BRIGHT V. COLVIN

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER, signed on 06/21/2017. This Court RECOMMENDS that Plaintiff's Motion for Judgment on the Pleadings 9 be DENIED, Defendant's Motion for Judgment on the Pleadings 12 be GRANTED, and the final decision of the Commissioner be affirmed. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
VERONICA BRIGHT,
Plaintiff,

v
NANCY BE,RRYHILL,
Acting Commissioner of Social
Secudty,

Defendant.

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1,:1,6CY459

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE TUDGE
Plaintiff, Veronica Bdght, brought this action pursuant to Sections 205(9) and
1631(c)(3)

of the

1383(c)(3)),

Social Secudty

Act (the "Act"), as amended (42 U.S.C. gg a05(g)

and

to obtain review of a ftnal decision of the Commissioner of Social Securityl

denying her claims for a Petiod of Disability ("POD"), Disability Insurance Benefits ("DIB"),
and Supplemental Security Income ("SSI") under Tities

II

and

XVI of the Act. The Court has

before it the certified administtative record and cross-motions for judgment. (Docket Entdes

6, 9, 1'2.) Fot the reasons discussed below,

it is recommended that Plaintiffls Motion for

Judgment on the Pleadings be denied, Defendant's Motion forJudgment on the Pleadings be
gtanted, and the Commissioner's fìnal decision be affirmed.

t Nancy Berryhill recently became the Acting
Commissioner of Social Secutity. Pursuant to
Rule 25(d) of the Federal Rules of Civil Ptocedure, Nancy Berryhill should be substituted for Carolyn
W. Colvin as Defendant in this suit. No further action need be taken to continue this suit by reason
of the last sentence of section 205(9) of the Act, 42 U.S.C. $ 405G).
1,

I. PROCEDURAL HISTORY
Plaintiff filed applications for a POD, DIB, and SSI in October of

201,2, alleging a

disability onset date ofJune 1,5,2009. Qr.1,99-208.)2 These applications were denied initially
and upon reconsidetation. (Id. at 116-17 , 1,40-41,.) Plaintiff then requested a hearing before
an Administtative LawJudge

("ALJ"). (Id. at 160-61.) Plaintiff, her attotney, and a vocational

expert ("VE") appeared at the heating on June 26,201,4. (Id. at 44-95.) On Deceml>er 22,
201.4, the

ALJ detetmined that Plaintiff was not disabled under the Act. (Id. at27-35.) Plaintiff

theteafter sought review of the ALJ's decision from the Appeals Council. (Id. at6.) Also, new
evidence was submitted on behalf of

Plaintiff. (Id. at 10-15, 1,6-1,9.) On March 9,201.6,the

Appeals Council denied Plaintiffs request for review, thereby making the ALJ's decision the
Commissioner's final decision for purposes of review. (Id. at 1-4.)

II. STANDARD OF REVIEW
The scope of judicial teview of the Commissioner's final decision is specific and
naffow. Snith

u.

Schweiker,795F.2d343,345 (4th Cir. 1986). Reviewis limited to determining

if there is substantial evidence in the tecotd to support the Commissioner's decision.
gg3 F.2¿,31,,34(4th
$ a05G); Hanter u. Swlliuan,

Cit. 1,992); Hay

(4th Cit. 1990). In reviewing fot substantial evidence, the

evidence, make credibility determinations,

or

2

u.

Cout

substitute

Sølliuan, g07

F

42 U.S.C.

.2d,1,453, 1,456

does not re-weigh conflicting

its judgment for that of

the

Ttanscript citations refer to the Administrative Transcrþt of Record filed manually with the
Commissioner's Answer. (Docket Entry 6.)
2

Commissioner. Craigu. Chater,76F.3d 585, 589 (4th

Cir

1,996). The issue befote the

Cout,

therefore, is not whethet Plaintiff is disabled but whether the Commissionet's fìnding that she

is not disabled is suppotted by substantial evidence and was reached based upon a coffect
application of the relevant law. Id.

III. THE

ALJ'S DISCUSSION

The ALJ followed the five-step3 sequential analysis set forth in 20 C.F.R.
and 41,6.920 to ascertain whether the claimânt is disabled.

See

Admin.,174F.3d 473,475 n.2 (4th Cir. 1999). At step one, the

SS

404.1520

Albright u. Comm'r of Soc.

Sec.

'{LJ detetmined that Plaintiff

had not engaged in substantial gainful activity since the alleged onset date of June 15,2009.

Çr.29.) The AfJ found the following

sevete impairments at step

two: "severe degenerative

disc disease; paroxysmal atÀal fibrillation; anxietyi and depression." (Id.)

At step three, the

ALJ determined that Plaintiff did not h^ve "afl impairment or combination of impairments

that meets

ot

medically equals the sevetity

Appendix 1. (Id.

of one of the listed

impafuments" found in

^t30.)

The ALJ next set fonh Plaintiffs Residual FunctionalCapacíty ("RFC") and found that
she can perfotm a reduced range

of light work in that she can "\ft andf or caffy up to 20

pounds occasionally and 10 pounds frequently," and she

3

"The Commissioner uses a five-step process to evaluate disability claims." Hancock u. Astrue,
667 F.3d 470,472-73 (4th Cir. 2012) (cttns 20 C.F.R. SS 404.1520(a)(4), a1,6.920(Q$)). "Under this
process, the Commissioner asks, in sequence, whether the claimant (1) worked during the alleged
pedod of disability; Q) had â severe impairment; (3) had an impairrnent that nlet or equaled the
tequirements of a listed impairment; (4) could return to his past relevant work; and (5) if not, could
perfotm any othet work in the national economy." Id. A fi.dirg adverse to the claimant at any of
sevetal points in this five-step sequence forecloses a disabiJity desþation and ends the inqurry. 1/.
J

can sit, stand, andf ot walk up to six hours in an eight-hour
wotkday. She requites a sit/stand option, with no more than two
position changes in any hout while temaining on task; and, she
further requires the use of a cane to change positions. She must
avoid all exposure to hazards such as dangetous machinery and
unprotected heights. fPlaintiffl can occasionally intetact with
coworkets, supervisors, and the public. She is furthet limited to
simple, routine, and repetitive tasks (consistent with unskilled
wotk).
(Id. at 32.)

At the foutth step, the ALJ determined that Plaintiff could not perfotm

past televant

work.

Qd. at

any

of her

35-36.) Finally, at step five, the ALJ found that there were jobs

existing in significant numbers in the national economy that Plaintiff could perfotm. (Id. at

36-38.) The AIJ thus concluded that Plaintiff was not disabled. Qd. at38.)

IV. ANALYSIS
Plaintiff asks this Court to reverse the decision of the Commissioner based on two
arguments. First, Plaintiff asserts that the ALJ failed to account for Plaintiffs limitations in
concentration, petsistence and pace ("CPP") in setting out her RFC, which resulted in a flawed
hypothetical presented to the VE tegarding Plaintiffls ability to adjust to other work. (Docket

Er,t

y

1,0

at 1,2-1,6.) Second, Plaintiff contends that the ,tppeals Council erred in not

considedng two questionnaires that she submitted after the ALJ's decision: a Mental Residual

Functional Capacity

'{ssessment

('MRFCA") ftom Dr. Theresa Yuschok, dated February

201.5, and a Residual Functional Capacíty

Fotm ("RFCF") ftom Dt. Sunil Dogra,

2,

dated

February 9,201,5. (Id. at 16-18.) For the following reasons, these arguments fail.

1. The ALJ sufficiently accounted for PlaintifPs moderate difficulties in CPP.
Plaintiff first atgues that the ALJ failed to account for PlaintifFs limitations in CPP in
4

setting out her RFC, which resulted in a flawed hypothetical ptesented to the VE tegatding

Plaintiffs ability to adjust to other work. Q)ocket Errtry 1,0 at1,2-1,6.) Plaintiff relies upon the
published opinion by the United States Court of Appeals for the Fourth Circurt in Mastio

u.

Coluin,780 F.3d 632 (4th Cu.201,5). In Mascio, the Fourth Circuit detetmined that remand
was apptopriate for three distinct reasons, one of which is relevant to the analysis of this case.

Specifically, the Fourth Cfucuit remanded in Ma¡tio because the hypothetical the
the VE, and the corresponding RFC assessment, did not include

^ny

AIJ

posed to

mental limitations other

than unskilled work, despite the fact that, at step thtee of the sequential evaluation, the ALJ
detetmined that the claimant had modetate difficulties in maintaining CPP. Mascio,780 F.3d

^t

637 -38.

The Fourth Circuit specifically held that it "agree[s] with other citcuits thatanALJ does

not account fot a claimant's limitations in concenttation, persistence, and pace by restricting

the hypothetical question to simple, routine tasks or unskilled work." Id. at 638 (quoting
Il/inschel u. Comm'r of Soa ftec.,631.

F.3d

L1.76,11S0 (11th

Cir.

201,1))

(internal quotation marks

omitted). In so holding, the Fourth Cfucuit emphasized the distinction between the ability to
petform simple tasks and the ability to stay on task, stating that "[o]nly the lattet limitation
would account for a claknant's limitation in concentration, petsistence, or pace." 1/. Although
the Fourth Circuit noted that the ALJ's ettot might have been cured by an explanation as to

why moderate difficulties in CPP did not translate into a limitation in the claimant's RFC,

it

held that absent such an explanation, remand was necessaty. Id.

Here, the ALJ determined at step three that Plaintiff had the following limitations in
5

CPP:

\)7ith regard to concentration, petsistence or pace, fPlaintiffl has
moderate difficulties. The treatment tecords reflect the claimant
generally had
orgarized thought process and followed
^Ít any complications
commands without
@,xhibit 1,8F / 53, 71', 95
20F /34). She also testified that she used to read and wdte
and
all the time but now has no desire to do so as she has to be
inspired. The [ALJ] finds the claimant has rnild diffìculties in
concenttation, petsistence, oT pace.

Çr.31

referencingTr. 1051, 1,069,1.093,1,243 (emphasis added).)

It is not

mild or

for the

limitations wete considered
recommendation, the Coutt

will

moderate; however,

assume that the

clear whether these

purposes

of

this

AIJ found that Plaintiff had modetate

difficulties in CPP.a "Pursuant to Mascio, once an ALJ has made a step three finding that

a

clumant suffets from moderate difficulties in concentration, persistence, or pâce, the ALJ
must either include a corresponding limitation in her RFC assessment, or explain why no such

a

Sevetal disttict courts have distinguished "rnild" versus "moderate" difficulties in CPP in
determining whethet Mascio is applicable. See, e.g.,Roberson u. Coluin, No. 3:15-CV-570-MOC,201,6WL
58441,48, at x6 SV.D.N.C. Oct. 4,201,6) (unpublished) ('As this case concerns only'mild difficulties,'
it does not trigget the RFC discussion requirements of. Mascio per se."); Matlhew¡ u. Clmn'r, Soc. Sec.
Admin., No. CV SAG-15-3341.,201.6WL 4687635,at*4 (D. Md. Sept. 7, 2016) (unpublished) ("This
Coutt has yet to extend Mascio to cover a finding of only mild limitations, and will not do so on this
record."); Grifis u. Coluin, No. 2:12CV29-RLV, 2015 WL 4478821, at x6 (]X/.D.N.C. July 22, 201,5)
(unpublished) (citing the ALJ's firdirg that claimant suffered only mild limitations in CPP as the ftst
of thtee factors distinguishing the case ftom Matcio). Bat see Bacharud u. Coluin, No. 1:15CV00686,201.6
WL 40741,48, at *7-B CIvLD.N.C. July 29,2016) (unpublished) (considedng Mascio implications whete
the ALJ found mild limitations in plaintiffs CPP); Ashmaft u. Colrin, No. 3:13-CV-417-RLV-DCK,
2015 lfl, 9304561,, at *9 [V.D.N.C. Dec. 21, 2015) (unpublished) (tejecting the Commissioner's
ârgument "that remand is not in otder because this case involves 'mild'limitations"); Reinhørdt a. Coluin,
No. 3:14-CV-00488-MOC,201,5WL 1,756480, at *3 0Ø.D.N.C. Apr.17,201,5) (unpublished) ('Mascio
cleatþ imposes on the Commissionet a duty to explain why such mild mental health impairments
found at step two do not ttanslate into work-related limitations when plaintiffs RFC for wotk is
considered.").
6

limitation is necessary
23951.08, at x3 (D.

."

See Talmo u.

Cnnm'r, Soc. Sec., Civil Case No. ELH-1.4-221,4,201,5

WI-

Md. May 19,201,5) (unpublished). Here, the A{ did the latter.

More specifically, the ALJ provided a lengthy tecitation of Plaintiffs complaints of
mental impairments and her mental treatment, which is supported by substanttal evidence:

fPlaintiffl has complained of anxiety, panic attacks, deptession,
and insomnia; she has been prescribed psychotropic medications

Q.t., Xanax and Pristiq); and, she has participated in
psychotherapy. Howevet, fPlaintif{ has been repeatedly noted
as alett and oriented with cooper^tive attitude; appropriate
^
mood and affect and good insight, judgment, attention and
memory. Het thought processes have been logical and cohetent
as well. Additionally, she has consistently denied hallucinations,
delusions, and suicidal ideations. In fact, fPlaintiffs] condition
has been generally descdbed as stable. Essentially, dudng the
pedod in question, she was often assigned a GAF' score of 60,
signifying only moderate symptoms or moderate difficulty in
social, occupational, or school functioning (Exhibits 2F /34;3tr;
5F; 7F; 1,1F / 97 ; 13F / 30; and 20tr / 247, 254).

As of Apdl 201,4, the treatment recotds show that fPlaintiffl
tegularly denied any changes in mood in addition to depression.
Albeit, fPlaintiffsl sporadic episodes of anxiety and slight
depression were noted to be caused by pain; recent pulmonary
embolisms; and the stress of waiting on disability (Exhibits
20F/23, 28, 243, 293). Consequently, in August 201,4, het
psychiatrist ptovided a medical source statement indicating
[Plaintiffl was able to handle her own finances; she was able to
think clearly; and, her anxiety disotdet was complicated by her
medical illnesses (Exhibits 19F and 20F /31).

Çr. 34-35 referenùngTr. 322, 37 6-96,405-503, 508-09, 654,802,1209,

1.232, 1237 , 1,240, 1.452,

1456,1463,1,502.) The ALJ also noted that although "[Plaintiffl further alleged she was unable

to work due to her severe mental impairments," this "allegation is also inconsistent with the
evidence contained

in [Plaintiffs] medical records, which reflects
7

she is able

to perform üght,

unskilled wotk, as defined in the residual functional capacity herein."

Sevetal courts have found

a

temand putsuant

to

(It.

3a.)

Mascio unnecessary where an

explanation by the ALJ is explicitly supported by substantial evidence. See, e.{., I-.edbeîter
Coluin,

No. 15-CV-71,4,

201,6

WL

1258473, at *6-7 (D. Md. Mat. 31,, 201,6) (unpublished)

(refusing to remand under Ma¡do because the
evidence

a.

'{.LJ's

explanation was suppotted by substantial

in that it discussed plaintifPs "ability to successfully function as a full-time college

level student" as well as his efforts in seeking employment and utilizing vocational services
(emphasis omitted)), re?ort arud recommendøtion adopted, No. 2:15-CV-32-D,2016

WL

4581,329

(E.D.N.C. Sept. 1, 201,6); Homingu. Coluin, No. 3:14-CV-722-RJC,201,6 \)ØL 11231,03, at*4 &.
n.2 flX/.D.N.C. Mat. 21,,201,6) (unpublished) (quotingWinschel,631F.3d at 1180) (findingthat

"the ALJ's discussion of þ]laintiffs mental limitations and the tesulting RFC finding [were]
suppotted by substantial evidence" in that the ALJ assessed plaintifPs testimony, treâtment
tecords, and the opinions of State agency medical consultants); Gaatreaa u. Coluin, No. 2:15CV-81, 201,6 WL 131431,4, at x9 (E.D. Va. Feb. 26, 2016) (unpublished) (",{.s shown by the
ALJ's detailed analysis of the evidence in the medical record, his RFC not only considered all

of the evidence-both physical

and mental

impaitments suppotted by the tecotd."),

WL

1,2981,22

symptoms-but also propedy accounted for any

reþ0rt and recommendaîion adopted,No. 2:15-CV-81,,201.6

F^D. Va. Mat. 31,2016), afd

sab nom. Gaatreaa u. Berythill,

No. 16-1628,201,7

WL 1423297 (4th Cir. Apr. 21, 2017). As this Court has noted, a mere recitation of
claimant's treatment history

will not suffice; r^ther, the ALJ must "build a logical

the

bridge

between the evidence of record and het conclusions." Martin u. Berryhill, No. 1:16-CV-171,
8

201,7

WL728234, àr.*4-6 (À4.D.N.C. treb. 23,201,7) (unpublished) (citing Matcio,780 F.3d at

638); rce also Social Security Ruling ("SSR") 96-8p, Assessing Residual Functional Capacity

in

Initial Claims, 1996 ìØL 374184, at xT [uIy 2,1996) ("The RFC assessment must include

a

narcaive discussion describing how the evidence supports each conclusion, citing specific

medical facts (e.g., labor^toty findings) and nonmedical evidence (e.g., daily activities,
observations).").
Here, the above mental RFC explanation thoroughly justifies the

A{'s

assertion that

Plaintiff was able to petfotm light, unskilled work by pointing to record evidence of-among
other things-Plaintiffls stable mood, clear thinking, and ability to handle her own finances.

Çr.

34-35;

see

al¡o

Tr. 802, 1,209, 1,237,1240,1,456.) It is a nanattve discussion that builds

a

"logical bridge between the evidence of tecord and [the AIJ's] conclusions." Martin,2017 WL
728234 at x6 (citing Masrio,780 F.3d at 638); ¡ee also Pearce, 2016
I-¿dbetter, 201,6

11,231'03

4574446 at x5 (citing

WI- 1258473 at *6) ("[E]ven if the RFC determination and hypothetical

questions to the
explanation

WL

VE did not satis$r the requirements of

Masdo, A.LJ Hatper offered a[n]

fot failing to fìnd that þlaintiffl was further restricted."); Homing 201,6 WL

at*4 & n.2 (quotingWinschel,631, tr.3d at 1180); Gautreøø,2016WI-

1,31,4314

at*7-8.

Thus, the ALJ's explanation sufficiently accounts fot Plaintiffs moderate difficulties in CPP
and supports the reasoning that no further limitations in the RFC were necessâry.

Plaintiffs atgument to the conffarT is unpersuasive. Indeed, Plaintiff highlights the
holding in Mascio that an ALJ "does not account fot a claimant's limitations in concentration,
petsistence, and pace by testricting the hypothetical question
9

to ISRRTs] or unskilled work."

780 F.3d 632 at 638 (quotation omitted). However, she fails to acknowledge that an RFC

Iimiting a clairnant to only SRRTs-despite the claimant's moderate difficulties in CPP-can
survive Mascio as long as thete is a sufficient explanation as to why the ALJ found that no

further limitations were necessary. Id.;Talmo,2015 nfl. %951,08 at*3. In the present case,

âs

discussed above, thete is such an explanation. The undersigned thus finds that there is no
cause

fot temand pursuant to

Mascì0.

2,. TheAppeals Council did not err in refusing to consider the two
questionnaires Plaintiff submitted following rhe ALJ's decision.

Next, Plaintiff contends that the ,tLJ's decision should be reversed for further
evaluation

of the "flew and material

evidence submitted

to the Appeals Council but not

weighed by that body." (Dock Ent y 10 at 1,6.) More specifically, Plaintiff contends that the

Appeals Council ened

in not

considering a MRFCA from

Dr. Theresa Yuscholi,

dated

February 2,2015, and a RFCF ftom Dt. Sunil Dogta, dated Febtuary 9,201.5. pocket Entry
1.0

at 16-18.) The administative scheme for handling Social Secudty claims permits the

claimant to offer evidence in support of the claim initially to the ALJ. Once the
a decision, the claimant is permitted

A{

renders

to submit additional evidence to the Appeats Council

as

palt of the ptocess fot requesting review of an advetse ALJ decision, and the Appeals Council
must considet the additional evidence if it "is (a) new,

þ) material, and (c) telates to the pedod

on or before the date of the ALJ's decision." lI/ilkins

u. Sec'1t,

Dtp't

of

Health dy Human Servr.,

953 F.2d 93, 95-96 (4th Cit. 1,991) (citation omitted); rce a/¡:o 20 C.F.R. SS 404.970(uX5),
41'6.1,470(a)(5). "Evidence is new 'if it is not duplicative or cumulative' and is material

10

if

there

is 'a reasonable possibility that the new evidence would have changed the outcome."' Meler
Astrwe, 662 F.3d 7 00, 7 05 (4th Cir. 201,1) (quoting lØilkins,

"[IIh.

g

53

F

.2d

^t

9

u.

6).

Appeals Council must consider new and material evidence telating to that

period prior to the ALJ's decision in determining whether to grant review, even though it may

ultimately decline review." IØilþ.in¡,953F.2dat95.

If

the additional evidence fails to meet

any of the above three ctiteria (i.e., it is not ne% ot not matetial, ot does not relate back to the

pedod on or before the ALJ's decision), then the Appeals Council need not considet
deciding whethet to grant review.

See

20 C.F.R.

SS

404.970(uX5), 41,6.1,470(a)(5). Moreovet,

when the Appeals Council decides to deny review, it need not provide
teasoning. Me1er,662F.3d

^t705.

it in

^ny

explanation of its

"In evaluating whether temand is necessary, we view the

administrative record as a whole, including the new evidence, to determine whether substantial
evidence supports the Commissioner's decision." Parhøm u. Comm'rof Soc.|ec.,627 F. App'x
233, 233 (4th Cir. 201,5) (unpublished) (citing lYilkins, 953 F.2d

^t

96).

Hete, the ,A.ppeals Council "looked a('Plainttf?s additional evidence, detetmined that
the infotmation was about

^

"later time," and therefore found that it did not affect the ALJ's

decision. Gt.2,10-19.) The Appeals Council therefote found no basis for granting Plaintiffs
request fot review and did not receive the additional infotmation into the record.s (Id. at1,,

t

tWhere, as here, the Appeals Council declines to accept additional evidence, some courts in the
Foutth Circuit considet an appeal of that issue under "senteflce six" of 42 U.S.C. $ a05G), rather than
"sentence four." See, e.g., Barts u. Coluin, No. 4:13-CV-23,2014WL 3667097 , *9 n.6 (tV,D.Va. Jliy 22,

2014) (rnpublishecl) (collecting cases). As explained above, the sentence four factors are that the
evidence must be (a) new; (b) material; and (c) relate to the pedod on or befote the date of the ALJ's
decision. ll/ilkins,953 F.2d at95-96. The sentence six factors
tha;t the evidence (a) must be
^ne
televant to the determination of disability at the time the application was initially filed; þ) the evidence
11

6.) Despite Plaintiffs ârguments to the conúar!, the Âppeals Council did not err in denying
teview because neither questionnaire meets all three

of the above tequitements

(newness,

materiality, and telation back) such that they would have changed the outcome of Plaintiffs
disability determinati on. Me.yer, 662

F .3

d

^t

70

5.

A. Dr. Yuschok's MRFCA
Dt. Yuschok's MRCFA is a questionnaire, dated February 5,201,5,which indicates that
she has been treating Plaintiff monthly since Match 2013.

Gt. 16.) The document futthet

notes Plaintiffs diagnoses, GAF scotes, and Plaintiffs physical conditions which impact

Plaintiffs mental impairments. Qd.) Dr. Yuschok then provides a personal assessment of
Plaintiff, raing het functioning level in numetous categoties. Qd. at 17-1,9.) Dr. Yuschok
concludes with sevetal "yes" or

finances. (Id. at

"no"

responses as to Plaintiffs ability to wotk and manage

1,9.)

Based upon the contents

of the MRCFA, it is.unclear whether the limitations

tefetenced in Dt. Yuschok's MRFCA relate back to the televant period in this case. However,

must be material to the extent that the Commissione/s decision might reasonably have been different
had the new evidence been befote her; (c) there must be good cause as to why the claimant failed to
submit the evidence when the claim was before the Commissionet; and (d) the claimant must make at
least a general showing of the nâtute of the newly submitted evidence to the reviewing court. See, e.g.,
Doll-Carpenter u. Cornm'r,4:1,1,-CV-28,201,2WL 5464956, at*4 (\7.D.Va. May 7,2012) (unpublished)
(ci(ng Miller u, Barnhart,64 Fed. App'*. 858, 859 (4th Cir. 2003). The Court need not resolve the issue
of which sentence applies here because, given their ovedapping nature-particularþ with respect to
materiality-the result remains the same. Barts, 201.4 fØL 3661097, at *9 n.6 (unpublished) (fi"dirg
that "tlre additional evidence submitted by þlaintrtfl to the ,{ppeals Council [was.l not material, a
standard applicable under both sentence fout and sentence six," thus the court "need not further
address which sentence would apply" had the case resulted in remand).
12

even

if Dt.

Yuschok's February 201,5 opinion relates back, the -Appeals Council's errot is

harmless as Plaintiff cannot demonsttate that the evidence is new or material As a pteliminary

matter, the Court notes that Dr. Yuschok circled "no" in response to the question "Do you
beüeve that your patient can work on a tegular and sustained basis in light of his ot het mental

impaitment?"

Qd. at

19.) However, this conclusory statement "is not

[it] is not a decision to be made by a medical ptovider." Bnren

TLW 201,2WL 4344066,

u.

a basis

for remand,

as

Attrwe, No. CIV.A.9:11-0520-

at x7 (D.S.C. May 22,201,2) (unpublished) (citing Castellano u. Sec'jt of

Health dv Human Serw.,26 F.3d 1,027,1,029 (1,0th Ctr. 1,994)) (intetnal quotation matks

omitted), report and

recvmmendation adopted,

(D S C Sept. 21, 201,2);

see

also

20 C.F.R.

SS

No. CIV.A. 9:1,1,-520-TLW

201,2

WL

4341,807

404.1529(dX3), 41,6.927(d)(3).

Much of the test of Dt. Yuschok's MRFCA is not new, and the parts that might be
considered new are

not material. First, "fe]vidence is new 'if it is not duplicative or

cumulative."' Me1er,662F.3d^t705 (quoting Wilkins,953tr.2dat96);

No. 5:12-CV-775-D,2014 WL
(emphasizing that

1,057024,

see

also Saanders u. Coluin,

at*7 (E.D.N.C. Mar. 17,201,4)

(unpublished)

a medical questionnaire was not nev/ because the responses in

questionnaite were based

the

off of the doctot's ptevious treatment of the plaintiff, "which

denotefd] the same diagnosis of major deptessive disotdet and other similar complaints");
Boren, 2012

WL

4344066 at x7 (noting that documents submitted

to the Appeals Council

"fail[ed] to reveal any additional diagnosis ot medical fìndings that wete not alteady considered
by the ALJ"). ì7ith respect to mental impafuments, this Court has previously stated that new
evidence must "offer additional insight into Plaintiffs mental status." Belton u. Coluin, No.
13

1,:1,4-CY-777
a

,201,5ìØL 5023087, at *10 O{.D.N.C. Aug. 24,201.5) (unpublished) (finding that

medical source statement was not new because the record akeaðy contained a medical source

statement completed by the same psychiatrist), reþnrt and recornrnercdation adoþted,No. 1:14-CV777 ,201.5

WL

571,27

32 (I\4.D.N.C. Sept. 29,201,5).

Here, much of the MRF'CA is duplicative or cumulative

of evidence akeady in the

tecord. The MRFCA includes neady the same observatioris as â medical source statement
completed by Dr. Yuschock on July g,2014 and later teproduced in ptogtess notes ftom

August 18,201.4.

Çr.

16, 1.9, 1209,1240.) The

AIJ

gave the July 9, 201,4, medical source

statement some weight. (Id. at 35.) In it, Dt. Yuschok wrote that she has been treating Plaintiff

for "Major Depression and Ânxiety Disorder" since December 4,2013. (d. at 1,209,1240.)

Dr. Yuschok futher noted that Plainti ff "can handle her own finânces" and "is able to think
cleady, but anxiety and mood interfere with sleep."

(Id.) Dt. Yuschok also indicated that

Plainuffs "anxiety disotder is complicated by het significant medical illnesses." Qd.) Other
treatment tecords teflect that Plaintiff complained of panic attacks, although het descdption

of the panic attacks wâs "somewhat uncettain, gr]en that she does not always expedence
subjective sense of fezr or wotties when having the episod es." (Id. at735;

see

al¡o

a

756.) It was

thus unclear "whethet the panic episodes ar.e actuaLly cardiacin nature." (Id. at735.) Similady,

in the MRFCA, Dt. Yuschok wtote that Plaintiffs mental health

diagnoses arc "Major

Depression, recutrent, Panic attacks, Anxiety." Qd. at 1,6.) She circled

"y.r" in response to

the following two questions: "Do you believe the patient c n rrrana.ge his or her own funds?"

and "Ate you aware of any physical medical condition that may contdbute to the patient's

I4

mental impairments?" (Id. at 16, 1.9.)

In

response

to this last question, Dr.

Yuschok

mentioned some of Plaintiffs physical health problems and noted that they "conftibuted to

þer]

sevete

anxiety." Qd. at

1,6.)

Moreover, in the portion of the questionnaire that asked Dt. Yuschok to "circle the

word that best describes fPlaintiffs] functioning," she was instructed to base her answers on
her personal assessment of Plaintiff. (Id. at 17.) These questionnaire assessments-and the

comments Dt. Yuschok wrote next to some of them-seem to be largely duplicative and
cumulative of othet treatment records. Qd. at

1,7 -1,9

, 7 64,

77

0, 802,

1,237

.)

For example, the

ALJ cited to progress notes indicating that Plaintiff "was cooperative throughout the
assessment"; "[t]ited, worried about her disability"; and "'down, stressed"'

but with

an

appropriate affect. (Id. at 35, 802, 1,237.) Other progress notes indicate that Plaintiff was

friendly and coopetative with goal-ditected speech; that she followed instructions with no
difficulties; and that she "prefers to stay in bed aII day long." (Id. at 764, 770, 1,069, 1093.)
Similady, in the MRFC.A,-next to "Not Ratable" limitations in "ability to temember locations
and work-like

proceduls5')- Dr. Yuschok wrote "[s]he

has not gotten lost at

all. She followed

written insructions." (Id. at17.) Next to "Marked" limitations in "ability to perform activities

within

a schedule

, masntain regular attendance, and be punctual within customary tolerances,"

Dr. Yuschok wtote "on time for my âppt, but usually in bed aII day." Qd.) The above
tesponses and comments from the questionnaire, among others, are duplicative or cumulative.
Second, to the extent that portions of the MRFCA might be considered new, they ate

not material. Additional evidence is matetial if there is "'a reasonable possibility that [it] would
15

have changed the outcome."' Me1ter,662F.3d^t705 (quoting

Il/ilkins,gs3F.2d^t96). ï7hen

limitations descdbed in additional evidence submitted to the Appeals Council are significantly
more severe and inconsistent with those descdbed in the evidence of tecotd, this Court and
othets have held that thete is no teasonable possibility that the additional evidence would have
changed the ALJ's decision. See, e.g., Be/t0n,2015

\)fL

5023087 ü.x1,0 (holding that a doctor's

report was not material because "[t]he severity of the limitations that were identified in [the
doctot's] questionnaire wâs inconsistent with other evidence in the record"); Saander¡,201,4

lfI,

10570

24 at *7 (citing IYilliams u. Coluin,No. 5:12-CV-529-BO

,

201,3IøL 48069

65,

at *3

(E.D.N.C. Sept. 9, 2013) (unpublished) þolding thata doctot's medical questionnaite was not
matedal because the sevedty of the limitations described therein was inconsistent with the
doctor's "own treatment notes and other evidence in the record"); IYil/iam¡,201,3WL 4806965

at*3 ("Dr. Singh's report is not material

because the sevetity

of the limitations he describes is

inconsistent with his tteatment notes and the other evidence of record.").

Hete, the additional limitations desctibed in the MRFCA ate much mote severe than
those described in Dt. Yuschok's medical source statement and the rest of the recotd evidence;
these inconsistencies indicate that thete is no teasonable possibility that the "questionnaite
responses wouid have changed the ALJ's detetminatiofl." Sarlnders,201,4

(citing lWilliams,201,3 WL 4806965

".ryirg

^t*3).

WL 1057024 at*7

Fot example, in the MRFC-,\ Dr. Yuschok noted

spells, panic attacks, and hallucinations of voices and noise" next

to her finding of

"Extreme" limitations in Plaintiffs "ability to complete â normal workday and workweek
without interuptions from psychologically based symptoms and to perform at a consistent
t6

pace \¡/ithout an unreasonable number

of and length of rest petiods." Cft. 18.) Additionally,

Dr. Yuschok wtote "patic attacks daily" next to another finding of "Extreme" limitations in
Plaintiffls "abthty to toletate normal levels of stress." (d. at 19.) In contrast, Dt. Yuschok's

prior medical source statement made no mention of panic attâcks or hallucinations. (Id. at
1209.) While Dr. Yuschok opined that PlaintifPs "anxiety and mood intetfete with sleep,
dealing with people especially

in ctowds, increased worry and hypervigilance of het bodily

symptoms," she also noted that Plaintif.f can "handle het own fi.nances," "is able to think
cIearly," and would soon begin an eight-week therapy group

fot depression. (Id.)

The

limitations found in the MRF'CA ate considerably more serious than this.
There are also notewotthy diffetences between the above pottions of the MRFCA and

the rest of the record evidence. For example, the treatment notes ftequently indicate the

following: Plaintiff was calm, cooperative, and friendly, casually and neatly dressed, and fully
orientedwith notmal speech andfau to good eye contact. (1d.at587,742,758,764,770,874,
877, 945,

1.1,9L, 1.1,96,

processes, no suicidal

1202, 1264.) Plaintiff also had logical and goal-ditected thought

or homicidal ideation, poor to good insight, fur to intact judgment,

normal memory, and no hallucinations, paranoia,

or delusions. (Id.) Moteover, she

consistendy followed commands without any difficulty. (Id.

^t

463,484,535,909,1,026,1051,

1.069, 1,270, 1299, 1,31,7,1353, 1,482.) Plaintiff occasionally complained

however, as previously noted, due to het lack of a subjective sense

it was unclear whethet they were acually catdiac-telated.

of

of panic attacks;

fear during the episodes,

Qd. at735; ¡ee øh0756.) Finally,

Plaintiff repoted that she cared fot her yourrg son, engaged in housewotk and cooking, went
T7

to chutch on Sundays, and was seeking employment in Jantary 201.4. (Id. at723-24,734,76364,1,1,90,1201,, 1437.) The Court also notes that the opinions
agency medical

consultants-to which the ALJ

of the non-examining

gave significant weight

State

(Tt. 3S)-unanimously

found that Plaintiff had "Non SeveÍe" Anxiety Disotdets. (Id. at 100-01, 1,23, 1.34.) In sum,
the increased limitations found in the MRFCA are inconsistent with the test of the recotd
evidence. As a tesult, those portions of the MRFCTA. are not material because they did not

have a teasonable possibility

discussed-the rest

of Dt.

of affecting the ALJ's decision. Further-as pteviously

Yuschok's MRFC,\ is not new because

it is duplicative or

cumulative of other tecotd evidence. The undersigned thus finds that Plaintiffs atgument

as

to Dt. Yuschok's MRFC,{. fails.

B. Dr. Dogra's RFCF
Plaintiff next argues that the Appeals Council etted in tefusing to consider Dt. Dogra's

RFCF. (Docket Ent y 10 at 1,7-1,8.) Hete, the undersigned disagtees because the RFCF does
not relate back, and it is not material. First, it does not relate back to the period prior to the
ALJ's decision. \X/hile "the date of

a

report is not necessarily dispositive," it cannot be assumed

that a report "relate[s] to the televant petiod given contrary evidence." Belton, 201,5 WL
5023087 atx10 (citing Birdu. Comm'rofSoe îec.,699F.3d337,341, (4thClr.201,2)) (notingthat

a teport did not seem to relate back, even though the reporting doctot opined that the
"symptoms and disabilities applied since at least [the alleged disability onset date]"). Here,
unlike the MRFCA, which indicated that Dt. Yuschok began treating Plaintiff inMarch2013

(It.

16),

Dr. Dogta's RFCF does not indicate when his treatment of Plaintiff began.
18

Qd. at

10-15.) In fact, the only date on the whole doçu¡¡s¡¡-þesides Plaintiffs date of

bitth-is

the date the report was completed: Febtuary 9, 201,5. Qd. at 10, 15.) The ALJ's decision
predates this report by neatly seven weeks. (Id. at 38.) While the fact that the RFCF is dated

aftet the ALJ's decision is not itself dispositive, this Court u/ill not assume that the RFCF
nonetheless relates back when faced
evidence

with sigruficant evidence to the contrary. Thete is no

of a tteatnq telationship between Dt. Dogta and Plaintiff anywhete in the recotd,

and the RFCF contains mainly present tense ("patient cannot ddve long distance") and futute
tense language ("[d]isease progression witl lead to decreased physical

function"). (Id. at 11,

13.) Moreover, despite being prompted by the questionnaite, Dt. Dogra opted not to explain
how his expetience with Plaintiff infotmed his belief that she could not tesume her ptevious

work. (Id. at 14.) Finally, even Plaintiffs attorney admits "it is unclear when the treatment
telationship between Dt. Dogra and fPlaintiffl began." (Docket Entry 10 at 1,7.) As a result,

Dr. Dogra's RFCF does not relate back to the relevant pedod on or before the ALJ's decision.
Even if Dt. Dogra's RFCF did relate back to the relevant time period, it is not material.
,{.s pteviously stated, additional evidence is matedal

if thete ís "'^ reasonable possibility

[it] would have changed the outcome."' Me1ter, 662 F.3d

96). Hete, there is not

a teasonable

^t

that

705 (quoting lYilkins, 953 tr.2d at

possibility that the RFCF would have changed the ALJ's

decision. Similat to Dt. Yuschok's MRFCA, the limitations described in Dr. Dogra's RFCF
are much more sevete than those reflected by the record as a whole.

For example, Dr. Dogra

opined that, due to Plaintiffs severe pain, she can only stand andf or sit

"for

15-20 minutes"

at a ttme, must lie down duting the day, and can walk no more than twenty feet without
T9

stopping. Cfr. 11-1,2.) By contrast, the ALJ noted that Plaintiff was tegulatly ambulatory and

in no acute distress, which is supported by the record. (Id. at 34; see also id. at 479, 641,,704,
1071,.) Other records show that, through May 201,4, Plaintiff had no swelling or tenderness in

her back, and mild or no swelling or tenderness in het extremities. (See, e.g,, id. at 457,902,

917.) ",\s of September201,4, [Plaintif{ was advised by her ptovider that she could participate

in physical acivity

as

toletated." (Id. at34 referentingTt. 1504.) Compared to the test of the

tecotd evidence, the timitations in the RFCF ate disproportionately sevete. Having concluded

that there is no reasonable probability that Dr. Dogra's RFCF would have changed the
outcome of the ALJ's decision, Plaintiffs argument fâils.

V. CONCLUSION
For the reasons discussed above, this Cout RECOMMENDS that Plaintiffs Motion

fot Judgment on the Pleadings (Docket Entry 9) be DENIED, Defendant's Motion for
Judgment on the Pleadings (Docket Entry 12) be GRANTED, and the final decision of the
Commissioner be affrmed.

/
U

;rrn.âl

,

zotz

Durham, Notth Carolina

20

oe L. \X/ebstet
States Magistrate Judge