Brown v. Commissioner of Social Security Administration

Filing 32

ORDER adopting Report and Recommendations re 23 Report and Recommendation. Signed by Honorable David C Norton on September 30, 2016.(rweh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
WENDELL JEROME BROWN,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
____________________________________)

No. 6:15-cv-2539-DCN
ORDER

This matter is before the court on United States Magistrate Judge Kevin F.
McDonald’s Report and Recommendation (“R&R”) that this court affirm Acting
Commissioner of Social Security Carolyn Colvin’s (the “Commissioner”) decision
denying plaintiff Wendell Jerome Brown’s (“Brown”) claim for disability insurance
benefits (“DIB”). Brown filed objections to the R&R. For the reasons set forth
below, the court adopts the R&R and affirms the Commissioner’s decision.
I. BACKGROUND1
A.

Procedural History

Brown filed an application for DIB on October 9, 2012, alleging disability
beginning March 12, 2010. The Social Security Administration denied Brown’s
claim initially and on reconsideration. Brown requested a hearing before an
Administrative Law Judge (“ALJ”) and ALJ Thomas G. Henderson held a hearing on
November 5, 2013. The ALJ issued a decision on January 16, 2014, finding that
Brown was not disabled under the Social Security Act. Brown requested Appeals

1

Unless otherwise noted, the following background is drawn from the R&R.
1

Council review of the ALJ’s decision. The Appeals Council declined to review the
decision, rendering the ALJ’s decision the final action of the Commissioner.
On June 25, 2015, Brown filed this action seeking review of the ALJ’s
decision. The magistrate judge issued an R&R on July 13, 2016, recommending that
this court affirm the ALJ’s decision. Brown filed objections to the R&R on August
11, 2016, and the Commissioner responded to Brown’s objections on August 26,
2016. The matter is now ripe for the court’s review.
B.

Medical History

Because Brown’s medical history is not directly at issue here, the court
dispenses with a lengthy recitation thereof and instead notes a few relevant facts.
Brown was born on January 29, 1971, and was 40 years old at the time of his alleged
disability onset date. He communicates in English and has a limited education.
C.

ALJ’s Decision

The ALJ employed the statutorily required five-step sequential evaluation
process to determine whether Brown was disabled between March 12, 2010, and
September 30, 2011, the date Brown was last insured under 20 CFR § 404.1520(g).
At step one, the ALJ determined that Brown had not engaged in substantial gainful
activity during the relevant period. Tr. 25. At step two, the ALJ found that Brown
suffered from the following severe impairments: (1) lumbar degenerative disc
disease and (2) borderline intellectual functioning. Id. At step three, the ALJ
determined that Brown’s impairments did not meet or equal any of the listed
impairments in the Agency’s Listing of Impairments (“the Listings”). Tr. 26; see 20
C.F.R. § 404, Subpt. P, App’x 1. Before reaching the fourth step, the ALJ determined

2

that Brown had the residual functional capacity (“RFC”) to perform sedentary work,
as defined by 20 C.F.R. § 404.1567(a), with certain restrictions. Tr. 27. More
specifically, the ALJ determined that Brown: (1) would need the ability to alternate
between sitting and standing every 30 minutes; (2) was limited to only occasional
postural activities; (3) could never climb ropes, ladders, or scaffolds; (4) should avoid
concentrated exposure to work hazards; and (5) was limited to routine repetitive
tasks. Id. At step four, the ALJ found that Brown was unable to perform his past
relevant work as a groundskeeper, concrete finisher, and lawn care maintenance
worker. Id. at 33. Nevertheless, the ALJ found that given Brown’s age, education,
work experience, and RFC, he was capable of performing other work that exists in
significant numbers in the national economy. Id. at 34. Therefore, the ALJ
concluded that Brown was not disabled. Id.
II. STANDARD OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
§ 636(b)(1). A party’s failure to object is accepted as agreement with the conclusions
of the magistrate judge. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and the
responsibility to make a final determination rests with this court. Mathews v. Weber,
423 U.S. 261, 270–71 (1976).
Judicial review of the Commissioner’s final decision regarding disability
benefits “is limited to determining whether the findings of the [Commissioner] are
supported by substantial evidence and whether the correct law was applied.” Hays v.

3

Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is “more than a
mere scintilla of evidence but may be somewhat less than a preponderance.” Id.
(internal citations omitted). “[I]t is not within the province of a reviewing court to
determine the weight of the evidence, nor is it the court’s function to substitute its
judgment for that of the [Commissioner] if his decision is supported by substantial
evidence.” Id. Where conflicting evidence “allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that decision falls on the [ALJ],”
not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)
(internal citation omitted). However, “[a] factual finding by the ALJ is not binding if
it was reached by means of an improper standard or misapplication of the law.”
Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987)
III. DISCUSSION
Brown states three basic objections to the R&R, arguing that the magistrate
judge erred in failing to find that: (1) that he was intellectually disabled under Listing
12.05(c); (2) the ALJ improperly weighed certain medical opinions in determining his
RFC; and (3) the ALJ erred in failing to ask the impartial vocational expert (“VE”)
certain hypothetical questions at the hearing. The court will address each objection in
turn.
A.

Listing 12.05(c)

Brown argues that the ALJ erred in failing to find that he was disabled under
Listing 12.05(c). Pl.’s Objection 1–2. The Commissioner argues that the ALJ
properly determined that Brown was not disabled under Listing 12.05(c) because

4

Brown failed to prove the requisite deficits in adaptive behavior to qualify as disabled
under Listing 12.05(c). Def.’s Reply 2.
The Fourth Circuit has explained that Listing 12.05(c) establishes a threepronged test for evaluating a claim of intellectual disability. Hancock v. Astrue, 667
F.3d 470, 473 (4th Cir. 2012). The first prong—which is at issue in this case2—
“requires a showing of ‘deficits in adaptive functioning initially manifested during the
developmental period; i.e., [] evidence [that] demonstrates or supports onset of the
impairment before age 22.’” Id. (quoting Listing 12.05). The second and third
prongs require a claimant to show “‘[a] valid verbal, performance, or full scale IQ of
60 through 70,’ [] as well as ‘a physical or other mental impairment imposing an
additional and significant work-related limitation of function,’” respectively. Id.
(quoting Listing 12.05(c)). In evaluating a claimant’s deficits in adaptive functioning,
courts have looked to “areas such as communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.” Jackson v. Astrue, 467 F. App’x
214, 218 (4th Cir. 2012); Seabrook v. Colvin, No. 6:14-cv-2475, 2016 WL 2956966,
at *6 (D.S.C. May 17, 2016), report and recommendation adopted, 2016 WL 2939632
(D.S.C. May 20, 2016); Williams v. Colvin, 2014 WL 3828224, at *11 (E.D. Va.
Aug. 4, 2014). Assessing a claimant’s adaptive functioning is a “fact-specific inquiry
with few bright line rules.” Richardson v. Colvin, No. 8:12-cv-03507, 2014 WL

2

There appears to be little debate that the ALJ erred in evaluating the second
prong, which requires a “valid verbal, performance, or full scale IQ of 60 through
70.” R&R at 14. However, this error is harmless to the extent the ALJ correctly
found that Brown failed to establish the first prong of the test.
5

793069, at *11 (D.S.C. Feb. 25, 2014) (citing Salmons v. Astrue, 2012 WL 1884485,
at *5 (W.D.N.C. May 23, 2012)).
The ALJ determined that Brown did not suffer from any significant deficits in
adaptive functioning based on prior work at semi-skilled jobs, his ability to drive,
prepare simple meals and shop, his ability to read and perform simple math, and the
absence of any reference to borderline intellectual functioning in his treating
physicians’ records. Tr. 26. Caselaw supports the ALJ’s reliance on such evidence.
Courts have recognized that a claimant’s performance of a semi-skilled job is
inconsistent with a finding of deficits in adaptive functioning. See Hancock, 667 F.3d
at 476 (noting claimant’s previous work at semi-skilled jobs in upholding ALJ’s
finding on adaptive functioning); Sims v. Colvin, No. 6:12-cv-3332-DCN, 2014 WL
793065, at *11 (D.S.C. Feb. 24, 2014) (“The ALJ reasonably considered several
factors, including . . . her work history including semi-skilled work, in determining
that she did not manifest the requisite deficit in adaptive functioning.”). A claimant’s
ability to care for his or herself and perform simple tasks such as driving, shopping,
and preparing simple meals also suggests the claimant possesses sufficient adaptive
functioning. Hancock, 667 F.3d at 476 (noting claimant’s ability to perform various
tasks, in affirming ALJ’s conclusion that had no deficits in adaptive functioning);
Sims v. Colvin, No. 0:14-cv-1663, 2015 WL 5525096, at *3 (D.S.C. Sept. 17, 2015)
(recognizing claimant’s ability to obtain driver’s license as evidence supporting
determination that the claimant had no deficits in adaptive functioning). Literacy and
the ability to perform simple math are also factors to consider. Heaton v. Colvin, No.
0:15-cv-1150, 2016 WL 5109191, at *6 (D.S.C. Apr. 21, 2016), report and

6

recommendation adopted, 2016 WL 4993399 (D.S.C. Sept. 19, 2016). Finally, the
absence of any reference to low intellectual functioning in a claimant’s treatment
history suggests that the claimant’s IQ score is not a true measure of his or her
adaptive functioning. Satterwhite v. Colvin, No. 5:14-cv-01152, 2015 WL 5054559,
at *8 (D.S.C. Aug. 25, 2015) (finding that the “ALJ reasonably discredited [] IQ
scores based on substantial contradictory evidence,” including absence of “references
to complaints about or findings of low intellectual functioning” in claimant’s medical
records); see also Richardson, 2014 WL 793069, at *11 (stating that “a claimant's
diagnosis, if there is one, is pertinent” to an adaptive functioning analysis).
Brown does not dispute that this evidence exists,3 but argues that his low IQ
scores, his lack of educational progress, and his testimony that he had trouble reading
and performing simple math all provide evidence of deficits in adaptive functioning.
Pl.’s Objections 2. However, the existence of some evidence in Brown’s favor is not
cause for remand. It is the ALJ’s “duty to find facts and consider the import of
conflicting evidence” in evaluating a claimant’s adaptive functioning. Hancock, 667
F.3d at 476. The court’s role is to simply determine whether the ALJ’s decision is
supported by substantial evidence. Id.; Smith v. Chater, 99 F.3d 635, 638 (4th Cir.

3

In a separate section of his objections, Brown takes issue with the ALJ’s
characterization of certain aspects of his testimony, arguing that he attends church
and prepares meals very rarely, and that it is his daughter who visits him, not the
other way around. Pl’s Objections 6. However, the court has reviewed the hearing
transcript and finds the ALJ’s conclusions to be a reasonable reflection thereof.
Though plaintiff testified that he drove, shopped, and prepared meals infrequently, Tr.
47, 48, 55, it was at least reasonable for the ALJ to find that Brown had the ability to
conduct such activities in assessing his adaptive functioning. As for the ALJ’s
statement that Brown “visits with his daughter”—which was not specifically part of
the adaptive functioning assessment—the court does not read such language to assert
that Brown actually travels to see his daughter.
7

1996) (“We must sustain the ALJ’s decision, even if we disagree with it, provided the
determination is supported by substantial evidence.”). Though the ALJ’s stated that
there was “no evidence” of deficits in adaptive functioning, Tr. 26, this statement
appears to reflect an error in phrasing, rather than an error in the ALJ’s actual
analysis. A full reading of the ALJ’s decision reveals that the ALJ did in fact
consider the evidence Brown highlights,4 but simply found that it was outweighed by
the evidence discussed in the preceding paragraph. See Tr. 26–27 (noting Brown’s
IQ scores, citing to vocational expert report containing more recent IQ test, and
acknowledging Brown’s academic difficulties in conducting Listing 12.05 analysis);
see also id. at 28–30 (evaluating credibility of Brown’s testimony).
The court finds that it was at least reasonable for the ALJ to reach this
conclusion, and therefore, the ALJ’s decision was supported by substantial evidence.
See Craig, 76 F.3d at 589 (recognizing that substantial evidence exists where
“reasonable minds can differ as to whether a claimant is disabled”).

4

Brown is specifically troubled by the ALJ’s decision to discount independent
vocational consultant Joel Leonard’s (“Leonard”) April 2012 report that Brown was
totally disabled, which the ALJ noted was provided after Brown’s date last insured.
Pl.’s Objections 2. Brown argues that such evidence should have been considered
and given weight pursuant to Bird v. Comm’r of Soc. Sec. Admin., which requires
“retrospective consideration of evidence [] when ‘the record is not so persuasive as to
rule out any linkage’ of the final condition of the claimant with his earlier
symptoms.” 699 F.3d 337, 341 (4th Cir. 2012). However, the ALJ quite clearly
considered Leonard’s report. See Tr. 26 (citing to Leonard’s report); Id. at 32
(discussing weight given to Leonard’s report). Bird does not require retrospective
evidence be given any specific weight or require the ALJ to completely ignore the
fact that such evidence was submitted after the date last insured. See King v. Colvin,
2016 WL 4599902, at *8 (E.D. Va. Sept. 2, 2016) (“Neither Bird nor any case cited
by Plaintiff states that an ALJ may not even consider the fact that an opinion was
given after the date last insured when determining weight.”).
8

B.

Weighing Medical Opinions

Brown also takes issue with the different weights the ALJ attributed to the
medical opinions offered by treating physician Dr. John Johnson (“Johnson”), treating
physician Dr. James K. Aymond (“Aymond”), and state agency physician Dr. Tom
Brown (the “state agency physician”). Pl.’s Objections 3–4. More specifically,
Brown argues that: (1) Johnson’s opinion that Brown was unable to sit, stand, or
walk for more than 10 minutes at a time should have been given controlling weight;
(2) the ALJ should not have given Aymond’s opinion greater weight than Johnson,
because Aymond only saw Brown twice, early in his course of his treatment; and
(3) the ALJ should not have given any weight to the state agency physician’s opinion
because he did not have access to the entire medical record and did not discuss certain
portions of the medical record that were available. Id. The court addresses each
argument in turn.
1.

Controlling Weight

Social Security regulations require the ALJ to consider all of the medical
opinions in a claimant’s case record, as well as the rest of the relevant evidence. 20
C.F.R. § 404.1527(c). Medical opinions are evaluated pursuant to the following nonexclusive list of factors:
(1) whether the physician has examined the applicant, (2) the treatment
relationship between the physician and the applicant, (3) the
supportability of the physician’s opinion, (4) the consistency of the
opinion with the record, and (5) whether the physician is a specialist.
Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). A treating physician’s
opinion on the nature and severity of a claimant’s impairment will be given
controlling weight if it “is well supported by medically acceptable clinical and
9

laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” Craig,76 F.3d at 590 (emphasis and alteration in
original) (quoting 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2)). The ALJ must give
specific reasons for the weight given to a treating physician’s medical opinion. See
SSR 96-2p, 1996 WL 374188 (July 2, 1996).
The ALJ determined that Johnson’s opinion was inconsistent with the weight
of the evidence, particularly the findings of Dr. Blake Dennis (“Dennis”), who
observed that Brown’s MRI results did not explain his pain and that Brown had
normal strength in his lower extremities. Tr. 29, 31. The ALJ also found that
Johnson provided little explanation for his conclusion and did not conduct a
substantial examination. Id. at 31. Brown argues that Johnson’s opinion was entitled
to controlling weight because it was corroborated by medical evidence and there was
no evidence in the record that was inconsistent with Johnson’s findings.5 Pl.’s
Objections 3–4. Brown highlights MRI results showing degenerative changes to
Johnson’s lower lumbar regions and evidence that Brown received injections
recommended by multiple doctors, suffered from a decreased range of motion, and
was diagnosed with certain disk-related conditions. Id.
Again, Brown appears to assume that the existence of evidence in support of
his claim is sufficient to disturb the ALJ’s conclusion. As explained above, this is not
the rule. The court must “uphold the factual findings of the Secretary if they are
supported by substantial evidence and were reached through application of the correct
5

Brown’s objections appear to argue that Johnson’s opinions were consistent
with his own treatment records, Pl.’s Objections 4, but this is simply not the standard.
The ALJ must evaluate the opinions’ consistency with the “case record.” Craig, 76
F.3d at 590 (quoting 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2)).
10

legal standard.” Craig, 76 F.3d at 589. Therefore, as long as there was substantial
evidence in the record that was inconsistent with Johnson’s opinion, that opinion was
not entitled to controlling weight.
Brown does not address the ALJ’s finding that Johnson’s opinion was
inconsistent with Dennis’s evaluation. Brown does not even challenge the ALJ’s
assertion that Johnson did not explain his conclusion; he simply argues that the
treatment records provide enough explanation. Pl.’s Objections 4. The record reveals
that Dennis reviewed Brown’s lumbar MRI results in December 2011 and found
“minimal if any abnormality” and “[c]ertainly no abnormality that would explain his
pain.” Tr. 310. Considering it was Johnson who referred Brown to Dennis after
becoming concerned that Brown’s condition was deteriorating, Tr. 305
(recommending updated MRI and follow-up with the surgeons), Dennis’s evaluation
would seem particularly significant in evaluating Johnson’s opinion.
Moreover, while Johnson certainly saw Brown with some frequency and
duration, the court finds that the ALJ was reasonable in concluding that Johnson did
not conduct an extensive examination.6 The treatment records from Brown’s initial
visit with Johnson show that Johnson reviewed Brown’s medical history and recorded
Brown’s subjective account of his symptoms. Tr. 302. But the record does not
disclose any detailed “examination,” and instead states that Brown’s “examination is
essentially unchanged from that noted by Dr. Donald Johnson.” Id. Johnson’s
subsequent treatment records contain similar notations. Id. at 303–05. Most of the

6

Though the ALJ uses the phrase “real examination,” the court again finds
this phrasing somewhat imprecise and does not adopt it in an effort to avoid any
suggestion that Johnson’s treatment of Brown was somehow deficient.
11

observations in Johnson’s records that deal with Brown’s symptoms are derived from
Brown’s own subjective reports. A treating physician’s opinion may be discounted
when it is “based largely upon the claimant's self-reported symptoms.” Mastro v.
Apfel, 270 F.3d 171, 178 (4th Cir. 2001). Thus, the court finds that the ALJ properly
discounted Johnson’s opinion to the extent it was supported by his examination of
Brown.
The court also finds no error in the ALJ’s observation that Johnson did not
provide any explanation of his conclusions. Tr. 31, 347. Courts have observed that
“[f]orm reports in which a physician’s obligation is only to check a box or fill in a
blank are weak evidence at best.” Foskey v. Colvin, 2014 WL 1903340, at *8 (E.D.
Va. Apr. 30, 2014) (quoting Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993)); see
also Ward v. Chater, 924 F. Supp. 53, 56 (W.D. Va. 1996) (discounting treating
physician’s opinion where the physician’s “notes [did] not confirm his conclusion
that plaintiff can lift only 10 pounds occasionally, and he offered no explanation for
that finding”).
Based on these weaknesses in Johnson’s opinion, the court finds that the
ALJ’s decision to discount that opinion was supported by substantial evidence.
2.

Weighing Johnson Against Aymond

Brown also argues that the ALJ should not have given greater weight to
Aymond’s opinion that Brown could perform sedentary work than he gave to
Johnson’s opinion that Brown could only sit, stand, or walk for up to ten minutes
each. Pl.’s Objections 4. Brown argues that this assessment was in error because

12

Aymond only saw him twice, with the last visit occurring in May 2010, before he
began treatment with Johnson. Id.
As discussed above, the treatment relationship between the physician and the
claimant is a legitimate factor to consider when assigning weight to the physician’s
opinion. Johnson, 434 F.3d at 654. However, it is only one factor in a non-exclusive
list that also includes: “[1] whether the physician has examined the applicant, [2] the
supportability of the physician’s opinion, [3] the consistency of the opinion with the
record, and [4] whether the physician is a specialist.” Id. For the reasons outlined in
the preceding section, certain of these other factors—particularly, the “supportability”
of the opinion and the opinion’s consistency with the record—undermine Johnson’s
opinion.
Therefore, the court cannot conclude that the ALJ erred in given Aymond’s
opinion greater weight than Johnson’s.
3.

Dr. Brown’s Opinion

Brown next argues that the ALJ should not have given any weight to the state
agency physician’s opinion that Brown could perform light work with certain
restrictions. Pl.’s Objections 4. Brown contends that the state agency physician’s
opinion should be disregarded because the state agency physician did not have access
to Johnson’s opinion, Dr. Ellen Rhame’s (“Rhame”) opinion, and the opinion fails to
account for Johnson’s treatments records that were in Brown’s file at the time. Id.
As an initial matter, a state agency physician’s opinion is not rendered invalid
simply because it is offered prior to other medical opinions. See Geiger v. Astrue,
2013 WL 317564, at *7 (W.D. Va. Jan. 27, 2013) (“The simple fact that those

13

opinions came later in time than the state agency opinions does not mean that they
should be accorded greater weight.”); Thacker v. Astrue, 2011 WL 7154218, at *6
(W.D.N.C. Nov. 28, 2011), report and recommendation adopted, 2012 WL 380052
(W.D.N.C. Feb. 6, 2012) (“The fact that the state agency physician did not have
access to the entire evidentiary record-because the record was incomplete a[t] the
time of the assessment-is inconsequential as the ALJ considered the entire evidentiary
record and substantial evidence supports his determination.”). Thus, the fact that the
state agency physician did not have access to Johnson or Rhame’s opinions makes no
difference.
With respect to Brown’s contention that the state agency physician failed to
consider Johnson’s treatment records, the court first observes that “[f]indings of fact
made by [s]tate agency medical and psychological consultants . . . regarding the
nature and severity of an individual's impairment(s) must be treated as expert opinion
evidence of non-examining sources.” SSR 96-6P. “[A] non-examining physician can
be relied upon when it is consistent with the record.” Smith v. Schweiker, 795 F.2d
343, 346 (4th Cir. 1986). There is no explicit requirement that a non-examining
source account for all evidence in the medical record in explaining their opinion.
Unless a treating physician’s opinion is given controlling weight—which is not the
case here—the ALJ must evaluate all medical opinions based on the examining
relationship, treatment relationship, supportability of the opinion, consistency of the
opinion with the record, specialization of the source, and any other relevant factors.
20 C.F.R. §§ 404.1527, 416.927; Johnson, 434 F.3d at 654. Thus, to the extent

14

Brown argues that the state agency physician’s opinion must be set aside purely
because it failed to address Johnson’s treatment records, his argument fails.7
C.

Hypothetical Questions

Brown argues—without citing any authority—that the ALJ erred in failing to
ask the VE any questions relating to Brown’s intellectual functioning, his use of a
cane, and his alleged need to alternate between siting, standing, and walking every 10
minutes. Pl.’s Objections 5–6. The Commissioner argues that the ALJ’s questioning
of the VE accounted for all limitations that were credibly established by the record.
Def.’s Reply 8.
In Walker v. Bowen, the Fourth Circuit explained the purpose of VE
testimony as follows:
The purpose of bringing in a vocational expert is to assist the ALJ in
determining whether there is work available in the national economy
which [the] particular claimant can perform. In order for a vocational
7

To the extent Brown argues that the state agency physician’s failure to
account for Johnson’s treatment records indicates that the state agency physician’s
opinion is inconsistent with the record as a whole, Brown’s argument is woefully
unspecific. “The Fourth Circuit has held that an objecting party must do so ‘with
sufficient specificity so as reasonably to alert the district court of the true ground for
the objection.’” Rucker v. Colvin, 2016 WL 5231824, at *2 (W.D. Va. Sept. 20,
2016) (quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007), cert
denied, 127 S. Ct. 3032 (2007)). Brown’s argument on this point is contained in two
sentences which state that: “[The state agency physician]’s RFC only took into
account Dr. Forrest’s records with no mention of the records of [] Johnson or other
records from Southeastern Spine. It should be noted that the RFC of [the state agency
physician] is dated 12/28/12 and that the treatment records of [] Johnson were in the
[Brown]’s file.” Pl.’s Objections 4. This argument does not provide any explanation
for why Brown believes the state agency physician’s opinion is inconsistent with the
record—assuming he believes that in the first place. In any event, the court has
conducted a review of the record and finds that, at the very least, “reasonable minds
could disagree” about whether the state agency physician’s opinion is consistent with
the record. Craig v. Chater, 76 F.3d at 589. Thus, the court finds that the ALJ’s
decision to credit the state agency physician’s opinion was supported by substantial
evidence.
15

expert’s opinion to be relevant or helpful, it must be based upon a
consideration of all other evidence in the record, [] and it must be in
response to proper hypothetical questions which fairly set out all of
claimant’s impairments.
889 F.2d 47, 50 (4th Cir. 1989). “Nevertheless, while questions posed to the
vocational expert must fairly set out all of claimant's impairments, the questions need
only reflect those impairments that are supported by the record.” Naylor v. Astrue,
693 F. Supp. 2d 544, 566 (S.D.W. Va. 2010); Blake v. Colvin, No. 0:13-cv-00276DCN, 2014 WL 4955663, at *5 (D.S.C. Sept. 29, 2014).
Here, the ALJ found that Brown was capable of performing sedentary work,
so long as that work was limited to “simple routine repetitive tasks” and subject to
certain other restrictions that are not at issue here. Tr. 27. The ALJ explained that
this task restriction was added to Brown’s RFC to account for his “history of
borderline intellectual functioning,” id. at 33, and incorporated this restriction into his
hypothetical questioning of the VE. Id. at 63–65. Courts have found such similar
questioning sufficient to account for a claimant’s borderline intellectual functioning.
Fisher v. Barnhart, 181 F. App’x 359, 364 (4th Cir. 2006) (approving of hypothetical
question where “ALJ told the expert to assume [the claimant] ‘[could not] perform
complex tasks’”); Howard v. Massanari, 255 F.3d 577, 582 (8th Cir.2001) (“We find
that [a hypothetical question] describing [the claimant] as capable of doing simple
work adequately accounts for the finding of borderline intellectual functioning”).
However, as the R&R observed, the Fourth Circuit recently held that a
hypothetical restriction to simple, routine, and repetitive tasks does not account for a
claimant’s difficulties in concentration, persistence, or pace. Mascio v. Colvin, 780
F.3d 632, 638 (4th Cir. 2015). The Mascio court explained that a hypothetical
16

restriction to simple, routine, and repetitive tasks may nevertheless account for a
claimant’s borderline intellectual functioning, if the ALJ explains why the claimant’s
concentration, persistence, and pace limitations do not affect the claimant’s ability to
work. Id. Here, the ALJ found that Brown suffered from “moderate deficiencies in
concentration, persistence, or pace,” Tr. 27, but later addressed these deficiencies in
connection with his RFC assessment, explaining that Brown “has not encountered
more than mild to moderate restrictions in his activities of daily living, social
functioning, and concentration, persistence or pace, nor has he experienced repeated
episodes of decompression.” Id. at 33. Taking theses “mild to moderate restrictions”
into account, alongside Brown’s ability to obtain a driver’s license and perform at
various semi-skilled jobs, the ALJ determined that imposing a simple, routine, and
repetitive task restriction was appropriate. Id. The ALJ’s analysis demonstrates a
consideration of the magnitude of Brown’s mental impairments—including his
deficiencies in concentration, persistence, and pace—and an evaluation of the effect
such impairments have on his ability to work, as evidenced by his work history. The
court agrees with the magistrate judge that this explanation is sufficient to “explain
why [the claimant’s] moderate limitation in concentration, persistence, or pace at step
three does not translate into a limitation in [the claimant’s] residual functional
capacity.” Mascio, 780 F.3d at 638. Therefore, the court finds no error in the ALJ’s
failure to conduct further hypothetical questioning in connection with Brown’s
borderline intellectual functioning.
Brown also contends that the ALJ erred in failing to ask the VE any questions
regarding Brown’s use of a cane. Pl.’s Objections 6. The reason for this failure is

17

simple—the ALJ determined that there was no evidence in the record that the cane
was medically necessary. Tr. 30 (“As to the claimant’s alleged use of a cane, there is
no mention in the treatment records that a cane was ever prescribed by a treating
physician.”). Because the ALJ was not obligated to pose hypothetical questions
regarding restrictions that lacked evidentiary support, the ALJ was under no
obligation to ask the VE about a cane.8
The same reasoning applies to Brown’s argument that the ALJ improperly
failed to credit his counsel’s hypothetical question to the VE regarding the ability to
stand, sit or walk for only ten minutes at a time. Pl.’s Objections 10. This
hypothetical was derived from Johnson’s opinion, which was discounted for the
reasons described in section III.B.1. above.
Therefore, the court finds the ALJ did not err in his questioning of the VE.
IV. CONCLUSION
Based on the foregoing, the court ADOPTS the magistrate judge’s R&R, and
AFFIRMS the Commissioner’s decision.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 26, 2016
Charleston, South Carolina
8

Brown also failed to raise such an argument in this briefing before the
magistrate judge. This failure is reason enough to deny this objection.
18