HOLLINGSWORTH v. COLVIN
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 02/13/2018, that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment on Partial Findings [Doc. # 11 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 17 ] be GRANTED, and that this action be DISMISSED with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Tokishea Hollingsworth (“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.
Plaintiff protectively filed her application for Supplemental Security Income on
October 4, 2012. (Tr. at 13, 181-86.) 2 Her application was denied initially (Tr. at 68-81), and
that decision was upheld upon reconsideration (Tr. at 82-103). Thereafter, Plaintiff requested
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).
Transcript citations refer to the Sealed Administrative Record [Doc. #7].
an administrative hearing de novo before an Administrative Law Judge (“ALJ”). (Tr. at 12426.) Plaintiff attended the subsequent video hearing on April 1, 2015, along with her attorney
and an impartial vocational expert. (Tr. at 13.) The ALJ ultimately concluded that Plaintiff
was not disabled within the meaning of the Act (Tr. at 26), and, on September 8, 2016, the
Appeals Council denied Plaintiff’s request for review of the decision, thereby making the ALJ’s
conclusion the Commissioner’s final decision for purposes of judicial review (Tr. at 1-5).
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. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “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 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
“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).
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
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.
“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.
In the present case, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since her October 4, 2012 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:
asthma; obesity; degenerative joint disease of the hip and right knee; chronic
pain syndrome; major depressive disorder, severe, recurrent, without
psychotic features; posttraumatic stress syndrome (PTSD); bipolar disorder;
cocaine dependence in remission; alcohol dependence in remission; and
cannabis abuse in remission.
(Tr. at 15.) The ALJ found at step three that none of these impairments, singly or in
combination, met or equaled a disability listing. (Tr. at 16.) Therefore, the ALJ assessed
Plaintiff’s RFC and determined that Plaintiff could perform light work with myriad additional
postural and environmental limitations. (Tr. at 18.) In terms of mental limitations, the ALJ
further found that Plaintiff was
able to understand, remember, and carry out unskilled simple, repetitive and
routine tasks for 2 hours at a time with normal breaks. She is able to have
superficial contact with others meaning successful performance of job duties
involves work primarily with things and not people. She is able to adapt to
occasional routine changes in the workplace. She is able to perform tasks that
do not require stringent production or a fast pace.
(Tr. at 18.) The ALJ then proceeded to step four, where she found that Plaintiff had no past
relevant work. (Tr. at 24.) 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 25-26.)
Plaintiff now raises three challenges to the RFC. Specifically, she contends that the
ALJ erred in assigning little weight to both the medical source statement completed by Dr.
Valerie Murray, Plaintiff’s treating psychiatrist, and Plaintiff’s global assessment of functioning
(“GAF”) scores. Plaintiff also argues that both the RFC and the hypothetical question based
upon it fail to adequately account for her moderate limitation in concentration, persistence,
and pace as required by Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). After a thorough
review of the record, the Court finds that none of Plaintiff’s contentions merit remand.
Treating Physician Opinion
Plaintiff first contends that the ALJ failed to properly weigh the March 24, 2015
medical opinion of Dr. Murray in accordance with 20 C.F.R. § 404.1527(c)(2), better known
as the “treating physician rule.” The Fourth Circuit has held that for claims, like Plaintiff’s,
that are filed before March 24, 2017, the ALJ evaluates medical opinion evidence in accordance
with 20 C.F.R. §§ 404.1527(c) and 416.927(c) and the “treating physician rule” embodied
within the regulations. Brown v. Comm’r Soc. Sec., 873 F.3d 251, 255 (4th Cir. 2017). Under
the regulations, “medical opinions” are “statements from acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including your
symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” Id. (citing 20 C.F.R. § 404.1527(a)(1)); see also 20 C.F.R.
§ 416.927(a)(1). While the regulations mandate that the ALJ evaluate each medical opinion
presented to him, generally “more weight is given to the medical opinion of a source who has
examined you than to the medical opinion of a medical source who has not examined you.”
Brown, 873 F.3d at 255 (quoting 20 C.F.R. § 404.1527(c)(1)); see also 20 C.F.R. § 416.927(c)(1).
And, under what is commonly referred to as the “treating physician rule,” the ALJ generally
accords the greatest weight—controlling weight—to the well-supported opinion of a treating
source as to the nature and severity of a claimant’s impairment, based on the ability of treating
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
[which] may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(c)(2); 20 C.F.R. §416.927(c)(2). However, if a treating source’s opinion
is not “well-supported by medically acceptable clinical and laboratory diagnostic techniques or
is inconsistent with other substantial evidence in the case record,” it is not entitled to
controlling weight. Social Security Ruling 96-2p, Policy Interpretation Ruling Titles II and
XVI: Giving Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188, at
*5 (July 2, 1996) (“SSR 96-2p”); 20 C.F.R. § 404.1527(c)(2); see also Brown, 873 F.3d at 256;
Craig, 76 F.3d at 590; Mastro, 270 F.3d at 178. 5 Instead, the opinion must be evaluated and
weighed using all of the factors provided in 20 C.F.R. § 404.1527(c)(2)-(c)(6), including (1)
the length of the treatment relationship, (2) the frequency of examination, (3) the nature and
extent of the treatment relationship, (4) the supportability of the opinion, (5) the consistency
of the opinion with the record, (6) whether the source is a specialist, and (7) any other factors
that may support or contradict the opinion. In addition, even if an opinion by a treating
physician is given controlling weight with respect to the nature and severity of a claimant’s
impairment, opinions by physicians regarding the ultimate issue of whether a plaintiff is
disabled within the meaning of the Act are never accorded controlling weight because the
decision on that issue is reserved for the Commissioner alone. 20 C.F.R. § 404.1527(d).
“Thus, for example, when a medical source renders an opinion that a claimant is ‘disabled’ or
‘unable to work,’ the ALJ will consider ‘all of the medical findings and other evidence that
support’ the medical source’s opinion, but will not necessarily make a favorable disability
determination.” Brown, 873 F.3d at 256 (citing 20 C.F.R. § 404.1527(d)(1)); see also 20 C.F.R.
Where an ALJ declines to give controlling weight to a treating source opinion, he must
“give good reasons in [his] ... decision for the weight” assigned, taking the above factors into
account. 20 C.F.R. § 416.927(c)(2). “This requires the ALJ to provide sufficient explanation
For claims filed after March 27, 2017, the regulations have been amended and several of the prior Social
Security Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that the Social
Security Administration “will not defer or give any specific evidentiary weight, including controlling weight, to
any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.”
20 C.F.R. § 404.1520c. However, the claim in the present case was filed before March 27, 2017, and the Court
has therefore analyzed Plaintiff’s claims pursuant to the treating physician rule set out above.
for ‘meaningful review’ by the courts.” Thompson v. Colvin, No. 1:09CV278, 2014 WL
185218, at *5 (M.D.N.C. Jan. 15, 2014) (quotations omitted); see also SSR 96–2p (noting that
the decision “must contain specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight”).
In the present case, Dr. Murray completed a five-page form questionnaire provided by
Plaintiff’s attorney. (Tr. at 484-88.) Dr. Murray indicated that she treated Plaintiff for major
depression once a month for 60 minutes and, from a checklist, identified Plaintiff’s symptoms
as poor memory, sleep disturbance, personality change, mood disturbance, delusions or
hallucinations, substance dependence, feelings of guilt/worthlessness, catatonia or grossly
disorganized behavior, and illogical thinking or loosening of associations. (Tr. at 484.) When
next asked to describe the clinical findings demonstrating the severity of Plaintiff’s mental
impairments and symptoms, Dr. Murray failed to answer. However, again from a checklist,
she indicated that Plaintiff’s impairments would cause her to miss work more than three times
a month. (Tr. at 485.)
The questionnaire then asked Dr. Murray to rate Plaintiff’s ability to perform basic
mental activities of work for a 40-hour workweek, independent of alcohol or drug abuse.
Notably, in the definition portion of this section, Dr. Murray circled “Moderate loss,”
defined as “[s]ome loss of ability in the named activity but still can sustain performance for
1/3 up to 2/3 of an 8-hour workday.” (Tr. at 485.) 6 When next asked whether Plaintiff’s
ability to understand, remember, and carry our instructions was affected by her impairment,
Dr. Murray marked “No.” However, rather than proceeding to the next question as instructed,
she then checked “Extreme” or “Marked” loss in eight of the thirteen sub-categories of
concentration-related mental activities listed below. (Tr. at 486.) Similarly, Dr. Murray
indicated that Plaintiff’s ability to respond appropriately to supervision, coworkers, and work
pressure was unaffected by her impairment, but then checked “Extreme” or “Marked” loss in
all eleven sub-categories of social limitation. (Tr. at 487.) When asked to rate Plaintiff’s degree
of limitation in four functional areas relevant at step three of the sequential analysis, Dr.
Murray again answered inconsistently, finding no limitations in concentration, persistence, or
pace, no episodes of decompensation, only “Slight” restrictions in activities of daily living, and
“Marked” difficulties in maintaining social functioning. (Tr. at 487.) Finally, Dr. Murray
checked “Yes” when asked if Plaintiff could manage benefits in her own best interest. (Tr. at
The ALJ devoted nearly a full page of her decision to discussing Dr. Murray’s
opinions. 7 In assigning little weight to Dr. Murray’s medical source statement, the ALJ found
that the physician’s “conclusions [were] contradictory and internally inconsistent.” (Tr. at 23.)
In addition to noting the inconsistencies and omissions described above, the ALJ explained
The remaining three ratings categories consisted of one lower level of impairment, “No/mild loss,” and two
higher levels of impairment: “Marked loss” and “Extreme loss.”
7 On March 18, 2014, Dr. Murray issued a letter to Disability Determination Services stating that she
“deemed [Plaintiff] to be emotionally, mentally, and physical[ly] inept to maintain a job.” (Tr. at 397.) The
ALJ noted this opinion, but assigned it little weight, because it was “conclusory on an issue reserved to the
Commissioner” and was “not consistent with the medical evidence of record.” (Tr. at 22.) See 20 C.F.R. §
416.927(d). Plaintiff does not appear to challenge this finding and instead focuses on Dr. Murray’s 2015
medical source statement.
that the extreme social limitations indicated by Dr. Murray were “not supported by [Plaintiff’s]
attendance at groups, community, and church events and her ability to interact appropriately
with her treating medical providers,” and that “[t]he ability to manage benefits is not
commensurate with [Plaintiff’s] history of substance abuse with recent relapses.” (Tr. at 23.)
Overall, the ALJ found that opinion was internally inconsistent and that the marked and
extreme limitations opined by Dr. Murray were “not supported by the medical evidence,
including Dr. Murray’s own treatment notes that primarily re-iterate [Plaintiff’s] subjective
complaints.” (Tr. at 23.)
Plaintiff acknowledges the glaring inconsistencies in Dr. Murray’s opinion, but argues
that, rather than assigning little weight on this basis, the ALJ should have recontacted Dr.
Murray for clarification. (Pl.’s Br. [Doc. #13] at 14-16.) However, as both parties recognize,
“recontacting a treating physician is discretionary under the regulations.” (Pl.’s Br. at 16); (see
also Def.’s Br. [Doc. #18] at 8 (citing 20 C.F.R. § 416.920b(c)(1)). The regulations further
provide that, “[i]f any of the evidence in your case record, including any medical opinion(s), is
inconsistent, we will weigh the relevant evidence and see whether we can determine whether
you are disabled based on the evidence we have.” 20 C.F.R. § 416.920b(b). Notably, in the
instant case, the ALJ not only found Dr. Murray’s medical source statement internally
inconsistent, but also inconsistent with her treatment notes, the treatment notes of other
providers, and Plaintiff’s daily activities. With respect to the evidence in the record, the ALJ
noted that Plaintiff
alleged her mental impairments caused crying spells, mood swings, a short
attention span, isolation from others, and nightmares. The claimant has a
history of marijuana, cocaine, and alcohol abuse. When she initially presented
for mental health and substance abuse treatment, she was irritable, agitated, with
pressured speech, and did not allow for probing or re-questioning. However,
her thoughts were still intact. She started a drug treatment program and
continued to respond to situational stressors. She appeared anxious and her
speech was rapid. At other times, she appeared depressed with a constricted,
flat, or irritable affect. However, she was cooperative. Her thoughts remained
intact or coherent and goal directed and her concentration was good. She began
to make progress with her goals even when inconsistent with her treatment
program. She became more likely to accept redirection. Her episodes of
depression became shorter and less intense. Throughout the relevant period,
her primary care provider and pain management specialist regularly noted a
normal mood and affect as well as a normal memory and logical thinking.
. . . [S]he attends substance abuse classes several times per week, is active in her
church, works in the community kitchen, and attends her kids’ activities. This
does not support her reports of isolation or frequent angry outbursts.
Treatment records reflect noncompliance with treatment recommendations.
She misused her medication, would run out and did not take her medication as
prescribed all the time. Even without full compliance, the claimant testified
medication helped manage her symptoms. . . . Even while abusing substances,
she apparently cared for her 4-year-old daughter with a disability and 4 other
minor children. The claimant testified that her mother cares for her children.
However, she reported her hobbies including caring for her children, cooking,
and being a mother. All of these factors undermine allegations regarding the
severity and frequency of symptoms and do not support claims she would be
off task 20 percent of the time and miss at least 3 days of work per month.
(Tr. at 20-21 (internal citations omitted).) Having made these findings, the ALJ assigned Dr.
Murray’s opinion little weight, and after further considering the opinions of the psychological
consultative examiner and the state agency psychological consultants, the ALJ ultimately
concluded that substantial evidence did not support a finding of disability.
Plaintiff next challenges the ALJ’s assessment of her GAF scores. Until 2013, mental
health clinicians commonly used GAF scores to estimate an individual’s overall functioning
level at a given point in time. Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental
Disorders 32 (4th ed. 2000)). A score between 41 and 50 indicated serious symptoms “(e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting)” or “any serious impairment
in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. at
34. In contrast, a score between 51 and 60 indicated “Moderate symptoms (e.g. flat affect and
circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational,
or school functioning (e.g., few friends, conflicts with peers or co-workers).” Id. However,
even during their years of wide usage in the mental health field, GAF scores had “no direct
legal or medical correlation to the severity requirements of social security regulations.” Powell
v. Astrue, 927 F. Supp. 2d 267, 273 (W.D.N.C. 2013) (citing Oliver v. Comm’r of Soc. Sec.,
415 Fed. App’x 681, 684 (6th Cir.2011)). Rather, they were “intended to be used to make
treatment decisions.” Powell, 927 F. Supp. 2d at 273 (citations omitted).
As this Court detailed in Emrich v. Colvin, the usefulness of GAF scores in the social
security context came under further scrutiny when, in May 2013,
the most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders (“DSM”) abandoned the use of GAF scoring altogether. Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 16 (5th
ed. 2013) (abandoning use of GAF scoring “for several reasons, including its
lack of conceptual clarity . . . and questionable psychometrics in routine
practice”). In Administrative Message 13066 (AM–13066), effective July 22,
2013, the SSA acknowledged that the DSM had abandoned use of GAF scoring
and instructed ALJs that they should still consider GAF scores as opinion
evidence in some circumstances. The SSA explained,
For purposes of the Social Security disability programs, when it
comes from an acceptable medical source, a GAF rating is a
medical opinion as defined in 20 CFR §§ 404.1527(a)(2) and
416.927(a)(2). An adjudicator considers a GAF score with all of
the relevant evidence in the case file and weighs a GAF rating as
required by §§ 20 CFR 404.1527(c), 416.927(c), and SSR 06–03p,
while keeping the following in mind:
The GAF is unlike most other opinion evidence we evaluate
because it is a rating. However, as with other opinion evidence, a
GAF needs supporting evidence to be given much weight. By
itself, the GAF cannot be used to “raise” or “lower” someone’s
level of function. The GAF is only a snapshot opinion about the
level of functioning. It is one opinion that we consider with all
the evidence about a person’s functioning. Unless the clinician
clearly explains the reasons behind his or her GAF rating, and the
period to which the rating applies, it does not provide a reliable
longitudinal picture of the claimant’s mental functioning for a
A GAF score is never dispositive of impairment severity.
Emrich v. Colvin, 90 F. Supp. 3d 480, 492 (M.D.N.C. 2015) (quoting AM-13066).
Here, the ALJ cited Plaintiff’s GAF scores, which ranged from 40 to 60, 8 and found
that “[t]hese scores represent some impairment in reality testing or communication to serious
symptoms.” (Tr. at 23, 24.) However, she then explained that “GAF scores are afforded little
weight in the disability process,” and detailed the rationale behind this determination,
essentially echoing the reasons set out above by the Court. (Tr. at 24.) Plaintiff now argues
that the ALJ erred in issuing a “blanket rejection” of Plaintiff’s scores without attempting “to
weigh or discredit the GAF scores in light of the record.” (Pl.’s Br. at 25.)
In Sizemore v. Berryhill, the Fourth Circuit recently clarified that an ALJ sufficiently
considers a claimant’s GAF scores where her decision reflects analysis of the scores themselves
“or the text supporting them.” 878 F.3d 72, 82 (4th Cir. 2017). Because, in Sizemore, “the
ALJ’s decision demonstrate[d] a careful consideration of the entire record, including the
reasons supporting the GAF scores that were given,” the Court found no basis for remand.
Id. (“In short, the record does not support Sizemore’s argument that the ALJ did not consider
As reflected in the ALJ’s decision, most of Plaintiff’s GAF scores were 45 or 50. (Tr. at 24.) However, in
the March 24, 2015 Medical Source Statement, Dr. Murray recorded a GAF score of 40. In contrast, in an
April 20, 2013 consultative examination, Dr. Atul Kantesaria recorded a GAF score of “60 by unknown” (Tr.
his various GAF scores or give them appropriate weight. Not only did he consider GAF
scores, explicitly reporting a few of them, he considered all of the text that supported the
various GAF scores that Sizemore was given.”).
Similarly, in the present case, the ALJ cited and discussed the medical records
containing Plaintiff’s GAF scores. Notably, most of the GAF scores came from Dr. Murray’s
treatment notes. However, as explained above, the ALJ considered Dr. Murray’s opinions and
treatment records at length and found them internally inconsistent and inconsistent with the
treatment notes of other providers and Plaintiff’s daily activities. Based on these findings, the
ALJ assigned Dr. Murray’s opinions little weight. In contrast, in giving some weight to the
opinion of the consultative examiner, Dr. Kantesaria, the ALJ specifically noted that Dr.
Kantesaria’s report reflected a GAF score of 60 with moderate symptoms, and the ALJ found
that Dr. Kantersaria’s opinion was “not inconsistent with the residual functional capacity
herein.” (Tr. at 23.) Thus, the ALJ considered the GAF scores, as well as the underlying
treatment records and supporting text, weighed the evidence, explained the decision, and
concluded that based on the record presented, Plaintiff retained the ability to function with
the limitations set out in the RFC. Because, as in Sizemore, the ALJ considered not only
Plaintiff’s GAF scores, but also the text supporting them, the Court finds no basis to remand. 9
The Court also notes that many of the GAF scores specifically relate to Plaintiff’s functioning level during
episodes of continuing drug use. The ALJ noted several instances of relapse in Plaintiff’s use of cocaine during
this time period (Tr. at 21), and the medical records reflect that Plaintiff was using cocaine in July of 2012 (Tr.
at 332, 343) and was “continuing to use cocaine every other day” in September 2012 (Tr. at 316); she later
reported that her last use of cocaine was in June 2013 (Tr. at 381); she relapsed with a “recent use of cocaine”
in October 2013 (Tr. at 436); she admitted to a relapse in early 2014 (Tr. at 40, 44, 47); medical records in March
2014 noted a “recent relapse with crack cocaine” (Tr. at 472); she had a positive urine test for cocaine in
September 2014 (Tr. at 490, 512); and she had other failed or refused drug tests in January and April 2015 (Tr.
at 494, 490). The ALJ found that Plaintiff’s “drug problems clearly exacerbated her mental health issues” (Tr.
at 21), and as in Sizemore, the GAF scores were potentially affected by Plaintiff’s substance abuse issues. See
Sizemore, 878 F.3d at 82 (“[T]he GAF scores by themselves do not, in this case, negate the other record
Concentration, persistence, or pace limitations
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
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).
Here, as in Mascio, the ALJ found moderate limitations in concentration, persistence,
or pace at step three of the sequential analysis. (Tr. at 17.) However, when later assessing
Plaintiff’s RFC, the ALJ determined that Plaintiff is able to (1) “understand, remember, and
carry out unskilled simple, repetitive and routine tasks for 2 hours at a time with normal
evidence supporting the ALJ’s determination that Sizemore was not entitled to benefits, especially given that
Sizemore’s lowest GAF scores were assessed when he was being hospitalized for alcohol detoxification and
therefore were not especially meaningful.”)
breaks,” (2) “adapt to occasional routine changes in the workplace,” and (3) “perform tasks
that do not require stringent production or a fast pace.” (Tr. at 18.) Thus, the ALJ included
in the RFC multiple specific limitations addressing Plaintiff’s limitations in concentration,
persistence, and pace. Plaintiff nevertheless contends that this Court should instead conclude
that these limitations do not sufficiently address Plaintiff’s moderate limitations in
concentration, persistence, and pace. However, the ALJ not only included the additional
limitations in the RFC, but also specifically explained the 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.”
Tolbert v. Colvin, 1:15CV437, 2016 WL 6956629, at *8 (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. First, the ALJ weighed
the evidence and made specific findings regarding Plaintiff’s abilities, and the ALJ then
addressed Plaintiff’s limitations and abilities by adopting an RFC that not only limited Plaintiff
to simple, routine, repetitive tasks, but also limited her to 2 hour increments with only
superficial contact with others, only occasional routine changes, and no production or fast
pace work. Thus, the RFC includes multiple detailed provisions addressing the specific
limitations found by the ALJ in the decision.
In addition, in formulating the RFC, the ALJ specifically discussed the medical
evidence and Plaintiff’s limitations and abilities. At step three, the ALJ recounted Plaintiff’s
reports that “she had a difficult time staying focused,” “[h]er attention span varied[,] and she
did not follow written or spoken instructions well.” (Tr. at 17 (citing Tr. at 256, 264-66).)
However, the ALJ also noted Plaintiff’s hearing testimony that Vyvanse helps her focus and
sit for longer periods, and that “she is able to drive and reads the program materials in her
substance abuse classes.” (Tr. at 17 (citing Tr. at 39, 41, 42).) The ALJ further cited treatment
records reflecting that Plaintiff’s “thoughts remained intact or coherent and goal directed” and
that her “attention and concentration were good.” (Tr. at 17 (citing Tr. at 313, 377, 382, 457).)
Accordingly, the ALJ concluded that Plaintiff “has no more than moderate difficulties in
concentration, persistence, and pace.” (Tr. at 17.) When assessing Plaintiff’s RFC, the ALJ
again noted Plaintiff’s allegations that “her impairments affected her memory, ability to
complete tasks, concentration, understanding, [and] ability to follow instructions” (Tr. at 18),
but found Plaintiff’s “statements concerning the intensity, persistence[,] and limiting effects
of these symptoms” less than entirely credible (Tr. at 19.) Plaintiff does not challenge the
ALJ’s credibility determination. Moreover, in making her credibility finding, the ALJ again
recounted records reflecting good concentration, normal memory, and logical thinking (Tr. at
21 (citing Tr. at 313, 354, 362, 422, 431, 435, 439, 443, 495, 501, 505, 509, 514, 518, 457)) and
specifically found that the record does not support Plaintiff’s claims that “she would be off
task 20 percent of the time and miss at least 3 days of work per month.” (Tr. at 21, 61.)
Therefore, “based on the longitudinal evidence of record,” the ALJ concluded that
[Plaintiff] is able to understand, remember, and carry out unskilled[,] simple,
repetitive and routine tasks for 2 hours at a time with normal breaks. [Plaintiff]
demonstrated logical thinking and intact memory, she cared for a disabled child
and other children and worked in the church kitchen. Due to some grogginess
from her Seroquel and crediting complaints of lack of focus, she is able to
perform tasks that do not require stringent production or a fast pace. She
testified her Vyvanse helped her focus and sit longer[,] so further reduction is
(Tr. at 22.)
Later in the decision, the ALJ discussed the consistency of these findings with the
opinions of the State agency psychological consultants, who found Plaintiff “able to
understand and follow short, simple instructions; able to sustain attention to complete a small
variety of tasks at a semi-rapid pace; able to interact appropriately with others; able to adapt
to routine changes in the workplace; and capable of simple, repetitive and routine tasks with
limited social requirements.” (Tr. at 24, 77-79, 99-101.) The ALJ assigned great weight to
these opinions, but, “[c]rediting [Plaintiff’s] side effects from her medication,” she “further
reduced [Plaintiff] to work that does not require stringent production or a fast pace.” (Tr. at
24.) In short, unlike in Mascio, the instant ALJ’s discussion of, and reliance on, substantial
record evidence adequately explains the extent to which Plaintiff’s moderate limitation at step
three translated into additional RFC restrictions, including her inability to perform production
pace work. Accordingly, the Court finds no error.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment on Partial Findings [Doc.
#11] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #17] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 13th day of February, 2018.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?