ROSS v. BERRYHILL
Filing
11
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 2/27/2019. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that 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 7 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 9 ) be granted, and that this case be dismissed with prejudice. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TARA D. ROSS,
Plaintiff,
)
)
)
)
)
)
)
)
)
)
)
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.
1:17cv1145
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Tara D. Ross, brought this action under the Social
Security Act (the “Act”) to obtain judicial review of a final
decision of Defendant, the Acting Commissioner of Social Security,
denying
(“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
Benefits
The Court has before it the certified
administrative record (cited herein as “Tr. __”), as well as the
parties’ cross-motions for judgment (Docket Entries 7, 9; see also
Docket
Entry
8
(Plaintiff’s
(Defendant’s Memorandum)).
Memorandum);
Docket
Entry
10
For the reasons that follow, the Court
should enter judgment for Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB.
denial
of
that
application
initially
(Tr. 139-47.)
(Tr.
74-77)
and
Upon
on
reconsideration (Tr. 83-86), she requested a hearing de novo before
an
Administrative
Law
Judge
(the
“ALJ”)
(see
Tr.
87-98).
Plaintiff, her representative, and a vocational expert (the “VE”)
attended the hearing. (See Tr. 31-51.) The ALJ subsequently ruled
Plaintiff not disabled under the Act.
(Tr. 15-30.)
The Appeals
Council denied her request for review (Tr. 1-6), 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] last met the insured status requirements
of the . . . Act on December 31, 2014.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her amended onset date of
August 4, 2013[,] through her date last insured of
December 31, 2014.
3.
Through the date last insured, [Plaintiff] had the
following severe impairments:
depression, bipolar
disorder[,] and obesity.
. . . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . . .
5.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity [(at times, the
“RFC”)] to perform a full range of work at all exertional
levels but with the following nonexertional limitations:
no climbing or work around heights or dangerous
equipment, occasional exposure to people, low stress and
[low1] production environment with no rigid quota and
1
The ALJ used a single “low” to modify both “stress” and “production” in this
description of Plaintiff’s RFC (see Tr. 22), but elsewhere in his opinion (see
(continued...)
2
simple, routine and repetitive tasks [(collectively, at
times, “SRRTs”)].
. . . .
6.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.
was
. . . .
10. Through
the
date
last
insured,
considering
[Plaintiff’s] age, education, work experience, and [RFC],
there were jobs that existed in significant numbers in
the national economy that [Plaintiff] could have
performed.
. . . .
11. [Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from August 4, 2013, the
amended onset date, through December 31, 2014, the date
last insured.
(Tr. 20-27 (bold font and 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).
1
(...continued)
Tr. 26) he clarified that the RFC limitation involved “a low stress, low
production environment with no rigid quota and occasional exposure to people”
(Tr. 25-26), and his question to the VE similarly included a limitation to a “low
production work environment” (see Tr. 50 (asking about jobs “that would
accommodate the following limitations . . . work that would be in a low stress,
low production work environment where there are no rigid production or quotas
required in the performance of, again, simple, routine, repetitive tasks”)).
3
Plaintiff has not established entitlement to relief under this
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
(brackets and internal 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 (brackets
and internal 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.
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 (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 (the “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).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.’
working, benefits are denied.
If the claimant is
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 (citation omitted).
6
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s [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.
See id. at 179-80.
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 her “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
567.5
4
The “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 the RFC to reflect the 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” (emphasis and internal 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. The “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
at 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.
Assignments of Error
Plaintiff asserts that the ALJ erred (1) in his assessment of
Plaintiff’s “Mental RFC” (at times, the “MRFC”) (Docket Entry 8 at
1 (bold font omitted)), (2) in his “RFC Determination” (id. (bold
font
omitted)),
and
(3)
in
his
evaluation
Testimony” (id. at 2 (bold font omitted)).
of
“[Plaintiff’s]
Defendant contends
otherwise and urges that substantial evidence supports the ALJ’s
findings.
(See Docket Entry 10.)
1.
The Mental RFC
In Plaintiff’s first assignment of error, she alleges that
“the ALJ d[id] 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 d[id] not make
a complete finding as to [Plaintiff’s MRFC]” (Docket Entry 8 at 2-3
(bold font omitted)), in violation of Mascio v. Colvin, 780 F.3d
632 (4th Cir. 2015).
(See Docket Entry 8 at 2-8.)
In particular,
Plaintiff argues that the MRFC fails to “reflect limitations
consistent with the ALJ’s finding of a moderate limitation in
concentration, persistence, and pace” (collectively, at times,
“CPP”).
(Id. at 3.)
Plaintiff further asserts that the ALJ “did
not address the particular limitations that comprise the agency’s
mental RFC findings.”
(Id. at 7.)
5
These arguments lack merit.
(...continued)
review does not proceed to the next step.”).
8
a.
Relevant Procedures
As an initial matter, at steps two and three of the SEP, the
ALJ must assess the degree of functional limitation resulting from
Plaintiff’s
mental
impairments
pursuant
to
criteria
in
the
corresponding mental disorders in the listing of impairments.
See
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00 (2016); 20 C.F.R.
§ 416.920a(b)(2) & (c)(2).
As relevant to the instant case,
paragraph B of Listing 12.04 (“Affective Disorders”) contains four
broad functional areas: (1) activities of daily living; (2) social
functioning;
(3)
concentration,
(4) episodes of decompensation.
persistence,
or
pace;
and
See 20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § 12.04B (2016); see also 20 C.F.R. § 416.920a(c)(3)
(2016).
The ALJ’s decision must include a specific finding of the
degree of limitation in each of those functional areas.
20 C.F.R.
§ 416.920a(e)(4). However, the paragraph B criteria limitations do
not constitute an RFC assessment.
Social Security Ruling 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims, 1996 WL 374184, at *4 (July
2, 1996).
Rather, the ALJ uses those limitations to evaluate the
severity of Plaintiff’s mental impairments at steps two and three
of the SEP.
Id.
“The mental RFC assessment used at steps 4 and 5 of the [SEP]
requires a more detailed assessment by itemizing various functions
contained in the broad categories found in paragraphs B and C,”
9
id., and includes consideration of Plaintiff’s “abilities to:
understand, carry out, and remember instructions; use judgment in
making
work-related
decisions;
respond
appropriately
to
supervision, co-workers and work situations; and deal with changes
in a routine work setting,” id. at *6.
Thus, the regulations do
not require the ALJ to incorporate word-for-word the limitations
found in evaluating the severity of mental impairments into either
the RFC or any hypothetical question.
See Yoho v. Commissioner of
Soc. Sec., No. 98–1684, 1998 WL 911719, at *3 (4th Cir. Dec. 31,
1998) (holding ALJ bears no obligation to transfer paragraph B
findings verbatim to hypothetical question(s)); accord Patterson v.
Astrue, No. 1:08cv109, 2009 WL 3110205, at *5 (N.D. Tex. Sept. 29,
2009).
b.
Plaintiff’s Contentions
Here, Plaintiff maintains that the ALJ failed to account for
her moderate deficits in CPP in the MRFC determination.
Docket Entry 8 at 2-8.)
(See
More specifically, Plaintiff argues that,
pursuant to Mascio, “the mental RFC must reflect limitations
consistent with the ALJ’s finding of a moderate limitation in
[CPP],” but, “[a]lthough the ALJ’s RFC included several elements,
they do not correspond with the necessary limitations in [CPP].”
(Id. at 3.)
According to Plaintiff, “[t]he ALJ did not fully
determine or discuss in the decision [Plaintiff’s] ability to stay
on task due to her moderate difficulties with [CPP].”
10
(Id. at 7.)
Plaintiff further faults the ALJ for according “great weight” to
the
opinions
of
the
state
agency
psychological
consultants
(Tr. 25), who each opined that Plaintiff “may have some deficits in
sustained concentration” (Tr. 58, 70), but then allegedly failing
to incorporate those opinions into the MRFC.
(See Docket Entry 8
at 7.) Finally, Plaintiff asserts that the ALJ “remained silent on
the issues of concentration and persistence” (id. at 5) and his
“treatment of pace is insufficient, because [he] did not define
‘production environment’” (id. at 6). Plaintiff’s arguments do not
warrant relief.
The United States Court of Appeals for the Fourth Circuit has
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
Mascio, 780
district
court
has
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 . . . .”
Jones v.
Colvin, No. 7:14cv273, 2015 WL 5056784, at *10 (W.D. Va. Aug. 20,
2015) (emphasis added).
As such, “[a]n 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
11
statements, consultative examinations, or other evidence that is
sufficiently evident to the reviewing court.”
Id. at *12.
Here,
the ALJ’s decision provides a sufficient explanation as to why
limitations in the RFC to “a low stress, low production environment
with
no
rigid
quota”
(Tr.
25)
sufficiently
accounted
for
Plaintiff’s moderate limitation in CPP.
First, the ALJ discussed Plaintiff’s description of her daily
activities.
found
it
(See id.; see also Tr. 42-49.)
“significant[]”
that,
“at
the
In so doing, the ALJ
hearing[,
Plaintiff]
testified that her activities of daily living include reading (an
average of 5-8 hours), watching a great deal of television (an
average of 3-5 hours per day)[,] and researching information on the
internet.”
(Tr. 25; see Tr. 43-44, 47-49.)
The ALJ further noted
that Plaintiff “did not indicate having any problems following
along when she reads or watches television.
She also said that she
spends about 1-2 hours daily on the computer, researching and
reading material.”
ability
to
(Tr. 21; see Tr. 43-44, 47-49.)
maintain
such
sustained
Plaintiff’s
concentration
substantial evidence for the ALJ’s RFC finding.
provides
See, e.g., Shank
v. Berryhill, No. 3:17cv572, 2018 WL 549188, at *14 (S.D. W. Va.
Jan. 3, 2018) (“Moreover, the ALJ examined [the plaintiff’s]
activities,
indicating
that
despite
her
claims
of
poor
concentration, [the plaintiff] was able to spend long hours playing
computer games and watching television. . . .
12
The ALJ carefully
built a logical and accurate bridge from the evidence to his
conclusion” that the plaintiff’s “symptoms were not disabling.”),
report and recommendation adopted, No. CV 3:17-572, 2018 WL 539333
(S.D. W. Va. Jan. 24, 2018).
Second,
the
ALJ
summarized
Plaintiff’s
mental
health
treatment, making the following pertinent observations:
•
Salisbury Psychiatric Associates’ medical records
reflect that Plaintiff initially presented in
December 2010 following a November 2010 suicide
attempt,
reporting
“mood
swings,
decreased
appetite, low energy and guilt. She associated her
mental state with marital problems.” Thereafter,
“[she] was started on [various medicines] for the
purpose of reducing her depression,” and, “based on
the progress notes[,] the [subsequent] changes in
[Plaintiff’s] medication regimen were effective in
controlling her symptoms. Even more significantly,
the progress notes show a pattern of improvement
with treatment.
Specifically, in May 2011
[Plaintiff] reported that she felt better, in June
2011 and October she reported improved mood and in
May 2012 she described her mood as pretty good
(Exhibit 9F).” (Tr. 23; see also Tr. 361-90);
•
When Plaintiff first presented for mental health
treatment at Rowan Psychiatric & Medical Services
in August 2013, “she reported being off her
medications since January 2013.
In addition,
[Plaintiff] reported separating from her husband in
January 2013 causing a financial burden resulting
in [a] four-day [psychiatric] hospital stay in May
2013.”
Her “mental status examination revealed
depressed mood, congruent and constricted affect,
and anxious behavior with a guarded attitude.”
However, her behavior, attention/concentration,
thought processes, and thought content “were
normal,” she possessed “the ability to abstract,”
“[h]er judgment and insight were good,” and she had
“no evidence of a memory impairment, delusions[,]
or suicidal and/or homicidal ideation.” (Tr. 2324; see also Tr. 211-14);
13
•
“When [Plaintiff] returned in September 2013, she
reported that her medications were helping but she
continued to have problems with depression and
difficulty sleeping.
Nevertheless, her mental
status
examination
revealed
no
abnormalities
(Exhibit 2F).” The following month, her medication
dosages “were increased” and “in February 2014,
bipolar disorder was added to [her] diagnoses.
Nevertheless, [Plaintiff’s] objective examinations
have continued to reveal no more than moderate but
mostly mild symptoms.”
For instance, at an
interval visit in September 2014, Plaintiff
“reported occasional suicidal thoughts with no
plans to act on them and some anxiety but she also
reported that she was doing well with stable weight
and improved sleep.
Objectively, [Plaintiff’s]
mood and affect were normal, memory within normal
limits, concentration and judgment intact and fund
of knowledge adequate.
There was no evidence of
psychosis.
Her thought process was logical and
goal directed (Exhibit 7F). None of the subsequent
records prior to the date last insured shows any
significant
or
persistent
changes
in
these
objective findings.” (Tr. 24; see also Tr. 207-10,
348-56); and
•
“[A] review of the treatment notes reveals that
when [Plaintiff] was actively engaged in regular,
consistent mental health treatment, her functioning
vastly improved. The problem had been consistency
and commitment to treatment.” (Tr. 24-25.)
Third, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.
Tr. 25.)
(See
Notably, the ALJ gave “great weight” to the opinions of
the state agency psychological consultants (id.), who each opined
that,
despite
Plaintiff
moderate
“appears
to
deficit
retain
in
CPP
capacity
(see
for
Tr.
SRRTS
58,
69-70),
w[ith]
MRFC
limitations herein” (Tr. 57; see also Tr. 68 (“She appears to
retain capacity for work-related tasks w[ith] MRFC limitations
14
herein.”)).
In regard to any MRFC limitations, the consultants
further found that “[Plaintiff] may have some deficits in sustained
concentration, but is capable of carrying out instructions and has
the ability to maintain attention [and] concentration for 2 hours
at a time as required for the completion of work-related tasks.”
(Tr. 58, 70.)
Thus, although Plaintiff faults the ALJ for “not
address[ing] the particular limitations that comprise the agency’s
mental RFC findings” (Docket Entry 8 at 7), this argument overlooks
the fact that the consultants ultimately concluded that Plaintiff
remained capable of performing SRRTs, as well as of carrying out
instructions and “maintain[ing] attention [and] concentration for
2 hours at a time as required for the completion of work-related
tasks” (Tr. 58, 70).
See
Sizemore
(explaining
v.
that
These considerations foreclose relief.
Berryhill,
a
doctor’s
878
F.3d
opinion
72,
81
that
a
(4th
Cir.
plaintiff
2017)
“would
generally be able to maintain attention for at least two hours at
a time as needed to do simple, routine tasks” provided substantial
support for the ALJ’s finding that the plaintiff could “stay on
task” in performing simple work (brackets, emphasis, and internal
quotation marks omitted)).
Fourth, the ALJ’s restriction to a “low production environment
with no rigid quota” (Tr. 26) in the RFC “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,
15
2016), recommendation adopted, slip op. (M.D.N.C. Sept. 21, 2016)
(Osteen, C.J.).
In that regard:
[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 (emphasis in original); see also id.
at
*7-9
(discussing
authority
addressing
“non-production”
restrictions).
Finally, Plaintiff faults the ALJ for failing to “define
‘production
environment.’”
(Docket
Entry
8
at
6.)
specifically, Plaintiff maintains that
[t]he ALJ did not explain if the limitation was to only
production environments with rigid quotas or if it is for
all production environments and for jobs with rigid
quotas.
Without defining the parameters of the work,
there is no way for this Court to know what assumptions
the vocational witness made about the work pace intended
by the ALJ.
16
More
(Id. (emphasis in original).)
This argument likewise falls short.
To begin, the ALJ actually limited Plaintiff to “a low stress,
low production environment with no rigid quota” (Tr. 26; see
also Tr. 50 (posing hypothetical regarding “work that would be in
a low stress, low production work environment where there are no
rigid production or quotas required in the performance of, again,
simple, routine, repetitive tasks”)) rather than an unconstrained
“production environment.”6
Second, the VE expressed no difficulty
understanding the meaning of “low production work environment” in
the
ALJ’s
hypothetical
representative,
declined
to
despite
question
an
the
(see
Tr.
opportunity
VE
on
this
50),
for
issue
and
Plaintiff’s
cross-examination,
(see
Tr.
50-51).
Accordingly, Plaintiff cannot obtain relief on this ground.
See
Pierson v. Commissioner of Soc. Sec., No. 1:12cv126, 2013 WL
428751, at *7 (S.D. Ohio Feb. 1, 2013) (finding “that despite the
purported vagueness of the term [‘superficial’], any error would be
harmless as the VE was able to understand the term and testified
that there were jobs in the local and national economy that [the]
plaintiff could perform”), report and recommendation adopted, No.
1:12cv126, 2013 WL 791875 (S.D. Ohio Mar. 4, 2013).
Under these circumstances, the ALJ adequately explained why
limitations to “a low stress, low production environment with no
6
This fact materially distinguishes this aspect of the ALJ’s RFC in this case
from the undeveloped “production rate” and “demand pace” terms found wanting in
Thomas v. Berryhill, __ F.3d __, __, 2019 WL 193948, at *3 (4th Cir. 2019).
17
rigid
quota”
(Tr.
26)
sufficiently
moderate limitation in CPP.
accounted
for
Plaintiff’s
The Court should therefore reject
Plaintiff’s first assignment of error.
2.
The RFC Determination
In Plaintiff’s second assignment of error, she argues that the
ALJ failed to adequately address her “stress-related limitations.”
(Docket Entry 8 at 9.)
In Plaintiff’s view, “[t]he ALJ employs
flawed reasoning in equating production quotas with work stress”
(id.), for “there is no record of difficulties with work quotas or
production demands[ and t]he ALJ did not explain how [Plaintiff’s]
difficulties
are
alleviated
by
the
freedom
environments or rigid quotas” (id. at 10).
from
production
(See also id. at 9 (“As
in Mascio, the ALJ’s decision in this matter is lacking in any
analysis
necessary
for
court
review.”).)
In
sum,
Plaintiff
maintains, “[t]he error in this case is the failure to conduct an
individualized inquiry.”
(Id. at 10.)7
7
This argument lacks merit.
Plaintiff asserts in the caption of her second assignment of error that “the
ALJ did not explain how he found [her] capable of medium [sic] level work on a
sustained basis in the [RFC].”
(Id. at 8 (bold font omitted).)
She later
contends that, “[i]n conclusory fashion, the ALJ stated [that Plaintiff] was
capable of working at all exertional levels on a regular and continuing basis.”
(Id. at 10.)
Finally, Plaintiff argues that “[t]he ALJ concluded that
[Plaintiff] could perform work and summarized evidence that he found credible,
useful, and consistent. But the ALJ did not explain how he concluded — based on
this evidence — that [Plaintiff] could actually perform the tasks required.”
(Id. at 11 (emphasis in original).) To the extent that Plaintiff seeks to raise
an argument regarding some physical limitations distinct from her stress-related
contentions, such argument fails. As an initial matter, Plaintiff based her
disability claim strictly on mental limitations.
(See Tr. 157 (identifying
conditions that limit work ability as “1. Bipolar disorder 2. suicidal
3. sever[e] depression” (bold font omitted)); see also Tr. 160 (answering “No”
to question of whether she has seen or has an appointment scheduled with a
medical professional “[f]or any physical condition(s)” (bold font omitted)).)
(continued...)
18
First, the ALJ did not “equat[e] production quotas with work
stress” (id. at 9) nor purport to “alleviate[]” Plaintiff’s stressrelated
“difficulties”
by
“free[ing
her]
from
production
environments or rigid quotas” (id. at 10). Rather, the ALJ limited
her to a “low stress” work environment with “occasional exposure to
people.”
(Tr. 22, 26 (bold font omitted).)
The ALJ additionally
limited her to “simple, routine[,] and repetitive tasks.” (Tr. 22,
25 (bold font omitted).)
Plaintiff does not acknowledge these
restrictions, let alone challenge their sufficiency in addressing
her stress-related limitations.
(See Docket Entry 8 at 8-11.)
Moreover, in formulating these restrictions, the ALJ “buil[t]
an ‘accurate and logical bridge’ from the evidence” that the ALJ
“found credible, useful, and consistent . . . . to his conclusion
about [Plaintiff’s RFC]” (id. at 11). The ALJ examined Plaintiff’s
description of daily activities and social functioning (see Tr. 21,
25), noting that, although Plaintiff “said she does not go out
often” (Tr. 22-23; see Tr. 44-45) and “said that she does not trust
others and has difficulty in crowds” (Tr. 22; see Tr. 44), as she
“feel[s] that everyone is looking at her” (Tr. 21; see Tr. 45),
Plaintiff also reported that “she loves playing and talking to her
7
(...continued)
Nevertheless, the ALJ considered her obesity and found that it did not limit her
ability to work.
(See Tr. 24 (“The [ALJ] has also considered [Plaintiff’s]
obesity in formulating [her RFC] and concludes that there is no evidence that
prior to the date last insured obesity would have precluded the performance of
substantial gainful work activity.”).) Plaintiff has identified no evidence in
the record that undermines that conclusion. (See Docket Entry 8 at 8-11.)
19
children and grandchildren and gardening,” “she drives herself to
the grocery store and doctor’s appointments” (Tr. 25; see Tr. 42,
46-47), and,
“[i]n
June
2014[,
she]
reported
that
she
walks
everyday” (Tr. 25; see Tr. 258). The ALJ also examined Plaintiff’s
medical records (Tr. 23-24), noting, inter alia, that, at her
December 2010
initial
evaluation, “[Plaintiff]
associated
her
mental state with marital problems,” and, at her August 2013
evaluation, Plaintiff “reported being off her medications since
January 2013” and “separating from her husband in January 2013
causing a financial burden resulting in the four-day hospital stay
in May 2013.”
(Tr. 23; see also Tr. 386-90, 211-14.)
The ALJ then concluded that
[t]here is no doubt that prior to the date last
insured, [Plaintiff] suffered from “severe” mental health
problems. Furthermore, she required frequent monitoring
and medication. However, the evidence demonstrates that
despite [Plaintiff’s] mental health problems, prior to
the date last insured she was still able to take care of
her basic personal care needs, think, communicate, act in
her own interest and get along with others. Overall, the
records
show
that
[Plaintiff]
reported
episodic
exacerbations due to psychosocial stressors such as
financial stress, but mostly due to her tumultuous
relationship with her husband as opposed to depression
and anxiety to the degree of precluding all work. As
such, the [ALJ] concludes that[,] although prior to the
date last insured, [Plaintiff] was unable to perform
work, which is of high stress and was precluded from work
involving complex or detailed tasks, which is required of
skilled work, she was not precluded from work involving
simple work-related instructions and directions and
simple routine tasks.
(Tr. 24.)
The ALJ further found that Plaintiff’s description of
her daily activities, including her interactions with her family,
20
“show that[,] prior to date last insured, when [Plaintiff] was
compliant with treatment, she was capable of sustaining basic work
activities.”
(Tr. 25.)
Finally, based on this evidence, the ALJ
“conclude[d] that[,] despite [Plaintiff’s] mental health problems,
prior to the date last insured[, Plaintiff] retained the ability to
perform simple, routine and repetitive tasks at any exertional
level in a low stress . . . environment with . . . occasional
exposure to people.”
(Tr. 25-26.)
In short, “the ALJ considered and discussed the record at
length and built a substantial bridge between the evidence in the
record and
Mascio.”
the
RFC,”
providing
“no
basis
for
reversal
under
Stutts v. Berryhill, No. 1:17cv586, 2018 WL 3764265, at
*5 (M.D.N.C. Aug. 8, 2018) (Peake, M.J.), report and recommendation
adopted, No. 1:17cv586, 2018 WL 4374928 (M.D.N.C. Sept. 13, 2018)
(Biggs, J.).
The Court should therefore reject Plaintiff’s second
assignment of error.
3.
The
ALJ
must
Plaintiff’s Testimony
employ
a
two-step
process
claimant’s statements regarding her symptoms.
Ruling 16-3p, Titles II and XVI:
in
evaluating
a
See Social Security
Evaluation of Symptoms in
Disability Claims, 2017 WL 5180304, at *3 (Oct. 25, 2017) (the “SSR
16-3p”); see also 20 C.F.R. § 404.1529.
First, the ALJ “must
consider whether there is an underlying medically determinable
physical or mental impairment(s) that could reasonably be expected
21
to produce an individual’s symptoms, such as pain.”
2017 WL 5180304, at *3.
SSR 16-3p,
If, as here, the ALJ finds that the
claimant satisfies this step (see Tr. 23), the analysis then turns
to an assessment of the intensity and persistence of the claimant’s
symptoms, as well as the extent to which those symptoms affect her
ability to work.
See SSR 16-3p, 2017 WL 5180304, at *3.
In making
that determination, the ALJ must “examine the entire case record,
including
the
objective
medical
evidence;
an
individual’s
statements about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided by medical
sources and other persons; and any other relevant evidence in the
individual’s case record.”
fell
short
at
the
Id. at *4.
second
step,
as
In this case, Plaintiff
the
ALJ
concluded
that
“[Plaintiff’s] statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with
the medical evidence and other evidence in the record for the
reasons explained in th[e ALJ’s] decision.”
disputes this assessment.
(Tr. 23.)
Plaintiff
(See Docket Entry 8 at 11-18.)
More specifically, Plaintiff argues that “the ALJ did not give
legally sufficient reasons supported by substantial evidence for
finding [her] testimony not entirely consistent.” (Id. at 11 (bold
font omitted).) In particular, Plaintiff asserts that “[t]he ALJ’s
decision includes one passage that might constitute a discussion of
symptom severity[]” (id. at 13), but that “paragraph fails to offer
22
valid reasons for discounting [Plaintiff’s] symptoms” (id. at 14).
(See
id.
testimony
at
13-14
regarding
(quoting
her
Tr.
22-23
symptoms)).)
(detailing
Plaintiff
Plaintiff’s
additionally
challenges the ALJ’s evaluation of her activities of daily living,
contending that her ability to engage in such activities “is not
evidence that she can perform work-related functions on a regular
and continuing basis.” (Id. at 14.) Finally, Plaintiff faults the
ALJ for “rel[ying] heavily on sporadic notations of [Plaintiff]
being stable or saying she was doing ok” (id. at 15).
15-18.)
(See id. at
These contentions fail to justify remand.8
As an initial matter, the ALJ’s decision contains more than
the
single
paragraph
that
Plaintiff
maintains
comprises
entirety of the ALJ’s analysis of Plaintiff’s symptoms.
Tr. 22-26.)
the
(See
Furthermore, the ALJ’s analysis provides “legally
sufficient reasons supported by substantial evidence for finding
8
Relying on Mascio, Plaintiff additionally asserts that the ALJ erred in
“suppl[ying] boilerplate addressing [Plaintiff’s] symptom severity.” (Id. at
12.) Here, however, the ALJ did not use the “boilerplate” language — namely,
that “the claimant’s statements concerning the intensity, persistence and
limiting effects of [her] symptoms are not credible to the extent they are
inconsistent with the above [RFC] assessment” — that the Fourth Circuit has found
problematic because such language “‘gets things backwards’ by implying that
ability to work is determined first and is then used to determine the claimant’s
credibility,” Mascio, 780 F.3d at 639 (some internal quotation marks omitted).
(See Tr. 22-26.) Moreover, contrary to Plaintiff’s contentions, the ALJ bore no
obligation to “analyze[ Plaintiff’s] credibility” (Docket Entry 8 at 12).
See Esque v. Berryhill, No. 1:18cv29, 2018 WL 6201727, at *5 & n.6 (M.D.N.C. Nov.
28, 2018). Finally, Plaintiff argues that “[t]he ALJ improperly only discusses
objective medical testing and signs to discount [Plaintiff’s] symptoms” (Docket
Entry 8 at 14), but, as Plaintiff concedes in her very next sentence, “[t]he ALJ
in addressing [Plaintiff’s] symptoms [also] mentions she walks, reads, watches
television, researches on the internet, does household chores, talks and plays
with her grandchildren, and drives to the grocery store and doctor’s
appointments” (id. (citing Tr. 25)). In sum, these additional arguments entitle
Plaintiff to no relief.
23
[Plaintiff’s] testimony not entirely consistent.”
at 11 (bold font omitted).)
regarding
her
symptoms
(Docket Entry 8
After detailing Plaintiff’s testimony
(see
Tr.
22-23),
the
ALJ
found
that
“[Plaintiff’s] statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with
the medical evidence and other evidence in the record for the
reasons explained in th[e ALJ’s] decision.”
(Tr. 23.)
The ALJ
elaborated:
While the evidence shows that [Plaintiff] has some
degree
of
depression,
the
[ALJ]
cannot
accept
[Plaintiff’s] testimony regarding the severity and
limiting effects of her psychiatric symptoms prior to her
date last insured. The [ALJ] notes that [Plaintiff] has
had at least one inpatient psychiatric hospitalization
and has participated in outpatient mental health
treatment. However, for the most part the records show
that[,] through the date last insured, [Plaintiff’s]
mental health symptoms were stable when she was compliant
and committed to treatment.
(Tr. 23.)
The ALJ then detailed Plaintiff’s medical records (see
Tr. 23-24),
which
revealed:
“a
pattern
of
improvement
with
treatment” (Tr. 23); repeatedly normal behavior, thought processes,
thought content, memory, and attention/concentration (Tr. 23-24);
generally
effective
control
of
Plaintiff’s
symptoms
through
medication (id.); and “no more than moderate but mostly mild
symptoms” (Tr. 24).
Per the ALJ, the medical records further
reflected that “[Plaintiff] reported episodic exacerbations due to
psychosocial stressors such as financial stress, but mostly due to
her
tumultuous
relationship
with
24
her
husband
as
opposed
to
depression and anxiety to the degree of precluding all work.”
(Id.)9
The ALJ additionally concluded that “a review of the treatment
notes
reveals
that
when
[Plaintiff]
was
actively
engaged
in
regular, consistent mental health treatment, her functioning vastly
improved.
The problem had been consistency and commitment to
treatment.”
(Tr. 24-25.)
“[s]ignificant[]”
that,
In this regard, the ALJ found it
“when
[Plaintiff]
presented
to
Rowan
Psychiatric & Medical Services in August 2013, she reported being
hospitalized in May 2013[,] but she also reported being off her
medications since January 2013. In December 2014, [Plaintiff] also
reported being out of her medications for one week causing an
exacerbation in her depressive symptoms.”
citations omitted).)
(Tr. 25 (parenthetical
This objective evidence provides “valid
reasons for discounting [Plaintiff’s description of her] symptoms”
(Docket Entry 8 at 14).
251,
259
(4th
Cir.
supported
the
ALJ’s
reporting
where
See, e.g., Sharp v. Colvin, 660 F. App’x
2016)
“the
(finding
discounting
ALJ
that
of
concluded
9
substantial
the
that
plaintiff’s
[the
evidence
symptom
plaintiff’s]
Plaintiff maintains that the ALJ failed to consider “what precipitates or
aggravates [Plaintiff’s] symptoms which [Plaintiff] described in her testimony”
(Docket Entry 8 at 15 (citing Tr. 36-41, 45, 49)), but Plaintiff has not
identified any particular factor from her testimony that the ALJ neglected to
consider (see id. at 14-15). In any event, the ALJ did address factors that
Plaintiff identified at the hearing (see Tr. 37 (testifying that, during her
manic periods, “sometimes I overspend where I don’t have the money[, a]nd then
once I spend the money, I go into this depression again”)) and in her treatment
notes (see, e.g., Tr. 211-14 (identifying marital and financial stressors and
lack of medication)) as precipitating and aggravating factors for Plaintiff’s
symptoms. (See Tr. 22-26.)
25
statements about the extent of her limitations were not fully
supported by objective medical evidence”); Johnson v. Barnhart, 434
F.3d 650, 658 (4th Cir. 2005) (affirming the ALJ’s decision to
discredit the plaintiff’s testimony regarding symptom severity
where, inter alia, the testimony “[wa]s not supported by any
objective medical evidence”).
In addition, Plaintiff’s “activities of daily living prior to
the date last insured” (Tr. 24) contradict her testimony regarding
symptom severity.
(See
Tr.
24-25.)
For
instance, although
Plaintiff “described episodes of depression when she is unable to
get out of bed for three weeks at a time” (Tr. 22; see Tr. 37-38)10
and debilitating fatigue (see Tr. 22, 37-39, 43), the ALJ noted
that, “in June 2014[, Plaintiff] reported that she walks everyday”
(Tr. 25; see Tr. 258).
Further, as stated above, the ALJ found it
“[e]ven more significant[]” that Plaintiff testified at the hearing
that
her activities of daily living include reading (an
average of 5-8 hours), watching a great deal of
television (an average of 3-5 hours per day) and
researching information on the internet.
[Plaintiff]
further testified that she performs all household chores
at times. She said that she loves playing and talking to
her children and grandchildren and gardening. She also
said that she drives herself to the grocery store and
doctor’s appointments.
(Tr. 25.)
10
Notably, Plaintiff did not testify that these episodes occurred prior to her
date last insured. (See Tr. 37 (“Here lately it’s been about . . . three weeks
out of a month where I’m incapacitated and where I can’t get myself up out of the
bed and just live I call it a normal life.” (emphasis added)).)
26
These activities likewise provide “substantial evidence” for
the ALJ’s finding that Plaintiff’s “statements concerning the
intensity, persistence and limiting effects of these symptoms are
not entirely consistent” (Tr. 23) with the record.
See, e.g.,
Johnson, 434 F.3d at 658 (upholding finding that the plaintiff’s
“complaints of pain [were] inconsistent with her testimony of her
routine activities,” which included, inter alia, “read[ing] books,
watch[ing] television, clean[ing] the house, wash[ing] clothes,
[and] visit[ing] relatives,” explaining that “[t]he ALJ logically
reasoned
that
the
ability
to
engage
in
such
activities
is
inconsistent with [the plaintiff’s] statements of excruciating pain
and her inability to perform such regular movements like bending,
sitting, walking, grasping, or maintaining attention”).
Nevertheless, Plaintiff takes issue with the ALJ’s conclusion
that “[t]hese activities . . . show that prior to date last
insured, when [Plaintiff] was compliant with treatment, she was
capable of sustaining basic work activities” (Tr. 25).
to
Plaintiff,
an
ALJ
“must
explain
how
he
According
determined
that
performing certain functions for a short period translates into an
ability to perform them for a full workday,” but “[t]he ALJ failed
to do so here.”
(Docket Entry 8 at 14 (citing “Mascio” and “Brown
v. Comm’r of Soc. Sec., 873 F.3d 251, 263 (4th Cir. 2017)”).)
In
Brown, “the ALJ noted that [the plaintiff] testified to daily
activities
of
living
that
included
27
‘cooking,
driving,
doing
laundry, collecting coins, attending church and shopping,’” without
“acknowledg[ing] the extent of those activities as described by
[the plaintiff],” namely “that he simply prepared meals in his
microwave, could drive only short distances without significant
discomfort, only occasionally did laundry and looked at coins,
. . . had discontinued regular attendance at church[,] and limited
his shopping to just thirty minutes once a week.”
at 263.
Brown, 873 F.3d
In addition, “the ALJ provided no explanation as to how
those particular activities — or any of the activities depicted by
[the
plaintiff]
—
eight-hour workday.”
showed
that
he
could
persist
through
an
Id.
However, unlike in Brown, the record here reflects that
Plaintiff engaged in frequent and prolonged daily activities.
For
instance, as previously noted, in June 2014, Plaintiff reported
that she walked each day (Tr. 258), and, at the hearing, Plaintiff
testified
that,
“[i]n
an
average
24-hour
day,”
she
watches
television “about three to five hours,” spends about “five to eight
hours” reading (Tr. 44), and spends “about an hour and a half, two
hours” on the computer, doing “[m]ostly just research” (Tr. 47).
She further testified that she gardens as well as talks and plays
with her children and grandchildren.
properly
“acknowledge[d]
the
extent
(Tr. 46-48.)
of
those
described by [Plaintiff],” Brown, 873 F.3d at 263.
25.)
The ALJ
activities
as
(See Tr. 21,
He also logically found that the ability to engage in, on
28
average, 9.5 to 15 hours of reading, watching television, and
researching
on
the
computer,
as
well
as
daily
walking,
“perform[ing] all household chores at times” (Tr. 25; see Tr. 44),
driving herself to doctor’s appointments and the grocery store
(Tr. 25; see Tr. 42), and “playing and talking to her children and
grandchildren and gardening” (Tr. 25), “show that[,] prior to date
last insured, when [Plaintiff] was compliant with treatment, she
was
capable
of
sustaining
basic
work
activities”
(id.).
Accordingly, the ALJ did not reversibly err in his analysis of
Plaintiff’s daily activities.
Finally, Plaintiff argues that “[t]he ALJ relies heavily on
sporadic notations of [Plaintiff] being stable or saying she was
doing ok,” and erroneously “implies that this medical term means
[Plaintiff’s] conditions had gotten better.”
15-16.)
(Docket Entry 8 at
Plaintiff further argues that “[c]ourts have held as a
matter of law that the phrase ‘doing well’ or is ‘stable’ cannot be
such an inconsistency if the notes show that the claimant is only
doing well relative to a prior, poor state.”
(Id. at 16.)
In
addition, Plaintiff maintains that the Fourth Circuit “has found
that ‘isolated references in the physician’s notes to “feeling
well” and
“normal
activity”
are
not
a
substantial
basis
for
rejecting as incredible the claimant’s subjective complaints of
exertional limitation.’”
(Id. at 18 (quoting Kellough v. Heckler,
29
785 F.2d 1147, 1153 (4th Cir. 1986)).)
Plaintiff’s contentions
fail to justify relief.
As
an
initial
matter,
Kellough
merely
instructs
that
references in medical notes such as “‘[f]eels well’ and ‘normal
activity’ must be read in context.”
Kellough, 785 F.2d at 1153.
Here, however, Plaintiff identifies no specific piece of medical
evidence that the ALJ allegedly took out of context.
Entry 8 at 15-18.)
(See Docket
Additionally, the ALJ used the word “stable”
only twice, including noting that, at a September 2014 appointment,
Plaintiff “reported that she was doing well with stable weight and
improved sleep.”
(Tr. 24.)
The ALJ further found that, “for the
most part the records show that through the date last insured,
[Plaintiff’s] mental health symptoms were stable when she was
compliant and committed to treatment.”
(Tr. 23.)
The medical
evidence discussed above — including “progress notes [that] show a
pattern of improvement with treatment,” “changes in [Plaintiff’s]
medication
regimen
[that]
were
effective
in
controlling
her
symptoms,” and “objective examinations [that] have continued to
reveal no more than moderate but mostly mild symptoms” involving
normal mood, affect, and memory, with intact concentration and
judgment and “no evidence of psychosis” (Tr. 23-24) — provide
substantial
evidence
in
support
of
that
conclusion.
(See
also Tr. 25 (noting that, “prior to the date last insured, no
30
examining or treating physician provided an opinion that the
claimant was unable to work”).)
“Considered on the record as a whole,” Kellough, 785 F.2d at
1153,
substantial
evidence
likewise
supports
the
ALJ’s
determination that:
In short, [Plaintiff’s] testimony is inconsistent
with the objective medical evidence, and in resolving
inconsistencies between the objective medical evidence,
which presents a longitudinal history of [Plaintiff’s]
complaints and limitations, and [Plaintiff’s] later
subjective
testimony,
which
presents
a
current
recollection of those complaints and limitations, the
[ALJ] is persuaded that the contemporaneous recordation
of those complaints and limitations provided by the
objective medical evidence is the more persuasive
evidence.
(Tr. 25.)
As such, the ALJ did not err in finding Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms are not entirely consistent with the
medical evidence and other evidence in the record.”
(Tr. 23.) The
Court thus should reject Plaintiff’s final assignment of error.
III. CONCLUSION
Plaintiff has established no grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that 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 7) be denied, that Defendant’s Motion for Judgment on the
31
Pleadings (Docket Entry 9) be granted, and that this case be
dismissed with prejudice.
This 27th day of February, 2019.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
32
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