SELF V. BERRYHILL

Filing 18

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 2/21/2019; that the Commissioner's decision finding no disability be affirmed, Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 14 ) be denied, and Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) 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
STACY SELF,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:17CV1001

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Stacy Self, 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 9 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 14, 16; see also Docket Entry 15 (Plaintiff’s Memorandum);
Docket Entry 17 (Defendant’s Memorandum)).

For the reasons that

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

PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date of
February 14, 2015.

(Tr. 171-72.)

Upon denial of that application

initially (Tr. 79-93, 106-09) and on reconsideration (Tr. 94-105,
113-18),

Plaintiff

requested

a

hearing

de

novo

before

an

Administrative Law Judge (“ALJ”) (Tr. 119-20).

Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 33-78.)

The ALJ subsequently determined that Plaintiff did

not qualify as disabled under the Act.

(Tr. 7-23.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
169-70, 258-61), thereby making the ALJ’s ruling the Commissioner’s
final decision for purposes of judicial review.
In

rendering

that

decision,

the

ALJ

made

the

following

findings:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through March 31, 2018.
2.
[Plaintiff] has not engaged in substantial gainful
activity since February 14, 2015, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
functional dystonia, somatic disorder, depression,
anxiety, bipolar disorder, obsessive-compulsive disorder
(OCD), and obesity.
. . .
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 medium work . . . except she can
push/pull as much as she can carry. [Plaintiff] is
limited to simple, routine tasks defined as jobs that can
be learned in one month or less by an on-the-job
demonstration.
She can work in a low-stress setting
defined as no quota work or production-rate work. She
can perform simple, work-related decisions, defined as
decisions involving only a few variables. She can have
2

no more than occasional interaction with coworkers and
the public. She can have few changes in a routine work
setting, defined as only a few deviations from core job
duties.
. . .
6.
[Plaintiff] is capable of performing past relevant
work as housekeeping in a hospital. 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 jobs that exist in significant
numbers in the national economy that [Plaintiff] also can
perform.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the . . . Act, from February 14, 2015, through
the date of this decision.
(Tr. 12-22 (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 . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has

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

3

A.

Standard of Review

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

court must

uphold

the

factual

findings

Instead, “a
of

the

ALJ

[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” 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, 390 (1971)).

“It consists of

more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”

Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted).

“If

there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”

Hunter,

993 F.2d at 34 (internal quotation marks omitted).
“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 Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).

“Where

conflicting evidence allows reasonable minds to differ as to
4

whether

a

claimant

is

disabled,

the

responsibility

for

that

decision falls on the [Social Security 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 . . .
promulgated . . . detailed regulations incorporating longstanding
medical-vocational evaluation policies that take into account a

1
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

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. (internal citations omitted).

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 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

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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

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 179.3

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.

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 RFC] and [the claimant’s]
vocational capabilities (age, education, and past work experience)
to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this

step, the government cannot carry its “evidentiary burden of
proving that

[the

claimant]

remains

able

to

work

other

jobs

available in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.4

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 workrelated 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 qualify as disabled 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

7

B.

Assignment of Error

In Plaintiff’s sole assignment of error, she contends that
“[t]he ALJ failed to adequately include all of [Plaintiff’s]
limitations in the RFC finding given that the ALJ found [Plaintiff]
ha[d] marked impairment in adapting and managing herself.” (Docket
Entry 15

at

4 (referencing

Tr.

14-15).)

More specifically,

Plaintiff argues that, “[b]y finding that [Plaintiff] had marked
limitations in this domain of functioning, [the ALJ] found that
[Plaintiff’s] ability to adapt and manage herself independently,
appropriately,

effectively,

and

on

a

sustained

basis

[wa]s

seriously limited,” and that “[t]he limitations the ALJ assigned in
her [RFC] finding do not account for more than mild to moderate
severity in adapting and managing oneself.” (Id. at 6 (emphasis in
original).)

In that regard, Plaintiff maintains that the ALJ

“fail[ed] to include any meaningful limitations in her [RFC] to
address [Plaintiff’s marked limitation in adapting and managing
herself], particularly with regards to time off task and absences
due to panic attacks and prostrating depression.”

(Id. at 7.)

According to Plaintiff, “remand is warranted so that [Plaintiff’s]

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

limitations in adapting and managing herself can be adequately
considered.”

(Id. at 8.)

Effective
substantial
disorders

on

January

revisions

in

the

Those contentions miss the mark.

to

17,

Listing

the
of

2017,

the

criteria

Commissioner

for

evaluating

Impairments.

See

made
mental

https://www.

federalregister.gov/documents/2016/09/26/2016-22908/revisedmedical-criteria-for-evaluating-mental-disorders (last visited Feb.
19, 2019).5

As relevant to this case,6 to meet the paragraph B

criteria of revised Listings 12.04 (“Depressive, bipolar, and
related

disorders”),

12.06

(“Anxiety

and

obsessive-compulsive

disorders”), or 12.07 (“Somatic symptom and related disorders”), a
claimant

must

show

“[e]xtreme

limitation

of

one,

or

marked

limitation of two, of the following areas of mental functioning:
1. Understand, remember, or apply information[;]
2. Interact with others[;]

5

“The listings set out at 20 CFR [P]t. 404, [S]ubpt. P, App[’x] 1, are
descriptions of various physical and mental illnesses and abnormalities, most of
which are categorized by the body system they affect. Each impairment is defined
in terms of several specific medical signs, symptoms, or laboratory test
results.” Sullivan v. Zebley, 493 U.S. 521, 529–30 (1990) (internal footnote and
parentheticals omitted).
“In order to satisfy a listing and qualify for
benefits, a person must meet all of the medical criteria in a particular
listing.” Bennett, 917 F.2d at 160 (citing Zebley, 493 U.S. at 530, and 20
C.F.R. § 404.1526(a)); see also Zebley, 493 U.S. at 530 (“An impairment that
manifests only some of th[e] criteria [in a listing], no matter how severely,
does not qualify.”).
6

The ALJ apparently assumed, without explicitly finding, that Plaintiff’s
mental impairments satisfied the paragraph A criteria of Listings 12.04, 12.06,
and 12.07 (see Tr. 12-15), and Plaintiff did not raise any arguments directed at
the ALJ’s findings with respect to the paragraph C criteria (see Docket Entry 15
at 4-8).

9

3. Concentrate, persist, or maintain pace[; and]
4. Adapt or manage oneself.
20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.04B, 12.06B, 12.07B
(internal citations omitted) (emphasis added).
In turn, “[a]dapt[ing] or manag[ing] oneself . . . refers to
the abilities to regulate emotions, control behavior, and maintain
well-being in a work setting.”

Id., § 12.00E.4.

Examples of

abilities falling under this broad area of mental functioning
include:
Responding to demands; adapting to changes; managing
[one’s] psychologically based symptoms; distinguishing
between acceptable and unacceptable work performance,
setting realistic goals; making plans for [oneself]
independently of others; maintaining personal hygiene and
attire appropriate to a work setting; and being aware of
normal hazards and taking appropriate precautions.
Id.

The

regulation

cautions

that

the

above-quoted

examples

“illustrate the nature of this area of mental functioning,” but
that a claimant need not provide “documentation of all of the
examples.”

Id.

In this case, the ALJ found that Plaintiff suffered from
“marked” limitation in her ability to adapt and manage herself (Tr.
14-15),

which

means

that

her

“functioning

in

th[at]

area

independently, appropriately, effectively, and on a sustained basis
[wa]s seriously impaired,” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §
12.00F.2.d.

The

ALJ

supported

that

finding

by

noting

that

Plaintiff’s “husband reported that she d[id] not handle stress or
10

changes in routine well due to anxiety and panic attacks,” and that
Plaintiff “reported that she ha[d] a panic attack three to four
times per week and stay[ed] in bed some days due to depression.”
(Tr. 14-15.)

However, the ALJ additionally found that “the record

d[id] not support an ‘extreme’ limitation in [adapting and managing
oneself], as [Plaintiff] reported that she [wa]s able to care for
her personal hygiene, complete some housework, help care for pets,
and care for her children.”
Notably,

Plaintiff

(Tr. 15.)

does

not

contend

impairments met or equaled any of the Listings.
15 at 4-8.)

that

her

mental

(See Docket Entry

In that regard, Plaintiff neither argues that the ALJ

should have found an “extreme,” rather than a “marked,” limitation
in adapting and managing oneself, nor attacks the ALJ’s findings
with respect to Plaintiff’s ability to understand, remember, or
apply information, interact with others, and concentrate, persist,
or maintain pace.

(See id.; see also Tr. 14-15).

Rather,

Plaintiff asserts that the ALJ “fail[ed] to include any meaningful
limitations” in the RFC to address Plaintiff’s marked limitation in
adapting and managing herself.

(Docket Entry 15 at 7.)

However,

the ALJ here adequately explained how the mental RFC accounts for
Plaintiff’s marked limitation in adapting and managing herself.
Most significantly, the ALJ specifically discussed how the
mental RFC sufficiently captured Plaintiff’s marked deficit in
adapting and managing herself:
11

The combined effects of [Plaintiff’s] psychological
symptoms on her cognitive functioning and ability to
adapt to changes and manage herself are accommodated by
limitations to simple, routine, low-stress work with few
changes and few decisions.
Evidence that her
psychological symptoms have improved with medication and
counseling, and have not required inpatient or outpatient
treatment even during periods without consistent
treatment do not support greater limitations in this
area.
(Tr. 19 (emphasis added) (citing Tr. 435 (reflecting Plaintiff’s
report that her depression and anxiety remained “well-controlled”),
504 (documenting physician’s opinion that Plaintiff’s new antidepressant “seem[ed] to have worked,” that “[s]he [wa]s not crying
as

much,”

“[wa]s

much

more

ebullient,”

“[wa]s

much

more

interactive,” and “[wa]s much more pleasant,” and that “there [wa]s
no question” that “[c]learly [Plaintiff] [wa]s better”).) Although
Plaintiff contends that “[t]he limitations the ALJ assigned in [the
RFC] do not account for more than mild to moderate severity in
adapting and managing oneself,” Plaintiff cites no authority for
that proposition.

(Docket Entry 15 at 6.)7

7

According to Plaintiff, “[t]he limitations that the ALJ provided in [the]
RFC finding [we]re not sufficient to address [Plaintiff’s] marked limitations in
adapting and managing herself, particularly in light of the fact that the ALJ
acknowledged, and did not question the consistency of, [Plaintiff’s] reports of
multiple panic attacks per week and staying in bed during the day due to
depression.” (Docket Entry 15 at 6 (referencing Tr. 15).) However, Plaintiff’s
argument glosses over the fact that the ALJ found Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [her] symptoms
. . . not entirely consistent with the medical evidence and other evidence in the
record” and declared that Plaintiff’s “statements have been found to affect [her]
ability to work only to the extent they can reasonably be accepted as consistent
with the objective medical and other evidence.”
(Tr. 16 (emphasis added).)
Thus, the mere fact that the ALJ acknowledged Plaintiff’s testimony regarding the
frequency of her panic attacks and the impact of her depression in assigning
Plaintiff a marked limitation in adapting and managing herself (see Tr. 14-15)

12

In the face of the ALJ’s RFC limitations to “simple, routine,
low-stress
(emphasis

work

with

added)),

few

changes

Plaintiff

does

and few
not

decisions”

elucidate

(Tr.

what

19

further

“meaningful limitations” the ALJ should have included in the RFC to
accommodate Plaintiff’s marked limitation in adapting and managing
herself, beyond suggesting that the ALJ should have addressed
Plaintiff’s “time off task and absences due to panic attacks and
prostrating depression” (Docket Entry 15 at 7).
argument

overlooks

the

fact

that

both

However, that

staying

on

task

and

maintaining regular attendance at work constitute mental abilities
considered a part of the “[c]oncentrate, persist, or maintain pace”
(“CPP”) broad area of mental functioning.
Subpt. P, App’x 1, § 12.00E.3.

See 20 C.F.R. Pt. 404,

Plaintiff here neither challenges

the ALJ’s finding of only moderate limitation in CPP, nor argues
that

the

ALJ

failed

to

sufficiently

moderate deficit in CPP in the RFC.

account

for

Plaintiff’s

(See Docket Entry 15 at 4-8.)

Under such circumstances, Plaintiff has not shown prejudicial
error with respect to the ALJ’s RFC determination.
III. CONCLUSION
Plaintiff has not established grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, Plaintiff’s Motion for Judgment

does not mean that the ALJ fully credited that testimony.

13

on the Pleadings (Docket Entry 14) be denied, and Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 16) be granted,
and that this action be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 21, 2019

14