GOUGH v. BERRYHILL
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 02/08/2018, that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment Reversing the Commissioner [Doc. # 9 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 11 ] 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
JONATHAN D. GOUGH,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Jonathan Gough (“Plaintiff”) brought this action pursuant to Sections 205(g)
and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying his claims for Disability Insurance Benefits and Supplemental Security Income under,
respectively, Titles II and XVI of the Act. The parties have filed cross-motions for judgment,
and the administrative record has been certified to the Court for review.
Plaintiff protectively filed applications for Disability Insurance Benefits and
Supplemental Security Income Benefits on February 11, 2013, alleging a disability onset date
of January 1, 2010, later amended to an onset date of January 17, 2013. (Tr. at 18-19, 17790.) 1 His applications were denied initially (Tr. at 85-106) and upon reconsideration (Tr. at
Transcript citations refer to the Sealed Administrative Record [Doc. #7].
Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (Tr. at 161-62.) Plaintiff, along with his attorney and an
impartial vocational expert, attended the subsequent hearing on September 1, 2015. (Tr. at
18.) The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the
Act from his alleged onset date through October 21, 2015, the date of the administrative
decision. (Tr. at 30.) On November 29, 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 review of such a 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 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
“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 “[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)). 2
“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “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,” then “the ALJ must assess the claimant’s residual functional
capacity (‘RFC’).” Id. at 179. 3 Step four then requires the ALJ to assess whether, based on
“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 workrelated 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.
that RFC, the claimant can “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 [Government] 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 his alleged onset date. Plaintiff therefore met his burden at step one of the
sequential evaluation process. At step two, the ALJ further determined that Plaintiff suffered
from the following severe impairments:
bilateral posttraumatic ankle arthropathy, post traumatic arthritis, status post
open reduction internal fixation of right ankle (s/p, ORIF), right trimalleolar
fracture, degenerative disc disease, left shoulder dislocation, [and] degenerative
joint disease [of the] left AC joint.
(Tr. at 20-21.) The ALJ found at step three that none of these impairments, individually or in
combination, met or equaled a disability listing. (Tr. at 24-25.) Therefore, the ALJ assessed
Plaintiff’s RFC and determined that he could perform light work with the following
[Plaintiff can] sit up to six hours and stand/walk up to two hours and must be
allowed to alternate between sitting and standing up to two times each hour.
He needs an assistive device to ambulate and has only occasional use of the
bilateral lower extremities for pushing, pulling, and operating foot controls. He
can frequently but not continuously stoop, crawl, crouch, kneel, and squat, but
must avoid ladders, ropes, scaffolds, unprotected heights, and machinery with
dangerous parts. He can frequently but not continuously use the left upper
extremity for pushing, pulling, [and] operating hand controls, as well as reaching
in all directions including overhead. He is able to sustain attention and
concentration for two hours at a time.
(Tr. at 25.) Based on the RFC determination, the ALJ found under step four of the analysis
that Plaintiff could not perform any of his past relevant work. (Tr. at 28.) However, at step
five, the ALJ determined that, given Plaintiff’s age, education, work experience, RFC, and the
testimony of the vocational expert as to these factors, he could perform other jobs available
in the national economy. (Tr. at 28-29.) Therefore, the ALJ concluded that Plaintiff was not
disabled under the Act. (Tr. at 29-30.)
Plaintiff now raises three challenges to the ALJ’s RFC assessment. First, Plaintiff
argues that the RFC fails to properly account for Plaintiff’s mild limitations in concentration,
persistence, or pace, social functioning, and activities of daily living as required by the Fourth
Circuit’s decision in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). Second, Plaintiff again
relies on Mascio, along with Social Security Ruling (SSR) 96-7p, in challenging the ALJ’s
credibility assessment. Finally, Plaintiff contends that the ALJ erred at step five by relying on
vocational expert testimony that appears to conflict with the Dictionary of Occupational Titles
(“DOT”) without first obtaining an explanation for the conflict. After a thorough review of
the record, the Court finds that none of Plaintiff’s contentions merit remand.
Consideration of Mental Impairments
At step two of the sequential analysis, the ALJ analyzed Plaintiff’s mental impairments
of depression and anxiety using the four broad functional areas set out in the disability
regulations for evaluating mental disorders, and concluded that Plaintiff had mild limitations
in activities of daily living, mild limitations in social functioning, and mild limitations in
concentration, persistence, or pace. (Tr. at 23-24.) Plaintiff contends that these limitations
should have been taken into account in setting the RFC, based on the Fourth Circuit’s decision
in Mascio. In Mascio, the Fourth Circuit held that if moderate limitations in concentration,
persistence, or pace 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 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.
Mascio, 780 F.3d at 638 (internal citation omitted).
In the present case, unlike in Mascio, the ALJ found only mild, rather than moderate,
restrictions in any area of functioning. (Tr. at 23-24.) More importantly, she made these
findings in the course of her discussion at step two of the sequential analysis, supporting her
conclusion that Plaintiff’s mental impairments “do not cause more than minimal limitation in
[his] ability to perform basic mental work activities and are therefore nonsevere.” (Tr. at 23.)
See 20 C.F.R. §§ 404.1520a(d)(1), 415.920a(d)(1) (providing that if the degree of limitation in
the functional areas is only “none” or “mild,” the impairment is not severe, unless the evidence
otherwise indicates a more than minimal limitation in the ability to do basic work activities).
This analysis differs from the typical Mascio scenario, in which the ALJ, having already
identified one or more mental impairments as severe at step two, then performs a step three
evaluation as to whether the degree of functional limitation resulting from Plaintiff’s mental
impairment(s) meets or equals a listed impairment. The challenges in Mascio and its progeny
therefore stem from the ALJ’s failure, or alleged failure, to include limitations from the
claimants’ severe impairments in the RFC.
This distinction is significant. “Basic work activities” are defined as functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing,
speaking, understanding, carrying out and remembering simple instructions, using judgment,
responding appropriately to co-workers and supervisors, and dealing with changes in a routine
20 C.F.R. § 404.1522(b).
Here, the ALJ found that Plaintiff’s mental
impairments were nonsevere, meaning that they “do not cause more than minimal limitation
in [his] ability to perform basic mental work activities.” Plaintiff contends that the ALJ must
nevertheless consider all impairments, whether severe or non-severe, in setting the RFC.
However, the ALJ did consider Plaintiff’s mental impairments and set out her reasoning at
step two. Specifically, with respect to activities of daily living, the ALJ noted that despite his
limitations, Plaintiff could “take care of his personal needs without assistance.” (Tr. at 24.)
With regard to social functioning, the ALJ found that despite his limitations, Plaintiff did not
have any problems getting along with family, friends, and neighbors. (Tr. at 24.) Based on
this analysis, the ALJ concluded that Plaintiff’s depression and anxiety did not cause more
than minimal limitations in Plaintiff’s ability to perform basic mental work activities. (Tr. at
23.) Thus, the ALJ adequately explained her subsequent omission of mental limitations from
Moreover, as noted in Mascio, remand is “inappropriate” and “futile” in cases “where
the ALJ does not discuss functions that are ‘irrelevant or uncontested.’” 780 F.3d at 636 (citing
Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). In the present case, Plaintiff never
alleged any mental impairment, severe or otherwise, nor mentioned related limitations until
questioned by the ALJ at the administrative hearing.
At the hearing, Plaintiff alleged
forgetfulness as a side effect of his pain medications (Tr. at 26, 70) and later had the following
exchange with the ALJ:
Any difficulties with your mental health? Getting along with
people, being in crowds, following instructions, staying focused to complete a
I’ve been moody. I don’t know if it’s the medication or what, but
I – I know I’ve been real moody and I do have – my mind wanders a lot, so I
have trouble concentrating.
Are you taking any medication for your mental health?
No, ma’am. . . . I’ve been depressed just going through all this.
And help me better understand some of your symptoms of
depression. So you said sometimes you have difficulty focusing or
concentrating, is that correct?
Okay. Any other challenges for you?
No other – like I said, just depression. Kind of a useless feeling
I guess you would say. Not feeling like doing anything.
And are you involved or have been involved in any mental health
counseling or treatment?
(Tr. at 71-72.) The ALJ noted the above testimony in her decision and, when assessing
Plaintiff’s RFC, included a limitation to sustaining attention and concentration for two hours
at a time. (Tr. at 25-27.) This restriction is directly related to Plaintiff’s testimony regarding
his trouble concentrating, and in adding this restriction, the ALJ gave Plaintiff every benefit
of the doubt, as the record contains no treatment records or opinion evidence indicating any
mental restrictions. In fact, when specifically asked about his functional abilities in his Adult
Function Report, Plaintiff himself indicated only physical limitations and denied any
limitations in memory, completing tasks, concentration, understanding, following instructions,
or getting along with others. (Tr. at 226-27.) Although Plaintiff did allege difficulties in his
activities of daily living, he based these allegations on purely physical limitations. (Tr. at 22125.) Overall, nothing, including Plaintiff’s own brief, indicates that Plaintiff’s mild limitations
at step two of the sequential analysis impacted his ability to perform basic work activities, let
alone merited any further RFC restrictions. Accordingly, the Court finds no basis for remand.
Plaintiff next contends that the ALJ erred by determining his RFC before assessing his
credibility, as specifically prohibited in Mascio, 780 F.3d at 639. Notably, in Mascio, the ALJ
applied boilerplate language which stated, in pertinent part, that “the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not credible
to the extent they are inconsistent with the above residual functional capacity assessment.” Id.
(citation omitted). Here, however, the ALJ found that Plaintiff’s statements “are not entirely
credible for the reasons explained in this decision.” (Tr. at 27.) Unlike the language in Mascio,
this boilerplate does not imply “that ability to work is determined first and is then used to
determine the claimant’s credibility.” 780 F.3d at 639 (quotation omitted).
Mascio further explains that, even where an ALJ makes a “backwards” credibility
determination, “[t]he ALJ’s error would be harmless if he properly analyzed credibility
elsewhere.” Id. In that case, the ALJ simply failed to perform such an analysis. In contrast,
the ALJ in the present case recounted Plaintiff’s testimony and related her reasons for
discounting the severity and limiting effects of Plaintiff’s impairments based on the record as
a whole in light of the relevant regulatory factors. (Tr. at 27-28.) Under the applicable
regulatory guidance, the ALJ’s decision must “contain specific reasons for the finding on
credibility, supported by the evidence in the case record.” Social Security Ruling 96–7p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual's Statements, 1996 WL 374186 (July 2, 1996) (“SSR
96–7p”); see also 20 C.F.R. § 404.1529. 4 Toward this end, the Fourth Circuit in Craig
described the two-part test for evaluating a claimant’s statements about symptoms. 76 F.3d
at 594-95. “First, there must be objective medical evidence showing ‘the existence of a medical
impairment(s) which results from anatomical, physiological, or psychological abnormalities
and which could reasonably be expected to produce the pain or other symptoms alleged.” Id.
Effective March 28, 2016, see Social Security Ruling 16–3p, 2016 WL 1237954 (Mar. 24, 2016), the Social
Security Administration superseded SSR 96–7p with Social Security Ruling 16–3p, 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 on April 2, 2015 predates the effective date of SSR 16–3p, and “because SSR 16–3p
changes existing Social Security Administration policy regarding subjective symptom evaluation, that Ruling
does not apply retroactively, see Bagliere v. Colvin, No. 1:16CV109, 2017 WL 318834, at *4–8 (M.D.N.C. Jan.
23, 2017) (Auld, M.J.), recommendation 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.).” Ivey v.
Berryhill, No. 1:16CV1304, 2017 WL 4236558 at *6 n.7 (M.D.N.C. Sept. 22, 2017) (Auld, M.J.). The Court
therefore considers Plaintiff’s claims under SSR 96-7p applicable at the time of the ALJ’s decision.
at 594 (citing 20 C.F.R. §§ 404.1529(b) & 416.929(b)). If the ALJ determines that such an
impairment exists, the second part of the test then requires the ALJ to consider all available
evidence, including Plaintiff’s statements about her pain, in order to evaluate “the intensity
and persistence of the claimant’s pain, and the extent to which it affects her ability to work.”
Craig, 76 F.3d at 595; see also Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017) (similarly
setting out the two-part test).
Notably, while the ALJ must consider Plaintiff’s statements and other subjective
evidence at step two, he need not credit them “to the extent they are inconsistent with the
available evidence, including objective evidence of the underlying impairment, and the extent
to which that impairment can reasonably be expected to cause the pain the claimant alleges
she suffers.” Craig, 76 F.3d at 595. This approach facilitates the ALJ’s ultimate goal, which is
to accurately determine the extent to which Plaintiff’s pain or other symptoms limit his ability
to perform basic work activities. Thus, a plaintiff’s “symptoms, including pain, will be
determined to diminish [his] capacity for basic work activities [only] to the extent that [his]
alleged functional limitations and restrictions due to symptoms, such as pain, can reasonably
be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R.
§ 404.1529(c)(4). Relevant evidence for this inquiry includes Plaintiff’s “medical history,
medical signs, and laboratory findings,” Craig, 76 F.3d at 595, as well as the following factors
set out in 20 C.F.R. § 404.1529(c)(3):
(i) [Plaintiff’s] daily activities;
(ii) The location, duration, frequency, and intensity of [Plaintiff’s] pain or other
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [Plaintiff]
take[s] or [has] taken to alleviate [his] pain or other symptoms;
(v) Treatment, other than medication, [Plaintiff] receive[s] or [has] received for
relief of [his] pain or other symptoms;
(vi) Any measures [Plaintiff] use[s] or [has] used to relieve [his] pain or other
symptoms (e.g., lying flat on [her] back, standing for 15 to 20 minutes every
hour, sleeping on a board, etc.); and
(vii) Other factors concerning [Plaintiff’s] functional limitations and restrictions
due to pain or other symptoms.
Where the ALJ has considered these factors and has heard Plaintiff’s testimony and observed
his demeanor, the ALJ’s credibility determination is entitled to deference. Shively v. Heckler,
739 F.2d 987, 989 (4th Cir. 1984). Accordingly, the Court “will reverse an ALJ’s credibility
determination only if the [plaintiff] can show it was ‘patently wrong.’” Powers v. Apfel, 207
F.3d 431, 435 (7th Cir. 2000).
In the present case, the ALJ determined that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause the alleged symptoms,” but that Plaintiff’s
“statements concerning the intensity, persistence, and limiting effects of these symptoms are
not entirely credible for the reasons explained in this decision.” (Tr. at 27.) Therefore,
Plaintiff’s credibility challenge hinges on step two of the Craig analysis.
It is undisputed that at step two of the analysis, the ALJ should not reject a claimant’s
statements “about the intensity and persistence of [his] pain or other symptoms or about the
effect [his] symptoms have on [his] ability to work solely because the available objective
medical evidence does not substantiate [his] statements.” 20 C.F.R. §§ 404.1529(c)(2). Thus,
“subjective evidence of pain intensity cannot be discounted solely based on objective medical
findings.” Lewis, 858 F.3d at 866. However, it is also undisputed that a plaintiff’s “symptoms,
including pain, will be determined to diminish [his] capacity for basic work activities [only] to
the extent that [his] alleged functional limitations and restrictions due to symptoms, such as
pain, can reasonably be accepted as consistent with the objective medical evidence and other
evidence.” 20 C.F.R. § 404.1529(c)(4). Thus, objective medical evidence and other objective
evidence are “crucial to evaluating the intensity and persistence of a claimant’s pain and the
extent to which it impairs her ability to work” and “[a]lthough a claimant’s allegations about
[his] pain may not be discredited solely because they are not substantiated by objective
evidence of the pain itself or its severity, they need not be accepted to the extent they are
inconsistent with the available evidence, including objective evidence of the underlying
impairment, and the extent to which that impairment can reasonably be expected to cause the
pain the claimant alleges [he] suffers.” Hines, 453 F.3d at 565 n.3 (quoting Craig, 76 F.3d at
595); see also Gowans v. Astrue, Civil No. SKG-06-2817, 2008 WL 179479, at*11 (D. Md.
Jan 17, 2008) (“[E]ven though plaintiff’s subjective complaints may demonstrate the requisite
intensity and severity at step two, if there is significant evidence that contradicts his subjective
complaints, the ALJ may, indeed must, consider that evidence in conjunction with the
subjective evidence.”); McLamb v. Astrue, No. 5:08-CV-305-FL, 2009 WL 2046062, at *9
(E.D.N.C. July 14, 2009); Wetmore v. Astrue, No. 5:09-CV-38, 2009 WL 6449319, at *22
(N.D. W. Va. Oct. 26, 2009).
In the present case, a thorough review of the ALJ’s decision and the record as a whole
reveals that the ALJ properly considered objective medical evidence and other evidence
contrary to Plaintiff’s claims in conjunction with the subjective evidence. In particular, the
ALJ relied on the findings of the State agency medical consultant, Dr. Stephen Levin, who
opined that Plaintiff could occasionally lift or carry 20 pounds and frequently lift or carry 10
pounds, could stand and/or walk for a total of two hours in an eight hour day, could sit for
six hours in an eight hour day, and had further limitations in pushing and/or pulling with his
left lower extremity, climbing, balancing, and left overhead reaching. (Tr. at 27, 126-27.) Dr.
Levin also opined that Plaintiff’s use of a “cane was not required for minimal ambulation and
used only for pain.” (Tr. at 27, 125.)
Although the ALJ gave substantial weight to Dr. Levin’s opinion, he ultimately, and
explicitly, included additional limitations in the RFC based solely on Plaintiff’s testimony. (Tr.
at 27-28.) These included the use of an assistive device for ambulation, “only occasional use
of the bilateral lower extremities for pushing, pulling[,] and operative foot controls,” frequent,
but not continuous stooping, crawling, crouching, kneeling, and squatting, and no unprotected
heights or dangerous machinery. (Tr. at 28.) In fact, it appears that the only testimony
discredited by the ALJ was Plaintiff’s blanket allegation “that he would not be able to meet
the basic demands of regular work on a sustained basis.” (Tr. at 27.) In making this
determination, the ALJ found that the objective medical evidence failed to support this
Significantly, none of Plaintiff’s treating physicians imposed any functional
limitations whatsoever. (Tr. at 27.) Moreover, as noted by the ALJ, none of Plaintiff’s treating
physicians indicated that Plaintiff was disabled or unable to work. (Tr. at 27.) In addition, the
ALJ noted that Plaintiff’s treatment notes reveal that Plaintiff managed his pain with
medications and declined steroid injections and other further treatment options. (Tr. at 2223, 28, 400-02, 405-06, 420-21.) Dr. Larry Gish, who performed a consultative examination
on March 20, 2013, just two months after Plaintiff’s right ankle surgery, opined that Plaintiff
could not return to his past work putting up stucco because he was still using crutches and
“[h]is job requires standing on his feet for a long period of time and climbing ladders which
obviously he could not do at this time.” (Tr. at 21-22, 27, 395-97.) However, the ALJ gave
no weight to Dr. Gish’s opinion because it was “based only on a snapshot” of Plaintiff’s
functioning, and by the next month, when Plaintiff returned to his orthopaedic surgeon, Dr.
Karl Bolstad, for a recheck, he had transitioned from crutches to a cane. (Tr. at 27, 397, 22,
402.) Notably, Plaintiff does not challenge the ALJ’s assignment of no weight to Dr. Gish’s
opinion, nor does he suggest any functional limitations beyond those included in the ALJ’s
RFC assessment. His sole argument is that the ALJ failed to “’build an accurate and logical
bridge from the evidence to h[er] conclusion’” that Plaintiff’s testimony was not credible. (Pl.’s
Br. at 22) (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). A plain reading of
the administrative decision belies this assertion.
As explained above, the ALJ largely
incorporated Plaintiff’s testimony in assessing his RFC, and discredited that testimony only to
the extent Plaintiff alleged that he was precluded from all basic work activity. In making both
her credibility and related RFC findings, the ALJ also expressly relied on the uncontested,
objective medical evidence. As such, the ALJ provided legally sufficient reasons for finding
Plaintiff’s allegations of total disability less than credible. Plaintiff has not shown how this
credibility analysis was improper or how the ALJ’s credibility determination was unsupported
by substantial evidence. To the extent that Plaintiff essentially asks the Court to re-weigh the
evidence and come to a different conclusion than the ALJ, it is not the function of this Court
to re-weigh the evidence or reconsider the ALJ’s determinations if they are supported by
substantial evidence. As noted above, “[w]here 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. Thus, the issue before the Court is not whether a different
fact-finder could have drawn a different conclusion, or even “whether [the claimant] is
disabled,” but rather, “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, 76 F.3d at 589. Here, the ALJ reviewed the evidence, explained her
decision, explained the reasons for her credibility determination, and supported that
explanation with substantial evidence.
Finally, Plaintiff challenges the ALJ’s reliance on the vocational expert’s testimony at
step five of the sequential analysis. In Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015), the
Fourth Circuit clarified the steps an ALJ must take to identify and resolve apparent conflicts
between a vocational expert’s testimony and the DOT. Specifically, the Fourth Circuit held
that, if an expert’s testimony apparently conflicts with the DOT, the expert’s testimony can
only provide substantial evidence to support the ALJ’s decision if the ALJ received an
explanation from the expert explaining the conflict and determined both that the explanation
was reasonable and that it provided a basis for relying on the expert’s testimony rather than
the DOT. Pearson, 810 F.3d at 209-10; see also Rholetter v. Colvin, 639 F. App’x 935, 938
(4th Cir. 2016).
In the instant case, Plaintiff contends that the vocational testimony on which the ALJ
relied at step five of the sequential analysis conflicted with the DOT as to all of the identified
jobs. In particular, Plaintiff challenges the vocational expert’s testimony that the jobs she
identified could accommodate (1) alternating between sitting and standing and (2) use of an
assistive device to ambulate. However, the ALJ questioned the vocational expert regarding
conflicts and whether her testimony was consistent with the DOT, and the vocational expert
addressed both of these issues and specifically testified that the DOT “doesn’t delve into issues
of postural activities such as sitting and standing and the need to alternate or using the assistive
devices. So I used my own experience and research as well as training to answer those
questions.” (Tr. at 82.) Plaintiff’s counsel then sought – and received – further clarification
regarding the impact of Plaintiff’s specific limitations on all three jobs identified at step five:
Ms. Mooney, since the claimant is in under the hypothetical is
alternating sitting and standing two times an hour and needs an assistive device,
for whatever period of time that turns into that he’s on his feet with only one
hand available to work, can he do these jobs – during that portion of the job?
Well, looking at the jobs that I’ve seen, I think so, yes, because I
mean a person can take money at a change booth or at a pay booth while seated
or standing and if the person could lean, you know, while doing this and use
one hand. Also – let’s see, yeah, the storage facility, yes. Storage facility rental
manager, yes. That could – could be done. What was the other one I gave?
Small parts assembler.
Small parts – well, generally that’s done seated. People don’t
really stand up to do any portion of the work. So the ambulation would just be
to get to the work station.
(Tr. at 83.) Given all of this testimony, the ALJ then specifically addressed the issue in her
decision by noting the potential conflict particularly as to the sit/stand option, by finding that
“there is a reasonable explanation for the discrepancy” based on the Vocational Expert’s
testimony, and by concluding that “the vocational expert’s testimony regarding the sit/stand
option is sufficient evidence to establish a significant number of jobs that the claimant was
able to perform since it was based on her own experience and observation.” (Tr. at 29.) Thus,
the issue was identified and the ALJ received testimony from the Vocational Expert explaining
the potential conflict. The ALJ then explicitly determined both that the explanation was
reasonable and that it provided a basis for relying on the expert’s testimony rather than the
DOT. The apparent conflict was thus addressed and resolved to the extent required by
Pearson, and the Vocational Expert’s testimony provides substantial evidence supporting the
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment Reversing the
Commissioner [Doc. #9] be DENIED, that Defendant’s Motion for Judgment on the
Pleadings [Doc. #11] be GRANTED, and that this action be DISMISSED with prejudice.
This, the 8th day of February, 2018.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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