PACK v. BERRYHILL

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 3/8/2019; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TAMALA H. PACK,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:18CV191

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Tamala H. Pack, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,

denying

Plaintiff’s

claim

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)

Defendant has filed the certified administrative record

(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 10, 13; see also Docket Entry 11
(Plaintiff’s Brief); Docket Entry 14 (Defendant’s Memorandum)).
For the reasons that follow, the Court should enter judgment for
Defendant.
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI. (Tr. 335-43.) Upon denial
of those applications initially (Tr. 177-206, 238-45) and on
reconsideration (Tr. 207-37, 249-66), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 267-68).
Plaintiff, her attorney, and a vocational expert (“VE”) attended
the hearing.

(Tr. 54-82.)

The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act.

(Tr. 34-48.)

The Appeals Council thereafter denied Plaintiff’s request for
review (Tr. 16-22, 32-33, 332-34), thereby making the ALJ’s ruling
the Commissioner’s final decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since December 1, 2012, the alleged onset date.
. . .
3.
[Plaintiff] has the
left knee degenerative
bilateral carpal tunnel
lumbar degenerative disc

following severe impairments:
joint disease, fibromyalgia,
syndrome with trigger finger,
disease, and obesity.

. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except she could
stand or walk for four hours in an eight-hour day and sit
for six hours in an eight-hour day. She could perform
occasional climbing, stooping, kneeling, crouching,
balancing, and crawling. [Plaintiff] could frequently
finger bilaterally. She would have to avoid concentrated
exposure to workplace hazards.
2

. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from December 1, 2012, through the
date of this decision.
(Tr.

39-48

(bold

font

and

internal

parenthetical

citations

omitted).)
II.

DISCUSSION

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely
limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

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

Standard of Review

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

Instead,

the Court “must uphold the factual findings of the ALJ if they are
supported

by

substantial

evidence

3

and

were

reached

through

application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”

Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).

“It consists of more than a mere scintilla

of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).

“If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there
is

substantial

evidence.”

Hunter,

993

F.2d at

34

(internal

quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake

to

re-weigh

conflicting

evidence,

make

credibility

determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

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

4

was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting

42

U.S.C.

§

423(d)(1)(A)).1

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id.

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

1

The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
provides benefits to indigent disabled persons. The statutory definitions and
the regulations . . . for determining disability governing these two programs
are, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).

5

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.3

Step four then requires the ALJ to assess

2

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

3

“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
(continued...)

6

whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.

See id. at

However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

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

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.4
B.

Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ’s decision cannot be supported by substantial
evidence since the ALJ failed to reconcile his determination that
3

(...continued)
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
4

A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).

7

[Plaintiff] could perform light work with his conclusion that
[Plaintiff] could only stand and walk four hours of an eight-hour
workday” (Docket Entry 11 at 5 (bold font and single-spacing
omitted)); and
2)

“[t]he

depression

and

ALJ’s

failure

anxiety

to

disorders

determine
were

that

severe

[Plaintiff’s]

impairments

and

properly account for the limitations [Plaintiff] experiences as a
result of these impairments in the RFC is harmful error” (id. at 13
(bold font and single-spacing omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 14 at 10-24.)
1. Conflicts in RFC and Hypothetical Question

In Plaintiff’s first assignment of error, she alleges that
“[t]he ALJ’s decision cannot be supported by substantial evidence
since

the

ALJ

failed

to

reconcile

his

determination

that

[Plaintiff] could perform light work with his conclusion that
[Plaintiff] could only stand and walk four hours of an eight-hour
workday.”
omitted).)

(Docket Entry 11 at 5 (bold font and single-spacing
According to Plaintiff, “th[at] conflict [wa]s not

resolved by the ALJ’s reliance on the [VE] at the hearing since the
ALJ limited [Plaintiff] to sedentary work activity in the proposed
hypotheticals [sic] to the VE and the VE did not comment on whether
[Plaintiff] would perform work activity at the light exertional
level if limited to that proposed RFC.”

8

(Id. at 6 (citing Tr. 80-

81).)

Plaintiff

further maintains

that,

given

that

her

RFC

actually represented sedentary exertion and she remained only six
months from her 50th birthday at the time of the ALJ’s hearing,
“[t]he ALJ’s failure to consider the non-mechanical application of
the Medical[-]Vocational Guidelines (‘[G]rids’) is harmful error in
[Plaintiff’s] claim.”
omitted).)

(Id. at 9 (bold font and single-spacing

Plaintiff

argues

that,

“[r]emand

for

further

consideration is appropriate given the ALJ’s failure to provide any
explanation

or

discussion

of

how

he

resolved

inconsistencies before reaching his RFC conclusions.”

th[o]se

(Id. at 8.)

Plaintiff’s contentions do not warrant relief.
Plaintiff first argues that the ALJ’s RFC suffered from an
internal inconsistency, because “[t]he ALJ failed to reconcile his
determination that [Plaintiff] could perform light work with his
conclusion that [Plaintiff] could only stand and walk four hours of
an eight-hour workday.”

(Id. at 5 (emphasis added) (bold font and

single-spacing omitted).)

However, that argument rests on the

faulty premise that all light work requires six hours of standing
or walking in an eight-hour workday.

Although “the full range of

light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday,” Social Security Ruling
83-10, Titles II and XVI: Determining Capability to Do Other Work
– the Medical-Vocational Rules of Appendix 2, 1983 WL 31251, at *6
(1983) (emphasis added), the ALJ did not find, either in the RFC or

9

the dispositive hypothetical question to the VE, that Plaintiff
remained capable of performing a full range of light work (see Tr.
43, 80).
reduced

Rather, the ALJ found that Plaintiff could perform a
range

of

light

work,

i.e.,

jobs

involving

the

lifting/carrying/pushing/pulling requirements of light work but
entailing a maximum of only four hours of standing and/or walking
in a workday.

(See id.)

Moreover, because the ALJ found that Plaintiff could perform
only a reduced range of light work (see id.), the ALJ consulted
with a VE to determine the effect that a reduction of standing
and/or walking from six to four hours would have on the light,
unskilled occupational base:
If [Plaintiff] had the [RFC] to perform the full range of
light work, a finding of “not disabled” would be directed
by [Grid] Rule 202.18. However, [Plaintiff’s] ability to
perform all or substantially all of the requirements of
this level of work has been impeded by additional
limitations.
To determine the extent to which these
limitations erode the unskilled light occupational base,
[the ALJ] asked the [VE] whether jobs exist in the
national economy for an individual with [Plaintiff’s]
age, education, work experience, and [RFC]. The [VE]
testified that given all of these factors the individual
would
be
able
to
perform
the
requirements
of
representative, unskilled sedentary occupations such as
a(n):
1) Inspector ([DOT] code 521.687-086), and having
approximately 40,000 jobs in the national economy;
2) Assembly Worker ([DOT] code 713.687-018), and
having approximately 42,000 jobs in the national
economy; and

10

3) Packer/Stacker ([DOT] code 685.687-014), and
having approximately 60,000 jobs in the national
economy.
(Tr. 47-48 (emphasis added); see also Tr. 80-81).

The ALJ’s

methodologies also complied fully with Social Security Ruling 8312, Titles II and XVI: Capability to Do Other Work – the MedicalVocational

Rules

as

a

Framework

for

Evaluating

Exertional

Limitations Within a Range of Work or Between Ranges of Work, 1983
WL 31253(1983) (“SSR 83-12”):
Where an individual’s exertional RFC does not coincide
with the definition of any one of the ranges of work as
defined in sections 404.1567 and 416.967 of the
regulations, the occupational base is affected and may or
may not represent a significant number of jobs . . . .
The [ALJ] will consider the extent of any erosion of the
occupational base and a[ss]ess its significance. In some
instances, the restriction will be so slight that it
would clearly have little effect on the occupational
base. In cases of considerably greater restriction(s),
the occupational base will obviously be affected. In
still
other
instances,
the
restrictions of
the
occupational base will be less obvious.
Where the extent of erosion of the occupational base is
not clear, the [ALJ] will need to consult a vocational
resource.
SSR 83-12, 1983 WL 31253, at *2 (emphasis added).

Thus, because

the ALJ here appropriately consulted with a VE, he labored under no
obligation to further reconcile his RFC findings that Plaintiff
could perform a reduced range of light work, but only stand and/or
walk up to four hours in a workday.
Plaintiff additionally contends that a conflict exists between
the ALJ’s light exertion RFC and the dispositive hypothetical

11

question, in that “the ALJ limited [Plaintiff] to sedentary work
activity in the proposed hypotheticals [sic] to the VE[,]” (Docket
Entry 11 at 6 (emphasis added) (citing Tr. 80)), and “[t]he VE
testified only that there were sedentary jobs available . . . and
did not indicate that [Plaintiff] could perform jobs at the light
exertional level” (id. at 8 (emphasis added) (citing Tr. 80-81)).
That contention misses the mark.
As an initial matter, the ALJ did not merely limit Plaintiff
to “sedentary work activity” in the hypothetical question. Rather,
the ALJ signaled that he “want[ed] to get the [reconsideration
level state agency medical consultant’s] evaluation on the record”
and asked the VE whether a claimant could perform any jobs in the
national economy if restricted to “what the [reconsideration level
state agency medical consultant] described as essentially sedentary
limitation.”

(Tr. 80 (emphasis added); see also Tr. 219, 233

(describing Plaintiff’s “maximum sustained work capability” as
“[e]ssentially [s]edentary”).)
medical

consultant

sedentary”

as

and

being

the

able

Moreover, both the state agency
ALJ

to

further

lift 20

defined

pounds

“essentially

occasionally,

10

[pounds] frequently; stand or walk four hours in an eight-hour day;
sit six hours in an eight-hour day.”
Thus,

regardless

of

the

exertional

(See Tr. 80, 216, 230.)
label

applied

to

the

hypothetical question’s restrictions, i.e., “light,” “essentially

12

sedentary,” or “sedentary,” those restrictions matched the RFC’s
restrictions and no conflict existed.5
For the same reasons, the fact that VE cited jobs classified
by the DOT at the sedentary level of exertion does not render the
ALJ’s decision unsupported by substantial evidence.
81.)

(See Tr. 80-

The ALJ’s finding that Plaintiff possessed the ability to

lift and carry 20 pounds occasionally, and 10 pounds frequently
(see Tr. 43, 80) necessarily means that she also could lift and
carry at the sedentary level of exertion, which requires maximum
lifting

and

404.1567(a),

carrying

of

416.967(a);

only
see

10

also

pounds,
20

see

C.F.R.

20

§§

C.F.R.

§§

404.1567(b),

416.967(b) (“If someone can do light work, we determine that he or
she can

also

do

sedentary

work,

unless

there

are

additional

limiting factors such as a loss of fine dexterity or inability to
sit for long periods of time.”).6

5

Plaintiff correctly observes that the ALJ “did not specifically limit
[Plaintiff] to unskilled work activity in the RFC,” despite including a
restriction to unskilled work in the hypothetical question to the VE. (Docket
Entry 11 at 7 (citing Tr. 43, 80).) However, that error remains harmless, see
generally Fisher v. Bowen, 869 F.3d 1055, 1057 (7th Cir. 1989) (“No principle of
administrative law or common sense requires us to remand a [Social Security] case
in quest of a perfect opinion [from an ALJ] unless there is reason to believe
that the remand might lead to a different result.”), because the VE cited three
unskilled jobs in response to the dispositive hypothetical question (see Tr. 8081) and the ALJ adopted those jobs at step five of the SEP in finding Plaintiff
not disabled (see Tr. 47-48). Moreover, Plaintiff does not deny that she can
perform the specific requirements of the unskilled jobs in question. (See Docket
Entry 11 at 13-19.)

6

The ALJ here found Plaintiff capable of sitting for up to six hours in an
eight-hour workday and frequent fingering bilaterally (see Tr. 43, 80) and, thus,
the exception contained in Sections 404.1567(b) and 416.967(b) does not apply
here.

13

Plaintiff additionally maintains that, given the facts that
her RFC as found by the ALJ actually represented sedentary exertion
and that she fell “within [six] months of her 50th birthday as of
the date of her hearing,” (Docket Entry 11 at 10), “[t]he ALJ’s
failure to consider the non-mechanical application of [Rule 201.10]
of

the

[Grids]”

to

find

her

disabled

“is

harmful

error

in

[Plaintiff’s] claim” (id. at 9 (bold font and single-spacing
omitted)).

That argument falls short for the simple reason that,

as explained above, the ALJ found Plaintiff capable of a reduced
range of light work, not sedentary work.

(See Tr. 43, 80.)

Thus,

as the Commissioner argues, Grid Rule 202.10 “would have applied
and resulted in a finding of ‘not disabled.’” (Docket Entry 14 at
15 (citing 20 C.F.R. Pt. 404, Subpt. P, App’x 2, § 202.10).)
In sum, Plaintiff’s first assignment of error fails as a
matter of law.
2. Mental RFC
In Plaintiff’s second and final issue on review, she asserts
that

“[t]he

ALJ’s

failure

to

determine

that

[Plaintiff’s]

depression and anxiety were severe impairments and properly account
for the limitations [Plaintiff] experiences as a result of these
impairments in the RFC is harmful error and reversal and remand for
further consideration is necessary.”
font

and

single-spacing

omitted).)

(Docket Entry 11 at 13 (bold
In

particular,

Plaintiff

contends that, despite the ALJ’s finding that Plaintiff suffered

14

from mild deficits in her ability to engage in activities of daily
living,

social

functioning,

and

her

ability

to

maintain

concentration, persistence, or pace (“CPP”) at step two of the SEP
(see

Tr.

42),

“the

ALJ

fail[ed]

to

analyze

the

impact

that

[Plaintiff’s] mild limitations in these functional areas would have
on her RFC” (Docket Entry 11 at 15) in violation of Mascio v.
Colvin,

780

F.3d

632

(4th

Cir.

2015)

(id.

at

16-19

(citing

McMichael v. Colvin, No. 1:15CV528, 2016 WL 4556768, at *2-6
(M.D.N.C.

Aug.

recommendation

31,

2016)

adopted,

slip

(unpublished)
op.

(Webster,

(M.D.N.C.

Sept.

29,

M.J.),
2016)

(Schroeder, J.), Ashcraft v. Colvin, No. 3:13-CV-00417, 2015 WL
9304561, at *6-11 (W.D.N.C. Dec. 21, 2015) (unpublished), and
Wedwick v. Colvin, No. 2:14CV267, 2015 WL 4744389, at *22-23 (E.D.
Va. Aug. 7, 2015) (unpublished) (district judge adopting magistrate
judge’s recommendation))).

Those assertions lack merit.

Plaintiff first attacks the ALJ’s determination at step two of
the

SEP

that

Plaintiff’s

adjustment

disorder

disorder constituted non-severe impairments.
see also Tr. 41-42.)

and

depressive

(See id. at 13-15;

In that regard, Plaintiff argues that the ALJ

failed to “address [Plaintiff’s] anxiety disorders, including her
diagnoses of [post-traumatic stress disorder (‘PTSD’)]. . . after
reporting intrusive thoughts of prior trauma” (Docket Entry 11 at
14 (citing Tr. 949, 951, 955)), and “mischaracterized [Plaintiff’s]
treatment

record

with

[Licensed

15

Professional

Counselor

Lora

Michelle Salley] at Jodi Province Counseling” by “fail[ing] to note
that[,]

despite

regular

therapy

and

progress[,]

[Plaintiff]

continued to report depressive and anxiety symptoms” (id. (citing
Tr. 78, 414-19, 865, 957, 970, 984, 988, 993-97, 1018)).

In

addition, Plaintiff contends that “the ALJ’s decision to assign
the[] opinions [of the state agency psychological consultants that
Plaintiff’s

mental

impairments

qualified as

non-severe]

great

weight is not supported by substantial evidence” (id. at 15),
because those

opinions

“pre-dated

[Plaintiff’s]

entrance into

counseling and treatment for depression and anxiety . . . which
reveal[ed] more significant limitations from her depression and
anxiety” (id. at 14-15).
Plaintiff’s

argument

that

the

ALJ

failed

to

“address

[Plaintiff’s] anxiety disorders, including her diagnoses of PTSD
. . . after reporting intrusive thoughts of prior trauma” (id. at
14 (citing Tr. 949, 951, 955)) fails for two reasons.

First, the

ALJ listed Plaintiff’s mental impairments as “adjustment disorder”
and “depressive disorder” (Tr. 41 (emphasis added)) and expressly
discussed the report of consultative psychological examiner Dr.
Andrea Sinclair (id.; see also Tr. 803-07), who diagnosed Plaintiff
with “adjustment disorder with mixed anxiety and depressed mood”
(Tr. 807 (emphasis added)).
weight”

to

consultants

the
(Tr.

opinions
41)

Moreover, the ALJ accorded “great
of

who

the
opined

16

state
that

agency

psychological

Plaintiff’s

mental

impairments,

analyzed

under

both

Listing

12.04

(Depressive

disorders) and Listing 12.06 (Anxiety-related disorders), qualified
as non-severe (see Tr. 182-83, 196-97, 213-14, 227-28).

Thus, the

ALJ clearly considered Plaintiff’s anxiety disorders.

Second,

Plaintiff has not shown that the record contains a valid diagnosis
of PTSD, because LPC Salley did not diagnose PTSD but merely
documented that Plaintiff reported “having intrusive thoughts[] and
[] other [symptoms] of trauma” and recommended that Plaintiff
continue to “receive treatment related to PTSD [symptoms].”
955 (emphasis added); see also Tr. 949-54.)

(Tr.

Moreover, as a

Licensed Professional Counselor, LPC Salley does not qualify as an
“acceptable

medical

source”

under

the

regulations,

and

only

“acceptable medical sources” can offer medical opinions that a
claimant suffers from a particular impairment.

See 20 C.F.R. §§

404.1513(a), 416.913(a).
Plaintiff’s

argument

that

the

ALJ

“mischaracterized

[Plaintiff’s] treatment record with [LPC Salley] at Jodi Province
Counseling” by “fail[ing] to note that despite regular therapy and
progress[,] [Plaintiff] continued to report depressive and anxiety
symptoms” (Docket Entry 11 at 14 (citing Tr. 78, 414-19, 865, 957,
970, 984, 988, 993-97, 1018)) fares no better.
Plaintiff

“reported depression,

social

The ALJ noted that

isolation

and

physical

problems” to LPC Salley at the outset of her counseling (Tr. 41),
but

correctly

observed

that,

at

17

subsequent

treatment

visits,

Plaintiff

“consistently

reported

she

was

stable

with

her

medications” (id.; see also Tr. 960, 965, 972), “said her family
noticed a difference in her mood” (Tr. 41; see also Tr. 972), and
“was noted to consistently make progress in therapy” (Tr. 41; see
also Tr. 949-91).

The ALJ labored under no obligation to discuss

all of Plaintiff’s subjective complaints to her counselor, see
Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998); see also Diaz v.
Chater, 55 F.3d 300, 308 (7th Cir. 1995), and clearly did not
“mischaracterize” the records from Jodi Province Counseling.
Plaintiff also challenges the ALJ’s decision to accord great
weight

to

consultants,

the
who

opinions
opined

qualified as non-severe.

of

the

that

state

agency

Plaintiff’s

mental

psychological
impairments

(Docket Entry 11 at 15; see also Tr. 41,

182-83, 196-97, 213-14, 227-28.)

According to Plaintiff, those

opinions “pre-dated [Plaintiff’s] entrance into counseling and
treatment for depression and anxiety . . . which reveal[ed] more
significant limitations from her depression and anxiety.”
Entry 11 at 14-15.)

(Docket

However, Plaintiff’s argument conflates her

own subjective reports of mental symptoms with objective findings
by a clinician on mental status examination. The treatment records
from

Jodi

Province

Counseling

largely

reflect

Plaintiff’s

subjective complaints, and the few objective findings by Family
Nurse Practitioner Brenda Cupp describe Plaintiff’s appearance as
“[a]lert and oriented” (Tr. 965), “casually [and] neatly dressed”

18

(id.), and “appropriate” (Tr. 972), her speech as “clear[ with]
normal tone” (Tr. 965), and her mood as “stable” (Tr. 972).

Thus,

because the record does not demonstrate more significant mental
limitations post-dating the state agency psychological consultants’
opinions, the ALJ did not err in assigning those opinions great
weight.
Lastly, Plaintiff contends that, despite the ALJ’s finding
that Plaintiff suffered from mild deficits in her ability to engage
in activities of daily living, social functioning, and her ability
to maintain concentration, persistence, or pace (“CPP”) at step two
of the SEP (see Tr. 42), “the ALJ fail[ed] to analyze the impact
that [Plaintiff’s] mild limitations in these functional areas would
have on her RFC” (Docket Entry 11 at 15), in violation of Mascio
(see id. at 16-19 (citing McMichael, 2016 WL 4556768, at *2-6,
Ashcraft, 2015 WL 9304561, at *6-11, and Wedwick, 2015 WL 4744389,
at *22-23)).7
The United States Court of Appeals for the Fourth Circuit held
in Mascio that “the ability to perform simple tasks differs from
the ability to stay on task” and that “[o]nly the latter limitation
would account for a claimant’s limitation in [CPP].”
F.3d

at

638.

However,

as

a

neighboring

district

Mascio, 780
court

has

explained:
7

Contrary to Plaintiff’s assertion that Wedwick remanded under Mascio due to the
ALJ’s failure to address a mild limitation in CPP (see Docket Entry 11 at 16),
that court actually addressed a moderate limitation in CPP, Wedwick, 2015 WL
4744389, at *23.

19

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. 7:14CV00273, 2015 WL 5056784, at *10 (W.D. Va.
Aug.

20,

2015)

(magistrate

judge’s

recommendation

adopted

by

district judge) (unpublished) (emphasis added); see also Mascio,
780 F.3d at 638 (“Perhaps the ALJ can explain why [the plaintiff’s]
moderate limitation in [CPP] at step three does not translate into
a limitation in [her RFC].” (emphasis added)).
Furthermore, it remains unclear whether Mascio applies to mild
as opposed to moderate limitations, and to limitations in broad
functional areas other than CPP. While McMichael and Ashcraft both
remanded for an ALJ’s failure to adequately account for mild
limitations in the broad areas of functioning, see McMichael, 2016
WL 4556768, at *2-6 (CPP), Ashcraft, 2015 WL 9304561, at *6-11
(daily activities, social functioning, and CPP), many cases exist
to

the

contrary,

see

Morrison

v.

Berryhill,

No.

1:16-CV-337-GCM-DCK, 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

20

(W.D.N.C.

Mar.

13,

2018)

(unpublished);

Thorp

v.

Berryhill,

3:16-CV-070-RJC, 2018 WL 325318, at *3 (W.D.N.C. Jan. 8, 2018)
(unpublished) (holding that the “case differ[ed] markedly from
Mascio” because the plaintiff “had mild difficulties maintaining
[CPP]”); Williamson v. Berryhill, No. 7:16-CV-284-BO, 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”); Franklin v. Berryhill, 1:16-CV-211-RJC, 2017 WL 4274190,
at *2-3 (W.D.N.C. Sept. 26, 2017) (unpublished) (“This Court does
not interpret Mascio’s holding as applying to all restrictions.”);
Gilbert v. Berryhill, 5:16-CV-100-MOC, 2017 WL 1196452, at *3
(W.D.N.C. Mar. 29, 2017) (unpublished) (“As this case concerns only
‘mild

difficulties,’

requirements

of

it

does
per

Mascio

not
se.”

trigger

the

(internal

RFC

discussion

quotation

marks

omitted)); Guest v. Colvin, No. 1:15CV00776, 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

“particularly

mild

given

limitations

that

the

Fourth

in

social

Circuit

functioning,

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
context” (internal citation omitted), recommendation adopted, slip

21

op. (M.D.N.C. Aug. 24, 2016) (Schroeder, J.); Thompson v. Colvin,
1:15-CV-234-FDW, 2016 WL 3610161, at *3 (W.D.N.C. July 1, 2016)
(unpublished) (“The Court does not read Mascio to impose a duty on
ALJs to automatically or necessarily account for mild limitations
in the RFC.”).
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. First, although the RFC does
not contain a mental limitation (see Tr. 43), the dispositive
hypothetical question to the VE included a limitation to unskilled
work (see Tr. 80), and the VE cited (and the ALJ adopted) three
unskilled jobs (see Tr. 47-48, 80-81).

Significantly, Plaintiff

neither argues that unskilled work failed to capture her mild
deficit in CPP nor suggests what additional limitations the ALJ
should have included in the RFC to account for her mild limitations
in daily activities, social functioning, and CPP.
Entry 11 at 13-19.)
v.

Colvin,

No.

That failure precludes relief.

3:15-CV-376-GCM-DCK,

2016

WL

(See Docket
See Humphries

8223429,

at

*5

(W.D.N.C. Oct. 17, 2016) (rejecting similar claim where “it d[id]
not appear that [the p]laintiff [wa]s actually alleging based on
contradictory evidence in the record that she ha[d] limitations
that [we]re not addressed by the RFC; rather, she [wa]s simply
arguing that her ‘at most, mild limitations’ [we]re cause for

22

remand because the ALJ’s decision d[id] not apply the same analysis
the

Fourth

Circuit

[in

Mascio]

would

require

for

review

of

‘moderate’ limitations in [CPP]”), recommendation adopted, 2017 WL
525666 (W.D.N.C. Feb. 8, 2017) (unpublished).
Finally, the ALJ supplied substantial evidence to support the
lack of additional mental restrictions in the RFC/hypothetical
question.

He afforded “great weight” to the opinions of the state

agency psychological consultants (Tr. 41) who each found that
Plaintiff’s mental impairments qualified as non-severe (see Tr.
182-83, 196-97, 213-14, 227-28), and did not include any mental
limitations in the RFC (see Tr. 185-87, 199-201, 216-18, 230-32).
The ALJ also discussed the findings of Dr. Sinclair, including that
Plaintiff

appeared

“as

appropriately

groomed

with

a

bright

affect[, ] easily engaged in conversation, had logical thought
processes, had good concentration, and her memory was intact.”
(Tr. 41; see also Tr. 806.)

The ALJ further noted that Dr.

Sinclair opined that, despite Plaintiff’s adjustment disorder with
mixed anxiety and depressed mood, Plaintiff “could complete workrelated tasks and that her disability was more physical than
mental.”

(Tr. 41; see also Tr. 807.)

Under such circumstances, Plaintiff has failed to demonstrate
that the ALJ erred with regards to the mental RFC.
III.

CONCLUSION

Plaintiff has not established an error warranting relief.

23

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 10) be denied, that 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
March 8, 2019

24