TRENT v. COLVIN
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGSITRATE JUDGE L. Patrick Auld, signed on 04/20/2017. It is RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings 12 be denied, that Defendant's Motion for Judgment on the Pleadings 14 be granted, and that this action be dismissed with prejudice. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROSE TRENT,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
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1:16CV89
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rose Trent, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 9 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 12, 14; see also Docket Entry 13 (Plaintiff’s Memorandum);
Docket Entry 15 (Defendant’s Memorandum)).
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, alleging an onset date of April 8,
2014.
(Tr. 172-73.)
Upon denial of that application initially
(Tr. 74-88, 105-08) and on reconsideration (Tr. 89-104, 115-22),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 66-69, 124).
Plaintiff, her attorney, and a
vocational expert (“VE”) attended the hearing.
(Tr. 31-55.)
The
ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 11-25.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-6, 7-10), 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 September 30, 2015.
2.
[Plaintiff] has not engaged in substantial gainful
activity since April 8, 2014, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
lumbar degenerative disc disease, bilateral knee
degenerative joint disease, mild degenerative joint
disease of the left wrist, history of thyroid cancer and
total thyroidectomy, asthma, and bipolar I disorder.
. . .
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.
. . .
2
5.
. . . [Plaintiff] has the residual functional
capacity to perform medium work. [Plaintiff] is able to
lift and carry fifty pounds occasionally and twenty-five
pounds frequently. In an eight-hour workday, she is able
to stand and/or walk for six hours total and sit for six
hours total. [Plaintiff] is able to occasionally climb,
kneel, crouch, and crawl. She can frequently balance.
She should avoid concentrated exposure to fumes, odors,
dusts, gases, and poor ventilation.
She is able to
perform simple, routine, repetitive tasks.
. . .
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 8, 2014, through the
date of this decision.
(Tr.
16-25
(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. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program provides benefits to indigent disabled
persons. The statutory definitions and the regulations . . . for determining
disability governing these two programs are, in all aspects relevant here,
substantively identical.”
Craig, 76 F.3d at 589 n.1 (internal citations
omitted).
5
‘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) “[t]he ALJ improperly evaluated [Plaintiff’s] symptoms”
(Docket Entry 13 at 3 (bold font omitted)); and
(2) “[t]he ALJ performed an improper RFC evaluation” (id. at
7 (bold font omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 15 at 3-12.)
1. Symptom Evaluation
In Plaintiff’s first assignment of error, she contends that
“the ALJ improperly evaluated [Plaintiff’s] symptoms . . . due to
her thyroidectomy and bipolar disorder because [the ALJ] failed to
rely on objective medical evidence which support[ed] [Plaintiff’s]
statements.”
(Docket Entry 13 at 5 (citing Tr. 21-23).)
specifically,
Plaintiff
alleges
that
the
ALJ
More
inappropriately
assumed that a planned ultrasound of Plaintiff’s neck, the results
of which do not appear in the record, showed no change from
previous studies, based upon the fact that Plaintiff “ha[d] not
required additional surgery” for her thyroid.
Plaintiff’s
bipolar
disorder,
Plaintiff
(Id.)
faults
the
Regarding
ALJ
for
“predict[ing], without any evidence of record” that Plaintiff’s
decision to start taking Cymbalta would improve her depression and
8
her pain (id. at 6 (citing Tr. 23)), and for improperly evaluating
the opinions of consultative psychological examiner Dr. Robert H.
Abramowitz (id. (citing Tr. 22, 430, 432)), and treatment records
from psychiatrist Dr. Jeffrey Smith regarding Plaintiff’s mental
symptoms (id. (citing Tr. 22, 360-64, 554, 556-57, 558-59, 582)).
Plaintiff’s contentions warrant no relief.
Social Security Ruling 96-7p, Policy Interpretation Ruling
Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements (“SSR 967p”), 1996 WL 374186 (July 2, 1996), as applied by the Fourth
Circuit in Craig, 76 F.3d at 594-95, provides a two-part test for
evaluating a claimant’s statements about symptoms.
“First, there
must be objective medical evidence showing ‘the existence of a
medical impairment(s) which results from anatomical, physiological,
or
psychological
abnormalities
and
which
could
reasonably
expected to produce the pain or other symptoms alleged.’”
594 (quoting 20 C.F.R. § 404.1529(b)).
be
Id. at
Upon satisfaction of part
one by the claimant, the analysis proceeds to part two, which
requires an assessment of the intensity and persistence of the
claimant’s symptoms, as well as the extent to which they affect his
or her ability to work.
Id. at 595.
In making that determination,
the ALJ:
must take into account not only the claimant’s statements
about her pain, but also all the available evidence,
including the claimant’s medical history, medical signs,
and laboratory findings, any objective medical evidence
9
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), and any
other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id. (internal citations and quotation marks omitted).6
In this case, the ALJ found for Plaintiff on part one of the
inquiry,
but
ruled,
in
connection
with
part
two,
that
her
statements “concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely credible for the
reasons explained in [the ALJ’s] decision.”
that
part
two
finding,
the
ALJ
(Tr. 20.)
discussed
In making
Plaintiff’s
daily
activities and her testimony, as well as the objective findings
relevant to Plaintiff’s thyroid impairment and bipolar disorder.
(See Tr. 19-20, 21-23.) With regard to the objective evidence, the
ALJ noted as follows:
6
Effective March 28, 2016, see Social Security Ruling 16-3p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims, 2016 WL 1237954 (Mar. 24, 2016) (correcting effective date of original
Ruling), the Social Security Administration superceded SSR 96-7p with Social
Security Ruling 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation
of Symptoms in Disability Claims, 2016 WL 1119029, at *1 (Mar. 16, 2016). The
new ruling “eliminat[es] the use of the term ‘credibility’ from . . . subregulatory policy, as [the] regulations do not use this term.” Id. The ruling
“clarif[ies] that subjective symptom evaluation is not an examination of the
individual’s character,” id., and “offer[s] additional guidance to [ALJs] on
regulatory implementation problems that have been identified since [the
publishing of] SSR 96-7p,” id. at *1 n.1.
The ALJ’s decision in this case
predates the effective date of SSR 16-3p (see Tr. 25), and, because SSR 16-3p
changes existing Social Security Administration policy regarding subjective
symptom evaluation, that Ruling does not apply retroactively, see Bagliere v.
Colvin, No. 1:16CV109, 2017 WL 318834, at *4-8 (M.D.N.C. Jan. 23, 2017) (Auld,
M.J.), recommendation adopted, slip op. (M.D.N.C. Feb. 23, 2017) (Eagles, J.);
see also Hose v. Colvin, No. 1:15CV00662, 2016 WL 1627632, at *5 n.6 (M.D.N.C.
Apr. 22, 2016) (unpublished) (Auld, M.J.), recommendation adopted, slip op.
(M.D.N.C. May 10, 2016) (Biggs, J.).
10
Overall, [Plaintiff’s] allegations are out of proportion
to the objective medical findings . . . .
. . .
Regarding [Plaintiff’s] thyroid, the record shows that
[Plaintiff] had a thyroid ultrasound in June 2013 that
showed a dominant nodule in the left thyroid lobe.
[Plaintiff] underwent total thyroidectomy in October 2013
and the pathology results were consistent with follicular
carcinoma. [Plaintiff] had I-131 treatment in November
2013. In March 2014, a month before the alleged onset
date, a thyroid ultrasound was negative except for a
small nonspecific hypoechoic area in the right thyroid
bed or just about it that needed monitoring on subsequent
ultrasounds.
There were no abnormal appearing lymph
nodes. While [Plaintiff] expressed frustration about her
condition, as of June 2014, [Plaintiff’s] thyroid hormone
was in a better range than it had been since surgery.
In 2015, [Plaintiff] had been taking tirosint. As of
April 2015, [Plaintiff] was doing well on tirosint. An
ultrasound of her head and neck obtained that month
showed echogenic soft tissue in the thyroid bed possibly
representing residual thyroid tissue post ablation. She
established with a new endocrinologist in May 2015.
[Plaintiff] complained [that she] continued to suffer
from nausea, vomiting, diarrhea and weight loss since
receiving Thyrogen. The normal course of action was an
I-131 scan but she had a previous allergic reaction.
Given her limited treatment options due to allergies and
adverse reactions, the plan was to do another neck
ultrasound and address surgically any increasing thyroid
bed tissue.
Since [Plaintiff] has not required any
additional surgery, it seems reasonable to conclude that
the ultrasound was unchanged.
. . .
The undersigned has also considered [Plaintiff’s] bipolar
disorder. Diagnosed as a teenager, [Plaintiff] was able
to work despite this for many years. The longitudinal
record shows that her symptoms wax and wane.
As of
January 2014, a few months before the alleged onset date,
[Plaintiff] was doing “OK” with stable mood and bright
affect. A month later, and continuing to April 2014, the
alleged onset date, [Plaintiff] reported some increased
symptoms in the face of psychosocial stress. By mid-May
11
2014, [Plaintiff] was doing much better with less
moodiness, less worry, stable mood, and improved
motivation and interest. In July 201[4], she had some
increased depression.
With medication adjustments,
[Plaintiff] showed signs of improvement in September
2014. By October 14, 2014, she was doing “pretty well”
with “rare down days.”
Depression, irritability, and
impulsiveness were well controlled and she endorsed good
energy, motivation, interest, and concentration.
Then, at the consultative psychological examination on
October 30, 2014, [Plaintiff] reported significant
symptoms. She stated that she wakes up crying, thinking
that “God has forsaken [her].” She stated that she is
“miserable,” unmotivated, and feels helpless and
worthless. She reported that she had “given up” doing
housework.
The consultative examiner noted that
[Plaintiff’s] long-term memory was somewhat limited and
her short-term memory was poor. She was close to average
range for concentration.
It seems that her condition soon improved, as subsequent
psychiatric records show that her depression was well
controlled and she endorsed good energy, motivation,
interest, and concentration for the first half of 2015.
She had a brief increase in agitation and depression on
June 1, 2015, but by June 12, 2015, she reported no
anxiety or depression. On June 25, 2015, she stated that
she was doing better with less agitation and impulsivity
and
improved
energy,
motivation,
interest,
and
concentration. [Plaintiff] finally started Cymbalta in
July 2015, which should help her depression, as well as
her pain.
(Tr. 20-23 (emphasis added) (internal citations omitted).)
Plaintiff
challenges
the
ALJ’s
statement
that,
because
Plaintiff “has not required any additional surgery, it seems
reasonable to conclude that the ultrasound was unchanged.” (Docket
Entry 13 at 5 (quoting Tr. 22).)
According to Plaintiff, given the
ALJ’s acknowledgment that endocrinologist Dr. Tony Walden’s opinion
corroborated Plaintiff’s thyroid-related complaints of nausea,
12
vomiting, diarrhea, and weight loss, the ALJ’s assumption that a
“yet to be completed” ultrasound showed no change in Plaintiff’s
condition “was improper and irrational.” (Id. (citing Tr. 21-22).)
Plaintiff’s argument ultimately fails.
At
the
outset,
the
record
does
not
support
Plaintiff’s
assertion that “[t]he ALJ acknowledged that . . . Dr. Walden’s
opinion corroborated [Plaintiff’s] subjective complaints” regarding
her thyroid disorder.
discussing
(Id. at 5.)
Plaintiff’s
course
of
The ALJ merely observed, while
treatment
for
her
thyroid
impairment, that Plaintiff “complained [that she] continued to
suffer from nausea, vomiting, diarrhea and weight loss since
receiving Thyrogen” at an appointment with Dr. Walden in May 2015.
(Tr. 22 (emphasis added).) Indeed, Dr. Walden recorded Plaintiff’s
complaint of nausea, vomiting, diarrhea, and flu-like symptoms that
had resolved three months earlier in February 2015 (see Tr. 539),
and made no objective findings on examination that corroborated
Plaintiff’s subjective thyroid complaints (see Tr. 542-543).
However, the ALJ’s assumption that, because Plaintiff had not
undergone additional thyroid surgery by the date of the ALJ’s
decision, a neck ultrasound of Plaintiff not of record likely
showed no change in Plaintiff’s thyroid condition (see Tr. 22)
lacks any factual support.
The record does not reflect the reason
why Plaintiff did not undergo such surgery, and any number of
factors other than a benign ultrasound, e.g., lack of insurance,
13
other medical complications, etc., could have caused Plaintiff to
forego the surgery.
Nevertheless,
the
ALJ’s
improper
assumption
amounts
harmless error under the facts presented by this case.
to
See
generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)
(observing that “[n]o principle of administrative law or common
sense requires us to remand a case in quest of a perfect opinion
unless there is reason to believe that the remand might lead to a
different result”).
As quoted above, the ALJ did not rely solely
on his assumption regarding Plaintiff’s planned neck ultrasound in
evaluating the intensity, persistence, and limiting effects of
Plaintiff’s thyroid symptoms; rather, the ALJ also considered
Plaintiff’s earlier, fairly benign neck ultrasound results and
improved thyroid hormone levels. (See Tr. 22-23.) Because the ALJ
relied on other substantial evidence to support his conclusions
regarding Plaintiff’s thyroid impairment, his improper assumption
qualifies as harmless. See Carmickle v. Commissioner of Soc. Sec.,
533 F.3d 1155, 1162 (9th Cir. 2008) (holding that, although ALJ
relied on two invalid reasons in credibility determination, “[s]o
long as there remains substantial evidence supporting the ALJ’s
conclusions on credibility and the error does not negate the
validity of the ALJ’s ultimate credibility conclusion, such is
deemed harmless and does not warrant reversal” (quotation marks and
brackets omitted)); Trefethen v. Colvin, Civ. No. 12-1047-EFM, 2014
14
WL 289458, at *5 (D. Kan. Jan. 27, 2014) (unpublished) (concluding
that ALJ’s mistaken assumption regarding chronology of mental
evaluations amounted to harmless error because other substantial
evidence
supported
ALJ’s
finding
that
claimant
improved
with
treatment); compare Schandel v. Commissioner for Soc. Sec. Admin.,
No. 4:14-CV-00042, 2016 WL 3268758, at *3 (W.D. Va. June 7, 2016)
(unpublished) (remanding case and noting that “[t]he primary flaw
is the ALJ’s almost-exclusive reliance on facts not found in the
[r]ecord[] [i]n rejecting [the] [p]laintiff’s subjective statements
regarding ‘the intensity, persistence, and limiting effects of
[his] symptoms’” (emphasis added)).7
Plaintiff
additionally faults
the
ALJ
for “predict[ing],
without any evidence of record” that Plaintiff’s decision to start
taking the anti-depressant Cymbalta would improve her depression
and her pain.
(Docket Entry 13 at 6 (citing Tr. 23).)
According
to Plaintiff, the ALJ lacks “the training and expertise to make
such predictions.”
The
(Id. at 7.)
Commissioner,
in
turn,
argues
that
“the
ALJ
fairly
considered Plaintiff’s use of Cymbalta in his decision,” because
the ALJ “did not find she lacked credibility on the basis of any
prediction of improvement.”
(Docket Entry 15 at 9 (citing Tr.
7
Had the planned ultrasound actually shown that Plaintiff’s thyroid condition
had worsened, or had Plaintiff undergone additional thyroid surgery, Plaintiff
had the opportunity to submit such evidence to the Appeals Council in connection
with her request for review, or to this Court in conjunction with her request for
judicial review. Notably, Plaintiff took neither action. (See Tr. 1-10; Docket
Entries dated February 2, 2016, to the present.)
15
23).)
Rather, the Commissioner posits that the ALJ discounted
Plaintiff’s
credibility
because,
“[i]f
Plaintiff’s
mental
impairments were as debilitating as she alleged, she would have
listened
to
[Cymbalta].”
her
physicians
who
recommended
that
she
use
(Id. (citing Tr. 590).)
The Commissioner’s argument fails as an impermissible, posthoc rationalization of the ALJ’s reasoning. See Securities & Exch.
Comm’n. v. Chenery Corp., 332 U.S. 194, 196 (1947); see also Bray
v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir.
2009) (“Long-standing principles of administrative law require us
to review the ALJ’s decision based on the reasoning and factual
findings offered by the ALJ - not post hoc rationalizations that
attempt to intuit what the adjudicator may have been thinking.”
(citing
Chenery)).
The
ALJ
did
not
specifically
find
that
Plaintiff lacked credibility because she declined to start taking
Cymbalta when her doctor first recommended it; rather, he merely
noted that Plaintiff “finally started Cymbalta in July 2015, which
should help her depression, as well as her pain.”
(Tr. 23.)8
Moreover, the record does not support the ALJ’s prediction
that Cymbalta would improve Plaintiff’s depression and pain.
8
(See
Even had the ALJ expressly discounted Plaintiff’s credibility for opting not
to take Cymbalta when her doctor first prescribed it, the record would not
support such an adverse credibility inference. Plaintiff’s treatment records
from Dr. Smith reflect that she tried many different psychiatric drugs at
different dosages and with varying rates of success throughout the relevant
period in this case (see Tr. 360-64, 554-59), and started Cymbalta merely one
month after her doctor recommended she take it (see Tr. 586, 606).
16
Tr.
23.)
Plaintiff’s
psychiatrist
prescribed
many
different
psychiatric medications and dosages during the relevant period, in
an attempt to keep Plaintiff’s bipolar symptoms under control. The
treatment notes reflect that these medication changes had varying
success rates and, at times, only provided temporary relief.
Tr. 360-64, 554-59.)
that Cymbalta
would
(See
Thus, no basis existed for the ALJ to predict
prove
any
more
effective
than
the
other
medications that Plaintiff tried.
However, the ALJ’s erroneous prediction regarding Cymbalta
remains harmless, because the ALJ relied on other substantial
evidence to evaluate the intensity, persistence, and limiting
effects of Plaintiff’s bipolar symptoms. See generally Fisher, 869
F.2d at 1057.
In that regard, the ALJ noted that (1) Plaintiff
remained able to work despite her bipolar symptoms for many years;
(2) Plaintiff’s symptoms waxed and waned, with many extended
periods where the symptoms remained well controlled; and (3) the
consultative psychological examiner rated Plaintiff’s concentration
as close to average range.
(See Tr. 22-23.)
Thus, the ALJ’s
faulty prediction concerning Cymbalta did not render his overall
analysis of Plaintiff’s bipolar symptoms unsupported by substantial
evidence.
See Carmickle, 533 F.3d at 1162; Trefethen, 2014 WL
289458, at *5.
Plaintiff also faults the ALJ for improperly evaluating the
opinions of consultative psychological examiner Dr. Abramowitz.
17
(Docket
Entry
specifically,
13
at
6
Plaintiff
(citing
contends
Tr.
22,
that
430,
“the
432).)
ALJ
More
failed
to
acknowledge [Dr. Abramowitz’s] objective opinion that ‘at times
[Plaintiff] started to ramble and became somewhat unfocused’” (id.
(quoting
Tr.
430)),
that
Plaintiff’s
“‘affect
was
mostly
depressed,’ and [that] ‘she [did] not appear to be emotionally
capable or stable enough to handle stress and pressure of a work
setting’” (id. (quoting Tr. 432)).
Plaintiff’s contentions fall
short.
Although the ALJ did not expressly discuss Dr. Abramowitz’s
observations that Plaintiff’s affect appeared “mostly depressed”
and that she rambled and seemed “somewhat unfocused” at times
during the examination (see Tr. 16-25, 430, 432), the ALJ labored
under no obligation to explicitly discuss every finding in each
piece of evidence in the record, see Black v. Apfel, 143 F.3d 383,
386 (8th Cir. 1998); see also Diaz v. Chater, 55 F.3d 300, 308 (7th
Cir. 1995).
Moreover, the ALJ stated that he had “careful[ly]
consider[ed] [] the entire record” (Tr. 19 (emphasis added)), and
discussed Dr. Abramowitz’s opinions at three different places in
his opinion (see Tr. 18 (step three), 22 (credibility analysis), 23
(opinion evidence evaluation)).
Abramowitz’s
opinion
that
Moreover, the ALJ did discuss Dr.
Plaintiff
did
“not
appear
to
be
emotionally capable or stable enough to handle stress and pressure
of a work setting” (Tr. 432), but gave that opinion “less weight”
18
as based on a one-time evaluation and unsupported by Dr. Smith’s
subsequent treatment records (see Tr. 23). Thus, Plaintiff has not
shown how the ALJ’s failure to specifically mention the findings in
question caused her any prejudice.
Plaintiff further challenges the ALJ’s conclusion, based on
his evaluation of Dr. Smith’s treatment records, that Plaintiff’s
mental condition had improved. (See Docket Entry 13 at 6-7 (citing
Tr. 22, 360-64, 554, 556-57, 558-59, 582).)
More particularly,
Plaintiff emphasizes that she “characterized her mood swings as
severe and her bipolar disorder as rapid cycling,” and that Dr.
Smith’s treatment records “clearly depict[] her mood swings as
such.”
(Id. at 7 (citing Tr. 45-46).)
Thus, Plaintiff argues,
“for the ALJ to assert because the most recent psychiatric records
showed she was doing better that her subjective complaints were not
supported by the evidence, was improper and irrational.”
(citing Tr. 22-23).)
(Id.
That argument misses the mark.
The ALJ clearly acknowledged Plaintiff’s testimony that she
“has highs and lows” (Tr. 20), found that “[t]he longitudinal
record shows that [Plaintiff’s bipolar] symptoms wax and wane” (Tr.
22), and discussed Plaintiff’s fluctuations in mood at visits with
Dr. Smith from January 2014 to June 2015 (Tr. 22-23).
However, the
ALJ also correctly observed that, with the exception of the October
30, 2014, consultative psychological examination (see Tr. 428-32),
“known
to
[Plaintiff]
to
be
for
19
the
purposes
of
evaluating
disability” (Tr. 23), and a brief period in June 2015 (see Tr.
558), Plaintiff gave positive reports about her symptom control
from September 2014 through June 2015 (see Tr. 554-59).
(Tr. 22-
23; see also Tr. 18 (“[T]he record shows that [Plaintiff] reports
fluctuating,
but
psychiatrist.”).)
generally
improved
symptoms
to
her
Thus, the ALJ did not err in evaluating Dr.
Smith’s treatment records.
In short, Plaintiff’s claim that the ALJ improperly evaluated
her thyroid and bipolar symptoms fails as a matter of law.
2. RFC
In Plaintiff’s second and final issue on review, she asserts
that “[t]he ALJ performed an improper RFC evaluation.”
Entry 13 at 7 (bold font omitted).)
(Docket
More specifically, Plaintiff
contends that the ALJ violated Mascio v. Colvin, 780 F.3d 632 (4th
Cir. 2015), in two respects: (1) the ALJ failed to explain which of
Plaintiff’s subjective complaints he found only partially credible
(Docket Entry 13 at 8-9); and (2) the ALJ neglected to account for
Plaintiff’s moderate deficits in concentration, persistence, or
pace (“CPP”) in the RFC determination (id. at 9-10).
Neither of
those contentions warrants relief.
In regards to the ALJ’s analysis of Plaintiff’s subjective
complaints, the Court should find Mascio distinguishable.
In that
case, a conflict existed between the ALJ’s conclusion that the
plaintiff’s “allegation that her pain caused daytime fatigue was
20
‘less credible’ because she did not complain about this side effect
to
her
doctors”
and
another
of
the
ALJ’s
findings
that
the
plaintiff’s “pain medication ‘impacts her thought processes.’”
Mascio, 780 F.3d at 638 (internal citations omitted).
The Mascio
court observed that the conflict “leaves us to wonder if the ALJ
found her claim of fatigue partially or completely incredible,” and
found that the “inconsistency needs to be explained.”
Here,
Plaintiff
points
to
no
such
conflict.
Id.
Plaintiff
maintains that “the ALJ argued [Plaintiff’s] complaints of mood
swings and issues related to her thyroidectomy were not supported,”
and points to other findings by the ALJ which Plaintiff contends
conflict with that finding and support her subjective complaints.
(Docket Entry 13 at 9 (citing Tr. 22-23) (emphasis added).)
The
emphasized portion of Plaintiff’s argument suggests the ALJ found
that Plaintiff lacked any symptoms from her bipolar and thyroid
disorders.
However, the ALJ clearly acknowledged that Plaintiff
suffered from mood swings and residual thyroid symptoms throughout
the relevant period, but found that the record did not support the
alleged intensity, persistence, and limiting effects of those
symptoms.
(See Tr. 20, 22-23.)
As described in the preceding
subsection, the ALJ’s discussion of Plaintiff’s course of treatment
and objective findings on examination regarding her bipolar and
thyroid disorders (see Tr. 22-23), permit the Court to meaningfully
review the ALJ’s credibility conclusions.
21
Lastly, Plaintiff maintains that, pursuant to Mascio, “‘an ALJ
does
not
account
for
a
claimant’s
limitations
in
[CPP]
by
restricting the hypothetical question to simple, routine tasks or
unskilled work . . . [because] the ability to perform simple tasks
differs from the ability to stay on task,’ and ‘[o]nly the latter
limitation would account for a claimant’s limitation in [CPP].’”
(Docket Entry 13 at 9-10 (quoting Mascio, 780 F.3d at 638 (internal
quotation marks omitted)).)
failure
to
include
According to Plaintiff, the ALJ’s
Plaintiff’s
difficulties
in
maintaining
concentration in the RFC justifies reversal of the case.
10.)
(Id. at
Plaintiff’s argument falls short.
The United States Court of Appeals for 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].”
F.3d at 638.
Mascio, 780
However, that court also allowed for the possibility
that an ALJ could adequately explain why moderate limitation in
concentration,
persistence,
limitation in the RFC.
Id.
or
pace
would
not
result
in
any
A neighboring district court had
occasion to discuss this very point:
Mascio does not broadly dictate that a claimant’s
moderate impairment in concentration, persistence, or
pace always translates into a limitation in the RFC.
Rather, Mascio underscores the ALJ’s duty to adequately
review the evidence and explain the decision . . . . An
ALJ may account for a claimant’s limitation with
concentration, persistence, or pace by restricting the
claimant to simple, routine, unskilled work where the
22
record supports this conclusion, either through physician
testimony, medical source statements, consultative
examinations, or other evidence that is sufficiently
evident to the reviewing court.
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (Magistrate Judge’s Report & Recommendation
adopted by District Judge) (unpublished) (emphasis added).
Here,
the ALJ’s decision provides a sufficient explanation as to why a
limitation in the RFC to simple, routine, and repetitive tasks
(“SRRTs”)
sufficiently
accounted
for
Plaintiff’s
moderate
limitation in CPP.
First, the ALJ discussed Plaintiff’s testimony regarding her
bipolar
symptoms,
but
concluded
that
Plaintiff’s
“statements
concerning the intensity, persistence and limiting effects of [her]
symptoms [we]re not entirely credible.”
the
preceding
subsection,
the
ALJ
(Tr. 20.)
supported
As detailed in
his
analysis
of
Plaintiff’s bipolar symptoms with substantial evidence.
Second,
the
ALJ
summarized
Plaintiff’s
mental
health
treatment, making the following, pertinent observations:
•
Plaintiff remained able to work despite her bipolar
disorder for many years.
•
“With medication adjustments, [Plaintiff] showed
signs of improvement in September 2014. By October
14, 2014, she was doing ‘pretty well’ with ‘rare
down
days.’
Depression,
irritability,
and
impulsiveness were well controlled and she endorsed
good
energy,
motivation,
interest,
and
concentration.”
23
•
Plaintiff’s “depression was well controlled and she
endorsed good energy, motivation, interest, and
concentration for the first half of 2015.”
(Tr. 22 (emphasis added) (internal citations omitted).)
Third, the ALJ also discussed and weighed the opinion evidence
as
it
(See
related
Tr.
to
23.)
psychological
Plaintiff’s
The
ALJ
examiner
ability
noted
Dr.
the
to
function
opinion
Abramowitz
mentally.
of
consultative
that
Plaintiff’s
concentration “was close to average range” (Tr. 18, see also Tr.
431),
gave
Plaintiff
“great
weight”
“appeared
to
be
to
Dr.
Abramowitz’s
cognitively
strong
opinion
and
that
capable
of
learning and following directions” (Tr. 23 ; see also Tr. 432), and
found that Dr. Abramowitz’s opinion “suggest[ed] that [Plaintiff]
[wa]s able to understand, remember, and carry out [SRRTs]” (Tr.
23).
The ALJ also gave “great weight” to the state agency
psychological consultants’s opinions that Plaintiff can perform
SRRTs.
(Tr. 23.)
Notably, both consultants found that Plaintiff
suffered moderate limitation in CPP (see Tr. 79, 95), but that,
despite that concentrational deficit, Plaintiff remained “able to
understand and remember simple instructions” (Tr. 83, 99), and
“able
to
maintain
(emphasis added)).9
attention
for
simple
tasks”
(Tr.
84,
100
Under these circumstances, the ALJ adequately
9
Although the state agency psychological consultant at the reconsideration
level, Dr. Bonny Gregory, concluded that Plaintiff remained cognitively able to
understand and maintain attention to complete SRRTs (see Tr. 99, 100), Dr.
Gregory also found that Plaintiff could not interact with others for even short
periods of time due to mood swings and could not adapt to basic workplace
(continued...)
24
explained why a limitation to SRRTs sufficiently accounted for
Plaintiff’s moderate limitation in CPP.
See Hutton v. Colvin, No.
2:14-CV-63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16, 2015)
(unpublished) (finding reliance on Mascio “misplaced” and that ALJ
“gave abundant explanation” for why unskilled work adequately
accounted for claimant’s moderate limitation in concentration,
persistence, or pace, where ALJ relied on the claimant’s daily
activities and treating physicians’ opinions of claimant’s mental
abilities).
In sum, the ALJ complied with Mascio and supported his RFC
determination with substantial evidence.
9
(...continued)
changes, rendering her, from an emotional and adaptability standpoint, unable to
perform even SRRTs. (Tr. 100, 101; see also Tr. 95.) Despite that finding, the
Social Security Administration ultimately found at the reconsideration stage that
Plaintiff remained capable of performing SRRTs, could perform jobs existing in
significant numbers in the national economy, and qualified as “Not Disabled.”
(Tr. 102.)
Neither Plaintiff nor the Commissioner addressed this apparent
internal inconsistency in the reconsideration stage determination in their
briefing to this Court. (See Docket Entry 13 at 3-10; Docket Entry 15 at 3-12.)
Because both state agency psychological consultants agreed that, despite moderate
deficit in CPP (see Tr. 79, 95), Plaintiff remained able to understand and
maintain attention to complete SRRTs (see Tr. 83, 84, 99, 100), and because
Plaintiff failed to address the internal inconsistency of the reconsideration
stage determination on judicial review (see Docket Entry 13 at 3-10), the ALJ’s
decision adequately explains why a limitation to SRRTs sufficiently accounted for
Plaintiff’s moderate limitation in CPP. See generally United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990) (“[A] litigant has an obligation to spell out its
arguments squarely and distinctly, or else forever holds its peace.”); Hughes v.
B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7,
2014) (unpublished) (Schroeder, J.) (“A party should not expect a court to do the
work that it elected not to do.”).
25
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
Entry
12)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 14)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 20, 2017
26
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