GRAHAM v. BERRYHILL
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 8/9/2019; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 12 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) 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
BRENDA GRAHAM,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,1
Defendant.
)
)
)
)
)
)
)
)
)
)
1:18CV403
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Brenda Graham, 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
Plaintiff’s
claim
for
Disability
Insurance
Benefits
(“DIB”), Supplemental Security Income (“SSI”), and Disabled Widow’s
Insurance Benefits (“DWIB”).
(Docket Entry 2.)2
Defendant has
filed the certified administrative record (Docket Entry 9 (cited
herein as “Tr. __”)), and both parties have moved for judgment
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).
2
The Act principally “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
v. Chater, 76 F.3d 585, 589 n.1 (4th Cir. 1996) (internal citations omitted).
An individual establishes the disability-related criteria of DWIB using the same
standards as apply in DIB and SSI claims.
See 42 U.S.C. § 402(e)(1)(B)
(incorporating the definition of “disability” in 42 U.S.C. § 423(d)).
(Docket Entries 12, 14; see also Docket Entry 13 (Plaintiff’s
Memorandum); Docket Entry 15 (Defendant’s Memorandum); Docket Entry
16 (Plaintiff’s Reply)).
For the reasons that follow, the Court
should enter judgment for Defendant.
I.
Plaintiff
applied
PROCEDURAL HISTORY
for
DIB,
SSI,
and
disability onset date of August 1, 2010.
DWIB,
alleging
(Tr. 914-33.)
a
Upon
denial of those applications initially (Tr. 651-92, 782-95) and on
reconsideration
hearing
de
(Tr.
novo
(Tr. 829-30).
693-749,
before
an
803-28),
Plaintiff
Administrative
Law
requested
Judge
a
(“ALJ”)
Plaintiff, her attorney, and a vocational expert
(“VE”) attended the hearing.
(Tr. 612-50.)
The ALJ subsequently
ruled that Plaintiff did not qualify as disabled under the Act.
(Tr. 750-66.)
The Appeals Council thereafter denied Plaintiff’s
request for review (Tr. 17-23, 909-13), 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 September 30, 2013.
2.
It was previously found that [Plaintiff] is the
unmarried widow of the deceased insured worker and has
attained the age of 50. [Plaintiff] met the nondisability requirements for [DWIB].
. . .
2
3.
The prescribed period [for DWIB] ends on January 31,
2020.
4.
[Plaintiff] engaged in substantial gainful activity
during the following periods: August 1, 2010 through July
31, 2013.
. . .
5.
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.
6.
[Plaintiff] has the following severe impairments:
obesity, degenerative joint disease, status post LINQ
placement,
nicotine
dependence,
osteoarthritis,
depression, and anxiety.
. . .
7.
[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.
. . .
8.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except [Plaintiff]
must avoid concentrated exposure to pulmonary irritants
such as dusts, odors, fumes and gases. She is limited to
simple, routine, repetitive tasks, no fast pace
production work with few workplace changes.
. . .
9.
[Plaintiff] is capable of performing past relevant
work as a classifier. This work does not require the
performance of work-related activities precluded by
[Plaintiff’s] residual functional capacity.
. . .
In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
3
capacity, there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] also can
perform.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from August 1, 2010, through
the date of this decision.
(Tr.
755-66
(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
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.’”
4
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
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),
5
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)).
“To
regularize
the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . detailed regulations incorporating longstanding medicalvocational 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
‘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).3
A finding adverse to the claimant at any of
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 (internal citations omitted).
6
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 179.4
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.
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
4
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis . . .
[which] means 8 hours a day, for 5 days a week, or an equivalent work schedule”
(internal emphasis and quotation marks omitted)).
The RFC includes both a
“physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658
F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers
all relevant evidence of a claimant’s impairments and any related symptoms (e.g.,
pain).” Hines, 453 F.3d at 562-63.
7
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 567.5
B.
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) the ALJ “err[ed] in finding that [Plaintiff] can perform
past relevant work [(‘PRW’)] as a [C]lassifier” (Docket Entry 13 at
4 (bold font and underscoring omitted); see also Docket Entry 16 at
1-3);
2) the ALJ “err[ed] by failing to incorporate non-exertional
limitations on the ability to stay on task where the [ALJ] first
f[ound] that [Plaintiff] was moderately impaired in the maintenance
of concentration, persistence, or pace [(‘CPP’)]” (Docket Entry 13
at 6 (bold font and underscoring omitted));
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
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).
8
3) the ALJ “dr[ew] conclusions that [we]re unwarranted and
unsupported by the record or by reason” (id. at 14 (bold font and
underscoring omitted); see also Docket Entry 16 at 3-5);
4) “[i]n discussing opinion evidence, the [ALJ] substitutes
boilerplate
for
consideration
of
the
evidence
and
reasoned
conclusions” (Docket Entry 13 at 18 (bold font and underscoring
omitted); see also Docket Entry 16 at 5-7); and
5) “[i]n discussing the opinion evidence, the ALJ failed to
reconcile portions of the nonexamining consultant’s opinion as to
mental
functioning”
(Docket
Entry
13
at
20
(bold
font
and
underscoring omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 15 at 1-20.)
1. PRW as a Classifier
In Plaintiff’s first assignment of error, she alleges that the
ALJ “err[ed] in finding that [Plaintiff] can perform [PRW] as a
classifier.”
(Docket Entry 13 at 4 (bold font and underscoring
omitted).) In particular, Plaintiff asserts that she performed the
classifier job in 1997, i.e., more than 15 years before her date
last insured of September 30, 2013, and “did not post earnings
greater
than
the
presumptive
amount
[for
substantial
activity (‘SGA’)] for the period of her work.”
Tr. 642).)
gainful
(Id. at 5 (citing
According to Plaintiff, “the [ALJ’s] step four finding
regarding the [RFC] is also in error, [] which means that [the
9
ALJ’s error regarding the classifier job] is not harmless and
requires vacating, reversing, and remanding the decision for a new
hearing.”
(Id.)
Plaintiff’s contentions do not warrant relief.
The Commissioner’s regulations define PRW as “work that [a
claimant has] done within the past 15 years, that was [SGA], and
that lasted long enough for [the claimant] to learn to do it.”
20
C.F.R.
§§
404.1560(b)(1),
416.960(b)(1).
Generally,
the
Commissioner considers a claimant’s earnings in the 15 years prior
to the disability adjudication at issue or 15 years prior to the
date
the
claimant
last
met
the
disability
insured
status
requirements, if earlier, Social Security Ruling 82-62, Titles II
and XVI: a Disability Claimant’s Capacity to Do Past Relevant Work,
in General, 1982 WL 31386, at *2 (1982) (“SSR 82-62”), which in the
instant case would capture Plaintiff’s earnings from September 30,
1998, to September 30, 2013, her date last insured.
In evaluating
whether work activity qualifies as SGA, the amount of earnings
represents the “primary consideration.”
(a)(1), 416.974(a)(1).
20 C.F.R. §§ 404.1574
Thus, to assist in determining whether a
claimant’s past work constitutes SGA, the regulations establish
earnings thresholds below which work generally does not qualify as
SGA.
See 20 C.F.R. §§ 404.1574(b)(2), 416.974(b)(2).
As an initial matter, both parties appear to have assumed that
the VE categorized Plaintiff’s prior work as a pricer with Carolina
Value Village, Inc. in 1997 as the Classifier job in the Dictionary
10
of Occupational Titles (“DOT”).
(See Docket Entry 13 at 5; Docket
Entry 15 at 2-3; Docket Entry 16 at 1-3.)
However, the following
colloquy between the ALJ, the VE, and Plaintiff at the hearing
confirms that the VE identified Plaintiff’s previous position as a
sorter for Rental Uniform Service of Statesville, Inc. as the
Classifier job:
[ALJ]:
. . . [A]t this time, would you please
identify [Plaintiff’s] past work and the
relevant [DOT] information?
[VE]:
Yes, ma’am. Past work would include work
of a waiter/waitress, informal, with a
[DOT] number of 311.477-030. [Specific
Vocational Preparation (‘SVP’)] of 3,
strength level of light. And also work
as a cleaner, housekeeping, with a [DOT]
number of 323.687-014.
SVP of 2,
strength level of light.
[ALJ]:
. . . I have sorter and clean-up crew and
priced items . . . . [T]he date last
insured expired September 30th, 2013. So
we go back to 1998. Ma’am, when were you
a price sorter?
[PLAINTIFF]:
. . . I think that job right there that
you’re talking about is a place called
Value Village, and that was – oh gosh. I
want to say 16 years ago or more.
. . .
[ALJ]:
. . . Value Village was in ‘97 and then
‘98 was Rental Uniforms, Jangle [sic]
Rental Uniforms in ‘99. . . . And how
much work did you do for Rental Uniforms?
[PLAINTIFF]:
I think that I worked there maybe eight
months – six or eight months.
[ALJ]:
What did you do there?
11
[PLAINTIFF]:
. . . [I]f you get a rack of shirts –
. . .
And they’ve all got numbers on them and
you to get, like, five to six numbers of
those shirts and put them together and
take, like, a red tie and tie around
them, hand them back on the rack, and get
them ready to go out to the dock to be
loaded on the truck to be taken wherever
they go.
[ALJ]:
. . . And how much did you earn there?
[PLAINTIFF]:
Wow. That’s been so long ago, I do not
remember.
But I’m sure that it was
probably minimum wage.
[ALJ]:
Was that full-time?
[PLAINTIFF]:
Monday through Friday, yes, ma’am.
. . .
[ALJ]:
. . . And is that the sorter position,
then? Would that sound like that []?
[VE]:
Yes, ma’am, Your Honor.
. . .
That
job
would
be
defined
as
[C]lassifier, with the [DOT] number of
361.687-014. SVP of 2, strength level of
light.
(Tr. 641-43 (emphasis added).)
As emphasized above, the ALJ asked the VE to classify the jobs
Plaintiff listed in the “Job History” section of a Disability
Report, which reflected prior work as part of an after hours “clean
up crew,” a “housekeeper” at a motel, an individual who “priced
items” in a retail store “like a Goodwill store,” a “sorter” in a
12
laundry,
and
a
“waitress”
in
a
tavern.
capitalization applied); see also Tr. 641.)
the
outset
of
the
colloquy
that
consideration of PRW began in 1998.
the
(Tr.
950
(standard
The ALJ made clear at
relevant
period
for
Although the ALJ confused
matters a bit by referring to Plaintiff’s job as a pricer at Value
Village as a “price sorter,” which, at least in title, combined
Plaintiff’s job as a “sorter” for the laundry and Plaintiff’s
pricer job with Value Village (Tr. 642), the discussion then
focused on the duties of Plaintiff’s past job as a sorter in 1998
and 1999, rather than her work as a pricer at Value Village in 1997
(see Tr. 642-43.)
confirmed
performing
with
for
At the conclusion of that discussion, the ALJ
the
VE
Rental
that
the
Uniform
duties
Services
Plaintiff
described
in
and
1998
1999
corresponded to the “sorter” in a laundry position on Plaintiff’s
“Job History” information, and the VE then testified that the DOT
defined that job as Classifier.
(See Tr. 643; see also DOT, No.
361.687-014 (Classifier in Laundering Occupations), 1991 WL 672991
(G.P.O. 4th ed. rev. 1991 (describing duties such as “[s]ort[ing]
laundry into lots” and “[p]lac[ing] sorted articles in bins, nets,
or baskets, or onto conveyor belt” (emphasis added)).)
Moreover,
Plaintiff’s
qualifies as PRW.
prior
work
as
a
sorter/Classifier
Performed in 1998 and 1999, that work falls
within the relevant period for PRW in this case from September 30,
1998, to September 30, 2013. In addition, Plaintiff reported that,
13
as a sorter, she worked eight hours per day and five days per week,
as well as that she earned $6.00 per hour.
(See Tr. 950.)
Thus,
Plaintiff’s own statements establish that she earned at least $960
per month as a sorter, well above the presumptive levels for SGA in
1998
and
1999.
See
https://www.socialsecurity.gov/oact/cola/
sga.html (1998 - $500; 1999 - $500 (first half of year)), $700
(second half of year)) (last visited May 31, 2019).
Finally,
because Plaintiff earned a total of $5,988.86 as a sorter (see Tr.
940),
at
a
rate
of
approximately
$960
per
month,
performed that job for approximately six months.
Plaintiff
Because the
Classifier job has an SVP of 2, meaning that an individual can
learn the job within a maximum of one month, see DOT, No. 361.687014, 1991 WL 672991, Plaintiff performed the sorter job long enough
to learn how to perform it, see 20 C.F.R. §§ 404.1560(b)(1),
416.960(b)(1).
In sum, Plaintiff’s first assignment of error fails as a
matter of law.6
6
Even if the ALJ had erred in finding that Plaintiff remained capable of
performing her PRW as a Classifier, any such error would remain harmless in 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”). Here, the ALJ made
an alternative step five finding that other jobs existed in significant numbers
in the national economy that Plaintiff could perform (see Tr. 764-66) and, as
explained in more detail in connection with Plaintiff’s remaining assignments of
error, Plaintiff has not demonstrated prejudicial error with respect to the RFC
or otherwise challenged the ALJ’s alternative step five finding.
14
2. CPP
Next, Plaintiff asserts that the ALJ “err[ed] by failing to
incorporate non-exertional limitations on the ability to stay on
task where the [ALJ] first f[ound] that [Plaintiff] was moderately
impaired in the maintenance of [CPP].” (Docket Entry 13 at 6 (bold
font and underscoring omitted).) In particular, Plaintiff contends
that the Fourth Circuit “held that an ALJ does not account for a
claimant’s
limitations
in
CPP
by
restricting the
RFC
or
the
hypothetical question to the [VE] to simple, routine, or repetitive
tasks [(‘SRRTs’)],” because “‘the ability to perform simple tasks
differs from the ability to stay on task[, and o]nly the latter
limitation would account for a claimant’s limitation in [CPP].’”
(Id. (quoting Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir.
2015)).)
This challenge lacks merit.
The Fourth Circuit has indeed held that “the ability to
perform simple tasks differs from the ability to stay on task” and
that “[o]nly the latter limitation would account for a claimant’s
limitation in [CPP].”
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,
medical source statements, consultative examinations, or
15
other evidence that
reviewing court.
is
sufficiently
evident
to
the
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 the claimant could
perform unskilled work despite moderate limitation in CPP, by
highlighting
his
opinions).
daily
Here,
the
activities
ALJ’s
and
decision
treating
provides
physicians’
a
sufficient
explanation as to why a restriction to SRRTs (Tr. 759) adequately
accounted for Plaintiff’s moderate deficit in CPP.
First, the ALJ discussed Plaintiff’s testimony that she “has
problems with her nerves” (Tr. 760; see also Tr. 623, 631) and her
complaints to medical providers “of increased stressors at home,
problems sleeping, nervousness[, ] panic attacks[,] . . . loss of
interest, sense of failure, and anxiety” (Tr. 761; see also, e.g.,
Tr.
1238-47,
1332-47).
However,
the
ALJ
found
Plaintiff’s
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms not entirely consistent with the medical
evidence
and
other
evidence
in
the
record
for
discussed” in subsequent portions of the decision.
the
reasons
(Tr. 760.)
Moreover, as discussed below, Plaintiff’s challenge to the ALJ’s
16
assessment of Plaintiff’s subjective symptoms (see Docket Entry 13
at 14-17) lacks merit.
Second, the ALJ summarized Plaintiff’s mental health treatment
and daily activities, making the following, pertinent observations:
•
“[Plaintiff] related experiencing abuse as a child
which has affected her recently with flashbacks and
anxiety, however[,] . . . [Plaintiff] was able to
work for several years” (Tr. 761);
•
“[m]ental status evaluation was unremarkable with
the exception of [Plaintiff’s] mood being depressed
at times” (id.);
•
“[Plaintiff] reported her symptoms improved after
several therapy sessions” and “that she was able to
use the techniques she obtained in therapy to
reduce her mental health symptoms and improve her
activity level” (id.; see also Tr. 1332-47);
•
“[Plaintiff] indicated she is able to take care of
her personal needs without assistance, take care of
her cat, cook for herself, do household chores
while taking breaks, [] shop for herself[,] . . .
manage her finances, [and] drive . . . a car” (Tr.
759; see also Tr. 618, 628, 632-34, 966, 976-83,
1141).
Those mild mental health findings and varied daily activities lend
support to the ALJ’s finding at step three that, despite moderate
deficit in CPP, Plaintiff could “sustain focused attention and
concentration
sufficiently
long
to
permit
the
timely
and
appropriate completion of tasks commonly found in routine and
repetitive, not detailed or complex, work settings.”
(Tr. 758.)
Third, the ALJ discussed and weighed the opinion evidence as
it related to Plaintiff’s ability to function mentally.
761-64.)
(See Tr.
In that regard, the ALJ gave “significant weight” to the
17
state agency psychological consultant at the reconsideration level
of review (Tr. 763), who found that, notwithstanding moderate
limitation in CPP (see Tr. 703, 721, 739), Plaintiff remained able
to “maintain attention and concentration for 2 hours at a time as
required for the performance of simple tasks” (Tr. 707, 725, 743
(emphasis added)).
on
a
The Fourth Circuit has found an ALJ’s reliance
substantially
psychological
similar
consultant
opinion
sufficient
limitations in CPP under Mascio.
F.3d
72,
80–81
(4th
Cir.
2017)
to
from
a
account
state
for
agency
moderate
See Sizemore v. Berryhill, 878
(finding
ALJ’s
crediting
of
consultant’s opinion that the claimant “would generally be able to
maintain [attention] for at least two [hours] at a time as needed
to do simple, routine tasks” satisfied Mascio).
Plaintiff focuses the majority of her CPP-based argument on
the purported insufficiency of the ALJ’s restriction to “no fast
pace production work.”
(See Docket Entry 13 at 6-10 (citing cases
finding non-production restrictions inadequate under Mascio).)
In
that regard, Plaintiff asserts that the non-production restriction
here contains the modifier “fast pace,” which makes it difficult
“to determine what specific types of production work are excluded,
and which permitted.”
(Id. at 10; see also id. (“What one person
deems ‘fast’ may be considered ‘slow’ by another.”).)
assertions entitle Plaintiff to no relief for four reasons.
18
These
First,
as
the
discussion
above
makes
clear,
the
ALJ’s
evaluation of Plaintiff’s subjective symptoms and mental health
treatment, as well as the ALJ’s crediting of the state agency
psychological consultant’s opinion regarding Plaintiff’s ability to
stay on task, independently suffice under Mascio to sustain a
restriction to SRRTs alone, notwithstanding Plaintiff’s moderate
deficit in CPP.
See Sizemore, 878 F.3d at 80–81.
Thus, the ALJ’s
inclusion in the RFC of further restrictions to “no fast pace
production work” and “few workplace changes” (Tr. 759) simply
represent an additional (but not necessary) ground on which to find
that the ALJ satisfied the requirements of Mascio.
Second, a review of recent decisions from the Fourth Circuit
addressing non-production restrictions in the context of Mascio
bolster the conclusion that the ALJ’s restrictions to “no fast pace
production work” and “few workplace changes” (id.) also properly
accommodate Plaintiff’s moderate limitation in CPP.
As another
judge of this Court recently reasoned:
In [Perry v. Berryhill, 765 F. App’x 869 (4th Cir.
2019)], the Fourth Circuit found fault with “the ALJ’s
reference to a ‘non-production oriented work setting,’”
as the Fourth Circuit “d[id] not know what the ALJ
intended when she used that phrase,” making it
“difficult, if not impossible, to evaluate whether
restricting [the plaintiff] to a ‘non-production oriented
work setting’ properly accounted for [his] welldocumented limitations in [CPP].” Perry, 765 F. App’x at
872.
In so doing, the Fourth Circuit specifically
distinguished its decision in Sizemore v. Berryhill, 878
F.2d 72 (4th Cir. 2017), where it “found that an ALJ had
adequately explained a[n RFC] assessment that restricted
the claimant, in part, to ‘non-production jobs,’” as “the
19
ALJ in Sizemore provided additional context, explaining
that the claimant could perform work only in a ‘low
stress’ setting, without any ‘fast-paced work’ or ‘public
contact,’ to account for moderate limitations in [CPP],”
which “descriptors helped to explain the restriction
intended by the ALJ, and allowed [the Fourth Circuit] to
evaluate whether that restriction adequately accounted
for the claimant’s limitations.” Perry, 765 F. App’x at
872 n.1.
Ross v. Berryhill, No. 1:17CV1145, 2019 WL 1430129, at *1 (M.D.N.C.
Mar. 29, 2019) (unpublished) (Schroeder, C.J.) (emphasis added);
see also Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019)
(finding that ALJ’s preclusion of “work ‘requiring a production
rate or demand pace’” and “‘crisis situations, complex decision
making, or constant changes in a routine setting’” did not suffice
under facts of that case).
Sizemore,
as construed
in
As in Ross (and consistent with
Perry),
the
ALJ
here
included
the
additional descriptors of “fast pace” and “few workplace changes”
(Tr. 759), which “help[] to explain the restriction intended by the
ALJ, and allow[ the Court] to evaluate whether that restriction
adequately accounted for [Plaintiff’s] limitations,” Perry, 765 F.
App’x at 872 n.1.
Third, the VE in this case did not express any difficulty in
understanding the meaning of the words “fast-paced” in responding
to the ALJ’s dispositive hypothetical question. (Tr. 643.) The VE
not only testified that Plaintiff’s prior work as a Classifier
conformed to a limitation to “no fast-paced production rate work”
(id.), but also provided three other jobs that fit within that
20
restriction, Linen Room Attendant, Counter Supply Worker, and
Dining Room Attendant (Tr. 644).
Fourth, at the hearing before the ALJ, Plaintiff failed to
question the VE regarding the meaning of the phrase “no fast-paced
production rate work” or how the jobs the VE cited adhered to that
restriction, despite the fact that she had the opportunity (through
her attorney) to cross-examine the VE.
(See Tr. 647-49.)
As a
result, Plaintiff has waived, in this Court, any challenge to the
ALJ’s reliance upon (and adoption of) the VE’s testimony that
Plaintiff’s PRW as a Classifier (and three additional jobs) could
accommodate the ALJ’s restriction to “no fast-paced production rate
work” (Tr. 643-44, 764-66).
11–183,
2012
WL
3866678,
See Stepinski v. Astrue, No. CA
at
*9–10
(D.R.I.
Aug.
6,
2012)
(unpublished) (“The [c]ourt views unfavorably the silence of [the
p]laintiff’s counsel at the hearing regarding the omission about
which he now complains.
Reversal and remand . . . would encourage
other counsel to remain silent in similar circumstances.
This
[c]ourt is disinclined to provide such an incentive[] . . . [and]
finds that [the p]laintiff waived this issue by failing to raise it
before the ALJ.” (internal citations omitted)), recommendation
adopted, 2012 WL 3863812 (D.R.I. Sept. 5, 2012) (unpublished).
Plaintiff also argues that the ALJ “fail[ed] to explain how
[Plaintiff] could remain on task for a full workday.”
(Docket
Entry 13 at 10.) However, the ALJ’s decision contains two findings
21
which establish that she did properly determine that Plaintiff
could sufficiently maintain CPP to stay on task for a full, eighthour workday.
First, the ALJ found at step three that, despite
moderate deficit in CPP, Plaintiff could “sustain focused attention
and concentration sufficiently long to permit the timely and
appropriate completion of tasks commonly found in routine and
repetitive, not detailed or complex, work settings.”
(emphasis added).)
level
state
(Tr. 758
Second, the ALJ credited the reconsideration-
agency
psychological
consultant’s
opinion
that
Plaintiff remained able to “maintain attention and concentration
for 2 hours at a time as required for the performance of simple
tasks.”
(Tr. 707, 725, 743 (emphasis added).)
Those findings
suffice.
See Sizemore, 878 F.3d at 81 (finding ALJ’s reliance on
state agency consultant’s opinion that the claimant could “maintain
[attention] for at least two [hours] at a time as needed to do
simple, routine tasks” sufficiently demonstrated the claimant’s
ability to “stay on task while performing ‘simple one, two-step
tasks,’ as long as he was ‘working in low stress non-production
jobs with no public contact’”).
In short, Plaintiff has failed to demonstrate prejudicial
error under Mascio.
3. Supportability of ALJ’s Conclusions
In Plaintiff’s third assignment of error, she contends that
the ALJ “dr[ew] conclusions that [we]re unwarranted and unsupported
22
by the record or by reason.”
underscoring
examples of
omitted).)
alleged
(Docket Entry 13 at 14 (bold font and
However,
“unwarranted
none
and
of
Plaintiff’s
unsupported”
cited
conclusions
establish prejudicial error.
First,
Plaintiff
faults
the
ALJ
for
“describ[ing]
[Plaintiff’s] depression as ‘situational,’ (i.e., caused not by
intrinsic mental impairment),” and argues that, “if stresses at
home were disruptive to her mental health and to her functioning,
there is no reason to conclude that stresses at work would not have
a similar – and probably more severe – effect on her functioning
because at home [Plaintiff] would have more control over her
environment than she would have in the workplace.”
Tr. 761); see also Docket Entry 16 at 3-5.)
(Id. (quoting
Plaintiff’s argument
fails for two reasons. First, the ALJ remarked that “[t]he medical
records [] show [Plaintiff] has been diagnosed with reactive
depression” and that “[t]reatment notes reveal[ed] [Plaintiff’s]
depression [wa]s situational as she presented to her treating
physicians with complaints of increased stressors at home, problems
sleeping, nervousness and panic attacks.”
(Tr. 761 (emphasis
added).) Thus, the ALJ did not characterize Plaintiff’s depression
as “reactive” and “situational” but rather correctly observed that
Plaintiff’s treating providers diagnosed her with that condition.
(Id.; see also Tr. 1168, 1247.) Second, Plaintiff’s argument “that
stresses at work would [] have a similar – and probably more severe
23
– effect on her functioning” (Docket Entry 13 at 14) constitutes
sheer speculation
and
overlooks the
fact
that
the
ALJ’s
RFC
includes several restrictions aimed at reducing the amount of
workplace
stress
Plaintiff
would
encounter,
e.g.,
SRRTs,
few
workplace changes, and no fast pace production work (Tr. 759).
Second, Plaintiff challenges the ALJ’s statement that Plaintiff
“‘has not been hospitalized for her mental health symptoms’” (Docket
Entry 13 at 15 (quoting Tr. 761)), noting that “[t]he record
contains evidence of a mental health hospitalization” which, in
turn, indicates “that [Plaintiff] ‘had [a] history of previous
overdoses’”
(id.
(quoting
Tr.
1039)).
Although
Plaintiff
acknowledges that she “presumably” made her statement denying prior
mental hospitalizations “to the psychological examiner [Dr. Cheri
R. Anthony],” Plaintiff claims that, “[i]f [she] indeed said so,
this is false.”
(Id.)
A review of the ALJ’s decision makes clear
that she did not independently find as a fact that Plaintiff’s
mental
health
treatment
history
lacked
any
inpatient
hospitalizations, but merely reported Plaintiff’s apparent statement
to Dr. Anthony to that effect during the consultative examination.
(See Tr. 761; see also Tr. 1139.)
Third, Plaintiff criticizes the ALJ’s observation that, despite
Plaintiff’s reporting of flashbacks and anxiety relating to abuse
when she was a child, she “‘was able to work for several years.’”
(Docket Entry 13 at 16 (quoting Tr. 761).)
24
According to Plaintiff,
she “never performed work at the SGA level[, ] what little work she
did perform was generally unskilled[,] . . . [and] there is no
evidence that the work she performed was unaccommodated, or . . .
did not allow her to take more frequent breaks than would be
permitted in a competitive work environment.”
(Id.)
As discussed
above, the work Plaintiff performed as a Classifier did constitute
SGA (see Tr. 950), and the VE categorized her prior work as a
waitress as semi-skilled (see Tr. 641).
Moreover, Plaintiff bears
the burden of establishing the duties and requirements of her PRW,
see Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017), yet she
did not produce any evidence that she required (or received) any
sort of accommodation or allowance for extra breaks in her past
employment.
Fourth, Plaintiff attacks the ALJ’s finding of “‘several
inconsistencies throughout the record,’” and asserts that the ALJ
failed to “point to a single one.”
Tr. 760).)
(Docket Entry 13 at 16 (quoting
The ALJ provided the following analysis regarding
inconsistencies:
There are several inconsistencies throughout the record.
Treatment notes [] show [Plaintiff] complained of
headaches that caused blurred vision, facial numbness,
dizziness and syncope.
Physical examination was
unremarkable and EEG testing yielded normal results.
[Plaintiff] had an implantable loop recorder implanted
that the records state will stay for three years in order
to track these episodes.
[Plaintiff] was prescribed
medication and reported [sic] relieved her syncopal
episodes.
Treatment notes further show [Plaintiff]
complained of severe aching knee pain and that she
further experiences swelling in the right knee after
25
standing for extended periods.
However, her treating
providers noted she was able to cross her legs with the
right leg and sit with a 90-degree bend of that knee
without difficulties.
Physical examination showed
[Plaintiff] exhibited tenderness to the right knee but no
swelling and was otherwise unremarkable. She was treated
with pain medication, steroid injections, and a knee
brace that she stated gave her some relief. [Plaintiff]
further complained of a persistent cough that was
productive at times.
Physical examination at a few
office
visits
was
consistent
with
[Plaintiff’s]
allegations and she was prescribed inhalers. Treatment
notes show [Plaintiff] reported smoking every day and
continued to smoke despite her respiratory symptoms. She
subsequently reported relief of her symptoms with use of
the inhalers, allergy medication and cough suppressants.
(Tr. 760-61 (internal citations omitted).)
In the above-quoted
analysis and earlier in the decision, the ALJ pointed out the
following inconsistencies in the record:
C
Plaintiff “stated she has asthma and experiences
shortness of breath with exertion,” but Plaintiff
“indicated she is able to take care of her personal
needs without assistance, take care of her cat,
cook for herself, do household chores while taking
breaks, [] shop for herself[,] . . . [and] swim[]
at her daughter’s house” (Tr. 759);7
C
despite Plaintiff’s complaints of headaches and
syncope, “[p]hysical examination was unremarkable,”
“EEG testing yielded normal results,” and Plaintiff
reported that medication “relieved her syncopal
episodes” (Tr. 760);
C
although Plaintiff reported severe knee pain,
examination showed “tenderness . . . but no
swelling and was otherwise unremarkable,” and
7
Plaintiff contends that her claim of shortness of breath with exertion does not
conflict with the list of activities the ALJ cited, because Plaintiff could only
“perform th[o]se ‘chores while taking breaks.’” (Docket Entry 13 at 17 (quoting
Tr. 759).) However, Plaintiff glosses over the fact that the ALJ qualified only
Plaintiff’s ability to perform household chores with a need to take breaks (see
Tr. 759) and thus the ALJ found the totality of daily activities Plaintiff could
perform, including household chores with breaks, inconsistent with her claims of
disabling shortness of breath with exertion.
26
Plaintiff found “some relief” through “pain
medication, steroid injections, and a knee brace”
(Tr. 760-61);8
C
in spite of Plaintiff’s assertion of “a persistent
cough,” Plaintiff “reported smoking every day,”
“continued to smoke despite her respiratory
symptoms,” and “subsequently reported relief of her
symptoms
with
use
of
[]
inhalers,
allergy
medication and cough suppressants” (Tr. 761).9
Accordingly, Plaintiff has not shown that the ALJ reached
“unwarranted
and
unsupported”
conclusions
that
would
require
reversal or remand.
8
Plaintiff faults the ALJ for citing Plaintiff’s “‘ab[ility] to cross her legs
. . . without difficulties’” as inconsistent with her reports of severe knee pain
(Docket Entry 13 at 16 (quoting Tr. 761)), arguing that “[t]he two sentences have
no apparent relation to one another, and unless the ALJ were a testifying
physician, there is not an evident inconsistency between crossing legs for a
moment in an examining room (presumably while seated) and experiencing pain and
swelling after standing for a few hours” (id.). As an initial matter, Plaintiff
omitted the remainder of the ALJ’s statement that Plaintiff could “cross her legs
with the right leg and sit with a 90-degree bend of that knee without
difficulties.” (Tr. 761.) Moreover, Plaintiff neglects to mention that the
ALJ’s remark paraphrased the observation of Plaintiff’s treating nurse
practitioner, Amanda Beasley, who noted that, despite Plaintiff’s complaint of
right medial knee pain, “[w]hile sitting and talking, [Plaintiff] was able to
cross her legs with the RIGHT leg and also sit with a 90 degree bend of that knee
(Valgus like position) without difficulties” (Tr. 1202 (capitalization in
original)).
9
Plaintiff argues that the ALJ’s two statements that Plaintiff “complained of
a persistent cough” and “‘[p]hysical examination at a few office visits was
consistent with [Plaintiff’s] allegations [of a persistent cough] and she was
prescribed inhalers’” contain “no apparent inconsistencies.” (Docket Entry 13
at 17 (quoting Tr. 761).) This argument overlooks the ALJ’s use of the modifier
“few” before “office visits,” which indicates that most of the office visits did
not corroborate Plaintiff’s complaint of a persistent cough, as well as the ALJ’s
remarks about Plaintiff’s continued smoking and reported relief with treatment
modalities, both of which provide evidence inconsistent with Plaintiff’s reports
of a disabling persistent cough. (See Tr. 761.)
27
4. Opinion Evidence10
Plaintiff raises three contentions of error with respect to the
ALJ’s evaluation of the opinion evidence. First, Plaintiff contends
that
the
ALJ
accorded
substantial
weight
to
the
opinions
of
psychological consultative examiner Dr. Anthony, but “fail[ed] to
discuss why portions of Dr. Anthony’s report that were inconsistent
with
the
weight.”
[ALJ’s]
conclusions
were
not
also
given
substantial
(Docket Entry 13 at 17 (referencing Tr. 762-63).)
In
particular, Plaintiff faults the ALJ for noting Dr. Anthony’s
opinion that Plaintiff “‘may have some difficult[ies] managing
stress associated with a routine work environment,’” but failing to
mention “the previous sentence” that Plaintiff “‘does appear to have
poor stress management and limited stress tolerance.’” (Id. at 18
(quoting Tr. 1144).)
However, ALJs labor under no obligation to
discuss each and every finding in the medical opinions of record.
See Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir.
2014).
Moreover, the ALJ expressly discussed the more significant
of Dr. Anthony’s opinions that translated Plaintiff’s difficulties
handling stress into a work-related limitation.
(See Tr. 761.)
Plaintiff makes no argument that the RFC’s restrictions to SRRTs,
few workplace changes, and no fast pace production work (see Tr.
10
The last contention in Plaintiff’s third assignment of error (see Docket Entry
13 at 17-18), as well as Plaintiff’s fourth and fifth assignments of error (see
id. at 18-21), all involve allegations of error relating to the ALJ’s evaluation
of the opinion evidence of record. Thus, this Recommendation will address those
arguments together.
28
759) inadequately encompass Dr. Anthony’s equivocal opinion that
Plaintiff “may have some difficulties managing stress associated
with a routine work environment” (Tr. 1144 (emphasis added)).
(See Docket Entry 13 at 17-18.)
Second, Plaintiff faults the ALJ for using the following
boilerplate in evaluating and weighing the opinions of Dr. Anthony,
consultative medical examiner Dr. Larry Gish, and consultative
medical examiner Dr. Stephen Burgess:
“[The opinions/findings are] well supported by objective
diagnostic testing, his [or her] trained observations, an
impartial analysis of the evidence of record, and a wellreasoned conclusion.
He [or she] documented and
attempted to resolve contradictions with input from
[Plaintiff] and analyzed [Plaintiff’s] statements in view
of [Plaintiff’s] daily activities, history, and previous
work experience.”
(Id. at 18-19 (quoting Tr. 761-62); see also Docket Entry 16 at 57.)
According to Plaintiff, “it is difficult, on account of the
boilerplate language . . ., to believe that these reports were each
evaluated on its [sic] own merits” (Docket Entry 13 at 19), and/or
that the ALJ adequately “expla[ined] the weight given to these
respective opinions” (id. at 20).
Plaintiff further observes that
“the record shows no evidence of objective diagnostic testing in the
reports of Dr. Anthony, Dr. Gish, and Dr. Burgess” and that “the
decision ought to be expected to point to specifically what testing,
what observations, and what analysis of the evidence to which it
refers.”
(Id. (internal quotation marks omitted.)
29
Plaintiff’s argument focuses solely on the ALJ’s alleged
boilerplate language and omits the ALJ’s detailed discussion of each
of the three consultants’ examination findings (see Tr. 761-63).
(Docket Entry 13 at 18-20; see also Docket Entry 16 at 5-7.)
result
of
the
ALJ’s
thorough
discussion
of
the
As a
consultants’
findings, the Court can ascertain that the ALJ did evaluate the
consultants’ reports on their respective merits and determine the
basis
for
“the
weight
given
to
opinions” (Docket Entry 13 at 20).11
[the
consultants’]
respective
More significantly, given that
no opinion evidence exists in the record that proffers greater
restrictions than those contained in the ALJ’s RFC, Plaintiff has
failed to show how further explanation by the ALJ of the weight
accorded to those opinions would have changed the ultimate outcome
in her case.
11
Plaintiff’s contention that “the record shows no evidence of objective
diagnostic testing in the reports of Dr. Anthony, Dr. Gish, and Dr. Burgess”
(Docket Entry 13 at 20) also warrants no relief. Dr. Gish conducted a physical
examination of Plaintiff, which included objective, diagnostic methodologies such
as testing Plaintiff’s heart rate and oxygen saturation after a fast walk, taking
her blood pressure, and using a stethoscope to assess Plaintiff’s lungs and heart
(auscultation).
(See Tr. 1149-50.)
Dr. Burgess also performed a physical
examination of Plaintiff, which included auscultation of Plaintiff’s lungs and
heart, measurement of Plaintiff’s arm and leg circumferences, and x-rays of
Plaintiff’s lumbar spine and right knee. (See Tr. 1188-89, 1194-96.) Although
Dr. Anthony tested Plaintiff’s orientation, attention, memory, fund of
information, abstract reasoning, and judgment on mental status examination (see
Tr. 1142-43), because those tests primarily rely on Plaintiff’s subjective
responses, the ALJ arguably erred by finding that “Dr. Anthony’s opinion [wa]s
well supported by objective diagnostic testing” (Tr. 761 (emphasis added)).
However, because the ALJ specifically (and accurately) discussed Dr. Anthony’s
findings on mental status examination (see id.), Plaintiff has not shown how
correction of the ALJ’s minor error in this regard would impact the weight the
ALJ accorded to Dr. Anthony’s opinion, let alone the ultimate outcome in the
case.
30
Third, Plaintiff asserts that, “while the [ALJ] appear[ed] to
give,
in
collective
fashion,
the
state
agency
medical
and
psychological consultants’ opinions ‘significant weight’” (Docket
Entry
13
at
20-21
(quoting
Tr.
763)),
and
“note[d]
that
[reconsideration-level state agency psychological consultant Dr.
Nelson] stated that [Plaintiff] continued to be able to ‘maintain
[CPP] for periods of two hours as required for the performance of
simple tasks’” (id. at 20 (quoting Tr. 763 (in turn referencing Tr.
707, 725, 743))), the ALJ failed to mention that Dr. Nelson also
found that Plaintiff “was moderately limited in the ‘ability to
complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods’” (id.
(quoting Tr. 707, 725, 743)).
Plaintiff’s argument fails, because the moderate limitation in
the ability to complete a workday/workweek appears in the portion
of
the
mental
RFC
form
which
the
state
agency
psychological
consultants use as “merely a worksheet to aid in deciding the
presence and degree of functional limitations . . . and does not
constitute the RFC assessment.”
Program Operations Manual System
(“POMS”) DI 24510.060B.2.a (bold font omitted).
The state agency
consultants assess the actual mental RFC in the narrative portion
of the form.
See POMS DI 24510.060B.4.
Here, despite moderate
limitation in the ability to complete a workday/workweek, Dr. Nelson
31
concluded in the narrative portion of the mental RFC form that
Plaintiff could “maintain attention and concentration for 2 hours
at a time as required for the performance of simple tasks” (Tr. 707,
725, 743) and remained “capable of doing SRRTs” (Tr. 708, 726, 744).
The ALJ did not err by relying on Dr. Nelson’s narrative mental RFC
assessment.
See Jones v. Commissioner of Soc. Sec., 478 F. App’x
610, 612 (11th Cir. 2012) (rejecting the claimant’s contention that
ALJ should have accounted in RFC for moderate limitations identified
on mental RFC assessment form, and noting that the limitations “are
only part of a worksheet that does not constitute the doctors’
actual
RFC assessment” (brackets and internal quotation marks
omitted)); Smith v. Commissioner of Soc. Sec., 631 F.3d 632, 636-37
(3d Cir. 2010) (finding no error where ALJ did not include in
hypothetical question moderate limitations contained in worksheet
part of mental RFC form, concluding that the claimant could not
“rely on the worksheet component” of mental RFC form); Johansen v.
Barnhart, 314 F.3d 283, 288-89 (7th Cir. 2002) (upholding ALJ’s
reliance on narrative mental RFC assessment rather than subsidiary
findings of moderate limitations in the claimant’s ability to
maintain a regular schedule and attendance and to complete a normal
workday and workweek).
In light of the above analysis, Plaintiff has failed to
demonstrate prejudicial error arising out of the ALJ’s evaluation
of the opinion evidence of record.
32
III.
CONCLUSION
Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment
on
the
Pleadings
(Docket
Entry
12)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 14)
be granted, and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 9, 2019
33
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