BOWMAN v. BERRYHILL
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/20/2017; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that judgment be entered for Defendant. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JESSIE G. BOWMAN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
1:17CV253
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Jessie G. Bowman, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying
Plaintiff’s
claim
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)
Defendant has filed the certified administrative record
(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 11, 13; see also Docket Entry 12
(Plaintiff’s
Memorandum),
Docket
Entry
14
(Defendant’s
Memorandum)).
For the reasons that follow, the Court should enter
judgment for Defendant.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A. Berryhill should be substituted for Carolyn W. Colvin as the Defendant in this
suit. No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
December
31,
2011.
(Tr.
225-36.)
Upon
denial
of
those
applications initially (Tr. 66-91, 128-33) and on reconsideration
(Tr. 92-127, 138-55), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 156).
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 33-65.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 13-27.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
12, 333-34), 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] meets the insured status requirements of
the [] Act through December 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since December 31, 2011, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease of the lumbar spine; obesity;
chronic obstructive pulmonary disease (COPD); major
depressive disorder; and panic disorder with anxiety.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
2
5.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except [Plaintiff]
can frequently climb ramps or stairs, balance, stoop,
kneel, crawl or crouch.
[Plaintiff] cannot climb
ladders, ropes, or scaffolds, and must avoid concentrated
exposure to hazards, dust, fumes, gases, poor ventilation
and extremes of heat, which should be no more than
frequent.
Mentally, [Plaintiff] can perform simple,
routine tasks with no interaction with the public and
only occasional contact with coworkers and supervisors.
She also can adapt to routine changes in the work
environment.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from December 31, 2011, through
the date of this decision.
(Tr.
18-27
(bold
font
and
internal
parenthetical
citations
omitted).)
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).
3
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, 390 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (internal citations and
quotation marks omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
is
substantial
evidence.”
Hunter,
993
F.2d at
34
(internal
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
4
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.
(quoting
42
U.S.C.
§
423(d)(1)(A)).2
“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]
2
The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . provides benefits to indigent disabled persons.
The statutory
definitions and the regulations . . . for determining disability governing these
two programs are, in all aspects relevant here, substantively identical.” Craig,
76 F.3d at 589 n.1 (internal citations omitted).
5
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
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).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
3
“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
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
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.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
4
“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.
5
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,
(continued...)
7
B.
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ’s failure to properly account for [Plaintiff’s]
moderate
limitations
in
concentration,
persistence,
or
pace
[(“CPP”)] in [the] RFC is harmful error” (Docket Entry 12 at 6
(bold font omitted); and
2) “[t]he ALJ failed to identify the apparent conflict between
the VE’s testimony
[that
Plaintiff
could
perform
the
job
of
Caretaker] and the [Dictionary of Occupational Titles (‘DOT’)]
listing for the position of Caretaker” and failed to account for
the fact that the DOT “indicates that the position of Change House
Attendant is an occupation ‘concerned with serving clients of
checkrooms, locker rooms, or rest rooms’ which suggests that these
job duties would require interaction with the public” (id. at 5
n.1).6
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 14 at 5-8.)
5
(...continued)
review does not proceed to the next step.”).
6
Plaintiff presented this argument in a footnote within a preliminary, nonargumentative portion of her brief entitled, “The [SEP] and the ALJ’s Decision”
(Docket Entry 12 at 3 (underlining omitted)), and omitted it from the “Issues
Presented” and the “Argument” sections of her brief (see id. at 6 (full
capitalization omitted)). Such circumstances suggest that Plaintiff did not
intend to raise this matter as an issue for judicial review. Nevertheless, the
Court should accord Plaintiff the benefit of the doubt and discuss the merits.
8
1. CPP
In Plaintiff’s first issue on review, she faults the ALJ for
“fail[ing]
to
properly
account
limitations in CPP in [the] RFC.”
omitted).)
In
“limitation
‘to
particular,
simple,
for
[Plaintiff’s]
moderate
(Docket Entry 12 at 6 (bold font
Plaintiff
routine
alleges
tasks’
that
(Tr.
21)
the
RFC’s
addresses
[Plaintiff’s] ability to understand a work task but not her ability
to stay on task.”
the
United
(Docket Entry 12 at 6.)
States
Court
of
Appeals
According to Plaintiff,
for
the
Fourth
Circuit
“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’”
(id. at 7 (quoting Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir.
2015) (internal quotation marks omitted))), because “‘the ability
to perform simple tasks differs from the ability to stay on task
. . . [and] [o]nly the latter limitation would account for a
claimant’s limitation in [CPP]’” (id. at 9 (internal bracketed
language omitted) (quoting Mascio, 780 F.3d at 638)).
Plaintiff
contends that “[t]he ALJ’s error is especially important in light
of evidence regarding [Plaintiff’s] difficulty with focus and
concentration,”
including
her
“testi[mony]
that
she
lost
her
previous job since she ‘could not perform production as fast as
[the employer] needed.’” (Id. (quoting Tr. 39, and citing Tr. 363-
9
64, 829, 837, 842-43, 852).)
Plaintiff’s contentions do not
warrant relief.
The Fourth Circuit has held that “the ability to perform
simple tasks differs from the ability to stay on task” and that
“[o]nly the latter limitation would account for a claimant’s
limitation in [CPP].”
Mascio, 780 F.3d at 638.
However, as a
neighboring district court has 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.
Jones v. Colvin, No. 7:14CV00273, 2015 WL 5056784, at *10-12 (W.D.
Va. Aug. 20, 2015) (Magistrate Judge’s Recommendation adopted by
District Judge) (unpublished) (emphasis added).
Here, the ALJ’s
decision provides a sufficient explanation as to why a limitation
in
the
RFC
to
“simple,
routine tasks”
(Tr.
21)
sufficiently
accounted for Plaintiff’s moderate limitation in CPP.
First, the ALJ discussed Plaintiff’s statements and testimony
regarding her mental symptoms (see Tr. 20, 21), but concluded that
her “statements concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely credible” (Tr. 23).
10
Plaintiff does not challenge the ALJ’s evaluation of Plaintiff’s
subjective complaints.
(See Docket Entry 12.)
Second, the ALJ summarized Plaintiff’s mental health treatment
(see Tr. 23), making the following, pertinent observations:
•
Plaintiff’s “mental health record is primarily
pharmacotherapy from her primary care provider
. . . to treat her depression and anxiety” (id.;
see also Tr. 677-729);
•
During Plaintiff’s treatment sessions at PQA
Healthcare between July 2012 and February 2013,
Plaintiff “told her clinician that Xanax helped
control her symptoms,” and “[m]ental status
examinations indicated that [Plaintiff] had intact
memory and attention” (Tr. 23; see also Tr. 36064);
•
Plaintiff “did not receive mental health therapy”
between February 2013 and March 2015 (Tr. 23); and
•
In
June
2015,
Plaintiff
reported
to
her
psychiatrist “that the Cymbalta helped, though she
felt that she needed an increased dose” (id.; see
also Tr. 829).
Plaintiff does not challenge the ALJ’s summarization of Plaintiff’s
mental health treatment history.
(See Docket Entry 12.)
Third, the ALJ also discussed and weighed the opinion evidence
as
it
related
to
Plaintiff’s
ability
to
function
mentally.
(See Tr. 24-25.) Notably, the ALJ gave “great weight” to the state
agency psychological consultants’ opinions, which included their
conclusion that, despite moderate deficit in CPP (see Tr. 73, 85,
102, 119), Claimant remained able to “maintain concentration long
enough to complete a simple task as would be required of unskilled
work” (Tr. 77, 89 (emphasis added); see also Tr. 107, 124 (opining
11
that Plaintiff “has the ability to maintain concentration and
attention for an adequate period to complete short and simple
tasks” (emphasis added))).
the
state
agency
(Tr. 24, 25.)
psychological
The ALJ’s crediting of
consultants’
conclusions
that
Plaintiff remained able to maintain attention and concentration to
complete simple, routine tasks provides “an accurate and logical
bridge,” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000),
between the evidence and the ALJ’s findings, see Able v. Colvin,
No. 1:14CV1078, 2016 WL 1229086, at *5 (M.D.N.C. Mar. 28, 2016)
(unpublished) (Osteen, C.J.) (holding ALJ “adequately explained”
why limitation to simple tasks encompassed moderate deficit in CPP
where ALJ gave “significant weight” to state agency consultant’s
opinion that, despite such deficit, the claimant could sustain
attention and concentration for simple tasks); Del Vecchio v.
Colvin, No. 1:14CV116, 2015 WL 5023857, at *6 (W.D.N.C. Aug. 25,
2015) (unpublished) (“Here, unlike in Mascio, the ALJ discussed
substantial record evidence in determining [the claimant’s] mental
RFC, and his explicit reliance on [the state agency consultant’s]
opinion adequately explains why [the claimant’s] limitations in
[CPP] did not translate into any additional restrictions.
. . .
Therefore,
ALJ’s
the
[c]ourt
is
not
decision-making process.”).
12
left
to
guess
at
the
Under these circumstances, the ALJ adequately explained why
limitations
to
“simple,
routine
tasks”
(Tr.
21)
sufficiently
accounted for Plaintiff’s moderate limitation in CPP.
2. Conflict Between VE’s Testimony and the DOT
Plaintiff contends that the ALJ “failed to identify and
resolve the apparent conflicts between the ALJ’s RFC and the VE’s
testimony that [Plaintiff] could perform the jobs of Caretaker and
Change House Attendant.”
(Docket Entry 12 at 5 n.1.)
More
specifically, Plaintiff asserts that the DOT describes the position
of Caretaker as involving cleaning, dusting, shoveling coal and
ashes,
washing
windows,
removing
and
hanging
draperies,
and
painting exterior structures, which “suggest[s] more than frequent
exposure to dust, fumes, [and/or] gases and the performance of job
duties that would require climbing a ladder or scaffolding.” (Id.;
see also DOT, No. 301.687-010 (Caretaker), 1991 WL 672653 (G.P.O.
4th ed. rev. 1991).) Plaintiff further maintains that the Selected
Characteristics of Occupations Defined in the Revised [DOT] (“SCO”)
“reveals
that
the
occasional climbing.”
position
of
Caretaker
requires
at
least
(Docket Entry 12 at 5 n.1; see also SCO, Pt.
A, § 05.12.18 (U.S. Dep’t of Labor 1993).)
In addition, Plaintiff
notes that “[t]he [DOT’s] description of the particular occupation
group
[‘Checkroom,
indicates
that the
Locker
position
Room,
and
of
Change
Rest
House
Room
Attendants’]
Attendant
is
an
occupation ‘concerned with serving clients of checkrooms, locker
13
rooms or rest rooms’ which suggests that these job duties would
require interaction with the public.”
(quoting DOT, § 358, 1991 WL 672952).)
(Docket Entry 12 at 5 n.1
Thus, Plaintiff contends
(1) that both of those jobs (according to the DOT) conflict with
the RFC, which allows no more than frequent exposure to atmospheric
irritants and precludes climbing of ladders, ropes, or scaffolds,
as well as public interaction (id. (citing Tr. 21)), and (2) that
the ALJ erred by failing to identify and resolve the conflict
between the DOT and the VE’s testimony that, with such RFC,
Plaintiff could perform those two jobs (id. at 5-6 n.1 (citing
Pearson v. Colvin, 810 F.3d 204, 210 (4th Cir. 2015)).
Assuming that the ALJ erred by failing to identify and resolve
an apparent conflict between the DOT and the VE’s testimony that,
given the RFC, Plaintiff could perform the Caretaker and Change
House Attendant jobs, any such error remains harmless under the
circumstances of this case, because Plaintiff has not challenged
the remaining job, Laundry Worker II.
See generally Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]o
principle of administrative law or common sense requires us to
remand a case in quest of a perfect opinion unless there is reason
to believe that the remand might lead to a different result”).
As
discussed above, the VE testified that 199,300 Laundry Worker II
jobs existed in the national economy (see Tr. 57), which certainly
constitutes a significant number, see, e.g., Weiler v. Apfel, 179
14
F.3d 1107, 1110-11 (8th Cir. 1999) (“The [VE’s] testi[mony] that
there are 32,000 . . . positions nationwide . . . is substantial
evidence
supporting
the
ALJ’s
conclusion
that
there
are
a
significant number of jobs in the economy which [the plaintiff] can
perform.”); Patterson v. Astrue, Civ. No. 8:07-1602-HFF-BHH, 2008
WL 294461, at *5 (D.S.C. July 31, 2008) (unpublished) (“[T]he VE
testified that 28,000 . . . jobs appeared in the national economy.
This testimony was substantial evidence for the ALJ to conclude
that the . . . job appeared in significant numbers.” (internal
citation omitted)).7
Although Plaintiff points out that “the job of Laundry Worker
II requires frequent exposure to humidity and extreme heat” (Docket
Entry 12 at 5 n.1 (referencing DOT, No. 361.685-018 (Laundry Worker
II), 1991 WL 672987)), she made no further argument regarding the
Laundry Worker II job (see id. (“The ALJ in [Plaintiff’s] claim
failed to identify and resolve the apparent conflicts between the
ALJ’s RFC and the VE’s testimony that [Plaintiff] could perform the
jobs of Caretaker and Change House Attendant.” (emphasis added)).
The Court thus need proceed no further.
See Belk, Inc. v. Meyer
Corp., U.S., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (“This issue is
waived because [the plaintiff] fails to develop this argument to
any extent in its brief .”); United States v. Zannino, 895 F.2d 1,
7
The hearing transcript reflects that the VE testified to “199,300” Laundry
Worker II jobs nationally (Tr. 57), but the ALJ’s decision sets that number at
“1,099,300” (Tr. 26). That disparity does not impact the outcome of this case
because, as noted above, 199,300 jobs qualifies as a significant number.
15
17 (1st Cir. 1990) (“[A] litigant has an obligation to spell out
its arguments squarely and distinctly, or else forever hold its
peace.”
(internal
quotation
marks
omitted));
Hughes
v.
B/E
Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C.
Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party should not
expect a court to do the work that it elected not to do.”).
In any
event, neither frequent exposure to humidity nor frequent exposure
to extreme heat conflicts with the RFC.
(See Tr. 21.)
Accordingly, Plaintiff’s second assignment of error fails as
a matter of law.
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 11) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 13) be granted,
and that judgment be entered for Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 20, 2017
16
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