TAYLOR v. COLVIN

Filing 17

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 11/8/2017; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 13 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 15 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)

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

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1:16CV1424

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Mark Anthony Taylor, 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

Income (“SSI”).

claim

(Docket Entry 1.)

for

Supplemental

Security

Defendant has filed the

certified administrative record (Docket Entry 9 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 13, 15; see also Docket Entry 14 (Plaintiff’s Memorandum);
Docket Entry 16 (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 SSI. (Tr. 222-33.) Upon denial of that
application initially (Tr. 113-27, 147-50) and on reconsideration
(Tr. 128-46, 160-69), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 170-72).

Plaintiff, his

attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 42-107.)2

The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act.

(Tr. 18-33.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
15-17, 329-30), thereby making the ALJ’s ruling the Commissioner’s
final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since July 17, 2012, the application date.
. . .
2.
[Plaintiff] has the following severe impairments:
back disorder; obesity; and bipolar disorder.
. . .

2

Following the hearing, the ALJ sent a set of written interrogatories to the VE
containing, inter alia, additional hypothetical questions. (See Tr. 303-13.)
Those new hypotheticals essentially matched those the ALJ asked the VE at the
hearing, except that they contained the additional limitation that the individual
could “have frequent interaction with supervisor[s], and occasional interaction
with coworkers and the general public.” (Compare Tr. 87-91, with Tr. 305, 307,
309, 311.) The additional social interaction limitation did not alter the VE’s
original answers to the hypotheticals. (Compare Tr. 87-91, with Tr. 315-22.)
Following receipt of the VE’s responses to the interrogatories, Plaintiff’s
counsel sent two additional questions to the VE regarding the basis for her
reduction in the numbers of jobs available due to the presence of a sit/stand
option in the hypothetical questions (see Tr. 323), to which the VE responded
(see Tr. 324).

2

3.
[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.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except that he
requires the option to alternate sitting and standing
every ninety minutes. He can occasionally climb ramps
and stairs; never climb ladders or scaffolds; and
occasionally balance. He must not have any concentrated
exposure to hazardous conditions, such as unprotected
heights, dangerous moving machinery, or uneven surfaces.
He retains the mental residual functional capacity to
understand, recall, and carry out simple, routine tasks
involving no more than simple, short instructions and
simple, work-related decisions with few workplace
changes.
He can have frequent interaction with
supervisors, and occasional interaction with coworkers
and the general public.
. . .
5.
[Plaintiff] is unable to perform any past relevant
work.
. . .
9.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the . . . Act, since July 17, 2012, the date
the application was filed.
(Tr.

23-32

(bold

font

and

internal

omitted).)

3

parenthetical

citations

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
(internal brackets and quotation marks omitted).

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”

Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).

“It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).

“If there is evidence to justify a

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

4

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).
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.

5

(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.

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).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

3

The Act “comprises two disability benefits programs. The Disability Insurance
Benefits Program 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).
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).

6

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

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

See id. at

However, if the claimant establishes an inability to

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

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.,
pain).” Hines, 453 F.3d at 562-63.

7

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.

Assignment of Error

In Plaintiff’s sole issue on review, she faults the ALJ for
“fail[ing]

to

properly

account

for

[Plaintiff’s]

moderate

limitations in concentration, persistence, or pace [(“CPP”)] in
[the] RFC.”

(Docket Entry 14 at 5 (bold font omitted).)

In

particular, Plaintiff contends that the United States Court of
Appeals for the Fourth Circuit in Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015), “indicated its agreement with ‘other circuits that
an ALJ does not account for a claimant’s limitations in [CPP] by
restricting the hypothetical question to simple, routine tasks or
unskilled work.’”

(Docket Entry 14 at 6 (quoting Mascio, 780 F.3d

at 638 (internal quotation marks omitted)).)

In that regard,

Plaintiff notes Mascio’s holding that “‘the ability to perform
simple tasks differs from the ability to stay on task . . . [and]
[o]nly

the

latter

limitation

would

6

account

for

a

claimant’s

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

limitation
omitted)

in

[CPP].’”

(quoting

(Id.

Mascio,

(Plaintiff’s

780

F.3d

at

bracketed

638).)

language

According

to

Plaintiff, “[t]he limitations [in the RFC] for dealing with the
public, co-workers and supervisors are social in nature . . . [and]
[t]he limitations to ‘simple, short instructions and simple, workrelated decisions with few workplace changes’ address [Plaintiff’s]
ability to perform simple tasks or unskilled work, not his ability
to maintain [CPP].” (Id. (quoting Tr. 26).) Plaintiff thus argues
that, because the ALJ did “not offer any explanation of how the RFC
accounts for [Plaintiff’s] limited ability to maintain [CPP], . . .
the ALJ’s decision . . . is not supported by substantial evidence
and remand for further consideration is appropriate.”
Plaintiff’s arguments miss the mark.

(Id. at 9.)

The Fourth Circuit has

indeed held that “the ability to perform simple tasks differs from
the ability to stay on task” and that “[o]nly the latter limitation
would account for a claimant’s 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 [CPP] always translates into a
limitation in the RFC. Rather, Mascio underscores the
ALJ’s duty to adequately review the evidence and explain
the decision . . . . An ALJ may account for a claimant’s
limitation with [CPP] by restricting the claimant to
simple, routine, unskilled work where the record supports
this conclusion, either through physician testimony,
medical source statements, consultative examinations, or
other evidence that is sufficiently evident to the
reviewing court.

9

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 sufficiently explains why the restrictions in
the RFC to “simple, routine tasks involving no more than simple,
short instructions and simple, work-related decisions with few
workplace changes . . . [as well as] frequent interaction with
supervisors, and occasional interaction with coworkers and the
general public” (Tr. 26) adequately accounted for Plaintiff’s
moderate limitation in CPP.
First, the ALJ summarized Plaintiff’s mental health treatment
(see Tr. 27-29), making the following, pertinent observations:
•

Upon initial evaluation at Triumph Mental Health on
July 2, 2012, a counselor found Plaintiff’s anxiety
“within normal limits” and “his affect, thought
form, memory, judgment and insight, and attention
and concentration . . . unremarkable” (Tr. 28
(emphasis added); see also Tr. 509);

•

On July 25, 2012, Plaintiff and his girlfriend
“reported that [Plaintiff] had been doing quite
well since his discharge” from a June 20, 2012,
inpatient hospitalization for symptoms of confusion
agitation (id.; see also Tr. 425);

•

Consultative psychological examiner Dr. Philip B.
Hatfield
observed
on
March 22, 2013,
that
Plaintiff’s “speech was within the normal ranges;
. . . his thought process w[as] linear and
persistent; . . . the content of his thought was
logical, coherent, and goal directed[,] . . . [his]
affect w[as] euthymic, and . . . his memory for
recent and remote events was intact” (id.; see also
Tr. 576);

10

•

In successive visits with Matthias Zimmerman, P.A.,
from December 30, 2013, to July 1, 2014, Plaintiff
reported
“that
he
had
not experienced
any
breakthrough depression symptoms, . . . [and] that
he rarely experienced anxiety” (id. at 28-29; see
also Tr. 593, 597, 601).

Plaintiff does not challenge the ALJ’s summarization of Plaintiff’s
mental health treatment history.

(See Docket Entry 14.)

Second, the ALJ discussed Plaintiff’s testimony regarding his
mental symptoms (see Tr. 25, 27-29), but concluded that Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [his] symptoms [we]re not entirely credible” (Tr. 27).
Plaintiff does not challenge the ALJ’s evaluation of Plaintiff’s
subjective complaints.

(See Docket Entry 14.)

Third, the ALJ also discussed and weighed the opinion evidence
as

it

related

to

(See Tr. 29-30.)

Plaintiff’s

ability

to

function

mentally.

Most notably, the ALJ gave “significant weight”

to the state agency psychological consultants’ opinions (Tr. 30),
each of which concluded that, despite moderate deficit in CPP (see
Tr. 117, 136),

Plaintiff

remained

“able

to

carry

out

simple

instructions [and to] maintain attention and concentration for two
hours” (Tr. 123, 141).
Those

three

elements

of

the

ALJ’s

decision

adequately

supported the conclusion that, despite moderate limitation in CPP,
Plaintiff remained capable of performing simple, routine tasks with
limited social interaction. See Sizemore v. Berryhill, __ F. App’x
__, __, 2017 WL 467712, at *6 (4th Cir. Oct. 17, 2017) (rejecting
11

the plaintiff’s argument under Mascio where ALJ relied on opinions
of

consultative

notwithstanding

examiner
moderate

and

state

deficit

in

agency
CPP,

psychologist
the

plaintiff

that,
could

sustain attention sufficiently to perform SRRTs).
In sum, Plaintiff’s assignment of error entitles her to no
relief.
III.

CONCLUSION

Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 13) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 15) be granted,
and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
November 8, 2017

12