GALLARDO v. COLVIN

Filing 16

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 04/20/2017. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be denied, Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be granted, and that this action be dismissed with prejudice.(Sonbay, Kenan)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BRENDA DARLENE GALLARDO,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.

1:16CV355

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff,

Brenda

Darlene

Gallardo,

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

Insurance

Benefits

(“DIB”)

(“SSI”).

(Docket Entry 1.)

and

claims

Supplemental

for

Disability

Security

Income

Defendant has filed the certified

administrative record (Docket Entry 8 (cited herein as “Tr. __”)),
and both parties have moved for judgment (Docket Entries 11, 14;
see also Docket Entry 12 (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 and SSI, alleging an onset date of
August 1, 2011.

(Tr. 188-95.)

Upon denial of those applications

initially (Tr. 56-81, 110-15) and on reconsideration (Tr. 82-109,
120-37),

Plaintiff

requested

a

hearing

de

Administrative Law Judge (“ALJ”) (Tr. 138-39).

novo

before

an

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. 12-26.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
11, 272-74), 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, 2013.
2.
[Plaintiff] has not engaged in substantial gainful
activity since August 1, 2011, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
obesity, hypertension, diabetes mellitus, hypothyroidism,
anxiety, depression, degenerative disc disease of the
lumbar spine with disc protrusion, degenerative disc
disease of the cervical spine with spondylosis,
fibromyalgia, and asthma.
. . .
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 light work . . . except she can
perform only occasional climbing of ramps and stairs.
She can only occasionally balance, stoop, crouch, and
crawl. She can never climb ladders, ropes, or scaffolds.
She must avoid concentrated exposure to hazards such as
fumes, dust, gases, poor ventilation, and extremes of
heat and cold. [Plaintiff] can perform simple, routine
tasks. She can have no contact with the public and only
occasional contact with coworkers and supervisors. She
can tolerate only routine changes in a work environment.
. . .
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 August 1, 2011, through the
date of this decision.
(Tr.

17-26

(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).

3

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
(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

4

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).
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]

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).

5

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
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

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

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

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,
(continued...)

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 “erred in failing to accord appropriate weight to
the opinion evidence in the record” (Docket Entry 12 at 7 (bold
font and capitalization omitted));
(2) the ALJ “erred in failing to find that [Plaintiff’s]
impairments meet or medically equal Listing 1.04” (id. at 10 (bold
font and capitalization omitted)); and
(3) the ALJ “erred in finding that [Plaintiff] has the [RFC]
to perform a reduced range of light work (id. at 11 (bold font and
capitalization omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 15 at 7-20.)
1. Opinion Evidence
In Plaintiff’s first assignment of error, she contends that
the ALJ “erred in failing to accord appropriate weight to the
opinion[s]”
consultative

of

treating

orthopedist

psychological

examiner

Dr.

Vincent

Dr. Gregory

E.

Paul

and

A. Villarosa.

(Docket Entry 12 at 7 (bold font and capitalization omitted).)
According to Plaintiff, “[t]he opinion of a treating physician is

5

(...continued)
review does not proceed to the next step.”).

8

entitled to great weight and may only be disregarded if there is
persuasive contradictory evidence” (id. (citing Coffman v. Bowen,
829 F.2d 514 (4th Cir. 1987)), and Plaintiff asserts that Dr.
Paul’s opinions find support from “the cervical and lumbar MRIs in
the record, . . . his findings on examination” (id. at 8 (citing
Tr.

382-87,

389-91)),

and

a

decision

by

the

North

Carolina

Department of Health and Human Services, issued after the ALJ’s
decision in this case and submitted to the Appeals Council, finding
Plaintiff eligible for Medicaid benefits (id at 8-9 (citing Tr. 89)).

Further, Plaintiff maintains that “Dr. Villarosa’s opinion

was entitled to more than the limited weight accorded to it by
[the] ALJ,” because “Dr. Villarosa was chosen by Social Security
Disability [sic] to evaluate [P]laintiff [and,] [a]s a state
medical consultant, Dr. Villarosa is a highly qualified physician
and expert in evaluating [P]laintiff’s medical impairments.”
at 9.)

(Id.

Plaintiff’s arguments miss the mark.

As an initial matter, Plaintiff misrelies on Coffman and the
“persuasive contradictory evidence” standard.
7.)

(Docket Entry 12 at

That phrasing of the “treating physician rule” no longer

represents the governing standard.

See Stroup v. Apfel, No. 96-

1722, 205 F.3d 1334 (table), 2000 WL 216620, at *5 (4th Cir. Feb.
24,

2000)

(unpublished)

(“The

1991

regulations

supersede

the

‘treating physician rule’ from our prior case law.”); Shrewsbury v.
Chater, No. 94-2235, 68 F.3d 461 (table), 1995 WL 592236, at *2 n.5

9

(4th Cir. Oct. 6, 1995) (unpublished) (“As regulations supersede
contrary precedent, the cases cited by [the plaintiff] defining the
scope of the ‘treating physician rule’ decided prior to 20 C.F.R.
§ 416 and related regulations are not controlling.” (internal
citation omitted)); accord Brown v. Astrue, Civil Action No. CBD10-1238, 2013 WL 937549, at *4 (D. Md. Mar. 8, 2013) (unpublished);
Benton v. Astrue, Civil Action No. 0:09-892-HFF-PJG, 2010 WL
3419272, at *1 (D.S.C. Aug. 30, 2010) (unpublished); Pittman v.
Massanari, 141 F. Supp. 2d 601, 608 (W.D.N.C. 2001); Ward v.
Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996).
Under the proper standard, the treating source rule does
generally require an ALJ to give controlling weight to the opinion
of a treating source regarding the nature and severity of a
claimant’s impairment.

See 20 C.F.R. §§ 404.1527(c)(2),416.927(c)

(“[T]reating sources . . . provide a detailed, longitudinal picture
of [a claimant’s] medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual
examinations,

such

hospitalizations.”).

as

consultative

examinations

or

brief

However, the rule also recognizes that not

all treating sources or treating source opinions merit the same
deference.

The nature and extent of each treatment relationship

appreciably tempers the weight an ALJ affords an opinion.
C.F.R. §§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii).

10

See 20

Moreover, as

subsections (2) through (4) of the rule describe in great detail,
a treating source’s opinion, like all medical opinions, deserves
deference only if well-supported by medical signs and laboratory
findings and consistent with the other substantial evidence in the
case record.
(4).

See 20 C.F.R. §§ 404.1527(c)(2)-(4), 416.927(c)(2)-

“[I]f a physician’s opinion is not supported by clinical

evidence or if it is inconsistent with other substantial evidence,
it should be accorded significantly less weight.”

Craig, 76 F.3d

at 590 (emphasis added). Finally, opinions by physicians regarding
the

ultimate

issue

of

disability

and

other

such

findings

dispositive of a case do not receive controlling weight because the
Commissioner reserves the authority to render such decisions.

See

20 C.F.R. §§ 404.1527(d), 416.927(d).
a. Dr. Paul
In this case, on April 17, 2014, Dr. Paul completed a “Medical
statement regarding low back pain for Social Security disability
claim” (“Medical Statement”) (Tr. 380-81), on which he diagnosed
Plaintiff with neck and lumbar spondylosis with radiculopathy (see
Tr. 380).

Dr. Paul indicated that Plaintiff’s spinal impairments

caused neuro-anatomic distribution of pain, limitation of motion of
the spine, decreased grip strength in the left hand, a positive
straight leg raising test, severe burning or painful dysesthesia,
the need to change position more than once every two hours, lumbar
spinal stenosis, cervical lateral recess stenosis, and an inability

11

to ambulate effectively.

(Id.)

Dr. Paul further opined that, as

a result of Plaintiff’s spinal impairments, Plaintiff could stand
and sit for only 60 minutes at a time each, could work for just one
hour per day, and could not perform any lifting, bending, or
stooping.

(Id.)

Dr. Paul concluded that Plaintiff’s symptoms had

disabled her for “[one] year at least.”

(Id.)

Here, the ALJ’s evaluation of Dr. Paul’s opinions complied
with the regulatory requirements.

The ALJ assessed Dr. Paul’s

opinions as follows:
[T]he opinion of Dr. Paul is considered but cannot be
fully credited.
The treatment provider opined that
[Plaintiff] was disabled, an opinion which is not
supported by physical examination. [Plaintiff] had very
little treatment with Dr. Paul, just two visits, although
he told [Plaintiff] that he would complete her disability
forms.
His actual examinations indicated less than
disabling
findings,
and
actually
indicated
that
[Plaintiff] was responding well to prescribed medications
in reducing pain symptoms. Therefore, Dr. Paul’s opinion
is considered to be largely based on [Plaintiff’s]
subjective complaints and cannot be given great
credibility. Little weight is given to this opinion.
(Tr. 24 (internal citations omitted) (emphasis added).)
Plaintiff contests the ALJ’s reasons, emphasized above, for
discounting Dr. Paul’s opinions.

(See Docket Entry 12 at 8.)

In

that regard, Plaintiff argues that, [a]s [P]laintiff’s treating
orthopedist, Dr. Paul is able to provide a unique perspective to
the medical evidence that cannot be obtained from the reports of
individual examinations.”

(Id.)

Plaintiff further contends that

the results of “cervical and lumbar MRIS” and Dr. Paul’s “findings

12

on examination that [P]laintiff had difficulty with fine motor
skills, changing positions, and balancing, that she had positive
Hoffman, Romberg, and Spurling signs, [positive] tandem gait tests,
and [positive] straight leg tests, that she had hypoactive knee and
ankle reflexes, and that she walked with a slow and guarded gait”
all provide support for Dr. Paul’s opinions. (Id.)

Plaintiff’s

argument glosses over both the timing of Dr. Paul’s opinions and
Plaintiff’s subsequent treatment with Dr. Paul.
Notably, Dr. Paul completed the Medical Statement, which
included

his

opinion

that

Plaintiff’s

spinal

impairments

had

disabled her for “one year at least” (Tr. 380), during his very
first examination
treatment

note

of

Plaintiff

reflecting

(see

Tr.

Plaintiff’s

383

(April

request

17, 2014

that

Dr.

Paul

complete disability forms for her and Dr. Paul’s willingness to do
so)).6

Thus, doubt exists as to whether, at the time Dr. Paul

completed

the Medical

“treating

physician”

Statement, he
under

the

would

even

regulations,

qualify

see

20

as a
C.F.R.

§§ 404.1527(c)(2)(i), 416.927(c)(2)(i), or that he “provide[d] a
unique perspective to the medical evidence that [could not] be
obtained from the reports of individual examinations” (Docket Entry
12

at

8

(emphasis

added)).

Accordingly,

the

ALJ

properly

discounted Dr. Paul’s opinions, in part, because Plaintiff had

6

Plaintiff treated on one prior occasion with another orthopedist at the same
practice as Dr. Paul, Dr. Mark Dumonski, on March 21, 2014. (See Tr. 385-87.)

13

pursued “very little treatment with Dr. Paul, just two visits.”
(Tr. 24.)
Moreover,

substantial

evidence

supports

the

ALJ’s

other

rationale for discounting Dr. Paul’s opinions, i.e., that his
findings on examination do not support his extreme restrictions.
(See Tr. 24.)

Just eleven days after Dr. Paul issued his Medical

Statement finding Plaintiff disabled, Plaintiff returned to Dr.
Paul for follow-up, and Dr. Paul observed that Plaintiff had
“miraculously done quite well on [the prescribed Medrol Dosepak]
with marked improvement in neck and low back pain.”
(emphasis added).)
in

Plaintiff’s

Moreover, Dr. Paul found much less tenderness

neck

radiculopathy.

(Id.)

treatment

Dr.

with

orthopedists.

(Tr. 382

and

lower

back

and

no

symptoms

of

The record reflects neither any further

Paul

nor

any

subsequent

visits

to

other

Thus, the ALJ correctly observed that Dr. Paul’s

“examinations indicated less than disabling findings, and actually
indicated

that

[Plaintiff]

was

responding

medications in reducing pain symptoms.”

well

to

prescribed

(Tr. 24.)

In short, the ALJ supported her decision to discount Dr.
Paul’s opinions with substantial evidence.7
7

Plaintiff’s reliance on the January 29, 2016, Medicaid approval letter as
further support for Dr. Paul’s opinion falls short. (See Docket Entry 12 at 8-9;
see also Tr. 8-9.) The Appeals Council considered the letter (see Tr. 2, 8-9),
but correctly determined that the letter “[wa]s not relevant to a claim of
disability under the [] Act.” (Tr. 2.) The letter, which consists merely of
check boxes and contains no analysis, reflects that Plaintiff and her three
daughters met the eligibility criteria for Medicaid coverage under Section 3235
of the Family and Children’s Medicaid Manual. (See Tr. 9.) Section 3235 grants
(continued...)

14

b. Dr. Villarosa
Consultative examiners such as Dr. Villarosa do not constitute
treating

sources

under

the

regulations,

see

20

C.F.R.

§§ 404.1527(c)(2), 416.927(c)(2), and thus their opinions, as a
general proposition, do not warrant controlling weight, Turberville
v. Colvin, No. 1:11CV262, 2014 WL 1671582, at *6 (M.D.N.C. Apr. 23,
2014) (unpublished), recommendation adopted, slip op. (M.D.N.C. May
15, 2014)

(Eagles,

J.).

However,

the ALJ

must

nevertheless

evaluate consultative opinions using the factors outlined in the
regulations, and expressly indicate and explain the weight he or
she affords to such opinions.

See 20 C.F.R. §§ 404.1527(c),

416.927(c) (“Regardless of its source, [the ALJ] will evaluate
every medical opinion [he or she] receive[s]” and where an opinion
does not warrant controlling weight, [the ALJ must] consider all of
the

.

.

.

factors

[in

20

C.F.R.

§§

404.1527(c)(1)-(6),

416.927(c)(1)-(6)] in deciding the weight [to] give to any medical
opinion.” (emphasis added)).
Dr. Villarosa evaluated Plaintiff on November 27, 2012 (see
Tr. 325-28), and diagnosed her with major depression, single
episode, moderate, and panic disorder with agoraphobia (see Tr.
7

(...continued)
coverage to caretakers of dependent children who meet specific income
requirements, and does not depend on disability or inability to work.
See
https://www2.ncdhhs.gov/info/olm/manuals/dma/fcm/man (reflecting that Section
3235 has been recodified as Section 15034 of the Integrated Eligibility Manual);
https://economicbenefits.nc.gov/FN_A/FN_A/server/general/projects/Integrated%2
0Eligibility%20Manual/Integrated_Eligibility_Manual.htm#IEM_Home.htm (containing
eligiblity requirements for caretaker Medicaid) (last visited April 11, 2017).

15

327).

Based

on

that

evaluation,

Dr.

Villarosa

opined

that

Plaintiff’s “current condition would result in some difficulty with
work-related activities,” and that “[s]he may have some difficulty
handling the stress and pressures associated with day-to-day work
activity.”

(Tr. 327 (emphasis added).)

The ALJ discussed Dr. Villarosa’s opinions (see Tr. 22), and
concluded as follows:
The opinion of the consultative psychological examiner,
Dr. Villarosa, is given little weight as his opinion was
vague and appeared to be influenced by [Plaintiff’s]
statements.
His opinion that she may have problems
without any limitations is not specific.
(Tr. 24 (citation omitted).)
Plaintiff does not specifically contest the ALJ’s grounds for
discounting Dr. Villarosa’s opinions, but argues, generally, that
“Dr. Villarosa’s opinion was entitled to more than the limited
weight accorded to it by [the] ALJ,” because “Dr. Villarosa was
chosen by Social Security Disability [sic] to evaluate [P]laintiff
[and,] [a]s a state medical consultant, Dr. Villarosa is a highly
qualified physician and expert in evaluating [P]laintiff’s medical
impairments.”

(Docket Entry 12 at 9.)

from a logical perspective.

Plaintiff’s argument fails

If an opinion source’s status as a

consultative examiner hired by the Social Security Administration
required ALJs to give the examiner’s opinions significant weight,
no reason would exist for ALJ review.

16

Moreover, the ALJ here discounted Dr. Villarosa’s opinions as
vague and overly reliant on Plaintiff’s subjective complaints.
(See Tr. 24.) Both of those reasons constitute permissible grounds
on which to discount a medical source’s opinions.

See Rogers v.

Commissioner of Soc. Sec. Admin., 490 F. App’x 15, 17 (9th Cir.
2012) (concluding ALJ properly discounted as equivocal physician’s
opinion that the claimant “might be unable to deal with the usual
stress encountered in the workplace” (emphasis added)); Craig, 76
F.3d at 590 (finding “sufficient evidence justifie[d] the ALJ’s
rejection”

of

physician’s

opinion

where

opinion

relied

on

claimant’s “subjective reports of pain”).
In sum, Plaintiff’s first claim on review fails to entitle her
to relief.
2. Listing 1.04
In Plaintiff’s second issue on review, she alleges that the
ALJ “erred in failing to find that [Plaintiff’s] impairments meet
or medically equal Listing 1.04.”

(Docket Entry 12 at 10 (bold

font and capitalization omitted).)

More specifically, Plaintiff

asserts that the results of cervical and lumbar MRIs in April 2014,
as well as the findings on examination by Drs. Paul and Dumonski in
March and April 2014 (see id. at 10-11 (citing Tr. 380-887, 38991)),

demonstrate

functional
added)).

that

equivalent

Plaintiff
of

Listing

“me[t]
1.04”

and/or
(id.

at

equal[ed]
11

Plaintiff’s argument fails as a matter of law.

17

the

(emphasis

“Under Step 3, the [Social Security Administration’s SEP]
regulation states that a claimant will be found disabled if he or
she has an impairment that ‘meets or equals one of [the] listings
in appendix 1 of [20 C.F.R. Pt. 404, Subpt. P] and meets the
duration requirement.’”

Radford v. Colvin, 734 F.3d 288, 293 (4th

Cir. 2013) (quoting 20 C.F.R. § 404.1520(a)(4)(iii)) (internal
bracketed numbers omitted).

“The listings set out at 20 CFR pt.

404, subpt. P, App. 1, are descriptions of various physical and
mental illnesses and abnormalities, most of which are categorized
by the body system they affect.

Each impairment is defined in

terms of several specific medical signs, symptoms, or laboratory
test results.”

Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990)

(internal footnote and parentheticals omitted).
“In order to satisfy a listing and qualify for benefits, a
person must meet all of the medical criteria in a particular
listing.”

Bennett, 917 F.2d at 160 (citing Zebley, 493 U.S. at

530, and 20 C.F.R. § 404.1526(a)); see also Zebley, 493 U.S. at 530
(“An impairment that manifests only some of those criteria [in a
listing],

no matter

how

severely,

does

not qualify.”).

“An

impairment or combination of impairments medically equals a listing
when it is at least equal in severity and duration to the criteria
of any listed impairment.”

Grimes v. Colvin, No. 1:14CV891, 2016

WL 1312031, at *4 (M.D.N.C. Mar. 31, 2016) (unpublished) (Osteen,
Jr., C.J.) (citing 20 C.F.R. § 416.926(a)-(b)); see also Lewis v.

18

Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (“A finding of medical
equivalence must be based on medical evidence only.” (citing 20
C.F.R. § 404.1529(d)(3)) (emphasis added)). “[O]nly where there is
ample evidence in the record to support a determination that a
claimant’s impairment meets or equals one of the listed impairments
must the ALJ identify the relevant listed impairments and compare
them to evidence of a plaintiff’s symptoms.”

Reynolds v. Astrue,

No. 3:11CV49, 2012 WL 748668, at *4 (W.D.N.C. Mar. 8, 2012)
(unpublished) (citing Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th
Cir. 1986)).
For Listing 1.04, a claimant must offer proof not only of a
“[d]isorder[] of the spine,” such as “degenerative disc disease,”
but also “result[ant] compromise of a nerve root . . . or the
spinal cord,” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.04, and:
A.
Evidence of nerve root compression characterized by
neuroanatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine);
or
B.
Spinal arachnoiditis, confirmed by an operative note
or pathology report of tissue biopsy, or by appropriate
medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for
changes in position or posture more than once every 2
hours;
or

19

C.
Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate
medically acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting in
inability to ambulate effectively, as defined in 1.00B2b.
(Id. (emphasis added).)
In this case, although the ALJ did describe the requirements
of Listing 1.04 in her decision, she did not provide any specific
analysis supporting her finding that Plaintiff’s degenerative disc
disease did not meet or equal the criteria of that listing.
Tr. 18.)

(See

However, the ALJ’s omission of such analysis remains

harmless under the facts presented here, because Plaintiff cannot
show

“there

is

ample

evidence

in

the

record

to

support

a

determination that [she] met or equalled” Listing 1.04, Cook, 783
F.2d at 1172 (emphasis added).

(See Docket Entry 12 at 10-11.)

As an initial matter, Plaintiff neither clarified in her
argument whether her spinal impairments met or equaled the criteria
of paragraphs A, B, or C of Listing 1.04, nor stated whether she
relied on her cervical or lumbar impairments (or both) to meet or
equal the listing.

(Id.)

Plaintiff’s failure to develop that

argument should defeat her claim of meeting/equaling Listing 1.04.
See 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 hold its peace.” (internal quotation
marks omitted)); Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014
WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014) (unpublished) (“A

20

party should not expect a court to do the work that it elected not
to do.”).
Further, ample evidence does not exist that Plaintiff’s back
impairments could meet or equal the criteria of Listing 1.04. With
regard to paragraph A, the record lacks evidence of “motor loss,”
defined as “atrophy with associated muscle weakness or muscle
weakness.”

20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.04A.

The

regulations further explain that “a report of atrophy is not
acceptable

as

evidence

of

significant

motor

loss

without

circumferential measurements of both thighs and lower legs, or both
upper and lower arms, as appropriate, at a stated point above and
below the knee or elbow given in inches or centimeters.”
§ 1.00E1.

Id.,

Although the record contains some evidence of reduced

strength in Plaintiff’s left upper extremity and bilateral legs,
those reports lack any accompanying measurements demonstrating
atrophy.

(See Tr. 380, 383, 386.)

Paragraph B of Listing 1.04

requires a diagnosis of spinal arachnoiditis, which the record
clearly lacks.

Respecting paragraph C, Plaintiff cannot show an

“inability to ambulate effectively,” as the record lacks evidence
that Plaintiff requires a hand-held assistive device to ambulate
that limits the use of both her upper extremities.

See 20 C.F.R.

Pt. 404, Subpt. P, App’x 1, §§ 1.00B2b(1), 1.04C.
Moreover,

despite

Plaintiff’s

bald

assertion

that

her

“combination of symptoms results in [her] meeting and/or equaling

21

the functional equivalent of Listing 1.04” (Docket Entry 12 at 11
(emphasis added)), she has not come forward with medical evidence
that would warrant a finding that her impairments rise to a level
equivalent to the foregoing listing requirements (see id. at 1011).

“A

claimant

cannot

qualify

for

benefits

under

the

‘equivalence’ step by showing that the overall functional impact of
[her] unlisted impairment or combination of impairments is as
severe as that of a listed impairment.”

Zebley, 493 U.S. at 531

(emphasis added).
Thus,

the

ALJ

did

not

err

by

finding

that

Plaintiff’s

impairments failed to meet or equal Listing 1.04.
3. RFC
Lastly, Plaintiff alleges that the “ALJ [] erred in finding
that [Plaintiff] has the [RFC] to perform a reduced range of light
work.”

(Docket Entry 12 at 11 (capitalization and bold font

omitted).)
Medical

More particularly, Plaintiff maintains that Dr. Paul’s

Statement

and

Plaintiff’s

testimony

establish

that

Plaintiff cannot perform work “at any substantial gainful level.”
(Id. at 11-12 (citing Tr. 35-50, 380-81).)
contends

that

accurately

the

account

ALJ’s
for

“RFC

analysis

[Plaintiff’s]

Plaintiff further

failed
mental

concentration, persistence, or pace (“CPP”).”

to

limitations

22

and
in

(Id. at 12 (citing

Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015)).)
allegations warrant no relief.

fully

Plaintiff’s

RFC measures the most a claimant can do despite any physical
and

mental

limitations.

Hines,

§§ 404.1545(a), 416.945(a).

453

F.3d

at

562;

20

C.F.R.

An ALJ must determine a claimant’s

exertional and non-exertional capacity only after considering all
of a claimant’s impairments, as well as any related symptoms,
including

pain.

See

Hines,

453

F.3d

at

562–63;

20

C.F.R.

§§ 404.1545(b), 416.945(b). The ALJ then must match the claimant’s
exertional

abilities

to

an

appropriate

level

of

sedentary, light, medium, heavy, or very heavy).
§§ 404.1567, 416.967.

work

(i.e.,

See 20 C.F.R.

Any non-exertional limitations may further

restrict a claimant’s ability to perform jobs within an exertional
level.

See 20 C.F.R. §§ 404.1569a(c), 416.969a(c).

An ALJ need

not discuss every piece of evidence in making an RFC determination.
See Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir.
2014) (citing Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.
2005)).

Instead, the ALJ need only “build an accurate and logical

bridge from the evidence to [the] conclusion.”

Clifford v. Apfel,

227 F.3d 863, 872 (7th Cir. 2000).
In the instant case, the ALJ supported her RFC determination
with substantial evidence. She discussed Plaintiff’s testimony and
the

objective

medical

evidence

(including

Statement) in a fair amount of detail.

Dr.

Paul’s

(See Tr. 21-23.)

Medical
However,

the ALJ ultimately did not find Plaintiff’s testimony entirely
credible (see Tr. 23), and Plaintiff has not raised any particular

23

challenge

to

the

ALJ’s

evaluation

of

Plaintiff’s

complaints (see Docket Entry 12 at 6-13).

subjective

Further, the ALJ gave

“[l]ittle weight” to Dr. Paul’s Medical Statement (see Tr. 24) and,
for the reasons discussed in more detail in conjunction with
Plaintiff’s

first

assignment

of

error,

substantial

evidence

supports the ALJ’s decision to afford little weight to Dr. Paul’s
Medical Statement.
Plaintiff additionally maintains that the ALJ’s “RFC analysis
failed to fully and accurately account for [Plaintiff’s] mental
limitations in [CPP].”

(Docket Entry 12 at 12.)

According to

Plaintiff, “[w]here a plaintiff has limitations in [CPP], an ALJ
does

not

account

for

such

limitations

by

restricting

the

plaintiff’s [RFC] to simple, routine tasks or unskilled work” (id.
(citing Mascio)), 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 plaintiff’s limitation in [CPP]”
(id. at 12-13 (citing Mascio)). Plaintiff thus argues that the ALJ
failed to account for Plaintiff’s moderate difficulties in CPP “by
merely limiting [P]laintiff to simple, routine, and repetitive
tasks (“SRRTs”).”

(Id. at 13.)

Plaintiff’s argument misses the

mark.
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

24

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
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); see also
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,”
unskilled

because

work

ALJ

“gave

adequately

abundant

accounted

for

explanation”
claimant’s

for

why

moderate

limitation in CPP, by highlighting the claimant’s daily activities
and treating physicians’ opinions).
As an initial matter, Plaintiff glosses over the fact that the
ALJ’s

RFC

contained

mental

restrictions

prohibition on activities other than SRRTs.
25

in

addition

to

the

(See Docket Entry 12

at 12-13.)

The ALJ also restricted Plaintiff to no contact with

the general public, only occasional contact with supervisors and
coworkers, and only routine changes in the work environment.
Tr. 21.)

(See

Moreover, the ALJ’s decision provides a sufficient

explanation

as

to

why

those

restrictions,

in

combination,

sufficiently accounted for Plaintiff’s moderate deficit in CPP.
First, the ALJ discussed Plaintiff’s testimony regarding her
mental

symptoms,

but

concluded

that

Plaintiff’s

“statements

concerning the intensity, persistence and limiting effects of [her]
symptoms [we]re not entirely credible.”

(Tr. 23.)

As discussed

above, Plaintiff failed to raise a direct challenge to the ALJ’s
evaluation of Plaintiff’s subjective complaints. (See Docket Entry
12 at 6-13.)
Second, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.
22, 24.)

(See Tr.

The ALJ noted the opinion of consultative psychological

examiner Dr. Villarosa that Plaintiff “had no difficulty . . .
maintaining focus and concentration sufficient to retain and follow
directions.”

(Tr. 23; see also Tr. 325-28.)

The ALJ also gave

“great weight” to the state agency psychological consultants’s
opinions.

(Tr.

24.)

Notably,

both

consultants

found

that

Plaintiff suffered moderate limitation in CPP (see Tr. 60, 87), but
that, despite that concentrational deficit, Plaintiff remained
“able to understand and remember simple instructions” (Tr. 63; see

26

also Tr. 90), and possessed “the ability to maintain attention and
concentration for 2 hours at a time as required for the performance
of simple tasks” (Tr. 91; see also Tr.

64 (emphasis added)).8

Under these circumstances, the ALJ adequately explained why a
restriction to SRRTs, as well as restrictions on interpersonal
interaction

and

workplace

changes,

sufficiently

accounted for

Plaintiff’s moderate limitation in CPP.
In sum, the ALJ complied with Mascio and supported her RFC
determination with substantial evidence.
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

8

Entry

11)

be

denied,

that

Both state agency psychological consultants concluded that Plaintiff remained
capable of performing SRRTs with low interpersonal demands, but also included
restrictions to a low stress environment and a low production setting. (See Tr.
62, 64, 65, 88, 92.) The ALJ, despite giving “great weight” to the state agency
psychological consultants opinions (see Tr. 24), did not include a restriction
to a low stress environment or a low production setting in the RFC (see Tr. 2122).
Neither Plaintiff nor the Commissioner addressed this apparent
inconsistency between the consultants’s opinions and the RFC in their briefing
to this Court. (See Docket Entry 12 at 6-13; Docket Entry 15 at 7-20.) The
Court thus need not address that subject. See generally Zannino, 895 F.2d at 17
(“[A] litigant has an obligation to spell out its arguments squarely and
distinctly, or else forever holds its peace.”); Hughes, 2014 WL 906220, at *1 n.1
(“A party should not expect a court to do the work that it elected not to do.”).

27

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

28