MARTIN v. BERRYHILL
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION, signed by Magistrate Judge L. Patrick Auld on 08/07/2019, that the Commissioner's decision finding no disability be affirmed, Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner of Social Security 11 be denied, and Defendant's Motion for Judgment on the Pleadings 13 be granted, and that this action be dismissed with prejudice. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
AIOFIMI S. MARTIN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social
Security,1
Defendant.
1:18CV161
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Aiofimi S. Martin, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying
(“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
Benefits
Defendant has filed the certified
administrative record (Docket Entry 8 (cited herein as “Tr. __”)),
and both parties have moved for judgment (Docket Entries 11, 13;
see also Docket Entry 12 (Plaintiff’s Memorandum); Docket Entry 14
(Defendant’s Memorandum); Docket Entry 15 (Plaintiff’s Reply). For
1
The United States Senate confirmed Andrew M. Saul as the Commissioner of
Social Security on June 4, 2019, and he took the oath of office on June 17, 2019.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul
is substituted for Nancy A. Berryhill as the Defendant in this suit. Neither the
Court nor the parties need take any further action to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB, alleging a disability onset date of
November 15, 2006.
(Tr. 329-32.)
Upon denial of that application
initially (Tr. 124-35, 176-79) and on reconsideration (Tr. 136-50,
181-84),
Plaintiff
requested
a
hearing
Administrative Law Judge (“ALJ”) (Tr. 186).
de
novo
before
an
Plaintiff, her non-
attorney representative, and a vocational expert (“VE”) attended
the hearing.
(Tr. 76-123.)
The ALJ subsequently determined that
Plaintiff did not qualify as disabled under the Act. (Tr. 151-65.)
The Appeals Council granted Plaintiff’s request for review and
remanded the case for further administrative proceedings, including
reevaluation of the impact of Plaintiff’s respiratory disorder and
the opinion of consultative examiner Dr. William Link.
(Tr. 171-
75, 243-50, 309-13.)
The ALJ convened a second hearing, which Plaintiff, her nonattorney representative, and a VE attended.
(Tr. 35-75.)
The ALJ
again ruled that Plaintiff failed to qualify as disabled.
(Tr. 9-
23.) The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 1-6, 328, 536-39), thereby making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
In
rendering
that
decision,
findings:
2
the
ALJ
made
the
following
1.
[Plaintiff] last met the insured status requirements
of the . . . Act on September 30, 2016.
2.
Through September 30, 2016, [Plaintiff] engaged in
substantial gainful activity during the following
periods: October 2014 through December 2014.
. . .
3.
However, there has been a continuous 12-month
period(s) during which [Plaintiff] did not engage in
substantial gainful activity.
The remaining findings
address the period(s) [Plaintiff] did not engage in
substantial gainful activity.
. . .
4.
Through the date last insured, [Plaintiff] had the
following severe impairments: disorders of the back,
other disorders of the respiratory system, obesity,
anxiety, and affective disorders.
. . .
5.
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.
. . .
6.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform light
work . . . except she requires a sit/stand option while
remaining on task; she can frequently operate hand
controls bilaterally; frequently reach overhead with the
bilateral upper extremities; frequently handle, finger,
and feel bilaterally; occasionally climb ramps and
stairs; never climb ladders, ropes, or scaffolds;
occasionally balance, stoop, kneel, crouch, and crawl;
limited to hearing and understanding simple oral
instructions; no work at unprotected heights; can
occasionally work around moving mechanical parts; can
occasionally work in dust, odors, fumes and pulmonary
irritants;
can
occasionally
work
in
vibration;
understand, remember and carryout [sic] instructions is
limited to perform [sic] simple, routine tasks; use
3
judgment is limited to simple work-related decisions; and
dealing with changes in the work setting is limited to
simple work-related decisions.
. . .
7.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.
was
. . .
11. Through
the
date
last
insured,
considering
[Plaintiff’s] age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
12. [Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from August 9, 2014, the
alleged onset date, through September 30, 2016, the date
last insured.
(Tr. 14-23 (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.
4
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
5
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)).2
“To
regularize
the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
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 (internal
citations omitted).
6
account
a
claimant’s
age,
education,
and
work
experience
addition to [the claimant’s] medical condition.”
Id.
regulations
process’
establish
a
‘sequential
evaluation
in
“These
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).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
7
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
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
4
able
to
work
other
jobs
“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.
8
available in the community,” the claimant qualifies as disabled.
Hines, 453 F.3d at 567.5
B.
Assignments of Error
Plaintiff asserts that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ failed to either accommodate or reject the
limitations assessed by Dr. [William] Link and [Clyde A.] Collins[,
M.A., C.A.S.]” (Docket Entry 12 at 16 (bold font and single-spacing
omitted); see also Docket Entry 15 at 2-5);6
2) the ALJ failed to provide “a legally sufficient basis for
rejecting [Plaintiff’s] testimony” (Docket Entry 12 at 20 (bold
font and single-spacing omitted); see also Docket Entry 15 at 5-6);
and
3)
“the
ALJ
failed
to
properly
account
for
all
of
[Plaintiff’s] mental limitations” in the RFC (Docket Entry 12 at 25
(bold font and single-spacing omitted); see also Docket Entry 15 at
6-7).
5
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
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.”).
6
Pin citations to Plaintiff’s filings refer to the page numbers that
appear in the footer appended to those filings upon their docketing in the CM/ECF
system (not to the roman and arabic numerals originally used to paginate those
filings).
9
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 14 at 4-10.)
1. Opinions of Dr. Link7
Plaintiff’s first assignment of error states that “[t]he ALJ
failed to either accommodate or reject the limitations assessed by
Dr. Link.”
(Docket Entry 12 at 16 (bold font and single-spacing
omitted); see also Docket Entry 15 at 2-5.)
More specifically,
Plaintiff disputes the reasons cited by the ALJ for discounting Dr.
Link’s opinions as “legally insufficient.”
18.)
(Docket Entry 12 at
Plaintiff has not established a basis for relief.
On
November
14,
2014,
Dr.
Link
oversaw
a
consultative
psychological evaluation of Plaintiff (Tr. 743-47), and diagnosed
Plaintiff
with
“[d]epressive
disorder
due
to
another
medical
condition with depressive features” (Tr. 746). As a result of that
impairment, Dr. Link opined that Plaintiff “demonstrate[d] the
ability to understand, retain and follow simple oral instructions
as well as written instructions without intervention,” and could
“sustain attention well enough to perform simple repetitive tasks
for 30 minute periods of time.”
(Id.)
Dr. Link further concluded
that Plaintiff could “relate with fellow workers and supervisors in
smaller work settings, but m[ight] have difficulty in medium to
7
Mr. Collins performed the consultative examination in question;
however, Dr. Link signed the examination report as the supervising psychologist.
(See Tr. 747.) For ease of reading, this Recommendation refers to the opinions
as those of Dr. Link.
10
large size work settings” and would “have difficulty tolerating
stressors and pressures in larger work settings.”
(Id.)
The ALJ discussed Dr. Link’s opinions, and then afforded them
“partial weight,” noting that Dr. Link based his opinions “on a
comprehensive
but
[Plaintiff].”
one-time
(Tr. 21.)
psychological
examination
of
The ALJ further found that “nothing in
the record [] support[ed] that [] [Plaintiff] can only sustain
attention for 30-minute periods, as only mild distractibility was
noted.”
(Id.)
Plaintiff challenges both of the ALJ’s rationales
for discounting Dr. Link’s opinions.
(See Docket Entry 12 at 17-
18; Docket Entry 15 at 2-5.)
Consultative examiners such as Dr. Link do not constitute
treating
§
sources
404.1527(c)(2),
under
and
the
regulations,
thus
their
see
opinions,
as
20
a
C.F.R.
general
proposition, do not warrant controlling weight, Turberville v.
Colvin, No. 1:11CV262, 2014 WL 1671582, at *6 (M.D.N.C. Apr. 23,
2014) (unpublished), recommendation adopted, slip op. (M.D.N.C. May
15, 2014)
(Eagles,
J.).
However,
the ALJ
must
nevertheless
evaluate consultative opinions using the factors outlined in the
regulations, and expressly indicate and explain the weight he or
she
affords
to
such
opinions.
See
20
C.F.R.
§
404.1527(c)
(“Regardless of its source, [the ALJ] will evaluate every medical
opinion [he or she] receive[s]” and where an opinion does not
warrant controlling weight, the ALJ must “consider all of the . . .
11
factors [in 20 C.F.R. § 404.1527(c)(1)-(6)] in deciding the weight
[to] give to any medical opinion.” (emphasis added)).
Plaintiff argues that “the first reason that the ALJ gave,
that the opinion of . . . Dr. Link was based only on a one-time
evaluation, was not a legally sufficient reason.” (Docket Entry 12
at 17-18.)
According to Plaintiff, “[w]hile the frequency of
interaction between a medical source and a claimant is relevant, it
is only one of several factors that an ALJ should consider in
weighing medical opinion evidence, including supportability and
consistency with the record.”
§ 404.1527(c)).)
(Id. at 18 (citing 20 C.F.R.
Plaintiff’s argument fails for the simple reason
that the ALJ did not solely rely on Dr. Link’s status as a one-time
examiner to discount his opinions.
(See Tr. 21.)
Rather, the ALJ
also found that Dr. Link’s own finding of mild distractibility did
not support his opinion that Plaintiff could only pay attention for
30-minute periods of time.
(See id.; see also Tr. 745, 746.)
Plaintiff also contends that “the ALJ’s bare assertion that
the opinion of . . . Dr. Link was not supported by the record does
not make it so.”
(Docket Entry 12 at 18.)
More specifically,
Plaintiff maintains that the ALJ’s decision does not satisfy the
ALJ’s obligation “to show [the ALJ’s] work and to present findings
and determinations sufficiently articulated to permit meaningful
judicial review” (id. (citing Testamark v. Berryhill, 736 F. App’x
395 (4th Cir. 2018))); however, as documented above, the ALJ
12
specifically noted that Dr. Link’s own finding that Plaintiff
displayed mild distractibility contradicted Dr. Link’s opinion that
Plaintiff could only sustain attention for 30-minute periods. (Tr.
21.)
Moreover,
elsewhere
in
the
ALJ’s
decision,
she
further
detailed evidence that undermined Dr. Link’s opinion regarding
Plaintiff’s attention span:
With regard to [Plaintiff’s] mental impairments, the
record shows that in a November 2014 psychological
consultative examination performed by . . . . [Dr. Link],
[Plaintiff] reported that she had been depressed since
2006. She was noted to be polite and cooperative, and
her hygiene and grooming were noted to be exemplary.
[Plaintiff] reported symptoms including difficulty
focusing, fatigue, easy frustration, and irritableness.
However, on mental status examination, [Plaintiff] was
alert and responsive to tasks. Her thought processing
was coherent and there was no evidence of loose
associations or tangential procession.
Although mild
distractibility was noted, verbal redirection was
effecting [sic] in refocusing attention to tasks. She
was diagnosed with depressive disorder.
She was also diagnosed with depressive disorder by her
primary care provider and she reported anxiety. However,
[Plaintiff] reported no depression in October 2015, and
she admitted that she had not sought treatment from a
mental health specialist.
(Tr. 19 (emphasis added) (internal citations omitted).)
That
analysis also suffices to show the ALJ’s work and to permit
judicial review.
See McCartney v. Apfel, 28 F. App’x 277, 279-80
(4th Cir. 2002) (rejecting challenge to ALJ’s finding for lack of
sufficient detail where other discussion in decision adequately
supported finding and stating “that the ALJ need only review
13
medical evidence once in his decision”); Kiernan v. Astrue, No.
3:12CV459-HEH, 2013 WL 2323125, at *5 (E.D. Va. May 28, 2013)
(unpublished) (observing that, where an “ALJ analyzes a claimant’s
medical
evidence
in
one
part
of
his
decision,
there
is
no
requirement that he rehash that discussion” in other parts of his
analysis).8
In Plaintiff’s Reply, she argues for the first time that
“[t]he ALJ did not accommodate or reject [Dr. Link’s] limitation of
difficulty
interacting
with
co-workers
and
supervisors
and
tolerating the stress and pressure of [the] workplace in a large
setting.”
(Docket Entry 15 at 4; see also id. (observing that
“[t]he ALJ did not impose any limitation on [Plaintiff’s] ability
to interact with co-workers, supervisors, or the public”).)
That
argument fails for three reasons.
First, the Court should not consider an argument, as here,
raised for the first time in a reply brief.
“Reply briefs . . .
may not inject new grounds . . . [and an] argument [that] was not
8
Plaintiff asserts that 1) the opinion of the state agency psychological
consultant at the reconsideration level of review that Plaintiff suffered mild
limitation in her ability to perform daily activities, maintain social
functioning, and maintain concentration, persistence, or pace (“CPP”) (Docket
Entry 12 at 18-19 (citing Tr. 142)), and 2) Plaintiff’s own testimony “that her
depressive symptoms make it hard for her to get out of bed and to function” (id.
at 19 (citing Tr. 106, 111)), support Dr. Link’s opinions. However, Plaintiff
fails to explain how mild limitations in the broad areas of mental functioning
support Dr. Link’s opinions and, more particularly, how mild limitation in CPP
supports Dr. Link’s rather extreme opinion that Plaintiff could only sustain
attention for 30 minutes at a time.
Moreover, the ALJ found Plaintiff’s
testimony “not entirely consistent with the medical evidence and other evidence
in the record” (Tr. 18) and, as discussed in more detail below, the ALJ supported
that finding with substantial evidence.
14
contained in the main brief . . . is not before the Court.”
Triad
Int’l Maint. Corp. v. Aim Aviation, Inc., 473 F.Supp.2d 666, 670
n.1 (M.D.N.C. 2006) (citing M.D.N.C. LR7.3(h)) (recommendation of
Eliason, M.J., adopted by Beaty, J.); accord, e.g., Jarvis v.
Stewart, No. 1:04CV642, 2005 WL 3088589, at *1 (M.D.N.C. Nov. 17,
2005) (unpublished) (Osteen, Sr., J.) (“[I]t is not appropriate to
present such new argument in a reply.” (citing M.D.N.C. LR7.3(h))).
Second, Plaintiff’s argument overlooks the fact that, unlike
in the first decision where the ALJ accorded Dr. Link’s opinions
“great weight” but then failed to explain why the ALJ did not adopt
all of Dr. Link’s opinions (Tr. 162; see also Tr. 173 (Appeals
Council’s remand, in part, on that basis)), the ALJ here assigned
Dr. Link’s opinions only “partial weight” (Tr. 21).
The ALJ thus
made clear that she did not fully credit all of Dr. Link’s
opinions.
Third, with regard to Plaintiff’s ability to interact with
others in the workplace, Dr. Link opined only that Plaintiff “may
have difficulty [relating with fellow workers and supervisors] in
medium to large size work settings.”
(Tr. 746 (emphasis added).)
Plaintiff does not explain why such an equivocal opinion would have
compelled the ALJ to adopt limitations on Plaintiff’s ability to
interact with others, particularly where the ALJ accorded only
“partial weight” to Dr. Link’s opinions (Tr. 21).
15
In sum, Plaintiff’s first assignment of error fails as a
matter of law.
2. Plaintiff’s Subjective Symptom Reporting
Next, Plaintiff maintains that the ALJ failed to provide “a
legally sufficient basis for rejecting [Plaintiff’s] testimony.”
(Docket Entry 12 at 20 (bold font and single-spacing omitted); see
also Docket Entry 15 at 5-6.) Social Security Ruling 16-3p, Titles
II and XVI: Evaluation of Symptoms in Disability Claims, 2017 WL
5180304, at *5 (Oct. 25, 2017) (“SSR 16-3p”) (consistent with the
Commissioner’s regulations) adopts a two-part test for evaluating
a claimant’s statements about symptoms.
See SSR 16-3p, 2017 WL
5180304, at *3; see also 20 C.F.R. § 404.1529.9
“must
consider
whether
there
is
an
First, the ALJ
underlying
medically
determinable physical or mental impairment(s) that could reasonably
be expected to produce an individual’s symptoms, such as pain.”
SSR 16-3p, 2017 WL 5180304, at *3.
A claimant must provide
“objective medical evidence from an acceptable medical source to
9
Applicable to ALJ decisions on or after March 28, 2016, the Social
Security Administration superceded Social Security Ruling 96-7p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability
Claims, 1996 WL 374186 (July 2, 1996) (“SSR 96-7p”), with SSR 16-3p. The new
ruling “eliminat[es] the use of the term ‘credibility’ from . . . sub-regulatory
policy, as [the] regulations do not use this term.” Id. at *1. The ruling
“clarif[ies] that subjective symptom evaluation is not an examination of the
individual’s character,” id., and “offer[s] additional guidance to [ALJs] on
regulatory implementation problems that have been identified since [the
publishing of] SSR 96-7p,” id. at *1 n.1.
The ALJ’s decision in this case
postdates the effective date of SSR 16-3p (see Tr. 23) and, thus, this
Recommendation will apply SSR 16-3p to Plaintiff’s argument regarding the ALJ’s
subjective symptom evaluation.
16
establish the existence of a medically determinable impairment that
could reasonably be expected to produce [the] alleged symptoms.”
Id.
Objective
(“anatomical,
established
medical
evidence
physiological,
by
medically
or
consists
of
medical
psychological
acceptable
clinical
signs
abnormalities
diagnostic
techniques”) and laboratory findings “shown by the use of medically
acceptable laboratory diagnostic techniques.”
Id.
Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
and persistence of the claimant’s symptoms, as well as the extent
to which those symptoms affect his or her ability to work.
at *4.
See id.
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.”
added).
Id. (emphasis
Where relevant, the ALJ will also consider the following
factors in assessing the extent of the claimant’s symptoms at part
two:
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
17
4. The type, dosage, effectiveness, and side effects of
any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment an individual uses
or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
other symptoms.
Id. at *7-8.
The ALJ cannot “disregard an individual’s statements
about the intensity, persistence, and limiting effects of symptoms
solely because the objective medical evidence does not substantiate
the
degree
individual.”
of
impairment-related
symptoms
alleged
by
the
Id. at *5 (emphasis added).
In this case, the ALJ found for Plaintiff on part one of the
inquiry,
but
ruled,
in
connection
with
part
two,
that
her
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely consistent with the
medical evidence and other evidence in the record for the reasons
explained in [the ALJ’s] decision.”
(Tr. 18.)
The ALJ provided
the following analysis to support the part two finding:
While [Plaintiff] alleged disabling limitations due to
her impairments, the objective medical evidence fails to
support such a finding in this case. The record showed
that [Plaintiff] was treated with pain management and no
surgery was recommended. In addition, diagnostic tests
only showed mild degeneration.
Moreover, [Plaintiff]
18
admitted that she had not sought specialist treatment for
her mental health conditions.
In addition, evidence
regarding [Plaintiff’s] daily activities is not limited
to the extent one would expect, given the complaints of
disabling symptoms and limitations.
The record shows
that [Plaintiff] was able to cook, do laundry, and clean
her house regularly [(Tr. 436-44)].
Consideration of
these
factors
also
leads
me
to
conclude
that
[Plaintiff’s] allegations of disabling symptoms and
limitations cannot be accepted, and that the [RFC]
finding in this case is justified.
(Tr. 20.)
Plaintiff first asserts that the ALJ “failed to consider the
record as a whole” (Docket Entry 12 at 21) and instead engaged in
a
“selective
recitation
of
the
record”
(id.
at
22).
More
specifically, Plaintiff contends that the ALJ ignored evidence that
Plaintiff “engaged in physical therapy and received facet blocks
and radiofrequency denervation procedures for her pain[,] . . .
consistently ha[d] tenderness on exam and a decreased range of
motion[,] . . . and received narcotic pain medication to manage her
symptoms.”
(Id. at 21 (citing Tr. 546, 549, 574, 593, 600, 602,
611, 615, 624, 639, 646, 650, 652, 657, 669, 675, 694, 711, 736,
758, 759, 790, 808, 814, 832, 837, 843, 850, 864, 873, 977, 884,
885).)
Plaintiff’s contentions gloss over the ALJ’s discussion of the
medical evidence, in which the ALJ expressly noted that Plaintiff
reported “some tenderness to palpation of her neck” and “minimal
low
back
tenderness”
(Tr.
19),
that
Plaintiff
had
“received
radiofrequency denervation of lumbar bilateral L3, L4, and L5 for
19
her lumbar pain” (id.), and that Plaintiff’s pain management
physician had “prescribed narcotic pain medication and epidural
steroid injections” (id.).
did
not
expressly
Plaintiff correctly notes that the ALJ
discuss
any
instances
displayed “a decreased range of motion.”
on
which
Plaintiff
(Docket Entry 12 at 21;
see also Tr. 19-21.) However, of the 23 transcript pages Plaintiff
cites as supportive of her assertion that she “consistently had
. . . a decreased range of motion” (Docket Entry 12 at 21 (emphasis
added) (citing Tr. 549, 574, 593, 600, 602, 611, 615, 624, 646,
657, 736, 759, 790, 808, 814, 832, 837, 843, 850, 864, 873, 877,
884)), only seven pages reflect any decrease in range of motion and
none of those instances of reduced motion occurred during the
relevant period in this case, i.e., from Plaintiff’s amended onset
date of August 9, 2014, to her date last insured (“DLI”) of
September 30, 2016 (see Tr. 574 (physical therapy note documenting
25 percent reduction in lumbar forward and lateral flexion in
September 2011), 615 (primary care physician treatment record
indicating decreased range of motion in neck in March 2011), 647
(pain management clinic record indicating lumbar extension and
rotation decreased in July 2014), 658 (pain management report
showing decreased lumbar extension and rotation in March 2014), 864
(primary
care
physician
office
visit
containing
reference
to
“limited [range of motion]” but not identifying affected joint(s)
in May 2017), 873 (same in February 2017), 878 (same in January
20
2017)). Under such circumstances, Plaintiff has not shown that she
“consistently” experienced “decreased range of motion” (Docket
Entry 12 at 21) and thus the ALJ did not err by failing to
expressly discuss the sporadic instances, either predating or
postdating
the
relevant
decreased range of motion.
period,
when
examinations
reflected
See Reid v. Commissioner of Soc. Sec.,
769 F.3d 861, 865 (4th Cir. 2014) (observing that “‘there is no
rigid requirement that the ALJ specifically refer to every piece of
evidence in his decision’” (quoting Dyer v. Barnhart, 395 F.3d
1206, 1211 (11th Cir. 2005))).10
Plaintiff additionally alleges that the “ALJ [] consider[ed]
the type of activities [Plaintiff] c[ould] perform without also
considering the extent to which she c[ould] perform them.” (Docket
Entry 12 at 24.)
According to Plaintiff, the ALJ “failed to
discuss how long or how often [Plaintiff] [wa]s able to engage in
[daily] activities[,] . . . did not consider that [Plaintiff] had
assistance from her children in performing household chores and
that the assistance that she required increased over time.”
Plaintiff
maintains
that
“she
10
should
not
be
(Id.)
penalized
for
Plaintiff also argues that “[t]he ALJ did not explain how or why” the
fact that Plaintiff “had not sought treatment from a specialist for her mental
health . . . undermined her testimony about her pain.” (Docket Entry 12 at 22.)
However, the ALJ obviously did not cite Plaintiff’s lack of mental health
treatment as evidence inconsistent with her reports of pain, but rather with her
allegations of depression. (See Tr. 20; see also Tr. 18 (“[Plaintiff] also
alleged depression.
She reported that she took psychotropic medication but
admitted that she had not sought specialist treatment.”).)
21
attempting to lead a normal life in the face of her limitations”
(id. (citing Lewis v. Berryhill, 858 F.3d 858, 868 n.3 (4th Cir.
2017))), and that “[t]he evidence does not support a conclusion
that she engaged in any of [her daily] activities in a manner . . .
consistent with substantial gainful activity” (id. (citing Orn v.
Astrue, 495 F.3d 625, 639 (9th Cir. 2007))).
Here, the record contains multiple statements from Plaintiff
regarding her ability to engage in daily activities which, to some
extent,
conflict
with
each
other.
On
August
24,
2014,
approximately two weeks after her amended onset date, Plaintiff
completed a Function Report on which she indicated that she worked
at a job from 8:30 a.m. until 5:00 p.m. Monday through Friday
(see Tr. 436), attended Bible study, prayer services, and other
activities at church three times per week (see id.; see also Tr.
440), took care of her son’s needs (see Tr. 437), cooked full
course meals two to three times per week for one to two hours at a
time (see Tr. 438), did her laundry and cleaned the house for two
hours
at
a
time
twice
per
week
(although
her
son
helped
“sometimes”) (id.), drove a car (see Tr. 439), and shopped for
groceries once a month for one hour (see id.).
The ALJ expressly
relied upon that report in finding that Plaintiff “was able to
cook, do laundry, and clean her house regularly [(Tr. 436-44)].”
(Tr. 20.)
22
After denial of Plaintiff’s claim at the initial level of
review, Plaintiff completed a second Function Report on November 4,
2014, indicating that she made her bed (see Tr. 463), cooked full
course meals three times per week for two hours at a time (see Tr.
465), did her laundry but did not clean her house “due to pain”
(id.), drove a car (see Tr. 466), shopped for groceries whenever
needed (see id.), and attended church weekly (see Tr. 467).
At the
first hearing before the ALJ on October 20, 2016 (shortly after her
DLI), Plaintiff testified that even on a “bad day” she could engage
in “simple” activities such as washing dishes and cooking breakfast
(Tr. 84), and that she also cooked “maybe” once per week, did
laundry about once per month, straightened her room, cleaned her
shower with her son’s help, grocery shopped once per month, and
attended church (Tr. 108).
Subsequently, at the second hearing on
August 3, 2017, approaching one year after her DLI, Plaintiff
stated that she attended church on Sundays (see Tr. 63) and grocery
shopped with her son (see Tr. 58), but that her son did all of the
housework and her daughter did all of the cooking (see Tr. 62).
Given the differing statements from Plaintiff regarding both
the type and the frequency of daily activities she could perform,
the ALJ fulfilled her duty to weigh the conflicting evidence and
determine which of Plaintiff’s statements most harmonized with the
record evidence.
See Craig, 76 F.3d at 589 (“Where conflicting
evidence allows reasonable minds to differ as to whether a claimant
23
is disabled, the responsibility for that decision falls on the
[ALJ].” (internal quotation marks omitted)).
ALJ’s
conclusion
that,
during
the
relevant
Furthermore, the
period,
Plaintiff
remained able to “cook, do laundry, and clean her house regularly”
(Tr. 20) constitutes a fair synthesis of the differing evidence on
the subject, particularly in light of the fact that Plaintiff did
not assert that she lacked the ability to cook, do the laundry, or
perform any household chores until her second hearing, nearly one
year after her DLI (see Tr. 58, 62-63).
Under such circumstances,
the Court should not “undertake to reweigh [the] conflicting
evidence, make credibility determinations, or substitute [its]
judgment for that of the [ALJ],” Craig, 76 F.3d at 589.
In short, Plaintiff’s second issue on review falls short.
3. Mental RFC
Lastly, Plaintiff contends that “the ALJ failed to properly
account for all of [Plaintiff’s] mental limitations” in the RFC.
(Docket Entry 12 at 25 (bold font and single-spacing omitted); see
also Docket Entry 15 at 6-7.)
More specifically, Plaintiff argues
that, despite the ALJ’s finding that Plaintiff “ha[d] moderate
difficulties in concentrating, persisting, or maintaining pace
[(‘CPP’)]” (Docket Entry 12 at 27 (referencing Tr. 17)), “the ALJ
did not
determine
[Plaintiff’s]
ability
to
stay
on
task” in
violation of Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) (Docket
Entry
12
at
27).
Additionally,
24
Plaintiff
points
out
that,
notwithstanding
the
ALJ’s
finding
that
Plaintiff
had
mild
limitation in interacting with others, “[t]he ALJ did not limit
[Plaintiff’s] interactions with others or provide any reasons for
the rejection of such limitations.”
17, 18).)
(Id. at 28 (referencing Tr.
Plaintiff further notes that, because the VE testified
that no available jobs would exist for an individual whose symptoms
caused him or her to remain off-task for 15 percent of the work day
(see
Tr.
73),
and
“the
ALJ
provided
no
explanation
of
how
[Plaintiff’s] moderate limitation in [CPP] would impact her RFC, it
is unknown whether her [CPP] limitation would result in being off
task [15] percent of the time or more” (Docket Entry 12 at 30).
Plaintiff’s contentions miss the mark.
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].”
Mascio, 780 F.3d at 638.
However, as a
neighboring 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 . . . . 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,
25
medical source statements, consultative examinations, or
other evidence that is sufficiently evident to the
reviewing court.
Jones v. Colvin, No. 7:14CV273, 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. 2:14CV63, 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).
Here,
daily
the
activities
ALJ’s
and
decision
treating
provides
a
sufficient explanation as to why restrictions to simple oral
instructions,
simple
routine
tasks,
and
simple
work-related
decisions (see Tr. 18) sufficiently accounted for Plaintiff’s
moderate deficit in CPP.
First, the ALJ noted Plaintiff’s testimony “that pain caused
difficulty with focus and concentration” (Tr. 17; see also Tr. 19
(citing Plaintiff’s report to Dr. Link of “symptoms including
difficulty focusing”)), but found that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [her]
symptoms [we]re not entirely consistent with the medical evidence
and other evidence in the record for the reasons explained in th[e
ALJ’s] decision” (Tr. 18).
Moreover, as discussed above, the ALJ
26
did not err in his analysis of Plaintiff’s subjective symptoms and
supported that analysis with substantial evidence.
Second, the ALJ summarized the pertinent evidence of record,
making the following observations:
•
despite Plaintiff’s reports of “unrelenting pain
. . ., on physical examination in September 2014,
[Plaintiff] was ambulating normally,” and “had a
full range of motion in her neck” with normal
“muscle strength and tone” (Tr. 19; see also Tr.
736-37);
•
“[i]n August 2016, only minimal low back tenderness
was noted and there was no tenderness to palpation
or muscle spasms . . . [as well as] negative
straight leg raise testing” (Tr. 19; see also Tr.
884);
•
at the November 2014 consultative psychological
examination, “[Plaintiff] was alert and responsive
to tasks[, h]er thought processing was coherent and
there was no evidence of loose associations or
tangential
procession[,
and
a]lthough
mild
distractibility was noted, verbal redirection was
effecting [sic] in refocusing attention to tasks”
(Tr. 19; see also Tr. 745);
Third, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.
20-21.)
(See Tr.
In that regard, the ALJ specifically discredited Dr.
Link’s opinion that Plaintiff could sustain attention well enough
to perform simple repetitive tasks for only 30-minute periods of
time,
noting
that
neither
Dr.
Link’s
finding
of
mild
distractibility nor the remainder of the record supported such an
extreme limitation.
(Tr. 21; see also Tr. 745, 746.)
That
explanation by the ALJ further supports her conclusion that,
27
despite moderate limitation in CPP, Plaintiff remained able to
maintain CPP long enough to perform simple tasks.
Under these circumstances, the ALJ adequately explained why a
restriction to simple oral instructions, simple routine tasks, and
simple work-related decisions (see Tr. 18) sufficiently accounted
for Plaintiff’s moderate limitation in CPP.
See Whiteside v.
Berryhill, No. 1:18CV176, 2019 WL 1639936, at *5 (W.D.N.C. Apr. 16,
2019) (unpublished)
(rejecting
the plaintiff’s
argument
under
Mascio where ALJ’s analysis of the plaintiff’s subjective symptom
reporting
and
discounting
objective
of
medical
consultative
evidence,
examiner’s
as
well
opinions,
as
ALJ’s
sufficiently
“explained why [the p]laintiff’s limitations in [CPP] did not alter
her RFC”).
Plaintiff’s
argument
that
the
ALJ
failed
to
include
limitations on Plaintiff’s interactions with others in the RFC to
account for Plaintiff’s mild limitation in interacting with others
fares no better.
(Docket Entry 12 at 28.)
As an initial matter,
it remains unclear whether Mascio applies to mild as opposed to
moderate limitations, and to limitations in broad functional areas
other than CPP. Although some decisions have remanded for an ALJ’s
failure to adequately account for mild limitations in the broad
areas of functioning, see McMichael v. Colvin, No. 1:15CV528, 2016
WL
4556768,
at
*2-6
(M.D.N.C.
Aug.
31,
2016)
(unpublished)
(Webster, M.J.) (CPP), recommendation adopted, slip op. (M.D.N.C.
28
Sept. 29, 2016) (Schroeder, J.); Ashcraft v. Colvin, No. 3:13CV417,
2015 WL 9304561, at *6-11 (W.D.N.C. Dec. 21, 2015) (unpublished)
(daily activities, social functioning, and CPP), many decisions
have ruled to the contrary, see, e.g., Morrison v. Berryhill, No.
1:16CV337,
2018
WL
1311207,
at
*5
(W.D.N.C.
Feb.
8,
2018)
(unpublished) (finding that the plaintiff’s “heavy reliance on
Mascio . . . [wa]s misplaced” and noting that, since “about a month
after the Mascio decision,” many cases in the Western District of
North Carolina “have held that the requirements of Mascio do not
necessarily
apply
where
a
plaintiff
is
found
to
have
mild
limitations in CPP”), recommendation adopted, 2018 WL 1308139
(W.D.N.C. Mar. 13, 2018) (unpublished); Williamson v. Berryhill,
No. 7:16CV284, 2017 WL 4293408, at *5 (E.D.N.C. Sept. 27, 2017)
(unpublished) (deeming the “plaintiff’s reliance on Mascio []
inapt” where ALJ found “only mild limitations in activities of
daily living, social functioning, or CPP”); Guest v. Colvin, No.
1:15CV776,
2016
WL
4007612,
at
*6
(M.D.N.C.
July
26,
2016)
(unpublished) (expressing “doubt [] as to whether Mascio’s holding
with regards to [CPP] should apply to” a case involving mild
limitations in social functioning, “particularly given that the
Fourth Circuit made clear its CPP-based holding rested on the
distinction between the ability to perform simple tasks and the
ability to stay on task, and such a distinction does not clearly
apply
in
the
social
functioning
29
context”
(internal
citation
omitted), recommendation adopted, slip op. (M.D.N.C. Aug. 24, 2016)
(Schroeder, J.).
Moreover, even assuming Mascio applies to 1) mild limitations
in the broad areas of functioning (i.e., the lowest of four levels
above “none”), and 2) functional areas other than CPP, Plaintiff
has not shown prejudicial error here.
The ALJ afforded only
partial weight to Dr. Link’s opinions (see Tr. 21) and thus did not
adopt his opinion that Plaintiff “may have difficulty [relating
with fellow workers and supervisors] in medium to large size work
settings” (Tr. 746 (emphasis added)).
Furthermore, Plaintiff
neither has identified the restriction on interaction with others
the ALJ should have included in the RFC, nor has explained why,
even with any such restriction on interaction in the RFC, she would
remain unable to perform the retail marker and router jobs cited by
the VE and adopted by the ALJ at step five of the SEP (see Tr. 2223, 70-72).
(See Docket Entry 12 at 25-30; see also Docket Entry
15 at 6-7.)
The codes in the Dictionary of Occupational Titles
(“DOT”) for those jobs contain a fifth digit of “8,” DOT, No.
209.587-034 (Marker), 1991 WL 671802 (G.P.O. 4th ed. rev. 1991);
DOT, No. 222.587-038 (Router), 1991 WL 672123, reflecting the
lowest possible level of human interaction that exists in the labor
force, see DOT, App’x B (Explanation of Data, People, and Things),
1991
WL
688701.
“This
designated
level
of
interaction
is
compatible with an RFC limiting a claimant to only occasional
30
contact with coworkers, supervisors, and the public.”
Cobb v.
Colvin, No. 2:13CV115TCM, 2014 WL 6845850, at *19 (E.D. Mo. Dec. 3,
2014) (unpublished) (emphasis added).
As a result, no reason
exists to believe remand for the purpose of further addressing mild
limitation in social interaction would alter the outcome 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”).
Accordingly, Plaintiff’s third and final issue on review does
not entitle her to reversal or remand.
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
Reversing or Modifying the Decision of the Commissioner of Social
Security (Docket Entry 11) be denied, and Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 13) be granted, and that
this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 7, 2019
31
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