CAMERON v. COLVIN
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 01/10/2017, that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the Pleadings [Doc. # 8 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 10 ] be GRANTED, and that this action be DISMISSED with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
SHERON CAMERON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
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)
1:15CV923
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Sheron Cameron (“Plaintiff”) brought this action pursuant to Sections 205(g)
and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying her claims for Disability Insurance Benefits and Supplemental Security Income under,
respectively, Titles II and XVI of the Act. The parties have filed cross-motions for judgment,
and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed her application for Disability Insurance Benefits (“DIB”) on
May 29, 2012, alleging a disability onset date of May 15, 2012. (Tr. at 12, 145-48.) 1 Her
application was denied initially (Tr. at 54-64, 76-79) and upon reconsideration (Tr. at 65-75,
86-93). Thereafter, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).
1
Transcript citations refer to the Sealed Administrative Transcript of Record [Doc. #6].
(Tr. at 94-96.) Shortly after Plaintiff’s hearing request, the Social Security Administration
(“SSA”) joined Plaintiff’s separate application for Supplemental Security Income Benefits
(“SSI”) with her DIB claim, consolidating the two claims for hearing. (Tr. at 245-46.) 2
Plaintiff attended the subsequent hearing March 27, 2014, along with her non-attorney
representative. (Tr. at 12.) An impartial vocational expert also appeared and testified. (Id.)
The ALJ ultimately issued a decision finding that Plaintiff was not disabled under the meaning
of the Act (Tr. at 22), and on September 3, 2015, the Appeals Council denied Plaintiff’s request
for review, thereby making the ALJ’s conclusion the Commissioner’s final decision for
purposes of judicial review (Tr. at 1-5).
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of [the] review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] if they are supported
by substantial evidence and were reached through application of the correct legal standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets omitted).
Plaintiff filed several applications for SSI, dated June 5, 2012 (Tr. at 149-54), December 17, 2012 (Tr. at 15564), and February 2, 2013 (Tr. at 165-71). It appears that these claims were joined with the DIB claim at the
hearing level because they shared a common issue. See SSA’s Program Operations Manual System (POMS),
DI 51501.001 Procedural Change for Subsequent Disability Applications Effective July 28, 2011,
https://secure.ssa.gov/appsl0/poms.nsf/lnx/0451501001; SSA’s Program Operations Manual System
(POMS), DI 12045.015 Claims Under Different Titles – Common Issue at the ALJ Hearing Level, https://
secure.ssa.gov/appsl0/poms.nsf/lnx/0412045015.
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2
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “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.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). 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
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to last for a continuous period of not less than 12 months.’” Id. (quoting 42 U.S.C.
§ 423(d)(1)(A)). 3
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more
of the impairments listed in Appendix I of the regulations,” then “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
“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program . . . 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).
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impairment, the ALJ must assess the claimant’s residual function[al] capacity (‘RFC’).” Id. at
179. 4 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. Id. at 179-80.
However, if the claimant establishes an inability to return to prior work, the analysis proceeds
to the fifth step, which “requires the Commissioner to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s] impairments.” Hines, 453
F.3d at 563. In making this determination, 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 Government cannot carry its “evidentiary burden of proving
that [the claimant] remains able to work other jobs available in the community,” the claimant
qualifies as disabled. Hines, 453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since her alleged onset date. Plaintiff therefore met her burden at step one of the
sequential analysis. At step two, the ALJ further determined that Plaintiff had two severe
“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’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.
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impairments: degenerative disc disease and depression. (Tr. at 14.) The ALJ found at step
three that none of these impairments met or equaled a disability listing. (Tr. at 14-16.) As part
of the analysis, the ALJ evaluated Plaintiff’s mental impairment and found that she had mild
restrictions in activities of daily living and social functioning, but moderate limitation in
concentration, persistence, and pace. (Tr. at 15.) The ALJ assessed Plaintiff’s RFC and
determined that she could perform light work with a further limitation to simple, routine,
repetitive tasks. (Tr. at 16.)
The ALJ next determined at step four of the analysis that all of Plaintiff’s past relevant
work exceeded her RFC. (Tr. at 20.) However, the ALJ found at step five that, given Plaintiff’s
age, education, work experience, RFC, and the testimony of the vocational expert as to these
factors, she could perform other jobs available in significant numbers in the national economy.
(Tr. at 21.) Therefore, the ALJ concluded that Plaintiff was not disabled under the Act. (Tr.
at 22.)
Plaintiff now argues that the ALJ erred in three respects. Specifically, she contends
that the ALJ (1) “erred by failing to consider Plaintiff’s Chronic Pain Syndrome as a severe
impairment” at step two, (2) “conducted a flawed . . . RFC assessment by giving less than
controlling weight to the opinion of Plaintiff’s treating physician,” Dr. Adam Goldstein, and
(3) “presented a legally insufficient hypothetical to the vocational expert . . . resulting in a
flawed step 5 finding that Plaintiff could adjust to other work.” (Pl.’s Br. [Doc. #9] at 1.)
Ultimately, none of Plaintiff’s contentions merit remand.
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A.
Chronic Pain Syndrome
Plaintiff first challenges the ALJ’s failure to include chronic pain syndrome among her
severe impairments at step two of the sequential analysis.
The ALJ instead identified
depression and degenerative disc disease as Plaintiff’s only two severe impairments. Plaintiff
argues that (1) an ALJ commits reversible error by failing to “adequately consider a claimant’s
pain disorder” and that (2) such error “was especially prejudicial to [Plaintiff’s] credibility,
because the pain disorder may well have helped to explain to the ALJ how [Plaintiff] could
allege, in good faith, the extremely severe pain that she experienced.” (Pl.’s Br. [Doc. #9] at
21-22.)
Notably, Plaintiff did not allege chronic pain syndrome as an impairment at any point
before or during her hearing. Moreover, “[a]s long as the ALJ determines that the claimant has
at least one severe impairment and proceeds to discuss all of the medical evidence, any error
regarding failure to list a specific impairment as severe at step two is harmless.” McClain v.
Colvin, No. 1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014) (citations
omitted). The question, therefore, is whether the ALJ adequately accounted for Plaintiff’s
chronic pain syndrome elsewhere in his decision.
In this case, Plaintiff does not specify what, if any, additional limitations her chronic
pain syndrome may require, beyond the limitations for her depression and degenerative disc
disease determined by the ALJ. Although several treatment notes in the present case list
chronic pain syndrome among Plaintiff’s diagnoses, these records reflect no symptoms or
treatment related to this impairment beyond plans to wean Plaintiff off of narcotic pain
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medication and/or refer her to a pain management clinic. 5 (See, e,g., Tr. at 432, 443-44, 479.)
The ALJ considered all of these medical records, including Plaintiff’s psychiatric treatment for
“complaints of depression and chronic pain” (Tr. at 18), and the ALJ considered at length
Plaintiff’s pain and the evidence of her mental impairments. In the circumstances, it does not
appear that the ALJ failed to adequately consider or account for Plaintiff’s chronic pain
syndrome.
Moreover, in partially discounting Plaintiff’s pain allegations, the ALJ did not rely solely
on a lack of objective medical evidence as Plaintiff suggests; he also found that Plaintiff failed
to “follow up with physical therapy as directed” (Tr. at 18, 323) and that she “has not required
such aggressive measures for symptom relief as use of steroid medication, epidural injections,
application of TENS equipment, or enrollment in a pain management program,” all of which
indicate that her “symptoms are not as intractable as alleged” (Tr. at 20). 6 In fact, Plaintiff
was noted to be feeling “much better” with “excellent pain control” as of November 6, 2013.
(Tr. at 19, 501.) The ALJ also noted that the medical evidence and observations at the hearing
“do not reveal any evidence of a change in motor tone or bulk such as disuse atrophy, or other
change in body habitus on constitutional appearance such as weight loss, which might be
It is unclear whether at least one of the ALJ’s references to chronic pain (Tr. at 18, 19), along with many of
the references to chronic pain in the record, concerns chronic pain syndrome or simply the ongoing nature of
the pain from Plaintiff’s back and neck impairment (see, e.g., Tr. at 18, 19, 304, 431, 439, 479). In other
words, Plaintiff’s medical providers often make no clear distinction between the physical and mental
components of her perceived pain. However, regardless of whether the source of Plaintiff’s pain was
primarily mental or physical, the ALJ clearly considered the impact of such pain when formulating the RFC.
5
Treatment notes indicate that Plaintiff participated in some physical therapy for a portion of the
recommended time, and that it provided some relief from her pain. However, Plaintiff admitted at her
hearing that she forgot to follow through with more recent recommendations for continued therapy. (Tr. at
18, 41-42, 318, 323, 441, 444, 445.)
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expected in a person whose activities are markedly restricted.” (Tr. at 20.) In addition, the
ALJ emphasized that the consultative examiner had concluded that Plaintiff “was noted to put
forth minimal effort in her consultative examination” (Tr. at 20, 17, 304, 307), and the ALJ
also noted that the medical record reflected “inconsistencies with range of motion testing and
measuring versus general observation when she was distracted” and “[w]hile talking, the
claimant was observed and exhibited increased cervical range of motion without symptoms of
head shaking and demonstrated decreased guarding” (Tr. at 17, 282, 286, 287), all of which
affected her credibility. 7 Ultimately, in limiting Plaintiff to light work and simple, routine,
repetitive tasks, the ALJ nevertheless gave Plaintiff “the benefit of the doubt” in light of her
hearing testimony and updated records, which indicated ongoing pain. (Tr. at 20, 41, 44.)
Plaintiff fails to show that this conclusion was unsupported by substantial evidence.
B.
Dr. Goldstein’s Opinion
Plaintiff next challenges the ALJ’s failure to assign controlling weight to Dr. Goldstein’s
opinion in accordance with 20 C.F.R. §§ 404.1527(c) and 416.927(c), better known as the
“treating physician rule.” This rule generally requires an ALJ to give controlling weight to the
well-supported opinion of a treating source as to the nature and severity of a claimant’s
impairment, based on the ability of treating sources to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
[which] may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.
During the hearing, Plaintiff also admitted that she had lied in her application for unemployment benefits
based on her difficult financial situation. (Tr. at 34.)
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7
20 C.F.R. §§ 404.1527(c) and 416.927(c). However, even if an opinion by a treating physician
is given controlling weight with respect to the nature and severity of a claimant’s impairment,
opinions by physicians regarding the ultimate issue of whether a plaintiff is disabled within the
meaning of the Act are never accorded controlling weight because the decision on that issue
is reserved for the Commissioner alone. 20 C.F.R. § 404.1527(d). In addition, if a treating
source’s opinion is not “well-supported by medically acceptable clinical and laboratory
diagnostic techniques or if it is inconsistent with the other substantial evidence in the case
record,” it is not entitled to controlling weight. Social Security Ruling (“SSR”) 96-2p, 1996
WL 374188, at *2; 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Craig, 76 F.3d at 590;
Mastro, 270 F.3d at 178. Instead, the opinion must be evaluated and weighed using all of the
factors provided in 20 C.F.R. §§ 404.1527(c)(2)(i)-(c)(6) and 416.927(c)(2)(i)-(c)(6), including
(1) the length of the treatment relationship, (2) the frequency of examination, (3) the nature
and extent of the treatment relationship, (4) the supportability of the opinion, (5) the
consistency of the opinion with the record, (6) whether the source is a specialist, and (7) any
other factors that may support or contradict the opinion.
Where an ALJ declines to give controlling weight to a treating source opinion, he must
“give good reasons in [his] . . . decision for the weight” assigned, taking the above factors into
account. 20 C.F.R. § 404.1527(c)(2). “This requires the ALJ to provide sufficient explanation
for ‘meaningful review’ by the courts.” Thompson v. Colvin, No. 1:09CV278, 2014 WL
185218, at *5 (M.D.N.C. Jan. 15, 2014) (quotations omitted); see also SSR 96-2p (noting that
the decision “must contain specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence in the case record, and must be sufficiently specific
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to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight”).
In the present case, Dr. Goldstein, one of Plaintiff’s treating physicians, completed a
“Multiple Impairment Questionnaire” on November 18, 2013. (Tr. at 502-09.) Dr. Goldstein
indicated that he had treated Plaintiff since February of 2013 and identified Plaintiff’s
diagnoses as “chronic pain, spinal stenosis, lumbro neuritis, HTN, tremor, depression[,] and
anxiety.” (Tr. at 502.) Dr. Goldstein offered a prognosis of “fair to poor.” (Id.) He estimated
the pain level in Plaintiff’s neck, back, and legs as 9-10 and her fatigue level as 8, and opined
that she could sit up to an hour and stand and walk less than one hour in an eight-hour
workday. (Tr. at 504.) He further opined that she could occasionally lift and carry between
zero and five pounds, would have significant limitations in repetitive reaching, handling,
fingering, or lifting due to “arthritis [of the] entire spine,” and would be markedly limited in
all upper body movements during the course of normal workday. (Tr. at 505.) Additionally,
due to Plaintiff’s depression and anxiety, Dr. Goldstein posited that Plaintiff was incapable of
even a low stress job. (Tr. at 507.)
The ALJ recounted these opinions in his decision, but assigned them little weight. In
doing so, the ALJ found that the extreme limitations posited by Dr. Goldstein’s were “not
consistent with his record of treatment and not supported by the evidence of record.” (Tr. at
19.) In particular, the ALJ noted that Plaintiff “has had normal neurological examinations
and minimal evidence of severe impairments.” (Tr. at 19.) Plaintiff now contends that the
ALJ failed to evaluate Dr. Goldstein’s opinion using all of the factors provided in 20 C.F.R.
§§ 404.1527(c)(2)(i)-(c)(6) and 416.927(c)(2)(i)-(c)(6), including adequately identifying the
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alleged inconsistencies between Dr. Goldstein’s opinion and his treatment records. (Pl.’s Br.
at 20.)
After a thorough review of the evidence relating to these factors, and the record as a
whole, the Court finds that the ALJ “provide[d] sufficient explanation for ‘meaningful review’”
in declining to assign Dr. Goldstein’s opinion controlling weight. Thompson v. Colvin, 2014
WL 185218, at *5. As the ALJ consistently notes throughout his decision, Plaintiff generally
displayed a full range of motion, normal strength, and normal gait. 8 (Tr. at 17-19.) The ALJ
noted that on examination by Dr. Hobbs at UNC, Plaintiff had full range of motion and failed
to follow up with physical therapy as directed, and Dr. Carneiro at UNC noted that Plaintiff
had full strength in her upper extremities, with no indication of myelopathy. (Tr. at 18.)
Plaintiff’s MRIs and x-rays reflected mild to moderate findings with no evidence of nerve
signal changes. (Tr. at 18, 19, 510-15.) Upon examining Plaintiff and reviewing her MRIs,
Dr. Sivakumar Jaikumar, a neurosurgeon, specifically found that Plaintiff’s cervical disk
degeneration “does not explain any of her symptomology that she exhibits” (Tr. at 19, 432),
and no provider, including Dr. Goldstein, recommended more than conservative care for
Plaintiff’s physical impairments, with recommendations including physical therapy and/or
pain management (see, e.g., Tr. at 18, 19, 320, 430, 432, 439, 444). The ALJ also noted that
the state agency physician who reviewed Plaintiff’s medical records concluded on January 3,
2013 that Plaintiff could lift up to 25 pounds frequently and 50 pounds occasionally, stand
and/or walk for about 6 hours in an 8 hour workday, sit for 6 hours in an 8 hour workday,
The ALJ noted that according to medical records, Plaintiff was seen ambulating to the exam room using a
walker, but “[s]he had no difficulty getting up and carrying the walker at times.” (Tr. at 19, 431.)
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frequently climb ladders, ropes, and scaffolds, and do unlimited pushing and pulling within
these restrictions. (Tr. at 19.)
In addition, the ALJ discussed at length the consultative evaluation by Dr. Amy
Johnson. The ALJ noted that according to Dr. Johnson, other than sadness about her sister’s
death three years earlier, Plaintiff did not report any symptoms suggestive of a depressive order
and did not endorse any symptoms suggestive of an anxiety disorder, bipolar disorder, or a
posttraumatic stress reaction. (Tr. at 17.) In addition, the ALJ noted Plaintiff’s daily activities,
as recounted to Dr. Johnson, and noted that according to Dr. Johnson, Plaintiff “did not
evidence any difficulty with mobility and her gross motor activity appeared to be intact. Her
fine motor activity appeared unremarkable. [She] did not demonstrate any difficulty with
understanding or following directions. She was able to communicate with the evaluator
effectively and with clear speech patterns. . . . Her flow of though was goal directed and
organized. Her thought content was unremarkable and there was no evidence of agitation,
impulse control, alertness, intoxication, or aggressive behavior. She did not report any
perceptual disturbances and none were evident.” (Tr. at 17.) Finally, the ALJ also emphasized
that according to Dr. Johnson, Plaintiff “occasionally put forth minimal effort during the
evaluation,” so even that assessment was an “underestimate of her current and optimal
functioning.” (Tr. at 17.)
Moreover, the record appears to contain only one actual treatment note by Dr.
Goldstein, dated September 24, 2013. 9 At that time, Dr. Goldstein recounted Plaintiff’s self-
9
The record reflects that Plaintiff saw other physicians during this period. (See, e.g., Tr. at 441-48.)
13
reported medical history and, under “physical examination,” simply noted that Plaintiff’s vital
signs were stable. He then took note of Plaintiff’s upcoming psychiatrist appointment,
referred her to neurology as she requested, and refilled her medications. (Tr. at 439.) Nothing
in this record supports the extreme limitations Dr. Goldstein later posited or even indicates
that he personally evaluated the severity of Plaintiff’s impairments or the extent of her
limitations prior to issuing his opinion.
The ALJ’s opinion also cites a November 6, 2013 treatment note from Dr. Brooke
Chidgey, an anesthesiologist board certified in pain medicine, indicating significant
improvement in Plaintiff’s pain levels. (Tr. at 19, 501.) Specifically, Dr. Chidgey noted that
Plaintiff was “now off oxycodone, [and] says she currently has excellent pain control with our
interventions and expresses her appreciation.” (Tr. at 501.) Dr. Chidgey expressed optimism
that Plaintiff’s pain would be well-controlled long-term on non-narcotics, and recommended
that Plaintiff continue gabapentin, lidocaine patches, flexeril, and Tylenol. She also indicated
that Plaintiff should start Meloxicam, with naproxen or ibuprofen noted as suitable
alternatives. (Id.) This report, issued just 12 days before Dr. Goldstein’s opinion, directly
contradicts the view that Plaintiff’s pain remained so intractable and debilitating as to preclude
all work activity. Similarly, the ALJ noted that discharge notes on November 6, 2013 likewise
reflected that Plaintiff was much better, with normal gait, no abnormal movements, and no
head tremor. (Tr. at 19, 457, 433-35.) Finally, the ALJ’s opinion also cites the treatment note
from Dr. Sivakumar Jaikumar dated December 2, 2013, just 15 days after Dr. Goldstein’s
opinion, noting the mild findings on the MRI, the lack of support for Plaintiff’s
symptomology, and the recommendation for conservative treatment. (Tr. at 19, 431-32.) Dr.
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Jaikumar’s treatment notes thus also contradict Dr. Goldstein’s view that Plaintiff’s condition
is so debilitating as to preclude all work activity. Substantial evidence therefore clearly
supports the ALJ’s decision to accord Dr. Goldstein’s opinion less than controlling weight.
C.
Hypothetical Question
Finally, Plaintiff contends that the ALJ’s hypothetical question to the vocational expert
and the RFC on which it was based were flawed. Specifically, Plaintiff claims that the RFC
and hypothetical question in this case fail to adequately encompass the ALJ’s finding of
moderate limitations in concentration, persistence, and pace at step two of the sequential
analysis as required by Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015).
In Mascio, the Fourth Circuit held that “an ALJ does not account for a claimant’s
limitations in concentration, persistence, and pace by restricting the hypothetical question to
simple, routine tasks or unskilled work.” 780 F.3d at 638 (quotation omitted). This is because
“the ability to perform simple tasks differs from the ability to stay on task. Only the latter
limitation would account for a claimant’s limitation in concentration, persistence, or pace.”
The Fourth Circuit further noted that
[p]erhaps the ALJ can explain why Mascio’s moderate limitation in
concentration, persistence, or pace at step three does not translate into a
limitation in Mascio’s residual functional capacity. For example, the ALJ may
find that the concentration, persistence, or pace limitation does not affect
Mascio’s ability to work, in which case it would have been appropriate to
exclude it from the hypothetical tendered to the vocational expert. But because
the ALJ here gave no explanation, a remand is in order.
Id. (internal citation omitted).
Here, as in Mascio, the ALJ found Plaintiff moderately limited in terms of
concentration, persistence, or pace, but included a limitation to simple, routine, repetitive tasks
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as the sole mental restriction in his RFC. (Tr. at 15-16.) However, immediately after noting
Plaintiff’s moderate concentration limitations at step two, the ALJ in this case clarified that,
although Plaintiff “has had some difficulties in this area at times . . . [she] is able to complete
tasks in a timely manner.” (Tr. at 15.) In other words, the ALJ explicitly found that Plaintiff’s
moderate difficulties in concentration, persistence or pace did not interfere with her ability to
complete tasks in a timely manner and did not merit specific, additional RFC restrictions
regarding her ability to stay on task.
Furthermore, the ALJ further discussed Plaintiff’s ability to concentrate and follow
instructions in his RFC analysis.
In particular, he recounted findings from Plaintiff’s
September 5, 2012 consultative psychological evaluation by Dr. Amy Johnson, Ph.D.,
indicating that Plaintiff “denied experiencing any periods of confusion, or struggles with
following directions.” (Tr. at 17, 304.) Dr. Johnson ultimately opined that Plaintiff’s
“condition did not prevent her from being able to understand, retain, and follow instructions,
to perform simple, routine, and repetitive tasks, or to maintain concentration, persistence and
pace to perform complex and more difficult tasks.” (Tr. at 17, 307.) Notably, Plaintiff did
report increased forgetfulness to both Dr. Johnson and treating psychiatrist Dr. Elena Perea,
but the ALJ noted that Plaintiff also explained to Dr. Johnson “that this could be because she
does not care to remember.” (Tr. at 17, 18, 304, 478.) In addition, the ALJ noted that neither
of the state agency consultants in this case found that Plaintiff had more than mild difficulties
in any functional area or required any mental RFC limitations. (Tr. at 19, 58, 69.) Nevertheless,
“giving [Plaintiff] the benefit of the doubt,” the ALJ noted that “the evidence received at the
hearing level including testimony and updated records [which] indicate a more restrictive light
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exertion with limitation to simple, routine, repetitive tasks.” (Tr. at 20.) Because the ALJ
properly explained the basis for his mental RFC restrictions and conveyed this RFC to the
vocational expert (Tr. at 51), the Court finds no error under Mascio.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment on the Pleadings [Doc. #8]
be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #10] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 10th day of January, 2017.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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