ARNOLD v. BERRYHILL
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/13/2018, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that this action be dismissed with prejudice. (Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TONY ARNOLD,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
)
)
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)
)
)
)
)
)
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)
1:17CV488
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Tony Arnold, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,
denying Plaintiff’s
Income (“SSI”).
claim
(Docket Entry 2.)
for
Supplemental
Security
Defendant has filed the
certified administrative record (Docket Entry 9 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 11, 13; see also Docket Entry 12 (Plaintiff’s Memorandum);
Docket
Entry
14
(Defendant’s
(Plaintiff’s Reply)).
Memorandum);
Docket
Entry
15
For the reasons that follow, the Court
should enter judgment for Defendant.
I.
Plaintiff
applied
PROCEDURAL HISTORY
for
SSI.
(Tr.
205-12.)1
Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”) (Tr. 99-103).
expert
(“VE”)
Plaintiff, his attorney, and a vocational
attended
the
hearing.
(Tr.
27-61.)
The
ALJ
subsequently ruled that Plaintiff did not qualify as disabled under
the Act.
(Tr. 10-22.)
The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-6, 9, 267), thereby making
the ALJ’s ruling the Commissioner’s final decision for purposes of
judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since August 4, 2016, the application date.
. . .
2.
[Plaintiff] has the following severe impairments:
gout, diabetes mellitus, hypertension, obesity[,] []
cognitive disorder and alcohol dependence.
. . .
1
Plaintiff applied for Disability Insurance Benefits (“DIB”) on March 20, 2015,
alleging an onset date of June 1, 2007. (Tr. 187-93.) The state agency denied
Plaintiff’s DIB claim at the initial and reconsideration levels of administrative
review (Tr. 62-69, 70-78, 83-91, 95-98), and Plaintiff requested a hearing before
an ALJ (Tr. 99-103). After Plaintiff filed an application for SSI on August 4,
2016 (Tr. 205-12), the Social Security Administration escalated his SSI claim,
bypassing decisions at the initial and reconsideration stages of review, and
placing Plaintiff’s SSI claim before the ALJ with his concurrent DIB claim. (See
Tr. 29.) On the day of the ALJ’s hearing, Plaintiff withdrew his DIB claim (Tr.
186) due to a lack of medical evidence between his onset date and his date last
insured of December 31, 2010 (see Tr. 30-33).
Thus, the ALJ’s decision
adjudicates only Plaintiff’s SSI claim. (Tr. 10-22.)
2
3.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except stooping,
crouching, kneeling and crawling occasionally, and
restricted to performing jobs that involve simple,
routine and repetitive tasks.
. . .
5.
[Plaintiff] is unable to perform any past relevant
work.
. . .
9.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [he] can perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [] Act, since August 4, 2016, the date the
application was filed.
(Tr.
15-22
(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, 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
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.
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.
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 567.5
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.
Assignment of Error
In Plaintiff’s sole issue on review, he contends that “[t]he
ALJ failed to incorporate corresponding non-exertional limitations
on
the
ability
[Plaintiff]
was
to
stay
on
moderately
task
where
impaired
he
in
first
the
[concentration, persistence, or pace (‘CPP’)].”
at 12 (bold font and underlining omitted).)
found
maintenance
that
of
(Docket Entry 12
More specifically,
Plaintiff maintains that the United States Court of Appeals for the
Fourth Circuit in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015),
“held that an ALJ does not account for a claimant’s limitations in
CPP by restricting the RFC or the hypothetical question to the [VE]
to [simple, routine, and repetitive tasks (‘SRRTs’)]” (id. (citing
Mascio, 780 F.3d at 638)), 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. (quoting Mascio, 780 F.3d at 638)).
According to
Plaintiff, the ALJ failed to perform an explicit function-byfunction analysis of Plaintiff’s ability to perform mental workrelated activities in violation of Social Security Ruling 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing [RFC] in
Initial Claims, 1996 WL 374184, at *1 (July 2, 1996) (“SSR 96-8p”)
(id. at 12-14), and “failed to provide any explanation as to
5
(...continued)
review does not proceed to the next step.”).
8
[Plaintiff’s] capability to stay on task in light of his moderate
difficulties in [CPP], . . . requir[ing] remand” (id. at 15
(citing Mascio, 780 F.3d at 638)).
Plaintiff’s contentions miss
the mark.
The Fourth Circuit has indeed held that “the ability to
perform simple tasks differs from the ability to stay on task” and
that “[o]nly the latter limitation would account for a claimant’s
limitation in [CPP].”
Mascio, 780 F.3d at 638.
However, that
court also allowed for the possibility that an ALJ could adequately
explain why moderate limitation in CPP would not result in any
limitation in the RFC.
Id.
A neighboring district court had
occasion to discuss this very point:
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); see also Hutton v.
Colvin, No. 2:14-CV-63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16,
2015)
(unpublished)
(finding
reliance
on
Mascio
“misplaced,”
because ALJ “gave abundant explanation” for why unskilled work
9
adequately accounted for claimant’s moderate limitation in CPP, by
highlighting
physicians’
the
claimant’s
opinions).
daily
Here,
the
activities
ALJ’s
and
decision
treating
provides
a
sufficient explanation as to why a restriction to SRRTs (see Tr.
17) sufficiently accounted for Plaintiff’s moderate deficit in CPP.
First, the ALJ specifically found at step three that, although
Plaintiff “ha[d] moderate difficulties” in CPP “when alcohol is a
factor[,]”
attention
he
to
could
nevertheless
perform
[SRRTs].”
“maintain
(Tr.
16
concentration
(emphasis
and
added).)
Plaintiff asserts that “the ALJ’s statement that [Plaintiff] had
moderate problems in maintaining [CPP] when alcohol is a factor
begs the question of how often alcohol is a factor in limiting his
mental functioning.”
(Docket Entry 12 at 15.)
However, Plaintiff
improperly interprets the ALJ’s statement in isolation.
The only
evidence in the record regarding Plaintiff’s alcohol consumption
during the relevant period in this case from August 4, 2016 (the
SSI application date), to December 21, 2016 (the date of the ALJ’s
decision), consists of Plaintiff’s testimony that, because of his
uncontrolled hypertension, he reduced his consumption to “one or
two beers” and “might go a month without drinking at all” (Tr. 40),
and Plaintiff’s statement to consultative psychological examiner
Dr. Shiahna Dye that “he ha[d] been sober from alcohol” (Tr. 416).6
Thus, when read in context, the ALJ’s step three CPP finding
6
Dr. Dye diagnosed Plaintiff with “Alcohol Use Disorder, Moderate . . . in
sustained remission.” (Tr. 416 (emphasis added).)
10
conveys that, although when alcohol consumption “[wa]s a factor”
Plaintiff experienced moderate deficit in CPP, during the relevant
period, given the dearth of evidence that alcohol remained an
adverse factor for Plaintiff, he remained capable of maintaining
concentration sufficiently enough to perform SRRTs.
(Tr. 16.)
Plaintiff additionally contends that the ALJ’s statement that
“the
record
show[s]
[Plaintiff]
[wa]s
able
to
maintain
concentration and attention to perform [SRRTs]” (Tr. 16) “raises
the question whether the ALJ meant that [Plaintiff] is able to
maintain concentration and attention to perform SRRTs all of the
time, or only some of the time.”
contention lacks merit.
(Docket Entry 12 at 15.)
That
Following the step three finding, the ALJ
included a limitation to SRRTs in Plaintiff’s RFC (see Tr. 17),
which reflects Plaintiff’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” Hines, 453 F.3d at 562
(underlining added).
Plaintiff also argues that “the ALJ’s statement that ‘the
record’ shows that [Plaintiff] could perform SRRTs is opaque; it is
not an explanation.”
(Docket Entry 12 at 15 (citing Yauch v.
Astrue, No. 09-1286-SAC, 2010 WL 3168208, at *4 (D. Kan. Aug. 10,
2010)
(unpublished)
(“Although
the
ALJ
makes
the
conclusory
statement that the medical record shows that [the] plaintiff’s
11
impairments would not have remained at the level of severity if he
stopped using illegal drugs, . . . the ALJ does not cite to any
medical report, opinion or projection that would support this
conclusory assertion by the ALJ.” (internal citation omitted)).)
Here, in contrast to Yauch, the Court can ascertain the portions of
the
record
that
support
the
ALJ’s
conclusion
that
Plaintiff
remained able to perform SRRTs – i.e., the ALJ accorded “great
weight”
to
Dr.
Dye’s
opinions
that
Plaintiff
possessed
the
intellectual capacity to perform SRRTs and displayed adequate CPP.
(Tr. 20; see also Tr. 416.)
Second, the ALJ discussed Plaintiff’s testimony regarding his
mental symptoms (see Tr. 19-20), but found his statements “not
entirely consistent with the medical evidence and other evidence in
the record for the reasons explained in th[e] decision” (Tr. 19;
see also Tr. 20 (reflecting ALJ’s conclusion that Plaintiff’s
“allegation that his impairments, either singly or in combination,
produce symptoms and limitations of sufficient severity to prevent
all sustained work activity is inconsistent with the medical and
other evidence of record”)).7
Although Plaintiff challenges the
ALJ’s evaluation of Plaintiff’s subjective symptom reporting as
conclusory (see Docket Entry 12 at 16), the ALJ sufficiently
explained his conclusion that Plaintiff’s statements qualified as
7
Notably, beyond stating that he suffered “brain damage” and “memory loss”
following a motorcycle accident in 1983 (see Tr. 37, 43), Plaintiff did not
testify to experiencing any difficulties concentrating or maintaining pace during
the hearing (see Tr. 34-54).
12
“not entirely consistent with the medical evidence and other
evidence” (Tr. 19).
In that regard, the ALJ noted the following
inconsistencies in Plaintiff’s testimony:
•
Although Plaintiff stated he “was homeless and
living at the Durham Rescue Mission,” he also
testified that he “currently live[d] with his
mother and aunt” (Tr. 19);
•
Plaintiff “alleged memory problems and received
disability from 1985 until 2002[,]” but he
“testified that he returned to work in 1998, selfemployed, doing floor installation until June 2007,
when he lost his driver’s license due to DWI” (Tr.
20); and
•
Despite Plaintiff’s claims of ongoing memory loss,
Dr. Dye noted that Plaintiff’s “recent [and] remote
memory were intact” (Id.).
Third, as discussed above, the ALJ gave “great weight” (Tr.
20) to Dr. Dye’s opinions that Plaintiff possessed the intellectual
capacity to perform SRRTs and displayed adequate CPP (Tr. 416).
Plaintiff raises several issues with respect to the ALJ’s reliance
on Dr. Dye’s evaluation (see Docket Entry 12 at 16-18), none of
which carry the day.
First,
Plaintiff
contends
that
Dr.
Dye
“performed
the
examination with limited information[,]” because she “did not
review [] records [beyond those ‘in connection with alcohol use’]
regarding [Plaintiff’s] psychiatric treatment, or [Dr. Dye] did not
have access to them.”
fails
to
identify
(Id. (citing Tr. 414).)
which
records
of
However, Plaintiff
Plaintiff’s
“psychiatric
treatment” Dr. Dye should have reviewed and, if she had done so,
13
how such a review would have changed her opinions favorably to
Plaintiff.
(See id.)
Next, Plaintiff faults the ALJ for stating that Dr. Dye found
“no limitations [in] carry[ing] out, understanding, or remembering
[SRRTs]” (Tr. 20 (emphasis added)), as Dr. Dye actually found no
restriction in Plaintiff’s ability to “[u]nderstand and remember
simple instructions[,]” “[c]arry out simple instructions[,]” “make
judgments on simple work-related decisions[,]” and “[u]nderstand
and remember complex instructions” (Tr. 418).
(Docket Entry 12 at
17.) According to Plaintiff, “Dr. Dye never stated that there were
no limitations in performing ‘[SRRTs]’ on a regular and continuing
basis (i.e., while remaining on-task).”
ALJ
in
equating
simple
instructions
(Id.)
and
Any error by the
simple,
work-related
decisions to SRRTs remains harmless where Dr. Dye ultimately
concluded that Plaintiff retained the intellectual capacity to
perform SRRTs (see Tr. 416), the ALJ accorded “great weight” to
that opinion (Tr. 20), and the ALJ incorporated a limitation to
SRRTs in Plaintiff’s RFC (see Tr. 17).
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”).
Plaintiff
further
maintains
that
“[t]here
is
really
no
explanation reconciling” the ALJ’s step three finding of moderate
14
deficit in CPP (see Tr. 16) and his adoption of Dr. Dye’s opinion
that Plaintiff displayed “adequate [CPP]” (Tr. 20; see also Tr.
416).
(Docket Entry 12 at 17 (citing Claiborne v. Commissioner,
Soc. Sec. Admin., No. SAG-14-1918, 2015 WL 2062184, at *4 (D. Md.
May 1, 2015) (unpublished) (“[W]hat is lacking in the instant case
is any explanation of why the ALJ assessed a moderate limitation in
[CPP].
If . . . the ALJ made the finding based solely upon [the
claimant’s] subjective allegations of issues with concentration,
which the ALJ in fact did not credit, then the ALJ misapplied the
[special technique for the evaluation of mental impairments under
20 C.F.R. § 404.1520a].
to
represent
reasoned
The conclusions at step two are supposed
consideration
of
all
of
the
pertinent
evidence, and are not simply an opportunity to give the claimant
the benefit of the doubt at one step while taking it away at the
next step.”)).) Although the court in Claiborne disapproved of the
ALJ’s apparent decision to “give the claimant the benefit of the
doubt” in finding a moderate limitation in CPP, Claiborne, 2015 WL
2062184, at *4, the primary problem lay in the fact the ALJ based
the
moderate
limitation
in
CPP
on
the
claimant’s
allegations, which the ALJ later discredited.
subjective
Here, however, no
indication exists that the ALJ found a moderate limitation in CPP
based on Plaintiff’s subjective allegations, as the record lacks
any statements from Plaintiff that he suffered from concentrational
deficits.
Rather, the ALJ based the moderate limitation on the
15
impact of alcohol, when alcohol use “is a factor[,]” on Plaintiff’s
ability to maintain CPP.
(Tr. 16.)
Lastly, Plaintiff challenges the ALJ’s statement that he
accorded “great weight” to Dr. Dye’s opinions “because they [we]re
consistent with the record as a whole.”
18.)
(Docket Entry 12 at 17-
According to Plaintiff, the ALJ’s statement in question “is
not an explanation and does not permit adequate review.” (Id. at 18
(citing Griffin v. Colvin, No. 7:12-CV-259-D, 2014 WL 715429, at *6
(E.D.N.C. Feb. 24, 2014) (unpublished) (remanding case, in part,
because “[t]he ALJ identified no objective medical findings or
other substantial evidence of record that [we]re consistent with
the [state agency psychological] consultants’ mental assessments”
to which the ALJ accorded “significant weight”) (internal quotation
marks omitted)).)
Although the ALJ’s stated reason for according great weight to
Dr. Dye’s
opinions
lacks
specificity,
it does
not
amount
prejudicial error under the circumstances of this case.
to
See
generally Fisher, 869 F.2d at 1057 (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”).
Dr. Dye’s
consultative evaluation constitutes the only objective medical
evidence in the record during the relevant period in this case from
August 4, 2016, to December 31, 2016.
16
Moreover, Plaintiff did not
testify
to
any
concentrational
(See Tr. 34-54.)
difficulties
at
the
hearing.
Thus, the ALJ’s observation that Dr. Dye’s
opinions harmonized with the record remains an accurate statement.8
Plaintiff further contends that “[t]he ALJ also d[id] not
reconcile
ability
Dr. Dye’s
appears
observation
to
be
that
within
the
intelligence.’” (Id. (quoting Tr. 416).)
[Plaintiff’s]
low
‘cognitive
average
range
of
However, Plaintiff makes
no attempt to explain how Dr. Dye’s opinion that Plaintiff’s
“cognitive ability appears to be within the low average range of
intelligence”
(Tr.
416)
conflicts
in
any
way
with
Dr.
Dye’s
remaining opinions regarding Plaintiff’s ability to perform SRRTs
and maintain adequate CPP.
(See Docket Entry 12 at 18.)
Under these circumstances, the ALJ adequately explained why a
restriction to SRRTs (see Tr. 17) sufficiently accounted for
Plaintiff’s moderate limitation in CPP. See Sizemore v. Berryhill,
878 F.3d 72, 81 (4th Cir. 2017) (rejecting the plaintiff’s argument
under Mascio where ALJ relied on opinions of consultative examiner
and
state
agency
psychologist
that,
notwithstanding
moderate
deficit in CPP, the plaintiff could sustain attention sufficiently
to perform SRRTs).
8
The ALJ also discussed the only other mental health treatment in the record,
which significantly predated the relevant period: “Plaintiff was admitted to
Alcohol and Drug Abuse Treatment Center (ADATC) from September 7-24, 2013. . . .
At discharge, [Plaintiff] exhibited a euthymic affect with linear and logical
thought processes.
[Plaintiff] was diagnosed with alcohol dependence and
cognitive disorder with a Global Assessment for Functioning (GAF) of 70.” (Tr.
18.) That evidence also harmonized with Dr. Dye’s opinions.
17
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
11)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 13)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 13, 2018
18
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