Carr v. Colvin

Filing 24

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on September 18, 2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

9/18/2017

JOHN J. CARR,
CASE NO. 6:16-cv-00010
Plaintiff,
v.

MEMORANDUM OPINION

NANCY A. BERRYHILL, Acting Commissioner
of Social Security,

JUDGE NORMAN K. MOON

Defendant.

This matter is before the Court on the parties’ cross-motions for summary judgment
(dkts. 14 and 16), the Report and Recommendation of United States Magistrate Judge Robert S.
Ballou (dkt. 21, hereinafter “R&R”), and Plaintiff’s Objections to the R&R (dkt. 22, hereinafter
“Objections”). Pursuant to Standing Order 2011-17 and 28 U.S.C. § 636(b)(1)(B), the Court
referred this matter to U.S. Magistrate Judge Ballou for proposed findings of fact and a
recommended disposition. Judge Ballou filed his R&R, advising this Court to deny Plaintiff’s
Motion for Summary Judgment and grant the Commissioner’s Motion for Summary Judgment.
Plaintiff timely filed his Objections, obligating the Court to undertake a de novo review of those
portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1)(B); Farmer v.
McBride, 177 F. App’x 327, 330 (4th Cir. 2006). Because Plaintiff’s Objections lack merit, I will
adopt Judge Ballou’s R&R in full.
I.

Standard of Review

A reviewing court must uphold the factual findings of the ALJ if they are supported by
substantial evidence and were reached through application of the correct legal standard. See 42
U.S.C. §§ 405(g), 1383(c)(3); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). Substantial

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evidence requires more than a mere scintilla, but less than a preponderance, of evidence. Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). A finding is supported by substantial evidence if it is
based on “relevant evidence [that] a reasonable mind might accept as adequate to support a
conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
A reviewing court may not “re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment” for that of the ALJ. Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996) (citation omitted). “Where conflicting evidence allows reasonable minds to
differ as to whether a claimant is disabled, the responsibility for that decision falls on the
Secretary (or the Secretary’s designate, the ALJ).” Id. (quoting Walker v. Bowen, 834 F.2d 635,
640 (7th Cir. 1987)). “Ultimately, it is the duty of the [ALJ] reviewing a case, and not the
responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Thus, even if the court would have made
contrary determinations of fact, it must nonetheless uphold the ALJ’s decision, so long as it is
supported by substantial evidence. See Whiten v. Finch, 437 F.2d 73, 74 (4th Cir. 1971).
II.

Analysis

Because Plaintiff does not object to the R&R’s recitation of the factual background and
claim history in this case, I incorporate that portion of the R&R into this opinion. (See R&R at
2–3). By way of summary, Plaintiff applied for (and was denied) disability insurance benefits
and supplemental security income under the Social Security Act based on his degenerative disc
disease, diabetes, obesity, depression, and anxiety. Administrative Law Judge Brian P. Kilbane
(hereinafter “ALJ”) concluded that Plaintiff maintained the residual work capacity to perform
medium work with certain exceptions; that he retained the ability to perform simple, unskilled
work on a sustained basis in a competitive work environment; and that, while he could not return

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to his previous jobs, he could work at jobs that exist in significant numbers in the national
economy. Therefore, the ALJ concluded that Plaintiff was not disabled.
Plaintiff makes four objections to the R&R, arguing that the ALJ: (1) failed to adequately
considered his mental impairments; (2) gave inadequate weight to the opinion of his treating
physician, Dr. Ivey; (3) improperly conducted the function-by-function part of the Residual
Function Capacity analysis; and (4) insufficiently justified finding that his own statements as to
his disability were not entirely credible. Each is discussed below.
a. Mental Impairments
Plaintiff brings two primary objections specific to the mental impairments analysis. First,
he argues that the ALJ did not adequately account for his ability to sustain concentration,
persistence or pace over an average work day. (Objections at 1). Rather, Plaintiff alleges that the
ALJ impermissibly equated the ability to perform a task with the ability to stay on task. Second,
he argues that, contrary to the conclusions of the R&R, the ALJ did not satisfy the requirements
of SSR 96-8p (S.S.A.), 1996 WL 374184 because the ALJ failed to consider his ability to sustain
work over a normal workday and workweek. (Id.)
Plaintiff relies heavily on Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) for both of
his objections. In particular, Mascio states 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.” Mascio, 780 F.3d at 638. Plaintiff correctly points out
that here, he was adjudicated with moderate limitations as to concentration, persistence and pace,
but that the hypothetical presented to the vocational expert noted only his ability to perform
simple, routine tasks. (R at 27, 61–62).1 Mascio, however, recognized that “the ALJ may find

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The Court uses “R” to refer to the administrative record, which is docket entry number
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that the concentration, persistence, or pace limitation does not affect [the claimant’s] ability to
work, in which case it would have been appropriate to exclude it from the hypothetical tendered
to the vocational expert.” Mascio, 780 F.3d at 632. Courts have interpreted this portion of
Mascio to mean that failing to present concentration, persistence and pace limitations to the
vocational expert is not error so long as the ALJ adequately justifies why those limitations are
not relevant to the hypothetical presented. See, e.g., Del Vecchio v. Colvin, No. 1:14CV116,
2015 WL 5023857, at *6 (W.D.N.C. Aug. 25, 2015); Hutton v. Colvin, No. 2:14-cv-63, 2015
WL 3757204, at *3 (N.D.W. Va. June 16, 2015). Thus, the question before the Court is whether
the ALJ adequately justified why, despite limitations to concentration, persistence and pace,
Plaintiff was still able to perform work in the manner described to the vocational expert.
Judge Ballou addressed this question directly in his R&R, responding to Plaintiff’s
argument that the ALJ “did not account for his difficulty staying on task” and “failed to include
his moderate limitations in concentration, persistence, or pace in the hypothetical to the
vocational expert.” (R&R at 3–4). Judge Ballou made the exact finding required under Mascio,
concluding that “substantial evidence supports the ALJ’s decision that despite Carr’s limitations
in concentration, persistence, or pace, he was capable of performing simple, routine, repetitive
tasks.” (Id. at 8). Judge Ballou then examined the evidence supporting this conclusion in greater
detail, discussing: (1) the opinion of Dr. Jennings; (2) the opinion of Dr. Insinna; (3) Plaintiff’s
responsiveness to limited and conservative treatment; and (4) the substantial degree of ability
evinced by his daily activities. (Id. at 8–10).
Plaintiff, in his objections, largely recycles arguments that were before Judge Ballou. He
states that the opinions of Drs. Jennings and Insinna do not support the R&R’s conclusion and

nine in this case.
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that the ALJ and Judge Ballou failed to account for caveats in his ability to complete daily tasks.
(Objections at 2). Such arguments ask this Court to “reweigh” “conflicting evidence,” which is
not its role. Craig, 76 F.3d at 589. Instead, the Court must determine whether the ALJ’s decision
was supported by “substantial evidence.”
On this question, the Court concurs with Judge Ballou for the reasons stated in his R&R,
and finds that substantial evidence supported the ALJ’s decision that—despite Plaintiff’s
limitations in concentration, persistence, or pace—he was capable of performing simple, routine,
repetitive tasks. As noted by Judge Ballou, this evidence included the opinions of the two
doctors, the Plaintiff’s daily activities, and that he was being treated conservatively. (R&R at 8–
10; R36–39, 74, 75, 101). Thus, Plaintiff’s objection will be overruled.
As to the workweek objection, Mascio found reversible error where “although the ALJ
conclusions that Mascio can perform certain functions, he said nothing about Mascio’s ability to
perform them for a full workday.” Mascio, 780 F.3d at 634. Plaintiff is also correct that some
consideration of the ability to sustain work over an entire work week is required under SSR 968p. The ruling states that “[i]n assessing RFC, the adjudicator must discuss the individual’s
ability to perform sustained work activities in an ordinary work setting on a regular and
continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the individual can perform based on
the evidence available in the case record.” 1996 WL 374184 (SSA), at *7 (July 2, 1996).
Here, although Judge Ballou did not discuss whether the ALJ properly considered
Plaintiff’s ability to sustain work activities over a workweek, since the issue was not raised by
the parties, the ALJ did address this question in his opinion. Unlike the ALJ in Mascio, who
“said nothing about [the claimant’s] ability to perform [tasks] for a full workday,” Mascio, 780

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F.3d at 637, here the ALJ specifically addressed Plaintiff’s ability to conduct tasks over a full
workday, as well as his ability to engage in everyday activities. As part of his RFC analysis, the
ALJ concluded that Plaintiff has the residual functional capacity to “stand/walk with normal
breaks for 6 hours in an 8-hour workday; and sit with normal breaks for 6 hours in an 8-hour
workday.” (R at 28). Moreover, the ALJ further concluded that notwithstanding the mental
limitations of the Plaintiff, “he retains the ability to perform simple, unskilled work [on] a
sustained basis in a competitive work environment.” (Id. (emphasis added)).
The ALJ’s rationale rested on substantial evidence from the record, specifically
addressing evidence of Plaintiff’s mental limitations. The ALJ ultimately reached the
aforementioned conclusion after lengthy narrative discussion and analysis of the evidence on the
record. (See R at 28–40). This analysis discredited the opinion testimony of both Plaintiff and his
treating physician alleging that Plaintiff was only able to sustain work for very limited periods
without breaks. (Id. at 36–40). Instead, the ALJ’s analysis credited the opinions of Drs. Jennings
and Insinna, considered the activities Plaintiff was reportedly able to undertake in his everyday
life, and weighed medical evidence that his mental impairments were stable and responded to
conservative treatment. (Id.)
Again, Plaintiff’s objections implore this Court to reweigh the evidence analyzed by the
ALJ. While there may have been evidence also supporting Plaintiff’s position, such as his selfreported limitations and the opinion of Dr. Ivey, it is not this Court’s role to reweigh that
evidence against the evidence given more weight by the ALJ.
The Court finds that the ALJ adequately discussed Plaintiff’s ability to sustain work
pursuant to SSR 96-8p. It further finds that the ALJ’s conclusion as to this issue was supported

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by substantial evidence. Therefore, the Court concurs with the R&R in granting Defendant’s
motion for summary judgment, and finds Plaintiff’s objection on this point to be without merit.
b. Weight of Treating Physician’s Opinions
Plaintiff objects to the Magistrate Judge’s holding that the ALJ properly concluded that
the opinions of Dr. Ivey should be given little weight. Specifically, he argues that ALJ never
expressly considered and rejected Dr. Ivey’s opinions as to Plaintiff’s need for unscheduled
breaks and absences. Judge Ballou considered this argument in his R&R and concluded that the
ALJ did adequately analyze Dr. Ivey’s opinions regarding breaks and absences. (See R&R at 15–
16). Judge Ballou reasoned that the ALJ gave little weight to these opinions based on
contradictory evidence found in Dr. Ivey’s treatment notes, Carr’s daily activities, and the
medical treatment records as a whole. (Id.)
The Court concurs with Judge Ballou’s assessment that the ALJ’s decision to give little
weight to Dr. Ivey’s opinion was supported by substantial evidence. The ALJ specifically noted
Dr. Ivey’s recommendations regarding breaks and absences, which occurred in November 2012
and May 2014. (R at 34, 46). The ALJ then described why he gave those exact opinions little
weight. (Id. at 40). Specifically, the ALJ reasoned that Dr. Ivey’s opinion was contradicted by
medical evidence showing “lack of joint or back tenderness, full musculoskeletal range of
motion, and unchanged treatment from his exam the same days as the questionnaires.” (Id.) With
regard to the mental impairments that supported Dr. Ivey’s opinion, the ALJ noted that Plaintiff
“showed normal mood, memory, affect, and judgment at his November 2012” visit and that “Dr.
Ivey assessed his bipolar disorder as stable with unchanged treatment” during the May 2014
visit. (Id. at 38). The ALJ concluded that the persistence and limiting effects of Plaintiff’s
symptoms were not entirely credible because “he was treated conservatively with medication . . .

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and was usually assessed with depression or anxiety that were stable.” (Id. at 36, 38). Therefore,
the ALJ’s decision to give little weight to Dr. Ivey’s opinion was supported by substantial
evidence. Thus, Plaintiff’s objection as to this matter is overruled.
c. Residual Functional Capacity Analysis
Plaintiff contends that the R&R “erred in concluding that the ALJ’s RFC [(Residual
Functional Capacity)] analysis meet the standards set by SSR 96-8p.” (Objections at 6).
Specifically, Plaintiff argues that the ALJ erred in not making specific findings regarding
whether Plaintiff’s impairments would cause breaks or absences from work or changes in work
posture. (Id.) Judge Ballou found that the narrative discussion of Plaintiff’s Residual Functional
Capacity met the requirements of SSR 96-8p because it discussed at length Plaintiff’s
impairments, his medical history, testimony and opinion evidence, and reasoned through
conflicts in the evidence. (R&R at 17). See also Taylor v. Astrue, No. 11-cv-32, 2012 WL
294532, at *6 (D. Md. Jan. 31, 2012) (noting that while SSR 96-8p requires an ALJ to consider
the evidence presented on a function-by-function basis, it does not require the ALJ to produce
such a detailed statement in writing, rather a narrative discussion of the claimant’s symptoms and
medical source opinions is sufficient). Judge Ballou remarked that while the ALJ noted
Plaintiff’s impairments, which allegedly forced Plaintiff to lie down and take breaks, the ALJ
ultimately concluded that Plaintiff’s activities were not as limited as alleged based on other
medical and testimonial evidence. (R&R at 17).
The Court again agrees with Judge Ballou’s assessment. Plaintiff is incorrect that the ALJ
did not address Plaintiff’s ability to sustain work. (R at 28). While the ALJ noted that Plaintiff
was reportedly unable to work without significant breaks, he ultimately concluded that the
evidence supporting this allegation lacked credibility. (Id. at 36). The ALJ made this

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determination based on conflicts between Dr. Ivey’s opinions and other medical evidence, as
well as conflicts between Plaintiff’s self-reported limitations and his daily activities. (Id. at 36–
40). Beyond considering the lack of credibility for opinions tending to show Plaintiff’s inability
to sustain work, the ALJ also looked at evidence supporting the conclusion that Plaintiff was able
to work more than reported. This included evidence showing normal medical examinations,
evidence of conservative treatment, evidence of daily activities requiring sustained
concentration, and non-compliance with treatment recommendations for diabetes. (Id.) The ALJ
used this evidence to make specific findings about which activities the Plaintiff could both
engage in and sustain. (Id. at 28). While Plaintiff may disagree with the ALJ’s conclusions, they
were supported by substantial evidence. Therefore, this objection will be overruled.
d. Plaintiff’s Credibility
Finally, Plaintiff objects to the R&R’s conclusion that the ALJ’s credibility findings were
supported by substantial evidence. Plaintiff primarily argues that the daily activities cited by the
ALJ do not actually demonstrate that Plaintiff was able to maintain work activities on a sustained
basis. These activities include cooking, helping in the preparation of his disability forms, paying
bills, and performing other chores. (Objections at 7). Plaintiff argues that the ALJ “cherrypicked” evidence tending to show his ability, while ignoring evidence demonstrating that he was
limited in his ability. (Id. at 7–8). Plaintiff further argues that the ALJ erroneously concluded that
his mental impairments responded well to treatment. (Id. at 8). The R&R concluded that
substantial evidence supported the ALJ’s credibility finding, including medical evidence as to
the severity of Plaintiff’s ailments, his treatment history, and the capability evidenced by his
daily activities. (R&R at 18).
The Court first notes that the ALJ devoted significant discussion to resolving conflicts

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between Plaintiff’s statements and other evidence before them. (R at 36–40). Judge Ballou
likewise overviewed the credibility issues in detail. (R&R at 18–19). Both discussed evidence
which support the conclusion that Plaintiff’s statements were not fully credible. More
specifically, they found that the evidence as to Plaintiff’s daily activities and his medical history
were in conflict with his own statements about the severity of his limitations. (R at 36–39). In
resolving this conflict in the evidence, the ALJ found that Plaintiff’s limitations were not as
severe as reported. (Id. at 36).
Plaintiff’s objections in effect ask this Court to re-examine the evidence and reach a
different conclusion. For instance, Plaintiff contends that the ALJ drew the incorrect inferences
from his daily activities because he did not account for important struggles and limitations
Plaintiff had in completing those activities. Plaintiff essentially argues that the ALJ
mischaracterized the scope and breadth of his activities. However, the Court must give great
deference to the ALJ’s credibility determinations and resolutions of conflicts in the evidence. See
Darvishian v. Geren, 404 F. App’x 822, 831 (4th Cir. 2010); Johnson, 434 F.3d at 653 (citing
Craig, 76 F.3d at 589) (“In reviewing for substantial evidence, we do not undertake to reweigh
conflicting evidence, make credibility determinations, or substitute our judgment for that of the
[ALJ].”) (alteration in original). The Court cannot simply look at the same evidence and reverse
the ALJ on the basis that it could have reached a different result.
Here, as Judge Ballou concluded, the ALJ supported his conclusions with substantial
evidence. He discussed at length Plaintiff’s medical history, and potential conflicts between
Plaintiff’s statement and certain other evidence (such as his daily activities and objective medical
evidence). The ALJ presented a reasoned analysis, supported by the facts, as to why this conflict
caused him to conclude that Plaintiff’s statements were less than fully credible. As a result, this

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objection is overruled.
III.

Conclusion

Judge Ballou correctly concluded that the ALJ’s findings were supported by substantial
evidence, and thus each objection will be overruled for the reasons discussed above. As a result,
Defendant’s motion for summary judgment will be granted, while Plaintiff’s will be denied. An
appropriate Order will issue.
The Clerk of the Court is directed to send a certified copy of this Memorandum Opinion
to all counsel of record and to remove this case from the Court’s active docket.
18th
Entered this ____ day of September, 2017.

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