJ's eror might have been cuted

by an explanation as to why modetate difficulties in CPP did not ttanslate into a limitation in
the claimant's RFC, it held that absent such an explanation, temand was necessaty. Id.
8

Here, the ALJ determined at step three that Fatrington had modetate difficulties in

CPP. Gt. 36.) In suppott, the ALJ's assessment was that "[t]he claimant fcould] perform
simple, routine, and repetitive tasks. As for episodes of decompensation, the claimant ha[d]

experienced no episodes

of decomposition, which have been of extended duration. The

claimant ha[d] no history of tecent psychiattic hospital stays."

Qd)

"Pursuant to Masdo,

once an ALJ has made a step three fìnding that a clairrrant suffers from modetate difficulties

in [CPP], the ALJ must either include a corresponding limitation in het RFC

assessment, or

explain why no such limitation is necessary."

No. ELH-14-

See

Talmo u. Czmm'r, Soc. Sec.,

2214,2015 nØL 23951.08, at x3 (D.Md. May 19,2015) (unpublished). Here, the ALJ included

in Fardngton's RFC

a

limitation of "simple, routine, and tepetitive tasks," with an additional

limitation that he must "avoid ptoduction, quota, and fast-paced

jobs." Qr.37.)

Plaintiff argues that the ALJ's RFC testictions do not adequately account for
Farrington's moderate difficulties in CPP. Indeed, as held in Mascio, a testriction to simple,
routine, repetitive tasks will not suffice to account fot a claimant's modetate limitations in

CPP.

Mascio, TB0 F.3d

at 638. However, the Commissionet argues that unlike Mascio, the

ALJ here included more than a limitation to "unskilled work," ultimately accounting fot
Fartington's ability

to stay on task. (Docket Entty

1,1,

at 1,3.) The Coutt âgrees with the

Iatter
Since the ruling in Matù0, district courts within the Foutth Circuit have had differing

results as to whether an RFC with ptoduction testtictions adequately accounts fot moderate

limitations in CPP.

See

lVilson u. Coluin, No. 2:14-CV-3209-TLW-MGB, 201,6WL 625088, at
9

x5 (D.S.C. Jan. 15,2016) (unpublished) (holding that

"ffhile

production pace' in his formulation of Plaintiffs RFC . .
account for a limitation

in [CPP]"),

.

the ALJ did refet to 'non-

fs]tanding alone, this does not

report and recomntendation adopted,201'6

WL

613891,

P

SC

Feb. 16, 2016) (unpublished); Strugs u. Coluin, No. 3:14-CV-00466-MOC, 2015 WL 2250890,
at x6 CX/.D.N.C. May 1,3,201,5) (unpublished) (fìnding a limitation to simple, routine, tepetitive

tasks

in a non-production environment insufficient to account for moderate limitations in

CPP). BatseeHìllu. Coluin,No. DI(C 1,5-1,027,201,6WL31,81762,atx8 (D. Md.June 8,201'6)
(unpublished)

("[]he

ALJ's inclusion

of ahmitation in the assessment of Plaintiffs RFC to

'no production rate for pace of wotk' accounts for Plaintiffs moderate difficulties in
maintaining [CPP]") report and recommendation adopted,No. CV DKC

1,5-1,027

,201'6WI' 4269094

(D. Md. Aug. 15, 201,6) (unpublished); Linares u. Coluin, No. 5:14-CV-001,20, 2015 lfl4389533,ât x4 (IX/.D.N.C. July

17

,201,5) (unpubtished) (finding that "the ALJ limited fPlaintiffJ

to 'simple, repetitive, routine tasks in a stable work envitonment at a nonproduction pace with
only occasional public contact' . . . fwhich] specifically addtessed Plaintiffs ability to stay on
task as required by

Mavio"). The Middle District of North Catolina

views. ComparePøllian

u.

has also taken differing

Coluin,No. 1:13CV176,201,6WL843307,at*L,5 (À{.D.N.C. Mar.

1,, 2016) (unpublished) (stating that although Plaintiffs RCF had restrictions including

"limitfations] to simple, routine, repetitive tasks in a non-production and non-quota based
environment," the Court held that "as in Mascio, the ALJ here has failed to explain why the
moderate limitations in [CPP] found at step three did not translate to a limitation in the RFC
assessment") with, Massel u. Coluin, No. 113CY965,201,5 WI- 3827574, at 87 (À{.D.N.C. June
10

1,9,201,5) (unpublished)

(finding that the ALJ "ptopetly captured" Plaintiffs mental limitations

with greater restrictions than Mascio),

In a recent unpublished
post-Mascio issue

limitations

recommendation adopted,

slip op. (44.D.N.C. Âtg. 13,201,5).

decision, our Court provided

futher explanation

as

to the

of whether non-produclion restrictions adequately account for modetate

in CPP.

See

Grant u. Coluin, No. 1:15CV00515, 201,6

CÀ{.D.N.C. July 26, 2016) (unpublished).

In

WL

4007606,

at *6-9

Grant, the Court noted the Foutth Citcuit's

reliance upon the Eleventh Circuit (and concuning circuits) to reach "its conclusion in Masùo

that a testriction

to 'simple, routine tasks or

moderate deficits in

CPP[.]" Id. at*7. Thus, "review[ing] howthose appellate courts

distict courts within those circuits)
and a restriction

unskilled work' did not adequately address

have

(and

ded in cases involving a moderate limitation in CPP

to non-production work in the mental RFC," (id.), our Court concluded that

"the weight of authodty in the circuits that rendered the dings undergitding the Foutth
Circuit's holding in Masùo supports the view that the non-production restriction adopted in
thfat] case sufficiently accountfed] for Plaintiffs modetate limitation in CPP." Id. at*9.

In the instant

case, the ALJ found that Fartngton had moderate limitations

in CPP

and further provided specific restrictions in the RFC that Farrington be limited to "simple,
routine, and tepetitive tasks," with an additional limitation that he must "avoid ptoduction,
quotâ, and fast-paced

jobs." Çr.37.)

Thus, "the ALJ has included a specifìc restriction that

facially addresses 'moderate' (not 'matked'

ot 'extreme,'

rce

p0 C.F.R.

S 404.1520a(c)(a)]),

limitation in the claimant's ability to stay on task, i.e., a restriction to 'non-ptoduction oriented'

work, ftherefote] Mascio does not require further explanation by the ALJ [.]" Crarct,
11

201,6

WL

4007606,

úxg. Having adequately accounted for Fardngton's ability to "stay on task" in the

hypothetical to the VE, Plaintifls claim

fails.

Dickens u. Coluin,

No. 1:15CV878, 201,1 WL

31.8832,at*4 (À{.D.N.C. Jan.23,201,7) (unpublished);Andajaru. Coluin,No. 1:15CV7093,201,6
WL7471.31.3, at *7 (À4.D.N.C. Dec. 28,201,6) (unpublished)'

B. Opinions of State Agency Medical Examining Consultants
Next, Plaintiff argues that the ALJ violat ed 20 C.F.R. S 404.1,527 by "failing to accord
what weight was given to the opinions of the state agency medical consultants." (Docket

Entry 9 at 17.) The Commissionet argues to the conftarf , stating that the
considered and assigned weight to the opinions. (Docket E.ttty

1,1,

AIJ fully

at 18.) Regardless of the

source, every medical opinion teceived must be evaluated. 20 C.F.R. $ a0a.1527(c). Medical

opinions are "statements fiom physicians and psychologists or other acceptable medical
sources that teflect judgments about the nature and severity of your impairment(s), including

your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and
your physical or mental resúictions." Id. S 404.1.527 (a)Q). The tegulations genetally provide
more weight to the opinion of afteattns source because itmay "provide a detailed, longitudinal

picture of fthe claimant's] medical impairment(s) fwhich] may bring a unique petspective to
the medical evidence." Id. S 404.1,527 GX2). Unless contolling weight is given to a treating
source, several factors must be consideted when detetmining how much weight to give any

medical opinion including: (i) the frequency of examination and the length, nature and extent

of the treatment telationship; (ü) the evidence in support of the treating physician's opinion;

(-) th. consistency of the opinion with the recotd as a whole; (it whethet
1.2

the opinion is from

â specialist;

and (v) other factors brought to the Social Secutity Administtation's attention that

tend to snpport or contradict the opinion. Id. S 404.1,527(c)Q)-(6). State agency medicai
consultants are highly qualified physicians who are also expetts

in Social Security

disabiLity

evaluation. 20 C.F.R. S 404.1,527 (e)(2)(i), Hete, the ALJ evaluated the medical opinions

of

three state agency examining consuitants: Dr. Anthony Smith, Dr. Ashley ICng, and Dt.
Amanda

Lam. (It. 38-40.) Although these medical ptoviders were

not Fatrington's treating

physicians, they did examine him, and thus are subject to the factors set forth in 20 C.F.R.

404.1.527(c). See Good u. Coluin, No. CiV.A. 1:12-3380-RMG, 201,4

WL

358425, ar *3,

$

1.1.

(D.S.C. Jan. 31.,201,4) (unpublished) (fìnding that an examining state agency consultant is
ptopedy considered under the "Tteating Physician Rule").

The Court notes that in some cases "arì ALJ's failure to explicitly state the weight he
gave to a parttculat medical

opinion constitutes hatmless error, so long

as the

weight given to

the opinion is discernible from the decision and any grounds for discounting it are reasonably

afticulated."

Spørlock

u.

Astrae, No. 3:12-CV-2062,201.3

WL

841.474, atx20 (S.D.\X/. Ya.

)an.

28,201,3) (unpublished) (citation omitted), report and recommendation adopted sab nom. Spurlock

Attøre, No. CIV.A. 3:1,2-2062, 201,3 \)fL 841483 (S.D.nø. Ya.
Douer u. Astrwe,

No.

1:11,CY120, 2012

WL

1,4164L0,

u.

Mal 6, 201'3) (unpublished);

at *5 CX/.D.N.C. Mat.

1,9, 2012)

(unpublished) ("temanding thfe] case so that the ALJ could explicitly state that he was

assigninggreatweight...wouldbeapointlesscxetciseastheopinion...onlyservestobolstet
the,tLJ's determination

as

to Plaintiffs [RFC], as well

was not disabled"), report and

as the ultimate decision that

Plaintiff

WL

141,6592

recornmendation adopted,No.

1.3

1:11,CY120, 201.2

CX/.D.N.C. Apr.24,201,2) (unpublìshed).

WL

2433515, at

See

alsoNuerau. Coluin,No. 5:11-CV-569-FL,201'3

*3 (E.D.N.C. June 4,201,3) (unpublished) ("[A]n ALJ's fallure to expressly

state the weight given to a medical opinion may be harmless ertor, when the opinion . . . is

consistent with the ALJ's RFC detetmination.").

In his decision, the ALJ
appeared disinterested and that

gave "weight

effot

to the examinet's teport that

was a possible

f^ctor."

(Tt.

fFarrington]

40.) Additionally,

the ALJ

"þave] weight to the examiner's report that partington's] prognoses wete stable." (Id.) The
ALJ also stated that "[w] eight [was] given to the examinet's opinion that pattington's] abilities

and scores might not be acct)r^te."

(Id)

The ALJ then concluded by stating that he

"assign[ed] weight and concur[red] with the State agency medical consultant's opinion because
they were able to review fFarrington's] entire medical

fiIe."

Qd.)

Although not well aticulated, the ALJ ptopedy evaluated and gave some weight to the
opinions of the state agency examining consultants. Flete, it is evident in the decision that

the ALJ partially concurred with the state agency examining consultarits, and atttibuted
grounds for discounting such opinions as necessatT. For example, Farrington was seen by

Dr. Anthony Smith,

a psychological consultative examinet

gait, and pleasant and cooperative demeanor.

who reported Fatrington's uneven

Qr a1,9-20.) Fanington

was administeted the

Wechslet Adult Intelligence Scale-Founh Edition and tecorded primary index scores in the

"exttemely

lov/' to "botdedine" fange. Qt 421,-22.) The ALJ then

gave weight

to the

examiner's opinion that Farrington's scores may not reflect his ftue abilities. (Tr. 38, 40')

14

Farrington also was examined by

Dt. Ashley I(ing who noted that Fattington's

"judgment and insight appearfed] poot, [and] his thinking concrete."
Âssessment

of Functioning ("GÂF") was 35. Çr 45Q

Qr afi.)

-A.ithough

"fe]ffott was possibly a factor in pattington's] mental status," Qt.

His Global

Dr. I(ng noted that

453),

Dt. ICng concluded

that Farrington's "emotions, comprehension, and undetstanding fwere] barely adequate to
repetitive, simple

tasks." Çr. a54) The ALJ consideted the G,{.F of 35, "indicative of

setious limitations," but found that "this þas] based on only one visit and is inconsistent with

fFardngton's] daily activities." (Tr. 39 ) The ALJ furthet noted the question of whether
Farrington was providing his best efforts. Qd.) Additionally, as to the physical examination

of Dr. Amanda Lam,Farrington reported left knee

pain. Qr. a73.) Upon examination, Dr.

Lam provided several diagnosis for Fattington, but ultimately found that his ptognosis was
stable for each

condition. Çr475.) She also concluded thatFarrinston's ability to "sit,

stand, bft, carry, handle objects, hear, speak, and ttavel [were] not impaired," and his stamina
and ability to move about [was] mildly

impaired. Qd.) The ALJ weighed that in his decision.

Qt3e-40.)
In sum, the ALJ propedy evaluated the examining consultants. In

in the articulation of the
hatmless as the

exacî weight given

any event,

^fiy

eftot

to the state agency examining consultants is

AIJ's assessmerit of the state agency examining consultants is supported by

substantial evidence. Chandler u. Coluin, No. 1:15-CV-21,4,201.7 WL 653983, at*1.5 OJ.D.W.
Ya.Jan.31,,201.7) (unpublished) ("While the ALJ's explanation of weight assigned to [medical

providers were] not eloquently aticulated, the Court finds the ALJ's weight assignments of
15

these providers are suffìciently suppoted"), rEort and recommendation adopted, No. 1:15CV214,
2017

WL 653269 O{.D.W. Va. Feb.

1.6,201.7) (unpublished).

To the extent necessary, the

ALJ discounted the opinions such that there is a logical bddge between the opinions of the
state agency examining consultants and Plaintiffs

RtrC. Futthetmore, Plaintiff

argued any limitations not accounted for in the Fattington's

at*3. For these teasons,

has not

RFC. Nuera,201'3WL2433515,

her atgument fails.

To the extent PIu¡trff argues that the ALJ failed to tefetence sevetal exhibits containing
numerous medical records, this argument too

dgid requirement that the
Reid u. Comm'r of Soc.
1,206,1,21,1, (1,1th

AtJ

Sec., 7 69

fâils. Plaintiff readily admits that "there is no

specifically tefer to every piece of evidence in his decision,"

F.3d 861, 365 (4th Cu. 201,4) (citing D1er u. Barnhart, 395 F.3d

Cir. 2005). Plaintiff argues that the evidence not teferenced by the ALJ

"challenge some of the assertions made by the ,{.LJ in the decision." (Docket Et try 9 at20.)

The Court first notes that the ALJ specifically cited to recent medical records from Duke
University and concluded that they "showfed] no evidence of significant emotional issues
other fthan] those related to alcohol consumption." (Tr. 39.) Plaintiff points to the ALJ's
statement that Farrington "repoted depression, but þe] had not sought

E.ttry 9 at 20;

see also

with deptession.

treatment." (Docket

Tr. 40.) Throughout his decision, the ALJ noted Faffington's

(See, e.g.,

Tr. 37 (noting Fartington's testimony of his inability to wotk

"because of seizures . . . and depression"

^¡dFarrington

had crying spells three times weeldy");
depression and diagnosis

issues

repoting that"he was depressed and

Tt. 38 (noting Fardngton's

medical history of

of major depressive disotdet); Tt. 38 (noting Farrington's statement
16

of suffedng from a "deptessed mood" during

i¡

a consultative

examination)). Fatdngton was

fact prescribed medication for deptession in September 201,1.

own admission in November
(SeeTr.452

pr.I(ing

201,1,,

(see

Tr. 467), howevet, by his

he never sought mental health treatment fot this issue.ó

noting that Fattington had "nevet been psychiatically hospitalized and

ha[d] no other mental health treatment except substance abuse tteatment" and furthet noting

that Fardngton "reported [that] he ha[d] never had treatment for othet mental health
problems); Tr. 273 fatrington denying treatment fot deptession)).

failed

to point to

an1 specific piece

of

evidence þuportedly]

In sum, Plaintiff

not consideted by

Commissioner that might have changed the outcome of partington's] disability

769 F.3d at 865 (emphasis

in original). Moreover, in

"has

claim."

the

Reid,

several instances, the record

demonstrates that Farrington's mental status and mood: odented, logical thought processes,
cooperative, goal directed, normal mood andaffect, clear speech, intact and no focal weakness,

motot and sensory strength, and approptiately responsive to questioning. Qr. 274,289-90,
325-26,345,397 , 406,

47

5, 871., 905,947 , 98L,1078.) Thus, Plaintiff s claim fails.

C. Farington's Ability to Perform Daily Activities
Lastly, Plaintiff ârgues that the ALJ placed excessive weight upon Fatrington's ability

to perform daily activities which tesulted in a flawed

RFC. (Docket Entry 9 at 1,8-20.) The

Commissioner coriterids that Farington's daily activities were propedy accounted for, andthat
the ALJ did not rely solely on Fardngton's daily activities, but evaluated the recotd as a whole.

a The medial record also noted stability with the deptession medication. (SeeTt.9B7,
103s.)
1.7

Q)ocket Entty

1,1.

at1,9.) Pursuant to 20 C.F.R.

S

404.1529(c)(3), a claimant's daily activities

are one of sevetal factors that the ALJ must considet in making credibil-ity detetminations.

"While there clearly may be a difference between performing daily petsonal activities and
regulat work duties, a Social Secutity claimant's toutine non-wotk activities of life may support
a

finding thataresidual functional capaciqr to woik exists."

Keen a. Coluin,

No. 1:13CV00070,

201,4WL 2115203, at *3 CX/.D. Va. May 21,201.4) (unpublished) (citing Yost u. Barnhart, T9 F.

App'" 553, 555 (4th Cir. 2003)). Hete, the Á.LJ found tbat"panington'sl activities (cooking,
cleaning, and walking dogs) also belie

Farrington's statements

disability." Gr 40.) Plaintiff contends

that

in the hearing and outside of the hearing contadict the ,{.LJ's

summary of Fardngton's daily activities. Q)ocket E.rttT 9

at21,.) At the hearing Fardngton

testified to doing a little yatd wotk and helping his wife cook and clean. CIr. 59-60.) Plaintiff
also testified as to attending church twice a week.

Dr. Smith and Dr.

(Ir. 60.)

The

A{

noted the findings

ICng. Gr. 38-39.) Dr. Smith indicated that Farrington

reported walking

dogs, showedng, washing dishes, and preparing meals on the stove during a typical
38; rce aln

of

day. (ft.

Tr. 420.) Additionally, the AIJ noted that the report of Fardngton to Dt. I(ng

that Farrington performed daily activities of cooking, cleaning, caring fot personal needs and
watching television.

Çr

39;

see

al¡oTr. 452.)

Plaintiff atgues that the ALJ's summary is contradictory in that
Plaintiffs reports of Farrington's lost desites to do activities QeeTr.
of Fardngton's limitation of daily activities by his "tendencies to

41,9),

it

fails to tefetence

ot Dt. I(ng's noting

fall." Çr. 452.) Howevet,

the undersigned finds this argument unpersuasive. First, the summâry of daily activities by
1B

the ALJ is not contradictory. ,tny reports of ioss of desires to do activities, ot limitations due

to tendencies to fall does not suggestthat Farrington did not petform such activities. His
own testimony at the hearing demonsttates his acknowledgement of perfotming some daily

activities. (SeeTr.58-60.) Flere, the ALJ's teüance upon Fardngton's daily activities wâs not
excessive. Indeed, his daily activities wete only part of the considetation for Fatrington's
RFC; the ALJ gave "cateful consideratton of the evidence" and concluded that Fattington's
"statements concerning the intensity, persistence and limiting effects of

not entirely ctedible."

Gt 38.) See McIQithan

u. Coluin

þs]

No. 1:14CV688, 201,5WL 44931'32,

ât *7 (À4.D.N.C. July 23,201,5) (unpublished), report and recommendation adoþted,
201,5

symptoms fwere]

No. 1:14CV688,

WL 5178446 (^4.D.N.C. Sept. 4, 201,5) (unpublished) ([The ALJ's] ultimate conclusion

regarding the RFC was based

on the recotd as a whole, including the credibility

determination[.]"); Keen,201.4WL21.1,5203,atx3 ("[T]he ALJ's reliance on these activities was
only one minor aspect of the stated reasons fot his detetmination of fPlaintiffls P*FC]."); Barr
u.

Attrue, No. CIV.

(unpublished)

A.

1:07CV1,5, 2008

lfl-

833098, at *39 (l'{.D.!ø. Va. Mar. 27, 2008)

("[]he ALJ did not err in considering fc]laimant's

against the disability alleged.");

see

also Gathrie u. Astrwe,

every day activities as going

No. CIV. 4.3:07 CV

1.41.,2009 W-L

1.362509,^t*1.2 (l\.D.W. Ya.May 14,2009) (unpublished) ("Claimant's argument that the ALJ

discredited his subjective symptoms solely because the sevetity is not suppotted by objecuve
medical evidence is simply without

medt."). Ultimately, substantial evidence demonsttates

that Fardngton's activities of daily living support the ALJ's RFC findings. Yost,79 F. App'x

at 555 (finding that "[claimant's] activities of daily living, including caring fot his dogs,
19

watching television, visiting family and ftiends, attending chuch services, driving shott
distances, and occasional hunting support the ÂLJ's [RFC] detetmination" of a limited range

of light wotk). Thus, Plaintiffs argument fails.

V. CONCLUSION
For the reâsons stated hetein, this Court RECOMMENDS that Plaintiffs Motion fot
Judgment Reversing the Commissioner (Docket E.rtty 8) be

DENIED,

that Defendant's

Motion fotJudgment on the Pleadings (Docket Entry 10) be GRANTED, and that the final
decision of the Commissioner be upheld.

J

Uni

Match 1,,201,7
Durham, Notth Caroltna

20

L.

e bstet

States Magistrate Judge