IVEY v. COLVIN

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 9/22/2017; Recommended that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that judgment be entered for Defendant. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MABLE D. IVEY,

)
)
)
)
)
)
)
)
)
)
)

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

1:16CV1304

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Mable Darlene Ivey, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,

denying

Plaintiff’s

claim

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)

Defendant has filed the certified administrative record

(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 11, 13; see also Docket Entry 12
(Plaintiff’s

Memorandum),

Docket

Entry

14

(Defendant’s

Memorandum)).

For the reasons that follow, the Court should enter

judgment for Defendant.

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI, alleging an onset date of
April 10, 2010.

(Tr. 177-80, 305-17.)

Upon denial of those

applications initially (Tr. 124-38, 181-92) and on reconsideration
(Tr. 139-56, 199-206), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 207-08).

Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing (Tr.
89-123), at which Plaintiff amended her onset date to August 1,
2011 (Tr. 99).

The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act.

(Tr. 157-67.)

The Appeals

Council thereafter granted Plaintiff’s request for review (Tr. 17376, 437-39), vacated the ALJ’s decision, and remanded the matter
for further administrative proceedings, to include evaluation of
Plaintiff’s mental disorders, obesity, and new evidence Plaintiff
submitted with the request for review (Tr. 173-76).
Following remand, a new ALJ convened a second hearing, which
Plaintiff, her attorney, and a VE attended.

(Tr. 54-88.)

At the

outset of that hearing, the ALJ granted Plaintiff’s renewed motion
to amend her onset date to August 1, 2011.

(Tr. 58.)

The ALJ

thereafter issued a decision finding Plaintiff not disabled.
32-46.)

The

Appeals

Council

subsequently

denied

(Tr.

Plaintiff’s

request for review (Tr. 1-7, 30-31, 447-49), making the ALJ’s
ruling the Commissioner’s final decision for purposes of judicial
review.

2

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 March 31, 2015.
2.
[Plaintiff] has not engaged in substantial gainful
activity since April 10, 2010, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
degenerative joint disease, right hip avascular necrosis,
obesity,
diabetes
mellitus,
hypertension,
right
ventricular hypertrophy, incontinence, posttraumatic
stress disorder, depression, and anxiety.
. . .
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.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work (lifting and carrying 20
pounds occasionally and 10 pounds frequently . . . ),
except that she should have a sit/stand option allowing
her to sit for 30 minutes and stand as needed up to 10
minutes. She can occasionally push and pull using her
right lower extremity.
She can occasionally climb,
balance, stoop, kneel, and crawl. She uses a cane for
balance.
She should avoid concentrated exposure to
fumes. [Plaintiff] is capable of simple routine
repetitive tasks in a stable environment with occasional
interpersonal interaction.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are

3

jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from April 10, 2010, through the
date of this decision.
(Tr.

37-45

(bold

font

and

internal

parenthetical

citations

omitted).)2
II.

DISCUSSION

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely
limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

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

2

The ALJ’s references to “April 10, 2010” as the alleged onset date (Tr. 37, 45)
constitute typographical errors, as Plaintiff amended her onset date to August
1, 2011 (see Tr. 58, 99); however, those errors remain harmless because a
decision that Plaintiff did not qualify as disabled from April 10, 2010, to
February 25, 2015 (the date of the second ALJ’s decision), necessarily entails
a determination that she did not meet the disability requirements from August 1,
2011, to February 25, 2015.

4

(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, 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 evidence to justify a

refusal to direct a verdict were the case before a jury, then there
is

substantial

evidence.”

Hunter,

993

F.2d at

34

(internal

quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
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).

5

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)).3

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id. (internal citations omitted).

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

3

The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).

6

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).4

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.5

Step four then requires the ALJ to assess

4

“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).

5

“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.,
(continued...)

7

whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.

Id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.6
B.

Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) the ALJ “erred in finding that [Plaintiff] has the [RFC] to
perform a reduced range of light work” (Docket Entry 12 at 8
(capitalization omitted);

5

(...continued)
pain).” Hines, 453 F.3d at 562-63.
6

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

2) the ALJ “erred in failing to accord appropriate weight to
the opinion evidence in the record” (id. at 12 (capitalization
omitted)); and
3) the ALJ “erred in failing to find that [Plaintiff’s]
[chronic

obstructive

pulmonary

disease

(“COPD”)]

is

a

severe

impairment and further failing to discuss this impairment in the
step 2 discussion of severe impairments” (id. at 15 (capitalization
omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 14 at 3-18.)
1. RFC

In Plaintiff’s first issue on review, she faults the ALJ for
committing four separate errors in formulating the RFC.
Entry 12 at 8-12.)

(Docket

First, Plaintiff maintains that, because the

ALJ included “a sit/stand option allowing [Plaintiff] to sit for 30
minutes and stand as needed for up to 10 minutes,” the “RFC clearly
does not meet the standards of light work . . . [which requires]
standing/walking for 6 hours in a day,” and that, “[a]t best, the
RFC . . . is essentially sedentary.”

(Id. at 9 (citing Tr. 39 and

Social Security Ruling 83-10, Titles II and XVI: Determining
Capability to Do Other Work – the Medical-Vocational Rules of
Appendix 2, 1983 WL 31251 (1983)).)

Second, Plaintiff contends

that her “credible testimony serves to illustrate that she is
unable to work due to chronic severe pain.”

9

(Id. (citing Tr. 59-

81).)

Third, Plaintiff asserts that the ALJ failed to account for

Plaintiff’s moderate limitation in concentration, persistence, or
pace

(“CPP”)

in

the

RFC,

because

the

ALJ

did

not

address

Plaintiff’s ability to stay on task in violation of Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015).

(Docket Entry 12 at 10-11.)

Fourth,

Louise

Plaintiff

argues

that

VE

Walker’s

testimony

“substantiates that [Plaintiff] is unable to work,” because Walker
testified that “an individual [with Plaintiff’s RFC] would be
precluded from all substantial gainful employment if excessive
breaks or absences were caused by her impairments consistent with
[Plaintiff’s]

testimony.”

(Id.

at

12

(citing

Tr.

121-22).)

Plaintiff’s arguments in this regard do not provide a basis for
relief.
Plaintiff’s contention that the ALJ’s inclusion of a sit/stand
option renders the RFC “essentially sedentary” and thus invalidates
the ALJ’s step five adoption of the three light exertion jobs cited
by the VE (id. at 9) misses the mark.

Social Security Ruling 83-

12, Titles II and XVI: Capability to Do Other Work – the MedicalVocational

Rules

as

a

Framework

for

Evaluating

Exertional

Limitations Within a Range of Work or Between Ranges of Work, 1983
WL 31253 (1983) (“SSR 83-12”) explains an ALJ’s obligations when a
claimant’s RFC falls between two exertional levels as follows:
Where an individual’s exertional RFC does not coincide
with the definition of any one of the ranges of work
. . ., the occupational base is affected and may or may
not represent a significant number of jobs . . . . The
10

[ALJ] will consider the extent of any erosion of the
occupational base and a[ss]ess its significance. . . .
Where the extent of erosion of the occupational base is
not clear, the [ALJ] will need to consult a vocational
resource.
. . .
In some disability claims, the medical facts lead to an
assessment of RFC which is compatible with the
performance of either sedentary or light work except that
the person must alternate periods of sitting and
standing. . . . Such an individual is not functionally
capable
of
doing
either
the
prolonged
sitting
contemplated in the definition of sedentary work . . . or
the prolonged standing or walking contemplated for most
light work. . . .
. . .
In cases of unusual limitation of ability to sit or
stand, a V[E] should be consulted to clarify the
implications for the occupational base.
SSR 83-12, 1983 WL 31253, at *2-4.
Here, a review of the hearing transcript demonstrates that the
ALJ complied with the above-quoted requirements of SSR 83-12:
[ALJ:]

Assume that I find on the basis of the
credible record before me for a full relevant
period
that
[Plaintiff’s]
demonstrated
exertional impairments reflect[] a[n] [RFC]
for a less than full range of light work on a
sustained basis.
Assume further that she has demonstrated
certain significant nonexertional impairments
. . . which limit[] [Plaintiff] to work
requiring a sit/stand option; sit for 30
minutes, stand as needed up to 10 minutes
. . . .
. . . Taking into full account these
nonexertional restrictions, [Plaintiff’s] age,
education, and prior relevant work experience,
are there jobs existing in the general area in
11

which [Plaintiff] lives or several regions of
the country that she can do with these
limitations?
[VE:]

You said, Your Honor, no sitting more than 30
minutes? . . .

[ALJ:]

Right.
Sit for 30 minutes.
She can sit
longer than that, . . . I mean she could sit
30 minutes, 60 minutes, two hours.
It’s
really at her discretion. And then stand as
needed up to 10 minutes.

[VE:]

Yes, Your Honor, there would be jobs.

[ALJ:]

Very well.

[VE:]

Assembler, [Dictionary of Occupational Titles
(“DOT”)] No. 706.684-022, with an exertional
level of light, with a[] [Specific Vocational
Preparation (“SVP”)] of two.
National
employment numbers, 235,910. North Carolina
employment numbers, 3,320. Inspector, [DOT]
No. 784.687-042, with an exertional level of
light, with an SVP of two.
National
employment numbers, 660,860. North Carolina
employment numbers, 27,180.

And they would be?

Packer, [DOT] No. 920.685-026, with an
exertional level of light, with an SVP of two.
National employment numbers, 354,810. North
Carolina employment numbers, 12,360.
(Tr. 83-84 (emphasis added).)
Plaintiff’s attorney then cross-examined the VE regarding
whether the cited jobs could accommodate a sit/stand option:
[ATTY:]

The jobs you’ve just listed, they’re all light
exertional jobs and they allow for a sit/stand
option as described?

[VE:]

Yes.

[ATTY:]

Does that change the numbers at all when you
include the option to sit or stand?

12

[VE:]

Yes,
and
I’ve
taken
[that]
in[to]
consideration.
We could take out 10 to 20
percent of those jobs.

(Tr. 85.) The VE’s testimony thus constitutes substantial evidence
supporting the ALJ’s step five finding that other jobs exist in
significant numbers in the national economy that Plaintiff could
perform (see Tr. 45).

See Buckner v. Colvin, No. 1:10CV375, 2014

WL 3962463, at *5 (M.D.N.C. Aug. 13, 2014) (unpublished) (Peake,
M.J.) (finding that “the ALJ properly asked the [VE] to clarify the
implications of the sit/stand option o[n] the occupational base of
light work, and properly relied upon the [VE’s] identification of
jobs that [the p]laintiff can perform”), recommendation adopted,
slip op. (M.D.N.C. Sept. 30, 2014) (Beaty, Jr., S.J.).
Next, Plaintiff’s reliance on her own testimony to challenge
the ALJ’s

RFC

Plaintiff’s

determination

credibility,

falls

but

short.

determined

The
that

ALJ evaluated
Plaintiff’s

“statements concerning the intensity, persistence, and limiting
effects of [her] symptoms [we]re not entirely credible.” (Tr. 40.)
Plaintiff has not challenged the ALJ’s credibility evaluation (see
Docket Entry 12) and thus has not established that the ALJ erred in
declining to fully credit Plaintiff’s statements in formulating the
RFC.

See Squires v. Colvin, No. 1:16CV190, 2017 WL 354271, at *5

(M.D.N.C. Jan. 24, 2017) (unpublished) (Auld, M.J.) (noting that an
“ALJ

labors

under

no

obligation

to

accept

[the

p]laintiff’s

subjective complaints ‘at face value’” (quoting Ramos-Rodriguez v.

13

Commissioner of Soc. Sec., Civ. No. 11-1323 (SEC), 2012 WL 2120027,
at

*3

(D.P.R.

June

11,

2012)

(unpublished))),

recommendation

adopted, slip op. (M.D.N.C. Mar. 6, 2017) (Schroeder, J.); see also
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[A]
litigant has an obligation to spell out its arguments squarely and
distinctly, or else forever hold its peace.” (internal quotation
marks omitted)); Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014
WL

906220,

at

*1

n.1

(M.D.N.C.

Mar.

7,

2014)

(unpublished)

(Schroeder, J.) (“A party should not expect a court to do the work
that it elected not to do.”).7
In Plaintiff’s third RFC sub-argument, she maintains that the
ALJ’s “RFC analysis failed to fully and accurately account for
[Plaintiff’s] mental limitations in [CPP].”

(Docket Entry 12 at

11.) In that regard, Plaintiff argues that, pursuant to Mascio, an
ALJ does not account for a claimant’s limitations in CPP “by

7

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 . . .
sub-regulatory 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.
The ALJ’s decision in this case
predates the effective date of SSR 16-3p (see Tr. 46), 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 adopted, slip op. (M.D.N.C. Feb. 23, 2017) (unpublished)
(Eagles, J.); 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.).

14

restricting the . . . [RFC] to simple, routine tasks or unskilled
work . . . [because] [t]he ability to perform simple tasks differs
from the ability to stay on task[,] [and] [o]nly the latter
limitation would account for a [claimant’s] limitation in [CPP].”
(Id. (citing Mascio, 780 F.3d at 638).)

According to Plaintiff,

the ALJ “failed to adequately account for [Plaintiff’s moderate
limitation in CPP] in his formulation of the RFC because he did not
address [Plaintiff’s] ability to stay on task and work at a
sufficient pace to perform substantial gainful employment.”
at 11-12 (citing Tr. 38, and referencing Tr. 39).)

(Id.

This argument

does not entitle Plaintiff to relief.
The United States Court of Appeals for the Fourth Circuit has
held that “the ability to perform simple tasks differs from the
ability to stay on task” and that “[o]nly the latter limitation
would account for a claimant’s limitation in [CPP].”
F.3d

at

638.

However,

as

a

neighboring

district

Mascio, 780
court

explained:
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.

15

has

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,

the ALJ’s decision provides a sufficient explanation as to why
limitations in the RFC to “simple routine repetitive tasks in a
stable environment with occasional interpersonal interaction” (Tr.
39) sufficiently accounted for Plaintiff’s moderate limitation in
CPP.
First, the ALJ discussed Plaintiff’s testimony regarding her
mental symptoms (see Tr. 39-40), but concluded that Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely credible” (Tr. 40).
Plaintiff did not directly challenge the ALJ’s evaluation of
Plaintiff’s subjective complaints (see Docket Entry 12) and thus
has not established that the ALJ erred in declining to fully credit
Plaintiff’s subjective complaints. See Squires, 2017 WL 354271, at
*5 (holding that an “ALJ labors under no obligation to accept [the
p]laintiff’s

subjective

complaints

at

face

value”

(internal

quotation marks omitted)); see also Zannino, 895 F.2d at 17 (“[A]
litigant has an obligation to spell out its arguments squarely and
distinctly, or else forever hold its peace.” (internal quotation
marks omitted)); Hughes, 2014 WL 906220, at *1 n.1 (“A party should
not expect a court to do the work that it elected not to do.”).

16

Second,

the

ALJ

summarized

Plaintiff’s

mental

health

treatment, making the following, pertinent observations:
•

Consultative examiner Dr. Cheri R. Anthony noted in
October 2011 that Plaintiff “did well on attention,
memory, and calculation testing” (Tr. 38; see also
Tr. 552);

•

Dr. Anthony rated Plaintiff’s mental symptoms as
“mild” (Tr. 43; see also Tr. 553);

•

Dr. Anthony opined that Plaintiff could “learn,
retain, and follow instructions consistent with the
average employee” and could “perform repetitive
tasks” (Tr. 43; see also Tr. 553);

•

Treating physician Dr. Chara C. Freeman observed in
March 2013 that Plaintiff’s “attention span and
concentration abilities were normal” (Tr. 43; see
also Tr. 611) and “[w]ithin a month, [Plaintiff’s]
depression was characterized as mild and improving
with medications” (Tr. 43; see also Tr. 605); and

•

Although Dr. Freeman referred Plaintiff for mental
health treatment at Monarch, Plaintiff “was only
seen twice at Monarch and otherwise has not engaged
in any mental health treatment” (Tr. 43; see also
Tr. 603, 696-701)

Notably, Plaintiff did not challenge the ALJ’s above-described
observations about Plaintiff’s mental symptoms.

(See Docket Entry

12.)
Third, the ALJ also discussed and weighed the opinion evidence
as

it

related

(See Tr. 44.)
“Dr.

Plaintiff’s

ability

to

function

mentally.

Significantly, the ALJ gave “substantial weight” to

Anthony’s

remain[ed]

to

consultative

capable

of

simple

opinion
routine

.

.

.

that

repetitive

[Plaintiff]
tasks”

(id.

(referencing Tr. 553)) and to state agency psychological consultant

17

Dr. Sharon J. Skoll’s opinion that, despite moderate deficit in CPP
(see Tr. 146), Plaintiff
to

perform

[simple,

could “maintain attention/concentration

routine,

and

repetitive

tasks]”

(Tr.

44

(referencing Tr. 150)).
Under these circumstances, the ALJ adequately explained why a
limitation

to

“simple

routine

repetitive

tasks

in

a

stable

environment with occasional interpersonal interaction” (Tr. 39)
sufficiently accounted for Plaintiff’s moderate limitation in CPP,
see Del Vecchio v. Colvin, No. 1:14CV116, 2015 WL 5023857, at *6
(W.D.N.C. Aug. 25, 2015) (unpublished) (“Here, unlike in Mascio,
the ALJ discussed substantial record evidence in determining [the
claimant’s] mental RFC, and his explicit reliance on [the state
agency

consultant’s]

claimant’s]

opinion

limitations

in

adequately

[CPP]

additional restrictions. . . .

did

not

explains

why

translate

[the

into

any

Therefore, the [c]ourt is not left

to guess at the ALJ’s decision-making process.”).
In Plaintiff’s fourth attack on the RFC, she alleges that VE
Louise

Walker’s

testimony

that

no

jobs

would

exist

for

an

individual whose impairments caused “excessive breaks or absences”
(Tr. 122) “substantiates that [Plaintiff] is unable to work.”
(Docket Entry 12 at 12.)

Plaintiff’s argument lacks merit, as VE

Louise Walker testified at Plaintiff’s first hearing (see Tr. 89123), which resulted in an ALJ decision vacated by the Appeals
Council (see Tr. 157-67, 173-76).

18

Plaintiff makes no argument

regarding the testimony of VE Lavonne Brent, who testified at
Plaintiff’s second hearing (see Tr. 54-88), which resulted in the
ALJ decision now under judicial review (see Tr. 32-46).

(See

Docket Entry 12 at 12.)
In short, Plaintiff’s first issue on review does not warrant
reversal or remand.
2. Treating Physician’s Opinion
Next, Plaintiff maintains that the ALJ “erred in failing to
accord appropriate weight to the opinion evidence in the record.”
(Id. (capitalization omitted).)

In particular, Plaintiff asserts

that the ALJ “gave limited weight to [the] opinions [of treating
nurse practitioner Amanda Beasley and treating physician Dr. Meryl
Snow] because [the ALJ] felt that they overstated [Plaintiff’s]
limitations, given that she had been able to go on a single car
trip and had ridden on a motorcycle.”
43)).

(Id. at 14 (citing Tr. 42-

Plaintiff argues that “a single instance of riding in a car

and riding on the back (not as the driver) of a motorcycle fails to
support [the ALJ’s] basis for rejecting these treating source
opinions.”

(Id.)

Further, Plaintiff contends that those opinions

find support “with similar statements made by [other] treating
physicians in the record indicating that [Plaintiff] is severely
restricted in her ability to perform work activities.”

(Id.

(citing Tr. 20, 443, 706).) Plaintiff’s arguments do not establish
reversible error.

19

The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment, see 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2), but recognizes that not all
treating

sources

deference.

or

treating

source

opinions

merit

the

same

For example, the nature and extent of each treatment

relationship appreciably tempers the weight an ALJ affords an
opinion.

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

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

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

Indeed, the Fourth Circuit has made clear that, “if a physician’s
opinion

is

not

supported

by

clinical

evidence

or

if

it

is

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

Craig, 76 F.3d at 590 (emphasis

added).
Dr. Snow and Nurse Beasley (collectively “Dr. Snow”) signed a
“Medical statement regarding hip problems for Social Security
disability claim” on June 4, 2014, indicating that Plaintiff’s hip
impairment (avascular necrosis) caused severe and chronic pain,
stiffness, decreased range of motion, instability, contracture,
joint space narrowing, bony destruction, and inability to ambulate

20

effectively.

(Tr. 695.)

As a result of those symptoms, Dr. Snow

opined that Plaintiff could not work for any hours at all, could
not sit or stand for any length of time, could not bend, balance,
or climb, and could only occasionally stoop.
Dr.

Snow

also

signed

a

letter

dated

(Id.)
June

6,

2014,

and

addressed “To Whom It May Concern,” explaining that Plaintiff had
suffered from “avascular necrosis of the right femoral head (hip
joint)” since 2011, which “is a degenerative condition which
results in osteocytic anoxia and thus bone death.”

(Tr. 646.)

Dr.

Snow indicated that “[t]he associated pain is progressive and
debilitating and while unilateral at this time, ultimately over 70%
of cases of avascular necrosis will be bilateral.”

(Id.) Dr. Snow

opined that, due to that hip condition, Plaintiff could not “sit or
stand for more than 10 consecutive minutes,” could not “ambulate
more than 30 feet without stopping due to pain,” and “use[d] a cane
to steady herself.”
“to

secure

(Id.)

definitive

Dr. Snow noted Plaintiff’s inability

treatment

for

[her]

condition,

a

hip

replacement, due to her current lack of medical insurance,” but
opined that Plaintiff’s “condition could be effectively addressed
with a hip replacement, thus likely returning her to a more
favorable position for gaining employment.”

(Id.)

Dr. Snow

concluded that Plaintiff’s “medical condition resulted in the loss
of her employment in September 2010 and her inability to engage in

21

employment since that time,” and expressed his “belie[f] that
[Plaintiff] [wa]s medically and physically disabled.”

(Id.)

Here, the ALJ’s evaluation of Dr. Snow’s opinions comports
with the above-cited regulations and Craig.

The ALJ evaluated Dr.

Snow’s opinions as follows:
Records show [Plaintiff] was approved for Medicaid the
following month. It is unclear if the intended audience
of [Dr. Snow’s] opinions were those reviewing Medicaid
appeals. Nevertheless, [Plaintiff] now has the insurance
to finance the surgery, and . . . the issue remains her
compliance with weight loss and smoking cessation before
she has surgery her treating practitioners believe will
restore her ability to work. Still, the severity of the
limitations set forth in [Dr. Snow’s] opinion appear an
overstatement and do not correspond with her riding of a
motorcycle and a long distance trip and therefore they do
not merit great weight.
Even [Plaintiff’s] hearing
testimony revealed greater lifting, sitting, standing,
and walking abilities than [Dr. Snow] found.
(Tr. 42-43 (internal citation omitted).)

As quoted above, the ALJ

gave three proper reasons for his decision to discount Dr. Snow’s
opinions.

(Id.)

First, the ALJ noted that, although Dr. Snow rated Plaintiff’s
hip

impairments

as

disabling,

he

also

opined

that

a

hip

replacement, that Plaintiff could not afford due to lack of health
insurance, would likely restore Plaintiff’s ability to work.
42;

see

obtaining

also

Tr.

Medicaid

646.)

The

coverage,

ALJ

then

Plaintiff

observed

that,

had

undergone

not

(Tr.

despite
hip

replacement surgery because she had neither lost weight nor quit
smoking as her surgeons had required her to do preoperatively.
(Tr. 43; see also Tr. 704, 706, 738-39).
22

Thus, the ALJ properly

recognized that Dr. Snow conditioned his disability opinion on
Plaintiff’s financial inability to undergo hip replacement surgery,
which no longer applied once Plaintiff obtained Medicaid coverage
effective November 1, 2013 (see Tr. 59, 443).
Second, the ALJ did not err by finding that Dr. Snow’s
limitations “do not correspond with [Plaintiff’s] riding of a
motorcycle and a long distance trip.”

(Tr. 43.)

Plaintiff

testified that she rode on the back of a motorcycle for 30 minutes
in Maggie Valley, North Carolina, in September 2014 (see Tr. 7476), and that she only needed to stop twice on the 90-minute trip
from Lexington to Charlotte for the hearing on January 9, 2015,
i.e., once every 30 minutes (see Tr. 76-77).

In contrast to these

activities, Dr. Snow opined that Plaintiff could not “sit . . . for
more than 10 consecutive minutes” (Tr. 646) and also that she
remained unable to engage in any “[s]itting at one time,” i.e., not
even for 15 minutes (Tr. 695.)

Accordingly, the ALJ properly

discounted Dr. Snow’s opinion as inconsistent with other evidence
in

the

record.

See

20

C.F.R.

§§

404.1527(c)(2)-(4),

416.927(c)(2)-(4); see also Craig, 76 F.3d at 590 (holding that,
“if

a

physician’s

opinion

.

.

.

is

inconsistent

with

other

substantial evidence, it should be accorded significantly less
weight”).
Third, the ALJ also correctly found that Plaintiff’s “hearing
testimony revealed greater lifting, sitting, standing, and walking

23

abilities than [Dr. Snow] found.”

(Tr. 43.)

Plaintiff testified

that she remained able to lift 5 to 10 pounds, sit for 15 to 30
minutes, stand for 10 to 15 minutes, and walk for about 70 yards.
(See Tr. 73, 77.)

In direct contrast, Dr. Snow opined in his June

6, 2014 letter that Plaintiff could not “sit or stand for more than
10 consecutive minutes and is unable to ambulate more than 30 feet
without stopping due to pain” (Tr. 646), and in his June 4, 2014
medical statement that Plaintiff remained unable to engage in any
sitting or standing at one time (Tr. 695).

Thus, again, the ALJ

appropriately discounted Dr. Snow’s opinion as conflicting with
other record evidence.

See 20 C.F.R. §§ 404.1527(c)(2)-(4),

416.927(c)(2)-(4); see also Craig, 76 F.3d at 590.
In sum, Plaintiff’s second assignment of error fails as a
matter of law.
3. COPD
In Plaintiff’s third issue on review, she faults the ALJ for
“failing to find that [Plaintiff’s] COPD is a severe impairment and
further

failing

discussion

of

to

discuss

severe

th[at]

impairments.”

(capitalization omitted).)

impairment

in

the

(Docket

Entry

12

step

2

at

15

According to Plaintiff, “[i]t appears

that [the ALJ] is implying that COPD is non-severe due to the fact
that [Plaintiff] continues to smoke cigarettes; however, he never
specifically discusses whether this impairment is severe and what
his reasons are for making that determination.”

24

(Id. (citing Tr.

37, 41).)

Plaintiff contends that her “continued treatment and

examination findings demonstrate that her COPD is severe and more
than a ‘slight abnormality’ and would have more than a ‘minimal’
effect on her ability to do basic work activities.”
Plaintiff’s

contentions

do

not

demonstrate

an

(Id. at 16.)

entitlement

to

reversal or remand.
For purposes of step two, an impairment fails to qualify as
“severe” if it constitutes only “a slight abnormality . . . that
has no more than a minimal effect on the ability to do basic work
activities.”

Social Security Ruling 96-3p, Policy Interpretation

Ruling Titles II and XVI: Considering Allegations of Pain and Other
Symptoms in Determining Whether a Medically Determinable Impairment
is Severe, 1996 WL 374181, at *1 (July 2, 1996) (emphasis added)
(“SSR 96-3p”). Applicable regulations further identify “basic work
activities” as:
(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying,
or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers
and usual work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. §§ 404.1521(b), 416.921(b).

25

Plaintiff bears the burden of proving severity at step two.
Hunter, 993 F.2d at 35; see also Kirby v. Astrue, 500 F.3d 705, 708
(8th Cir. 2007) (“Severity is not an onerous requirement for the
claimant to meet, but it is also not a toothless standard . . . .”
(internal citation omitted)).

To carry that burden, Plaintiff

“must provide medical evidence showing . . . an impairment(s) and
how

severe

it

is

.

.

.

.”

20

C.F.R.

§§

404.1512(c),

416.912(c) (emphasis added); see also Social Security Ruling 85-28,
Titles II and XVI:

Medical Impairments that Are Not Severe, 1985

WL 56856, at *4 (1985) (“SSR 85-28”) (“At the second step of [the
SEP], . . . medical evidence alone is evaluated in order to assess
the effects of the impairment(s) on ability to do basic work
activities.” (emphasis added)); Williamson v. Barnhart, 350 F.3d
1097, 1100 (10th Cir. 2003) (“The step two severity determination
is based on medical factors alone . . . .” (emphasis added)).
Here,

the

ALJ

erred

by

not

only

failing

to

find

that

Plaintiff’s COPD qualified as a severe impairment, but by failing
to

find

that

condition

impairment at all.

constituted

(See Tr. 37-38.)

a

medically

determinable

Plaintiff presented clinical

findings such as a decreased breath sounds, shortness of breath on
exertion, chronic cough, and rattles, wheezes, and rhonchi in both
lungs (see, e.g., Tr. 527, 537, 540, 560, 562, 580, 603, 606, 614,
617, 623, 652, 688, 691), as well as diagnoses of COPD by her
treating physicians (see, e.g., Tr. 527, 607, 614), all of which

26

indicates that Plaintiff suffered from COPD that likely would cause
more than a minimal effect on her ability to engage in exertional
activity.

Given that evidence, the ALJ’s failure to identify COPD

as a potentially severe impairment constitutes error.
However, any error by the ALJ in failing to list Plaintiff’s
COPD as a severe impairment amounts to harmless error under the
circumstances presented here.

Where (as here) an ALJ concludes

that a claimant suffers from at least one severe impairment (see
Tr. 37 (finding severe Plaintiff’s degenerative joint disease,
right

hip

avascular

hypertension,

right

posttraumatic

stress

necrosis,

obesity,

ventricular
disorder,

diabetes

hypertrophy,

depression, and

mellitus,

incontinence,
anxiety)),

any

failure to categorize additional impairments as severe generally
does not constitute reversible error, because, “upon determining
that a claimant has one severe impairment, the [ALJ] must continue
with the remaining steps in his disability evaluation.” Maziarz v.
Secretary of Health & Human Servs., 837 F.2d 240, 244 (6th Cir.
1987); accord Oldham v. Astrue, 509 F.3d 1254, 1256-57 (10th Cir.
2007); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); Lauver
v. Astrue, No. 2:08CV87, 2010 WL 1404767, at *4 (N.D.W. Va. Mar.
31, 2010) (unpublished); Washington v. Astrue, 698 F. Supp. 2d 562,
579 (D.S.C. 2010); Jones v. Astrue, No. 5:07CV452FL, 2009 WL
455414, at *2 (E.D.N.C. Feb. 23, 2009) (unpublished).

27

Moreover,

Plaintiff

has

not

shown

how

the

ALJ’s

proper

categorization of her COPD as a severe impairment at step two would
have had any impact on the ALJ’s ultimate conclusion that jobs
existed

in

significant

numbers

Plaintiff could perform.
discussed

Plaintiff’s

in

the

national

economy

(See Docket Entry 12 at 15-16.)
treatment

for

that

The ALJ

“bronchitis/[COPD]”

in

connection with his RFC analysis (Tr. 41), precluded “concentrated
exposure to fumes” in the RFC (Tr. 39), and included the fact that
Plaintiff suffered from COPD and the preclusion of concentrated
exposure to fumes in the dispositive hypothetical question to the
VE (see Tr. 83-84), and Plaintiff has not challenged the VE’s
testimony that jobs existed that accommodated those restrictions
(see Tr. 84) or otherwise shown that Plaintiff’s COPD further
limited her (see Docket Entry 12 at 15-16). That failing precludes
relief.
2005)

See Rutherford v. Barnhart, 399 F.3d 546, 552-53 (3d Cir.

(ruling

unnecessary

remand

where

the

for

express

plaintiff

consideration
failed

to

of

specify

impairment
how

that

impairment would impact ALJ’s analysis); Skarbek v. Barnhart, 390
F.3d 500, 504 (7th Cir. 2004) (declaring no remand required where
the plaintiff failed to show, through objective evidence, “how his
[impairment] further impaired his ability to work”); Miller v.
Astrue, Civ. No. 2:06-00879, 2008 WL 759083, at *3 (S.D.W. Va. Mar.
19,

2008)

(unpublished)

(holding

28

that,

“where

an

explicit

discussion of the claimant’s [impairment] will not affect the
outcome of the case, remand is inappropriate”).
Given the foregoing circumstances, the Court should decline to
remand based on Plaintiff’s third assignment of error.

See Morgan

v. Barnhart, 142 F. App’x 716, 723 & n.6 (4th Cir. 2005) (applying
harmless error standard in Social Security appeal); Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of
administrative law or common sense requires us to remand a [Social
Security] case in quest of a perfect opinion [from an ALJ] unless
there is reason to believe that the remand might lead to a
different result.”)
III.

CONCLUSION

Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on

the

Pleadings

(Docket

Entry

11)

be

denied,

that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 13)
be granted, and that judgment be entered for Defendant.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 22, 2017

29