ANDUJAR v. COLVIN

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 12/28/2016, RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that judgment be entered for Defendant.(Daniel, J)

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

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

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1:15CV1093

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Aleida Andujar, 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 Plaintiff’s

Income (“SSI”).

claim

(Docket Entry 2.)

for

Supplemental

Security

Defendant has filed the

certified administrative record (Docket Entry 8 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 12; see also Docket Entry 11 (Plaintiff’s Memorandum),
Docket Entry 13 (Defendant’s Memorandum)).

For the reasons that

follow, the Court should enter judgment for Defendant.

I.

PROCEDURAL HISTORY
(Tr. 263-68.)1

Plaintiff applied for SSI.
that

application

initially

(Tr.

57-69,

Upon denial of
86-89)

and

on

reconsideration (Tr. 70-85, 97-106), Plaintiff requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. 107-10).
Plaintiff, her attorney, and a vocational expert (“VE”) attended
the hearing.

(Tr. 28-56.)

The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act.

(Tr. 14-27.)

The Appeals Council thereafter denied Plaintiff’s request for
review

(Tr.

1-6,

13),

thereby

making

the

ALJ’s

ruling

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] has not engaged in substantial gainful
activity since June 7, 2012, the application date.
2.
[Plaintiff] had the following severe impairments:
HIV infection; obesity; and schizophrenia.
. . .
3.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .

1

Although Plaintiff claimed March 1, 2001 as her onset date of disability (see
Tr. 263), eligibility for SSI payments begins in the month following the date of
application. See 20 C.F.R. § 416.335. Thus, the ALJ’s decision covers the time
period from the protective filing date of Plaintiff’s SSI application, June 7,
2012, to the date of the ALJ’s decision, June 18, 2014. (See Tr. 17.)

2

4.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . with mental
restrictions. [Plaintiff] can lift/carry and push/pull 50
pounds occasionally and 25 pounds frequently. She can
sit, stand, and walk for up to six hours each in an
eight-hour workday.
She can perform simple, routine,
repetitive tasks in a non-production setting. She can
have
occasional
interaction
with
coworkers
and
supervisors. She can have incidental interaction with
the public.
. . .
5.

[Plaintiff] has no past relevant work.

. . .
9.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [] Act, since June 7, 2012, the date the
application was filed.
(Tr.

19-26

(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).

Plaintiff has not established entitlement to relief under the
extremely limited review standard.

3

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
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

4

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)).2

“To

regularize

the

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

condition.”

Id.

“These

2

regulations

establish

a

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

5

‘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).3

A finding adverse to the claimant at any of

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

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

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

3

“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

the ALJ must assess the claimant’s residual functional 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.
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 567.5

4

“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.

5

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

7

B.

Assignments of Error

Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “the ALJ [failed] to fulfill[] his duty, under 42 U.S.C.
[§] 423(d)(5)(B), to consider all evidence available in the case
record and fully develop the complete medical history” (Docket
Entry 11 at 3 (bold font omitted)); and
(2) “the ALJ’s [RFC] [did not] compl[y] with the requirement,
under Social Security Ruling 96-8p, to perform a function-byfunction assessment” (id. at 8 (bold font omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 13 at 5-14.)
1. Duty to Develop the Record
In Plaintiff’s first assignment of error, she contends that
“[t]he ALJ failed to fulfill his duty to consider all evidence
available in the case record and fully develop the complete medical
history.”

(See Docket Entry 11 at 3.)

In particular, Plaintiff

asserts that the ALJ “acknowledged [during the hearing] that there
was medical evidence of record . . . that needed translation” from
Spanish into English, and stated that he would “try to get those
[records] translated after the hearing.” (Id. at 4 (citing Tr. 3034).)

According to Plaintiff, the ALJ thereafter “failed to

supplement the record with a translation of the medical evidence.”

8

(Id.) Plaintiff further maintains that, following the hearing, her
attorney “made a written request to the ALJ” that “[was] tantamount
to a renewed request to have the foreign records translated and
made a part of the administrative record.”
added) (citing Tr. 527).)

(Id. at 4-5 (emphasis

Plaintiff posits that the ALJ’s failure

to translate the documents constitutes “harmful error because it
strongly suggests that the ALJ did not take this evidence of
inpatient psychiatric hospitalization and mental health treatment
into consideration, thereby failing to complete a full and fair
review to satisfy his duties under the administrative review
process.”

(Id. at 5.)

Plaintiff’s arguments fall short.

“[T]he ALJ has a duty to explore all relevant facts and
inquire into the issues necessary for adequate development of the
record, and cannot rely only on the evidence submitted by the
claimant when that evidence is inadequate.”

Cook v. Heckler, 783

F.2d 1168, 1173–74 (4th Cir. 1986) (emphasis added) (citations
omitted).

The ALJ discharges his duty to develop the record where

“the record

is

adequate

disability claim.”

to

make

a

determination

regarding

a

France v. Apfel, 87 F. Supp. 2d 484, 490 (D.

Md. 2000); accord Kersey v. Astrue, 614 F. Supp. 2d 679, 693 (W.D.
Va. 2009).
failed

to

Accordingly, in order to demonstrate that the ALJ
develop

the

record,

a

claimant

must

show

that

“evidentiary gaps” existed that prejudiced his or her rights,
Blankenship v. Astrue, No. 3:11-cv-00005, 2012 WL 259952, at *13

9

(S.D.W. Va. Jan. 27. 2012) (unpublished) (citing Marsh v. Harris,
632 F.2d 296, 300 (4th Cir. 1980)), and that he or she “could and
would have adduced evidence that might have altered the result,’”
id. (quoting Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000)).
The ALJ in this case fulfilled his duty to develop the record.
As

an

initial

matter,

the

ALJ

did

not

unequivocally

“acknowledge” at the hearing that medical evidence of record
remained untranslated.

The following discussion occurred between

the ALJ and Plaintiff’s counsel:
ALJ:

. . . [A]fter the hearing there are some
things that have not been translated. And I’m
going to try to get those translated after the
hearing.

ATTY:

That’s what I wanted to talk about.

. . .
Like for example, in Exhibit 8F -. . .
–- down in the axis one, two, three, four, and
five, the translator there wrote illegible. I
just wanted to tell you I could read it. They
were ICD-9 and DSM codes.6 They were numbers.
So they’ll say like 290.00. And this person
couldn’t read it, but I could.
. . .

6

ICD-9 refers to the International Statistical Classification of Diseases and
Related Health Problems (World Health Org. 9th rev. 1975), which provides an
international system of diagnostic codes for classifying diseases.
See
https://www.cdc.gov/nchs/icd/icd9.htm (last visited Dec. 15, 2016). Similarly,
DSM refers to the Diagnostic and Statistical Manual of Mental Disorders, which
“defines and classifies mental disorders.”
See www.dsm5.org/psychiatrists/
practice/dsm (last visited Dec. 15, 2016).

10

ALJ:

Why don’t you submit the numbers then?

ATTY:

Okay.

. . .
ALJ:

[S]ubmit that and then we’ll try to figure
that out.
But some of the other things, I
guess, just have not been translated yet, so.

ATTY:

Okay. Your clerk told me she sent everything
out for translation, so I was under the
impression these were even though they all say
illegible by the government translator.

ALJ:

Well, for example, it says 9F, 10F needs to be
translated.
And 11F.
You’re saying they
don’t need to be translated? . . .
If you
look at the case documents.
Well, let me
look. I mean, some of it’s in Spanish. . . .
And if [my clerk] can persuade me that they’ve
been
translated, I’d
like to
see
the
translations.

(Tr. 30-34 (emphasis added)).

As this exchange reveals, the ALJ

initially believed that some of the medical evidence of record had
not been translated from Spanish into English (see Tr. 30-31, 33
(referring to Exhibits 9F through 11F)); however, Plaintiff’s
counsel advised the ALJ that his clerk had “sent everything out for
translation” (Tr. 33). Thereafter, the ALJ indicated that he would
confirm whether any records remained needing translation with his
clerk.

(See id.)

Moreover,

the

subsequent

correspondence

from

Plaintiff’s

counsel to the ALJ enclosing counsel’s interpretation of the ICD-9
and DSM codes (and their corresponding diagnoses) (see Tr. 527-72),
does not, contrary to Plaintiff’s assertion in brief (see Docket

11

Entry 11 at 5), constitute a “renewed request” that the ALJ procure
the translation of additional medical evidence from Spanish into
English.
Regardless of the ALJ’s initial statements at the hearing
regarding the need for further translation, the record conclusively
demonstrates that English language translations exist for all of
the Spanish language medical evidence of record.

(See Tr. 331-38,

389-408; compare Tr. 409-11, with Tr. 453-55; Tr. 412-16, with Tr.
456-58; Tr. 417-22, with Tr. 459-64.)

Thus, the ALJ did not

neglect his duty to fully and fairly develop the record by failing
to secure the translation of medical evidence of record.
Although translated versions of the medical evidence exist,
the

translator

handwritten

apparently

sections

of

the

could

not

Spanish

decipher
documents.

many

of

the

Thus,

in

the

English-language versions of those documents, the translator often
inserted the word “[ILLEGIBLE].”
65.)

(See Tr. 331-38, 389-408, 453-

Thus, even though not argued by Plaintiff’s counsel in brief

(see Docket Entry 11 at 3-11) (but acknowledged by Plaintiff’s
counsel at the hearing (see Tr. 33)), the undersigned will address
whether those legibility issues warrant relief.
Even given the illegible portions of the medical records,
Plaintiff has established no basis for remand, because Plaintiff
has not shown that resulting “evidentiary gaps,” if any, prejudiced
her rights. See Blankenship, 2012 WL 259952, at *13 (citing Marsh,

12

632

F.2d

at

300).

Despite

the

areas

the

translator

found

illegible, the mental health treatment records in Exhibits 1F, 8F,
and 13F (which contains translated records from Exhibits 9F and
10F) still reflect, in most cases, (1) the dates of treatment; (2)
the results of mental status examinations; (3) diagnoses;7 and (4)
Global Assessment of Functioning (“GAF”)8 scores. (See Tr. 331-38,
389-408, 456-64.)9

Moreover, the ALJ ordered physical and mental

consultative examinations (see Tr. 339-42, 344-47), and relied upon
the opinions of two state agency psychologists as to Plaintiff’s
mental RFC (Tr. 25, 65-67, 79-81).
Under such circumstances, the ALJ had a sufficiently developed
record to render a disability determination. See Fuerst v. Colvin,
No. 1:15CV1054, 2016 WL 5957602, at *3 (M.D.N.C. Oct. 13, 2016)
(unpublished) (Webster, M.J.) (“[E]ven assuming the records in
question are only partially legible, the record still permits a

7

Although the translator found many of the ICD-9 and DSM diagnosis codes
illegible (see generally Tr. 389-408, 459-64), as discussed above, Plaintiff’s
counsel at the hearing advised the ALJ he could read many of the codes (see Tr.
31-32) and, in fact, provided many of those codes and the corresponding diagnoses
in a communication to the ALJ after the hearing (Tr. 527-72).

8

The GAF is a numeric scale from 0 to 100 representing a clinician’s judgment
of an individual’s social, occupational and school functioning “on a hypothetical
continuum of mental health-illness.” American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) (“DSM-IV-R”).
A new edition of the leading treatise discontinued use of the GAF. See American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 16 (5th
ed. 2013).

9

Exhibit 9F reflects Plaintiff’s hospitalization in Puerto Rico for back pain.
(See Tr. 409-11, 453-55.)
Plaintiff does not allege that a back impairment
contributes to her disability (see Tr. 296; see also Docket Entry 11 at 3-12),
and thus Plaintiff has not demonstrated how any illegible portions of Exhibit 9F
prejudiced her claim for benefits.

13

disability determination. This is because, for example, the agency
arranged

for

[the

p]laintiff

to

participate

physical and mental health examinations.

in

consultative

Thus, the record was

adequately developed to allow the ALJ’s determination.”

(internal

citation omitted)), recommendation adopted, slip op. (M.D.N.C. Nov.
15, 2016) (Eagles, J.); Field v. Commissioner of Soc. Sec., No.
6:11-CV-49,

2013

WL

693106,

at

*4

(W.D.

Va.

Feb.

6,

2013)

(unpublished), recommendation adopted, No. 6:11-CV-00049, 2013 WL
693094 (W.D. Va. Feb. 26, 2013) (unpublished) (“The ALJ provided
for

the

evaluation

of

consultative physicians.

[the

plaintiff’s]

condition

through

The ALJ had an adequately developed

record from which he could evaluate the claim presented . . . .”);
Jones v. Astrue, No. CIV. SKG-09-1683, 2011 WL 5833638, at *15 (D.
Md. Nov. 18, 2011) (unpublished) (“[E]ven with the illegible
records provided by [the] plaintiff’s doctor, the record includes
substantial information on each of [the] plaintiff’s infirmities,
.

.

.

including

hospitalization,

doctor’s

visits,

and

prescriptions. Accordingly, the record was adequately developed to
allow review and decision.”).
In sum, Plaintiff’s first assignment of error entitles her to
no relief.
2. Function-by-Function Assessment
In Plaintiff’s second and final issue on review, she contends
that, in formulating the RFC, the ALJ failed “to carry out the

14

function-by-function assessment of [Plaintiff’s] ability to sustain
the basic mental demands of competitive, remunerative unskilled
work” required by Security Ruling 96-8p, Policy Interpretation
Ruling Titles II and XVI: Assessing Residual Functional Capacity in
Initial Claims, 1996 WL 374184 (July 2, 1996) (“SSR 96-8p”).
(Docket Entry 11 at 9.) In that regard, Plaintiff asserts that the
ALJ’s “[f]ailure to complete the function-by-function assessment in
this case caused the ALJ to overlook limitations in [Plaintiff’s]
capacity to stay on task, despite his earlier conclusion that
[Plaintiff]

has

‘moderate

difficulties

persistence, or pace [(“CPP”)].’”

in

(Id. at 10.)

concentration,
According to

Plaintiff, the ALJ’s restrictions in the RFC to “‘simple, routine,
repetitive tasks in a non-production work setting [with] occasional
interaction

with

coworkers

and

supervisors

[and]

incidental

interaction with the public’” do not adequately address the ALJ’s
finding at step three of the SEP that Plaintiff suffered moderate
deficits in CPP. (Docket Entry 11 at 10-11 (quoting and citing Tr.
20, and Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015)
(observing that “[t]he 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]”).) Plaintiff’s
contentions miss the mark.

15

Indeed, the Fourth Circuit has held 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.

However, in this

case, the ALJ included a restriction in the RFC “reasonably related
to a moderate limitation in Plaintiff’s ability to stay on task,”
Grant v. Colvin, No. 1:15CV00515, 2016 WL 4007606, at *6 (M.D.N.C.
July 26, 2016) (unpublished), recommendation adopted, slip op.
(M.D.N.C. Sept. 21, 2016) (Osteen, C.J.), by restricting Plaintiff
to simple tasks in a non-production work setting” (Tr. 20 (emphasis
added)).

In that regard:

[T]he 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 [the p]laintiff’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 stay on task,
i.e., a restriction to “non-production oriented” work,
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.

16

Grant, 2016 WL 4007606, at *9; see also id. At *7-9 (discussing
authority addressing “non-production” restrictions). Accordingly,
the ALJ explicitly considered and accounted for Plaintiff’s ability
to “stay on task” in the RFC, which the Mascio court distinguished
from the ability to perform simple tasks, see Mascio, 780 F.3d at
638.10
Accordingly, Plaintiff’s second assignment of error fails as
a matter of law.
III.

CONCLUSION

Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on

the

Pleadings

(Docket

10

Entry

10)

be

denied,

that

Moreover, in determining Plaintiff’s mental RFC, the ALJ gave “great weight”
to the opinions of the state agency psychologists. (Tr. 25.) Notably, each
psychologist assessed Plaintiff with moderate difficulties in CPP (see Tr. 62,
76); however, they each concluded that Plaintiff remained able to sustain
concentration and attention long enough to perform simple, routine, and
repetitive tasks in a non-production environment (Tr. 66, 80). The ALJ’s express
reliance on these opinions regarding Plaintiff’s ability to stay on task provides
further support for his mental RFC and renders Mascio distinguishable. See Del
Vecchio v. Colvin, No. 1:14CV116, 2015 WL 5023857, at *6 (W.D.N.C. Aug. 25, 2015)
(unpublished) (“Here, unlike in Mascio, the ALJ discussed substantial record
evidence in determining [the claimant’s] mental RFC, and his explicit reliance
on [the state agency consultant’s] opinion adequately explains why [the
claimant’s] limitations in [CPP] did not translate into any additional
restrictions . . . . Therefore, the Court is not left to guess at the ALJ’s
decision-making process.”).

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Defendant’s Motion for Judgment on the Pleadings (Docket Entry 12)
be granted, and that judgment be entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 28, 2016

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