SCOTT v. COLVIN
Filing
20
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/07/2017, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment (Docket Entry 12 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 17 ) be granted, and that this action be dismissed with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LINDA C. SCOTT,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
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)
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)
)
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)
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)
1:16CV48
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Linda C. Scott, 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
claims
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)
Defendant has filed the certified administrative record
(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 12, 17; see also Docket Entry 13
(Plaintiff’s Brief); Docket Entry 18 (Defendant’s Memorandum);
Docket Entry 19 (Plaintiff’s Reply Brief)).
For the reasons that
follow, the Court should enter judgment for Defendant.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
January 30, 2009. (Tr. 266-73.) Upon denial of those applications
initially (Tr. 125-64, 209-13) and on reconsideration (Tr. 165-208,
214-22),
Plaintiff
requested
a
hearing
de
Administrative Law Judge (“ALJ”) (Tr. 223-24).
novo
before
an
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing,
during which Plaintiff amended her onset date to April 27, 2012,
the day after an ALJ decision denying her prior claims for DIB and
SSI.
(See Tr. 40, 42, 285, 98-111.)
The ALJ subsequently ruled
that Plaintiff did not qualify as disabled under the Act. (Tr. 1031.) The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 7-9, 362-63), 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] meets the insured status requirements of
the [] Act through March 31, 2014.
2.
[Plaintiff] has not engaged in substantial gainful
activity since April 27, 2012, the amended onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
multi-level degenerative disc disease without nerve root
impingement; fibromyalgia; coronary artery disease;
hypertension; bilateral carpal tunnel syndrome, statuspost release surgery; sarcoidosis; chronic obstructive
pulmonary disease/asthma; post-traumatic stress disorder;
panic disorder; somatization disorder; depression;
bipolar
disorder;
personality
disorder;
2
cephalgia/migraine headaches secondary to cerebrospinal
fluid leak; diabetes mellitus; gout; fatty liver;
gastroesophageal reflux disease; sleep apnea; obesity.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . with the following
provisos: [Plaintiff] is limited to frequent use of the
upper extremities bilaterally for pushing, pulling,
operating hand controls, handling, fingering, and /or
feeling. [Plaintiff] is limited to occasional use of her
left lower extremity for pushing, pulling, and/or
operating
foot
controls.
[Plaintiff]
must
avoid
concentrated exposure to pulmonary irritants, such as
fumes, odors, dusts, gases, poor ventilation and the
like, as well as concentrated exposure to temperature
extremes of heat and humidity. [Plaintiff] must avoid
even moderate exposure to workplace hazards, such as
dangerous moving machinery and unprotected heights.
[Plaintiff] can occasionally climb ramps and stairs, but
never ladders, ropes or scaffolds. [Plaintiff] can
occasionally balance, stoop, kneel, crouch, and/or crawl.
[Plaintiff] can understand and perform simple, routine,
repetitive tasks and maintain concentration, persistence
and pace to stay on task for 2-hour periods over the
course of a typical 8-hour workday in order to perform
such tasks. [Plaintiff] requires a low stress work
setting, which, in addition to the nature of the work
being performed, is further defined to mean no
production-pace or quota-based work, rather a goaloriented job primarily dealing with things as opposed to
people, with no more than occasional work with the public
as a component of the job, and no more than occasional
changes in the work setting. [Plaintiff] requires a
sit/stand option that allows for the change of position
at 30-minute intervals, in addition to normal work
breaks.
. . .
3
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. 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.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from April 27, 2012, through the
date of this decision.
(Tr.
15-31
(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.
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
4
(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
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).
5
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
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
2
The Act “comprises two disability benefits programs. [DIB] 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).
6
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,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
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).
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.,
(continued...)
7
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
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “[t]he ALJ did not properly assess the opinions of two
state agency psychological consultants that [Plaintiff] may have
some limitations in maintaining concentration for two hours at a
time” (Docket Entry 13 at 5 (bold font omitted)); and
4
(...continued)
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.”).
8
(2) “[t]he ALJ did not account for [Plaintiff’s] moderate
difficulties in concentration, persistence and pace [(“CPP”)] in
his RFC assessment” (id. at 9 (bold font omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 18 at 5-17.)
1. State Agency Psychological Consultants’ Opinions
In Plaintiff’s first assignment of error, she contends that
“[t]he ALJ did not properly assess the opinions of two state agency
psychological
consultants
that
[Plaintiff]
may
have
some
limitations in maintaining concentration for two hours at a time.”
(Docket Entry 13 at 5 (bold font omitted).)
Plaintiff
maintains
that
the
ALJ’s
More specifically,
“statement
that
the
[consultants’] mental assessments were ‘vague in some respects’ is
itself so vague as to frustrate meaningful review.”
(quoting Tr. 28).)
his
RFC
(Id. at 7
Plaintiff points out “that the ALJ included in
assessment
limitations
related
to
two
of
the
three
assessments he found ‘vague in some respects’” (id. at 7-8 (quoting
Tr. 28)), i.e., “the ALJ limited [Plaintiff] to only occasional
contact with the public” in response to the consultants’ opinion
that Plaintiff “‘may have some limitations responding appropriately
to others’” (id. at 8 (citing Tr. 20, 21 and referencing Tr. 139,
158, 181, 202)), and “limited [Plaintiff] to low-stress work” due
to
the
consultants’
opinion
that
9
Plaintiff
“may
have
some
limitations responding appropriately to workplace stressors” (id.
(citing Tr. 20 and referencing Tr. 140, 159, 182, 203)). Plaintiff
further argues that, “[b]y crediting [the consultants’] opinions
with regard to workplace stressors and interaction with others, but
discounting
their
opinions
with
regard
to
maintaining
concentration, the ALJ’s use of vagueness as a basis for giving
these opinions partial weight lacks any explanatory power.”
(Id.)
According to Plaintiff, the Court recently “faced a similar fact
pattern” and remanded because the ALJ’s “‘failure to explain why
[the plaintiff] [could] maintain focus throughout the workday [wa]s
not a harmless error.’”
(Id. at 8-9 (quoting Pulliam v. Colvin,
No. 1:13CV176, 2106 WL 843307, at *5 (M.D.N.C. Mar. 1, 2016)
(unpublished) (Osteen, Jr., C.J.)).)
Plaintiff’s arguments miss
the mark.
As
an
initial
matter,
the
Court
distinguishable from the instant case.
should
find
Pulliam
In that case, the ALJ
failed to weigh the opinion of a consultative examiner that the
claimant would have “difficulty with tasks involving concentration
and focus,” Pulliam, 2016 WL 843307, at *4, but concluded in the
RFC assessment that the claimant retained “the ability to maintain
focus
throughout
the
workday,”
id.
The
Court
noted
that,
“[w]ithout an explanation from the ALJ to reconcile this apparent
discrepancy, the undersigned is unable to determine if the ALJ
intended to give little weight to [the consultative examiner’s]
10
opinion or if the ALJ inadvertently overlooked key aspects of it,”
and concluded that the ALJ’s “failure to explain why [the claimant]
[could] maintain focus throughout the workday is not a harmless
error.”
Id.
In contrast, the ALJ here did expressly weigh the state agency
psychological consultants’ opinions as follows:
The mental assessments of the State agency psychological
consultants determining [Plaintiff] capable of short,
simple instructions with some limit[ed] ability to
maintain concentration for 2 hours at a time, and
respond[] appropriately to others and to workplace
stressors due to mood, anxiety, and personality
disorders[,] are given partial weight.
However, the
mental assessments are vague in some respects and the
undersigned finds [Plaintiff] more limited in other
respects based on the overall record evidence.
(Tr. 28 (emphasis added).)
Although Plaintiff challenges the
sufficiency of the ALJ’s above-quoted rationale for according the
opinions partial weight, the ALJ’s express weighing of the opinions
in question distinguishes this case from Pulliam.
Similarly, Plaintiff’s objection that the ALJ’s description of
the state agency consultants’ opinions as “vague in some respects”
(id.) qualifies itself as vague (see Docket Entry 13 at 7) lacks
merit. The state agency consultants’ findings that Plaintiff “may”
experience “some” limitation in various work-related abilities (Tr.
139-40, 158-59, 181-82, 202-03) failed to provide concrete opinions
as to (1) whether Plaintiff actually experienced limitations in
those abilities; or (2) the degree of any such limitations.
See
Isaacs v. Colvin, No. 1:12CV777, 2013 WL 6230352, at *5 (S.D. Ohio
11
Dec. 2, 2013) (unpublished) (holding ALJ did not err in discounting
some of treating physician’s opinions as “vague,” where physician
found that the claimant “may be able to stoop to some extent with
some limitations, . . . [but] did not explain the limitations in
stooping that Plaintiff ‘may’ have”), recommendation adopted sub
nom Isaacs v. Commissioner of Soc. Sec., No. 1:12CV777, 2014 WL
1271030 (S.D. Ohio Mar. 27, 2014) (unpublished).
Further, Plaintiff proceeds from a faulty premise in arguing
“that the ALJ included in his RFC assessment limitations related to
two of the three assessments he found ‘vague in some respects,’”
but omitted a limitation relating to the ability to maintain
concentration (Docket Entry 13 at 7-8 (quoting Tr. 28); see also
id. at 13 (asserting that “the ALJ never provided an adequate
explanation for why his own step three finding that [Plaintiff] had
moderate limitations in [CPP] did not result in any limitation in
concentration in the RFC” (emphasis added))).
The ALJ’s RFC
explicitly limits Plaintiff’s ability to maintain CPP and stay on
task to two-hour periods of time.
(See Tr. 20.)
Plaintiff
contends that such a finding amounts to no restriction because it
effectively treats Plaintiff as if she “‘could stay on task for an
eight[-]hour workday’” (Docket Entry 13 at 11 (quoting Sizemore v.
Colvin, No. 5:15CV53-MOC, 2016 WL 483140, at *3 (W.D.N.C. Feb. 5,
2016) (unpublished)), appeal pending, No. 16-1301 (4th Cir.),
because “‘customary [work] breaks . . . occur approximately every
12
two hours’” (id. (quoting Hawley v. Astrue, No. 1:09CV246, 2012 WL
1268475,
at
*7
(M.D.N.C.
Apr.
16,
2012)
(unpublished)),
recommendation adopted, 2012 WL 3584340 (M.D.N.C. Aug. 20, 2012)
(Beaty, J.) (unpublished))).
However, the ALJ did not find that
Plaintiff maintained the ability to stay on task for two-hour
periods to perform all manner of work; rather, the ALJ found that
Plaintiff could stay on task for two-hour blocks of time only when
performing “simple, routine, repetitive tasks . . . [in] a low
stress work setting, which, in addition to the nature of the work
being performed, is further defined to mean no production-pace or
quota-based work, rather a goal-oriented job primarily dealing with
things as opposed to people, with no more than occasional work with
the public as a component of the job, and no more than occasional
changes in the work setting.”
(Tr. 20-21.)
Thus, the ALJ clearly
did include a limitation in the RFC to account for the state agency
psychological consultants’ (vague) opinion regarding Plaintiff’s
ability to maintain concentration.
Moreover, the ALJ’s rationale, when considered in the context
of the ALJ’s decision as a whole, does not frustrate this Court’s
ability to engage in meaningful judicial review. Significantly, as
in another recent case, see Wall v. Colvin, No. 1:15CV1089, 2016 WL
5360682,
at
*6
(M.D.N.C.
Sept.
23,
2016)
(unpublished),
recommendation adopted, slip op. (M.D.N.C. Oct. 14, 2016) (Osteen,
Jr.,
C.J.),
a
comparison
of
the
13
state
agency
psychological
consultants’ assessments with the ALJ’s mental RFC makes clear the
manner in which ALJ accounted for those assessments.
(Compare Tr.
20-21, with, Tr. 139-40, 158-59, 181-82, 202-03).
Plaintiff,
however, challenges any analogy to Wall on three separate bases.
(See Docket Entry 19 at 3-5.)6
First, Plaintiff argues that “[h]ere, unlike Wall, the ALJ
explicitly
discussed
his
RFC
assessment
with
respect
to
[Plaintiff’s] mental impairments . . . [and] found that ‘the
reduction to the low stress, simple work detailed . . . in [the
RFC] also accommodates [Plaintiff’s] mental impairments.’” (Id. at
3 (quoting Tr. 26).)
In that regard, Plaintiff asserts that
“accommodating [Plaintiff’s] mental impairments by limiting her to
low stress, simple work did not account for [her] limitations in
concentration” (id.), and “runs afoul of Mascio[ v. Colvin, 780
F.3d 632 (4th Cir. 2015)],” in which the United States Court of
Appeals for the Fourth Circuit held that “‘the ability to perform
simple tasks differs from the ability to stay on task [and that]
[o]nly
the
latter
limitation
would
6
account
for
a
claimant’s
Arguably, Plaintiff presented a fourth reason for distinguishing Wall:
“Moreover, the Court in Wall observed that the ALJ’s decision in that matter did
not involve a failure ‘to explain an inconsistency, either between the state
agency consultants’ opinions or between those consultants’ opinions and the ALJ’s
RFC regarding the plaintiff’s ability to stay on task.’ That is precisely the
failure that occurred in this case.
The ALJ here did not explain the
inconsistency between his RFC finding and the opinions of the state agency
consultants.” (Docket Entry 9 at 4-5 (quoting Wall, 2016 WL 5360682, at *6); see
also id. at 4 (arguing that, unlike Wall, the ALJ did not “properly weigh or
discuss the opinion evidence in this matter . . . which was especially important
since the opinion evidence conflicted with his RFC finding”).) However, the
Court need not readdress this argument, as the Court should ultimately conclude,
in conjunction with Plaintiff’s first issue on review, that the ALJ properly
analyzed the opinions of the state agency psychological consultants.
14
limitations in [CPP]’” (id. at 4 (quoting Mascio, 780 F.3d at
638)).
However, for the reasons more fully explained below in
conjunction with Plaintiff’s second issue on review, the ALJ’s
restriction of Plaintiff to “a low stress work setting, which, in
addition to the nature of the work being performed, is further
defined to mean no production-pace or quota-based work, rather a
goal-oriented job primarily dealing with things as opposed to
people, with no more than occasional work with the public as a
component of the job, and no more than occasional changes in the
work setting” (Tr. 20-21 (emphasis added)), does reasonably account
for Plaintiff’s moderate deficit in CPP in compliance with Mascio.
Second, Plaintiff contends “that, unlike the ALJ in Wall, the
ALJ
here
did
not
support
his
RFC
finding
by
reference
to
[Plaintiff’s] wide array of daily activities.” (Docket Entry 19 at
4.)
To the contrary, the ALJ noted that Plaintiff reported many
daily activities (most of which require some ability to focus),
including “working out, doing most of the grocery shopping and
preparing meals and snacks throughout the day” (Tr. 26), “walking,
crocheting and spending time with children and elderly people,
. . . active[] involve[ment] in the faith community and . . .
clean[ing]” (Tr. 27), “painting ceramics, [and] attending dance
classes” (Tr. 28).
Third, Plaintiff notes that the state agency psychological
consultants in Wall each “found that Plaintiff could ‘maintain
15
concentration for 2 hours at a time as required for the performance
of simple tasks’” (Docket Entry 19 at 4 (emphasis in original)
(quoting Wall, 2016 WL 5360682, at *6)), whereas the consultants
here each concluded that Plaintiff “may have some limitations”
maintaining concentration for two-hour periods (id. (referencing
Tr. 139, 158, 181, 202)).
However, that distinction does not
render the logic of the quoted language in Wall inapposite to the
instant case.
In Wall, both consultants found that the claimant
could maintain concentration for periods of two hours, and the
ALJ’s RFC assessment (and decision as a whole) made clear that he
adopted
that
finding.
See
Wall,
2016
WL
5360682,
at
*6.
Similarly, both consultants here opined that Plaintiff “may have
some limitations maintaining her concentration for two hours at a
time” (see Tr. 139, 158, 181, 202) and, again, the ALJ’s RFC
assessment (see Tr. 20-21) (and decision as a whole) make clear how
the ALJ addressed that opinion and his rationale for doing so.
By considering the entirety of the ALJ’s decision, the Court
can ascertain on judicial review how the ALJ dealt with the
consultants’ opinions that Plaintiff “may have some limitations” in
maintaining concentration for two hours at a time.
139, 158, 181, 202.)7
(See Tr. 28,
At step three of the SEP, the ALJ gave
7
Plaintiff contends that “[m]ost of the evidence to which [Defendant] refers [in
her memorandum] was not cited by the ALJ in his decision” (Docket Entry 19 at 2),
and that the “‘so-called ‘Chenery Doctrine’ . . . prohibits courts from
considering post hoc rationalizations in defense of administrative agency
decisions.’” (Id. (quoting Anderson v. Colvin, No. 1:10CV671, 2014 WL 1224726,
(continued...)
16
Plaintiff the benefit of the doubt in finding that Plaintiff
experienced a moderate deficit in CPP, despite the fact that
Plaintiff’s treatment providers frequently found her memory and
attention adequate, and that she “was able to follow and respond
appropriately to questions posed to her during the hearing.”
19.)
(Tr.
As discussed above, the ALJ also cited Plaintiff’s various
daily activities, most of which require some ability to maintain
focus, at several different points in his decision.
27, 28.)
(See Tr. 26,
The ALJ additionally noted that “[t]reating medical
sources . . . observed [Plaintiff] being alert, cooperative and
having
a
normal
attention
span
and
that
Plaintiff
“continued to describe multiple pro-social activities.”
(Tr. 28.)
concentration
in
mood
and
affect
April
and
June
and
2014,”
and
Further, the ALJ provided explanations for discounting the opinions
and/or
Global
Assessment
of
Functioning
(“GAF”)
scores8
of
Plaintiff’s other mental health providers (see Tr. 27, 28), and
Plaintiff does not challenge the ALJ’s analyses of those opinions
7
(...continued)
at *1 (M.D.N.C. Mar. 25, 2014) (unpublished) (Osteen, Jr., J.) (italics in
original omitted) (in turn citing Securities & Exch. Comm’n v. Chenery Corp., 332
U.S. 194 (1947))).)
However, this Recommendation does not rely on record
evidence not cited by the ALJ in concluding that the ALJ’s decision adequately
explains how he accounted for the state agency psychological consultants’
opinions regarding Plaintiff’s ability to maintain concentration.
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).
17
and GAF scores (see Docket Entry 13 at 3-17; see also Docket Entry
19).
Under these circumstances, the Court can meaningfully review
the ALJ’s manner of accounting for the state agency psychological
consultants’ opinions regarding Plaintiff’s ability to maintain
concentration.
In sum, Plaintiff’s first claim on review entitles her to no
relief.
2. CPP
In Plaintiff’s second issue on review, she alleges that the
ALJ “did not account for [Plaintiff’s] moderate difficulties in
[CPP] in his RFC assessment.”
omitted).)
(Docket Entry 13 at 9 (bold font
Plaintiff maintains that, pursuant to Mascio, “‘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].’” (Id. (quoting Mascio, 780 F.3d
at
638
(internal
quotation
marks
omitted)).)
According
to
Plaintiff, the ALJ’s RFC finding that Plaintiff “could maintain
[CPP] to stay on task for 2-hour periods over the course of a
typical 8-hour workday” (Tr. 20) conflicts with his step three
finding of moderate deficit in CPP (see Tr. 19) and lacks adequate
evidentiary support.
(Docket Entry 13 at 9-10.)
Once again,
Plaintiff relies on Pulliam to support his arguments (id. at 1011), claiming that the ALJ here, like the ALJ in Pulliam, “failed
to provide an adequate explanation for the apparent discrepancy
18
between his step three finding and his RFC finding that [Plaintiff]
could maintain concentration for 2-hour periods” (id. at 12).
Plaintiff’s arguments fall short.
The Fourth Circuit has indeed 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 expressly found in the RFC that, despite moderate
limitation in CPP, Plaintiff retained the ability to “maintain
[CPP] to stay on task for 2-hour periods over the course of a
typical 8-hour workday in order to perform such tasks” (Tr. 20
(emphasis added)), provided that the simple tasks also qualified as
“low stress work,” not only as “to the nature of the work,” but
also “mean[ing] no production-pace or quota-based work, rather a
goal-oriented job primarily dealing with things as opposed to
people, with no more than occasional work with the public as a
component of the job, and no more than occasional changes in work
setting” (Tr. 20-21).
The ALJ also included that same finding in
his dispositive hypothetical question to the VE.
(See Tr. 86-87.)
Thus, the ALJ directly addressed Plaintiff’s ability to stay on
task in the RFC and hypothetical question, which distinguishes this
case from Mascio.
5797751,
at
(distinguishing
See Falls v. Colvin, No. 8:14CV195-RBH, 2015 WL
*7
(D.S.C.
Mascio
where
Sept.
ALJ
19
29,
2015)
accounted
for
(unpublished)
moderate
CPP
limitation by crafting restriction to performance of “simple,
routine, repetitive tasks of one and two step instructions for
. . . two hour periods,” while “interact[ing] occasionally with the
public” and working only “at a non-production pace,” meaning “[n]o
fast paced type work” and a “stable routine setting”).
Moreover, the ALJ’s foregoing restrictions in the RFC (and
hypothetical question) “reasonably related to a moderate limitation
in Plaintiff’s ability to stay on task,” Grant v. Colvin, No.
1:15CV515,
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, Jr., C.J.).
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.
20
Grant, 2016 WL 4007606, at *9; see also id. at *7-9 (discussing
authority addressing “non-production” restrictions). Accordingly,
the
ALJ
explicitly
Plaintiff’s
ability
considered
to
“stay
and
on
reasonably
task”
in
the
accounted
for
RFC
the
(and
dispositive hypothetical question), as required by Mascio.
Plaintiff would distinguish Grant (and a similar case, BryanTharpe v. Colvin, No. 1:15CV272, 2016 WL 4079532 (M.D.N.C. July 29,
2016) (unpublished), objections filed, No. 1:15CV272 (M.D.N.C. Aug.
15, 2016)), from the instant case, because the ALJ in this case and
in Pulliam “each also made an explicit finding that the claimant
could
either
maintain
focus
throughout
the
day
(Pulliam)
or
maintain concentration for two hours at a time ([this case]),” but
the ALJ made no such finding in Grant (or Bryan-Tharpe).
Entry 13 at 14.)
[in
this
case
(Docket
According to Plaintiff, “[i]f either [the] ALJ
or
in
Pulliam]
had
intended
a
non-production
restriction to address the claimant’s moderate limitations in
[CPP],
the
inclusion
of
an
explicit
limitation
concentration would have been redundant.”
in
focus
or
(Id.)
Plaintiff’s argument defies logic, as well as the practices of
ALJs in formulating RFCs.
ALJs frequently make more than one
finding in an RFC to address a single impairment or symptom, e.g.,
an ALJ will find that a claimant can perform light work (but not
more strenuous exertional-level work) and impose a restriction to
occasional postural movements because of a lower back impairment.
21
No reason exists to preclude an ALJ from (as here) formulating a
multi-layered restriction which finds that a claimant can maintain
CPP for two-hour periods (but not longer) provided the claimant
also receives the benefit of a restriction to a non-production/nonquota-based work setting, all for the purpose of addressing a
moderate limitation in CPP.
To hold otherwise would effectively
(and illogically) punish an ALJ for prescribing a more detailed
accommodation of mental limitations in the RFC and hypothetical
questions to the VE.
Finally, the Court should find Pulliam distinguishable on its
facts.
In Pulliam, the Court could not meaningfully review the
ALJ’s conclusion that the claimant could maintain focus throughout
the workday, because the ALJ failed to weigh the conflicting
opinion of a consultative examiner, see Pulliam, 2016 WL 843307, at
*4, and “grouped [the state agency consultants’ opinions that
differed on the claimant’s ability to stay on task] together and
adopted both without distinguishing between them,” see id. at *6.
Moreover, Pulliam did not expressly address the effect of the
nonproduction/non-quota restriction, see id. at *5-7, and in fact
noted that the question remained open by observing that “a number
of post-Mascio cases stat[e] that a . . . limitation to simple,
routine, repetitive tasks in a low production and/or socially
isolated environment may be, without more, insufficient to account
for moderate limitations in [CPP]” id. at *5 n.7 (emphasis added).
22
Under these circumstances, Plaintiff’s second claim on review
lacks merit.
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 (Docket Entry 12) be denied, that Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 17) be granted, and that
this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 7, 2017
23
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