WINSTON v. COLVIN

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE signed on 10/13/2017. RECOMMENDED that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the Pleadings (Doc. # 11 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Doc. # 13 ) be GRANTED, and that this action be DISMISSED with prejudice. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DIONISIA WINSTON,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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1:16CV1184

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Dionisia Winston (“Plaintiff”) brought this action pursuant to Section
1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. § 1383(c)(3)), to obtain
judicial review of a final decision of the Commissioner of Social Security denying her claim
for Supplemental Security Income under Title XVI of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for review.
I.

PROCEDURAL HISTORY
Plaintiff protectively filed her application for Supplemental Security Income on January

7, 2013. (Tr. at 21, 170-78.) 2 Her application was denied initially (Tr. at 65-80, 114-17), and
that decision was upheld upon reconsideration (Tr. at 81-96, 97-113, 120-24). Thereafter,

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).
1

2

Transcript citations refer to the Sealed Administrative Record [Doc. #8].

Plaintiff requested an administrative hearing de novo before an Administrative Law Judge
(“ALJ”). (Tr. at 125.) Plaintiff attended the subsequent hearing on January 30, 2015, along
with her attorney and an impartial vocational expert. (Tr. at 21.) The ALJ ultimately concluded
that Plaintiff was not disabled within the meaning of the Act (Tr. at 33), and, on July 31, 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 15).
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 [the] 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 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. 1992)
(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
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

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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. “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)). 3

“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
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).

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“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. 4 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can

“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 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
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“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 application date. Plaintiff 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: borderline intellectual functioning, bipolar disorder,
and depression. (Tr. at 23.) The ALJ found at step three that none of these impairments,
singly or in combination, met or equaled a disability listing. (Tr. at 24-25.) Therefore, the ALJ
assessed Plaintiff’s RFC and determined that she retained the ability to perform a full range of
work at all exertional levels, but with the following nonexertional limitations:

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.

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the claimant can perform simple, routine, repetitive[] work tasks[,] meaning
tasks which apply commonsense understanding to carry out instructions
furnished in written, oral, or diagrammatic form, with the ability to deal with
problems involving several concrete variables in or from standardized
situations. The claimant can occasionally interact with co-workers and
supervisors. She cannot maintain sustained interaction with the general public.
The claimant should not work in a [f]ast paced or production based work
environment[,] but can do entry level or goal oriented work.
(Tr. at 25-26.) At step four, the ALJ determined that Plaintiff had no past relevant work. (Tr.
at 32.) However, the ALJ concluded at step five that, given Plaintiff’s age, education, work
experience, and RFC, along with the testimony of the vocational expert regarding those
factors, she could perform other jobs available in the national economy and therefore was not
disabled. (Tr. at 32-33.)
Plaintiff now challenges the ALJ’s RFC assessment in two respects. First, Plaintiff
contends that the ALJ failed to comply with the Fourth Circuit’s decision in Mascio v. Colvin,
780 F.3d 632 (4th Cir. 2015). In particular, Plaintiff argues that the RFC in the present case
does not sufficiently encompass the moderate limitations in concentration, persistence, or pace
identified at step three of the sequential analysis. Second, Plaintiff contends that the ALJ failed
to properly consider whether she could sustain a 40-hour workweek. After a thorough review
of the records, the Court finds that neither of these contentions merit remand.
A.

Concentration, Persistence, and Pace

At step three of the sequential analysis, the ALJ determined that Plaintiff has moderate
limitations in concentration, persistence, and pace. In Mascio, the Fourth Circuit noted that
where such limitations are reflected at step three, the ALJ should address those limitations in
assessing the RFC or should explain why the limitations do not affect the claimant’s ability to
work. The Fourth Circuit specifically held that “an ALJ does not account for a claimant’s
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limitations in concentration, persistence, and pace by restricting the hypothetical question to
simple, routine tasks or unskilled work.” 780 F.3d at 638 (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, 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 noted above, the ALJ found Plaintiff moderately limited in terms
of concentration, persistence, or pace at step three of the sequential analysis. In doing so, the
ALJ noted that:
[t]he claimant testified that while her long-term memory is O.K., her short-term
memory is poor. The claimant further reported that she can pay attention for
only ten minutes and that her condition affects her memory, understanding, and
ability to comp[l]ete tasks. She further reported that she cannot remember her
phone number and that she forgets to finish doing things until the next week.
She stated that it is hard for her to follow written instructions and that spoken
instructions must be repeated for her to get the meaning of what she needs to
do. Agency examining psychologist Anthony Smith, Ph.D. noted that the
claimant was able to complete serial 3’s backwards from 50 with no mistakes
and determined that the claimant’s intellectual ability appeared to be in the
below average range. Overall, the evidence supports a moderate restriction in
this area. 5
Although Plaintiff does not explicitly contend that this determination is not supported by substantial evidence,
Plaintiff does imply that Plaintiff has marked, rather than moderate, restrictions in concentration, persistence
and pace. On this point, Plaintiff first contends that the ALJ failed to consider Plaintiff’s memory problems.
However, as reflected in the discussion quoted above, the ALJ explicitly considered Plaintiff’s memory
problems in making her determination. In addition, Plaintiff notes that the ALJ misquoted Dr. Smith because
Dr. Smith’s report states that Plaintiff was “unable to complete serial 3’s backwards from 50 with no mistakes.”

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(Tr. at 24-25.) The ALJ noted that the limitations identified in that discussion were not a
residual functional capacity assessment, and in assessing Plaintiff’s RFC, the ALJ then found
that Plaintiff’s impairments limited her to simple, routine, repetitive work tasks, with further
restrictions to only occasional interactions with co-workers and supervisors, no sustained
interaction with the general public, and a work environment which was not fast-paced or
production-based but could include “entry level or goal oriented work.” (Tr. at 25-26.)
Plaintiff now argues that the RFC restriction to simple, routine, repetitive tasks in a
work environment that is not “[f]ast-paced or production based” fails to adequately address
her moderate limitations in concentration, persistence, or pace. However, as Defendant
correctly notes, a recent decision in this District, Grant v. Colvin, No. 1:15CV515, 2016 WL
4007606, at *6-9 (M.D.N.C. July 26, 2016), specifically addressed the issue of whether such
restrictions adequately account for moderate limitations in concentration, persistence, or pace.
In Grant, the court undertook an in-depth analysis of the case law from other circuits
underpinning the Fourth Circuit’s decision in Mascio. After “review[ing] how those appellate
courts (and district courts within those circuits) have ruled in cases involving a moderate
limitation in CPP and a restriction to non-production work in the mental RFC,” the court

In response, Defendant contends that the reference to “able” rather than “unable” is simply a typographical
error by the ALJ. Any concern on this point is sufficiently addressed by the ALJ’s extensive analysis of Dr.
Smith’s evaluation later in the decision. (Tr. at 29-30, 31.) For example, the ALJ stated that:
I give some weight to Dr. Smith’s diagnosis of “mild mental retardation” which is referred to
a[s] “borderline intellectual functioning” in this decision. Dr. Smith administered some tests
(serial 3’s, abstract similarities, proverb interpretation, judgment) indicating that the claimant’s
intellectual ability appeared to be in the low average range. This assessment does not appear
to be contradicted by the overall evidence of record.
(Tr. at 31.) Thus, the ALJ accurately recounted and considered Dr. Smith’s conclusions based on his testing,
and in this context the Court agrees that the apparent typographical error cited by Plaintiff would not warrant
a remand in this case.
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concluded that “the 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
. . . sufficiently accounts for [a claimant’s] moderate limitation in CPP.” Grant, at *7, *9. The
Court further explained the rationale for such a holding as follows:
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-productiontype work because of his or her particular CPP deficits.
Grant, at *9. Accordingly, in providing that Plaintiff “should not work in a [f]ast paced or
production based work environment[,] but can do entry level or goal oriented work,” the ALJ
in the present case considered and accounted for Plaintiff’s ability to stay on task as required
by Mascio.
Moreover, the ALJ specifically explained her decision in this case. As previously noted
in other cases in this District, 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.”
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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 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. Specifically, the ALJ noted
that Plaintiff reported that
she found it difficult to maintain consistent participation in most tasks. She
reported a history of being terminated from employment due to her inability to
maintain motivation and symptoms of depression and anxiety. She also
reported difficulty interacting in social settings preferring to spend most of her
time alone and isolated. I have accommodated these symptoms by limiting the
claimant to simple, routine, work tasks with no fast paced production
requirements and only occasional interaction with co-workers and supervisors
and no sustained interaction with the public.
(Tr. at 27-28.) The ALJ considered the medical evidence and further stated that she had “also
taken the claimant’s borderline intellectual functioning, her non-severe headaches, and
potential side effects from her medications 6 into account by limiting her to simple, routine
entry-level goal oriented work that is not fast paced.” (Tr. at 29.) Finally, the ALJ gave great
weight to the opinions of state agency reviewing psychologist Dr. April L. Strobel-Nuss

In finding Plaintiff moderately limited in terms of concentration, persistence, or pace, the ALJ recounted
Plaintiff’s testimony “that her medication causes her to forget things.” (Tr. at 26.)
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(initial) and psychiatrist Dr. Bonnie Gregory (reconsideration), both of whom found Plaintiff
moderately limited in terms of concentration, persistence, and pace. (Tr. at 30-31, 74-77, 8793.) Drs. Strobel-Nuss and Gregory opined that Plaintiff nevertheless retained “the ability to
carry out very short and simple instructions and is able to maintain attention and concentration
for 2 hours at a time as required for the performance of simple tasks.” (Tr. at 75, 92.) When
ultimately issuing their RFC assessments, both reviewers found it “[r]easonable to limit
[Plaintiff] to SRRTs in low social and non[-]production settings.” (Tr. at 76, 93.) The ALJ
stated that she gave “great weight to their opinion that [Plaintiff] retained the ability to
understand and remember very short and simple instructions. This opinion is consistent with
the overall evidence of record including [] Dr. Smith’s consultative report.” (Tr. at 31.) Thus,
the ALJ not only adequately accounted for Plaintiff’s concentration, performance, and pace
limitations in the RFC itself, but also provided additional explanations and bases for doing so
in her decision. This is sufficient to create the requisite “logical bridge,” and in these
circumstances, there is no basis for a remand pursuant to Mascio.
B.

40-hour workweek

Plaintiff next contends that “[t]he ALJ’s finding that [Plaintiff] could sustain a 40-hour
workweek is not supported by substantial evidence.” (Pl.’s Br. at 16.) In large part, this
contention relies upon Plaintiff’s previous RFC challenge. Specifically, Plaintiff argues that
“[a]s in McBride v. Colvin, No. 1:15-CV-186, 2016 WL 3965106, at *13 (N.D. Ind. July 25,
2016), the ALJ failed to consider [Plaintiff’s] ability to maintain concentration, persistence, or
pace ‘and instead focused on her ability to perform discreet tasks for unspecified periods of
time.’” (Pl.’s Br. at 19.) Because, as explained at length above, the ALJ in the present case
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properly considered Plaintiff’s limitations in concentration, persistence, and pace and
accounted for those limitations in the RFC, any argument on this basis fails.
Plaintiff also points to other evidence that she contends supports her inability to
maintain full time employment: (1) her previous status as a disabled child, (2) the report of
consultative psychologist Anthony Smith, and (3) her scant work history. (Pl.’s Br. [Doc. #12]
at 16-18.) However, the ALJ properly considered each of these factors in rendering her
decision. With respect to Plaintiff’s prior receipt of benefits as a child, the ALJ addressed this
issue as an initial matter at the administrative hearing and asked Plaintiff’s counsel to clarify
Plaintiff’s prior disability status. Counsel explained that Plaintiff had received benefits as a
child, but that her benefits later ceased when the Social Security Administration determined
she no longer qualified as disabled. Specifically, counsel noted that Plaintiff initially qualified
as a disabled child based on low IQ scores in the late 1990s. However, upon retesting in 2007,
Plaintiff’s IQ scores were above 70, leading to the termination of her benefits. (Tr. at 42.)
This cessation of benefits occurred approximately five years before Plaintiff filed the SSI
application in this case, was fully litigated in a prior proceeding, and was not at issue in the
present case. (Tr. at 41-42.) To the extent Plaintiff is relying not on her prior disability status
but instead on her current borderline intellectual functioning, the ALJ considered that
evidence at length and took that evidence into account in formulating Plaintiff’s RFC.
Likewise, to the extent Plaintiff is relying on the consultative report by Dr. Smith, the
ALJ considered and addressed that report at length in the administrative decision. Indeed, in
determining Plaintiff’s limitations in concentration, persistence, and pace, the ALJ specifically
considered and relied upon Dr. Smith’s conclusion that Plaintiff’s intellectual ability appeared
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to be in the below average range. (Tr. at 25.) In addition, in considering the opinion evidence,
the ALJ gave
some weight to Dr. Smith’s diagnosis of ‘mild mental retardation’ which is
referred to a[s] ‘borderline intellectual functioning’ in this decision. Dr. Smith
administered some tests (serial 3’s, abstract similarities, proverb interpretation,
judgment) indicating that the claimant’s intellectual ability appeared to be in the
low average range. This assessment does not appear to be contradicted by the
overall evidence of record.
(Tr. at 31.) The ALJ specifically noted that Plaintiff relied heavily on Dr. Smith’s statement
that Plaintiff “could benefit from vocational rehabilitation services to help her find
employment in a structured and highly supervised setting that would allow her to work in
some capacity.” (Tr. at 29-30, 31, 442.) However, the ALJ gave little weight to this statement
and explained her reasons for doing so in detail. (Tr. at 30, 31.) Significantly, the ALJ first
found that
[c]ounsel’s argument attempts to extract too much from this comment, which I
do not consider dispositive of the case. First, to the extent that this remark may
be construed as an opinion regarding the claimant’s capacity to work outside of
a sheltered work environment, opinions on issues reserved to the
Commissioner must be carefully considered to determine the extent to which
they are supported by the record as a whole (SSR 96-5p). Although many
claimants with severe mental impairments could benefit from vocational
rehabilitative services, this does not mean that the same claimants could not
work jobs that accommodate their symptoms.
(Tr. at 30); see 20 C.F.R. § 416.927(d). The ALJ then further explained that “the record as a
whole does not support the conclusion that the claimant needs to be in a sheltered workshop,”
and cited the following evidence:
[Plaintiff] told Rebecca Sandun, M.D. three years after her alleged onset date in
February 2012 that she quit her job “due to low pay” and was unsuccessfully
searching for a new job. [Plaintiff] was apparently successful in finding
employment reporting in April 2012 working part time as a cashier. This record
is persuasive evidence that [Plaintiff] quit a job over salary as opposed to being
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unable to maintain it because it was not in a sheltered workshop. Moreover, no
doctor or therapist ever discouraged [Plaintiff] from working or suggested that
her impairments would prevent her from working outside of a sheltered
workshop. To the contrary, [Plaintiff’s] therapist encouraged [Plaintiff] to
submit employment applications and gave her assignments to follow up with
any employers with whom she applied. [Plaintiff’s] therapist would likely not
do this if she believed that her impairments were so severe as to preclude such
work. In addition, [Plaintiff] reported enjoying her job and wanting to work
additional hours and indicated that she would like to get a second job.
(Tr. at 30) (citing Tr. at 354, 560, 570). Additionally, the ALJ noted that “Dr. Smith did not
have the benefit of the medical evidence of record and received all of his information from
the claimant at the consultative examination.” (Tr. at 30.) The ALJ therefore concluded that
“counsel’s argument that Dr. Smith’s report requires a finding that the claimant’s impairments
limit her to sheltered work is not persuasive.” (Tr. at 30.) Although Plaintiff now argues that
the ALJ somehow erred in the above analysis, she fails to identify how or why this may be the
case. The ALJ considered and addressed the evidence at length, including the report from Dr.
Smith, and the ALJ took that evidence into account in formulating the RFC. The ALJ also set
out the reasoning for not adopting a limitation to a sheltered work environment. These
determinations are supported by substantial evidence, and the ALJ’s explanation provides the
sufficient “logical bridge.” As such, the Court finds no error.
Finally, Plaintiff argues that the ALJ failed to properly consider Plaintiff’s sparse work
history as evidence that she could not maintain full-time employment. The ALJ acknowledged
Plaintiff’s reported history of being terminated from employment due to her inability to
maintain motivation and her symptoms of depression and anxiety, and accommodated those
issues with specific limitations in the RFC. (Tr. at 27-28.) The ALJ also acknowledged
counsel’s assertion that Plaintiff “lost her jobs because she was too slow.” (Tr. at 30, 48, 63.)
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However, the ALJ then cited evidence which, at least in part, contradicted that blanket
statement. In particular, the ALJ noted that Plaintiff quit one job “due to low pay” in 2012
(Tr. at 30), and reported actively looking for a second job in 2013, when her first job could
not provide enough hours (Tr. at 28, 30, 580.) The ALJ further explained that Plaintiff
quit another job at McDonalds in 2014 before it got “too bad.” The record is
unclear as to what the claimant meant by “too bad” and in any event, she found
another job at Walmart. While these jobs may exceed the claimant’s current
capacity, the fact that the claimant was able to get the jobs and work at them as
long as she could (more than 10 months at Walmart) suggests that her
symptoms are not nearly as limiting as she testified.
(Tr. at 30.)

Moreover, the ALJ also clearly described the extent to which Plaintiff’s

impairments were problematic in her past work and identified the portions of the RFC
assessment designed to address these issues:
I appreciate that [Plaintiff] may have experienced difficulty working at places
like Walmart and McDonalds due to her up and down mood swings, depression,
and irritability. I have accommodated the reasonable symptoms associated with
[Plaintiff’s] impairments by limiting her to work where she has only occasional
interaction with co-workers and supervisors and no sustained interaction with
the public. I have also taken [Plaintiff’s] borderline intellectual functioning, her
non-severe headaches, and potential side effects from her medications into
account by limiting her to simple, routine entry level goal oriented work that is
not fast paced. However, the overall evidence does not support that the
claimant’s impairments preclude all work.
(Tr. at 29.) The ALJ thus explained in detail the basis for her determination, and substantial
evidence supports the RFC, including Plaintiff’s ability to perform the designated activities on
a sustained basis.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment on the Pleadings [Doc.

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#11] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #13] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 13th day of October, 2017.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

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