McCornell v. Commissioner of Social Security Administration

Filing 25

ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Shiva V. Hodges on 05/16/2018. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Richard Lee McCornell, Jr.,
Plaintiff,
vs.
Nancy A. Berryhill, Acting
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:17-2761-SVH

ORDER

This appeal from a denial of social security benefits is before the court
for a final order pursuant to 28 U.S.C. § 636(c), Local Civ. Rule 73.01(B)
(D.S.C.), and the order of the Honorable Donald C. Coggins, Jr., United
States District Judge, dated March 8, 2018, referring this matter for
disposition. [ECF No. 21]. The parties consented to the undersigned United
States Magistrate Judge’s disposition of this case, with any appeal directly to
the Fourth Circuit Court of Appeals. [ECF No. 19 and 20].
Plaintiff files this appeal pursuant to 42 U.S.C. § 405(g) of the Social
Security Act (“the Act”) to obtain judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying the claim for
disability insurance benefits (“DIB”). The two issues before the court are
whether the Commissioner’s findings of fact are supported by substantial

evidence and whether she applied the proper legal standards. For the reasons
that follow, the court affirms the Commissioner’s decision.
I.

Relevant Background
A.

Procedural History

On April 11, 2013, Plaintiff protectively filed an application for DIB in
which he alleged his disability began on July 1, 2012. Tr. at 146–47. His
application was denied initially and upon reconsideration. Tr. at 90–94 and
96–98. On July 28, 2016, Plaintiff had a hearing before Administrative Law
Judge (“ALJ”) Clarence Guthrie. Tr. at 37–62 (Hr’g Tr.). The ALJ issued an
unfavorable decision on September 20, 2016, finding that Plaintiff was not
disabled within the meaning of the Act. Tr. at 21–36. Subsequently, the
Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner for purposes of judicial
review. Tr. at 2–8. Thereafter, Plaintiff brought this action seeking judicial
review of the Commissioner’s decision in a complaint filed on October 12,
2017. [ECF No. 1].
B.

Plaintiff’s Background and Medical History
1.

Background

Plaintiff was 34 years old at the time of the hearing. Tr. at 46. He
completed high school. Id. His past relevant work (“PRW”) was as a cashier, a

2

janitor, and a delivery driver. Tr. at 57. He alleges he has been unable to
work since July 1, 2012. Tr. at 146.
2.

Medical History

A March 30, 2012 Cooperative Disability Investigations (“CDI”) report
indicates that the Social Security Administration (“SSA”) had approved
Plaintiff’s disability claim in 2002 based on schizophrenia and that his
benefits were subsequently suspended because of his work activity. 1 Tr at
217. Plaintiff applied for expedited reinstatement of his benefits and alleged
that he had reduced his work to 22 to 25 hours per week. Id. The CDI unit
initiated an investigation based on a referral from the state agency. Id. The
investigator interviewed an assistant manager at Dollar General, who
informed him that Plaintiff had worked for the store for at least five years 2;
had performed job duties that included opening and closing the store, making
deposits, and interacting with customers; and was terminated for allegedly
stealing items. Tr. at 218. The assistant manager indicated Plaintiff
continued to shop in the store once a week, could carry on a conversation, and
sometimes drove. Id. An assistant manager at Rite Aid informed the
investigator that Plaintiff was employed as an assistant manager, had
Plaintiff’s certified earnings record reflects no income in 2002 or 2003, but
income of $2,817.00 in 2004; $8,996.29 in 2005; $9,205.12 in 2006; $8,506.59
in 2007; $10,078.66 in 2008; $13,140.41 in 2009; $3,523.94 in 2010; $9,450.49
in 2011; $4,608.09 in 2012; $8,806.93 in 2013; and $12,458.07 in 2014.
2 Plaintiff’s detailed earnings query shows that he was employed at Dollar
General from 2004 until 2010. Tr. at 157–58.
1

3

worked 30 to 40 hours per week, and had recently quit because he claimed he
was not being scheduled for enough hours. Tr. at 219. He stated Plaintiff’s job
duties had included opening and closing the store, unloading trucks, stocking
shelves, cleaning the building, assisting customers, operating a cash register
and computer, supervising other employees, and making deposits. Id. He
indicated Plaintiff had problems with attendance, was considered a poor
manager, and performed poor quality work. Id. The investigator subsequently
interviewed the Rite Aid store manager, who presented a slightly different
account. Id. The store manager specified that Plaintiff was employed from
May 16, 2011, to February 18, 2012, and worked 20 to 30 hours per week. Id.
He stated Plaintiff got along well with staff and other supervisors. Id. He
indicated Plaintiff did well if another manager was in the store, but not as
well if no other manager was present. Id. He stated Plaintiff had indicated he
wanted to work more hours, but failed to return calls and declined to work
when he was called in at times that he was not scheduled to work. Id. The
investigator parked in front of Plaintiff’s house and observed him sitting on
his porch. Tr. at 220. He noted that over the course of 13 minutes, Plaintiff
spoke to a female, walked up and down the steps, placed items in a trash can,
lifted objects, and talked and joked with a meter reader. Id.
Plaintiff presented to Trenten A. Prioleau, DPM (“Dr. Prioleau”), for a
three-month history of left heel pain on May 17, 2012. Tr. at 225. Dr.
4

Prioleau noted tenderness to palpation of Plaintiff’s left heel. Id. He assessed
plantar fasciitis and instructed Plaintiff to engage in stretching exercises and
to use ice massage. Tr. at 226. On May 31, 2012, Plaintiff reported that he
was not in pain, had been walking more, and had lost 15 pounds. Tr. at 227.
Dr. Prioleau encouraged Plaintiff to continue to use stretching and icing. Tr.
at 228.
Plaintiff reported that he was doing well on June 27, 2012. Tr. at 243.
He indicated his mood and affect were euthymic and denied psychotic
symptoms and side effects from medications. Id. Edward M. Kendall, M.D.
(“Dr. Kendall”), noted no abnormalities on mental status examination. Id. He
assessed paranoid schizophrenia and a global assessment of functioning
(“GAF”) 3 score of 60. 4 Tr. at 243–44.
On September 21, 2012, Ada Stewart, M.D. (“Dr. Stewart”), indicated
Plaintiff had a history of diabetes, obesity, and schizophrenia. Tr. at 223. She
noted that Plaintiff had decreased his weight from 328 to 282 pounds and
The GAF scale is used to track clinical progress of individuals with respect
to psychological, social, and occupational functioning. American Psychiatric
Association: Diagnostic & Statistical Manual of Mental Disorders, Fourth
Edition, Text Revision. Washington, DC, American Psychiatric Association,
2000 (“DSM-IV-TR”). The GAF scale provides 10-point ranges of assessment
based on symptom severity and level of functioning. Id. If an individual’s
symptom severity and level of functioning are discordant, the GAF score
reflects the worse of the two. Id.
4 A GAF score of 51–60 indicates “moderate symptoms (e.g., circumstantial
speech and occasional panic attacks) OR moderate difficulty in social or
occupational functioning (e.g., few friends, conflicts with peers or coworkers).” DSM-IV-TR.
3

5

should continue with diet and exercise. Tr. at 224. She stated Plaintiff’s
diabetes was well-controlled and recommended that he continue his current
treatment. Id. She added a prescription for Lisinopril for hypertension. Id.
On October 17, 2012, Plaintiff reported that he had lost over 60 pounds
and indicated that Dr. Stewart would consider taking him off Metformin if he
lost an additional 60 pounds. Tr. at 247. He indicated he had experienced no
paranoia during the prior month and was doing well overall. Id.
On January 29, 2013, Plaintiff reported that when did not take his
medication he got angry, wanted to fight, had outbursts with family
members, heard voices, had difficulty sleeping, and was unable to shut off his
thoughts. Tr. at 249. He stated that when he took his medication, he felt
calm, heard no voices, and did well. Id. He stated he continued to feel
somewhat irritable, easily provoked, moody, and socially withdrawn at times
while taking medication. Id. He indicated he could likely work part-time, but
would be unable to work on some days on an unpredictable basis. Id. Dr.
Kendall indicated Plaintiff’s mental status was normal, aside from fair
judgment and insight, occasional irritability, and occasional auditory
hallucinations. Tr. at 249–50. He assessed paranoid schizophrenia and a GAF
score of 55. Tr. at 250. He continued Plaintiff on six milligrams of Risperdal
per day. Id.

6

On April 23, 2013, Plaintiff indicated that frequent worry was
preventing him from sleeping well. Tr. at 254. He denied auditory and visual
hallucinations. Id. He informed Linda Smith, R.N. (“Ms. Smith”), that he had
worked full-time for a while without realizing that it would affect his
disability, but had decompensated and had lost both his job and his disability
benefits. Id. Aziz Mohiuddin, M.D. (“Dr. Mohiuddin”), refilled Plaintiff’s
prescription for Risperdal. Tr. at 256.
On July 11, 2013, Plaintiff complained of intermittent depression, poor
energy, low motivation, and social withdrawal. Tr. at 238. He reported that
he had attempted suicide through strangulation a few months prior, but had
aborted the attempt. Id. He denied current suicidal ideation. Id. He stated his
grandmother had recently passed away and that he was having difficulty
processing his grief. Id. Dr. Kendall noted that Plaintiff was “clearly
bereaved” and “near tears.” Id. He described Plaintiff as having poor
judgment and insight, labile and bereaved mood, and a full range of emotion.
Tr. at 239. He also noted that Plaintiff demonstrated cooperative behavior, no
psychomotor

abnormalities,

intact

cognition,

normal

speech,

no

hallucinations, no delusions, no suicidal or homicidal ideation, and a logical
and goal-directed thought process. Id. He assessed paranoid schizophrenia

7

and bereavement and a GAF score of 50. 5 Id. He noted that no changes in
Plaintiff’s medication were needed. Id. He stated he believed that Plaintiff
was disabled and would support his claim for disability benefits. Id.
Plaintiff presented to Thomas J. Motycka, M.D. (“Dr. Motycka”), for a
consultative examination on August 28, 2013. Tr. at 257. He reported that he
had been diagnosed with paranoid schizophrenia that caused him to
hallucinate, experience rage, and become violent. Id. Dr. Motycka stated
Plaintiff did “not appear to have paranoid schizophrenia, or depression.” Id.
He noted that Plaintiff put forth “a poor effort” and was “very, very
unconvincing.” Id. Plaintiff claimed to have neuropathy, but Dr. Motycka
noted that his records showed only plantar faciitis and diabetes that was
treated with Metformin. Id. Dr. Motycka observed Plaintiff to walk with a
normal gait and to demonstrate “feeble efforts” on range of motion (“ROM”)
testing. Id. Plaintiff held his right hand in a claw-like manner and claimed
that his wrist was injured, but Dr. Motycka found his claim to be “incredible”
and “unbelievable.” Id. Dr. Motycka indicated Plaintiff’s blood pressure was
129/83 mm/Hg. Tr. at 259. He noted Plaintiff was 5’8” tall and weighed 321
pounds with a body mass index (“BMI”) of 48. Id. He stated Plaintiff’s poor
effort was obvious and his presentation was “rife with concerns about his
5

A GAF score of 41–50 indicates “serious symptoms (e.g., suicidal ideation,

severe obsessional rituals, frequent shoplifting) OR any serious impairment
in social, occupational or school functioning (e.g., no friends, unable to keep a
job).” DSM-IV-TR.
8

credibility.” Id. He observed Plaintiff to have no clubbing, cyanosis, or edema;
to demonstrate normal dorsalis pedis and posterior tibial pulses; to have no
crepitus, effusions, redness, warmth, instability, McMurray clicks, or Baker’s
cyst in the knees; to have normal radial pulses in his hands; to show no
swelling or crepitus and normal ROM of his wrists; and to demonstrate
normal and non-tender hips and acromioclavicular joints. Tr. at 260. Dr.
Motycka stated the orthopedic examination was entirely normal. Id. He
assessed features of borderline and antisocial personality disorders. Id. He
indicated that Plaintiff’s weight was “a big problem” and that Plaintiff
needed to lose weight. Tr. at 261. He indicated it seemed as if Plaintiff was
engaging in “a rehearsed effort for secondary gain” and opined that he was
“able to do any type of work he has done in the past.” Id.
On October 2, 2013, state agency psychological consultant Samuel
Goots, Ph.D. (“Dr. Goots”), reviewed the evidence and completed a psychiatric
review technique (“PRT”). Tr. at 68–69. He considered Listing 12.03 for
schizophrenic, paranoid, and other psychotic disorders and assessed no
repeated episodes of decompensation, mild restriction of activities of daily
living (“ADLs”), moderate difficulties in maintaining social functioning, and
moderate difficulties in maintaining concentration, persistence, or pace. Id.
He found that Plaintiff had moderate limitations in his mental residual
functional capacity (“RFC”) with respect to abilities to understand and
9

remember detailed instructions; to carry out detailed instructions; to
maintain attention and concentration for extended periods; to perform
activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; to work in coordination with or in proximity to
others without being distracted by them; to complete a normal workday and
workweek without interruption from psychologically-based symptoms; to
perform at a consistent pace without an unreasonable number and length of
rest periods; to interact appropriately with the general public; to accept
instructions and respond appropriately to criticism from supervisors; and to
get along with coworkers or peers without distracting them or exhibiting
behavioral extremes. Tr. at 69–71. He found Plaintiff to have “partially
credible symptoms” that were consistent with schizophrenia. Tr. at 68.
However, he noted that Plaintiff’s “reasonable adaptive functioning,” “good
work history,” the CDI report, and Dr. Motycka’s report suggested
malingering and did not indicate severe limitations as a result of a mental
condition. Id. He stated the totality of the evidence indicated Plaintiff was
“capable of simple work in a setting with limited contact with the general
public.” Id. He indicated Plaintiff could understand, retain, and follow simple
instructions; could concentrate well enough to complete simple tasks with
ordinary supervision; would have moderate difficulty with more detailed
instructions and complex tasks; could complete a normal workweek with an
10

occasional interruption due to his mental condition; would function best in a
work setting with limited contact with the general public and minimal
interaction with coworkers and supervisors; and could avoid common workrelated dangers. Tr. at 71.
On January 31, 2014, a second state agency psychological consultant,
Leslie Burke, Ph.D. (“Dr. Burke”), completed a PRT and assessed the same
degree of limitation and the same mental RFC as Dr. Goots. Compare Tr. at
81–82 and Tr. at 83–85, with Tr. at 68–69 and Tr. 69–71.
Plaintiff

presented

to

Columbia

Area

Mental

Health

Center

(“CAMHC”) for an initial psychiatric assessment on September 11, 2015. Tr.
at 329. He reported anger and thoughts of harming others. Id. He endorsed
paranoid thoughts and indicated he was only sleeping for an hour or two at
night. Id. Kathy M. Lundvall, M.D. (“Dr. Lundvall”), noted that Plaintiff’s
weight had decreased to 220 pounds. Tr. at 330. She observed him to
demonstrate

mild

hand

Id.

tremors.

She

indicated

the

following

abnormalities on mental status examination: hyperactive behavior; poor,
anxious, restless, and avoidant eye contact; circumstantial thought process;
perseveration; persecutory delusions; paranoid thoughts; homicidal ideation
without plan; auditory hallucinations; anxious, angry, and irritable mood;
inappropriate, anxious, irritable, and restless affect; and fair insight and
judgment. Tr. at 330. She assessed paranoid schizophrenia, bereavement,
11

and a GAF score of 50. Id. She prescribed three milligrams of Risperdal twice
a day and provided samples to Plaintiff. Id.
Plaintiff presented to CAMHC for a clinical reassessment on September
24, 2015. Tr. at 287. He reported that he was hearing voices “all the time”
and experiencing “deep depression.” Id. He stated he felt like being alone, had
no motivation, and had lost everything. Id. He denied suicide attempts, but
endorsed suicidal thoughts. Id. Loyda C. Stevens, M. Ed., R.N. (“Ms.
Stevens”), described Plaintiff as appearing neat and clean; showing
appropriate motor activity; having a cooperative attitude; demonstrating an
appropriate affect; having a happy mood; speaking at a normal rate and tone;
demonstrating a normal thought process; endorsing paranoid thought
content, auditory hallucinations, and persecutory delusions; being oriented to
person, place, time, and situation; showing poor decision making and
judgment; having poor remote memory; being easily distracted; and
demonstrating an average fund of knowledge. Tr. at 289–90. She indicated
Plaintiff’s weight to be 215 pounds. Tr. at 290. Plaintiff reported adequate
sleep, appetite, energy level, and libido. Id. Ms. Stevens noted that Plaintiff
presented as “very happy, friendly and appropriately engaging.” Id. She
indicated Plaintiff did not talk of “wanting to hurt people.” Id. She noted that
Plaintiff had resumed use of Risperdal following his appointment with Dr.
Lundvall and considered the medication to be helping with his mood and
12

thoughts. Id. Plaintiff reported that he had lost his job as a janitor because he
was experiencing paranoia, but he indicated he was not taking his medication
at the time and acknowledged that he “fe[lt] better and [did] not get angry
easily” when taking his medication. Tr. at 291. Ms. Stevens provided more
samples of Risperdal and referred Plaintiff to a case manager. Id.
On September 30, 2015, Plaintiff endorsed depression and anxiety and
reported he was doing “fair” and taking his medication daily. Tr. at 326–27.
He was proud of his weight loss and indicated he was taking daily walks for
exercise. Tr. at 327. He stated he became violent and experienced “terrible”
auditory hallucinations when he was not taking his medication. Id. He denied
suicidal and homicidal ideation. Id. Elizabeth S. Nixon, R.N. (“Ms. Nixon”),
observed Plaintiff to be dressed nicely and on time for his appointment. Id.
Plaintiff presented to Laurinda Saxon, M.H.P., L.P.C. (“Ms. Saxon”), on
the same day for individual therapy. Tr. at 343. Ms. Saxon described Plaintiff
as pleasant, cooperative, and appropriately dressed and groomed. Id. She
noted Plaintiff had a bright affect, maintained good and direct eye contact,
and was able to articulate his feelings and thoughts and process information
without difficulty. Id. Plaintiff indicated he had difficulty maintaining
employment because of his symptoms. Id. He stated he spent a lot of time
alone or with family and did not have an active social life. Id. He indicated
his sleep, diet, depression, and auditory hallucinations had improved since he
13

restarted his medications. Id. He reported his mood was “good” and expressed
a desire to comply with medication and treatment. Id.
On October 29, 2015, Plaintiff reported that he was “doing a little bit
better.” Tr. at 323. He indicated he was living with his father, but tended to
self-isolate and felt like he did not fit in. Id. He complained of hearing voices
“from time to time,” but indicated he heard them less frequently while taking
the medication. Id. He denied visual hallucinations. Id. Dr. Mohiuddin
indicated that Plaintiff was experiencing persecutory delusions and auditory
hallucinations and had fair judgment and insight, but otherwise noted
normal findings on mental status examination. Id. He continued Plaintiff on
three milligrams of Risperdal twice a day. Id.
On the same day, Plaintiff presented to Ms. Saxon for individual
therapy. Tr. at 342. He reported that his medication helped him to better
control his anger. Id. He continued to endorse occasional paranoia and
auditory hallucinations. Id. He indicated he did not have a lot of friends, but
talked with some friends on the phone. Id. Ms. Saxon noted that Plaintiff had
limited insight into his illness. Id.
On November 18, 2015, Plaintiff reported that he was compliant with
his medications, but did not feel like he needed them. Tr. at 340. He admitted
that he had difficulty controlling his impulses when he was off his

14

medication. Id. Ms. Saxon described Plaintiff as appropriately dressed and
groomed. Id. She encouraged him to develop a daily routine. Id.
On January 20, 2016, Plaintiff presented to Lan Bonno-Lebozec, Ed.S.,
M.H.P. (“Ms. Bonno-Lebozec”), for individual therapy. Tr. at 338. He
indicated his life was “very stable” and “good” and expressed a desire to
return to work and reengage in the community. Id.
Plaintiff reported that he was doing well and taking his medication
daily on February 23, 2016. Tr. at 303. He indicated he was living with his
father and had a girlfriend. Id. He endorsed some irritability and paranoid
thinking. Id. Ms. Nixon observed Plaintiff to be well-dressed. Id.
Plaintiff reported that he was “doing better” on March 17, 2016. Tr. at
300. He indicated he self-isolated and sometimes felt angry, but used
meditation to get over his anger. Id. He denied auditory hallucinations,
delusional thinking, and suicidal and homicidal ideation. Id. Dr. Mohiuddin
observed Plaintiff to have a stable mood and to smile a lot. Id. He assessed
mild impairment to Plaintiff’s concentration and fair insight and judgment,
but indicated otherwise normal findings on mental status examination. Id.
He continued Plaintiff on three milligrams of Risperdal twice a day. Id.
Plaintiff reported to Ms. Bonno-Lebozec the same day for individual
therapy. Tr. at 336. He reported being happy and having little stress, but

15

indicated he felt bored and desired to participate in an employment
workshop. Id. He denied delusions and auditory hallucinations. Id.
On April 12, 2016, Plaintiff reported “feeling okay,” but being “up and
down” on some days. Tr. at 299. He complained of occasional depression and
indicated he felt increasingly anxious and irritated when he was around
other people. Id. He denied suicidal and homicidal ideation. Id. Ms. Nixon
observed Plaintiff to be dressed nicely and on time for his appointment. Id.
On April 14, 2016, Ms. Bonno-Lebozec indicated Plaintiff had been
stabilized with medications and exhibited appropriate behavior. Tr. at 335.
Plaintiff expressed a desire to work part-time through South Carolina
Vocational Rehabilitation (“SCVR”). Id.
On April 28, 2016, Ms. Bonno-Lebozec encouraged Plaintiff to start a
workshop through SCVR. Tr. at 334. She indicated Plaintiff was “very
clever,” well-read, and well-oriented. Id.
On May 19, 2016, Plaintiff reported that he was doing well, aside from
dry mouth and constipation. Tr. at 296. He stated his sleep and appetite were
okay and that his paranoia had decreased. Id. He denied auditory
hallucinations and suicidal and homicidal ideation. Id. Dr. Mohiuddin
observed Plaintiff to be dressed neatly. Id. He indicated Plaintiff’s judgment
and insight were fair and that all other findings on mental status
examination were normal. Id.
16

On July 14, 2016, Plaintiff reported that he was taking his medication
and doing well. Tr. at 295. He indicated he was living with his father and
working out on a daily basis. Id. He denied suicidal and homicidal ideation.

Id. Ms. Nixon observed Plaintiff to be well-dressed, “making jokes,” and
“laughing a lot.” Id.
On August 3, 2016, Plaintiff reported that he had been living with his
father for two years, but had recently moved out because he had thoughts of
“hurting [his father] with a knife” during an argument. Tr. at 292. He
indicated he was homeless and “living under a bridge.” Id. He endorsed
increased

anxiety,

interrupted

sleep,

self-isolation,

and

auditory

hallucinations. Id. He denied visual hallucinations, delusions, and suicidal
and homicidal ideation and stated his appetite was good. Id. Queen J.
Flowers, APRN-BC (“Ms. Flowers”), observed Plaintiff to have depressed
mood, flat affect, and fair insight and judgment. Id. She indicated Plaintiff
was oriented to time, place, person, and circumstance; demonstrated normal
appearance, eye contact, and speech; had intact associations, attention,
memory, and concentration; displayed a cooperative attitude and calm
behavior; and showed a logical/goal-directed thought process. Id.
Plaintiff met with Ms. Bonno-Lebozec for individual therapy on August
3, 2016. Tr. at 332. Ms. Bonno-Lebozec encouraged Plaintiff to “start moving
in the direction of working and reengaging himself with the community.” Id.
17

However, she also stated that Plaintiff needed “to reapply for disability as he
has very limited insight and understanding of his world.” Id. She referred
Plaintiff to several providers for assistance with housing and benefits. Id.
C.

The Administrative Proceedings
1.

The Administrative Hearing
a.

Plaintiff’s Testimony

At the hearing on July 28, 2016, Plaintiff, appearing pro se, testified
that he was homeless. Tr. at 45. He indicated he had been living with
someone, but had to leave because of his rage. Tr. at 51. He denied having a
driver’s license. Tr. at 47. He indicated he had most recently worked for three
months as a school custodian, for six months a mattress delivery driver, and
for the holiday season as a bell ringer for the Salvation Army. Tr. at 48. He
stated he had stopped working two years prior. Tr. at 49.
Plaintiff testified that he applied for disability because he had difficulty
maintaining a job. Tr. at 50. He stated his employers would tell him that he
was “crazy” and that he did not “fit in on their jobs.” Id. He confirmed that he
had been diagnosed with paranoid schizophrenia. Id. He indicated he did not
work well with others because he always felt as if someone was messing with
him. Id. He stated he was very temperamental. Id. He testified that he spoke
to and heard a voice that encouraged him to harm himself and others. Tr. at

18

54–55. He indicated he felt angry and feared that others were trying to harm
him. Tr. at 54. He stated he had once attempted suicide. Tr. at 55.
Plaintiff testified that he had been diagnosed with diabetes in 2012 or
2013. Tr. at 51. He indicated that neuropathy in his feet caused difficulty in
getting around. Tr. at 50. He endorsed an undiagnosed wrist problem that
caused clicking and severe pain. Id. He stated he was prescribed Metformin
for diabetes, Risperdal for schizophrenia, and Lisinopril for hypertension. Tr.
at 51.
b.

Vocational Expert Testimony

Vocational Expert (“VE”) Debbie Dean reviewed the record and testified
at the hearing. Tr. at 56–59. The VE categorized Plaintiff’s PRW as a cashier,

Dictionary of Occupational Titles (“DOT”) number 211.462-014, as light with
a specific vocational preparation (“SVP”) of three; a janitor, DOT number
381.687-018, as medium with an SVP of two; and a delivery driver, DOT
number 292.353-010, as medium with an SVP of three. Tr. at 57. The ALJ
described a hypothetical individual of Plaintiff’s vocational profile who would
have no exertional limitations, but would be limited to simple, routine,
repetitive tasks; would be able to make simple work-related decisions; could
tolerate occasional changes in the work setting; could tolerate occasional
interaction with the public and coworkers; and could accept instructions and
respond appropriately to supervisors where the interaction occurred
19

occasionally throughout the workday. Tr. at 57–58. The VE testified that the
hypothetical individual would unable to perform Plaintiff’s PRW. Tr. at 58
The ALJ asked whether there were any other jobs in the economy that the
hypothetical person could perform. Id. The VE identified medium jobs with
an SVP of two as a dishwasher, DOT number 318.687-010, with 277,000
positions in the national economy; a linen room stocker, DOT number
222.684-010, with 85,000 positions in the national economy; and a hand
packer, DOT number 920.587-018, with 162,000 positions in the national
economy. Id.
For a second hypothetical question, the ALJ asked the VE to consider
an individual of Plaintiff’s vocational profile who would miss four days of
work per month. Tr. at 59. He asked if the limitation would eliminate
competitive employment. Id. The VE confirmed that it would. Id.
For a third hypothetical question, the ALJ asked the VE to consider
that the individual would be off task for 20 percent of the workday, in
addition to regular breaks. Id. He asked if the limitation would eliminate
competitive employment. Id. The VE confirmed that it would. Id.
2.

The ALJ’s Findings

In his decision dated September 20, 2016, the ALJ made the following
findings of fact and conclusions of law:
1.

The claimant meets the insured status requirements of the Social
Security Act through September 30, 2019.
20

2.
3.

4.
5.

6.

7.
8.
9.
10.

11.

12.

The claimant engaged in substantial gainful activity during the
following periods: October 2013 through June 2014 (20 CFR
404.1520(b) and 404.1571 et seq.).
However, there has been a continuous 12-month period(s) during
which the claimant did not engage in substantial gainful activity.
The remaining findings address the period(s) the claimant did
not engage in substantial gainful activity.
The claimant has the following severe impairment: schizophrenia
(20 CFR 404.1520(c)).
The claimant 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 (20 CFR 404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: the claimant is limited to simple,
routine and repetitive tasks. He has the ability to make simple
work-related decisions, and can tolerate occasional changes in the
work setting. He can tolerate occasional interaction with the
public, and occasional interaction with coworkers. He can accept
instructions and respond appropriately to supervisors, where this
interaction occurs occasionally throughout the workday.
The claimant is unable to perform any past relevant work (20
CFR 404.1565).
The claimant was born on January 7, 1982 and was 30 years old,
which is defined as a younger individual age 18–49, on the
alleged disability onset date (20 CFR 404.1563).
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
Transferabilty of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant
can perform (20 CFR 404.1569 and 404.1569(a)).
The claimant has not been under a disability, as defined in the
Social Security Act, from July 1, 2012, through the date of this
decision (20 CFR 404.1520(g)).
21

Tr. at 26–33.
II.

Discussion
Plaintiff alleges the ALJ failed to account for his moderate difficulties

in maintaining concentration, persistence, or pace in limiting him to simple,
routine, repetitive tasks. The Commissioner counters that substantial
evidence supports the ALJ’s findings and that the ALJ committed no legal
error in his decision.
A.

Legal Framework
1.

The Commissioner’s Determination-of-Disability Process

The Act provides that disability benefits shall be available to those
persons insured for benefits, who are not of retirement age, who properly
apply, and who are under a “disability.” 42 U.S.C. § 423(a). Section
423(d)(1)(A) defines disability as:
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 at least 12 consecutive
months.
42 U.S.C. § 423(d)(1)(A).
To facilitate a uniform and efficient processing of disability claims,
regulations promulgated under the Act have reduced the statutory definition
of disability to a series of five sequential questions. See, e.g., Heckler v.

Campbell, 461 U.S. 458, 460 (1983) (discussing considerations and noting
22

“need for efficiency” in considering disability claims). An examiner must
consider the following: (1) whether the claimant is engaged in substantial
gainful activity; (2) whether he has a severe impairment; (3) whether that
impairment meets or equals an impairment included in the Listings; 6 (4)
whether such impairment prevents claimant from performing PRW; 7 and (5)
whether the impairment prevents him from doing substantial gainful
employment. See 20 C.F.R. § 404.1520. These considerations are sometimes
referred to as the “five steps” of the Commissioner’s disability analysis. If a
decision regarding disability may be made at any step, no further inquiry is
necessary. 20 C.F.R. § 404.1520(a)(4) (providing that if Commissioner can
find claimant disabled or not disabled at a step, Commissioner makes
determination and does not go on to the next step).

The Commissioner’s regulations include an extensive list of impairments
(“the Listings” or “Listed impairments”) the Agency considers disabling
without the need to assess whether there are any jobs a claimant could do.
The Agency considers the Listed impairments, found at 20 C.F.R. part 404,
subpart P, Appendix 1, severe enough to prevent all gainful activity. 20
C.F.R. § 404.1525. If the medical evidence shows a claimant meets or equals
all criteria of any of the Listed impairments for at least one year, he will be
found disabled without further assessment. 20 C.F.R. § 404.1520(a)(4)(iii). To
meet or equal one of these Listings, the claimant must establish that his
impairments match several specific criteria or are “at least equal in severity
and duration to [those] criteria.” 20 C.F.R. § 404.1526; Sullivan v. Zebley, 493
U.S. 521, 530 (1990); see Bowen v. Yuckert, 482 U.S. 137, 146 (1987) (noting
the burden is on claimant to establish his impairment is disabling at Step 3).
7 In the event the examiner does not find a claimant disabled at the third step
and does not have sufficient information about the claimant’s past relevant
work to make a finding at the fourth step, he may proceed to the fifth step of
the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(h).
6

23

A claimant is not disabled within the meaning of the Act if he can
return to PRW as it is customarily performed in the economy or as the
claimant actually performed the work. See 20 C.F.R. Subpart P, §
404.1520(a), (b); Social Security Ruling (“SSR”) 82-62 (1982). The claimant
bears the burden of establishing his inability to work within the meaning of
the Act. 42 U.S.C. § 423(d)(5).
Once an individual has made a prima facie showing of disability by
establishing the inability to return to PRW, the burden shifts to the
Commissioner to come forward with evidence that claimant can perform
alternative work and that such work exists in the regional economy. To
satisfy that burden, the Commissioner may obtain testimony from a VE
demonstrating the existence of jobs available in the national economy that
claimant can perform despite the existence of impairments that prevent the
return to PRW. Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). If the
Commissioner satisfies that burden, the claimant must then establish that he
is unable to perform other work. Hall v. Harris, 658 F.2d 260, 264–65 (4th
Cir. 1981); see generally Bowen v. Yuckert, 482 U.S. 137, 146. n.5 (1987)
(regarding burdens of proof).
2.

The Court’s Standard of Review

The Act permits a claimant to obtain judicial review of “any final
decision of the Commissioner [] made after a hearing to which he was a
24

party.” 42 U.S.C. § 405(g). The scope of that federal court review is narrowlytailored to determine whether the findings of the Commissioner are
supported by substantial evidence and whether the Commissioner applied
the proper legal standard in evaluating the claimant’s case. See id.,

Richardson v. Perales, 402 U.S. 389, 390 (1971); Walls v. Barnhart, 296 F.3d
287, 290 (4th Cir. 2002) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990)).
The court’s function is not to “try these cases de novo or resolve mere
conflicts in the evidence.” Vitek v. Finch, 438 F.2d 1157, 1157–58 (4th Cir.
1971); see Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing Smith v.

Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). Rather, the court must uphold
the Commissioner’s decision if it is supported by substantial evidence.
“Substantial evidence” is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson, 402 U.S. at 390,
401; Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Thus, the court
must carefully scrutinize the entire record to assure there is a sound
foundation for the Commissioner’s findings and that her conclusion is
rational. See Vitek, 438 F.2d at 1157–58; see also Thomas v. Celebrezze, 331
F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the
decision of the Commissioner, that decision must be affirmed “even should

25

the court disagree with such decision.” Blalock v. Richardson, 483 F.2d 773,
775 (4th Cir. 1972).
B.

Analysis

Plaintiff argues the ALJ did not sufficiently account for his moderate
difficulties in maintaining concentration, persistence, or pace in limiting him
to simple, routine, repetitive tasks. [ECF No. 18 at 7]. He maintains the
ALJ’s error is comparable to the error recognized by the Fourth Circuit in

Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015), and that the ALJ did not
account for his ability to stay on task throughout the workday. Id. at 7–8.
The Commissioner argues the instant case differs from Mascio in that
the ALJ accounted for Plaintiff’s mental limitations in his hypothetical
question to the VE. [ECF No. 22 at 5]. She further maintains the ALJ
included more significant restrictions in that he limited Plaintiff to simple
work-related decisions, occasional changes in the work setting, occasional
interaction with the public, occasional interaction with coworkers, and
specified that he could accept instructions and respond appropriately to
supervisors occasionally throughout the workday. Id. She contends the
additional restrictions address any limitation in Plaintiff’s ability to maintain
pace and stay on task. Id. She claims the ALJ cited sufficient evidence to
support his conclusion that Plaintiff had no greater restrictions than those
included in the RFC assessment. Id. at 5–7.
26

A claimant’s RFC represents the most he can still do despite his
limitations. 20 C.F.R. § 404.1545(a). It must be based on all the relevant
evidence in the case record and should account for all of the claimant’s
medically-determinable impairments. Id. The RFC assessment must include
a narrative discussion describing how all the relevant evidence in the case
record supports each conclusion and must cite “specific medical facts (e.g.,
laboratory findings) and non-medical evidence (e.g., daily activities,
observations).” SSR 96-8p, 1996 WL 374184 at *7 (1996). The ALJ must
determine the claimant’s ability to perform work-related physical and mental
abilities on a regular and continuing basis. Id. at *2. He must explain how
any material inconsistencies or ambiguities in the record were resolved. Id. at
*7. “[R]emand may be appropriate . . . where an ALJ fails to assess a
claimant’s capacity to perform relevant functions, despite contradictory
evidence in the record, or where other inadequacies in the ALJ’s analysis
frustrate meaningful review.” Mascio, 780 F.3d at 636, citing Cichocki v.

Astrue, 729 F.3d 172, 177 (2d Cir. 2013).
Pursuant to Listing 12.00(E)(3), evaluation of a claimant’s ability to
maintain concentration, persistence, or pace requires examination of his
“abilities to focus attention on work activities and stay on task at a sustained
rate.” “[T]he nature of this area of mental functioning” includes: “initiating
and performing a task that you understand and know how to do; working at
27

an appropriate and consistent pace; completing tasks in a timely manner;
ignoring or avoiding distractions while working; changing activities or work
settings without being disruptive; working close to or with others without
interrupting or distracting them; sustaining an ordinary routine and regular
attendance at work; and working a full day without needing more than the
allotted number or length of rest periods during the day.” 20 C.F.R. Pt. 404,
Subpt. P, App’x 1 § 12.00(E)(3).
In Mascio, 780 F.3d at 638, the court found that the ALJ erred in
assessing the plaintiff’s RFC. Id. It stated “we agree with other circuits that
an ALJ does not account ‘for a claimant’s limitations in concentration,
persistence, and pace by restricting the hypothetical question to simple,
routine tasks or unskilled work.’” Id. The court explained that it was possible
for the ALJ to find that the moderate concentration, persistence, or pace
limitation did not affect the plaintiff’s ability to work, but that remand was
required “because the ALJ here gave no explanation.” Id. This court has
interpreted the Fourth Circuit’s holding in Mascio to emphasize that an ALJ
must explain how he considered the claimant’s limitation in concentration,
persistence, or pace in assessing his RFC. See Sipple v. Colvin, No. 8:15-1961MBS-JDA, 2016 WL 4414841, at *9 (D.S.C. Jul. 29, 2016), adopted by 2016
WL 4379555 (D.S.C. Aug. 17, 2016) (“After Mascio, further explanation
and/or consideration is necessary regarding how Plaintiff’s moderate
28

limitation in concentration, persistence, or pace does or does not translate
into a limitation in his RFC.”).
As an initial matter, the court notes that unlike the ALJ in Mascio, who
included no mental restrictions in the hypothetical question he presented to
the VE, the ALJ in the instant case questioned the VE about the same
mental limitations he adopted as the RFC assessment. Compare Tr. at 29,

with Tr. at 57–58. Contrary to Plaintiff’s argument, the ALJ did not simply
limit him to simple, routine, repetitive tasks, but also included limitations for
making simple work-related decisions, tolerating occasional changes in the
work setting, tolerating occasional interaction with the public and coworkers,
and accepting instructions and responding appropriately to supervisors
occasionally throughout the workday. Tr. at 29. The additional restrictions
pertained directly to several components of Plaintiff’s ability to maintain
concentration, persistence, or pace, including his abilities to initiate and
perform tasks he understood and knew how to do, ignore or avoid distractions
from others while working, change activities or work setting, and work close
to or with others without distracting them. See 20 C.F.R. Pt. 404, Subpt. P,
App’x 1 § 12.00(E)(3).
Although the ALJ did not explicitly state that Plaintiff had no difficulty
staying on task, he cited evidence that supported such a conclusion. He
specified that “[t]reatment records reflect[ed] that the claimant ha[d]
29

displayed alert and oriented presentation, intact attention, fair judgment and
insight, logical and goal-directed thought processes, normal thought content,
intact concentration, intact memory, and intact associations (Exhibits 4F and
7F).” Tr. at 28. He pointed out that only one treatment note had shown
“circumstantial thought process, poor judgment, poor remote memory, easily
distracted, and mildly impaired concentration (Exhibit 7F).” Id. He concluded
that “most of the clinical findings ha[d] been normal and that most of
Plaintiff’s statements suggested he was doing well on medication. Id.
The Fourth Circuit has held that an ALJ adequately accommodates a
claimant’s moderate difficulties in concentration, persistence, or pace by
crediting medical opinions of record and considering the limitations the
medical providers indicated as part of the RFC assessment. Sizemore v.

Berryhill, 878 F.3d 72, 81 (4th Cir. 2017). The ALJ gave great weight to
opinions from Drs. Goots and Burke, who opined that Plaintiff could complete
a normal workweek with only an occasional interruption (Tr. at 69 and 71).

See Tr. at 31. He found their opinions to be consistent with Plaintiff’s reports
to his medical providers and his medical providers’ findings and treatment
records. Id. By crediting opinions from Drs. Goots and Burke, the ALJ found
that Plaintiff generally retained the ability to stay on task to complete a
normal workweek.

30

Although Plaintiff correctly asserts that Drs. Goots and Burke rendered
their opinions prior to his presentation to CAMHC in September 2015 with
more severe symptoms (ECF Nos. 18 at 9 and 23 at 2), the ALJ’s reliance on
their opinions is not undermined by the subsequent evidence. The ALJ
acknowledged that Plaintiff had presented to Dr. Lundvall with hyperactive
behavior, anxious affect, circumstantial thought processes, and reports of
paranoid thoughts and auditory hallucinations in September 2015, but
explained that his presentation quickly improved after he resumed treatment
and medications. Tr. at 30. He noted that Dr. Lundvall had restarted
Plaintiff on Risperdal and that his mood, behavior, affect, and thought
content and process were significantly improved at a two-week follow up
visit. Id. He pointed out that Plaintiff reported doing well and that his
providers indicated generally normal mental status examination findings
during subsequent visits in 2015 and 2016. Id.
The ALJ provided a thorough discussion to support his conclusion that
Plaintiff’s moderate limitation in concentration, persistence, or pace did not
further limit his RFC. He noted that Plaintiff had “intermittently complained
of auditory hallucinations” and paranoia, but found that the record did “not
indicate significant problems, as he has never required psychiatric
hospitalization or indicated significant psychotic signs during examinations”
and was “able to consistently work from 2012 through the third quarter of
31

2015 (Exhibits 2D, 4D, 5D, and 6D).” Tr. at 28 and 30. He stated the medical
evidence showed “mostly normal objective clinical findings without any
psychiatric hospitalization or emergency room visit for any mental
symptoms.” Tr. at 30. He indicated Dr. Kendall’s records reflected that
Risperdal was effective in calming Plaintiff’s mood without adjustments in
dosage; that Plaintiff reported “doing well”; and that Plaintiff had a euthymic
mood and affect, cooperative behavior, intact attention, fair judgment and
insight, logical and goal-directed thought processes, and no hallucinations or
delusions. Id. He pointed out that Plaintiff had not received mental health
treatment from July 2013 through September 2015, but that his symptoms
quickly improved after treatment and medication were restarted. Id.
In light of the foregoing, the court finds the ALJ adequately evaluated
Plaintiff’s moderate difficulties in concentration, persistence, or pace and that
substantial evidence supports the RFC assessment.
III.

Conclusion
The court’s function is not to substitute its own judgment for that of the

Commissioner, but to determine whether her decision is supported as a
matter of fact and law. Based on the foregoing, the undersigned affirms the
Commissioner’s decision.

32

IT IS SO ORDERED.

May 16, 2018
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

33