PARKER, JR. v. BERRYHILL
Filing
13
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/15/2019, that the Commissioner's decision finding no disability be vacated and that the matte r be remanded under sentence four of 42 U.S.C. § 405(g), for further administrative proceedings, to include reevaluation of Dr. Jordan's opinions and their resultant impact on Plaintiff's RFC in accordance with SSR 96-8p. As a result, Plaintiff's Motion for a Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for a Rehearing (Docket Entry 9 ) should be granted in part, i.e., to the extent it requests remand, and Defendant's Motion for Judgment on the Pleadings (Docket Entry 11 ) should be denied.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BILLY E. PARKER, JR.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:17CV882
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Billy E. Parker, Jr., 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
claims
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)
Defendant has filed the certified administrative record
(Docket Entry 7 (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 remand
this matter for further administrative proceedings.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
May 8, 2013.
(Tr. 245-57.)
Upon denial of those applications
initially (Tr. 81-118, 159-64) and on reconsideration (Tr. 119-58,
167-75),
Plaintiff
Administrative
Law
requested
Judge
a
(“ALJ”)
hearing
(Tr.
de
novo
178-79).
before
an
Plaintiff
(proceeding pro se), his girlfriend, and a vocational expert (“VE”)
testified at the hearing. (Tr. 37-74.) The ALJ subsequently ruled
that Plaintiff did not qualify as disabled under the Act.
(Tr. 8-
21.) The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-7, 242-44, 434-36), 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 March 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since May 8, 2013, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
myocardial infarction, coronary artery disease, statuspost bypass repair surgery, asthma, obstructive sleep
apnea, diabetes mellitus, ischemic optic neuropathy,
glaucoma, hyperthyroidism, depression, and attention
deficit hyperactivity 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 . . . except [he] may lift
and carry 20 pounds occasionally and 10 pounds
frequently; he may push and pull as much as he can lift
2
and carry; [he] may sit for 6 hours, stand for 6 hours,
and walk for 6 hours in an 8-hour day; he may perform no
acts of far acuity or depth perception on his right side;
[he] may have occasional exposure to fumes and pulmonary
irritants; and he retains the capacity to perform simple,
routine and repetitive tasks.
. . .
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 [Plaintiff] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from May 8, 2013, through the date
of this decision.
(Tr.
13-20
(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).
Even given those limitations, the Court should remand this case for
further administrative proceedings.
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. [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
‘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
According to Plaintiff, the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “the ALJ did not explain why limitations documented in the
medical opinions [to which] he gave significant weight are not
included in the [RFC]” (Docket Entry 10 at 2 (bold font and singlespacing omitted)); and
2) “the ALJ did not give a complete function-by-function
analysis of the nonexertional mental functions associated with
[Plaintiff’s] difficulties in the broad areas of functioning and
did not make a complete finding as to [Plaintiff’s] mental [RFC]”
(id. at 8 (bold font and single-spacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 12 at 5-22.)
1. Physical RFC
Plaintiff’s first assignment of error asserts that “the ALJ
did not explain why limitations documented in the medical opinions
[to which] he gave significant weight are not included in the
[RFC].”
omitted).)
(Docket Entry 10 at 2 (bold font and single-spacing
In particular, Plaintiff argues that, although the ALJ
gave significant weight to the opinions of Plaintiff’s treating
cardiologist, Dr. Peter M. Jordan, the ALJ neither incorporated Dr.
Jordan’s opinion that Plaintiff could not reach overhead or squat
into the RFC or dispositive hypothetical question, nor explained
8
their omission.
788).)
(See id. at 3, 5-6 (citing Tr. 15-19, 67-72,
Further, Plaintiff maintains that those errors do not
qualify as harmless, because all three jobs cited by the VE (and
adopted by the ALJ) require both reaching and squatting.
at 4, 6.)
(See id.
Plaintiff has shown prejudicial error with respect to
his physical RFC.
Even where an ALJ accords a significant amount of weight to a
treating provider’s opinions, the ALJ labors under no obligation to
adopt all of that provider’s limitations in the RFC.
See Bacnik v.
Colvin, No. 1:12CV801, 2014 WL 3547387, at 4 n.7 (M.D.N.C. July 17,
2014) (unpublished) (Eagles, J.).
However, “[i]f the ALJ’s RFC
assessment conflicts with an opinion from a medical source, the
[ALJ] must explain why the opinion was not adopted.”
Social
Security Ruling 96-8p, Policy Interpretation Ruling Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims, 1996
WL 374184, at *7 (July 2, 1996) (“SSR 96-8p”) (emphasis added).
On December 17, 2013, Dr. Jordan offered the opinion that,
“due to [Plaintiff’s] ongoing chest well pain,” he should “not
. . . lift any objects over 25 [pounds,] . . . should not be
raising his arms above his head and no squatting.”
(Tr. 788.)
ALJ analyzed those opinions as follows:
I give significant weight to the opinion of [Dr. Jordan],
[Plaintiff’s] cardiologist, who stated that [Plaintiff]
is unable to perform the heavy lifting required in his
prior work, and should not lift objects over 25 pounds,
should not raise his arms above his head, and should not
squat.
This opinion is supported by [Plaintiff’s]
9
The
history of heart surgery, and Dr. Jordan’s relationship
as a treating specialist.
(Tr. 18.)
As Plaintiff argues (see Docket Entry 10 at 3, 5-6), the
ALJ’s RFC prohibits neither overhead reaching nor squatting (see
Tr. 15), and the ALJ did not expressly explain in the decision why,
despite giving Dr. Jordan’s opinions overall “significant weight”
(Tr. 18), the ALJ did not adopt Dr. Jordan’s specific opinions as
to overhead reaching and squatting (see Tr. 15-19).
Moreover,
totality,
the
does
ALJ’s
not
decision,
adequately
even
explain
when
why
viewed
the
its
did
ALJ
in
not
incorporate Dr. Jordan’s restrictions on overhead reaching and
squatting into the RFC and dispositive hypothetical question.
ALJ
credited
the
reconsideration
level
state
agency
The
medical
consultant’s opinion that Plaintiff remained capable of a limited
range of light work that did not include limitations on overhead
reaching or squatting. (See Tr. 19, 131-33, 150-52.) However, the
consultant’s analysis of Dr. Jordan’s opinions suffers from the
same shortcoming as the ALJ’s parallel evaluation, i.e., the
consultant accorded “great weight” to Dr. Jordan’s opinions because
“they [we]re
based
[sic]
by
a treating
source
and reflect[]
functional abilities[ c]onsistent [with] medical records in [the]
file” (see Tr. 130, 149), but neither included limitations on
overhead reaching and/or squatting in the RFC nor explained the
omission of those limitations (see Tr. 131-33, 150-52).
Thus, the
ALJ’s failure to explain why he rejected Dr. Jordan’s overhead
10
reaching and squatting restrictions runs afoul of SSR 96-8p.
See
SSR 96-8p, 1996 WL 374184, at *7 (providing that, “[i]f the ALJ’s
RFC assessment conflicts with an opinion from a medical source, the
[ALJ] must explain why the opinion was not adopted” (emphasis
added)).
Furthermore, Plaintiff has demonstrated that the ALJ’s error
with respect to the overhead reaching restriction qualifies as
prejudicial, warranting remand.
As Plaintiff argues, “[a] review
of the information in the Selected Characteristics of Occupations
[Defined
in
the
Revised
Dictionary
of
Occupational
Titles]
(‘[SCO]’), companion publication to the Dictionary of Occupational
Titles (‘[DOT]’), reveals that the fast food worker job requires
constant
reaching
while
the
inspector
and
hand
packager
and
cafeteria attendant jobs both require frequent reaching.”
(Docket
Entry 10 at 4 (citing Docket Entries 10-1 to 10-3).)
Because
“[t]he [DOT] defines reaching as ‘[e]xtending hand(s) and arms(s)
in any direction’” (id. (quoting SCO, App’x C, Physical Demands § 8
(U.S. Dep’t of Labor 1993))), without specifying the direction of
the required reaching, the possibility remained that all three jobs
cited by the VE (and adopted by the ALJ) required some degree of
overhead reaching. Thus, had the ALJ adopted Dr. Jordan’s overhead
reaching restriction, an apparent, unresolved conflict would have
existed “between the [VE’s] testimony and the [DOT/SCO] as to
overhead reaching” (id. at 5 (citing Pearson v. Colvin, 810 F.3d
11
204, 211 (4th Cir. 2014) (remanding where ALJ failed to resolve
apparent conflict between VE’s testimony that individual limited to
occasional bilateral overhead reaching could perform certain jobs
and
DOT’s
description
for
those
jobs
reflecting
frequent
reaching))).
Plaintiff also maintains that the ALJ’s failure to adopt Dr.
Jordan’s
squatting
restriction
in
the
RFC
and
dispositive
hypothetical question does not qualify as “harmless[ because t]he
Bureau of Labor Statistics (‘BLS’) indicates the jobs identified by
the [VE] and accepted by the ALJ do have squatting.”
(Id. at 6.)
More specifically, Plaintiff asserts that, “[a]ccording to the
BLS[,] [for] almost [two-thirds] of both the fast food workers and
cafeteria attendants[,] crouching, i.e.[,] squatting, is required[
a]nd it is required for almost one-third of the inspectors and hand
packagers.” (Id.) Plaintiff notes that “[t]he BLS classifies jobs
by the Standard Occupational Classification System (‘SOC’) . . .
rather than using [DOT] codes,” as well as that “the [DOT] was last
updated in 1991” and that “no job information source with the
current requirements of jobs classifies jobs by [DOT] code”
Plaintiff’s
arguments
fail
for
three
reasons.
(Id.)
First,
Plaintiff did not provide any citations (much less attach any
materials) to support his assertion that, “[a]ccording to the
BLS[,] [for] almost [two-thirds] of both the fast food workers and
cafeteria attendants[,] crouching, i.e.[,] squatting, is required[
12
a]nd it is required for almost one-third of the inspectors and hand
packagers.”
(Id.)
Second, the BLS and SOC do not constitute
recognized vocational sources under the Commissioner’s regulations.
See 20 C.F.R. §§ 404.1566(d), 416.966(d) (stating that Commissioner
“will
take
administrative
notice
of
reliable
job
information
available from various governmental and other publications,” and
listing as “example[s]” the DOT, County Business Patterns (“CBP”),
Census Reports, Occupational Analyses prepared for the Commissioner
by state employment agencies, and the Occupational Outlook Handbook
(“OOH”) ).5
Third, the same materials on which Plaintiff relied to
demonstrate that all three jobs cited by the VE and adopted by the
ALJ required reaching (see Docket Entry 10 at 4 (citing Docket
Entries 10-1 to 10-3)), reflect that none of those jobs require any
crouching (see Docket Entries 10-1 to 10-3).
See also DOT, No.
311.472-010 (Fast-Foods Worker), 1991 WL 672682 (G.P.O. 4th ed.
rev. 1991), DOT, No. 559.687-074 (Inspector and Hand Packager),
1991 WL 683797, DOT, No. 311.677-010 (Cafeteria Attendant), 1991 WL
5
“[T]he last publication of the [DOT] was in 1991, [and] the last significant
update of the occupation information it contains occurred with the 1977 edition.”
Boston v. Colvin, No. 4:14-CV-206-D, 2016 WL 721563, at *15 (E.D.N.C. Feb. 2,
2016) (unpublished), recommendation adopted, No. 4:14-CV-206-D, 2016 WL 738762
(E.D.N.C. Feb. 23, 2016) (unpublished) (citing Government Accountability Office
(“GAO”) Report 12–420, Highlight: Modernizing SSA Disability Programs (June
2012)).
As a result, the Commissioner plans to develop an Occupational
Information System to supplant the DOT as the Social Security Administration’s
primary vocational resource, see 73 Fed. Reg. 78864-01, 2008 WL 5329223 (Dec. 23,
2008); Dimmett v. Colvin, 816 F.3d 486, 489 (7th Cir. 2016) (noting that the
Commissioner remains “aware of the obsolescence of the [DOT] . . . [and] is
developing its own parallel classification system”).
13
672694.6
Thus, the ALJ’s failure to either adopt Dr. Jordan’s
squatting restriction or adequately explain its omission remains
harmless under the circumstances of this case.
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”).
In sum, Plaintiff has demonstrated that the ALJ reversibly
erred
by
not
including
Dr.
Jordan’s
restriction
on
overhead
reaching in the RFC and dispositive hypothetical question or, in
the
alternative,
providing
an
adequate
explanation
for
its
omission.
2. Mental RFC
Lastly, Plaintiff maintains that “the ALJ did not give a
complete function-by-function analysis of the nonexertional mental
functions associated with [Plaintiff’s] difficulties in the broad
areas of functioning and did not make a complete finding as to
[Plaintiff’s] mental [RFC].”
single-spacing omitted).)
(Docket Entry 10 at 8 (bold font and
More specifically, Plaintiff argues
6
The Commissioner and the DOT/SCO both utilize the term “crouching” rather than
“squatting”; however, courts have found that the SCO’s definition of “crouching,”
i.e., “[b]ending body downward and forward by bending legs and spine,” SCO, App’x
C, Physical Demands, § 6, equates to squatting.
See Lawson v. Astrue, No.
3:10–212–HFF–JRM, 2011 WL 4502026, at *11 (D.S.C. July 29, 2011) (unpublished)
(citing Chavez v. Astrue, 699 F. Supp. 2d 1125, 1133 n.5 (C.D. Cal. 2009)
(finding “crouch” and “squat” as “essentially synonymous”)), recommendation
adopted, 2011 WL 4527370 (D.S.C. Sept. 29, 2011) (unpublished).
14
that, despite the ALJ’s finding that Plaintiff “ha[d] moderate
difficulties in maintaining concentration, persistence, or pace
[(‘CPP’)], . . . the ALJ did not determine [Plaintiff’s] ability to
stay on task” in the RFC in violation of SSR 96-8p, and Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015).
According
to
Plaintiff,
“[t]he
ALJ
(Docket Entry 10 at 10.)
mistakenly
discussed
only
[Plaintiff’s] capability to perform simple routine tasks, not his
ability to stay on task” (id. at 11), despite the fact that “only
the latter determination would completely account for [Plaintiff’s]
limitation in [CPP]” (id. (citing Mascio, 780 F.3d at 638)).
Plaintiff’s contentions do not warrant relief.
The United States Court of Appeals for 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].”
F.3d
at
638.
However,
as
a
neighboring
district
Mascio, 780
court
explained:
Mascio does not broadly dictate that a claimant’s
moderate impairment in [CPP] always translates into a
limitation in the RFC. Rather, Mascio underscores the
ALJ’s duty to adequately review the evidence and explain
the decision . . . . An ALJ may account for a claimant’s
limitation with [CPP] by restricting the claimant to
simple, routine, unskilled work where the record supports
this conclusion, either through physician testimony,
15
has
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
highlighting
physicians’
the
claimant’s
opinions).
daily
Here,
the
activities
ALJ’s
and
decision
treating
provides
a
sufficient explanation as to why restrictions to “simple, routine
and
repetitive
tasks”
(Tr.
15)
sufficiently
accounted
for
Plaintiff’s moderate deficit in CPP.
First, the ALJ noted Plaintiff’s “reports [of] memory loss and
problems
concentrating”
(Tr.
14),
but
found
that
Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [his] symptoms [we]re not entirely consistent with the
medical evidence and other evidence in the record for the reasons
explained in th[e] decision” (Tr. 16). Moreover, Plaintiff did not
challenge the ALJ’s assessment of Plaintiff’s subjective symptoms.
(See Docket Entry 10 at 2-13.)
Second, the ALJ summarized the mental health evidence of
record, making the following, pertinent observations:
16
•
“At a mental consultative examination in November
2013, . . . [Plaintiff] presented as pleasant, with
good communication, mellow mood, . . . flexible
appropriate affect[,] . . . thoughts [that] were
logical, sequential, and based upon reality, . . .
memory [that] was intact, . . . . [and] abstract
thinking, judgment, and insight [that] were noted
to be normal” (Tr. 17; see also Tr. 775-78);
•
The
mental
consultative
examiner
diagnosed
Plaintiff “with major depressive disorder, in
remission with medication” (Tr. 17 (emphasis
added); see also Tr. 777);
•
“[I]n July 2013, [Plaintiff] reported feelings of
increased irritability and thoughts of death since
running out of his medication four days prior . . .
but his judgment, thought content, and memory were
normal” (Tr. 17-18 (emphasis added); see also Tr.
727);
•
“In June 2014, [Plaintiff] reported a past
diagnosis of ADHD, and presented with a flat affect
and mood, but intact cognition and memory” (Tr. 18
(emphasis added); see also Tr. 895-900);
•
“In November 2015, treatment notes indicate an
increase in mood swings with noncompliance” (Tr. 18
(emphasis added); see also Tr. 889); and
•
Plaintiff’s “psychological records indicate that he
retains a significant degree of function when
compliant with his medications” (Tr. 18).
Third, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.
(See Tr.
18-19.) In that regard, the ALJ gave “partial weight” to the state
agency psychological consultant at the reconsideration level of
review
(Tr.
19),
who
found
that,
notwithstanding
moderate
limitation in CPP (see Tr. 128, 147), Plaintiff remained able to
perform simple, routine, repetitive tasks (see Tr. 135, 154).
17
The
ALJ
also
accorded
consultative
mental
“partial
weight”
examiner
that
to
the
Plaintiff
perform simple, routine, repetitive tasks.
opinion
remained
of
the
able
to
(Tr. 18; see also Tr.
778.)
Under these circumstances, the ALJ adequately explained why a
restriction to “simple, routine and repetitive tasks” (see Tr. 15)
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).
In sum, Plaintiff’s second issue on review does not entitle
him to reversal or remand.
III.
CONCLUSION
Plaintiff has established an error warranting remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
under
sentence
four
of
42
U.S.C.
§
405(g),
for
further
administrative proceedings, to include reevaluation of Dr. Jordan’s
opinions
and
their
resultant
accordance with SSR 96-8p.
impact
on
Plaintiff’s
RFC
in
As a result, Plaintiff’s Motion for a
Judgment Reversing or Modifying the Decision of the Commissioner of
Social Security, or Remanding the Cause for a Rehearing (Docket
18
Entry 9) should be granted in part, i.e., to the extent it requests
remand, and Defendant’s Motion for Judgment on the Pleadings
(Docket Entry 11) should be denied.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 15, 2019
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?