DAVIS v. BERRYHILL
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE signed on 4/6/2018. RECOMMENDED that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the Pleadings (Doc. # 11 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Doc. # 13 ) be GRANTED, and that this action be DISMISSED with prejudice. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DOROTHY A. DAVIS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Social Security Administration,
Defendant.
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1:17CV372
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Dorothy Davis (“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.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed her application for Supplemental Security Income on March
18, 2014, alleging disability beginning August 1, 2007. (Tr. at 11, 184-91.) 1 She subsequently
amended her alleged onset date to March 18, 2014. (Tr. at 11.) Plaintiff’s application was
denied initially (Tr. at 75-89, 111-19), and that decision was upheld upon reconsideration
(Tr. at 90-106, 123-32). Thereafter, she requested an administrative hearing de novo before
1
Transcript citations refer to the Sealed Administrative Record [Doc. #9].
an Administrative Law Judge (“ALJ”). (Tr. at 133-35.) Plaintiff attended the subsequent video
hearing on January 5, 2016, along with her attorney and an impartial vocational expert. (Tr. at
11.) The ALJ ultimately concluded that Plaintiff was not disabled within the meaning of the
Act (Tr. at 22), and, on March 8, 2017, 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).
II.
LEGAL STANDARD
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).
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“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)). 2
“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).
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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. 3 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.
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“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.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since her March 18, 2014 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 four severe impairments:
obesity, hypertension, depression, and anxiety.
(Tr. at 13.) The ALJ found at step three that none of these impairments, singly or in
combination, met or equaled a disability listing. (Tr. at 14.) Therefore, the ALJ assessed
Plaintiff’s RFC, and found that she could perform
light work as defined in 20 CFR 416.967(b) except she can occasionally climb
ramps or stairs and never climb ladders, ropes, or scaffolds. [Plaintiff] can
occasionally balance, stoop, kneel, crouch, or crawl. She can perform simple,
routine tasks with occasional interaction with the public and coworkers.
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(Tr. at 16.) At step four, the ALJ determined that all of Plaintiff’s past relevant work exceeded
her RFC. (Tr. at 20-21.) However, he 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 21-22.)
Plaintiff now contends that the ALJ “erred in finding that [Plaintiff] has the [RFC] to
perform a reduced range of light work, thereby misapplying the medical vocational guidelines.”
(Pl.’s Br. [Doc. #12] at 5.) Plaintiff also argues that the ALJ erred at step two “in failing to
find that [Plaintiff’s] degenerative disc disease with radiculopathy is a severe impairment.”
(Pl.’s Br. at 9.) After careful review of the record, the Court finds that neither of these
contentions merits remand.
A.
RFC
Plaintiff challenges the ALJ’s RFC assessment on three bases. First, she claims that
substantial evidence fails to support the ALJ’s evaluation of her symptoms. Second, she
contends that the RFC “failed to fully and accurately account for [her] mental limitations in
concentration, persistence, and pace,” as required by Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015). (See Pl.’s Br. at 7-8.) Third, she argues that, had the ALJ found that she could perform
sedentary, rather than light, work, “a finding of disabled would have been directed by the
Medical-Vocational Guidelines.” (Pl.’s Br. at 8-9.) The Court addresses each of these
contentions in turn.
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1.
Symptom Evaluation
Plaintiff first contends that her “credible testimony serves to illustrate that she is unable
to work due to chronic severe pain.” (Pl.’s Br. at 6.) She urges that her “testimony is strongly
supported by the record.” In short, Plaintiff challenges the ALJ’s finding that her testimony
regarding the intensity, persistence, and limiting effects of her symptoms was not entirely
consistent with the evidence.
Under the applicable regulations, the ALJ’s decision must “contain specific reasons for
the weight given to the individual’s symptoms, be consistent with and supported by the
evidence, and be clearly articulated so the individual and any subsequent reviewer can assess
how the adjudicator evaluated the individual’s symptoms.” Social Security Ruling 16-3p, Titles
II and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p, 2017 WL 5180304 (Oct.
25, 207) (“SSR 16-3p”); see also 20 C.F.R. § 404.1529. 4 In Craig v. Chater, the Fourth Circuit
addressed 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.
at 594 (citing 20 C.F.R. §§ 416.929(b) & 404.1529(b)). If the ALJ determines that such an
impairment exists, the second part of the test then requires him to consider all available
evidence, including Plaintiff’s statements about her pain, in order to evaluate “the intensity
The ALJ’s decision is dated March 30, 2016, and the Court therefore considers SSR 16-3p, effective March
28, 2016. See SSR 16-3p n.27 (“Our adjudicators will apply this ruling when we make determinations and
decisions on or after March 28, 2016. When a Federal court reviews our final decision in a claim, we expect the
court will review the final decision using the rules that were in effect at the time we issued the decision under
review.”).
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and persistence of the claimant’s pain, and the extent to which it affects her ability to work.”
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 her ability to perform basic work
activities. 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
symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication [Plaintiff]
take[s] or [has] taken to alleviate [her] pain or other symptoms;
(v) Treatment, other than medication, [Plaintiff] receive[s] or [has] received for
relief of [her] pain or other symptoms;
(vi) Any measures [Plaintiff] use[s] or [has] used to relieve [her] 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 her demeanor, the ALJ’s determination is entitled to deference. See Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984).
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
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“statements concerning the intensity, persistence[,] and limiting effects of these symptoms are
not entirely consistent with the evidence for the reasons explained in this decision.” (Tr. at
17.) Therefore, Plaintiff’s 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 [her] pain or other symptoms or about the
effect [her] symptoms have on [her] ability to work solely because the available objective
medical evidence does not substantiate [her] statements.” 20 C.F.R. § 416.929(c)(2). Thus,
“subjective evidence of pain intensity cannot be discounted solely based on objective medical
findings.” Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017). However, it is also undisputed
that a plaintiff’s “symptoms, including pain, will be determined to diminish [her] capacity for
basic work activities [only] to the extent that [her] 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. § 416.929(c)(4). Thus, objective medical
evidence and other evidence in the record 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 her 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 she suffers.” Hines, 453 F.3d at
565 n.3 (quoting Craig, 76 F.3d at 595); see also SSR 16-3p (“[O]bjective medical evidence is
a useful indicator to help make reasonable conclusions about the intensity and persistence of
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symptoms, including the effects those symptoms may have on the ability to perform workrelated activities.”). According to the regulatory guidance:
If an individual’s statements about the intensity, persistence, and limiting effects
of symptoms are consistent with the objective medical evidence and the other
evidence of record, we will determine that the individual’s symptoms are more
likely to reduce his or her capacities to perform work-related activities . . . . In
contrast, if an individual’s statements about the intensity, persistence, and
limiting effects of symptoms are inconsistent with the objective medical
evidence and the other evidence, we will determine that the individual’s
symptoms are less likely to reduce his or her capacities to perform work-related
activities.
SSR 16-3p.
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, and
explained that determination in the decision. As recounted by the ALJ,
[t]hrough reports to the Agency and testimony at her hearing, [Plaintiff] alleged
multiple disabling symptoms. She alleged that her impairments affected her
ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs,
see, remember, complete tasks, concentrate, understand, follow instructions,
use her hands, and get along with others. She alleged that she had fatigue and
difficulty sleeping. [Plaintiff] stated that she had swelling in her hands and legs
and increased symptoms of depression and anxiety. She alleged that she had
headaches. [Plaintiff] stated that she needed help dressing sometimes,
reminders to take her medicine, and did not get along with people like she used
to due to pain and depression. She stated that she used a cane that was not
prescribed by a doctor. [Plaintiff] testified that she did not drive a lot because
it hurt her back to drive. She testified that she sent her grown children to the
store for her. [Plaintiff] testified that she was in a car accident in 2007 in which
she was injured. She testified that she had carpal tunnel in her hands, arthritis
in her legs and hands, and swelling in her feet. She testified that she felt sad and
like crying and that she had anxiety attacks. She testified that her husband, who
was disabled due to a bulged disc in his back, takes care of her and helped her
with things like laundry, getting up and down, getting in and out of the shower,
rubbing her back, dressing herself, and tying her shoes.
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(Tr. at 16-17.) In evaluating Plaintiff’s symptoms, the ALJ determined that, despite Plaintiff’s
“allegations of limitations in every area inquired about in Section D of the Adult Function
Report, her medical records do not reflect such extreme limitations.” (Tr. at 17). The ALJ
then supported this finding as follows:
While [Plaintiff] seemed stiff on some exams, treating physician Dr. East told
her to more around to help avoid stiffness, indicating that Dr. East believed
[Plaintiff] to be less limited than alleged. [Plaintiff’s] provider described her as
in moderate pain and distress at most, and this was only at one visit. [Plaintiff]
did not complain of difficulty hearing or seek treatment for a hearing condition.
She reported good pain relief with medication, seemingly at odds with the
limitations alleged in the Function Report and with testimony that her disabled
husband had to care for her. In light of the evidence as a whole, the undersigned
finds that [Plaintiff’s] allegations are exaggerated in that they are not consistent
with evidence showing only modest objective findings and her own reports to
her physicians during her course of treatment. Indeed, [Plaintiff’s] own medical
providers reported that imaging revealed only mild degenerative disc disease.
In comparing the statements [Plaintiff] made in connection with her claim for
disability benefits with other evidence, including statements from her medical
records, the undersigned finds that they are inconsistent with objective medical
evidence and other evidence and are therefore less likely to reduce her capacity
to perform work related activities.
(Tr. at 17) (citations omitted). Nevertheless, the ALJ acknowledged that Plaintiff’s obesity,
hypertension, pain, and edema did cause functional limitations. In particular, he determined
that,
[b]ased on the possibility that [Plaintiff] experiences some symptoms due to
high blood pressure, as well as decreased functional ability based on her obesity
and examinations revealing tenderness in her back, she can occasionally climb
ramps or stairs and never climb ladders, ropes, or scaffolds. [Plaintiff’s] medical
providers also noted that she seemed stiff, had edema distally, and had a slightly
antalgic gait, supporting a limitation to occasionally balancing, stooping,
kneeling, crouching, or crawling. In determining [Plaintiff’s RFC], the
undersigned considered all of her impairments, severe and non-severe, as
required by SSR 96-8p. The undersigned finds that findings of pain and edema
on some exams along with [Plaintiff’s] reports of pain radiating to her legs
reasonably support a limitation to light work with additional non-exertional
limitations.
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However, further physical limitations are not supported. Although [Plaintiff]
had edema, it was described as only trace. Moreover, her gait was only slightly
antalgic, indicating that she was not as limited as alleged. Indeed, [Plaintiff’s]
allegation of using a cane daily is inconsistent with examination findings noting
only slightly antalgic but otherwise normal gait. Such inconsistency indicates
that [Plaintiff] has a functional capacity consistent with the findings herein
rather than a more limited one. Significantly, although [Plaintiff] reported
increased pain at times, she mostly reported good pain relief. For example, in
March and May 2014, she reported that she had noticed significant
improvement with pain on medications, though she felt that she was suffering
quite a bit at the time. Later, she reported that changed dosages of her pain
medication helped “a lot” with her pain and that the pain came back when she
ran out of the medication. Her medications were refilled, and [Plaintiff]
reported good relief of her back pain. Such evidence is inconsistent with
[Plaintiff’s] allegations of symptom severity because it indicates that her
symptoms were adequately controlled with treatment. Of note, Dr. East,
[Plaintiff’s] treating physician, told her to try to avoid sitting around all of the
time and to move around to help avoid stiffness. Such evidence is not
consistent with her reported symptoms and limitations therefrom because it
shows that [Plaintiff’s] own doctor thought she should avoid sitting around
excessively. That is, it seems that [Plaintiff’s] own doctor thought she should
engage in activities more consistent with light rather than sedentary work. Such
evidence is consistent with the limited range of light work that the undersigned
finds [Plaintiff] can do herein.
(Tr. at 17-18) (citations omitted).
In challenging the above symptom evaluation, Plaintiff argues (1) that her pain was not
as well controlled as the ALJ suggests, and (2) that the ALJ misconstrued Dr. East’s
recommendation that Plaintiff sit less to avoid stiffness. (Pl.’s Br. at 6-7.) However, the ALJ
fully and accurately considered Plaintiff’s medical records as set out above, including the extent
to which her pain was controlled by medications when she took the medications as directed,
and Plaintiff has failed to show that the ALJ’s determination is not supported by substantial
evidence.
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With respect to Dr. East, Plaintiff points to a letter from Dr. East dated December 22,
2015, recommending that Plaintiff “be approved for disability.” (Tr. at 365.) Plaintiff argues
that the ALJ should have relied on this December 2015 opinion from Dr. East, rather than
the earlier notation by Dr. East in May 2014 encouraging Plaintiff to “[t]ry to avoid sitting
around all the time.” (Tr. at 325.) However, the ALJ considered the December 2015 letter at
length and gave Dr. East’s December 2015 opinion little weight because Dr. East “provides
no statement or even indication regarding [Plaintiff’s] functional limitations.
Without
providing some indication of limitations in vocationally relevant terms, the probative value of
her opinion is reduced.” (Tr. at 19.) The ALJ also noted that medical records from Dr. East’s
practice “indicate that Plaintiff’s degenerative disc disease is only mild” and this evidence
“further detracts from Dr. East’s opinion.” (Tr. at 19.)
Moreover, Dr. East never opined that Plaintiff was limited to sedentary, rather than
light, work as Plaintiff suggests. Instead, the treatment records reflect that on two occasions,
in December 2014 and February 2015, Plaintiff was described as “sedentary” based on
Plaintiff’s lack of exercise, and the records further reflect that Plaintiff was “trying to be more
active.” (See Tr. at 350, 387.) Along with continued walking, Dr. East strongly recommended
physical therapy as a means to improving Plaintiff’s pain level and functionality, but it does
not appear that Plaintiff followed through, despite repeat referrals. (Tr. at 315, 324, 334, 353,
368-70, 372, 374, 377.) Moreover, Plaintiff had been off of her medication for six months in
December 2014 (Tr. at 350), and later records reflect that by June 2015 and August 2015, she
had good relief from her back pain with her pain medications (Tr. at 382, 374) and Dr. East
continued to recommend physical therapy. The ALJ fully considered and addressed these
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treatment records, including the records cited by Plaintiff (Tr. at 17 (citing Tr. at 386-92)), and
Plaintiff has not shown that the ALJ’s findings were unsupported by the evidence or based
upon an incorrect application of law.
Ultimately, to the extent that the ALJ’s conclusion was contrary to Plaintiff’s testimony,
the ALJ made a determination regarding Plaintiff’s symptoms after considering Plaintiff’s
testimony and the applicable factors at length. Plaintiff has not shown how this symptom
evaluation was improper or how the ALJ’s 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 factfinder 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 his decision, and
supported that explanation with substantial evidence.
2.
Concentration, persistence, and pace
Plaintiff next challenges the ALJ’s mental RFC assessment. 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
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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 15.) However, when later assessing
Plaintiff’s RFC, the ALJ determined that Plaintiff “can perform simple, routine tasks with
occasional interaction with the public and coworkers.” (Tr. at 16.) Plaintiff now argues that
these limitations fail to adequately address her ability to stay on task. However, as this Court
has previously clarified, 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. . . .
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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).
In this case, as in Tolbert, the ALJ sufficiently explained why the RFC sufficiently
accounted for Plaintiff’s limitations in concentration, persistence, or pace. First, in assessing
Plaintiff’s concentration difficulties as moderate at step three of the sequential analysis, the
ALJ recounted statements from Plaintiff’s consultative psychiatric examiner, Dr. Scott Schell,
which indicated that, although Plaintiff “failed at some subtraction and judgment tasks on
exam,” “she was able to sustain concentration,” “was oriented to person, place, and time,”
“could remember five numbers forward,” and could “do simple addition.” (Tr. at 15, 34547.) In setting the RFC, the ALJ found that the “psychological consultative examiner noted
that [Plaintiff] was oriented to person, place, and time and could sustain concentration” and
“[t]his indicates that [Plaintiff] is not more restricted” than found by the ALJ. (Tr. at 18.) The
ALJ also noted that the “State agency psychological consultants opined that [Plaintiff] has a
moderate limitation in concentration, persistence, or pace.” (Tr. at 15, 81, 97.) As the ALJ
explained later in his decision, he assigned great weight to the State agency psychological
consultant’s opinions, both of which concluded that, despite her moderate limitation in
concentration, persistence, or pace, Plaintiff could sustain attention for simple tasks and
retained “the capacity to perform simple, routine, repetitive tasks in a low social, low stress
environment.” (Tr. at 19, 82, 86; see also Tr. at 98, 102-03.) Relying on this finding, the ALJ
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specifically “accounted for [Plaintiff’s] ability to tolerate minimal stress by limiting her to
simple, routine tasks.” (Tr. at 19.)
The ALJ further acknowledged the psychological consultative examination, which
noted that Plaintiff’s “ability to perform simple repetitive tasks is adversely influenced by
widespread pain complaints.” (Tr. at 19, 346.) However, the ALJ discounted this conclusion
“because, as analyzed above, the record does not provide a reasonable basis for the intensity
and persistence of the symptoms [Plaintiff] reported.” (Tr. at 19.) The ALJ similarly
discounted the psychological consultative examination’s finding that Plaintiff’s “ability to
tolerate stress and pressures associated with day-to-day employment is adversely influenced
by physical symptoms,” again noting that Plaintiff’s physical “[e]xamination findings were
modest at most[,] and [Plaintiff] reported relief with medications.” (Tr. at 19-20.) Ultimately,
the Court finds that the ALJ provided an extended analysis and explanation with respect to
the limitations in the RFC, and explained the lack of a need for further limitations in light of
the evidence in the record.
3.
Application of the Medical-Vocational Guidelines
In Plaintiff’s final challenge to her RFC, she contends that, had the ALJ found that she
could perform sedentary, rather than light, work, “a finding of disabled would have been
directed by the Medical-Vocational Guidelines.” (Pl.’s Br. at 8-9.) This argument is inapposite,
as the ALJ did not limit her to sedentary work. The ALJ instead found that she was limited
to light work, with additional restrictions noted in the RFC, and the ALJ’s decision includes
an extended explanation of that determination, supported by substantial evidence, as set out
17
above.
Thus, Plaintiff has not established any misapplication of the Medical-Vocational
Guidelines in this case.
B.
Step Two
Plaintiff next contends that the ALJ erred at step two of the sequential analysis by
failing to include Plaintiff’s degenerative disc disease with radiculopathy among her severe
impairments.
Step two is a threshold determination of whether claimants have a severe
impairment (or combination of impairments) that meets the twelve-month
duration requirement and significantly limits their ability to do basic work
activities. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (2010). If the
Commissioner finds no severe impairments, the claimant is not disabled and
the analysis does not proceed to the other steps. Id. However, if a claimant
does have a severe impairment or combination of impairments, the ALJ must
consider the effects of both the severe and non-severe impairments at the
subsequent steps of the process, including the determination of RFC. See 20
C.F.R. § 404.1523 (2010); SSR 96–8p, 1996 WL 374184, at * 5 (1996); SSR 86–
8, 1986 WL 68636, at *5 (1986). If the ALJ proceeds to discuss and consider
the non-severe impairment at subsequent steps, there is no prejudice to the
claimant. See Thomas v. Commissioner, Soc. Sec. Admin., No. SAG–11–3587,
2013 WL 210626, at *2 (D. Md. Jan. 17, 2013) (finding harmless error where
ALJ continued with sequential evaluation process and considered both severe
and non-severe impairments); Kenney v. Astrue, No. CBD–10–1506, 2011 WL
5025014, at *5 (D. Md. Oct. 20, 2011) (declining to remand for failure to classify
an impairment as severe because it would not change the result).
Rivera v. Astrue, No. CBD-12-1095, 2013 WL 450781, at *7 (D. Md. Aug. 22, 2013). In other
words, “[a]s long as the ALJ determines that the claimant has at least one severe impairment
and proceeds to discuss all of the medical evidence, any error regarding failure to list a specific
impairment as severe at step two is harmless.” McClain v. Colvin, No. 1:12CV1374, 2014 WL
2167832, at *4 (M.D.N.C. May 23, 2014) (citations omitted). Therefore, in considering the
alleged error at step two in this case, the Court also considers the ALJ’s analysis at subsequent
steps in the sequential analysis.
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Here, as noted above, the ALJ identified four severe impairments at step two: obesity,
hypertension, depression, and anxiety. (Tr. at 13.) He then categorized Plaintiff’s additional
impairments, degenerative disc disease, chronic back pain, type two diabetes, headaches, and
personality disorder, as “either non-severe or not medically determinable.” (Tr. at 14.)
Regarding Plaintiff’s back impairment, the ALJ further explained as follows:
[Plaintiff’s] medical providers characterized her degenerative disc disease as
mild on multiple occasions. Despite reporting occasional instances of increased
back pain, [Plaintiff] stated that medications generally helped. For example,
when reporting an increased instance of back pain in April 2015, [Plaintiff]
stated that her medication was helping “a lot” with the pain. [Plaintiff]
subsequently reported good relief of back pain on medication. Even when she
complained of increased pain in November 2015, her medical provider declined
to increase her dosage of medication and offered a rehabilitation program that
[Plaintiff] had previously failed to [attend]. Such evidence indicates that
[Plaintiff’s] degenerative disc disease and chronic back pain did not cause
significant work-related functional limitations.
(Tr. at 14) (internal citations omitted). However, the ALJ also noted that Plaintiff “has severe
impairments, and the disability analysis continues.” (Tr. at 13.) In setting the RFC, the ALJ
specifically “considered all of [Plaintiff’s] impairments, severe and non-severe, as required.by
SSR 96-8p.” (Tr. at 17.) As chronicled above regarding Plaintiff’s symptom evaluation, the
ALJ’s decision addressed Plaintiff’s back complaints at length in assessing her RFC, and
explicitly based the limitation to light work with additional, non-exertional limitations in part
on Plaintiff’s reported back tenderness and radiating pain. (Tr. at 17.) Because the ALJ
discussed and considered Plaintiff’s back impairment at subsequent steps of the sequential
analysis, any alleged failure to designate the impairment as a “severe impairment” at step two
did not prejudice Plaintiff and was harmless.
19
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment on the Pleadings [Doc.
#11] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #13] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 6th day of April, 2018.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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