MCCORMICK v. COLVIN

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/8/2018; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 9 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)

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

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1:17CV483

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Donnell McCormick, 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

Benefits (“DIB”).

Plaintiff’s

claim

(Docket Entry 1.)

for

Disability

Insurance

Defendant has filed the

certified administrative record (Docket Entry 5 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 9, 11; see also Docket Entry 10 (Plaintiff’s Memorandum);
Docket Entry 12 (Defendant’s Memorandum)).

For the reasons that

follow, the Court should enter judgment for Defendant.
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging an onset date of July 31,
2012.

(Tr. 163-72.)

Upon denial of that application initially

(Tr. 74-85, 105-13) and on reconsideration (Tr. 86-100, 115-22),
Plaintiff requested a hearing de novo before an Administrative Law

Judge (“ALJ”)

(Tr.

123-24).

Plaintiff,

his

vocational expert (“VE”) attended the hearing.

attorney,

and a

(Tr. 38-69.)

The

ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 20-33.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 10-15, 16-19, 332-34), 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 September 30, 2018.
2.
[Plaintiff] has not engaged in substantial gainful
activity since July 31, 2012, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
post-traumatic
stress
disorder
(PTSD);
psychotic
disorder; cognitive disorder.
. . .
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.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform a full range of work at all
exertional levels, but with the following non-exertional
limitations: he can understand and perform generally
simple, routine repetitive tasks; he can maintain
concentration, persistence and pace to stay on task for
2 hour periods over a typical 8 hour workday in order to
perform such tasks; he requires a low stress setting,
which, in addition to the nature of the work being
performed, is further defined to mean a work setting that
is not production-pace or quota-based work, rather a
2

goal-oriented job primarily dealing with things as
opposed to people, with no more than occasional changes
in the work setting; he is limited to occasional social
interaction with supervisors and co-workers; but he must
not be required to work with the public as part of the
job, such as sales or negotiation, though this would not
preclude incidental or casual contact as it may arise in
a workday.
. . .
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 [he] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from July 31, 2012, through the
date of this decision.
(Tr.

26-33

(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).

Plaintiff has not established entitlement to relief under the
extremely limited review standard.

3

A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead,

the Court “must uphold the factual findings of the ALJ if they are
supported

by

substantial

evidence

and

were

reached

through

application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).

“Substantial

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

Hunter v. Sullivan,

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

“It consists of more than a mere scintilla

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

“If there is evidence to justify a

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

substantial

evidence.”

Hunter,

993

F.2d at

34

(internal

quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

4

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)).1

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

1

regulations

establish

a

The Act “comprises two disability benefits programs. [DIB] . . . 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).

5

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id.

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

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

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

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
is not sufficiently severe to equal or exceed a listed impairment,

2

“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

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

See id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
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 567.4

3

“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.

4

A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).

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 decision was not based on substantial evidence
where

[three]

mental

health

professionals

opined

that

[]

[P]laintiff could not handle the mental demands of work” (Docket
Entry 10 at 4 (bold font omitted));
2) “[t]he ALJ erred, as a matter of law, in evaluating
[Plaintiff’s] mental abilities necessary for performing unskilled
work” (id. at 7 (bold font omitted)); and
3) “[t]he ALJ did not consider nor evaluate [Plaintiff’s]
mental impairments in light of [Social Security Ruling 85-15,
Titles

II

and

XVI:

Capability

to

Do

Other

Work

—

the

Medical-Vocational Rules as a Framework for Evaluating Solely
Nonexertional Impairments, 1985 WL 56857 (1985) (“SSR 85-15”)]”
(id. at 9 (bold font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 12 at 3-17.)
1. Opinion Evidence

In Plaintiff’s first issue on review, he contends that “the
ALJ’s decision was not based on substantial evidence where [three]
mental health professionals[, consultative examiner Dr. William P.
Keeton, consultative examiner Dr. Bert A. Lucas, and Licensed
Professional

Counselor

Jaime

Reyes-Gonzales,]

8

opined

that

[]

[P]laintiff could not handle the mental demands of work.”

(Docket

Entry 10 at 4 (referencing Tr. 234-37, 353-57, 359-60, 382-83)
(bold font omitted).)

Plaintiff asserts that, in further support

of those mental health professionals’ opinions, Dr. John Wagnitz
and Licensed Clinical Social Worker Susan Modlin assigned Plaintiff
Global Assessment of Functioning (“GAF”) scores of 50 and 43,
respectively, which reflected Plaintiff’s “inability to tolerate
the stress and pressures associated with day-to-day work activity.”
(Id. at 5 (citing Tr. 377, 397).)5

According to Plaintiff, the ALJ

“fail[ed] to give proper deference to [] [P]laintiff’s mental
health providers.” (Id. at 7.) In addition, Plaintiff argues that
the ALJ “ignored evidence that although [Plaintiff’s] condition
improved with medication and treatment, his symptoms continued to
persist.”

(Id. at 6 (citing Tr. 410).)

Plaintiff’s contentions

miss the mark.
The ALJ must evaluate medical source opinions using the
factors outlined in 20 C.F.R. § 404.1527(c)(1) through (6), and
expressly indicate and explain the weight he or she affords to such
opinions.
[the

ALJ]

See 20 C.F.R. § 404.1527(c) (“Regardless of its source,
will

evaluate

every

5

medical

opinion

[he

or

she]

The GAF is a numeric scale from 0 to 100 representing a clinician’s judgment
of an individual’s social, occupational and school functioning “on a hypothetical
continuum of mental health-illness.” American Psychiatric Ass’n, Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. text rev. 2000) (“DSM-IV-R”).
A GAF of 41 to 50 reflects “[s]erious symptoms . . . OR any serious impairment
in social, occupational, or school functioning.”
Id. A new edition of the
leading treatise discontinued use of the GAF. See American Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013).

9

receive[s]” and where an opinion does not warrant controlling
weight, [the ALJ must] consider all of the . . . factors [in 20
C.F.R. § 404.1527(c)(1)-(6)] in deciding the weight [to] give to
any medical opinion.” (emphasis added)); Social Security Ruling
96–5p,

Medical

Source

Opinions

on

Issues

Reserved

to

the

Commissioner, 1996 WL 374183, at *5 (July 2, 1996) (“SSR 96–5p”)
(noting that ALJs “must weigh medical source statements . . . [and]
provid[e] appropriate explanations for accepting or rejecting such
opinions”);

Social

Security

Ruling

96–8p,

Assessing

Residual

Functional Capacity in Initial Claims, 1996 WL 374184, at *7 (July
2, 1996) (“SSR 96–8p”) (“The RFC assessment must always consider
and address

medical

source

opinions.

If

the

RFC

assessment

conflicts with an opinion from a medical source, the [ALJ] must
explain why the opinion was not adopted.”); see also Gordon v.
Schweiker,

725

reviewing

court

F.2d

231,

generally

235

(4th

“cannot

Cir.

1984)

determine

if

(holding

that

findings

are

supported by substantial evidence unless the [ALJ] explicitly
indicates the weight given to all of the relevant evidence”).
a. Dr. Keeton
Dr. Keeton, a clinical psychologist, assessed Plaintiff on
August 14 and August 23, 2012, as part of a fitness for duty
evaluation for Plaintiff’s then-employer following an incident
between Plaintiff and his supervisor on July 31, 2012.
48, 234, 235, 241, 243.)

(See Tr.

Following those assessments, Dr. Keeton

10

provided Plaintiff’s employer with a Certification of Health Care
Provider for Employee’s Serious Health Condition under the Family
and Medical Leave Act (“FMLA”) (Tr. 234-37), on which Dr. Keeton
described

Plaintiff’s

PTSD

as

a

“chronic

condition

since

childhood,” but noted that the “acute phase” of the condition began
on July 31, 2012, the date of the incident involving Plaintiff and
his supervisor. (Tr. 235.)

Dr. Keeton opined that the acute phase

of Plaintiff’s PTSD would “probabl[y]” last “[six] months if
[Plaintiff remained] separated from [his work] environment and with
appropriate treatment,” including “[c]ognitive behavioral therapy
. . . weekly for six months.”

(Id.)

Dr. Keeton deemed Plaintiff

“unable” to perform his prior job as a corrections officer (Tr.
236),

because

Plaintiff

could

not

“[t]olerate

stress,

[and]

perceived and real threat[s], without high risk of overreaction,
creating unsafe conditions” (Tr. 235).

Dr. Keeton predicted that

Plaintiff would remain “incapacitated” by his PTSD from August 14,
2012, to August 14, 2014.

(Tr. 236.)

The ALJ discussed Dr. Keeton’s opinions as follows:
The [ALJ] has reviewed and considered [Plaintiff’s] FMLA
forms, which were signed by [Dr. Keeton]. [Dr. Keeton]
. . . projected [Plaintiff’s] PTSD would render him
unable/unfit to work between August 2012 and August
2[014], which is quite incomprehensible!
He noted
[Plaintiff] . . . had difficulty tolerating stress,
perceived and real threats, without high risk of
overreaction, and creating unsafe conditions.
This
report was generated in December 2012 based upon
assessments in August 2012. The [ALJ] assigns greater
weight to [Plaintiff’s] therapy and treatment records,
which document improvement after the initial occurrence
11

in 2012. His mental status exams have generally been
benign with treatment and medications have been
consistent with little change.
(Tr.

31

(internal

citations

omitted).)

Plaintiff

did

not

specifically attack any portion of the ALJ’s analysis of Dr.
Keeton’s opinions (see Docket Entry 10 at 4-7) beyond Plaintiff’s
generalized

assertion

that

the

ALJ

“fail[ed]

to

give

proper

deference to [] [P]laintiff’s mental health providers” (id. at 7).
Plaintiff has failed to demonstrate any error with respect to the
ALJ’s analysis of Dr. Keeton’s opinions.
The

ALJ

implicitly

credited

Dr.

Keeton’s

opinion

that

Plaintiff could no longer perform his corrections officer job (see
Tr. 236), as the ALJ found that Plaintiff lacked the RFC to return
to his past relevant work (see Tr. 32). Moreover, the ALJ provided
an “appropriate explanation[],” SSR 96-5p, 1996 WL 374183, at *5,
for discounting Dr. Keeton’s opinion that Plaintiff could not
tolerate stress and threats without high risk of overreaction (see
Tr.

235),

e.g.,

treatment

notes

documenting

improvement

in

Plaintiff’s condition and benign mental status examinations (see
Tr. 31).

Furthermore, the ALJ did not err by finding Dr. Keeton’s

two-year incapacitation opinion “quite incomprehensible” (Tr. 31),
where Dr. Keeton also opined that the acute phase of Plaintiff’s
PTSD would probably last six months if Plaintiff remained separated
from his work environment and pursued appropriate treatment (see
Tr. 236).

The record reflects that Plaintiff did not return to his

12

job as a corrections officer (see Tr. 45-46, 48), and participated
in therapy on a regular basis following the July 2012 incident with
his supervisor (see Tr. 368-79, 382-83, 392-423).

Thus, the ALJ

reasonably concluded Dr. Keeton’s two-year incapacitation opinion
lacked an adequate foundation.
b. Dr. Lucas
Dr. Lucas conducted a consultative psychological examination
of Plaintiff on March 27, 2013 (see Tr. 353-57), and opined that
Plaintiff could “understand, retain and follow instructions,” and
that,

despite

“some

difficulty

focusing

and

concentrating

at

times,” he remained “able to perform simple, routine[,] repetitive
tasks [(‘SRRTs’)].”

(Tr. 356.)

Dr. Lucas further noted that

Plaintiff possessed “an adequate ability at relating with others
but . . .

remain[ed] overwhelmed with symptoms consistent with

PTSD” and, thus, “would have difficulty tolerating the stress and
pressure associated with day-to-day work activity at th[at] time.”
(Id.)

Dr. Lucas assigned Plaintiff a GAF score of 55 (Tr. 356),

indicating “[m]oderate symptoms . . . OR moderate difficulty in
social, occupational, or school functioning,” American Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32
(4th ed. text rev. 2000) (“DSM-IV-R”) (bold font omitted).
The ALJ provided the following evaluation of Dr. Lucas’s
opinions:
Dr. Lucas’s opinion is granted partial weight, since he
noted [Plaintiff] was able to understand, retain and
13

follow instructions, able to perform SRRTs; and able to
relate to others adequately; though [Dr. Lucas] observed
[Plaintiff] was “overwhelmed with symptoms consistent
with PTSD,” which would cause him to have difficulty
tolerating the stress and pressures associated with dayto-day work “at this time.”
The [ALJ] concurs
[Plaintiff] would have difficulty tolerating the stress
and pressures of day-to-day work, as reflected in the
limitations of his [RFC], yet Dr. Lucas’s opinion is
vague and not longitudinal; he also provided a moderate
GAF estimate, which generally means he did not believe
[Plaintiff] was necessarily disabled because of his PTSD.
(Tr. 31 (internal citation omitted).)

Again, Plaintiff did not

specifically challenge the ALJ’s discussion of Dr. Lucas’s opinions
(see Docket Entry 10 at 4-7), but argued that the ALJ should have
given those opinions “proper deference” (id. at 7).

Plaintiff has

failed to demonstrate that the ALJ erred in his analysis of Dr.
Lucas’s opinions.
The ALJ provided an “appropriate explanation[]” SSR 96-5p,
1996 WL 374183, at *5, for discounting Dr. Lucas’s opinions.

As

the ALJ recognized (see Tr. 31), difficulty tolerating stress does
not equate to an inability to tolerate any stress, particularly in
the setting of a moderate GAF score.

Moreover, the ALJ adequately

accommodated Plaintiff’s compromised ability to tolerate stress by
including restrictions in the RFC to SRRTs and “a low stress
setting, . . . further defined to mean a work setting that is not
production-pace or quota-based work, rather a goal-oriented job
primarily dealing with things as opposed to people, with no more
than occasional changes[,] . . . occasional social interaction with

14

supervisors

and

co-workers,”

and

only

“incidental

or

casual

contact” with the public (Tr. 28-29).
c. Counselor Reyes-Gonzales
Counselor

Reyes-Gonzales

submitted

three

memoranda

which

summarized Plaintiff’s record of treatment with her. (See Tr. 34748, 359-60, 382-83.)6

Counselor Reyes-Gonzales indicated that

Plaintiff had attended a total of 37 counseling sessions from
August 30, 2012, to June 6, 2014, when he transferred his care to
Daymark Recovery Services.

(See Tr. 359, 382-83.)

Counselor

Reyes-Gonzales noted a diagnosis of PTSD, and stated that Plaintiff
did “not seem[] to be capable of handling much more stress due to
his levels of anxiety as a result of his past history of trauma.”
(Tr. 382; see also Tr. 359.)

In all three memoranda, Counselor

Reyes-Gonzales cautioned that “it would be out of our scope of
practice to determine [Plaintiff’s] present results of treatment
and/or

his

fitness

for

duty

at

work,”

because

the

latter

“determination . . . should be made by a [m]edical [d]octor.”

(Tr.

383; see also Tr. 348, 360.)
The ALJ summarized the contents of Counselor Reyes-Gonzales’s
memoranda,
unremarkable
observation

emphasizing
mental
that

her

status

Plaintiff

notation

of

examination
“appeared

to

Plaintiff’s

“largely

findings,”

and

find

pleasure

her
when

attending church activities and [having] contact with his family.”
6

The record does not contain any of Counselor Reyes-Gonzales’s actual treatment
notes.

15

(Tr. 30.)

The ALJ noted that Counselor Reyes-Gonzales “refused to

provide any

statements

and

believed

that

a

fitness

determination should be made by a medical doctor.”

for duty

(Id.)

The ALJ

neither expressly discussed Counselor Reyes-Gonzales’s statement
that Plaintiff did “not seem[] to be capable of handling much more
stress due to his levels of anxiety,” nor assigned a weight to that
statement.
argued only

(See id.)
that

As with Drs. Keeton and Lucas, Plaintiff

the ALJ

should

have

given

Counselor

Reyes-

Gonzales’s statement “proper deference” (Docket Entry 10 at 7) and
did not raise any particular assignment of error concerning the
ALJ’s evaluation of that statement (see id. at 4-7).

For the

reasons that follow, the Court should discern no such error.
As an initial matter, doubt exists as to whether Counselor
Reyes-Gonzales’s

statement

even

amounts

warranting assignment of weight by the ALJ.

to

a

medical

opinion

By using the phrasing

that Plaintiff did “not seem[] to be capable of handling much more
stress” (Tr. 382 (emphasis added); see also Tr. 359), Counselor
Reyes-Gonzales couched her statement as more of an observation than
a definitive opinion.

Moreover, as the ALJ recognized (see Tr.

30), Counselor Reyes-Gonzales offered that statement in the same
document in which she stressed that opinions as to Plaintiff’s
response to treatment and fitness for duty qualified as outside the
scope of her practice and warranted consideration by a medical
doctor (see Tr. 359-60, 382-83).

16

Even if Counselor Reyes-Gonzales’s statement amounted to an
opinion, which the ALJ erred by not weighing, any such error would
remain

harmless

under

the

circumstances

of

this

case.

See

generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No
principle of administrative law or common sense requires us to
remand a [Social Security] case in quest of a perfect opinion [from
an ALJ] unless there is reason to believe that the remand might
lead to a different result.”). An opinion that an individual seems
not to be capable of handling much more stress does not equate to
an unequivocal preclusion of all stress, and the ALJ accommodated
Plaintiff’s decreased ability to handle stress by including the
limitations in the RFC detailed above.
d. GAF Scores
Plaintiff asserts that Dr. Wagnitz and Social Worker Modlin
assigned Plaintiff GAF scores of 50 and 43, respectively (Docket
Entry 10 at 5 (citing Tr. 377, 397)), which “are assigned to
individuals who have serious . . . symptoms or . . . serious . . .
problems with social, occupational or school functioning” (id. at
6). According to Plaintiff, those GAF scores reflected Plaintiff’s
“inability to tolerate the stress and pressures associated with
day-to-day

work

activity”

(id.

at

5),

and

“supported

[and]

corroborated” the opinions of Drs. Keeton and Lucas and Counselor
Reyes-Gonzales (id. at 6).
The ALJ analyzed those GAF scores as follows:

17

[Plaintiff] was also treated at Daymark, where he relayed
a history of a bad experience at his job that occurred in
July 2012. He reported situational and family stressors,
but his mental status examination findings were not
abnormal.
The GAF score of 43 was noted, but it was
assessed at a time when [Plaintiff] was under relatively
intense situational stressors, per self-report, and not
indicative of [Plaintiff’s] functioning throughout the
period in question.
. . .
. . . [I]n July 2013 Dr. Wagnitz diagnosed [Plaintiff]
with psychotic disorder with a GAF of 50 based on
[Plaintiff’s]
self-report
of
audio
and
visual
hallucinations. However, [Plaintiff] testified that his
medications helped alleviate these symptoms.
The GAF
score of 50 is granted partial weight, as it is not
consistent with the psychiatric evaluation findings at
the time of the assessment, or with the longitudinal
record,
establishing
improvement
with
sustained
treatment. More recent therapy notes from Daymark reveal
relatively benign mental status examination findings and
focus primarily on [Plaintiff’s] past work and difficulty
moving forward, despite his stressors.
In addition,
[Plaintiff] displayed no significant PTSD symptoms and
[stated] that his therapy had been helpful.
(Tr.

30-31

(internal

citations

omitted).)

Notably,

although

Plaintiff included nearly the entire discussion quoted above in his
brief in support of his instant motion (see Docket Entry 10 at 6),
he did not specifically assign any error to that evaluation (see
id. at 6-7).

That failure forecloses relief.

See United States v.

Zannino, 895 F.2d at 17 (“[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

18

expect a court to do the work that it elected not to do.”).

In any

event, the Court should find that the ALJ provided “appropriate
explanations,” SSR 96-5p, 1996 WL 374183, at *5, for discounting
the GAF scores.

See 20 C.F.R. § 404.1527(c)(3) & (4) (permitting

ALJs to assign less weight to opinions where not supported by
objective findings or inconsistent with the record as a whole).
e. Evidence of Persistent Symptoms
Plaintiff

contends

although [Plaintiff’s]

that

the

condition

ALJ

“ignored

improved

with

evidence
medication

that
and

treatment, his symptoms continued to persist.” (Docket Entry 10 at
6 (citing Tr. 410).)

In particular, Plaintiff points to a March

10, 2014, evaluation by Dr. Wagnitz in which Plaintiff reported
that he “‘continue[d] to have some nightmares about his jail
experience as well as his history of abuse,” and that, despite
“regularly

taking

the

higher

dose

of

Haldol

.

.

.

for

hallucinations, [he] continue[d] to have visual hallucinations at
times.’”

(Docket Entry 10 at 6 (quoting Tr. 410).)

Plaintiff

further notes that “Dr. Wagnitz described [P]laintiff’s mood as one
of anxiety and secondary depression about his income and having to
divest property.”
he

continued

to

(Id.)

According to Plaintiff, “[t]he fact that

present

with

anxiety,

depression,

and

hallucinations after being away from the workplace for almost two
years is indicative of his inability to tolerate the stress and

19

pressure that employment would have added to his life.”
7.)

(Id. at

Those contentions do not warrant relief.
Plaintiff focuses on one particular psychiatric visit on March

10, 2014, and faults the ALJ for not specifically discussing it.
(Id. at 6 (citing Tr. 410).)

However, the ALJ cited to several of

Plaintiff’s treatment records from September 30, 2013 to October
16, 2014, including the March 10, 2014, treatment note in question,
following a paragraph in which he indicated that “[m]ore recent
therapy notes from Daymark reveal relatively benign mental status
examination findings and focus primarily on [Plaintiff’s] past work
and difficulty moving forward, despite his stressors,” and that
“[Plaintiff] displayed no significant PTSD symptoms and [stated]
that his therapy had been helpful.”
399, 410, 414).)

(Tr. 31 (citing Tr. 387, 388,

Although the ALJ summarized those records rather

than listing all of Plaintiff’s subjective complaints and the
objective findings in each record, the ALJ need not discuss every
finding

in

each

piece

of

evidence

in

the

record

in

issuing

decisions on disability, see, e.g., Black v. Apfel, 143 F.3d 383,
386 (8th Cir. 1998); Diaz v. Chater, 55 F.3d 300, 308 (7th Cir.
1995).
Finally, as the Commissioner argues (see Docket Entry 12 at
8), the ALJ clearly did recognize that Plaintiff still experienced
mental symptoms despite improvement with medication and therapy, as

20

the

ALJ

included

significant

mental

limitations

in

the

RFC,

including restrictions to SRRTs and low stress work (see Tr. 28).
In sum, Plaintiff’s first assignment of error fails as a
matter of law.
2. Mental RFC
Next, Plaintiff asserts that “[t]he ALJ erred, as a matter of
law, in evaluating [Plaintiff’s] mental abilities necessary for
performing unskilled work.”
omitted).)

In

(Docket Entry 10 at 7 (bold font

particular,

Plaintiff

maintains

that

“‘[a]

substantial loss of ability to meet any of the basic mental demands
[of unskilled work] would severely limit the potential occupational
base and thus would justify a finding of inability to perform other
work even for persons with favorable age, education and work
experience.’”
(“POMS”)

(Id.

DI

(citing

Program

25020.010A.3.b.

Operations

Manual

System

(Mental

Limitations),

https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010)

(last

accessed January 26, 2018); see also id. at 8 (citing Social
Security Ruling 96-9p, Policy Interpretation Ruling Titles II and
XVI: Determining Capability to Do Other Work – Implications of a
Residual

Functional

Capacity

for

Less

Than

a

Full

Range

of

Sedentary Work, 1996 WL 374185, at *9 (July 2, 1996) (“SSR 96-9p”)
(“A substantial loss of ability to meet any one of several basic
work-related

activities

on

a

sustained

basis

.

.

.

will

substantially erode the unskilled sedentary occupational base and

21

would

justify

a

finding

of

disability”).)

In

that

regard,

Plaintiff contends that the ALJ’s finding that Plaintiff “was
limited to only occasional changes in the work setting and only
occasional interaction with supervisors and co-workers” amounts to
“a substantial loss of ability to meet the mental demands of work,”
and that “a finding of disability should have resulted.”

(Id. at

8 (citing Tr. 28-29, and Social Security Ruling 83-10, Titles II
and XVI: Determining Capability to Do Other Work – the MedicalVocational Rules of Appendix 2, 1983 WL 31251, at *5 (1983)
(defining “occasional” as occurring from very little up to onethird (or less than two hours) of a work day)).)

Plaintiff has not

established entitlement to relief.
As an initial matter, by its very terms, SSR 96-9p does not
apply to Plaintiff’s case.

That Ruling applies to claimants with

“[a]n RFC for less than a full range of sedentary work,” which
“reflects very serious limitations . . . and is expected to be
relatively rare.”

SSR 96-9p, 1996 WL 374185, at *1.

By contrast,

the ALJ did not assign Plaintiff any exertional limitations in the
RFC, thus finding him capable of performing work at all exertional
levels.

(See Tr. 28-29.)

Moreover, the POMS section relied on by Plaintiff does not
mandate a finding of disability, because limitations to occasional
workplace changes and occasional interaction with supervisors and
co-workers do not constitute a “substantial loss” of ability to

22

perform those mental work demands, as shown by the POMS section’s
own definition of “[s]ubstantial loss”:
“Substantial loss” cannot be precisely defined. It does
not necessarily relate to any particular adjective,
number, or percentage. In practical terms, an individual
has a substantial loss of ability to perform a basic
mental activity when he or she cannot perform the
particular activity in regular, competitive employment
but, at best, could do so only in a sheltered work
setting where special considerations and attention are
provided.
POMS DI 25020.010A.3.b (emphasis added); see also Wright v. Colvin,
No. 1:15-CV-00415(MAT), 2017 WL 6616378, at *4 (W.D.N.Y. Dec. 27,
2017) (unpublished) (dismissing the plaintiff’s contention that
occasional ability to make work-related decisions amounted to
“substantial loss” of such ability under POMS DI 25020.010A.3.b.,
because that POMS section “expressly notes that ‘[s]ubstantial loss
cannot be precisely defined . . . and . . . does not necessarily
relate to any particular adjective, number, or percentage[]’ [and
t]hus, the adjective ‘occasional’ does not lead to an automatic
finding of disability”).

The ALJ clearly did not find in the RFC

that Plaintiff could only handle workplace changes and interact
with supervisors and coworkers “in a sheltered work setting where
special considerations and attention are provided,” id.

(See Tr.

28-29.)
Moreover,

the ALJ

asked

the

VE whether

jobs

existed

in

significant numbers in the national economy that Plaintiff could
perform if limited to, inter alia, occasional workplace changes and

23

occasional interaction with supervisors and co-workers, and the VE
responded that Plaintiff could perform the jobs of floor worker,
auto detailer, and general laborer.

(See Tr. 64-66.)

The ALJ

adopted the VE’s testimony, and found, at step five of the SEP,
that Plaintiff could perform those three jobs notwithstanding
limitations to occasional workplace changes and interaction with
supervisors and co-workers. (See Tr. 33.) The VE’s testimony thus
undermines Plaintiff’s contention that limitations to occasional
changes and occasional interaction caused a “substantial loss” in
her ability to perform those mental demands and therefore disabled
her.
*4

See Rogers v. Colvin, No. 3:15-5938-DWC, 2016 WL 3344573, at

(W.D.

Wash.

June

15,

2016)

plaintiff’s

argument

that

ability

perform

mental

to

she

(unpublished)

suffered

demands

of

(rejecting

“substantial
work

under

the

loss”

in

POMS

DI

25020.010A.3.b., where VE testified that RFC limiting Plaintiff’s
contact with males and requiring supportive supervisor caused 30%
erosion of occupational base, “thereby leaving . . . 70% of jobs
existing in the national economy available to [the p]laintiff”);
McPeters v. Astrue, No. CIV.A.1:07-CV-0112-C, 2008 WL 4414542, at
*11 (N.D. Tex. Sept. 30, 2008) (unpublished) (holding that RFC with
restrictions to “one- and two-step work instructions and . . . only
incidental contact with the public and no collaboration with
co-workers”

did

“not

encompass

findings

indicating

that

[the

p]laintiff ha[d] experienced a substantial loss in the ability to

24

perform the basic mental demands of unskilled work” where VE
testified

that

individual

with

those

limitations

could

still

perform jobs in the national economy).
In short, Plaintiff’s second issue on review does not entitle
him to relief.
3. SSR 85-15
Lastly, Plaintiff asserts that “[t]he ALJ did not consider nor
evaluate [Plaintiff’s] mental impairments in light of SSR 85-15,”
which emphasizes that “‘[t]he reaction to the demands of work
(stress)

is

characterized

highly
by

circumstances.’”

individualized,

adverse
(Docket

and

responses
Entry

10

at

to
9

(quoting SSR 85-15, 1985 WL 56857, at *6).)

mental

illness

seemingly
(bold

is

trivial

font omitted)

More specifically,

Plaintiff maintains that the RFC’s limitation to occasional “social
interaction” with supervisors and co-workers “d[id] not go far
enough nor d[id] it reflect the difficulty that [P]laintiff would
have with tolerating supervision or tolerating having his work
judged, evaluated and critiqued.”

(Id. at 10 (emphasis added).)

In that regard, Plaintiff contends that “the RFC should have
addressed

his

appropriately

ability
to

to

criticism

accept
from

instructions

supervisors.”

and
(Id.)

respond
These

allegations fail as a matter of law.
Plaintiff’s argument relies on an overly narrow interpretation
of the word “social” in the RFC.

25

(Id.)

According to Plaintiff,

the

ALJ’s

limitation

to

“occasional

social

interaction

with

supervisors and co-workers” (Tr. 28 (emphasis added)) did not
address

work-related

interactions

Plaintiff

would

have

with

supervisors, such as receiving instructions or criticism from
supervisors (Docket Entry 10 at 10).

However, the ALJ’s reliance

on the state agency psychological consultants’ opinions belies
Plaintiff’s position.

The consultants each opined that, because

Plaintiff had “moderate[] limit[ation]” in, inter alia, “[t]he
ability

to

accept

instructions

and

respond

appropriately

to

criticism from supervisors,” he required a job that did not involve
much social interaction.

(Tr. 81, 96; see also Tr. 93 (indicating

that Plaintiff needed “a position with reduced social demands”).)
The ALJ assigned “great weight” to the consultants’ opinions,
noting that “both [consultants] opined [Plaintiff] could perform
[SRRTs]

in

a

low

stress

work

which

the

contact/interaction,
[Plaintiff’s] [RFC].”

setting
[ALJ]

with
has

limited

provided

(Tr. 31 (emphasis added).)

social
for

in

Thus, the ALJ

accounted for Plaintiff’s moderate limitation in ability to accept
instructions and respond appropriately to criticism, as the state
agency consultants did, by limiting Plaintiff to occasional social
interaction with supervisors and co-workers.
Accordingly, Plaintiff’s third assignment of error does not
warrant reversal or remand.

26

III.

CONCLUSION

Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment

on

the

Pleadings

(Docket

Entry

9)

be

denied,

that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 11)
be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 8, 2018

27