JONES V. BERRYHILL
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 8/13/2018; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) 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
ANGELA LEE JONES,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
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1:17CV703
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Angela Lee Jones, 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 8 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 10, 12; see also Docket Entry 11 (Plaintiff’s Memorandum);
Docket Entry 13 (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 October
15, 2012. (Tr. 230-31.) Upon denial of that application initially
(Tr. 131-44, 160-63) and on reconsideration (Tr. 145-59, 167-70),
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”) (Tr. 171-72).1
Plaintiff, her attorney, and a
vocational expert (“VE”) attended the hearing.
(Tr. 43-84.)
The
ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 22-37.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-7, 229, 318-21), 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] meets the insured status requirements of
the [] Act through December 31, 2019.
2.
[Plaintiff] has not engaged in substantial gainful
activity since November 12, 2013, the amended alleged
onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
multiple sclerosis, migraine headaches, depression,
anxiety, and 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 light work . . . in that she can lift
and/or carry 20 pounds occasionally and 10 pounds
frequently; sit, stand, and/or walk 6 hours in an 8-hour
workday; and push and/or pull as much as she can lift and
1
At the outset of the hearing before the ALJ, Plaintiff amended her onset date
to November 12, 2013. (See Tr. 25, 47, 256.)
2
carry. There are additional limitations. [Plaintiff] can
frequently use hand controls, handle, finger, and feel
with the left upper extremity. She can frequently climb
ramps and stairs, occasionally climb ladders, ropes, and
scaffolds, and occasionally balance. [Plaintiff] can only
be exposed to unprotected heights and moving mechanical
parts frequently, and she should not operate a motor
vehicle at night. She is limited to performing simple,
routine, and repetitive tasks but not at a production
rate pace (e.g., assembly line work), and to simple workrelated decisions.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as a cashier (II). This work does not require the
performance of work-related activities precluded by
[Plaintiff’s] residual functional capacity.
. . .
In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
capacity, there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] also can
perform.
7.
Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from November 12, 2013, through
the date of this decision.
(Tr.
27-36
(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.”
3
Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
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.
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
4
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
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
2
“To
regularize
the
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
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
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).
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
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,
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
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.
7
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
B.
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1)
“new
and
material evidence
exists
that
has
not been
incorporated into the record because the [Appeals Council] used new
law that was not in place at the time of the hearing or submission
of the [Plaintiff’s Appeals Council] brief and evidence” (Docket
Entry 11 at 4 (standard capitalization applied and bold font and
single-spacing omitted));
2)
“the
ALJ
erred
by
equating
moderate
difficulties
in
concentration, persistence [or] pace [‘CPP’] with a functional
limitation to unskilled work” (id. at 12 (standard capitalization
applied and bold font and single-spacing omitted)); and
3) “the ALJ’s RFC is not supported by substantial evidence”
(id. at 13 (standard capitalization applied and bold font and
single-spacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 13 at 10-24.)
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,
review does not proceed to the next step.”).
8
1. New and Material Evidence
In Plaintiff’s opening assignment of error, she contends that
“new and material evidence exists that has not been incorporated
into the record because the [Appeals Council] used [a new version
of 20 C.F.R. § 404.970] that was not in place at the time of the
hearing [before the ALJ] or submission of the [Plaintiff’s Appeals
Council] brief and evidence.”
(Docket Entry 11 at 4 (standard
capitalization applied and bold font and single-spacing omitted).)
In particular, Plaintiff asserts that she submitted to the Appeals
Council “an outpatient neuropsychological consultation report from
Dr. Myriam Sollman, Ph.D. [“Sollman Report”] . . . conducted on
April 7, 2016, [which] precedes the date of the ALJ[’s] denial and
is not duplicative.”
(Id. at 8 (citing Docket Entry 11-1).)
Moreover, Plaintiff contends that the Sollman Report qualifies as
material, because a reasonable probability exists that the Report
would have changed the outcome of the case “to at least a partially
favorable decision with an onset date near the [Report] date.”
(Id. at 11.)
According to Plaintiff, had the Appeals Council
applied the prior version of Section 404.970, the Appeals Council
would have incorporated the Sollman Report into the record.
Plaintiff
requests
a
“remand[]
for
further
(Id.)
administrative
proceedings under either [s]entence [f]our or [s]entence [s]ix” of
42 U.S.C. § 405(g).
(Id. at 12.)
short.
9
Plaintiff’s contentions fall
The prior version of Section 404.970, in effect until January
16, 2017, provided as follows:
If new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only where
it relates to the period on or before the date of the
[ALJ] hearing decision.
The Appeals Council shall
evaluate the entire record including the new and material
evidence submitted if it relates to the period on or
before the date of the [ALJ] hearing decision. It will
then review the case if it finds that the [ALJ’s] action,
findings, or conclusion is contrary to the weight of the
evidence currently of record.
20 C.F.R. § 404.970(b) (1987) (emphasis added).
The new version,
effective January 17, 2017, with compliance by claimants required
by May 1, 2017, see Ensuring Program Uniformity at the Hearing and
Appeals Council Levels of the Administrative Review Process, 81
Fed. Reg.
90987-01,
90987,
2016
WL
7242991
(Dec.
16,
2016),
provides as follows:
(a) The Appeals Council will review a case if—
. . .
(5) Subject to paragraph (b) of this section, the Appeals
Council receives additional evidence that is new,
material, and relates to the period on or before the date
of the hearing decision, and there is a reasonable
probability that the additional evidence would change the
outcome of the decision.
(b) The Appeals Council will only consider additional
evidence under paragraph (a)(5) of this section if you
show good cause for not informing us about or submitting
the evidence as described in § 404.935 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or
linguistic limitation(s) that prevented you from
informing us about or submitting the evidence earlier; or
10
(3) Some other unusual, unexpected, or unavoidable
circumstance beyond your control prevented you from
informing us about or submitting the evidence earlier.
20 C.F.R. § 404.970 (2017).
Thus, the new regulation adds two
requirements to a claimant’s burden to have new evidence considered
for the first time at the Appeals Council level of review: (1) a
requirement that a claimant demonstrate good cause for the failure
to submit the evidence in question at least five days prior to the
ALJ’s
decision
requirement
to
pursuant
show
a
to
20
C.F.R.
reasonable
§
404.953;
probability
of
and
a
(2)
a
different
outcome.6
Plaintiff first asks the Court to declare “that the Appeals
Council applied the wrong version of [Section 404.970], and failed
to appropriately incorporate [into the administrative record] the
[Sollman Report]” and, as a result, to remand the case under
sentence four of 42 U.S.C. § 405(g).
(Docket Entry 11 at 11-12.)
As an initial matter, doubt exists whether this Court possesses the
authority to scrutinize the Appeals Council’s decision not to
incorporate the Sollman Report into the administrative record
and/or to deny Plaintiff’s request for review.
Section 405(g)
grants this Court the “power to enter, upon the pleadings and
6
Long-standing Fourth Circuit law defined “material” as a reasonable possibility
the new evidence would have changed the outcome of the case.
See Meyer v.
Astrue, 662 F.3d 700, 704 (4th Cir. 2011); Wilkins v. Secretary, Dep’t of Health
& Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).
Thus, the new version of
Section 404.970 increases a claimant’s burden from showing a reasonable
possibility to a reasonable probability, and makes the obligation to show a
reasonable probability of a different outcome an additional requirement to
showing materiality.
11
transcript of the record, a judgment affirming, modifying, or
reversing the [final] decision of the Commissioner [], with or
without remanding the cause for a rehearing,” 42 U.S.C. § 405(g).
However, “when the [Appeals] Council has refused to review the
case[,] . . . the decision reviewed in the [federal district]
courts is the decision of the [ALJ],” Eads v. Secretary of Health
& Human Servs., 983 F.2d 815, 817 (7th Cir. 1993) (emphasis added).
Thus, “[n]o statutory authority (the source of the district court’s
review) authorizes the court to review the Appeals Council[’s]
decision to deny review,” Matthews v. Apfel, 239 F.3d 589, 593, 594
(3d Cir. 2001).
Even if this Court possessed the statutory power to review the
Appeals Council’s decisions to not incorporate the Sollman Report
and to deny review, no basis exists for a sentence four remand.
On
May 25, 2017, over four months after the new regulation’s effective
date and 24 days after the date on which the Commissioner required
claimants to comply with the new regulation, the Appeals Council
issued its decision declining to incorporate the Sollman Report and
denying Plaintiff’s request for review.
(See Tr. 1-7.)
Plaintiff
does not cite, nor can the undersigned find, any authority for
proposition that the Appeals Council must apply a previous version
of a regulation at the time it renders its decision.
Nor can Plaintiff demonstrate any unfairness arising out of
the Appeals Council’s application of the new regulation.
12
On March
24, 2017, the Appeals Council provided Plaintiff with advanced
notice of the regulatory change and an opportunity to submit
additional
evidence
and
argument
directed
at
demonstrating
a
reasonable probability of a different outcome (see Tr. 9-10), an
opportunity which Plaintiff did not take.
Moreover, in that
notice, the Appeals Council expressly recognized that Plaintiff
could not retroactively comply with the new requirement under 20
C.F.R. § 404.953 that, absent good cause, claimants must submit
evidence at least five days before the ALJ’s hearing, and waived
the requirement that Plaintiff demonstrate good cause.
(See Tr.
10.)
In the alternative, Plaintiff argues that the Court should
remand the case under sentence six of 42 U.S.C. 405(g), and order
the Commissioner to consider the Sollman Report.
Sentence six of
Section 405(g) provides as follows:
[A federal district court] may at any time order
additional evidence to be taken before the Commissioner
[], but only upon a showing that there is new evidence
which is material and that there is good cause for the
failure to incorporate such evidence into the record in
a prior proceeding; and the Commissioner [] shall, after
the case is remanded, and after hearing such additional
evidence
if
so
ordered,
modify
or
affirm
the
Commissioner’s findings of fact or the Commissioner’s
decision, or both, and shall file with the court any such
additional and modified findings of fact and decision,
and, in any case in which the Commissioner has not made
a decision fully favorable to the individual, a
transcript of the additional record and testimony upon
which the Commissioner’s action in modifying or affirming
was based.
42 U.S.C.A. § 405(g) (2015) (emphasis added).
13
Here, even assuming that the Sollman Report qualifies as new
and material, and relates to the period before the ALJ’s decision,
as argued by the Commissioner (see Docket Entry 13 at 16 n.8),
Plaintiff has failed to demonstrate good cause for not submitting
the Report prior to the ALJ’s decision.
As an initial matter,
although the Appeals Council waived the requirement that Plaintiff
demonstrate good cause (see Tr. 10), this Court has an obligation,
arising under Section 405(g) and wholly independent of the Appeal
Council’s good cause standard under Section 404.970, to find good
cause for Plaintiff’s failure to submit the evidence to the ALJ.
See Matthews, 239 F.3d at 593 (holding that, “when the claimant
seeks to rely on evidence that was not before the ALJ, the district
court may remand to the Commissioner but only if the evidence is
new and material and if there was good cause why it was not
previously presented to the ALJ (Sentence Six review)” because “it
is the Social Security Act and not the regulations that governs the
standards for judicial review” (emphasis added)).
Moreover, Plaintiff has argued that good cause exists merely
because
she
obtained
her
current
counsel
after
the
ALJ’s
unfavorable decision, who then submitted the Sollman Report to the
Appeals
Council.
(See
Docket
Entry
11
at
11.)
However,
Plaintiff’s retention of new counsel after the ALJ’s denial does
not excuse her failure to submit the Sollman Report prior to the
ALJ’s decision through her former counsel.
14
During the hearing
before the ALJ, Plaintiff specifically testified that she had an
upcoming psychiatrist appointment on March 21[, 2016,]” and that
her
treating
neurologist
“[c]ognitive therapy.”
planned
(Tr. 66.)
on
scheduling
Plaintiff
for
Both at the outset and the close
of the hearing, the ALJ expressed an obvious willingness to hold
the record open for additional evidence:
PLAINTIFF’S COUNSEL:
[Plaintiff]
had
a
.
. .
neurology visit. They did an
MRI. We don’t have that yet.
ALJ:
Okay. Do we know the results
of the MRI yet?
PLAINTIFF’S COUNSEL:
[Plaintiff] doesn’t know.
ALJ:
Okay, so keep it open for two
weeks for the MRI, or do you
want longer than that?
PLAINTIFF’S COUNSEL:
We can start with two weeks.
ALJ:
Of course I’ll grant you any
amount of time you need.
. . .
ALJ:
[W]hen we get the new MRI we’ll
take a look at it and I’m
assuming we’ll be able to
decide the case.
If not, if
[Plaintiff’s
counsel]
has
anything to add she’ll let me
know.
(Tr. 47-48, 83 (emphasis added).)
Plaintiff indeed submitted that
MRI after the hearing, and it appears in the record as the last
page of Exhibit 12F.
(See Tr. 568; see also Tr. 48 (reflecting
that ALJ admitted Exhibits 1F through 11F at the time of the
15
hearing).)
As Plaintiff remained represented by counsel until 11
days after the ALJ’s unfavorable decision (see Tr. 20, 21), good
cause does not exist for Plaintiff’s failure to submit the Sollman
Report to the ALJ in the three months between the date of the
Sollman Report (April 7, 2016) and the ALJ’s decision on July 7,
2016.
In sum, no basis exists to remand this matter based on the
Appeals Council’s decisions under either sentence four or sentence
six of 20 U.S.C. § 405(g).
2. CPP
In Plaintiff’s second assignment of error, she contends that
the ALJ “erred by equating moderate difficulties in [CPP] with a
functional limitation to unskilled work.”
(Docket Entry 11 at 12
(standard capitalization applied and bold font and single-spacing
omitted).)
More specifically, Plaintiff maintains that “[t]he
[United States] Court of Appeals [for the Fourth Circuit] in Mascio
v. Colvin[], 780 F.3d 632, 638 (4th Cir. 2015) notes that an ALJ
does not account for limitations in [CPP] by simply restricting the
hypothetical
question
to
simple,
routine
tasks
or
unskilled
work[,]” because “‘[t]he ability to perform simple tasks differs
from the ability to stay on task.’”
(Docket Entry 11 at 12
(quoting Mascio, 780 F.3d at 638).) Plaintiff thus argues that the
ALJ failed to account for Plaintiff’s moderate difficulties in CPP
by limiting Plaintiff to “‘simple, routine, and repetitive tasks
16
[(‘SRRTs’)] but not [at] a production rate pace . . ., and to
making simple work-related
decisions.’”
(Id. (quoting Tr. 32).)
Plaintiff has not established an entitlement to relief.
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
adequately accounted for claimant’s moderate limitation in CPP, by
17
highlighting
physicians’
the
claimant’s
opinions).
Here,
daily
the
activities
ALJ’s
and
decision
treating
provides
a
sufficient explanation as to why restrictions to SRRTs, nonproduction pace work, and simple work-related decisions (see Tr.
30, 32) sufficiently accounted for Plaintiff’s moderate deficit in
CPP.
First, the ALJ discussed Plaintiff’s testimony regarding her
mental symptoms, including her claim that “concentration and memory
problems contributed to her termination from previous jobs” (Tr.
29; see also Tr. 52, 275, 482), but found her statements “not
entirely consistent with the medical evidence and other evidence in
the record” (Tr. 31).
Plaintiff has not challenged the ALJ’s
evaluation of her subjective symptom reporting.
(See Docket Entry
11.)
Second,
the
ALJ
summarized
Plaintiff’s
mental
health
treatment, making the following, pertinent observations:
•
Consultative psychological examiner Dr. Carla
Duszlak
“noted
that
[Plaintiff]
performed
‘reasonably well’ on mental status tasks, with
‘some’ deficits in memory and concentration[,]” and
Plaintiff
“denied
thought
and
perception
disturbances that could affect her ability to
concentrate” (Tr. 32; see also Tr. 484-85);
•
Since
the
September
24,
2013,
consultative
examination
with
Dr.
Duszlak, “[Plaintiff’s]
depression and anxiety has appeared to be ‘stable’
with medication” (Tr. 32; see also Tr. 524, 528);
and
•
“A mental status evaluation in 2016 revealed
‘normal’ recent and remote memory, along with
18
‘normal’ attention and concentration” (Tr. 32; see
also Tr. 559).
Third, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.
33-34.)
(See Tr.
The ALJ accorded “great weight” to the opinion of Dr.
Duszlak
that,
despite
Plaintiff’s
complaints
of
trouble
with
concentration and focus, Plaintiff could perform SRRTs and work on
a regular basis.
(Tr. 33-34; see also Tr. 486.)
The ALJ also gave
“partial weight” to the state agency psychological consultants’
opinions (Tr. 34), who each found that, notwithstanding moderate
limitation in CPP (see Tr. 136, 150), Plaintiff remained “able to
sustain attention to complete a small variety of tasks at a semirapid pace”
and
could
perform
SRRTs
(Tr.
141,
155 (emphasis
added)).7
Fourth, the ALJ’s restriction to no work “at a production rate
pace
(e.g.,
assembly
line
work)”
in
the
RFC
(Tr.
30,
32)
“reasonably related to a moderate limitation in Plaintiff’s ability
to stay on task,” Grant v. Colvin, No. 1:15CV515, 2016 WL 4007606,
at
*6
(M.D.N.C.
July
26,
2016)
(unpublished),
recommendation
adopted, slip op. (M.D.N.C. Sept. 21, 2016) (Osteen, Jr., C.J.).
In that regard:
7
The ALJ noted that he accorded the state agency psychological consultants’
“opinions partial weight mainly because they did not have the benefit of
examining [Plaintiff] in person.” (Tr. 34.) The consultants did not include a
limitation to non-production work in their mental RFC (see Tr. 141, 155), as the
ALJ did (see Tr. 30, 32).
19
[T]he weight of authority in the circuits that rendered
the rulings undergirding the Fourth Circuit’s holding in
Mascio supports the view that the non-production
restriction adopted in this case sufficiently accounts
for [the p]laintiff’s moderate limitation in CPP.
Moreover, that approach makes sense.
In Mascio, the
Fourth Circuit held only that, when an ALJ finds moderate
limitation in CPP, the ALJ must either adopt a
restriction that addresses the “staying on task” aspect
of CPP-related deficits (which a restriction to simple
tasks does not, at least on its face) or explain why the
CPP limitation of that particular claimant did not
necessitate a further restriction regarding “staying on
task.” Where, as here, the ALJ has included a specific
restriction that facially addresses “moderate” (not
“marked” or “extreme,” see 20 C.F.R. § 416.920a(c)(4))
limitation in the claimant’s ability to stay on task,
i.e., a restriction to “non-production oriented” work,
Mascio does not require further explanation by the ALJ,
at least absent some evidentiary showing by the claimant
(not offered here) that he or she cannot perform even
non-production-type work because of his or her particular
CPP deficits.
Grant, 2016 WL 4007606, at *9; see also id. at *7-9 (discussing
authority addressing “non-production” restrictions).
Under these circumstances, the ALJ adequately explained why
restrictions to SRRTs, non-production work, and simple, workrelated decisions (see Tr. 30, 32) sufficiently accounted for
Plaintiff’s moderate limitation in CPP.
3. RFC
In Plaintiff’s third and final assignment of error, she
asserts that “[t]he ALJ’s RFC is not supported by substantial
evidence, and is internally inconsistent with the objective medical
evidence.”
(Docket Entry 11 at 13.)
In particular, Plaintiff
contends that “the RFC fails to take into account the impact of
20
exertional and other nonexertional limitations[,]” such as “balance
and motor problems including grip strength problems on the left
side” (id.) and fatigue (id. at 14).
In that regard, Plaintiff
challenges the ALJ’s RFC for its inclusion of frequent exposure to
unprotected heights and moving mechanical parts, and its omission
of “how many extra breaks [Plaintiff] would need in an eight-hour
work day[,] . . . how much off-task she would be due to her fatigue
and concentration issues, or how much work she would miss each
month or year due to the exacerbation of her [multiple sclerosis]
symptoms.” (Id.) Plaintiff’s contentions fail as a matter of law.
With regard
to
unprotected heights and moving mechanical
parts, Plaintiff has not shown how the inclusion of a lesser degree
of exposure in the RFC would have impacted the outcome in her case.
The ALJ found that Plaintiff could return to her past relevant work
as a Cashier II (see Tr. 34-35), and the listing in the Dictionary
of
Occupational
Titles
(DOT)
for
that
job
describes
“[b]alancing[,]” “[m]oving [m]ech[anical] [p]arts[,]” and “[h]igh
[e]xposed [p]laces” as “[n]ot [p]resent”, see DOT, No. 211.462-010
(Cashier II), 1991 WL 671840.
Plaintiff’s argument regarding the RFC’s failure to address
extra breaks, time off-task, or work absences due to Plaintiff’s
fatigue, concentration issues, and multiple sclerosis exacerbations
fares no better.
As discussed above in regards to Plaintiff’s
second assignment of error, the ALJ sufficiently explained in the
21
decision (and supported that explanation with substantial evidence)
that, despite moderate deficit in CPP, Plaintiff maintained the
ability to perform SRRTs at a non-production rate pace with only
simple, work-related decisions.
(See Tr. 30, 32.)
The ALJ also
gave great weight to Dr. Duszlak’s opinion that, despite issues
with concentration and focus, Plaintiff remained able to work on a
regular basis from a psychiatric standpoint. (See Tr. 33-34, 486.)
Moreover, Plaintiff points to no treating or examining physician
opinion that would support inclusion in the RFC of more breaks,
time
off-task,
or
absences
competitive work environment.
than
typically
tolerated
in
a
(See Docket Entry 11 at 13-14.)
In short, Plaintiff has not shown grounds for relief with
respect to the RFC.
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 12)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 13, 2018
22
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