SHRSHER v. COLVIN
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/31/2017, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that this action be dismissed with prejudice. (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NESRIN SHRSHER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
)
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1:16CV1167
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Nesrin Shrsher, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Benefits (“DIB”).
Plaintiff’s
claim
(Docket Entry 2.)
for
Disability
Insurance
Defendant has filed the
certified administrative record (Docket Entry 7 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 12; see also Docket Entry 11 (Plaintiff’s Brief);
Docket Entry 13 (Defendant’s Memorandum)).
For the reasons that
follow, the Court should enter judgment for Defendant.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging an onset date of May 20,
2012.
(Tr.
(Tr. 182-85.)
64,
82-86)
Upon denial of that application initially
and
on
reconsideration
(Tr.
65-81,
89-92),
Plaintiff requested a hearing de novo before an Administrative Law
Judge
(“ALJ”)
(Tr.
95-97).
Plaintiff,
her
vocational expert (“VE”) attended the hearing.
attorney,
and
(Tr. 31-63.)
a
The
ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 10-25.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-5, 8-9, 282-84), 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 December 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since May 20, 2012, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
seizure disorder, major depressive disorder, anxiety
disorder, migraine headaches, degenerative disc disease,
and obesity.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
2
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except [she] cannot
be exposed to workplace hazards. [Plaintiff] can
understand, remember, and carry out simple, routine,
repetitive tasks, consistent with reasoning level one or
two in the [D]ictionary of [O]ccupational [T]itles
(“DOT”), meaning that she can apply common sense
understanding to carry out simple, one-to-two step
instructions and deal with standardized situations with
occasional or no variables in or from the situations
encountered on the job. [Plaintiff] can have no
interaction with the general public but she can have
occasional interaction with coworkers and supervisors.
She can respond to routine changes in a non-production
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 May 20, 2012, through the
date of this decision.
(Tr.
15-24
(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).
3
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ if they are
supported
by
substantial
evidence
and
were
reached
through
application of the correct legal standard.” Hines, 453 F.3d at 561
(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
4
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
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 . . .
2
The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program provides benefits to indigent disabled
persons. The statutory definitions and the regulations . . . for determining
disability governing these two programs are, in all aspects relevant here,
substantively identical.”
Craig, 76 F.3d at 589 n.1 (internal citations
omitted).
5
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
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).
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
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
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
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.
7
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1) “[t]he ALJ’s RFC finding did not sufficiently reflect the
severity and intensity of [Plaintiff’s] migraine headaches” (Docket
Entry 11 at 5 (italics omitted)); and
(2) “[t]he ALJ erred by posing a hypothetical question that
failed
to
account
for
[Plaintiff’s]
moderate
limitation
in
concentration, persistence, and pace [(‘CPP’)]” (id. at 12 (italics
omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 13 at 5-12.)
1. Migraine Headaches
In Plaintiff’s first assignment of error, she contends that
“[t]he ALJ’s RFC finding did not sufficiently reflect the severity
and intensity of [Plaintiff’s] migraine headaches.”
(Docket Entry
11 at 5 (italics omitted); see also id. at 7 (“[T]he ALJ’s RFC
5
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
8
finding does not allow a reviewing court to be reasonably assured
that the RFC adequately captures the effect of [Plaintiff’s]
migraines
on
her
ability
to
work.”).)
In
presenting
this
challenge, Plaintiff mischaracterizes the nature of the Court’s
review.
For
example,
Plaintiff
attempts
to
frame
the
“only
question” as a determination of the “frequency and intensity” of
her migraine headaches, and then declares that “[t]he record is in
[Plaintiff’s]
favor.”
(Id.;
also
id.
allow
[Plaintiff]
at
(“There
claim.”).)
As explained in Subsection II.A., the Court does not
make a
novo
of
whether
the
prevail
record
on
is
evidence
determination
to
6
sufficient
de
to
see
her
“favors”
Plaintiff or Defendant on any pertinent factual issue resolved by
the ALJ (or whether “sufficient evidence” would have allowed the
ALJ to find for Plaintiff on that issue); rather, the Court must
review the record to assess whether substantial evidence supports
challenged factual findings made by the ALJ and/or whether the ALJ
applied correct legal standards in connection with the disputed
matters.
Notwithstanding
Plaintiff’s
mischaracterization
of
the
judicial review process, the Court may discern some cognizable
arguments
regarding
the
ALJ’s
findings
and
conclusions
about
Plaintiff’s headaches. First, Plaintiff faults the ALJ for stating
that, despite a “‘referr[al] to a headache clinic in September 2012
for further evaluation of [Plaintiff’s] headaches,’” the record
9
lacked any “‘indication that [Plaintiff] ever sought specific
medical treatment for her headaches.’” (Id. at 8 (quoting Tr. 20).)
According
to
Plaintiff,
she
reported
suffering
from
migraine
headaches to her medical providers on two occasions after September
2012 (id. at 8-9 (citing Tr. 447, 500)), and she testified before
the ALJ that she continued to experience headaches three to four
times per week, that some of her headaches lasted all day, and that
she stayed in a dark room and applied Vicks VapoRub to her head to
ease the pain (id. at 9 (citing Tr. 47-48, 361)).
Further, Plaintiff maintains that “the negative inference that
the ALJ would like to draw from the alleged lack of specific
medical treatment after September 2012 . . . is impermissible
[under Social Security Ruling 96-7p, Policy Interpretation Ruling
Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual’s Statements, 1996 WL
374186 (July 2, 1996) (‘SSR 96-7p’), which] prohibits an ALJ from
‘draw[ing] any inferences about an individual’s symptoms and their
functional effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the
individual may provide, or other information in the case record,
that may explain infrequent or irregular medical visits or failure
to seek medical treatment.’”
96-7p, 1996 WL 374186, at *7).)
(Docket Entry 11 at 9 (quoting SSR
Finally, Plaintiff maintains that
the ALJ’s “conclusion that the RFC covers [Plaintiff’s] migraines
10
is unreviewable” (id. at 11), because the ALJ did not make an
express finding as to the intensity and frequency of Plaintiff’s
migraines (id. at 10, 11).
Plaintiff’s contentions miss the mark.
RFC measures the most a claimant can do despite any physical
and
mental
limitations.
§ 404.1545(a).
Hines,
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.
Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b).
See
The ALJ then
must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
heavy).
See 20 C.F.R. § 404.1567.
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).
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)). Moreover, an ALJ need only “adopt credibly
established limitations when formulating the RFC.”
Fuerst v.
Colvin, No. 1:15CV1054, 2016 WL 5957602, at *9 n.13 (M.D.N.C. Oct.
13, 2016) (unpublished) (Webster, M.J.), recommendation adopted,
slip op. (M.D.N.C. Nov. 15, 2016) (Eagles, J.); Bryant v. Colvin,
No. 3:13-CV-349-JAG, 2014 WL 896983, at *12 (E.D. Va. Mar. 6, 2014)
(unpublished) (District Judge adopting recommendation of Magistrate
11
Judge) (noting ALJ must “only . . . include those limitations that
the ALJ considers credibly established”).
However, the ALJ “must
build an accurate and logical bridge from the evidence to [the]
conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The
ALJ
here
sufficiently
evaluated
Plaintiff’s
migraine
headaches and explained the basis for the RFC determination.
Tr. 17-23).
(See
As an initial matter, the ALJ did not err by stating
that, “[w]hile [Plaintiff] was referred to a headache clinic in
September 2012 for further evaluation of her headaches, there is no
indication that [Plaintiff] ever sought specific medical treatment
for her headaches.”
(Tr. 20 (emphasis added).)
The ALJ’s mention
of the headache clinic referral in the introductory clause, as well
as her use of the word “specific,” make clear that she did not find
that
Plaintiff
experienced
a
total
lack
of
headaches
after
September 2012; rather, the ALJ found no record evidence that
Plaintiff either received treatment at the headache clinic or
sought other specific treatment for her headaches after September
2012.
(Id.)
Moreover, each of the two occasions Plaintiff cites
after September 2012 when she reported experiencing headaches to
her medical providers (see Docket Entry 11 at 8-9 (citing Tr. 447,
500)) involved
follow-up
appointments
for
Plaintiff’s
seizure
disorder, and do not reflect any specific treatment of Plaintiff’s
headaches (see Tr. 446-49 (11/14/13 follow-up neurology visit
documenting
Plaintiff’s
report
12
of
occasional
and
improving
headaches
but
no
treatment
of
same),
500
(9/4/14
follow-up
neurology visit recording Plaintiff’s complaint of two-week history
of headaches intermittently relieved by over-the-counter medicine
but no treatment of same)).6
Plaintiff nonetheless maintains that “the negative inference
that the ALJ would like to draw from [Plaintiff’s] alleged lack of
specific medical treatment [for headaches] after September 2012
. . . is impermissible” under SSR 96-7p, because the ALJ failed to
expressly
consider
any
information
that
might
have
explained
Plaintiff’s failure to seek medical treatment. (Docket Entry 11 at
9.)7
A substantial question exists as to whether the ALJ made a
negative credibility determination on this front, such that SSR 967p would apply.
On one hand, the ALJ’s remark about Plaintiff’s
failure to seek specific medical treatment for headaches occurred
in a separate paragraph from the one in which the ALJ expressly
“considered [Plaintiff’s] subjective complaints,” which suggests
that the ALJ did not draw an adverse credibility inference from
Plaintiff’s
failure
to
seek
headache-specific
treatment
after
6
The ALJ expressly discussed Plaintiff’s report of headaches on both of those
occasions (see Tr. 19-20), as well as another mention of headaches by Plaintiff
at a December 2012 neurology follow-up appointment for her seizure disorder
(see Tr. 19; see also Tr. 385-87). Additionally, the ALJ explicitly considered
Plaintiff’s testimony regarding her headaches.
(See Tr. 18.)
Those
considerations further underscore the fact that the ALJ did not deem Plaintiff
headache-free after September 2012.
7
Plaintiff did not offer any explanation for her lack of specific medical
treatment for headaches after September 2012 either at the hearing or in support
of her instant motion for judgment. (See Tr. 31-63; see also Docket Entry 11.)
13
September 2012.
(Compare Tr. 20, with Tr. 22.)
On the other hand,
the ALJ discussed Plaintiff’s lack of post-September 2012 headache
treatment in the same paragraph in which the ALJ also emphasized
record evidence tending to show that Plaintiff’s seizure disorder
and headaches had not caused Plaintiff to suffer significant
symptoms since May 2012, which could indicate the ALJ did draw a
negative inference about the severity and frequency of Plaintiff’s
headaches, at least in part, from Plaintiff’s failure to seek
specific headache treatment after September 2012.
(See Tr. 20.)
Ultimately, the Court need not determine whether the ALJ’s
statement in question actually violated SSR 96-7p.8
Assuming that
the ALJ erred, any such error remains harmless because the ALJ
otherwise properly evaluated Plaintiff’s subjective complaints.
See generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)
8
Effective March 28, 2016, see Social Security Ruling 16-3p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims, 2016 WL 1237954 (Mar. 24, 2016) (correcting effective date of original
Ruling), the Social Security Administration superceded SSR 96-7p with Social
Security Ruling 16-3p, Policy Interpretation Ruling Titles II and XVI: Evaluation
of Symptoms in Disability Claims, 2016 WL 1119029, at *1 (Mar. 16, 2016). The
new ruling “eliminat[es] the use of the term ‘credibility’ from . . . subregulatory policy, as [the] regulations do not use this term.” Id. The ruling
“clarif[ies] that subjective symptom evaluation is not an examination of the
individual’s character,” id., and “offer[s] additional guidance to [ALJs] on
regulatory implementation problems that have been identified since [the
publishing of] SSR 96-7p,” id. at *1 n.1. Plaintiff here does not argue that SSR
16-3p, rather than SSR 96-7p, applies to the ALJ’s evaluation of her subjective
complaints. (See Docket Entry 11 at 5-11.) Moreover, the ALJ’s decision in this
case predates the effective date of SSR 16-3p, and, because SSR 16-3p changes
existing Social Security Administration policy regarding subjective symptom
evaluation, that Ruling does not apply retroactively, see Bagliere v. Colvin, No.
1:16CV109, 2017 WL 318834, at *4-8 (M.D.N.C. Jan. 23, 2017) (Auld, M.J.)
(recommendation); see also Hose v. Colvin, No. 1:15CV00662, 2016 WL 1627632, at
*5 n.6 (M.D.N.C. Apr. 22, 2016) (unpublished) (Auld, M.J.), recommendation
adopted, slip op. (M.D.N.C. May 10, 2016) (Biggs, J.).
Accordingly, this
Recommendation will apply SSR 96-7p to Plaintiff’s argument regarding the ALJ’s
subjective symptom evaluation.
14
(observing that “[n]o principle of administrative law or common
sense requires us to remand a case in quest of a perfect opinion
unless there is reason to believe that the remand might lead to a
different result”). The ALJ found that “[t]reatment notes fail[ed]
to indicate the level of dysfunction [Plaintiff] [wa]s alleging”
(Tr. 19), and provided a review of the objective medical evidence
regarding each of the impairments the ALJ found severe at step two
of the SEP (see Tr. 19-22).
The ALJ also evaluated Plaintiff’s
activities of daily living, and noted that Plaintiff “testified
that she is able to clean her house, . . . prepare[] simple
meals[,] . . . [as well as] take[] care of the plants and flowers
outside[,]
.
.
.
[and
that
she]
performing personal care duties.”
made the
follow
observations
reported
(Tr. 16.)
regarding
no
problems
with
Moreover, the ALJ
Plaintiff’s
subjective
complaints:
At the hearing, [Plaintiff] testified she does not drive
due to her medical impairments. However, her neurologist
completed the [Department of Motor Vehicles (“DMV”)]
paperwork in December 2012, stating that [Plaintiff] was
able to drive, but then noted during an appointment in
March 2014 that although he sent the proper paperwork to
the DMV so [Plaintiff] could regain her driving
privileges, [Plaintiff] had not signed a release form to
get her driver’s license back.
[Plaintiff] also
testified that her medical issues did not cause her to
stop working, but rather, her medical issues started
after she had already quit work.
(Tr. 22 (internal citation omitted).)
Where the ALJ has erred in one component of the credibility
evaluation, but, as here, has otherwise supported the credibility
15
analysis with substantial evidence, no need exists to remand.
See
Johnson v. Commissioner of Soc. Sec., 535 F. App’x 498, 507 (6th
Cir. 2013) (“[E]ven if an ALJ’s adverse credibility determination
is based partially on invalid reasons, harmless error analysis
applies to the determination, and the ALJ’s decision will be upheld
as long as substantial evidence remains to support it.”); Carmickle
v. Commissioner, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
2008) (concluding that ALJ improperly discounted the claimant’s
credibility for inability to afford treatment but holding that, “so
long as there remains ‘substantial evidence supporting the ALJ’s
conclusions on . . . credibility’ and the error ‘does not negate
the validity of the ALJ’s ultimate [credibility] conclusion,’ such
is deemed harmless and does not warrant reversal” (quoting Batson
v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th
Cir. 2004))); Stinnett v. Colvin, No. CV-13-3115-FVS, 2014 WL
6879074, at *6 (E.D. Wash. Dec. 4, 2014) (unpublished) (deeming
ALJ’s failure to develop record regarding the claimant’s ability to
afford treatment “harmless because . . . the ALJ’s remaining
reasoning and ultimate credibility finding is adequately supported
by substantial evidence”); Baker ex rel. C.S.A. v. Astrue, No.
1:11-CV-00592-WTL, 2012 WL 3779213, at *6 (S.D. Ind. Aug. 31, 2012)
(unpublished) (finding that “the ALJ did not consider alternative
explanations for why [the claimant] did not take medication” which
“ran afoul of SSR 96–7p,” but that “the error was harmless”
16
because, “[g]iven the analysis the ALJ engaged in with respect to
the SSR 96–7p factors, . . . proper consideration of alternative
explanations with respect to this single factor would not have
changed the outcome”); Wells v. Astrue, No. CIVIL 09-78-GFVT, 2009
WL 3789006, at *4 n.2 (E.D. Ky. Nov. 12, 2009) (unpublished)
(ruling that “the ALJ[’s] failure to address [the claimant’s]
alleged inability to afford treatment amounted to harmless error
because [the ALJ] based his credibility determination on many
factors,
not
merely
on
[the
claimant’s]
lack
of
medical
treatment”).
Plaintiff also maintains that the ALJ’s “conclusion that the
RFC covers [Plaintiff’s] migraines is unreviewable” (Docket Entry
11 at 11), because the ALJ did not make an express finding as to
the intensity and frequency of Plaintiff’s migraines (id. at 10,
11). This contention lacks merit, because (as concerns Plaintiff’s
migraine headaches) the ALJ “buil[t] an accurate and logical bridge
from the evidence to h[er] conclusion[s],” Clifford, 227 F.3d at
872,
which
permits
conclusions.
The
the
ALJ
Court
to
expressly
meaningfully
found
review
Plaintiff’s
those
migraine
headaches a severe impairment at step two of the SEP (see Tr. 15),
but deemed those headaches insufficiently severe to meet a listing
(see Tr. 16).
The ALJ next discussed Plaintiff’s testimony (see
Tr. 18) and the objective medical evidence regarding Plaintiff’s
migraine headaches (see Tr. 19-20), and concluded that Plaintiff’s
17
subjective complaints “concerning the intensity, persistence, and
limiting effects of [her] symptoms [we]re not entirely credible”
(see Tr. 19 (emphasis added)).
The ALJ subsequently accorded
“great weight” to the state agency medical consultant who had
precluded Plaintiff from concentrated exposure to hazards (Tr. 23,
76), but further limited her to no such exposure “given her history
of migraine headaches” (Tr. 23).
The ALJ then adopted the VE’s
testimony as to three jobs available in significant numbers in the
national economy that accommodated the RFC’s restrictions.
Tr. 24, 53.)
(See
Notably, Plaintiff does not offer any further
restrictions the RFC should have contained to account for her
migraines.
(See Docket Entry 11 at 10-11.)
In short, Plaintiff’s first assignment of error does not
establish an entitlement to relief.
2. CPP
In Plaintiff’s second and final issue on review, she maintains
that the ALJ failed to account for Plaintiff’s moderate deficits in
CPP in the hypothetical question to the VE.
at 12-16.)
(See Docket Entry 11
In particular, Plaintiff argues that the United States
Court of Appeals for the Fourth Circuit in Mascio v. Colvin, 780
F.3d 632 (4th Cir. 2015), made “crystal clear” that “a restriction
to simple, routine, repetitive tasks [(‘SRRTS’)] does not account
for a claimant’s moderate limitations in CPP.”
Mascio, 780 F.3d at 638).)
(Id. at 12 (citing
According to Plaintiff, “[w]hether, in
18
this case, the limitation in the hypothetical to non-production
work sufficiently accounted for [Plaintiff’s] moderate limitation
in CPP” constitutes “the crux of the matter,” and she notes the
existence of “a split within the district as to th[at] issue.”
(Id. at 12-13.)
In that regard, Plaintiff urges the Court to adopt
the reasoning of Cummings v. Colvin, No. 1:14CV465, 2016 WL 792433
(M.D.N.C.
Feb.
26,
2016)
(unpublished)
(Peake,
M.J.),
recommendation adopted, slip op. (M.D.N.C. Mar. 28, 2016) (Osteen,
Jr., C.J.), which she construes as having found a non-production
limitation insufficient to account for moderate deficit in CPP.
(See Docket Entry 11 at 15-16 (discussing Cummings and citing other
cases).)
Plaintiff also contends that the Court should not follow
Farrington ex rel. Farrington v. Berryhill, No. 1:15CV846, 2017 WL
807180 (M.D.N.C. Mar. 1, 2017) (unpublished) (Webster, M.J.),
recommendation adopted, 2017 WL 1155051 (M.D.N.C. Mar. 27, 2017)
(Biggs, J.), and Grant v. Colvin, No. 1:15CV515, 2016 WL 4007606
(M.D.N.C. July 26, 2016) (unpublished) (Auld, M.J.), recommendation
adopted, slip op. (M.D.N.C. Sept. 21, 2016) (Osteen, Jr., C.J.),
because those cases incorrectly “dr[e]w a bright-line, talismanic
rule . . . that a limitation to non-production work solves the
Mascio problem.”
Plaintiff’s arguments fall short.
The Fourth Circuit has indeed held that “the ability to
perform simple tasks differs from the ability to stay on task” and
that “[o]nly the latter limitation would account for a claimant’s
19
limitation in [CPP].”
Mascio, 780 F.3d at 638.
However, as a
neighboring district court has explained:
Mascio does not broadly dictate that a claimant’s
moderate impairment in [CPP] 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 [CPP] 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).
Here,
beyond
merely
including
“a
non-production
work
environment” restriction in the RFC and hypothetical question (Tr.
17,
53),
the
ALJ’s
decision
sufficiently
explains
why
the
restrictions in the RFC to “[SRRTs] consistent with reasoning level
one or two in the [DOT], . . . with no interaction with the general
public[,]
.
.
.
occasional
interaction
with
coworkers
and
supervisors[,] . . . [and] routine changes in a non-production work
environment” (Tr. 17) adequately accounted for Plaintiff’s moderate
limitation in CPP.
First, the ALJ noted at step two of the SEP that, although
Plaintiff had moderate limitation in CPP, the record lacked any
“indication [Plaintiff] has such difficulties that she would be
unable to do very simple, unskilled work.”
20
(Tr. 17.)
Second, the
ALJ discussed Plaintiff’s testimony regarding her mental symptoms
(see Tr. 18), but concluded that Plaintiff’s “statements concerning
the intensity, persistence and limiting effects of [her] symptoms
[we]re not entirely credible” (Tr. 19).
As discussed above, the
ALJ supported her analysis of Plaintiff’s subjective complaints
with substantial evidence.
Third, the ALJ also discussed and
weighed the opinion evidence as it related to Plaintiff’s ability
to function mentally. (See Tr. 22-23.) Most notably, the ALJ gave
“great weight” to the state agency psychological consultant’s
opinion that,
despite
moderate deficit
in
CPP
(see
Tr. 72),
Plaintiff remained “able to perform SRRTs in assignments that do
not require significant social interaction” (Tr. 78).9
Those
three
elements
of
the
ALJ’s
decision
adequately
supported the conclusion that, despite moderate limitation in CPP,
Plaintiff remained capable of performing SRRTs with limited social
interaction in a non-production work environment.
See Sizemore v.
Berryhill, __ F. App’x __, __, 2017 WL 467712, at *6 (4th Cir. Oct.
9
Consultative psychological examiner Dr. Anthony J. Smith evaluated Plaintiff
on March 13, 2013, diagnosed “[m]ajor depressive disorder, recurrent, moderate,”
and “[a]nxiety disorder, [no other specification],” and concluded that:
A physical examination would better verify the extent of the
epilepsy and any other physical complaints.
If verified these
conditions could limit [Plaintiff’s] ability to perform [SRRTs] and
maintain [CPP]. She would likely be able to interact with peers and
co-workers and respond appropriately to supervision.
(Tr. 431-32 (emphasis added).) Thus, Dr. Smith implicitly found that Plaintiff’s
mental impairments impacted neither her ability to perform SRRTs nor to maintain
CPP. The ALJ gave “some weight” to Dr. Smith’s opinions, but “further limited
[Plaintiff’s] social interactions due to her subjective complaints.” (Tr. 22.)
21
17, 2017) (rejecting the plaintiff’s argument under Mascio where
ALJ relied on opinions of consultative examiner and state agency
psychologist that, notwithstanding moderate deficit in CPP, the
plaintiff could sustain attention sufficiently to perform SRRTs).10
Moreover,
the
ALJ’s
inclusion
of
“a
non-production
work
environment” (Tr. 17) in the RFC “reasonably related to a moderate
limitation in Plaintiff’s ability to stay on task,” Grant, 2016 WL
4007606, at *6.
In that regard:
[T]he weight of authority in the circuits that rendered
the rulings undergirding the Fourth Circuit’s holding in
Mascio supports the view that the non-production
restriction adopted in this case sufficiently accounts
for [the p]laintiff’s moderate limitation in CPP.
Moreover, that approach makes sense.
In Mascio, the
Fourth Circuit held only that, when an ALJ finds moderate
limitation in CPP, the ALJ must either adopt a
restriction that addresses the “staying on task” aspect
of CPP-related deficits (which a restriction to simple
tasks does not, at least on its face) or explain why the
CPP limitation of that particular claimant did not
necessitate a further restriction regarding “staying on
task.” Where, as here, the ALJ has included a specific
restriction that facially addresses “moderate” (not
“marked” or “extreme,” see 20 C.F.R. § 416.920a(c)(4))
limitation in the claimant’s ability to stay on task,
i.e., a restriction to “non-production oriented” work,
Mascio does not require further explanation by the ALJ,
at least absent some evidentiary showing by the claimant
(not offered here) that he or she cannot perform even
non-production-type work because of his or her particular
CPP deficits.
10
This consideration materially distinguishes this case from Cummings, where the
Court (1) observed that the record did “not appear to provide the ‘logical
bridge’ necessary for th[e] Court to find that the RFC adequately t[ook] into
account [the p]laintiff’s moderate difficulties in [CPP],” Cummings, 2016 WL
792433, at *4, and (2) ultimately relied on the absence of any “explanation as
to why [the p]laintiff’s moderate limitations in social functioning failed to
translate into any work-related limitations in her RFC” (id. at *5 (emphasis in
original)).
22
Id. at *9 (emphasis added); see also id. at *7-9 (discussing
authority addressing “non-production” restrictions); Farrington,
2017 WL 807180, at *4 (following Grant and holding that preclusion
of
“production,
quota,
and
fast-paced
jobs .
.
.
adequately
accounted for [the plaintiff’s] ability to ‘stay on task’”).
Plaintiff criticizes Farrington and Grant on three grounds.
As
mentioned
above,
Plaintiff
first
faults
those
cases
for
“draw[ing] a bright-line, talismanic rule . . . that a limitation
to non-production work solves the Mascio problem,” and argues that
“[w]hether an ALJ’s decision survives a Mascio challenge depends at
least partly on the facts of the case.”
(Docket Entry 11 at 13.)
Plaintiff urges that Cummings constitutes “the better solution to
the
Mascio
recognized
problem”
that
(id.
whether
at
a
15),
because
limitation
to
Cummings
“properly
non-production
work
‘covers’ a moderate limitation in CPP depends on (among other
things) whether there was sufficient evidence that the claimant’s
limitation in CPP is linked to the non-production limitation” (id.
at 16 (citing Cummings, 2016 WL 792433, at *4)).
In that regard,
Plaintiff argues:
One critical factual issue is the cause of the claimant’s
moderate limitation [in CPP], for if the limitation . . .
is not caused by the demands of production work, than a
limitation to non-production work could not be the
antidote. Watching a security system television screen,
for example, is non-production work, but one can easily
imagine what risks to security there would be if the job-
23
holder were unable to stay on task.
bright-line rule . . . .
So there can be no
(Id. at 13-14.)
Plaintiff’s argument glosses over the language in Grant,
emphasized above, that “[w]here . . . the ALJ has included a
specific restriction that facially addresses ‘moderate’ . . .
limitation in the claimant’s ability to stay on task, i.e., a
restriction to ‘non-production oriented’ work, Mascio does not
require further explanation by the ALJ, at least absent some
evidentiary showing by the claimant . . . that he or she cannot
perform
even
non-production-type
particular CPP deficits.”
work
because
of
his
or
her
Grant, 2016 WL 4007606, at *9 (emphasis
added). The underscored language makes abundantly clear that Grant
did not proclaim a “bright-line, talismanic rule” that limitations
to non-production work always “solve[] the Mascio problem,” and
recognized, just as Cummings did, see Cummings, 2016 WL 792433, at
*4, that a non-production limitation would not adequately address
moderate limitation in CPP if the claimant offered evidence “that
he or she cannot perform even non-production-type work because of
his or her particular CPP deficits,” Grant, 2016 WL 4007606, at *9.
Notably, Plaintiff has made no attempt here to show that she
remains unable to perform the jobs cited by the VE and adopted by
the ALJ because of her limitations in CPP.
24
(See Docket Entry 11.)
Plaintiff next contends that “the word ‘moderate’ allows too
much variance for a moderate limitation in CPP to be covered by a
bright-line rule such as that adopted in Farrington and Grant.”
(Id. at 14.) In particular, Plaintiff deems her limitations in CPP
“worse than the ALJ indicated,” and argues that “[a] bright-line
rule would not account for a moderate limitation in CPP that is
[as] severe [as Plaintiff’s] (though shy of ‘marked’).”
(Id.)
That contention fails because, as discussed above, Farrington and
Grant did not announce “bright-line” rules regarding non-production
limitations.
Moreover, the ALJ’s decision permits the Court to
meaningfully review the manner in which the ALJ accounted for
Plaintiff’s moderate limitation in CPP in the RFC and dispositive
hypothetical question.
Finally, Plaintiff maintains that “Farrington and Grant should
not be followed . . . [because] [t]hose cases interpreted Mascio as
relying on the law of other circuits in order to hold that nonproduction work accounts for moderate limitation in CPP.”
14-15.)
(Id. at
According to Plaintiff, “to say Farrington and Grant
relied on dicta would be an understatement: Neither Mascio nor
Winschel
v.
Comm’r
of
Soc.
Sec.,
631
F.3d
1176,
1180
(11th
Cir.2011) – the only outside-the-circuit case that Mascio cited by
name – involved the question whether non-production work could
account for a moderate limitation in [CPP].”
25
(Id. at 15.)
Plaintiff
conflates
reliance
on
dicta
(which
appears
in
neither Grant nor Farrington) and the evaluation of persuasive
(albeit
non-binding)
Farrington).
authority
(which
appears
in
Grant
and
For example, in Grant, the Court began its analysis
by noting that, “in reaching its conclusion in Mascio that a
restriction to ‘simple, routine tasks or unskilled work’ did not
adequately address moderate deficits in CPP, the Fourth Circuit
expressly relied on the Eleventh Circuit’s decision in Winschel.”
Grant, 2016 WL 4007606, at *7 (quoting Mascio, 780 F.3d at 638
(“[W]e agree with other circuits that an ALJ does not account “for
a claimant’s limitations in [CPP] by restricting the hypothetical
question to simple, routine tasks or unskilled work.” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011) (joining
the Third, Seventh, and Eighth Circuits).”).
The Grant Court then
observed that (consistent with the reference to other circuits
(plural) in Mascio) Winschel “relied upon decisions from the Third,
Seventh, and Eighth Circuits.”
Grant, 2016 WL 4007606, at *7
(citing Winschel, 631 F.3d at 1180 (in turn citing Stewart v.
Astrue, 561 F.3d 679, 684–85 (7th Cir. 2009), Ramirez v. Barnhart,
372 F.3d 546, 554 (3d Cir. 2004), and Newton v. Chater, 92 F.3d
688, 695 (8th Cir. 1996))).
Next,
the
Grant
Court
provided
“a
review
of
how
those
appellate courts (and district courts within those circuits) have
ruled in cases involving a moderate limitation in CPP and a
26
restriction to non-production work in the mental RFC.”
9.
Id. at *8-
As a result of that review of the holdings (not dicta) of those
cases, the Court concluded that “the weight of authority in the
circuits
that
Circuit’s
rendered
holding
in
the
rulings
Mascio
undergirding
supports
the
the
view
Fourth
that
the
non-production restriction adopted in th[at] case sufficiently
account[ed] for [the p]laintiff’s moderate limitation in CPP.” Id.
at *9.
That analysis remains sound.
In sum, Plaintiff’s second issue on review fails as a matter
of law.
III.
CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 12)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 31, 2017
27
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