McNutt v. Colvin

Filing 17

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 04/10/2017. (Bordwine, Robin)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
JASON S. MCNUTT,
Plaintiff
v.
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant

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Civil Action No. 1:16cv00001
MEMORANDUM OPINION

By: PAMELA MEADE SARGENT
United States Magistrate Judge

I. Background and Standard of Review
Plaintiff, Jason S. McNutt, (“McNutt”), filed this action challenging the final
decision of the Commissioner of Social Security, (“Commissioner”), denying his
claims for disability insurance benefits, (“DIB”), and supplemental security
income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42 U.S.C.A.
§§ 423 and 1381 et seq. (West 2011 & West 2012). Jurisdiction of this court is
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This case is before the
undersigned magistrate judge upon transfer by consent of the parties pursuant to 28
U.S.C. § 636(c)(1). Neither party has requested oral argument; therefore, this case
is ripe for decision.
The court’s review in this case is limited to determining if the factual
findings of the Commissioner are supported by substantial evidence and were
reached through application of the correct legal standards. See Coffman v. Bowen,
1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Berryhill is substituted for Carolyn W. Colvin, the previous Acting Commissioner of
Social Security.
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829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as
“evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642
(4th Cir. 1966). “‘If there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is “substantial evidence.”’” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642).
The record shows that McNutt protectively filed his applications for DIB
and SSI on December 9, 2011, alleging disability as of September 15, 2010, due to
post-traumatic stress disorder, (“PTSD”); left arm, shoulder and bilateral knee
problems; anxiety; panic attacks; depression; and back pain. (Record, (“R.”), at
211-17, 227, 231, 257.) The claims were denied initially and upon reconsideration.
(R. at 113-15, 122-25, 127-32, 134-36.) McNutt then requested a hearing before an
administrative law judge, (“ALJ”). (R. at 137-38.) The ALJ held a hearing on May
29, 2014, at which McNutt was represented by counsel. (R. at 40-69.)
By decision dated July 17, 2014, the ALJ denied McNutt’s claims. (R. at 2035.) The ALJ found that McNutt met the nondisability insured status requirements
of the Act for DIB purposes through December 31, 2015. (R. at 22.) The ALJ
found that McNutt had not engaged in substantial gainful activity since September
15, 2010, the alleged onset date. 2 (R. at 22.) The ALJ found that the medical
evidence established that McNutt had severe impairments, namely mild
sensorineural hearing loss; bilateral chondromalacia patellae; low back issues; back
Therefore, McNutt must show that he was disabled between September 15, 2010, the
alleged onset date, and December 31, 2015, the date last insured, in order to be eligible for DIB
benefits.
2

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and shoulder residuals from a motor vehicle accident; an adjustment disorder with
anxiety; a panic disorder without agoraphobia; and PTSD, but she found that
McNutt did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (R. at 22-23.) The ALJ found that McNutt had the residual functional
capacity to perform simple, repetitive, unskilled, light work 3 that did not require
more than occasional climbing of ramps and stairs, kneeling, crawling, crouching
and stooping; that did not require more than frequent balancing and reaching
overhead with the left upper extremity; that did not require him to work around
hazardous machinery, unprotected heights, climbing of ropes, ladders or scaffolds,
vibrating surfaces or loud background noise; and that did not require more than
occasional interaction with co-workers, supervisors and the public. (R. at 26-27.)
The ALJ found that McNutt was unable to perform his past relevant work. (R. at
33.) Based on McNutt’s age, education, work history and residual functional
capacity and the testimony of a vocational expert, the ALJ found that a significant
number of other jobs existed in the national economy that McNutt could perform,
including jobs as an inspector/grader, a packer and a cleaner. (R. at 34-35.) Thus,
the ALJ concluded that McNutt was not under a disability as defined by the Act,
and was not eligible for DIB or SSI benefits. (R. at 35.) See 20 C.F.R. §§
404.1520(g) 416.920(g) (2016).
After the ALJ issued her decision, McNutt pursued his administrative
appeals, (R. at 13), but the Appeals Council denied his request for review. (R. at 13.) McNutt then filed this action seeking review of the ALJ’s unfavorable decision,
3

Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, he
also can perform sedentary work. See 20 C.F.R. §§ 404.1567(b), 416.967(b) (2016).
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which now stands as the Commissioner’s final decision. See 20 C.F.R. §§ 404.981,
416.1481 (2016). This case is before this court on McNutt’s motion for summary
judgment filed July 14, 2016, and the Commissioner’s motion for summary
judgment filed August 16, 2016.
II. Facts
McNutt was born in 1974, (R. at 44, 211), which classifies him as a
“younger person” under 20 C.F.R. §§ 404.1563(c), 416.963(c). McNutt completed
some college through the military and has an OSHA safety inspection certification.
(R. at 45.) He has past work experience as a veterans affairs service officer, a
railroad conductor, an OSHA safety inspector, and he served in the military in the
infantry as a sergeant. (R. at 45-46, 64-65.) McNutt stated that he received
compensable disability through the Department of Veterans Affairs, (“VA”), for
service-connected injuries to his knees. (R. at 47.) He stated that the compensable
percentage for his bilateral knee condition was 40 percent. (R. at 47.) McNutt also
stated that his PTSD has been determined a compensable disability by the VA. (R.
at 48.) He stated that he received injuries from a motor vehicle accident in 2008.
(R. at 48.) McNutt stated that he could walk up to 15 minutes without interruption
and that he could not sit for more than 10 minutes without interruption due to
anxiety. (R. at 50.)
Robert W. Jackson, a vocational expert, also was present and testified at
McNutt’s hearing. (R. at 63-68.) Jackson was asked to consider a hypothetical
individual of McNutt’s age, education and work history, who would be limited to
simple, repetitive, unskilled light work that did not require more than occasional
climbing of ramps and stairs, kneeling, crawling, crouching and stooping; that did
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not require more than frequent balancing and reaching overhead; that did not
require him to work around hazardous machinery, unprotected heights, climbing of
ropes, ladders, scaffolds, vibrating surfaces or loud background noise; and that did
not require more than occasional interaction with co-workers, supervisors and the
public. (R. at 65-66.) Jackson stated that the individual could not perform
McNutt’s past relevant work, but that he could perform light jobs existing in
significant numbers in the national economy, including those of an
inspector/grader,4 a packer5 and a cleaner. 6 (R. at 66-67.) Jackson was asked to
consider the same individual, but who could stand and walk two hours in an eighthour workday. (R. at 67.) He stated that there would be sedentary 7 jobs available
that such an individual could perform, including jobs as an assembler,8 an

4

Jackson stated that the Dictionary of Occupational Titles, (“DOT”), code for an
inspector/grader at the light level is 789.587-014. (R. at 66.) He stated that there would be more
than 3,000 of these positions in Virginia and more than 125,000 positions in the United States.
(R. at 66.)
5

Jackson stated that the DOT code for a light packer is 920.685-026. (R. at 66.) He
stated that there would be more than 2,700 positions in Virginia and more than 120,000 positions
in the United States. (R. at 66.)
6

Jackson stated that the DOT code for a light cleaner is 323.687-014. (R. at 67.) He
stated that there would be more than 3,700 positions in Virginia and more than 130,000 positions
in the United States. (R. at 67.)
7

Sedentary work involves lifting items weighing up to 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking or standing is
often necessary in carrying out job duties. Jobs are sedentary if walking or standing are required
occasionally and other sedentary criteria are met. See 20 C.F.R. §§ 404.1567(a), 416.967(a)
(2016).
8

Jackson stated that the DOT code for a sedentary assembler is 713.687-018. (R. at 67.)
He stated that there would be more than 800 positions in Virginia and more than 35,000
positions in the United States. (R. at 67.)
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inspector/grader9 and a machine operator. 10 (R. at 67.) Jackson was asked to
consider the same individual, but who could stand for 15 minutes, sit for 10
minutes, walk 50 to 100 feet or for up to 15 minutes and who would be off task 15
to 20 percent of a workday. (R. at 68.) He stated that there would be no jobs
available that such an individual could perform. (R. at 68.)
In rendering his decision, the ALJ reviewed records from Howard S. Leizer,
Ph.D., a state agency psychologist; Dr. Shirish Shahane, M.D., a state agency
physician; Louis Perrott, Ph.D., a state agency psychologist; and Salem Veterans
Affairs Medical Center, (“VAMC”).
The record shows that McNutt received treatment from VAMC from August
2003 through December 2013 for backaches; panic disorder without agoraphobia;
closed clavicle fracture; hypertension; hypercholesterolemia; joint pain; adjustment
disorder with mixed anxiety and depressed mood; and chondromalacia patellae. (R.
at 288-572.) On July 16, 2010, x-rays of McNutt’s right knee were normal. (R. at
362.) On December 6, 2010, an audiology examination showed McNutt’s hearing
acuity to be within normal limits and tinnitus. (R. at 310-12.)
On May 12, 2011, McNutt was voluntarily admitted for increased anxiety,
secondary to stress. (R. at 306-10.) He reported that he recently broke up with his
girlfriend. (R. at 307.) Upon discharge the following day, it was noted that McNutt
9

Jackson stated that the DOT code for an inspector/grader at the sedentary level is
669.687-014. (R. at 67.) He stated that there would be more than 960 positions in Virginia and
more than 48,000 positions in the United States. (R. at 67.)
10

Jackson stated that the DOT code for a sedentary machine operator is 690.685-258. (R.
at 67.) He stated that there would be more than 1,300 positions in Virginia and more than 40,000
positions in the United States. (R. at 67-68.)
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was in a stable mental state and was devoid of any acute psychosis, paranoia,
persecutory ideation and any mood instability. (R. at 308.) He was diagnosed with
an adjustment disorder with anxiety and depressed mood; panic disorder without
agoraphobia; and PTSD. (R. at 307.) His Global Assessment of Functioning score,
(“GAF”), 11 upon admission was assessed at 47,12 and upon discharge, his GAF
score was assessed at 55.13 (R. at 307.) On June 1, 2011, it was noted that McNutt
called requesting a refill on his hydrocodone prescription. (R. at 352.) It was noted
that McNutt had received 201 tablets of hydrocodone since May 9, 2011. (R. at
352.) McNutt was advised that this was in violation of his pain contract and that no
refills would be issued before the allowable time. (R. at 352.)
On June 16, 2011, Dr. Mark B. Detweiler, M.D., M.S., a psychiatrist with
VAMC, saw McNutt for medication management and interpersonal therapy. (R. at
344-46.) McNutt reported that his mood was “better” and that he was trying to find
a job. (R. at 344.) He stated that he was considering going to school for a vocation
that would allow him to be outdoors. (R. at 344.) He denied bilateral knee pain and
was not wearing knee braces. (R. at 345.) Dr. Detweiler reported that McNutt made
good eye contact; he was pleasant and cooperative; his thoughts were logical and
goal-oriented; his thought content was without any suicidal or homicidal ideations,
plan or intent; he did not endorse hallucinosis or behavioral dyscontrol; he was
11

The GAF scale ranges from zero to 100 and “[c]onsider[s] psychological, social, and
occupational functioning on a hypothetical continuum of mental health-illness.” DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS FOURTH EDITION, (“DSM-IV”), 32
(American Psychiatric Association 1994).
12

A GAF score of 41-50 indicates that the individual has “[s]erious symptoms ... OR any
serious impairment in social, occupational, or school functioning....” DSM-IV at 32.
13

A GAF score of 51-60 indicates that the individual has “[m]oderate symptoms... OR
moderate difficulty in social, occupational, or school functioning....” DSM-IV at 32.
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oriented; and his insight and judgment were deemed fair to good. (R. at 345.) Dr.
Detweiler assessed McNutt’s then-current GAF score at 55. (R. at 346.) On August
23, 2011, Dr. Detweiler saw McNutt for medication management and interpersonal
therapy. (R. at 333-35.) McNutt reported that he had returned to work and felt
“great.” (R. at 333.) He stated that he was working for a construction company and
was in a training position for being an “OSHA safety superintendent.” (R. at 333.)
McNutt reported that his anxiety had decreased and denied other symptoms. (R. at
333.) Dr. Detweiler reported that McNutt was suntanned; looked healthy; walked
without a knee brace; was pleasant, cooperative and overly solicitous; his thoughts
were linear, logical and goal-oriented; his thought content without any suicidal or
homicidal ideations, plan or intent; he did not endorse hallucinosis or behavioral
dyscontrol; he was oriented; his insight and judgment were good; and he had
returned to a baseline behavior. (R. at 334.) Dr. Detweiler assessed McNutt’s thencurrent GAF score at 70 14 to 75.15 (R. at 335.)
On September 20, 2011, Dr. Detweiler discussed with McNutt the problems
of him getting clonazepam due to his continually changing address and the “cast of
persons in his environment who may not be totally interested in his welfare.” (R. at
327.) McNutt reported that he lost his construction job. (R. at 327.) He stated that
he continued to look for a job and a permanent place to live and that he had a job
interview scheduled that week. (R. at 327.) Dr. Detweiler assessed McNutt’s thencurrent GAF score at 55. (R. at 328.) On November 1, 2011, McNutt reported that
14

A GAF score of 61-70 indicates “[s]ome mild symptoms ... OR some difficulty in
social, occupational, or school functioning ... but generally functioning pretty well ....” DSM-IV
at 32.
15

A GAF score of 71 to 80 indicates that “[i]f symptoms are present, they are transient
and expectable reactions to psychosocial stressors ...; no more than slight impairment in social,
occupational, or school functioning....” DSM-IV at 32.
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his anxiety symptoms were responding well to medication. (R. at 323.) Dr.
Detweiler noted that McNutt’s affect was euthymic with full range; his thought
processes were linear, logical and goal-oriented; his thought content was without
any suicidal or homicidal ideations, plan or intent, without paranoia, delusions or
compulsions; and his insight and judgment were good. (R. at 323.) McNutt’s thencurrent GAF score was assessed at 65. (R. at 324.)
On January 26, 2012, McNutt reported that he was attempting to get a job on
an American army base in Germany so that he could be near his son. (R. at 464.)
On February 13, 2012, McNutt reported that hydrocodone worked well at
controlling his back pain. (R. at 458.) On February 21, 2012, McNutt reported that
he had been working temporarily doing house remodeling. (R. at 454.) He stated
that he still experienced anxiety attacks, but that they responded well to
clonazepam. (R. at 455.) McNutt stated that he continued to search for work. (R. at
455.) Dr. Detweiler reported that McNutt was pleasant and cooperative; his affect
was dysthymic with full range; his thought processes were linear, logical and goaldirected; his thought content was without suicidal or homicidal ideations, plan or
intent, without any paranoia, delusions or compulsions; and his insight and
judgment were unclear. (R. at 457.) Dr. Detweiler assessed McNutt’s then-current
GAF score at 60 to 65. (R. at 457.)
On March 20, 2012, McNutt reported feeling helpless and powerless due to
being homeless and unemployed. (R. at 434.) He stated that he was actively
searching for employment. (R. at 434.) On April 17, 2012, McNutt reported that
his motor vehicle accident settlement was coming to completion, and he hoped to
be in a position to get vocational rehabilitation or to start a new job. (R. at 419.) He
stated that he hoped to move to Michigan with his father to start a new life and
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career. (R. at 419.) Dr. Detweiler reported that McNutt was pleasant, cooperative
and smiling with only positive aspirations and expectations; his mood was “feeling
better;” his affect was euthymic with full range; his thought processes were linear,
logical and goal-oriented; his thought content was without suicidal or homicidal
ideations, plan or intent; and he had no hallucinosis or behavioral dyscontrol. (R. at
420.) McNutt reported that he had some aversion to driving and fear of cars due to
his motor vehicle accident. (R. at 420.) Dr. Detweiler assessed McNutt’s thencurrent GAF score at 60 to 65. (R. at 421.) On May 11, 2012, McNutt reported that
he was staying with a friend on the friend’s farm and that he performed odd jobs,
including cutting grass with a tractor. (R. at 412.) His mental status examination
was normal, and Dr. Detweiler reported that McNutt was “very stable on merely
clonazepam.” (R. at 414.)
On August 14, 2012, McNutt reported that his mood was “okay.” (R. at
474.) He stated that he was driving more and believed that he was “getting better.”
(R. at 474.) McNutt reported that his anxiety symptoms had decreased and that his
medication was working well. (R. at 475.) Dr. Detweiler reported that McNutt
walked with no evidence of pain; he was tanned; he had good grooming; he made
good eye contact; he showed no anxiety; his mood was good; his affect was
euthymic with full range; and his insight and judgment were good. (R. at 475.)
McNutt voiced no complaints other than financial problems. (R. at 475.) Dr.
Detweiler assessed McNutt’s then-current GAF score at 65 to 70. (R. at 475.) On
October 5, 2012, McNutt expressed frustration after learning that his hearing
involving his motor vehicle accident was postponed. (R. at 479-80.) He stated that
his attorneys told him that he could not go back to work because it would hurt his
case. (R. at 480.) McNutt stated that he wanted a new and challenging career. (R.
at 480.) McNutt stated, “I’m not depressed, I’m just angry.” (R. at 481.) Dr.
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Detweiler reported that McNutt’s affect was dysthymic with mild restriction; he
had futuristic plans regarding a new job and trying to see his son in Germany; and
his insight and judgment were intact. (R. at 481.) Dr. Detweiler assessed McNutt’s
then-current GAF score at 65 to 70. (R. at 481.)
On March 12, 2013, McNutt requested a refill on his oxycodone, stating that
he was being “deployed in [three] hours.” (R. at 501.) On March 19, 2013, McNutt
reported that he had to get a job to prove to the court that he could support himself
and his son. (R. at 494.) McNutt reported that he continued to do jobs when
possible. (R. at 494.) Dr. Detweiler reported that McNutt displayed stress due to
complications from an abscessed tooth; his mood was anxious, and his affect was
anxious with mild to moderate restriction; his insight was fair; and his judgment
was poor, as McNutt got a second clonazepam prescription from another VA
clinic; thus, he was unable to refill his prescription. (R. at 495.) Dr. Detweiler
assessed McNutt’s then-current GAF score at 50 to 55. (R. at 495.) On April 30,
2013, McNutt denied depression stating that he was anxious due to the pending
decision concerning his motor vehicle accident. (R. at 508-10.) He reported that he
did odd jobs when they were available. (R. at 509.) Dr. Detweiler reported that
McNutt’s affect was anxious with mild to moderate restriction; his thoughts were
logical, linear and goal-oriented; and his insight and judgment were fair. (R. at
509-10.) Dr. Detweiler assessed McNutt’s then-current GAF score at 50 to 55. (R.
at 510.)
On July 2, 2013, McNutt presented walking with a cane; his affect was
angry and anxious due to the inability to get any action from his lawyers on his
motor vehicle accident case; his thought processes were linear, logical and goaloriented; and his insight and judgment were fair to good. (R. at 530-32.) McNutt
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reported that he had been power washing houses for two days for 12 hours each
day. (R. at 530.) Dr. Detweiler assessed McNutt’s then-current GAF score at 50 to
55. (R. at 532.) On September 3, 2013, McNutt was “down” as a result of life
difficulties and not being able to see his son; however, he refused anti-depressant
medication. (R. at 534.) On October 28, 2013, McNutt presented to the emergency
department at VAMC, requesting medication refill. (R. at 546.) He complained of
left shoulder pain, bilateral knee pain and lower back pain. (R. at 546.) McNutt
ambulated from the department with a steady gait, and no distress was noted. (R. at
548.) That same day, McNutt saw Dr. Kathryn Quinn Johnson, D.O., a psychiatry
resident at VAMC. (R. at 548-51.) McNutt reported that he was not depressed, and
he denied recent panic attacks or overwhelming anxiety. (R. at 549.) He stated that
his anxiety and stress had decreased. (R. at 549.) He stated that he tried to stay
active on his ranch, but that it was difficult because of the injuries he sustained in a
motor vehicle accident. (R. at 549.) Dr. Johnson reported that McNutt was alert
and oriented; he had good hygiene and grooming; he made good eye contact;
answered questions thoughtfully and appropriately; his speech demonstrated
normal rate, tone and volume; his affect was euthymic; his mood was congruent;
his thoughts were linear, logical and goal-directed; his thought content was
negative for suicidal and homicidal ideations, paranoia, hallucinations,
tangentiality, flight of ideas and grandiosity; his insight, judgment and impulse
control were intact; and his cognition and memory were grossly intact. (R. at 550.)
This assessment was affirmed by supervising psychiatrist, Dr. Rizwan Ali. (R. at
551.)
On December 5, 2013, x-rays of McNutt’s cervical and thoracic spines were
normal. (R. at 559.) X-rays of McNutt’s left and right clavicle showed intact
hardware on the left and no other abnormalities. (R. at 559-60.) On December 11,
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2013, McNutt complained of bilateral knee, left shoulder and back pain. (R. at
571.) A TENS unit and hinged knee braces were prescribed. (R. at 571.) On
December 16, 2013, McNutt reported that the TENS unit, medication and
stretching were helping with his pain. (R. at 570.)
On January 26, 2012, Howard S. Leizer, Ph.D., a state agency psychologist,
completed a Psychiatric Review Technique form, (“PRTF”), indicating that
McNutt had no restrictions in his activities of daily living; had mild difficulties in
maintaining social functioning and in maintaining concentration, persistence or
pace; and that he had experienced no repeated episodes of decompensation of
extended duration. (R. at 73-74.) Leizer noted that McNutt’s impairment was wellcontrolled with medication. (R. at 73.)
On January 26, 2012, Dr. Shirish Shahane, M.D., a state agency physician,
opined that McNutt had the residual functional capacity to perform medium 16
work. (R. at 74-76.) He opined that McNutt could frequently climb ramps and
stairs, balance and stoop and occasionally climb ladders, ropes and scaffolds,
kneel, crouch and crawl. (R. at 75.) Dr. Shahane opined that McNutt would be
limited in his ability to reach overhead with his left upper extremity. (R. at 76.) No
visual or communicative limitations were noted. (R. at 76.) He opined that McNutt
should avoid working around concentrated exposure to hazards, such has
machinery and heights. (R. at 76.)

16

Medium work involves lifting items weighing up to 50 pounds at a time with frequent
lifting or carrying of items weighing up to 25 pounds. If an individual can do medium work, he
also can do sedentary and light work. See 20 C.F.R. §§ 404.1567(c), 416.967(c) (2016).
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On February 7, 2013, Louis Perrott, Ph.D., a state agency psychologist,
completed a PRTF, indicating that McNutt had no restrictions in his activities of
daily living; had mild difficulties in maintaining social functioning and in
maintaining concentration, persistence or pace; and that he had experienced no
repeated episodes of decompensation of extended duration. (R. at 94-95.) Perrott
noted that McNutt’s impairment was well-controlled with medication. (R. at 95.)
On February 11, 2013, Dr. Lewis Singer, M.D., a state agency physician,
opined that McNutt had the residual functional capacity to perform medium work.
(R. at 96-98.) He opined that McNutt could frequently climb ramps and stairs,
balance and stoop and occasionally climb ladders, ropes and scaffolds, kneel,
crouch and crawl. (R. at 97.) Dr. Singer opined that McNutt would be limited in his
ability to reach overhead with his left upper extremity. (R. at 97.) No visual or
communicative limitations were noted. (R. at 98.) He opined that McNutt should
avoid working around concentrated exposure to hazards, such has machinery and
heights. (R. at 98.)
III. Analysis
The Commissioner uses a five-step process in evaluating DIB and SSI
claims. See 20 C.F.R. §§ 404.1520, 416.920 (2016). See also Heckler v. Campbell,
461 U.S. 458, 460-62 (1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).
This process requires the Commissioner to consider, in order, whether a claimant
1) is working; 2) has a severe impairment; 3) has an impairment that meets or
equals the requirements of a listed impairment; 4) can return to his past relevant
work; and 5) if not, whether he can perform other work. See 20 C.F.R. §§
404.1520, 416.920. If the Commissioner finds conclusively that a claimant is or is
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not disabled at any point in this process, review does not proceed to the next step.
See 20 C.F.R. §§ 404.1520(a), 416.920(a) (2016).
Under this analysis, a claimant has the initial burden of showing that he is
unable to return to his past relevant work because of his impairments. Once the
claimant establishes a prima facie case of disability, the burden shifts to the
Commissioner. To satisfy this burden, the Commissioner must then establish that
the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience and impairments, to perform alternative jobs that exist
in the national economy. See 42 U.S.C.A. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B)
(West 2011 & West 2012); McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983); Hall, 658 F.2d at 264-65; Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.
1980).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings.
This court must not weigh the evidence, as this court lacks authority to substitute
its judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained her findings and her rationale in crediting evidence.
See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Thus, it is the ALJ’s responsibility to weigh the evidence, including the
medical evidence, in order to resolve any conflicts which might appear therein.
See Hays, 907 F.2d at 1456; Taylor v. Weinberger, 528 F.2d 1153, 1156 (4th Cir.
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1975). Furthermore, while an ALJ may not reject medical evidence for no reason
or for the wrong reason, see King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980),
an ALJ may, under the regulations, assign no or little weight to a medical opinion,
even one from a treating source, based on the factors set forth at 20 C.F.R. §§
404.1527(c), 416.927(c), if she sufficiently explains her rationale and if the record
supports her findings.
McNutt argues that the substantial evidence does not exist to support the
ALJ’s finding that a significant number of jobs exist that he could perform.
(Memorandum In Support Of Motion For Summary Judgment Or Remand,
(“Plaintiff’s Brief”), at 3-7.) McNutt also argues that the ALJ failed to properly
evaluate his credibility. (Plaintiff’s Brief at 3, 7-9.) In addition, McNutt argues that
his case should be remanded pursuant to sentence six for consideration of
additional evidence. (Plaintiff’s Brief at 3, 9-15.)
McNutt argues that the ALJ erred by posing a hypothetical to the vocational
expert that did not place any restrictions on his “concentration, persistence or
pace.” (Plaintiff’s Brief at 6-7.) Although the ALJ addressed McNutt’s limitations
in terms of social functioning, by limiting him in terms of interactions with the
public and co-workers, McNutt argues the ALJ failed to address the limitations in
terms of McNutt’s “moderate” difficulties with concentration, persistence or pace
or to explain why no limitation was necessary. (Plaintiff’s Brief at 6-7.) McNutt
cites Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) in support of his argument.
In Mascio, the Fourth Circuit held that an ALJ does not generally account
for a claimant’s limitations in concentration, persistence and pace by restricting the
hypothetical question to simple, routine tasks or unskilled work. See Mascio, 780
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F.3d at 638. The court noted that “the ability to perform simple tasks differs from
the ability to stay on task. Only the latter limitation would account for a claimant’s
limitation in concentration, persistence, or pace.” Mascio, 780 F.3d at 638; see also
Sexton v. Colvin, 21 F. Supp. 3d 639, 642-43 (W.D. Va. 2014) (citing Wiederholt
v. Barnhart, 121 F. App’x 833, 839 (10th Cir. 2005) (holding that a limitation to
simple, unskilled work does not necessarily accommodate a person’s difficulty in
concentrating on or persisting in a task, or maintaining the pace required to
complete a task)). In Mascio, the Fourth Circuit found that the ALJ did not explain
why Mascio’s moderate limitation in concentration, persistence or pace did not
translate into a limitation in his residual functional capacity. The court noted,
however, that the ALJ may find that the concentration, persistence or pace
limitation would not affect Mascio’s ability to work, in which case it would have
been appropriate to exclude it from the hypothetical tendered to the vocational
expert. See Mascio, 780 F.3d at 638; see also Hutton v. Colvin, 2015 WL 3757204,
at *3 (N.D. W. Va. June 16, 2015).
Mascio does not broadly dictate that a claimant’s moderate impairment in
concentration, persistence or pace always translates into a limitation in the residual
functional capacity. Rather, Mascio underscores the ALJ’s duty to adequately
review the evidence and explain the decision, especially where, as the ALJ held in
Mascio, a claimant’s concentration, persistence or pace limitation does not affect
the ability to perform simple, unskilled work. The ALJ has the responsibility to
address the evidence of record that supports that conclusion.
In this case, the ALJ found that McNutt suffered from a moderate limitation
in his concentration, persistence and pace, (R. at 26), despite that psychological
evidence before her stated that McNutt suffered from only a mild limitation in his
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concentration, persistence and pace. (R. at 73-74, 94-95.) Furthermore, the ALJ’s
opinion makes no effort to reconcile this finding with her finding that McNutt was
capable of simple, repetitive, unskilled work. That being the case, I find that
McNutt’s argument on this point is persuasive, and I will remand this case to the
Commissioner for further development on this issue.
Based on the above reasoning, I find that substantial evidence does not exist
to support the ALJ’s conclusion that McNutt was not disabled and not entitled to
benefits. An appropriate Order and Judgment will be entered remanding McNutt’s
claims to the Commissioner.
DATED:

April 10, 2017.
/s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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