WOODHAM v. KIJAKAZI
Filing
20
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 02/05/2024, that the Commissioner's decision finding no disability is AFFIRMED, and that this action is DISMISSED with prejudice. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ALYSSA W.,
Plaintiff,
v.
MARTIN J. O’MALLEY,
Commissioner of Social
Security,
Defendant.1
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1:22CV919
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Alyssa W., 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
(the “Commissioner”), denying Plaintiff’s claim for Supplemental
Security Income (“SSI”).
(Docket Entry 1.)
The Commissioner has
filed the certified administrative record (Docket Entry 7 (cited
herein as “Tr. __”)), and both parties have submitted dispositive
briefs in accordance with Rule 5 of the Supplemental Rules for
Social Security Actions under 42 U.S.C. § 405(g) (Docket Entry 16
(Plaintiff’s Brief); Docket Entry 18 (Commissioner’s Brief); Docket
1
On December 20, 2023, President Joseph R. Biden, Jr., appointed Martin
J. O’Malley as Commissioner of the Social Security Administration. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley should
substitute for Kilolo Kijakazi as 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).
Entry 19 (Plaintiff’s Reply)).
For the reasons that follow, the
Court will enter judgment for the Commissioner.2
I.
PROCEDURAL HISTORY
Plaintiff applied for SSI (Tr. 168-74), alleging a disability
onset date of February 1, 2016 (see Tr. 168).3
Upon denial of that
application initially (Tr. 63-73, 86-90) and on reconsideration
(Tr. 74-85, 94-96), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 97-100).
Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 38-62.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 16-36.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
163-67), thereby making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In
rendering
that
decision,
the
ALJ
made
the
following
findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since January 6, 2021, the application date.
. . .
2
On consent of the parties, this “case [wa]s referred to [the undersigned]
United States Magistrate Judge [] to conduct all proceedings . . ., to order the
entry of judgment, and to conduct all post-judgment proceedings therein.”
(Docket Entry 13 at 1.)
3
Notwithstanding Plaintiff’s alleged onset date of February 1, 2016,
Plaintiff lacked eligibility for SSI benefits until her application date of
January 6, 2021 (see Tr. 168).
See 20 C.F.R. § 416.202 (explaining that a
claimant remains ineligible for SSI benefits until date he or she files SSI
application); 20 C.F.R. § 416.501 (stating that a claimant may not receive SSI
benefits for any period that predates first month he or she satisfies eligibility
requirements, which cannot precede application date).
2
2.
[Plaintiff] has the following severe impairments:
obesity,
schizoaffective
disorder
bipolar
type,
borderline intellectual functioning (BIF) and somatic
symptom disorder.
. . .
3.
[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.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . except can perform
simple
routine
tasks,
and
maintain
attention,
concentration, persistence, or pace to stay on task for
2-hour periods during a normal 8-hour workday, as
required to perform such tasks. [Plaintiff] requires a
low stress work setting, further defined as work that is
not production pace or quota based, rather a goaloriented job primarily dealing with things as opposed to
people; no more than occasional interaction with the
public, supervisors, and co-workers, but no work with the
public as a component of the job such as cashier, sales
or negotiations, however, incidental/casual contact is
not precluded.
. . .
5.
[Plaintiff] has no past relevant work.
. . .
9.
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.
. . .
3
10. [Plaintiff] has not been under a disability, as
defined in the . . . Act, since January 6, 2021, the date
the application was filed.
(Tr. 21-32 (space added) (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 . . . 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, “a
reviewing
of
court
must
uphold
the
factual
findings
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)).
4
“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 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),
and that, in this context, “disability” means the “‘inability to
engage in
any
substantial
gainful
5
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)).4
§
“To
regularize
the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
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
[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any
other work.”
Albright v. Commissioner of Soc. Sec. Admin., 174
4
The Act “comprises two disability benefits programs. The Disability
Insurance Benefits program . . . 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).
6
F.3d 473, 475 n.2 (4th Cir. 1999).5
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.
determines
if
the
claimant
benefits are denied.”
is
‘severely’
The second step
disabled.
If
not,
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 [RFC].”
Id. at 179.6
Step four
then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant
does not qualify as disabled.
work”; if so, the claimant
Id. at 179-80.
However, if the
5
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
“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.
7
claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the RFC] and [the claimant’s] vocational capabilities (age,
education, and past work experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot
carry its “evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,” the
claimant qualifies as disabled.
B.
Hines, 453 F.3d at 567.7
Assignments of Error
Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred by failing to build a logical bridge from
the evidence of record to the RFC assessment, in violation of case
law
precedent”
(Docket
Entry
16
at
2
(bold
font
and
block
formatting omitted)); and
2) “[a]t step five, the ALJ erred by failing to resolve
apparent conflicts between the VE’s testimony and the information
in the [Dictionary of Occupational Titles (‘DOT’)], in violation of
[Social Security
Ruling]
00-4p[,
7
Policy
Interpretation
Ruling
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.”).
8
Titles II and XVI:
Use of Vocational Expert and Vocational
Specialist Evidence, and Other Reliable Occupational Information in
Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000) (‘SSR 00-4p’)]
and case law precedent” (id. at 17 (bold font and block formatting
omitted); see also Docket Entry 19 at 1-5).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 18 at 3-21.)
1. Logical Bridge Between Evidence and RFC
In Plaintiff’s first issue on review, she maintains that
“[t]he ALJ erred by failing to build a logical bridge from the
evidence of record to the RFC assessment, in violation of case law
precedent.”
(Docket Entry 16 at 2 (bold font and block-formatting
omitted).)
More specifically, Plaintiff faults the ALJ for 1)
“improperly increasing [Plaintiff’s] burden of proof in requiring
that her subjective statements be validated by objective medical
support, in violation of new [United States Court of Appeals for
the] Fourth Circuit precedent” (id. at 2 (bold font and block
formatting omitted)), 2) “ignoring the function report completed by
[] Plaintiff’s mother, in violation of 20 C.F.R. § 416.929 and
Fourth Circuit precedent” (id. at 8 (bold font and block formatting
omitted)), 3) “failing to adequately account for [] Plaintiff’s
limitations in maintaining concentration, persistence, or pace
[(‘CPP’)] in the RFC assessment, in violation of Fourth Circuit
precedent” (id. at 11 (bold font and block-formatting omitted)), 4)
9
“failing to adequately account for the marked/extreme limitations
opined by the examining psychologist, whose opinion the ALJ found
persuasive” (id. at 12 (bold font and block-formatting omitted)),
and 5) “formulat[ing] a legally insufficient RFC assessment, in
violation of Social Security law and Fourth Circuit precedent” (id.
at 15 (bold font and block-formatting omitted)).
For the reasons
explained in more detail below, all of those contentions lack
merit.
a.
Objective Medical Evidence
Plaintiff first maintains that the ALJ erred by “improperly
increasing [Plaintiff’s] burden of proof in requiring that her
subjective statements be validated by objective medical support, in
violation of new Fourth Circuit precedent.”
and
block
formatting
omitted)
(italics
(Id. at 2 (bold font
in
original).)
In
particular, Plaintiff points out that, “[o]n February 22, 2023, the
Fourth Circuit . . . issued a landmark decision” (id. at 3),
“hold[ing] that ‘ALJs cannot rely upon the absence of objective
medical evidence to discredit a claimant’s subjective complaints
regarding symptoms of . . . [a] disease that does not produce such
evidence,’”
and
that
“‘depression[
-]
particularly
chronic
depression[ -] is one of those [] diseases’” (id. at 4 (quoting
Shelley C. v. Commissioner of Soc. Sec. Admin., 61 F.4th 341, 361
(4th Cir. 2023) (italics, internal quotation marks, and citation
omitted)).
In Plaintiff’s view, the ALJ violated Shelley C. by 1)
“mischaracteriz[ing] the record by improperly cherry-picking bits
10
and pieces from the record to highlight Plaintiff’s good moments
and bypassing the bad” (id. at 7), and 2) “relying upon the absence
of objective medical evidence to discredit Plaintiff’s subjective
complaints regarding symptoms of her schizophrenia and chronic
depression” (id. at 7-8).
In Arakas v. Commissioner, Soc. Sec. Admin., 983 F.3d 83 (4th
Cir. 2020), the Fourth Circuit deemed fibromyalgia a “unique”
disease, Arakas, 983 F.3d at 97, with “symptoms [that] are entirely
subjective,” id. at 96, and noted that “physical examinations of
patients with fibromyalgia will usually yield normal results — a
full range of motion, no joint swelling, as well as normal muscle
strength and neurological reactions,” id. (brackets omitted).
The
Fourth Circuit thus held that “ALJs may not rely on objective
medical evidence (or the lack thereof) – even as just one of
multiple medical factors – to discount a claimant’s subjective
complaints
regarding
symptoms
of
fibromyalgia,”
because
“[o]bjective indicators such as normal clinical and laboratory
results simply have no relevance to the severity, persistence, or
limiting effects of a claimant’s fibromyalgia, based on the current
medical understanding of the disease,” id. at 97 (emphasis added).
Just over two years later, the Fourth Circuit issued Shelley
C., in which the court extended the above-described holding in
Arakas to depression, reasoning as follows:
After acknowledging that [the plaintiff]’s medically
determinable impairment could reasonably be expected to
11
cause some of the alleged symptoms, the ALJ determined
that [the plaintiff]’s statements relating to the
intensity, persistence, and limiting effect of her
symptoms were inconsistent with the medical and other
evidence in the record. We hold that the ALJ erred in
discounting [the plaintiff]’s subjective complaints as
inconsistent with the record’s medical evidence.
The ALJ’s legal error is clear: he could not dismiss [the
plaintiff]’s subjective complaints based entirely upon
the belief that they were not corroborated by the
record’s medical evidence. The Fourth Circuit has long
held that “while there must be objective medical evidence
of some condition that could reasonably produce the pain,
there need not be objective evidence of the pain itself
or its intensity.” Walker v. Bowen, 889 F.2d 47, 49 (4th
Cir. 1989).
Indeed, “[b]ecause pain is not readily
susceptible of objective proof . . ., the absence of
objective medical evidence of the intensity, severity,
degree
or
functional
effect
of
pain
is
not
determinative.” Hines v. Barnhart, 453 F.3d 559, 564–65
(4th Cir. 2006).
Accordingly, [the plaintiff] was
entitled to rely entirely on subjective evidence to
demonstrate that her pain was sufficiently persistent and
severe to support a disability finding. See id. at 564.
As described in length above, the record contains no
shortage of such evidence.
. . .
In Arakas, we held that ALJs could not rely upon the
absence of objective medical evidence to discredit “a
claimant’s subjective complaints regarding symptoms of
fibromyalgia or some other disease that does not produce
such evidence.” 983 F.3d at 97 (emphasis added). Today,
we hold that depression — particularly chronic depression
— is one of those other diseases. . . .
Stated
differently, symptoms of [major depressive disorder
(‘MDD’)], like those of fibromyalgia, are “entirely
subjective,” determined on a case-by-case basis. Arakas,
983 F.3d at 96 (emphasis added). Ultimately, because of
the unique and subjective nature of MDD, subjective
statements from claimants “should be treated as evidence
substantiating the claimant’s impairment.” Id. at 97–98.
Because the ALJ “improperly increased [the plaintiff]’s
burden of proof,” id. at 96, in requiring that her
12
subjective statements be validated by objective medical
support, we must find error.
Shelley C., 61 F.4th 341, 360–62 (italics in original) (internal
quotation marks, footnote, and some citations omitted).
A review of the ALJ’s decision persuades the Court that the
ALJ
here
did
not
violate
Shelley
C.,
because
he
neither
“mischaracterized the record by improperly cherry-picking bits and
pieces from the record to highlight Plaintiff’s good moments and
bypassing the bad” (Docket Entry 16 at 7), nor “dismiss[ed the
plaintiff]’s subjective complaints based entirely upon the belief
that they were not corroborated by the record’s medical evidence,”
Shelley C., 61 F.4th at 360 (italics in original).
i.
Cherry-Picking
Plaintiff makes the following arguments regarding the ALJ’s
alleged cherry-picking of the record:
Here, as in Shelley C., the ALJ committed similar errors
when evaluating [] Plaintiff’s subjective symptoms
associated with her chronic schizophrenia, bipolar type
with psychotic features. Here, as in Shelley C., the ALJ
improperly cherry-picked the record by only stating that
Plaintiff’s “mental status exam was negative and showed
her cognitive functions were grossly intact,” “she was
doing better since her Abilify dose had been increased,”
and she “denied side effects from the medication.” (Tr.
29.) Critically, however, the ALJ failed to explain that
this same purported “negative mental status exam” also
showed that Plaintiff “still hears voices,” [and]
“suffers from schizoaffective disorder, bipolar type”
(Tr. 434-37). The ALJ also failed to explain that the
medical records show a longitudinal history (since 2016)
of schizophrenia with audio [sic] hallucinations and
depressive symptoms including isolating, excessive
sleeping, and getting easily agitated (Tr. 453-54).
Notably, the ALJ also failed to explain that Plaintiff
13
had her child taken by the [s]tate because of neglectful
behavior including leaving “her child unattended on the
balcony as well as in the bathtub.” (Tr. 256-58, 422).
(Docket Entry 16 at 7.)
Contrary to those allegations, the ALJ’s
decision
he
reveals
that
discussed
both
the
favorable
and
unfavorable aspects of Plaintiff’s mental health treatment and did
not mischaracterize the record.
At the outset, the Court notes that Plaintiff has chosen to
highlight
ignoring
isolated
his
excerpts
more
of
pertinent
the
ALJ’s
evaluation
RFC
of
analysis
the
while
“intensity,
persistence, and limiting effects of [Plaintiff’s] symptoms” (Tr.
29), thus engaging in the very “cherry-picking” of which she
accuses the ALJ.
The excerpts Plaintiff highlights appear in a
paragraph
in
which
treatment
in
2021
the
at
ALJ
discussed
Advantage
Plaintiff’s
Behavioral
psychiatric
Healthcare,
which
paragraph states, in its totality, as follows:
A mental health note on February 24, 2021, showed
[Plaintiff] reportedly was non-compliant in the past, but
was now taking medication that was helping ([Tr. 437]).
She presented on June 29, 2021, and was stable on
medications, but she reported she still heard voices.
She was diagnosed with schizoaffective disorder, bipolar
type. Her mental status exam showed good eye contact,
clear and relevant speech without over sign of psychosis
except some auditory hallucinations, and her cognitive
functions were grossly intact ([Tr. 436]). By August 20,
2021, she reported she was doing better since her Abilify
dose had been increased. She again had a benign mental
status exam ([Tr. 435]). The October 14, 2021, notes
revealed improved auditory hallucinations that were more
distant and did not preoccupy her as much as they did
previously. She complained of some anxiety. She denied
14
medication side effects and had a negative mental status
exam ([Tr. 434]).
(Tr. 29 (emphasis added).)
As the above-emphasized language makes clear, and contrary to
Plaintiff’s
expressly
contentions
(see
acknowledged
that
Docket
Entry
Plaintiff
16
“was
at
7),
the
diagnosed
ALJ
with
schizoaffective disorder, bipolar type,” and that she continued to
report auditory hallucinations (with some improvement over time) at
all three mental health visits in question (Tr. 29 (emphasis
added)).
Similarly,
in
contrast
to
Plaintiff’s
assertions
(see Docket Entry 16 at 7), the ALJ elsewhere in his decision
explicitly recognized 1) Plaintiff’s testimony that “custody [of
her child] was taken away when [Plaintiff] left her child on the
balcony unaccompanied” (Tr. 27 (emphasis added) (referencing Tr.
54)), 2) that, at a psychological assessment, Plaintiff reported a
tendency “to sleep . . . a lot” and that “she did not have any
close friends” (Tr. 28 (emphasis added) (referencing Tr. 373)), and
3) that, at “an initial mental health evaluation” in September
2020, Plaintiff “endorsed auditory and visual hallucinations for
about 5 years,” but “had never sought mental health treatment
before” (Tr. 28 (emphasis added) (referencing Tr. 246)).
Another district court within the Fourth Circuit recently
distinguished Shelley C., because the ALJ there (like the ALJ here
and unlike the ALJ in Shelley C.) had not cherry-picked the mental
15
health evidence and had properly concluded that the plaintiff’s
mental symptoms improved over time with treatment:
This case is [] distinguishable from Shelley C., where
the ALJ improperly ignored the waxing and waning nature
of depression by citing only to treatment notes where the
claimant was stable and by omitting evidence of the
claimant’s subsequent periods of intense depression
symptoms.
Here, the ALJ noted that treatment notes
indicate [the p]laintiff’s condition improved over time.
[The p]laintiff argues that because she endorsed symptoms
of depression during treatment and because she sometimes
needed adjustments to her medications, the ALJ erred in
finding her not credible. But the ALJ is permitted to
find that a claimant’s symptoms do not render her totally
disabled despite the fact that her symptoms exist and are
limiting to a certain extent.
Lasharne W. v. Commissioner, Soc. Sec. Admin., No. CV 21-2603, 2023
WL 2414497, at *4 (D. Md. Mar. 8, 2023) (unpublished) (internal
quotation marks and citations omitted).
Put
simply,
Plaintiff
has
made
no
showing
that
the
ALJ
violated Shelley C. by cherry-picking the evidence.
ii.
Reliance on Absence of Objective Medical Evidence
Plaintiff’s contention that the ALJ violated Shelley C. by
“relying
upon
the
absence
of
objective
medical
evidence
to
discredit Plaintiff’s subjective complaints regarding symptoms of
her schizophrenia and chronic depression” (Docket Entry 16 at 7-8)
fares no better.
The ALJ here found, at steps two and three of the
SEP, that Plaintiff suffered from “severe . . . schizoaffective
disorder bipolar type, . . . BIF and somatic symptom disorder” (Tr.
21) that did not meet or medically equal any of the Commissioner’s
listings (see Tr. 22-25), and then, as part of the RFC assessment,
16
expressly
acknowledged
Plaintiff’s
testimony
“that
she
was
stressed, heard voices, and was scared and uncomfortable,” that
“she heard voices every day, [she] had constant stress, and the
voices expressed concern about her and scared her,” and that “she
went to the hospital to get help after her medications ran out and
she
was
admitted”
(Tr.
27).
The
ALJ,
however,
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.”
added).)
(Tr. 29 (emphasis
The ALJ then supported that latter finding with the
following analysis:
As for [Plaintiff]’s statements about the intensity,
persistence, and limiting effects of her symptoms, they
are inconsistent because the longitudinal record does not
support
[Plaintiff]
is
as
limited
as
she
maintains. . . .
She did not seek mental health
treatment until after her child was taken from her by the
Department of Social Services in August 202[0] and they
recommended mental health treatment. In a report from a
comprehensive psychological assessment . . ., she was
assessed with BIF and somatic symptom disorder. However,
her mental status exam was relatively benign. Moreover,
the summary report in March 2021 showed she had taken
Abilify for the previous month and she noted she no
longer
heard
voices.
The
longitudinal
records
demonstrated that, when she consistently took her
medication,
her
symptoms
were
more
manageable. . . .
Finally, while she was recently
hospitalized after she ran out of her medication, this is
the
only
time
that
she
decompensated
so
that
hospitalization was required.
(Tr. 29-30 (internal parenthetical citations omitted).)
That
analysis by the ALJ did not violate Shelley C. for two reasons.
17
First, Plaintiff’s mental health providers diagnosed her, at
differing points during the relevant period in this case, with
“schizoaffective
disorder,
bipolar
type”
(Tr.
259
(9/9/20)),
“somatic symptom disorder” and “[BIF]” (Tr. 382 (3/29/21)), and
“schizophrenia, unspecified” (Tr. 455 (2/5/22)).
Significantly,
none of those providers diagnosed Plaintiff with MDD or any other
depressive disorder (see Tr. 259, 382, 455), and, their notes
reflect
that
symptoms
Plaintiff
(see
Tr.
did
247
not
report
(indicating
significant
that
depressive
“[Patient
Health
Questionnaire - 9 (‘PHQ-9’)] did not indicate significant symptoms
associated
to
depression[]
at
time
of
assessment”)),8
372
(reflecting Plaintiff’s report “that she [wa]s feeling [] pretty
good currently” and “deni[al of] any history of depression”), 453
(documenting Plaintiff’s complaints of “hearing voices” while off
her Abilify, and “feeling unsafe and nervous”)).
The absence of a depressive disorder distinguishes this case
from Shelley C., a case which involved the following facts:
8
“The [PHQ]-9 is a self-administered scale that helps clinicians assess
for depression.
Patient Health Questionnaire (PHQ-9 & PHQ-2), AM. PSYCHOL.
ASS’N, https://www.apa.org/pi/about/publications/caregivers/practice-settings/
assessment/tools/patient-health (last visited Feb. 6, 2020). The nine items on
the scale incorporate depression criteria from the [Diagnostic and Statistical
Manual of Mental Disorders (Am. Psychiatric Ass’n 4th ed. 1994) (‘DSM-IV’)].
Id.” Xavier S. v. Saul, No. 1:19CV1195, 2020 WL 1015816, at *16 (E.D. Va. Mar.
2, 2020) (unpublished). The PHQ-9 “scores each of the nine [DSM-IV] criteria as
‘0’ (not at all) to ‘3’ (nearly every day). The total of the nine scores is used
to rate the severity of depression. A total score of 0-4 is ‘none,’ 5-9 is
‘mild,’ 10-14 is ‘moderate,’ 15-19 is ‘moderately severe,’ and 20-27 is ‘severe.’
http://patient.info/doctor/patient-health-questionnaire-phq-9.”
Deboard v.
Colvin, No. 3:16CV2661, 2017 WL 510743, at *3 (S.D.W. Va. Jan. 18, 2017)
(unpublished), recommendation adopted sub nom. Deboard v. Berryhill, 2017 WL
510052 (S.D.W. Va. Feb. 7, 2017) (unpublished).
18
•
the
plaintiff’s
“long-time
treating
psychiatrist . . . diagnosed [the plaintiff] with
[MDD],
dysthymia,
and
[attention
deficit
hyperactivity disorder (‘ADHD’)],” Shelley C., 61
F.4th at 347 (emphasis added);
•
the plaintiff attempted suicide by “intentionally
overdosing on . . . medications” shortly before
applying for DIB, id.;
•
the plaintiff’s “periods of improvement were
short-lived,” and she “usually spiraled into
deepened
periods
of
heightened
anxiety
and
depression mere days after she vocalized her
improvement,” id. at 348;
•
“[b]ecause [the plaintiff’s] symptoms continued to
waver despite her therapy and constant medication
adjustment, [her treating psychiatrist] urged [the
plaintiff]
to
pursue
either
Electro
Convulsive/Shock Therapy (‘ECT’) or Transcranial
Magnetic Stimulation (‘TMS’) therapy,” id. at 349;9
and
•
the plaintiff underwent “36 TMS treatments” but her
“positive results were fleeting, and [she] quickly
slipped back into a depressive state, plagued with
melancholy, lethargy, and self-deprecating thoughts
just weeks after finishing her final TMS session,”
id. at 350.
The Fourth Circuit emphasized that portions of the ALJ’s decision
“provided
a
prime
example
of
the
9
misconceptions
surrounding
“TMS is a noninvasive procedure that ‘uses magnetic fields to stimulate
nerve cells in the brain to improve symptoms of depression[.] It is typically
used when other depression treatments haven’t been effective.’” Shelley C., 61
F.4th at 349 n.3 (internal brackets and ellipsis omitted) (quoting Mayo Clinic,
Transcranial magnetic stimulation (Nov. 27, 2018), https://www.mayoclinic.org/
tests-procedures/transcranial-magnetic-stimulation/about/pac-20384625). “ECT is
given to patients with severe, treatment-resistant depression and is performed
under general anesthesia, with ‘small electric currents passed through the brain,
intentionally triggering a brief seizure. ECT seems to cause changes in brain
chemistry that can quickly reverse symptoms of certain mental health
conditions.’”
Id. (internal ellipsis omitted) (quoting Mayo Clinic,
Electroconvulsive therapy (ECT) (Oct. 12, 2018), https://www.mayoclinic.
org/tests-procedures/electroconvulsive-therapy/about/pac-20393894).
19
depression,” id. at 367 (emphasis added), noting that individuals
with depression can “experienc[e] brief periods of diminished
depression, which can appear - from the outside looking in - as
overall improvement,” id., and that “[t]he ALJ focused on [the
plaintiff]’s ‘improved’ periods to reject the lower, more frequent
states of her depression,” id. (emphasis added).
The Fourth
Circuit announced that it would “join [its] sister circuits’
growing conversation surrounding chronic diseases, highlighting, in
particular,
depression,”
the
id.
unique
at
and
368
subjective
(emphasis
nature
added),
of
found
chronic
that
the
plaintiff’s MDD met the criteria of Listing 12.04, see id., and
“remand[ed] with instructions to grant disability benefits,” id. at
369.
Notably, the Fourth Circuit has not extended its holdings in
Arakas and Shelley C. to mental impairments other than MDD/chronic
depression.
Given the Fourth Circuit’s repeated emphasis on the
“unique” nature of chronic depression, see id. at 368, and the
significant
difference
between
the
primary
symptoms
of
schizophrenia, see Diagnostic and Statistical Manual of Mental
Disorders, 99 (Am. Psychiatric Ass’n 5th ed. 2013) (“DSM-V”)
(describing
“[d]elusions”
and
“[h]allucinations”
as
primary
symptoms), and the primary symptoms of MDD, see DSM-V, 160 (listing
“[d]epressed
mood
most
of
the
day,
nearly
every
day”
and
“[m]arkedly diminished interest or pleasure in all, or almost all,
20
activities most of the day, nearly every day” as primary symptoms),
the Court finds Shelley C. distinguishable from the instant case.
Second, the ALJ here did not rely “entirely” on the absence of
objective medical evidence, Shelley C., 61 F.4th at 360 (emphasis
omitted),
or
“requir[e]”
that
objective
medical
substantiate Plaintiff’s mental symptoms, id. at 362.
evidence
Rather, the
ALJ found that Plaintiff’s subjective statements about her symptoms
lacked consistency with “the medical evidence and other evidence in
the record,” as well as that “the longitudinal record d[id] not
support [Plaintiff wa]s as limited as she maintain[ed].”
(emphasis added).)
relied
“entirely”
evidence,”
“other
Neither of those statements indicate the ALJ
on
objective
evidence,”
medical
and
the
evidence,
as
“longitudinal
encompass more than just objective medical evidence.
with
those
findings,
“relatively
comprehensive
(Tr. 29
benign”
although
mental
psychological
the
status
ALJ
mentioned
examination
assessment
(Tr.
“medical
record”
Consistent
Plaintiff’s
during
29),10
the
the
ALJ
additionally considered the facts that 1) Plaintiff did not seek
mental health treatment until she lost custody of her daughter,
10
Notably, during that mental status examination, the psychiatrist
described Plaintiff’s self-report of her mood as “euthymic” (Tr. 374), and
Plaintiff denied “hear[ing] voices at th[at] time” (Tr. 372). Shelley C. does
not bar the ALJ from considering those subjective components of a mental status
examination. See, e.g., Shelby D. v. Kijakazi, No. 3:22CV234, 2023 WL 6444895,
at *11 (S.D.W. Va. Sept. 29, 2023) (unpublished) (finding ALJ “properly noted
that [the plaintiff]’s own subjective presentation in mental-status examinations
was unremarkable” (emphasis in original).
21
despite alleging that she had experienced psychotic symptoms for
five years (see Tr. 28-29), 2) the comprehensive psychological
assessment resulted in diagnoses of BIF and somatic symptoms
disorder (but not a mood or psychotic disorder), 3) Plaintiff
informed her providers that her symptoms improved on Abilify, and
4) her symptoms had required hospitalization only on one occasion
during a period of non-compliance with her medication (see Tr. 30).
Shelley C. does not preclude the ALJ from such considerations.
As well-explained by another district court in this Circuit:
Here, the ALJ found [the p]laintiff’s medically
determinable impairments could reasonably be expected to
cause the alleged symptoms but concluded that [the
p]laintiff’s
statements
concerning
the
intensity,
persistence and limiting effects of these symptoms [we]re
not entirely consistent with the medical evidence and
other evidence in the record. The ALJ here did not base
his conclusion on a lack of objective medical evidence.
Rather, the ALJ explicitly noted that his step-two
conclusion was based on inconsistencies with the medical
evidence and other evidence in the record.
The ALJ
properly weighed [the p]laintiff’s subjective complaints
against other evidence in the record. For instance, the
ALJ compared [the p]laintiff’s hearing testimony to her
previous statements, including those made during medical
visits with her primary care provider and her statements
regarding her activities of daily living, including her
ability to care for dependent grandchildren and live
alone. Such weighing remains permissible under Shelley
C. and Arakas.
Lasharne W., 2023 WL 2414497, at *4 (internal quotation marks and
citations omitted); see also Shelby D. v. Kijakazi, No. 3:22CV234,
2023 WL 6444895, at *11 (S.D.W. Va. Sept. 29, 2023) (unpublished)
(“[A] diagnosis of . . . depression does not render a claimant per
se disabled. . . .
The ALJ expressly stated that his conclusions
22
were not based exclusively on objective medical findings, but
included
consideration
of
the
total
medical
and
nonmedical
evidence, including testimony and statements by [the plaintiff] and
others, a function report, and other record evidence regarding [the
plaintiff]’s activities of daily living, behavior and habits.
The
ALJ supported this assertion by pointing to extensive record
evidence of inconsistencies with [the plaintiff]’s allegations
regarding the limiting effects of these impairments.” (internal
quotation marks and parenthetical citation omitted)).
In sum, Plaintiff’s contentions do not establish that the ALJ
impermissibly required that objective medical evidence substantiate
Plaintiff’s mental symptoms in violation of Shelley C.
b.
Third-Party Function Report
Next, Plaintiff argues that “[t]he ALJ erred by ignoring the
function report completed by [] Plaintiff’s mother, in violation of
20 C.F.R. § 416.929 and Fourth Circuit precedent.”
(Docket Entry
16 at 8 (bold font and block formatting omitted).)
In particular,
Plaintiff maintains that, “despite [her mother]’s informative,
probative, and in-depth explanations [on the function report], the
ALJ completely ignored [those] responses and rejected the third
party function report.”
(Id. (referencing Tr. 30, 198-206).)
Plaintiff specifically faults the ALJ for discounting Plaintiff’s
mother’s report as “‘merely observations’” (id. at 9 (quoting Tr.
30)), because “the whole purpose of the Stage [sic] agency Third
23
Party Function Report is to obtain explanations and observations
from a person that frequently sees or lives with the claimant” (id.
(citing Program Operations Manual System (“POMS”) DI 20502.015.J.
(“[Form] SSA-3380 (Function Report - Adult Third Party)”))).11
Additionally, Plaintiff contends that “the ALJ fail[ed] to explain
which of the answers given by Plaintiff’s mother . . . undermine []
Plaintiff’s
(referencing
significant
Tr.
30)),
nonexertional
and
asserts
limitations”
that
(id.
Plaintiff’s
at
10
mother’s
statements “are actually supported and corroborated by Plaintiff’s
testimony and are consistent with the medical and nonmedical
evidence of record” (id. (citing Lester v. Kijakazi, No. 1:21CV36,
2023 WL 2591477, at *3 (W.D. Va. Mar. 21, 2023) (unpublished))).
Plaintiff’s mother constitutes a “[n]onmedical source” under
the regulations.
members”
as
20 C.F.R. § 416.902(j)(4) (listing “[f]amily
nonmedical
sources).
Under
amended
regulations
(applicable to claims like Plaintiff’s filed on or after March 27,
2017 (see Tr. 168)), ALJs “are not required to articulate how
[they]
considered
requirements
in
evidence
paragraphs
from
(a)
nonmedical
through
sources
(c)
of
using
[20
§ 416.920c,]” 20 C.F.R. § 416.920c(d) (emphasis added).
11
the
C.F.R.
In turn,
“POMS is a non-binding internal guidebook used by the SSA,” which “has
no legal force,” although “courts consider it persuasive” authority. Jackson v.
Colvin, No. 13CV5254, 2016 WL 3087056, at *2 (N.D. Ill. May 31, 2016)
(unpublished); see also Carillo–Yeras v. Astrue, 671 F.3d 731, 735 (9th Cir.
2011) (“POMS may be entitled to some deference to the extent it provides a
persuasive interpretation of an ambiguous regulation, but it does not impose
judicially enforceable duties on either th[e] court or the ALJ.” (internal
quotation marks omitted).
24
paragraphs
(a)
through
(c)
set
forth
the
factors,
including
consistency and supportability, that an ALJ must consider when
evaluating the persuasiveness of opinions from medical sources, see
20 C.F.R. § 416.920c(a)-(c).12
Although the regulations clearly did not require the ALJ to
apply the medical opinion factors to Plaintiff’s mother’s third
party function report, the law remains unsettled whether ALJs must
provide any articulation of their consideration of nonmedical
evidence.
See Ellen S. v. Kijakazi, No. 5:20CV1940, 2022 WL
221225, at
*7
(C.D.
Cal.
Jan.
24,
2022)
(unpublished)
(“The
question of how the 2017 rule change impacts the ALJ’s obligations
with respect to addressing lay witness testimony is unanswered in
the
current
caselaw.”).
Plaintiff
did
not
address
Section
416.920c(d) in his arguments (see Docket Entries 16, 19), and the
Commissioner takes the position that “[t]he regulations have no
specific articulation requirement regarding how an ALJ should
12
Applicable to claims (like Plaintiff’s (see Tr. 168)) filed on or after
March 27, 2017, the SSA rescinded Social Security Ruling 06-03p, Titles II and
XVI: Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable
Medical Sources” in Disability Claims; Considering Decisions on Disability by
Other Governmental and Nongovernmental Agencies, 2006 WL 2329939 (Aug. 9, 2006)
(“SSR 06-03p”), see “Rescission of Social Security Rulings 96-2p, 96-5p, and
06-03p,” 82 Fed. Reg. 15263-01 (March 27, 2017).
SSR 06-03p provided that
“information from [non-medical sources] may be based on special knowledge of the
[claimant] and may provide insight into the severity of the impairment(s) and how
it affects the claimant’s ability to function,” SSR 06–03p, 2006 WL 2329939, at
*2, and advised that, in considering evidence from these sources, “it would be
appropriate [for the ALJ] to consider such factors as the nature and extent of
the relationship, whether the evidence is consistent with other evidence, and any
other factors that tend to support or refute the evidence,” id. at *6.
25
discuss evidence from ‘nonmedical sources[]’” (Docket Entry 18 at
11 (emphasis added)).
Although courts across the country disagree over Section
416.920c(d)’s articulation standard, the majority of cases to
address the issue have held that Section 416.920c(d) (or its
counterpart
for
404.1520c(d))
altogether
Disability
did
and
not
Insurance
remove
continues
to
the
Benefit
cases,
articulation
obligate
ALJs
to
Section
requirement
provide
explanation of how they considered nonmedical evidence.
some
Compare
Demian W. v. Commissioner of Soc. Sec., No. 3:22CV660, 2023 WL
6147528,
at
*10
(S.D.
Ill.
Sept.
20,
2023)
(unpublished)
(determining that, when considering third-party statements from
nonmedical sources under Section 416.920c(d), an ALJ must still
“build a logical bridge between the evidence and conclusions” and
“articulate some legitimate reason for his decision”), Cousino v.
Commissioner of Soc. Sec., No. 3:22CV1712, 2023 WL 3629809, at *12
(N.D. Ohio May 4, 2023) (unpublished) (observing that Section
416.920c(d) “does not mean, as the Commissioner implie[d], that the
ALJ was free to discount [evidence from a nonmedical source]
without comment,” and noting that “[t]he regulations are quite
clear on the types of evidence an ALJ is allowed to disregard: (i)
decisions by governmental agencies and nongovernmental entities;
(ii) disability examiner findings; and (iii) statements on issues
reserved for the Commissioner,” as well as that “[l]ay witness
26
testimony is not among th[os]e three categories” (citing 20 C.F.R.
§ 404.1520b(c)), recommendation adopted, 2023 WL 3620793 (N.D. Ohio
May 24, 2023) (unpublished), Norman P. v. Kijakazi, No. 1:21CV2542,
2022 WL 3908126, at *4 (S.D. Ind. Aug. 31, 2022) (unpublished)
(“According to the Commissioner and the ALJ, the regulations do not
impose any
burden
of
nonmedical
sources.
articulation
Not
so.
on
In
ALJs
for
evaluating
evidence
a
from
plaintiff’s
allegations of pain and the intensity and persistence of symptoms,
the ALJ is to consider all evidence presented, including statements
of nonmedical sources.
20 C.F.R. § 404.1529.
Under 20 C.F.R.
§ 404.1520c(d), an ALJ need not articulate ‘how he considered
evidence
from
nonmedical
sources
using
the
paragraphs (a)-(c) of this subsection.”
requirements
in
Paragraph (d) merely
clarifies that an ALJ is not required to apply those factors to a
nonmedical
opinion;
it
does
not
state
that
an
ALJ
need
not
articulate how evidence from nonmedical sources was considered at
all.”
(emphasis
4:20CV1344,
2022
in
WL
original)),
273426,
at
Shingler
*6
(M.D.
v.
Pa.
Kijakazi,
Jan.
28,
No.
2022)
(unpublished) (“Other courts have held, and [the court] agree[s],
that 20 C.F.R. § 416.920c(d) does not eliminate the articulation
requirement altogether.”), Andrew L. v. Kijakazi, No. 20CV1609,
2021 WL 5447035, at *4 (N.D. Ill. Nov. 22, 2021) (unpublished)
(deciding that Section 416.920c(d) “requires at least minimal
articulation of how nonmedical evidence was considered . . . to
27
allow the court to meaningfully assess whether the ALJ applied the
correct
legal
standards
substantial evidence”),
and
supported
h[is]
decision
with
Tanya L. L. v. Commissioner of Soc. Sec.,
526 F. Supp. 3d 858, 869-70 (D. Or. 2021) (holding that regulations
“do not eliminate the need for the ALJ to articulate his assessment
of the lay-witness statements” and “his reasons for discounting
such statements”), and Jerri F. v. Kijakazi, 1:20CV4037, 2021 WL
3362227, at *14 (D.S.C. July 29, 2021) (unpublished) (“If ALJs were
no longer required to provide any articulation as to how they
considered lay witness statements, the additional language [‘using
the requirements in paragraphs (a)-(c)’ of Section 404.1520c] would
be superfluous.”), recommendation adopted, 2021 WL 3396230 (D.S.C.
Aug.
3,
2021)
20CV1457,
2022
(unpublished),
WL
891445,
at
with
*6
Mary
(S.D.
M.
v.
Cal.
Kijakazi,
Mar.
25,
No.
2022)
(unpublished) (“The [c]ourt concludes that ALJs are not required to
articulate
specific
reasons
for
their
findings
about
the
persuasiveness of nonmedical-source testimony, and instead must
merely show that they considered such evidence in deciding the
claim.”), Pamela M. v. Kijakazi, No. 20CV5479, 2021 WL 4461546, at
*11 (N.D. Cal. Sept. 29, 2021) (unpublished) (noting that ALJs are
“not required to articulate how [they] considered evidence from
nonmedical sources” (internal quotation marks omitted)), and Cole
v. Kijakazi, No. 2:20CV733, 2021 WL 3887463, at *11 (N.D. Ala. Aug.
31, 2021) (unpublished) (“Under the new regulations, an ALJ does
28
not have to explain how she weighed or considered nonmedical
evidence.”).
The majority position, that ALJs adjudicating claims filed on
or after March 27, 2017, should provide some degree of articulation
when evaluating evidence from nonmedical sources, harmonizes with
the SSA’s internal policy, which provides that ALJs should not
“include the consideration of evidence from nonmedical sources in
the
analysis
about
establishing
a[
medically
determinable
impairment],” but that, “[w]hen evidence from nonmedical sources is
material to other analyses or conclusions in a claim, [the ALJ
should]
articulate
24503.020.D.1
that
in
(“Evaluating
(emphasis added).
the
Evidence
determination.”
from
Nonmedical
POMS
DI
Sources”)
That POMS section, in turn, remains consistent
with long-standing Fourth Circuit precedent which holds that “a
denial of benefits is not supported by substantial evidence if the
ALJ has not analyzed all evidence and sufficiently explained the
weight he has given to obviously probative exhibits.”
Craig, 76
F.3d at 590 (emphasis added) (internal quotation marks, brackets,
and ellipsis omitted); see also Cooper v. Astrue, No. 2:08CV18,
2009 WL 928548, at *5–6 (E.D.N.C. Apr. 3, 2009) (unpublished) (“If
the
ALJ
decides
to
reject
lay
testimony
concerning
a
[c]laimant’s . . . symptoms, the ALJ must do so explicitly and with
sufficient specificity to enable the court to decide whether there
29
are legitimate reasons for the ALJ’s disbelief and whether the
ALJ’s determination is supported by substantial evidence.”).
On April 2, 2021, Plaintiff’s mother completed a third party
function report (Tr. 198-206), stating that Plaintiff lived alone
in an apartment, but that her mother “spen[t] several hours a day
with [Plaintiff] checking her.”
(Tr. 198.)
Plaintiff’s mother
further reported that Plaintiff “t[ook] care of her daughter,” but
described Plaintiff as “very restless” and noted that she did not
“sleep
well
and
sometimes
sle[pt]
too
much.”
(Tr.
199.)
Plaintiff’s mother also indicated that Plaintiff had no problems
with personal care (see Tr. 199), but noted that “it t[ook] her
longer to do [personal care activities]” (Tr. 200), as well as that
Plaintiff needed reminders “to take her medicine” and to complete
household chores (id.). According to Plaintiff’s mother, Plaintiff
“c[ould] cook her o[w]n meals . . . [w]hen she fe[lt] well enough
to cook,” which occurred “maybe 2 times a week” (id.), “hardly
ever” went outside (Tr. 201), and could drive, shop in grocery
stores, and handle money with reminders, but Plaintiff’s mother
“prefer[ed]” to drive Plaintiff places due to her lack of focus
(id.).
Additionally, Plaintiff’s mother stated that Plaintiff
“d[id]n’t spend time with others” (Tr. 202), “g[ot] agitated
easily” although she “d[id]n’t have a problem getting along with
people”
(Tr.
203),
“c[ould]
follow
instruction[s]
but
her
processing t[ook] longer” (id.), and could not handle stress or
30
changes in routine “at all” (Tr. 204).
additional
remarks,
Plaintiff’s
mother
Under the section for
provided
the
following
statements:
[Plaintiff] can[’]t process what [sic] information as
quickly as she would like to[.
S]he can comprehend
everything being said to her but processing information
and reacting to it is a slower process. While she is
able to do things on her o[w]n[,] sometimes her memory
requires a reminder from others to what needs to [sic]
done. [H]er processing is slower[. I]t somewhat reminds
me of someone that may have had a nervous breakdown and
just doesn’t process things as fast, memory, things like
that. Halucinations [sic] have occured [sic] but [she]
is taken [sic] Abilify[. H]earing voices have ocurred
[sic] periodicly [sic] not on a [sic] everyday basis[.]
Her mental capacity is just diffrent [sic] hearing
voices, memory, [a]ttention span, her whole mental
function has just changed[.]
(Tr. 205-06.)
Those detailed remarks from a family member who had
known Plaintiff for “26 years” and spent “several hours” per day
with
Plaintiff
(Tr.
198)
qualify
as
material
and
probative
regarding the impact of Plaintiff’s mental symptoms on her ability
to function and, therefore, the ALJ had a duty to articulate how he
considered Plaintiff’s mother’s function report in a way that
permitted meaningful judicial review.
The
ALJ
provided
the
following
analysis
of
Plaintiff’s
mother’s third party function report:
. . . [Plaintiff]’s mother[] reported that she spent
several
hours
a
day
checking
on
[Plaintiff]. [Plaintiff’s mother] noted that [Plaintiff]
lived alone, took care of her daughter, and she was very
restless, not sleeping well and sometimes sleeping too
much. [Plaintiff’s mother] reported [Plaintiff] could
perform personal grooming tasks, but it took longer. She
had to be reminded to take her medication and she
31
prepared simple meals when she felt well enough. [The
ALJ] find[s] the statement of [Plaintiff’s mother] has
little persuasiveness. According to [SSA] regulations,
I must consider all evidence, even evidence that is
inherently neither valuable nor persuasive.
The
observations of [Plaintiff’s mother] and her report of
[Plaintiff]’s daily activities are merely observations
and, if anything, they undermine [Plaintiff]’s assertion
that she is disabled.
(Tr.
30
added).)
(internal
Although
parenthetical
that
analysis
citation
clearly
omitted)
dispels
(emphasis
Plaintiff’s
assertion that “the ALJ completely ignored” Plaintiff’s mother’s
function report (Docket Entry 16 at 9), for the reasons that
follow, the ALJ’s analysis does not sufficiently explain the basis
for affording the report “little persuasiveness” (Tr. 30).
To begin, the ALJ’s reference to “evidence that is inherently
neither valuable nor persuasive” does not make sense in the context
of evaluating evidence from a nonmedical source.
“The regulations
are quite clear on the types of evidence an ALJ is allowed to
disregard [as ‘evidence that is inherently neither valuable nor
persuasive’]:
(i)
decisions
by
governmental
agencies
and
nongovernmental entities; (ii) [state agency] disability examiner
findings [at a previous level of review]; and (iii) statements on
issues reserved for the Commissioner,” and “[l]ay witness testimony
is not among th[os]e three categories.”
Cousino, 2023 WL 3629809,
at *12 (citing 20 C.F.R. § 404.1520b(c)).
To the extent the ALJ
approached his analysis of Plaintiff’s mother’s function report
32
under
the
belief
that
the
regulations
deemed
that
evidence
“inherently neither valuable nor persuasive” (Tr. 30), he erred.
Beyond that error, the ALJ’s circular remark that Plaintiff’s
mother’s “observations . . . [we]re merely observations” (Tr. 30)
fails
to
provide
a
sufficient
mother’s function report.
basis
to
discount
Plaintiff’s
The ALJ’s criticism would apply to
virtually any third party function report, as the report form tasks
the
individuals
completing
such
reports
to
provide
their
observations about a claimant’s ability to engage in various
activities.
See
Marshall
v.
Colvin,
No.
1:14CV542,
2015
WL
5970435, at *9 (M.D.N.C. Oct. 14, 2015) (unpublished) (“[The
p]laintiff’s point that the bases cited by the ALJ [for assigning
little weight to a third party function report completed by the
plaintiff’s girlfriend, including that she was not a medical doctor
and had a natural bias in favor of the plaintiff] could discredit
virtually any family member, friend, housemate or acquaintance who
testified or gave a statement in any case has some merit.
Ideally,
the ALJ would provide more complete, evidence-based reasons for
rejecting a third party’s report.” (internal quotation marks and
parenthetical citation omitted)), recommendation adopted, 2016 WL
5660295 (M.D.N.C. Sept. 30, 2016) (unpublished) (Tilley, S.J.).
Further, the ALJ’s statement that Plaintiff’s mother’s observations
“undermine[d Plaintiff]’s assertion that she is disabled” does not
suffice to explain the “little persuasiveness” finding (Tr. 30),
33
because the ALJ explained neither how those observations undermined
Plaintiff’s position nor which observations undermined Plaintiff’s
position (see id.).
Notwithstanding the ALJ’s failure to provide a sufficient
explanation of his decision to assign little persuasiveness to
Plaintiff’s mother’s function report, the Court concludes that the
ALJ’s error in that regard remains harmless under the circumstances
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”).
how
remanding
this
matter
for
Plaintiff has not explained
the
ALJ
to
further
consider
Plaintiff’s mother’s function report would lead to a favorable
outcome in her case.
precludes relief.
(See Docket Entries 16, 19.)
That failure
See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) (“[A] litigant has an obligation to spell out its
arguments squarely and distinctly, or else forever hold its peace.”
(internal quotation marks omitted)); Hughes v. B/E Aerospace, Inc.,
No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014)
(unpublished) (Schroeder, J.) (“A party should not expect a court
to do the work that it elected not to do.”).
Moreover,
the
ALJ’s
step
three
findings
and
RFC
“amply
accommodate[d] Plaintiff’s mother’s statements” on the function
34
report, Long v. Colvin, No. 1:13CV659, 2015 WL 1312919, at *10
(M.D.N.C. Mar. 24, 2015) (unpublished), recommendation adopted,
2015 WL 1646985 (M.D.N.C. Apr. 14, 2015) (unpublished) (Osteen,
Jr., C.J.). Based in part on Plaintiff’s mother’s statements “that
she spent several hours each day checking on [Plaintiff],” and that
“[Plaintiff] required reminders to take her medication and her
processing memory and overall mental function was different” (Tr.
23), the ALJ found Plaintiff moderately limited in her ability to
understand, remember, or apply information at step three of the SEP
(see id.), and included a corresponding limitation in the RFC to
“simple, routine tasks” (Tr. 26).
Relying in part on Plaintiff’s
mother’s statements that “[Plaintiff] hardly ever went outside and
was ‘to herself,’” as well as that “[Plaintiff] shopped in stores
for food every two weeks, but it took a ‘very long time’” (Tr. 24
(quoting Tr. 201)), the ALJ found Plaintiff moderately limited in
her ability to interact with others (see Tr. 23-24), and included
RFC restrictions to “a [] job primarily dealing with things as
opposed to people” (Tr. 26), “no more than occasional interaction
with the public, supervisors, and co-workers” (id.), and “no work
with the public as a component of the job” (Tr. 26-27).
Although
the ALJ did not rely on the statements of Plaintiff’s mother to
find Plaintiff moderately limited in CPP (see Tr. 24), the ALJ’s
RFC finding that Plaintiff remained able to “maintain attention,
concentration, persistence, or pace to stay on task for 2-hour
35
periods during a normal 8-hour workday, as required to perform
s[imple, routine] tasks” and restriction to “work that is not
production pace or quota based” adequately addressed Plaintiff’s
mother’s
statements
that
Plaintiff
could
not
“maintain
[her]
attention span for long” or “focus at times” and did “not pay[]
attention or observ[e] what[ was] going on to the full ext[ent]”
(Tr. 201 (emphasis added)). Lastly, founded in part on Plaintiff’s
mother’s remarks that “[Plaintiff] was able to do tasks, but it
took longer to do them,” she “prepared simple meals when she was
taking medications,”
“[Plaintiff’s
mother]
preferred
to
drive
[Plaintiff] where she needed to go” because of “her inability to
focus,” she “required reminders to take her medication[,] and [she]
had sleep issues, sometimes sleeping too much” (Tr. 24), the ALJ
found Plaintiff moderately limited in her ability to adapt or
manage herself (see Tr. 24), and included limitations to “simple,
routine tasks” and “a low stress work setting” entailing nonproduction work, no more than occasional interaction with others,
and only incidental contact with the public (Tr. 26-27).
Accordingly, “the ALJ’s failure to [provide a sufficient
explanation
for
discounting]
the
third
party
function
report
submitted by Plaintiff’s mother constitute[d] at most harmless
error, because that report d[id] not materially contradict the
ALJ’s RFC determination.”
Long, 2015 WL 1312919, at *10.
36
c.
CPP
In Plaintiff’s third sub-claim regarding her RFC, she asserts
that “[t]he ALJ erred by failing to adequately account for []
Plaintiff’s limitations in maintaining [CPP] in the RFC assessment,
in violation of Fourth Circuit precedent.”
(Docket Entry 16 at 11
(bold font and block formatting omitted).)
More specifically,
Plaintiff notes that the Fourth Circuit has held that “‘an ALJ does
not account for a claimant’s moderate limitations in [CPP] by
restricting the hypothetical RFC [sic] question to simple, routine
tasks or unskilled work.’”
(Id. at 12 (internal quotation marks
and italics omitted) (quoting Mascio v. Colvin, 780 F.3d 632, 638
(4th Cir. 2015)).)
moderately
limited
In Plaintiff’s view, despite finding Plaintiff
in
CPP
(id.
(citing
Tr.
24)),
“the
ALJ
formulated a legally insufficient RFC by failing to adequately
account for or explain how Plaintiff’s moderate limitations in
[CPP] were included in the RFC” (id. (referencing Tr. 26-27)).
Plaintiff’s Mascio-based argument misses 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
37
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
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 the plaintiff could
perform unskilled work despite moderate limitation in CPP, by
highlighting
his
opinions).
Here,
daily
the
activities
ALJ’s
and
decision
treating
provides
physicians’
a
sufficient
explanation as to why restrictions to “simple, routine tasks,”
“work that is not production pace or quota based, rather a goaloriented job primarily dealing with things rather than people,” “no
more than occasional interaction with the public, supervisors, and
co-workers,” and “no work with the public as a component of the
job” (Tr. 26-27), together adequately accounted for Plaintiff’s
moderate deficit in CPP.
First, the ALJ expressly found in the RFC that, despite
moderate limitation in CPP, Plaintiff retained the ability to
“maintain attention, concentration, persistence, or pace to stay on
task for 2–hour periods during a normal 8–hour workday, as required
38
to perform s[imple, routine] tasks” (Tr. 26 (emphasis added)),
provided that the simple tasks also involved “low stress work,”
“defined as work that is not production pace or quota based, rather
a goal-oriented job primarily dealing with things as opposed to
people[, with] no more than occasional interaction with the public,
supervisors, and co-workers, but no work with the public as a
component of the job” (Tr. 26–27).
The ALJ also included that same
finding in his dispositive hypothetical question to the VE.
(See
Tr. 58.)
Thus, the ALJ directly addressed Plaintiff’s ability to
stay
task
on
in
the
RFC
and
hypothetical
question,
which
distinguishes this case from Mascio.
See Falls v. Colvin, No.
8:14CV195,
(D.S.C.
2015
(unpublished)
WL
5797751,
(distinguishing
at
*7
Mascio
where
Sept.
ALJ
29,
2015)
accounted
for
moderate CPP limitation by crafting restriction to performance of
“simple, routine, repetitive tasks of one and two step instructions
for . . . two hour periods,” while “interact[ing] occasionally with
the public” and working only “at a non-production pace,” meaning
“[n]o fast paced type work” and a “stable routine setting”).
Furthermore,
the
ALJ’s
non-production
restriction,
in
and
of
itself, adequately accounted for Plaintiff’s moderate limitation in
CPP.
See Grant v. Colvin, No. 1:15CV515, 2016 WL 4007606, at *9
(M.D.N.C. July 26, 2016) (unpublished) (finding non-production
restriction “facially addresse[d] moderate . . . limitation in the
claimant’s ability to stay on task” (internal quotation marks
39
omitted)), recommendation adopted, slip op. (M.D.N.C. Sept. 21,
2016) (Osteen, Jr., C.J.).
Second, the ALJ acknowledged Plaintiff’s testimony that “she
did not think she could do a simple job since her mind did not
understand how to do things and she could not concentrate” (Tr. 27
(referencing Tr. 55-56)), but the ALJ found Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [her]
symptoms [] not entirely consistent with the objective medical and
other evidence for the reasons discussed in th[e ALJ’s] decision”
(Tr. 29).
As discussed above, Plaintiff’s argument that the ALJ
violated Shelley C. in his evaluation of Plaintiff’s subjective
symptom reporting lacks merit, and Plaintiff has not raised any
other challenge to that evaluation (see Docket Entries 16, 19).
Third, the ALJ summarized Plaintiff’s mental health treatment,
making the following, pertinent observations:
•
“[t]he record shows [Plaintiff] had no consistent
mental health treatment until her child was taken
from her by Social Services in September 2020” and,
although
“she
endorsed
auditory
and
visual
hallucinations for about 5 years, she had never
sought mental health treatment before” (Tr. 28
(emphasis added));
•
at
a
comprehensive
psychological
evaluation
conducted over three sessions from November 2020 to
January 2021, Plaintiff reported no “history of
significant attention and concentration problems”
and “[h]er mental status examination revealed she
was alert, oriented to person, place, time and
situation, was goal directed[,] . . . presented her
thoughts spontaneously, relevantly, and in a wellorganized manner[,] . . . had good eye contact[,]
and
.
.
.
[h]er
memory,
attention,
and
40
concentration
appeared
(emphasis added)); and
•
grossly
intact”
(id.
during the administration of multiple tests during
comprehensive psychological evaluation, Plaintiff
“was prompt but careful in responding[, ] her
activity level was within normal limits[, and s]he
was attentive to tasks and generally persisted with
difficult[] tasks” and testing “results did not
suggest that she had a disorder characterized by
attention deficits” (id. (emphasis added)).
All of those observations support the ALJ’s finding that, despite
moderate limitation in CPP, Plaintiff remained able to “maintain
attention, concentration, persistence, or pace to stay on task for
2-hour periods during a normal 8-hour workday, as required to
perform s[imple, routine] tasks.”
(Tr. 26.)
Accordingly, Plaintiff’s contentions under Mascio fall short.
d.
Opinions of Examining Psychologist
Plaintiff’s fourth RFC sub-argument maintains that “[t]he ALJ
erred by failing to adequately account for the marked/extreme
limitations opined by the examining psychologist, [Dr. R. Monique
Miller,] whose opinion the ALJ found persuasive.” (Docket Entry 16
at 12 (bold font and block formatting omitted).)
In particular,
Plaintiff contends that, “based upon the objective intelligence and
memory tests” conducted during the comprehensive psychological
assessment from November 2020 to January 2021, “Plaintiff obtained
a valid Full-Scale IQ score of 73, which ranks in the bottom 5% of
the general population,” ranked in the bottom 3% of the general
population in her ability to maintain attention, ranked in the
41
bottom 0.2% of the general population in her immediate memory
abilities,” and “‘show[ed] considerable weakness in her language
abilities, . . . performing in the very low range [of <0.1% of the
general population].’” (Id. at 12-13 (italics omitted) (citing and
quoting Tr. 379).)
In Plaintiff’s view, those test findings
amounted to “opin[ions]” from Dr. Miller that Plaintiff “ha[d]
marked
or
extreme
limitations
in
.
.
.
attention[,]
. . . immediate memories[,] . . . language skills[,] . . . and
general learning ability.”
(Id. at 13 (italics in original).)
Plaintiff faults the ALJ for “specifically f[inding] Dr. Miller’s
[] opinion as persuasive because it was supported by objective
testing
and
consistent
with
the
exam
and
observations”
(id.
(italics in original) (citing Tr. 30)), but then “fail[ing] to
include”
those
“marked/extreme
(referencing Tr. 26-27)).
limitations”
in
the
RFC
(id.
Plaintiff’s arguments fail as a matter
of law.
As a threshold matter, Plaintiff mischaracterizes the record
by arguing that the ALJ “specifically found Dr. Miller’s [] opinion
as persuasive” (id. (italics in original) (citing Tr. 30)), because
the ALJ made no such finding (see Tr. 30).
The ALJ discussed at
length the report of the comprehensive psychological evaluation
(see Tr. 28), and then provided the following analysis of the
report’s persuasiveness:
On March 29, 2021, [Plaintiff] was assessed with BIF and
somatic symptom disorder. [Dr.] Miller . . . opined that
42
[Plaintiff] had a full-scale intelligence quotient of 73
(FSIQ), and she would benefit from individual therapy.
Her prescription [of Abilify] was effective so it should
continue. She was provided strategies to improve her
memory such as composing mental pictures and improving
her listening skills by paying attention.
[The ALJ]
find[s] the opinion of Dr. Miller somewhat persuasive
because it is supported by objective testing, mental
health is her specialty, and the conclusions are
consistent with the exam and observations. However, Dr.
Miller did not explain in vocationally relevant terms how
[Plaintiff]’s impairments limited her ability to fulfill
the basic mental demands of competitive, remunerative,
unskilled work so the opinion is only somewhat
persuasive. However, [the ALJ] do[es] note that while
the FSIQ results confirms [sic] the BIF, the overall
report does not detail whether Listing 12.05 is met or
medically equaled. The opinions of the [s]tate agency
psychological consultant[s] who determined [Plaintiff]
had moderate paragraph “B” criteria but could perform
simple work is [sic] consistent with the longitudinal
record and my finding that [Plaintiff] is not disabled.
(Tr.
30
omitted).)
(emphasis
added)
(internal
parenthetical
citations
That analysis not only undercuts Plaintiff’s statement
that the ALJ found Dr. Miller’s opinions “persuasive” (Docket Entry
16 at 13 (italics omitted)), but, for the reasons discussed below,
also defeats Plaintiff’s remaining contentions regarding the ALJ’s
handling of Dr. Miller’s report.
Plaintiff zeroes in on her test results from the Repeatable
Battery for the Assessment of Neuropsychological Status (“RBANS”),
“a brief neuropsychological screener” (Tr. 381), of “borderline” in
attention and of “very low” in immediate memory and language to
argue that Dr. Miller “opined” that Plaintiff had “marked or
extreme limitations” in attention, immediate memory, language, and
43
general learning ability.
(Id. (citing Tr. 379).)13
arguments gloss over two important facts.
Plaintiff’s
First, Dr. Miller
expressly noted that Plaintiff’s “language and immediate memory
abilities were in the very low range” on the RBANS, which “was
somewhat inconsistent with the short-term memory tasks on the
[Woodcock-Johnson IV Tests of Cognitive Abilities (‘WJ-IV’)], in
which she performed in the low average and average ranges,” and
“her language abilities . . . tasks [] in the borderline to low
average ranges on most verbal areas on the [WJ-IV].”
(Tr. 381
(emphasis added).) That noted inconsistency undermines Plaintiff’s
attempt
to
transform
her
test
results
on
a
“brief
neuropsychological screener” into opinions that she suffered marked
to extreme limitations in various mental abilities.
Second, Dr.
Miller did not, at any place in her comprehensive report, opine
that Plaintiff suffered “marked” or “extreme” limitations in any
mental ability.
Miller
“did
not
(See Tr. 372-83.)
explain
in
As the ALJ recognized, Dr.
vocationally
relevant
terms
how
[Plaintiff]’s impairments limited her ability to fulfill the basic
mental demands of competitive, remunerative, unskilled work” (Tr.
30), but, rather, recommended that Plaintiff pursue individual
13
Plaintiff did not point the Court to any particular test result that she
equated to an opinion from Dr. Miller that Plaintiff had marked or extreme
limitations in general learning ability. (See Docket Entry 16 at 13.) Of note,
on the Woodcock-Johnson IV Tests of Cognitive Abilities, Plaintiff’s scores in
broad comprehension and knowledge and fluid reasoning fell in the borderline
range (see Tr. 376), which scores cohere with the ALJ’s finding at step two of
the SEP that Plaintiff’s severe impairments included BIF (see Tr. 21).
44
therapy, continue her Abilify, try guided meditation, and utilize
strategies to improve her memory (see Tr. 382-83).
Moreover, the
ALJ expressly found the state agency psychological consultants’
moderate limitations in the four areas of mental functioning
consistent with the record (see Tr. 30).
In light of the foregoing analysis, Plaintiff’s fourth RFC
sub-argument does not establish a basis for remand.
e.
Incorrect Regulatory Framework
Plaintiff’s final RFC-related argument contends that “[t]he
ALJ formulated a legally insufficient RFC assessment, in violation
of Social Security law and Fourth Circuit precedent.”
(Docket
Entry 16 at 15 (bold font and block-formatting omitted).)
In
particular, Plaintiff asserts that, in violation of Dowling v.
Commissioner of Soc. Sec. Admin., 986 F.3d 377, 387 (4th Cir.
2021), “the ALJ’s RFC determination was based entirely on SSR 16-3p
and 20 C.F.R. § 404.1529, which sets [sic] out the process ALJs use
to evaluate the intensity and persistence of a claimant’s symptoms
and determine the extent to which the symptoms can reasonably be
accepted as consistent with the objective and other evidence in the
record” and, did not, under the “‘Findings of Fact and Conclusions
of Law,’ . . . cite to[] the required regulatory framework under 20
C.F.R. § 404.1545 [sic] or [Social Security Ruling 96-8p, Policy
Interpretation
Ruling
Titles
II
and
XVI:
Assessing
Residual
Functional Capacity in Initial Claims, 1996 WL 374184 (July 2,
45
1996)
(‘SSR
96-8p’)]
or
address
their
requirements.”
(Id.)
Plaintiff further notes that “‘the ALJ’s only reference to 20
C.F.R.
§
404.1545
and
SSR
96-8p
appears
in
the
boilerplate
explanation of the disability evaluation process that precedes his
findings of fact and conclusions of law,’” which did not suffice
under Dowling.
No.
21-626,
(Id. at 15-16 (quoting Karen O. v. Kijakazi, Civ.
2022
WL
2954783,
at
*5
(D.
Md.
July
26,
2022)
(unpublished)); see also id. at 16 (further citing Burton v.
Commissioner, No. 3:22CV104, 2023 WL 2731049, at *5 (W.D.N.C. Mar.
30, 2023) (unpublished), and Elvis P. v. Saul, No. 1:20CV2330, 2021
WL 870475, at *15-17 (D.S.C. Mar. 9, 2021) (unpublished)).)
As a
result of the ALJ’s use of an incorrect RFC framework, Plaintiff
asserts that “the ALJ erred by failing to engage in the mandatory
function-by-function analysis of Plaintiff’s ability to maintain
[CPP] throughout an 8-hour workday and 5-day workweek.” (Id. at 16
(italics in original).)
Those arguments entitle Plaintiff to no
relief.
As Plaintiff concedes (see id. at 15-16), the ALJ here did
cite to the correct standards governing the assessment of RFC in
the “Applicable Law” section of his decision (Tr. 20 (formatting
omitted)):
Before considering step four of the [SEP], the [ALJ] must
first determine [Plaintiff]’s [RFC] (20 CFR 416.920(e)).
An individual’s [RFC] is her ability to do physical and
mental work activities on a sustained basis despite
limitations from her impairments.
In making this
finding, the [ALJ] must consider all of [Plaintiff]’s
46
impairments, including impairments that are not severe
(20 CFR 416.920(e) and 416.945; SSR 96-8p).
(Tr. 21 (emphasis added).)
Furthermore, unlike the court in Karen
O., the Court does not find significant that the ALJ discussed
Section 416.945 and SSR 96-8p in the portion of his decision
entitled “Applicable Law” (Tr. 20 (formatting omitted)), rather
than in the section entitled “Findings of Fact and Conclusions of
Law” (Tr. 21 (formatting omitted)).
Notably, the ALJ’s reference
to Section 416.929 and SSR 16-3p that Plaintiff finds problematic
in the “Findings of Fact and Conclusions of Law” section of the
decision also occurs within the ALJ’s recitation of so-called
boilerplate (see Tr. 27).
See Rose A. v. O'Malley, No. 3:23CV551,
2024 WL 256972, at *9 (S.D.W. Va. Jan. 5, 2024) (unpublished) (“To
the
extent
the
[p]laintiff
asserts
that
remand
is
warranted
[because] the ALJ’s only referring to Section 404.1545 and SSR
96-8p in boilerplate is comparable to the situation presented in
Dowling, . . . this assertion lacks merit.
The Fourth Circuit did
not hold that remand was required for an [ALJ] mentioning these
regulatory frameworks only once – in that case, the ALJ did not
cite to these regulatory frameworks at all, but instead relied upon
the incorrect regulatory framework . . . which pertain[s] to the
evaluation of a claimant’s subjective complaints.”), recommendation
adopted, 2024 WL 253656 (S.D.W. Va. Jan. 23, 2024) (unpublished);
Pickett
v.
(M.D.N.C.
Kijakazi,
Aug.
30,
No.
1:21CV500,
2022)
2022
WL
(unpublished)
47
3908862,
(Peake,
at
*5
M.J.)
(distinguishing Dowling in part, because “the ALJ d[id] cite to 20
C.F.R. §§ 404.1545, 404.1520, and [SSR] 96-8p in explaining how the
RFC
is
determined”),
recommendation
adopted,
2022
WL
4585941
(M.D.N.C. Sept. 29, 2022) (unpublished) (Osteen, Jr., J.).
Furthermore, Plaintiff’s complaint that “the ALJ erred by
failing to engage in the mandatory function-by-function analysis of
Plaintiff’s ability to maintain [CPP] throughout an 8-hour workday
and 5-day workweek” (Docket Entry 16 at 16 (italics in original))
misses the mark.
As discussed above in the context of Plaintiff’s
Mascio sub-argument, the ALJ here expressly found in the RFC that
Plaintiff
remained
able
to
maintain
attention,
concentration,
persistence, or pace to stay on task for 2-hour periods during a
normal 8-hour workday, as required to perform s[imple, routine]
tasks” (Tr. 26 (emphasis added)), and the ALJ’s decision amply
explains why Plaintiff’s moderate deficit in CPP did not warrant
further RFC restrictions. Plaintiff’s failure to demonstrate error
with respect to the ALJ’s function-by-function analysis further
distinguishes the instant case from Burton, Karen O., and Elvis P.,
as none of those cases ordered remand under Dowling based solely on
the ALJ’s recitation of the proper RFC framework in the Applicable
Law section rather than the Findings of Fact and Conclusions of Law
section of the decision.
See Burton, 2023 WL 2731049, at *7
(remanding under Dowling, in part, because “the ALJ’s assessment of
[the plaintiff]’s RFC contain[ed] too little logical explanation
48
for [the court] to conduct meaningful review” (internal quotation
marks and ellipsis omitted)); Karen O., 2022 WL 2954783, at *6
(finding
Dowling
error,
in
part,
because
the
ALJ
failed
to
“explain[] how he resolved the plethora of conflicting evidence in
the record or how the RFC account[ed] for relevant work-related
functions”); Elvis P., 2021 WL 870475, at *16 (crediting the
plaintiff’s Dowling argument, in part, because “[t]he ALJ did not
engage in a function-by-function analysis of [the p]laintiff’s
abilities to sit, stand, walk, lift, and carry” and deeming that
error “consequential given [the p]laintiff’s testimony that he
could only sit for 30 minutes at a time” (emphasis added)).
Based on the foregoing discussion, Plaintiff has not shown
that the ALJ erred under Dowling.
2. Conflicts Between VE Testimony and DOT
In Plaintiff’s second and final assignment of error, she
contends that
“the
ALJ
erred
by
failing
to
resolve
apparent
conflicts between the VE’s testimony and the information in the
[DOT], in violation of SSR 00-4p and case law precedent.”
(Docket
Entry 16 at 17 (bold font and block formatting omitted); see also
Docket Entry 19 at 1-5.)
the
ALJ
has
an
More specifically, Plaintiff notes “that
affirmative
duty
to
make
an
independent
identification and resolve any apparent conflicts between [VE]
testimony and the . . . [DOT] regardless of whether a conflict is
identified by the [VE].”
(Docket Entry 16 at 17 (italics in
49
original) (citing Pearson v. Colvin, 810 F.3d 204, 208-10 (4th Cir.
2015)).)
According to Plaintiff, “despite finding Dr. Miller’s
opinion persuasive, supported, and consistent with [her] report,
the ALJ failed to include outcome-determinative limitations [from
Dr. Miller’s report] in the RFC assessment.” (Id.) In Plaintiff’s
view,
“if
the
RFC
had
adequately
included
th[os]e
limitations . . ., then the VE’s testimony would contain . . . at
least three separate and distinct apparent conflicts [that ] were
not resolved.”
(Id.)
As shown by the following discussion,
Plaintiff has not demonstrated that the ALJ failed to identify and
resolve any apparent conflicts between the VE’s testimony and the
DOT.
In the prior discussion of Plaintiff’s first assignment of
error, the Court rejected Plaintiff’s argument that “[t]he ALJ
erred by failing to adequately account for the marked/extreme
limitations opined by . . . Dr. [] Miller, whose opinion the ALJ
found persuasive” (Docket Entry 16 at 12 (bold font and block
formatting omitted)).
Plaintiff’s conflicts-based arguments thus
fail, because they depend on the Court finding to the contrary,
i.e., that the ALJ erred by omitting Dr. Miller’s limitations from
the RFC.
(See Docket Entry 16 at 17 (“if the RFC had adequately
included the limitations assessed by Dr. Miller’s persuasive,
supported, and consistent medical opinion, then the VE’s testimony
would contain . . . at least three separate and distinct apparent
50
conflicts [that ] were not resolved.”).)
As well-explained by the
Commissioner:
Plaintiff contends that there were apparent unresolved
conflicts regarding her language skills, borderline
intellectual functioning, intelligence testing, and
abilities because if Dr. Miller’s test results and
opinions had been properly incorporated into the RFC, the
[VE] would not have identified the occupations of cook
[helper], hospital cleaner, and dishwasher as ones that
a person with Plaintiff’s vocational characteristics
could perform.
This amounts to Plaintiff merely
rehashing her previous arguments . . . .
That is,
Plaintiff does not identify any conflicts between the
[VE]’s testimony that an individual with the limitations
set out in the RFC finding could perform the identified
occupations and any information in the [DOT]. In the
absence of any apparent conflicts between the [VE]’s
testimony and the [DOT], there was nothing for the ALJ to
resolve.
(Docket Entry 18 at 20 (italics in original).)14
14
In Plaintiff’s Reply, she raises a new argument that the ALJ erred by
failing to resolve an apparent conflict between the ALJ finding “somewhat
persuasive” (Tr. 30) the state agency psychological consultants’ opinions that
Plaintiff had moderate limitation in her ability to carry out detailed tasks (see
Tr. 71, 83), which Plaintiff deems tantamount to limiting her to “understanding
very short and simple tasks” (Docket Entry 19 at 3 (italics in original)), and
the DOT’s rating of the jobs cited by the VE and adopted by the ALJ at step five
of the SEP at Reasoning Development Level 2 (“RDL 2”) (id. at 4 (citing Neeley
v. Commissioner of Soc. Sec. Admin., No. 1:22CV103, 2023 WL 2090289, at *2-3
(W.D.N.C. Feb. 17, 2023) (unpublished))).
The Court will not consider that
argument, because parties cannot advance new arguments for the first time in a
reply brief. See, e.g., United States v. Williams, 445 F.3d 724, 736 n.6 (4th
Cir. 2006) (declining to consider argument raised for the first time in reply
brief and observing that “this argument comes far too late in the day”); Hunt v.
Nuth, 57 F.3d 1327, 1338 (4th Cir. 1995) (explaining that “courts generally will
not address new arguments raised in a reply brief because it would be unfair to
the [other party]”).
Even if considered, Plaintiff’s argument would fail,
because a finding of moderate limitation in the ability to understand, remember,
and carry out detailed instructions (see Tr. 71, 82-83) does not equate to a
restriction to very short and simple instructions, as a “moderate” limitation
means mental “functioning in that area independently, appropriately, effectively,
and on a sustained basis is fair,” 20 C.F.R. Pt. 404, Subpt. P, App’x 1,
§ 12.00F.2.c (emphasis added), and not that the individual possesses no useful
ability to function in that area. As a result, the ALJ did not err by failing
to include a limitation to “very short and simple instructions” in the RFC, and
no apparent, unresolved conflict existed between the VE’s testimony that an
individual with Plaintiff’s RFC could perform the jobs of cook helper, hospital
cleaner, and dishwasher, and the DOT’s rating of those jobs at RDL 2.
51
III. CONCLUSION
Plaintiff has not established an error warranting relief.
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding
no
disability
is
AFFIRMED,
and
that
this
action
is
DISMISSED with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 5, 2024
52
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