ALLISON v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 08/31/2017, that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment [Doc. # 9 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 11 ] be GRANTED, and that this action be DISMISSED with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
VIRGINIA ANN ALLISON,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
1:16CV596
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Virginia Ann Allison brought this action pursuant to Sections 205(g) and
1631(c)(3) of the Social Security Act, as amended (42 U.S.C. §§ 405(g) & 1383(c)(3)), to obtain
judicial review of a final decision of the Commissioner of Social Security denying her claim for
Disability Insurance Benefits and Supplemental Security Income (SSI) under Titles II and XVI
of the Social Security Act (the “Act”). The parties have filed cross-motions for judgment, and
the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed her application for Disability Insurance Benefits (DIB) in July
2012, and filed her concurrent application for SSI in November 2012. (Tr. at 217, 221.)2 She
initially alleged a disability onset date of September 10, 2010. (Id.) Plaintiff’s application was
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).
2
Transcript citations refer to the Sealed Administrative Transcript of Record [Docs. #7].
denied initially and upon reconsideration (Tr. at 80-142). Thereafter, she requested a hearing
de novo before an Administrative Law Judge (“ALJ”). (Tr. at 143.) Plaintiff, her attorney, an
impartial medical expert, and an impartial vocational expert attended the subsequent hearing on
October 20, 2014. (Tr. at 34.) At her hearing, Plaintiff amended her disability onset date to July
25, 2013. (Tr. at 38.) Following the hearing, the ALJ determined that Plaintiff was not disabled
within the meaning of the Act (Tr. at 28) and, on April 11, 2016, the Appeals Council denied
Plaintiff’s request for review of the decision, thereby making the ALJ’s conclusion the
Commissioner’s final decision for purposes of judicial review (Tr. at 1-3).
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of . . . review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] if they are supported
by substantial evidence and were reached through application of the correct legal standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation and brackets 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. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
2
F.3d 171, 176 (4th Cir. 2001) (internal citations and 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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472 (internal quotation
and brackets omitted). “The issue before [the reviewing 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).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris, 658
F.2d 260, 264 (4th Cir. 1981). 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)).1
1
“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program . . . 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
3
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock, 667
F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period of
disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more of
the impairments listed in Appendix I of the regulations,” then “the claimant is disabled.”
Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at step
three, i.e., “[i]f a claimant’s impairment is not sufficiently severe to equal or exceed a listed
impairment, the ALJ must assess the claimant’s residual function[al] capacity (‘RFC’).” Id. at
179.2 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
2
“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’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
4
“perform past relevant work”; if so, the claimant does not qualify as disabled. Id. at 179-80.
However, if the claimant establishes an inability to return to prior work, the analysis proceeds
to the fifth step, which “requires the Commissioner to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s] impairments.” Hines, 453 F.3d
at 563. In making this determination, 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 Government cannot carry its “evidentiary burden of proving that
[the claimant] remains able to work other jobs available in the community,” the claimant
qualifies as disabled. Hines, 453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since her alleged onset date. She therefore met her burden at step one of the sequential
evaluation process. At step two, the ALJ further determined that Plaintiff suffered from the
following severe impairments:
depression; anxiety; asthma; obesity; and history of right knee injury with pain.
(Tr. at 22.)
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
The ALJ found at step three that these impairments did not meet or equal a disability
listing. (Id.) Accordingly, he assessed Plaintiff’s RFC and determined that Plaintiff could
perform:
light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she would
have to avoid balancing or climbing. Her ability to perform postural activities
such as stooping, crouching, kneeling, and crawling is on an occasional basis. She
is incapable of working at heights or around dangerous machinery. She is
incapable of working in an environment with respiratory irritants such as dust,
fumes, smoke, high humidity, or temperature extremes. She is limited to simple,
routine and repetitive tasks, in an environment with no more than occasional
interaction with co-workers and supervisors. She would have to avoid any
interaction with the public, and is unable to work at jobs requiring complex
decision-making, constant change, or dealing with crisis situations.
(Tr. at 24.) Based on this determination, the ALJ found at step four of the analysis that Plaintiff
could not return to her past relevant work. However, the ALJ concluded at step five that, given
Plaintiff’s age, education, work experience, and RFC, Plaintiff could perform other jobs available
in the community and therefore was not disabled. (Tr. at 27-28.)
Plaintiff now challenges the ALJ’s decision on four bases. First, Plaintiff contends that
the ALJ improperly evaluated the opinion of the consultative psychological examiner. Second,
Plaintiff contends that the ALJ failed to properly evaluate the opinion evidence from her medical
sources. Third, Plaintiff contends that the ALJ failed to account for her limitations in
concentration, persistence, and pace as required by Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015). Finally, Plaintiff contends that the ALJ failed to properly consider and analyze Plaintiff’s
symptoms. The Court considers each contention in turn.
6
A.
Dr. Pope’s Consultative Psychological Examination Report
Plaintiff first challenges the ALJ’s treatment of a report prepared by Dr. Jane Pope after
she conducted a psychological examination of Plaintiff on April 12, 2011. Dr. Pope states in the
“Summary and Conclusions” section of her report that:
The claimant was able to understand, retain, and follow simple instructions over
a short period of time in one-on-one setting. It is unclear how well she could
sustain attention to perform repetitive tasks. She may have difficulty relating to
others at time[s]. Tolerating the stress and pressure associated with day-to-day
work activity may have much more to do with her physical problems than her
psychiatric problems at the present time.
(Tr. at 409.) The ALJ placed “some weight” on this report, as follows:
The undersigned placed some weight in the April 2011 consultative psychological
examination report (Ex. B4F), as the record evidence reflects the claimant’s
mental health issues have gotten better with treatment.
(Tr. at 26.) The ALJ then stated that he also placed “some weight” on the April 2011
consultative physical examination, which was prepared by Dr. Samia on April 11, 2011. (Tr. at
26, 403-05.) As to the consultative physical examination, the ALJ found as follows:
Some weight was afforded to the April 2011 consultative physical examination.
The undersigned agrees with the examination findings as being consistent with
the record evidence. However, the examiner did not provide any work
limitations (Ex. B4F).
(Tr. at 26.)
Plaintiff now challenges the ALJ’s evaluation of the psychological report, contending that
the ALJ found that the report was consistent with the record but that the ALJ then failed to
include the examiner’s findings regarding mental limitations. (Pl.’s Mem. [Doc. #10] at 3-5.)
Plaintiff also contends that the ALJ erred in finding that the psychological report failed to
7
include specific work limitations, since the psychological report did include specific work
limitations. (Pl.’s Mem. at 3-4.) However, as set out above, the ALJ stated that he gave the
psychological examination report only some weight because the “record evidence reflects the
claimant’s mental health issues have gotten better with treatment.” (Tr. at 26.) Then, turning
to the consultative physical examination report, the ALJ gave that report some weight because
he found it consistent with the record evidence but the examiner did not provide any work
limitations. Exhibit B4F, to which the ALJ referred when making these findings, includes both
the psychological and the physical consultative examinations, and the report of psychological
consultative examination includes work limitations, as noted by Plaintiff, while the report of the
physical consultative examination does not include any work limitations, as noted by the ALJ.
Thus, it appears that Plaintiff’s first argument is based upon a misreading of the ALJ’s basis for
his giving only some weight to the report of Plaintiff’s April 2011 consultative psychological
examination.
With respect to the consultative psychological examination report, the ALJ accorded only
some weight to that report based on the finding that “the record evidence reflects the claimant’s
mental health issues have gotten better with treatment.” (Tr. at 26.) Plaintiff does not challenge
the ALJ’s finding that Plaintiff’s mental health improved with treatment, a finding which
implicitly acknowledges that the report was prepared in April 2011, and refers to a time period
of more than two years prior to Plaintiff’s alleged date-of-onset of her disability on July 25, 2013.
In concluding that Plaintiff’s mental health issues have improved with treatment over that
extended period of time, the ALJ set out the records of Plaintiff’s mental health treatment in
8
January and April 2013 and in January through June 2014. (Tr. at 25-26, 446, 448, 512-14, 49798, 499-503, 495.) For example, after Plaintiff’s alleged onset date in July 2013, she received
mental health treatment only during January through June 2014, and those records reflect an
expected decrease in Plaintiff’s anxiety and depression with treatment (Tr. at 517), that Plaintiff
wanted to find a job (Tr. at 513), that her attention and concentration were good (Tr. at 505),
that she had some benefit with increased dosage of her medication (Tr. at 498), and that she was
doing well (Tr. at 495). The ALJ specifically noted that in the last mental health treatment
record in June 2014, Plaintiff had
decreased panic/anxiety. She increased coping skills to manage anxiety and
increased functioning. The claimant was attending classes two days a week at
Durham Tech for medical assistance training. She stated that her anxiety
increased when first going to class, but then she settles in. She told treating
providers that she had been involved in some musical activities in her
neighborhood, consisting of a bunch of good people. Response to treatment was
stable.
(Tr. at 26, 494).
Thus, the Court finds that Plaintiff’s first argument is based upon a misreading of the
ALJ’s basis for his giving only some weight to the report of Plaintiff’s April 2011 consultative
psychological examination, and the Court further finds that the ALJ’s evaluation of the April
2011 consultative psychological examination was supported by substantial evidence.3
3
The Court also notes that Plaintiff’s argument appears to misstate Dr. Pope’s conclusions. Plaintiff
argues that based on Dr. Pope’s report, the ALJ should have included in Plaintiff’s RFC a finding that Plaintiff
could understand, retain, and follow simple instructions for less than 2 hour increments and could follow simple
directions only with one on one supervision. (Pl.’s Mem. at 4 5.) However, Dr. Pope concluded that Plaintiff
“was able to understand, retain, and follow simple instructions over a short period of time in one on one setting”
based on Plaintiff’s ability to follow instructions during the consultative examination. Dr. Pope did not define
a “short period of time” and did not opine that Plaintiff could not sustain attention, concentration, and
persistence or pace for two hour increments. Similarly, while Dr. Pope’s report indicated that Plaintiff could
understand and follow instructions that she received in a one on one setting, Dr. Pope does not opine that
Plaintiff would need constant one on one supervision. Thus, contrary to Plaintiff’s contentions, Dr. Pope’s
9
B.
ALJ’s Evaluation of the Medical Opinion Evidence
Plaintiff next argues that the ALJ erred by failing to properly evaluate the opinion of two
examiners that Plaintiff argues were treating physicians: Geoffrey Zegar, ACSW, LCSW, and
Sarah Potter, PA-C. (Pl.’s Mem. at 5-10.) Plaintiff refers to Geoffrey Zegar as her “treating
therapist” and Sarah Potter as her “treating physician’s assistant.” Plaintiff appears to contend
that these providers should be considered treating physicians whose opinions are entitled to
controlling weight pursuant to the “treating physician rule” set out in 20 C.F.R. § 404.1527(c)
and § 416.927(c). The “treating physician rule” generally requires an ALJ to give controlling
weight to the well-supported opinion of a treating source as to the nature and severity of a
claimant’s impairment, based on the ability of treating sources to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
[which] 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 as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(c) and § 416.927(c). However, under 20 C.F.R. § 404.1527(c)(2) and
§ 416.927(c)(2), a “treating physician” must be a “treating source.” A “treating source” is
defined in 20 C.F.R. § 404.1527(a)(2) and § 416.927(a) as an “acceptable medical source.” Under
20 C.F.R. § 404.1502(a) and § 416.902(a), for claims filed before March 27, 2017, as was
Plaintiff’s claim, an “acceptable medical source” means a medical source who is either a licensed
physician, licensed psychologist, licensed optometrist, licensed podiatrist, or a qualified speech-
report would not provide a basis for limiting Plaintiff’s RFC as to her ability to sustain attention in a work setting
or her ability to work independently to the extent Plaintiff suggests. However, the Court need not address these
issues further, since the ALJ evaluated and weighed Dr. Pope’s report as set out above, and that determination
is supported by substantial evidence.
10
language pathologist. See also SSR 06-03p.4 Plaintiff does not contend that either Geoffrey
Zegar or Sarah Potter fall into any of these categories. In contrast to other health care providers,
only “acceptable medical sources” may establish the existence of a medically determinable
impairment, give medical opinions, and be considered treating sources whose medical opinions
may be entitled to controlling weight. See SSR 06-03p. Therefore, to the extent Plaintiff
contends that either Mr. Zegar or Ms. Potter are “treating physicians,” that argument must be
rejected. See Diaz v. Colvin, Civil Action No. 8:13-705-RMG, 2014 WL 3887856, at *22 (D.S.C.
Aug. 5, 2014) (licensed social worker and physician’s assistant are not “acceptable medical
sources” as defined in the regulations).
However, even though they are not “treating physicians,” information provided by
medical sources such as Mr. Zegar and Ms. Potter “may provide insight into the severity of the
impairment(s) and how it affects the individual’s ability to function.” SSR 06-03p. Therefore,
evidence from medical sources who are not “acceptable medical sources” should still be
evaluated using the same relevant factors. Id. These factors include: how long the source has
known the individual, how frequently the source has seen the individual, how consistent the
opinion is with other evidence, the degree to which the source presents relevant evidence to
support an opinion, how well the source explains the opinion, whether the source has a specialty
4
The Court notes that for claims filed after March 27, 2017, the regulations have been amended and
several of the prior Social Security Rulings, including SSR 96 2p and SSR 6 03p, have been rescinded. The new
regulations broaden the definition of “acceptable medical source,” but provide that the Social Security
Administration “will not defer or give any specific evidentiary weight, including controlling weight, to any medical
opinion(s) or prior administrative medical finding(s), including those from your medical sources.” 20 C.F.R.
§ 404.1520c, § 416.920c. The claim in the present case was filed before March 27, 2017, and the Court has
therefore analyzed Plaintiff’s contentions pursuant to the rules set out above.
11
or area of expertise related to the individual’s impairment(s), and any other factors that tend to
support or refute the opinion. Id.
In this case, the ALJ gave “little weight” to the opinion of Physician’s Assistant Potter
(“PA Potter”) which was offered in a medical source statement dated July 24, 2014. (Tr. at 26.)
In that statement, PA Potter identified Plaintiff’s diagnoses as depression, anxiety, PTSD, history
of A-fib, asthma, and a right knee injury one year ago. (Tr. at 530.) PA Potter wrote that
Plaintiff has no work capacity and that Plaintiff has “[d]ifficulty doing physical activity due to
asthma and right knee injury.” (Id.) PA Potter also stated that Plaintiff has “[d]ifficulty with
psychological aspects due to mental illness,” although she added that she does not treat Plaintiff
for mental illness. (Id.)
In considering this statement, the ALJ noted that the record contains a medical report
of an examination of Plaintiff on July 23, 2014, the day before PA Potter completed this medical
source statement. This treatment record notes that Plaintiff’s illness is asthma without status
asthmaticus. (Tr. at 26, 523.) The treatment record also notes that on examination, Plaintiff’s
lung examination was unremarkable, and Plaintiff’s lungs were “clear to auscultation bilaterally;
no wheezes, rales, ronchi.” (Tr. at 26, 525.) The ALJ noted that the next day, PA Potter
completed her medical source statement, “wherein it was opined the claimant is unable to
perform full-time work based on her asthma and right knee injury.” (Tr. at 26.) The ALJ found
that:
The undersigned placed little weight in this opinion, given the record evidence
demonstrates minimal treatment for her right knee with a normal gait in June
2014; and an unremarkable lung examination in July 2014, with no status
asthmaticus.
12
(Tr. at 26.) In addition, to the extent that the medical source statement described and relied
upon Plaintiff’s mental impairments, the ALJ noted that “Mrs. Potter related that she does not
treat the claimant for her mental illness,” and little weight was assigned to the opinion statement.
(Tr. at 26.) Finally, the ALJ’s review of the evidence also noted PA Potter’s treatment notes
from June 2014, the month before the statement, which reflected that Plaintiff had not been
seen in a year, she had not followed up for the knee pain, she was not taking any pain
medication, her lungs were clear, and she had right knee tenderness but with normal gait and
strength of 4+/5. (Tr. at 25, 473-74.)5
Plaintiff argues that substantial evidence does not support the ALJ’s decision to give little
weight to PA Potter’s opinion because in January 2010 Plaintiff was hospitalized for asthma
exacerbation, in March and April of 2011 Plaintiff had increasing anxiety with difficulty
breathing, in June 2012 Plaintiff’s asthma was characterized as “uncontrolled,” and in January
2013 Plaintiff complained of worsening asthma symptoms. (Pl.’s Mem. at 10.) Yet, this
evidence all relates to the period prior to Plaintiff’s July 25, 2013, onset date. The ALJ relied on
evidence describing Plaintiff’s asthma condition closer to her onset date. For example, he noted
that in an annual exam in June 2013, the frequency of her use of a rescue inhaler was rare, there
was no wheezing or shortness of breath or cough, and there was no recent exacerbations/ER
visits/hospitalizations. (Tr. at 25, 485.) Her lungs were clear and there was no respiratory
distress. (Tr. at 486.) The status of her asthma was described as “controlled,” and at a stage of
5
As reflected in the ALJ’s decision, the medical records reflect that Plaintiff sought medical treatment
in July 2013 for an alleged injury to her knee a month earlier. (Tr. at 477 80.) She did not follow up for x rays
or a visit with an orthopedist as recommended. Her next visit was a year later in June 2014, and the treatment
record for that visit reflects that she was not taking any pain medication and she had right knee tenderness but
with normal gait and strength of 4+/5. (Tr. at 471 73.)
13
“mild persistent.” (Tr. at 487.) The ALJ also relied upon the treatment record of July 23, 2014,
recounted above, which found that Plaintiff had clear lungs with no wheezes, rales, or rhonchi.
(Tr. at 26, 525.) Thus, the ALJ properly focused on the medical evidence during the relevant
time period, from the alleged onset date through the date of the decision. Moreover, in
specifically considering PA Potter’s medical source statement, the ALJ considered the
inconsistency between the medical source statement and the medical treatment records during
that same month. For these reasons, the Court finds that substantial evidence supports the
ALJ’s decision to give little weight to PA Potter’s opinion that Plaintiff was disabled due to her
right knee injury and asthma condition. Finally, because PA Potter admittedly was not treating
Plaintiff for any mental illness, her opinion on Plaintiff’s difficulties with psychological issues
was properly afforded little weight.
Turning now to the evidence presented by Plaintiff’s social worker, Mr. Zegar, Plaintiff
argues that the ALJ erred by giving the opinion of Mr. Zegar “little weight.” Mr. Zegar’s report
is dated October 6, 2014. (Tr. at 531-33.) In the report, Mr. Zegar states that he has seen
Plaintiff for individual therapy since April 7, 2014. He says that Plaintiff presently complains
of “ongoing mixed depressive/anxious symptoms including low energy/worry/difficulty leaving
the house/anhedonia/sporadic suicidal thoughts (no active plan at this time) and difficulty with
concentration.” (Tr. at 531.) He also says that Plaintiff can be “tearful and labile” in treatment
sessions.
(Id.)
Mr. Zegar checked “yes” to the question whether these psychological
impairments affect Plaintiff’s ability to complete an eight-hour workday or forty-hour work week
without interruptions from psychologically-based symptoms. (Id.) He also checked “yes” to the
14
question whether, if Plaintiff attempted full-time employment, her mental impairments would
likely take her off-task more than 20% of the time during a typical (full-time) workday or
workweek. (Id. at 532.) Mr. Zegar explained that since beginning treatment with him, Plaintiff
“has made attempts at engaging in various productive activities only to cease these activities as
symptoms were exacerbated.” (Id.) Mr. Zegar also checked “no” as to whether, if Plaintiff
attempted full-time employment, she would consistently be able to perform activities within a
schedule, maintain regular attendance, and be punctual. He explained that Plaintiff had
attempted to take a light course load at Durham Technical Community College only to have to
withdraw after having an escalation of symptoms. (Id.) He also opined that it was “unknown”
whether Plaintiff could consistently accept instructions and respond appropriately to supervision
in a workplace. (Tr. at 533.) Mr. Zegar said he based his answers on his clinical observations,
self-reports by client, follow-up assessments, monitoring of progress, and evaluation of
effectiveness of plans discussed in session. (Id.)
The ALJ discounted Mr. Zegar’s opinions and gave his report little weight. The ALJ first
noted that the report was “primarily based upon [Plaintiff’s] self-reports.” (Tr. at 26.) Plaintiff
claims that this reason is “simply not founded in the evidence.” (Pl.’s Mem. at 7.) However, Mr.
Zegar specifically states in the report that one of the bases for the answers provided was “selfreports by client.” (Tr. at 533.) In addition, in response to a question asking him to describe the
signs and symptoms of Plaintiff’s mental impairments, Mr. Zegar stated that Plaintiff “has a long
history of waxing/waning depressive/anxious signs/symptoms which became pronounced and
intrusive in 2009 when her mother died.” (Tr. at 531.) However, it is undisputed that Plaintiff
15
first saw Mr. Zegar in 2014, so his description of her symptoms prior to that time are based on
her reports to him. Similarly, in continuing to describe the signs and symptoms of Plaintiff’s
mental impairments, Mr. Zegar states that “[c]urrently she describes ongoing mixed depressive
anxious symptoms including low energy/worry/difficult leaving the house/anhedonia/sporadic
suicidal thoughts (no active plan at this time) and difficulty with concentration.” (Tr. at 531.)
Thus, as to Plaintiff’s current symptoms, Mr. Zegar’s report specifically reflects that his account
is based on what Plaintiff has described to him. The only observations he adds are that “[s]he
can be tearful and labile in [treatment] sessions.” (Tr. at 531.) Thus, the above bases given by
Mr. Zegar for his opinions all primarily relate to what Plaintiff told him during their sessions.
Therefore, the ALJ’s decision to discount Mr. Zegar’s opinion because “it is primarily based
upon the claimant’s self-reports” is supported by the evidence. In weighing Mr. Zegar’s opinion,
the ALJ also noted that Plaintiff had only been treated by Mr. Zegar since April 2014, and that
Plaintiff had not sought mental health treatment since June 2014. (Tr. 26.) Plaintiff concedes
that she only had three sessions with Mr. Zegar before he wrote the report at issue. Those dates
appear to be April 7, 2014, May 12, 2014, and June 23, 2014. (Tr. at 502, 497, 494.) Plaintiff
does not contest the ALJ’s finding that Plaintiff had not sought mental health treatment since
June 2014. Thus, the ALJ considered the extent of the treating relationship, the fact that
Plaintiff had not begun seeing Mr. Zegar until April 2014, and the fact that Plaintiff had last seen
Mr. Zegar in June 2014, over four months before he wrote his report. Therefore, the ALJ’s
considerations are consistent with the factors set out in 20 C.F.R. § 404.1527(c) and SSR 06-03P,
and are well-supported by the record evidence.
16
Plaintiff cites some of the findings of Mr. Zegar in his progress notes from the three
sessions to support her argument that the ALJ should have afforded more weight to Mr. Zegar’s
opinions. However, a review of the totality of the findings supports the ALJ’s assignment of
little weight to his opinion. In April 2014, Mr. Zegar noted that Plaintiff reported that she had
variable anxiety and depression, and she described ongoing periods of anxiety and depression
that can be debilitating. (Tr. at 502.) The results of Mr. Zegar’s mental status exam was that
Plaintiff’s appearance was appropriate, her level of alertness was normal, her attitude was
cooperative, she was oriented x4, her eye contact was variable, her mood was anxious, her affect
was tense, her speech was normal, her thought process was goal-directed, her perception was
normal, and her concentration, memory, insight, and judgment were all fair. (Id.) Her GAF was
50.
Mr. Zegar’s next progress notes are for May 12, 2014. (Tr. at 497.) Many of his
observations are the same as those in his April report. Plaintiff reported to be meditating daily
and considering returning to school. Her appearance was appropriate, her level of alertness was
normal, her attitude was cooperative, she was oriented x4, her eye contact was variable, she was
fidgety and anxious, her affect was appropriate, her speech was normal, her thought process was
goal-directed, her perception was normal, and her concentration, memory, insight and judgment
were all fair. (Id.) Her GAF was 52-54.
The last of Mr. Zegar’s progress notes is from June 23, 2014. (Tr. at 494.) Plaintiff
reported that her anxiety was about the same. The report states that Plaintiff goes to Durham
Technical College for medical assisting classes for two classes two days per week. It also states
17
that Plaintiff has been involved with some musical activities in her neighborhood, “ a bunch of
good people and it doesn’t kick up” her anxiety. But she continues to have feelings of “not
being ok.” The mental status exam results are essentially the same as in the earlier report. Her
GAF is reported as 46-48.
The ALJ considered these three progress reports of Mr. Zegar as shown by the citation
of the three GAF scores in the ALJ’s opinion. (Tr. at 25-26.) Plaintiff fails to cite any specific
parts of these reports that would support Mr. Zegar’s opinion that Plaintiff could not work. For
all of these reasons, Plaintiff’s argument that the ALJ failed to properly evaluate the medical
opinion evidence should be rejected.
C.
The ALJ’s RFC Finding and Hypothetical Question
Plaintiff next argues that the ALJ failed to comply with the requirements of Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015), by failing to include a limitation in Plaintiff’s RFC to
account for an inability to stay on task. In Mascio, the Fourth Circuit addressed the question
of whether and how moderate limitations in concentration, persistence, and pace found at step
two of the sequential evaluation must be accounted for in the RFC assessment. 780 F.3d at 638.
The Fourth Circuit specifically held that “an ALJ does not account for a claimant’s limitations
in concentration, persistence, and pace by restricting the hypothetical question to simple, routine
tasks or unskilled work.” Id. (quotation omitted). This is because “the ability to perform simple
tasks differs from the ability to stay on task. Only the latter limitation would account for a
claimant’s limitation in concentration, persistence, or pace.” Id. The Fourth Circuit further
noted that “[p]erhaps the ALJ can explain why Mascio’s moderate limitation in concentration,
18
persistence, or pace at step three does not translate into a limitation in Mascio’s residual
functional capacity. For example, the ALJ may find that the concentration, persistence, or pace
limitation does not affect Mascio’s ability to work, in which case it would have been appropriate
to exclude it from the hypothetical tendered to the vocational expert. But because the ALJ here
gave no explanation, a remand is in order.” Id. (internal citation omitted).
In the present case, as in Mascio, the ALJ found at step three of the sequential analysis
that Plaintiff had moderate difficulties in concentration, persistence, or pace. The RFC then
limited Plaintiff to “simple, routine and repetitive tasks, in an environment with no more than
occasional interaction with co-workers and supervisors. She would have to avoid any interaction
with the public, and is unable to work at jobs requiring complex decision-making, constant
change, or dealing with crisis situations.” (Tr. at 24.) Plaintiff now argues that these limitations
fail to adequately address her mental limitations in light of Mascio. However, the Fourth
Circuit’s decision in 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.”
Tolbert v. Colvin, 1:15CV437, 2016 WL 6956629, at *9 (M.D.N.C. Nov. 28, 2016) (finding that
RFC limitations to “simple, routine, repetitive tasks with simple, short instructions, in a job that
required making only simple, work-related decisions, involved few workplace changes, and
19
required only frequent contact with supervisors, co-workers, or the public” sufficiently
accounted for a Plaintiff’s moderate limitations in concentration, persistence, or pace in light of
the ALJ’s explanation throughout the administrative decision) (quoting Jones v. Colvin, No.
7:14CV00273, 2015 WL 5056784, at *10-12 (W.D. Va. Aug. 20, 2015)).
In this case, as in Tolbert, the ALJ sufficiently explained why Plaintiff’s limitations in
concentration, persistence, or pace were accounted for by the RFC in this case. First, the RFC
in this case is much more detailed than in Mascio, and the hypothetical question to the
Vocational Expert was likewise more detailed. In addition, the ALJ included an extended review
of the evidence regarding Plaintiff’s mental impairments, with findings regarding the extent of
those impairments based on the medical record. Specifically, the ALJ found that “[w]ith regard
to concentration, persistence or pace, the claimant has moderate difficulties. While the claimant
testified that her focus is not very good, the record evidence shows she had adequate attention
and concentration at various office visits.” (Tr. at 23.) The ALJ cites to exhibits B6F and B8F.
Plaintiff does not specifically challenge this finding. This medical evidence shows that during
examinations on May 31, 2014, April 12, 2014, and March 8, 2014, Plaintiff’s attention and
concentration were found to be “good.” (Tr. at 495, 498, 505.) In reviewing the evidence, the
ALJ separately noted that Plaintiff’s treatment records from May 12, 2014 reflect that “[h]er
attention and concentration were good, and memory was intact.” (Tr. at 25.) In addition, the
ALJ placed “great weight” on the State agency assessments in the record. (Tr. at 26.) One of
these assessments found that as of May 1, 2013, Plaintiff was moderately limited in her ability
to maintain attention and concentration for extended periods, but she was “capable of
20
performing short and simple tasks and is able to maintain attn and concentration well enough
to complete.” (Tr. at 107.) The same findings are present in the initial assessment dated
September 14, 2012. (Tr. at 91.)
Thus, unlike a case where the ALJ finds mental impairments and then limits Plaintiff to
“unskilled” work without further explanation, here the ALJ considered Plaintiff’s mental
impairments at length, noted the inconsistencies between Plaintiff’s contentions and the abilities
reflected in the record including specifically as to her attention and concentration, set out the
relevant findings from the medical records and opinions, tailored the RFC to take into account
all of Plaintiff’s functional limitations for which there was support in the record, and adopted
a detailed RFC limiting Plaintiff to “simple, routine and repetitive tasks, in an environment with
no more than occasional interaction with co-workers and supervisors. She would have to avoid
any interaction with the public, and is unable to work at jobs requiring complex decision-making,
constant change, or dealing with crisis situations.” (Tr. at 24.)
This detailed analysis and RFC determination provides sufficient basis for review by the
Court and is supported by substantial evidence.
D.
20 C.F.R. § 404.1529 and Monroe v. Colvin, 826 F.3d 176 (4th Cir. 2016)
Finally, Plaintiff argues that the ALJ failed to consider all of the evidence of her
impairments in violation of 20 C.F.R. § 404.1529(c), and failed to create a logical bridge from
the evidence to his conclusions in violation of Monroe v. Colvin, 826 F.3d 176 (4th Cir. 2016).
Section 404.1529(c) explains how the Secretary evaluates a claimant’s symptoms, and in Monroe,
the court held that an ALJ must explain his decision sufficiently to allow for meaningful review
21
by the court. In this case, Plaintiff objects to the ALJ’s treatment of her testimony regarding the
nature and intensity of her symptoms, particularly her testimony regarding her crying spells, her
lack of motivation, and her contention that she was unable to stand or walk for long periods due
to her right leg injury. (Pl.’s Mem. at 12; Tr. at 43-45.)
However, the ALJ found that Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of these symptoms are not entirely credible for the reasons explained in this
decision.” (Tr. at 25.) The ALJ then summarized the record evidence pertaining to Plaintiff’s
conditions from 2011 through October 2014. In addition, in initially considering the severity
of Plaintiff’s impairments as part of step two of the sequential evaluation, the ALJ considered
Plaintiff’s testimony. (Tr. at 23-24.) As part of this discussion, the ALJ noted Plaintiff’s
testimony regarding caring for her dog, shopping, doing housework, musical activities, and her
ability to focus. (Tr. at 23.) Plaintiff contends that the ALJ mischaracterized her testimony.
However, she did testify that she took her dog for a walk daily (Tr. at 46), that she goes to
Family Dollar to shop for small things (Tr. at 47), and that she does housework although she is
not “motivated much by it” (id.). The ALJ’s statement that Plaintiff had been involved in some
musical activities in her neighborhood is supported by the record (Tr. at 494), as is the finding
that she was attending classes at Durham Technical College in June 2014 (id.), although she
testified that she never started those classes (Tr. at 48). In addition, although the ALJ did not
specifically discuss Plaintiff’s testimony regarding her crying spells, in his summaries of Plaintiff’s
medical evaluations he noted that in June 2013 Plaintiff’s mood was stable with “normal mood
and affect.” (Tr. at 25.) Also, he noted that on July 25, 2013, Plaintiff was reported to have
22
normal mood and affect. (Id.) The ALJ recognized that in May 2014, Plaintiff was reported as
having a depressed mood although “somewhat improved.” (Id.) Finally, in June 2014, the ALJ
noted that Plaintiff was back to normal mood and affect. (Id.) Given the evidence in this case
and the information set out in the ALJ’s decision, the Court concludes that the ALJ’s
observations, combined with the ALJ’s review of the medical evidence of record, shows that
substantial evidence supports his evaluation of Plaintiff’s symptoms and the effect of those
symptoms on her ability to work. In the circumstances, the ALJ explained his decision
sufficiently to allow for meaningful review.
IV.
CONCLUSION
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding no
disability be AFFIRMED, that Plaintiff’s Motion for Judgment [Doc. #9] be DENIED, that
Defendant’s Motion for Judgment on the Pleadings [Doc. #11] be GRANTED, and that this
action be DISMISSED with prejudice.
This, the 31st day of August, 2017.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?