Haught v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION: Ordered that the Report and Recommendation 17 is ADOPTED for the reasons more fully stated in the magistrate judges report. The plaintiffs Objections 18 are OVERRULED. The defendants Motion for Summary J udgment 11 is GRANTED, and the plaintiffs Motion for Summary Judgment 9 is DENIED. This Court DENIES and DISMISSES WITH PREJUDICE the plaintiffs Complaint 1 and ORDERS that this matter be STRICKEN from the active docket of this Court. The Court further DIRECTS the Clerk to enter judgment in favor of the defendant. Signed by District Judge John Preston Bailey on 1/31/17. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
JEAN ELAINE HAUGHT,
Plaintiff,
v.

CIVIL ACTION NO. 2:15-CV-99
(BAILEY)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge Robert W. Trumble. [Doc.
17]. Pursuant to this Court’s local rules, this action was referred to Magistrate Judge
Trumble for submission of a proposed report and recommendation (“R&R”). Magistrate
Judge Trumble filed his R&R on September 19, 2016, wherein he recommends that the
plaintiff’s Motion for Summary Judgment be denied, that the defendant’s Motion for
Summary Judgment be granted, that the decision of the Commissioner be affirmed, and
that this case be dismissed with prejudice. On October 3, 2016, the plaintiff timely filed
objections to the R&R. [Doc. 18]. For the reasons set forth below, this Court adopts
Magistrate Judge Trumble’s R&R.
I.

BACKGROUND
On October 1, 2012, the plaintiff filed a Title II application for a Period of Disability

and Disability Insurance Benefits (“DIB”), alleging disability beginning August 20, 2012.
[Doc. 6-5 at 2]. The claim was initially denied on November 14, 2012 [Doc. 6-3 at 10], and
1

again upon reconsideration on January 14, 2013 [Doc. 6-3 at 21]. The plaintiff then filed
a written request for hearing, and later appeared and testified at a hearing on May 7, 2014,
in front of Administrative Law Judge (“ALJ”) Terrence Hugar. [See Doc. 6-2 at 34-64]. On
June 27, 2014, the ALJ entered a decision finding that the plaintiff was not disabled under
sections 216(I) and 223(d) of the Social Security Act. [Doc. 6-2 at 20-29]. In accordance
with the five-step evaluation process described in 20 C.F.R. § 404.1520, the ALJ made the
following findings:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2017.
2. The claimant has not engaged in substantial gainful activity since August 20,
2012, the alleged onset date. (20 C.F.R. § 404.1571 et seq.).
3. The claimant has the following severe impairments: fibromyalgia and depression.
(20 C.F.R. § 404.1520(c)).
4. 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 C.F.R.
Part 404, Subpart P, Appendix 1. (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526).
5. The undersigned finds that the claimant has the residual functional capacity to
perform light work as defined in 20 C.F.R. § 404.1567(b) that: requires no more than
occasional posturals, except no crawling or climbing of ladders, ropes, or scaffolds;
avoids concentrated exposure to fumes, odors, dusts, gases, poor ventilation; is
limited to simple routine and repetitive tasks; requires no production rate pace but
can perform goal oriented work; and involves no more than occasional interaction
with supervisors, coworkers, and the public.
6. The claimant is unable to perform any past relevant work. (20 C.F.R. § 404.1565).
7. The claimant was born on July 30, 1962, and was 50 years old, which is defined
as an individual closely approaching advanced age, on the alleged disability onset
date. (20 C.F.R. § 404.1563).
8. The claimant has at least a high school education and is able to communicate in
English. (20 C.F.R. § 404.1564).
9. Transferability of job skills is not material to the determination of disability
2

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 C.F.R. Part 404, Subpart P, Appendix 2).
10. 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 C.F.R. §§ 404.1569, 404.156(a)).
11. The claimant has not been under a disability, as defined in the Social Security
Act, from August 20, 2012, through the date of this decision. (20 C.F.R. §
404.1520(g)).
[Id.].
On November 12, 2015, the Appeals Council denied the plaintiff’s request for review,
which made the ALJ’s decision the final decision of the Commissioner of Social Security.
[Doc. 6-2 at 2]. On December 22, 2015, the plaintiff filed the instant action pursuant to 42
U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social
Security for denying the plaintiff’s claim for DIB under Title II of the Social Security Act.
[Doc. 1]. The R&R provides a detailed discussion of the plaintiff’s medical history, which
this Court will not rehash and adopts the facts as stated therein. [Doc. 17].
II.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of

any portion of the magistrate judge’s recommendation to which objection is timely made.
As to those portions of a recommendation to which no objection is made, a magistrate
judge’s findings and recommendation will be upheld unless they are “clearly erroneous.”
See Webb v. Califano, 458 F.Supp. 825 (E.D. Cal. 1979). Because the plaintiff filed timely
objections, this Court will undertake a de novo review as to those portions of the report and
recommendation to which objections were made.

3

An ALJ’s findings will be upheld if supported by substantial evidence. See Milburn
Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998). Substantial evidence is that
which a “reasonable mind might accept as adequate to support a conclusion.” Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)). Further, the “possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence.” Sec’y of Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir.
1996) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1996)). The issue is
not whether a claimant is disabled, but whether the ALJ’s finding of disabled or not disabled
is supported by substantial evidence and was reached based upon a correct application
of the relevant law. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011) (citing Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996)).
III.

DISCUSSION
In response to the magistrate judge’s R&R, the plaintiff asserts four objections.

First, the plaintiff claims that the ALJ failed to properly consider fibromyalgia as required
by SSR 12-2p. Second, the plaintiff avers that the decision is based on an error of law
because the ALJ failed to consider all of the evidence of record, especially evidence that
contradicted his findings. Third, the plaintiff argues that the decision is based on an error
of law because the ALJ failed to consider all of the plaintiff’s limitations when formulating
the residual functional capacity (“RFC”) finding and the hypothetical questions to the
vocational expert. Finally, the plaintiff claims that the ALJ erred because he failed to
properly consider the plaintiff’s credibility. This Court notes that each of these points is

4

verbatim from the plaintiff’s Brief in Support of Plaintiff’s Motion for Summary Judgment
[Doc. 10], rather than a direct response to the magistrate judge’s R&R, but nonetheless will
address the objections in the order that they were raised.
A.

The ALJ’s consideration of fibromyalgia was proper under SSR 12-2p.

The plaintiff first claims, as she did in her summary judgment motion, that the ALJ
created a “legal impossibility” by finding fibromyalgia to be a “severe impairment” but also
that the record did not contain the required evidence needed to establish a diagnosis of
fibromyalgia. [Doc. 18 at 2]. She avers that the magistrate judge “missed the point” when
he found that, if the ALJ erred in this regard, the error was harmless, particularly because
of her contention that the ALJ did not discuss all of the relevant evidence. [Id. at 2-3].
It is apparent from the plaintiff’s argument that she did not consider the ALJ’s third
finding in his opinion as a whole. The ultimate finding that the ALJ made was that the
plaintiff “has the following severe impairments: fibromyalgia and depression.” [Doc. 6-2 at
22]. He notes that these impairments cause “more than minimal limitation” in the plaintiff’s
ability to perform basic work activities before going into a more detailed discussion of how
he came to his conclusion. [Id.]. The plaintiff selectively took statements from this detailed
discussion and cited to them out of context, arguing that they created a legal impossibility.
For example, the ALJ did, in fact, state that “the objective requirements needed to establish
[fibromyalgia] are not contained in the evidence.” [Id.]. But later in the same paragraph,
the ALJ noted an alternative means for evaluating fibromyalgia and indicated that, while
even this criteria was not “specifically met in the evidence,” he gave her “the benefit of the
doubt that fibromyalgia is a medically determinable impairment.” [Id. at 22-23]. The ALJ’s
third finding also touched upon the plaintiff’s multitude of complaints and diagnoses
5

evidenced in the record, and concluded that these impairments are not “independently
severe or cause more than minimal limitations in the claimant’s ability to perform basic work
activities.” [Id. at 23]. Importantly, the ALJ stated that independently these impairments
do not cause the plaintiff to have a medically determinable impairment and then went on
to consider the impairments in combination with other impairments in continuing to evaluate
the plaintiff for DIB. [Id.].
In sum, the plaintiff takes issue with selective statements from the ALJ’s analysis,
failing to consider his evaluation as whole and ignoring the reasoning favorable to her
position. This Court agrees with the magistrate judge that any error committed by the ALJ
in reaching his determination that the plaintiff has fibromyalgia and that fibromyalgia is a
severe impairment is harmless because, not only did the ALJ ultimately reach the
conclusion encouraged by the plaintiff, these conclusions did not end the inquiry. Had the
ALJ wholeheartedly agreed that the plaintiff’s fibromyalgia is a medically determinable,
severe impairment, he still would have found the plaintiff not disabled for the reasons
articulated pursuant to the five-step evaluation process, as delineated in the remainder of
the opinion. As such, the plaintiff’s objection is OVERRULED.
B.

The ALJ’s decision sufficiently considered evidence of record.

The plaintiff next argues that the ALJ did not properly consider all of the relevant
evidence and thus that the ALJ’s error was not harmless. [Doc. 18 at 3]. She then
contends that the magistrate judge erred by applying an improper legal standard regarding
an ALJ’s duty to consider and discuss relevant evidence, and that the magistrate judge
incorrectly found that the ALJ sufficiently discussed the relevant medical evidence.

6

1.

The magistrate judge applied the correct legal standard.

The plaintiff states that the magistrate judge’s holding that “if an ALJ states that the
‘whole record was considered, . . . absent evidence to the contrary, we take [him] at [his]
word,’” was incorrect because it enables an ALJ to write a “one sentence decision” stating
that the entire record was considered and finding against a claimant, and deterring an
appeal of the same because, if the ALJ stated “absent evidence to the contrary,” his word
is the final matter and no appeal would ever be successful. [Doc. 18 at 4]. This is not a
proper interpretation of the standard. The standard does not enable an ALJ to act
according to the plaintiff’s concerns. The standard simply means that a reviewing court will
look for an indication that the ALJ considered the entire record and, unless the reviewing
court can find evidence to the contrary, this indication will be affirmed. In other words, if
the ALJ says that he considered the entire record in reaching his decision, and the
reviewing court cannot find anything to suggest that the ALJ did not consider the entire
record in reaching his decision, the fact that the ALJ considered the entire record–i.e. all
of the evidence, both agreeable and conflicting–will be taken as true. Whether evidence
to the contrary exists is a matter for the reviewing court, not for the ALJ to simply declare
unchecked, as the plaintiff interprets the standard. Indeed, the plaintiff’s fears may be
eased as this Court has conducted de novo review of this objectionable portion of the
magistrate judge’s R&R.
The standard applied by the magistrate judge in his R&R is the correct standard.
As noted by the plaintiff’s objection, “[j]udicial review of a final decision regarding disability
benefits under the Social Security Act . . . is limited to determining whether the findings of
the Secretary are supported by substantial evidence and whether the correct law was
7

applied.” Hays, 907 F.2d at 1456. The plaintiff cites to Fourth Circuit cases in which all
relevant evidence and the weight assigned thereto were not sufficiently explained by the
ALJ, but these serve to highlight this Court’s function in ascertaining whether evidence
exists that contradicts the ALJ’s contention that he considered the entire record. What the
standard here boils down to is determining whether the decision reached by the ALJ is
supported by substantial evidence found in the record. Implicit in this standard is that
evidence conflicting with the ALJ’s decision must not outweigh evidence supportive of the
ALJ’s decision. Should this Court determine that an excessive amount of conflicting
evidence exists in the record that the ALJ did not sufficiently address in his opinion,
“evidence to the contrary” exists, and this Court cannot accept the ALJ’s contention that he
considered the entire record. As such, the ALJ’s findings will be upheld if supported by
substantial evidence, which is evidence that a reasonable mind might accept as adequate
to support a conclusion. See Milburn, 138 F.3d at 528; Hays, 907 F.2d at 1456. This
Court’s function is to examine the ALJ’s decision and determine whether substantial
evidence exists in the record to support the same. Analyzing the purported weight given
to the evidence is part of the inquiry.
2.

The magistrate judge properly found that the ALJ considered all relevant
evidence.

The plaintiff avers that the magistrate judge’s finding that the ALJ sufficiently
discussed the relevant medical evidence and his reasons for determining that the plaintiff’s
fibromyalgia constitutes a severe impairment are inconsistent with what the ALJ actually

8

did.1 She highlights the existence of medical records that contradicted the ALJ’s factual
conclusion and that she claims “contained the exact type of evidence required by SSR 122p to establish the diagnosis of fibromyalgia,” in arguing that the ALJ proceeded through
the evaluation process under the impression that the plaintiff’s medical record did not
establish a diagnosis of fibromyalgia. [Doc. 18 at 8-9]. This argument is unpersuasive and
mooted by the fact that the ALJ did, in fact, make a finding that the plaintiff has the severe
impairment of fibromyalgia. [Doc. 6-2 at 22]. Nonetheless, this Court has conducted de
novo review of the evidence of record and finds that the ALJ, in making his findings, did
consider all relevant evidence, and that the magistrate judge properly found the same.
As correctly stated by the magistrate judge, an ALJ is required to consider all of the
relevant medical evidence submitted by a claimant. 20 C.F.R. § 416.920. However, an
ALJ is “not obligated to comment on every piece of evidence presented.” Pumphrey v.
Comm’r of Soc. Sec., 2015 WL 3868354, at *3 (N.D. W.Va. 2015); Reid v. Comm’r of
Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014). Instead, an ALJ’s decision need only
“contain a statement of the case, in understandable language, setting forth a discussion of
the evidence, and stating [his or her] determination and the reason or reasons upon which
it is based.” Id. In other words, an ALJ need only “provide a minimal level of analysis that
enables [a] reviewing court[] to track the ALJ’s reasoning.” McIntire v. Colvin, 2015 WL
401007 (N.D. W.Va. 2015). Therefore, if an ALJ states that the “whole record was
considered, . . . absent evidence to the contrary, we take [him] at [his] word.” Reid, 769

1

The plaintiff also again takes issue with the ALJ’s statement that the objective
requirements needed to establish fibromyalgia are not contained in this evidence, which this Court
has addressed herein.

9

F.3d at 865.
The ALJ begins his discussion of his findings of fact and conclusions of law by
asserting that he gave the entire record “careful consideration.” [Doc. 6-2 at 22]. He again
iterates, and the discussion of his third finding makes clear, that he considered the entirety
of the evidence in making his evaluations. [Id. at 22-23]. The ALJ’s discussion of the
plaintiff’s credibility in particular reflects consideration of the entire record. [Id. at 25-28].
Accordingly, the inquiry becomes whether there exists evidence to suggest that the ALJ did
not actually consider the whole record.
The plaintiff’s objection asserts that, in her initial brief [Doc. 10], she listed numerous
medical records that “not only contradicted the ALJ’s factual conclusion but contained the
exact type of evidence required by SSR 12-2p to establish the diagnosis of fibromyalgia.”
[Doc. 18 at 8]. Again, the plaintiff appears to have overlooked the fact that the ALJ’s third
finding was that “the claimant has . . . fibromyalgia.” [Doc. 6-2 at 22]. As such, the
plaintiff’s argument that the ALJ failed to consider the entire record and thus reached the
incorrect conclusion is undermined by the fact that the evidence cited by the plaintiff
actually supports the conclusion reached by the ALJ in his third finding. Additionally,
though not specifically referred to in the ALJ’s discussion in which he ultimately concluded
that the plaintiff has fibromyalgia, the ALJ’s discussion of the plaintiff’s credibility specifically
cites to the medical records that the plaintiff argues were overlooked entirely. For example,
the ALJ states that “[t]he claimant was diagnosed with fibromyalgia and prescribed
Tramadol and physical therapy (Exhibit 5F and 8F).” [Doc. 6-2 at 26]. In Section (C.)(I.)(b.)
of the plaintiff’s initial brief, referenced by the objection, she cites to a report from Dr.
Kafka’s office in which the plaintiff’s diagnosis remained fibromyalgia. [Doc. 10 at 7]. This
10

report is Exhibit 8F in the administrative record. [Doc. 6-8 at 43-52]. This is the case with
each piece of evidence cited in the plaintiff’s argument that the record contained
voluminous evidence establishing the diagnosis of fibromyalgia.2
Furthermore, as noted by the standard, the ALJ need not comment on every piece
of evidence presented. This appears to be the plaintiff’s chief concern, as reflected by the
fact that the evidence she cites to in the initial brief and again refers to in her objection
consists of the few documents in the record not explicitly cited to by the ALJ in his
discussion of his third finding. Moreover, had the ALJ’s discussion of the plaintiff’s severe
impairment of fibromyalgia specifically referenced these medical records that the plaintiff
claims were ignored, his conclusion that the plaintiff has the severe impairment of
fibromyalgia would have been the same because this evidence supports that conclusion.
As such, the plaintiff has not even presented evidence contradictory to the ALJ’s finding
that the plaintiff has fibromyalgia, let alone evidence that would serve to undermine the
ALJ’s assertion that he considered the entire record in conducting his evaluation. Upon
review of the record, this Court finds that the magistrate judge properly found that the ALJ
considered all of the relevant evidence when he determined that the plaintiff’s fibromyalgia
constitutes a severe impairment, and the plaintiff’s objection is OVERRULED.

2

The plaintiff’s initial brief additionally cites to a Fibromyalgia Test, dated April 20, 2015, for
which the plaintiff received a positive score. [Doc. 10 at 8]. The Appeals Council specifically
rejected consideration of this evidence in its denial of the plaintiff’s request for review of the ALJ’s
decision because that test did not relate to the period of time analyzed by the ALJ. [Doc. 6-2 at 3].
The ALJ’s decision pertained to the time up until the date of his decision–specifically, June 27,
2014. A test conducted almost a year later is of no probative value regarding the plaintiff’s alleged
disability prior to the date of decision because it would have been impossible for the ALJ to take
into consideration at the time he conducted his evaluation. Accordingly, this piece of evidence is
not relevant to this Court’s review.

11

C.

The ALJ sufficiently accounted for the plaintiff’s limitations.

The plaintiff next objects to the magistrate judge’s finding that the ALJ properly
accounted for the plaintiff’s limitations in the RFC because the ALJ and Magistrate Judge
Trumble failed to account for the ability to work on a regular and continuing basis, and
because Magistrate Judge Trumble misapplied the Fourth Circuit’s holding in Mascio v.
Colvin, 780 F.3d 632 (4th Cir. 2015). [Doc. 18 at 9].
The plaintiff argues that the RFC did not account for the variability of the plaintiff’s
condition, and that the RFC provided for a static ability without addressing the
unpredictability of fibromyalgia. The plaintiff avers that neither the ALJ nor the magistrate
judge addressed her ability to work “on a regular and continuing basis.” [Doc. 18 at 9].
After quoting Social Security Ruling 96-8p, the plaintiff makes almost word-for-word the
same argument as she did in her initial brief [Doc. 10 at 10-11], that the RFC failed to
account for the variability of the plaintiff’s condition, which is inconsistent with her
testimony, SSR 12-2p, and the medical evidence, and that the ALJ failed to account for all
of the plaintiff’s physical and mental limitations in the RFC. [Doc. 18 at 9-11].
Social Security Rule 96-8p provides that an RFC “is an administrative assessment
of the extent to which an individual’s medically determinable impairment(s), including any
related symptoms, such as pain, may cause physical or mental limitations or restrictions
that may affect [her] capacity to do work-related physical and mental abilities.” SSR 96-8p.
It is what an individual can do despite her limitations or restrictions–her maximum
remaining ability to do sustained work activities in an ordinary work setting on a regular and
continuing basis, a discussion of which must be included in the RFC assessment. Id. In

12

order for a vocational expert’s opinion to be relevant or helpful to the RFC assessment, “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 [the plaintiff’s]
impairments.” Walker v. Bowen, 889 F.2d 47, 50-51 (4th Cir. 1989) (internal citations
omitted). The ALJ is afforded great latitude in posing hypothetical questions and need only
pose those that are based on substantial evidence and accurately reflect the plaintiff’s
limitations. Farnsworth v. Astrue, 604 F.Supp.2d 828, 852-853 (N.D. W.Va. 2009).3 If
the plaintiff suffers from a severe impairment that causes physical or mental limitations,
then the hypothetical question must properly illustrate those limitations. See Mascio v.
Colvin, 780 F.3d 632, 637-638 (4th Cir. 2015). The ALJ need not set out the plaintiff’s
non-severe impairments, though the ALJ must still consider these non-severe impairments
when determining the plaintiff’s RFC. Farnsworth, 604 F.Supp.2d at 858; see also Wolfe
v. Colvin, 2015 WL 401013 (N.D. W.Va. 2015).
Here, after the vocational expert described the plaintiff’s past work as “a sedentary,
skilled position, [Specific Vocational Preparation] level five,” the ALJ asked him to assume
a hypothetical individual with that job who is “limited to work at the light exertional level,
except the work is with occasional posturals, except no crawling or climbing of ladders,
ropes, or scaffolds.” [Doc. 6-2 at 56]. The ALJ’s next hypothetical added the additional
limitation that “the individual must have no concentrated exposure to fumes, odors, dusts,
gases, and poor ventilation.” [Id. at 57]. The ALJ’s third hypothetical added the added the
additional limitation that “the individual must be limited to simple, routine and repetitive
3

Citing Koonce v. Apfel, 1999 WL 7864 (4th Cir. 1999); Copeland v. Bowen, 861 F.2d 536
(9th Cir. 1988).

13

tasks . . . not able to perform at a production rate pace, but can perform goal-oriented
work.” [Id. at 58]. The fourth hypothetical added the additional limitation that “the work
must entail no more than occasional interaction with supervisors, coworkers, and the
public.” [Id.].
The plaintiff argues that these questions do not account for the variability of
fibromyalgia; however, as correctly noted by Magistrate Judge Trumble’s R&R, “variability”
is not considered its own limitation in this context. [Doc. 17 at 39]. Notably, the RFC that
resulted from the ALJ’s analysis, including the vocational expert’s guidance, reflects the
most the plaintiff is capable of despite her limitations. In other words, the RFC is concerned
with the plaintiff’s “good days”–that which the plaintiff is capable of on a bad day (i.e. the
least she is capable of despite her limitations) is not a consideration pursuant to RFC
analysis. The RFC need not address the fact that the plaintiff’s abilities may vary from day
to day depending on her symptoms as that is not its purpose.4
The plaintiff argues that the ALJ also failed to account for her memory and
concentration deficits. In so doing, the plaintiff avers that the magistrate judge’s application
of the holding in Mascio was erroneous. She notes the Fourth Circuit’s holding 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,”5 and
avers that the ALJ failed to include his finding that the plaintiff “had moderate limitation in

4

It worth noting that the letters from Dr. Nelson and the plaintiff’s former employer cited by
the plaintiff in her variability argument were not relevant to the ALJ’s RFC analysis, and her own
testimony that she cites was considered not entirely credible, which this Court addresses herein.
5

Mascio, 780 F.3d at 638 (internal citations omitted).

14

concentration, persistence, or pace” in the RFC finding. The plaintiff takes issue with the
ALJ’s use of “boilerplate phrases” and the magistrate judge’s conclusion that, unlike in
Mascio, the ALJ explained why the plaintiff’s limitation in memory and concentration would
not affect her ability to work. [Id. at 11].
In Mascio, the Court held, inter alia, that, because the ALJ gave no explanation as
to why the claimant’s indicated moderate limitation in concentration, persistence, or pace
did not translate into a limitation in the RFC, remand was necessary. Mascio, 780 F.3d at
638. The Court also took issue with an ALJ’s use of boilerplate language derived from a
Social Security Administration template because it undermines the ALJ’s directive to
“determine the extent to which [the claimant’s] alleged functional limitations and restrictions
due to pain or other symptoms can reasonably be [used] to decide how [the claimant’s]
symptoms affect [her] ability to work.” Id. at 639 (citing 20 C.F.R. § 416.929(a)). The
Fourth Circuit’s opinion noted that:
[T]he ALJ may find 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.
Id. Accordingly, as has previously been explained by this Court, “the Fourth Circuit was
concerned that the ALJ did not explain why [the claimant’s] moderate limitation in
concentration, persistence, or pace at step three did not translate into a limitation in [the
claimant’s RFC].

The Fourth Circuit noted, however, that the ALJ may find that

concentration, persistence, or pace limitation would 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. In Mascio, however, the ALJ gave no explanation

15

whatsoever.” Hutton v. Colvin, 2015 WL 3757204, at *3 (N.D. W.Va. 2015) (emphasis
added).
The plaintiff’s objection focuses mainly on the magistrate judge’s statement that “the
ALJ found that Plaintiff ‘does have some limitation in memory [and] concentration’ but that
the evidence supports her ability to perform simple, routine and repetitive tasks. However,
unlike in Mascio, the ALJ explained why Plaintiff’s limitation in memory and concentration
would not affect her ability to work” [Doc. 17 at 41]. The plaintiff argues that these
sentences conflict with one another, asserting that the ALJ limited the plaintiff to a certain
class of jobs because of her memory and concentration issues but did not properly include
these limitations in the RFC. This assertion is too narrow and does not consider the RFC
as a whole. The ALJ found that the plaintiff “has the residual capacity to perform light work
as defined in 20 C.F.R. § 404.1567(b) . . ..” [Doc. 6-2 at 24]. Following an analysis of the
plaintiff’s medical records regarding her fibromyalgia and of her credibility, the ALJ found
that “the totality of the evidence supports [the plaintiff’s] ability to perform the limited range
of light exertional work activity prescribed above [as defined in 20 C.F.R. § 404.1567(b)],
which fully accommodates her symptoms, including any fatigue.” [Id. at 26-27]. The ALJ
then turned to the plaintiff’s mental impairment, detailing the treatment that the plaintiff
received for it. [Id. at 27]. The ALJ then found that “[b]ased on the evidence of [the
plaintiff’s] mental impairment . . . she is capable of the limited range of work activity
prescribed above [as defined in 20 C.F.R. § 404.1567(b)].” [Id.].
Thus, it is apparent from the RFC that the plaintiff’s memory and concentration
limitations did not affect the class of jobs the ALJ found to be appropriate for the plaintiff.

16

His conclusion as to her work abilities was the same before and following his assessment
of the plaintiff’s mental impairment, which included his finding that she does have some
limitation in memory and concentration. As such, pursuant to Mascio, the ALJ was under
no obligation to specifically include this limitation in his hypothetical tendered to the
vocational expert. The ALJ did, however, explain in the RFC why he found that her
limitation in memory and concentration would not affect her ability to perform the work he
had already concluded was appropriate. The ALJ’s opinion states that “[t]he objective
evidence supports that her symptoms are generally controlled with medication,” that the
plaintiff “has not had any emergency room visits or hospitalizations for mental issues, and
the record shows no significant difficulty interacting with others,” and that “she reported
activities, such as driving, preparing easy meals, shopping in stores and by computer, and
visiting with grandchildren that support an ability to interact appropriately with others, and
some ability to concentrate and complete tasks.” [Doc. 6-2 at 27]. Thus, the ALJ found
that while “she does have some limitation in memory, concentration and social functioning,
the evidence supports her ability to perform the unskilled, low stress work with limited
interaction as prescribed above [as defined in 20 C.F.R. § 404.1567(b)], which also
accommodates her pain and fatigue.” [Id.]. The ALJ provided three distinct reasons for
why he found that the plaintiff’s limitations in memory and concentration did not affect the
class of jobs he found to be appropriate for her. As such, the ALJ acted in accordance with
Mascio, and the magistrate judge’s findings were proper.
Moreover, the plaintiff’s concern with boilerplate language appears to be confined
to the ALJ’s use of the phrases “simple routine and repetitive tasks,” “no production rate

17

pace,” and “occasional interaction with [others].” [Doc. 18 at 11]. In a footnote, the plaintiff
expresses concern that they did not inform the vocational expert that the plaintiff had
deficiencies of concentration, persistence, and pace. The Fourth Circuit’s concern with
boilerplate language pertained to its use in an actual RFC analysis. Mascio, 780 F.3d at
639. The ALJ’s use of these phrases in the hypothetical tendered to the vocational expert
was not the use of concern to the Fourth Circuit. The plaintiff’s argument is meritless.
Accordingly, this Court finds that the magistrate judge properly found that the ALJ
accounted for all of the plaintiff’s limitations, and the plaintiff’s objection is OVERRULED.
D.

The ALJ properly considered the plaintiff’s credibility.

Finally, the plaintiff argues that the magistrate judge did not address the issue of
credibility the same way as the ALJ, averring that the ALJ’s discussion of the plaintiff’s
credibility was insufficient. She focuses her argument on her assertion that the ALJ failed
to discuss certain parts of the plaintiff’s medical record that contradicted his conclusions,
arguing that the “correct issue here is whether the ALJ is allowed to cherry pick bits and
pieces of an exhibit he feels support his finding while ignoring the majority of an exhibit that
is contrary to his finding.” [Doc. 18 at 12-15].
As articulated by the Fourth Circuit, “the determination of whether a person is
disabled by pain or other symptoms is a two-step process.” Craig v. Chater, 76 F.3d 585,
594 (4th Cir. 1996). First, the ALJ must expressly consider whether the claimant has
demonstrated, through objective medical evidence, that a medical impairment exists that
is capable of causing the degree and type of pain alleged. Id. Notably, objective medical
evidence is, for example, medical records compiled by medical professionals rather than

18

subjective complaints of pain or a condition. Here, after consideration of the evidence that
included a multitude of medical records, the ALJ determined that the plaintiff proved that
she “has medically determinable impairments that could reasonably be expected to cause
some of the symptoms described.” [Doc. 6-2 at 25]. Thus, the ALJ complied with the first
step of the analysis.
The second step, as defined by the Fourth Circuit, is for the ALJ to consider the
credibility of the plaintiff’s subjective allegations of pain in light of the entire record. Craig,
76 F.3d at 595. Social Security Ruling 96-7p6 sets out several factors for an ALJ to use
when assessing the credibility of a claimant’s subjective symptoms and limitations, which
include:
1.

The individual’s daily activities;

2.

The location, duration, frequency, and intensity of the individual’s pain or
other symptoms;

3.

Factors that precipitate and aggravate the symptoms;

4.

The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;

5.

Treatment, other than medication, the individual receives or has received for
relief of pain or other symptoms;

6.

Any measures other than treatment the individual uses or has used to relieve
pain or other symptoms . . .; and

7.

Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.

SSR 96-7p. The plaintiff argues that the ALJ did not include such reasoning in his decision.

6

The Court notes that SSR 96-7p was superseded by SSR 16-3p, effective March 28, 2016.
However, SSR 96-7p was the effective statute at the time of the ALJ’s opinion, and its application
remains pertinent in this case.

19

However, review of the ALJ’s decision indicates that the ALJ did, in fact, utilize and
consider these factors in analyzing the plaintiff’s credibility. Factors, unlike elements, are
a list of considerations that may be made in making a determination; the use of each factor
is not mandatory. As noted by the Court, an ALJ has “no requirement that he state specific
findings as to each factor.” Wolfe v. Colvin, 2015 WL 401013, at *4 (N.D. W.Va. 2015).
However, the ALJ’s decision “must contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave to
the individual’s statements and the reasons for that weight.” SSR 96-7p. Because the ALJ
has the opportunity to observe the demeanor of the plaintiff, the ALJ’s observations
concerning the plaintiff’s credibility are given great weight. Shively v. Heckler, 739 F.2d
987, 989 (4th Cir. 1984). If the ALJ meets his basic duty of explanation, then “an ALJ’s
credibility determination [will be reversed] only if the claimant can show [that] it was
‘patently wrong.’” Sencindiver v. Astrue, 2010 WL 446174, at *33 (N.D. W.Va. 2010)
(quoting Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000)).
The ALJ found that the plaintiff’s “statements concerning the intensity, persistence,
and limiting effects of these symptoms are not entirely credible” for the reasons he
elaborated upon throughout his opinion. [Doc. 6-2 at 25]. The ALJ’s articulated factors that
undermine her credibility include (1) that the plaintiff’s primary care physician released her
back to work, and that no other treating physician said she was unable to work, at which
time she quit her job without attempting to resume her duties after expressing that she got
angry and stressed out due to work; (2) that the plaintiff did not comply with many of the
treatments recommended to her, including prescription medication, which she stopped
20

taking without doctor approval; and (3) the list of the plaintiff’s activities, which did not
appear significantly limited. [Id.]. The ALJ also explained specific evidence from her
medical record that undermined her credibility, including her noncompliance with the
treatment recommendations of many different physicians and that several medical reports
indicated symptoms that were not as severe as the plaintiff claimed them to be. [Id. at 26].
Throughout his explanation, the ALJ addressed the weight accorded to the opinions of the
various medical professionals who had assessed the plaintiff. [Id. at 27-28].
Ultimately, the ALJ opined that the plaintiff’s “allegations as to the intensity, duration,
and limiting effects of fibromyalgia are not entirely credible when viewed with the record as
a whole.” [Id. at 26]. He reasoned that because “[n]o treating source has opined that the
claimant is permanently unable to work, and examinations do not support her allegations
of limitation;” because “she has been non-compliant with treatment options, and despite
stopping her medication on her own, she has not been hospitalized for her impairment,
which suggests her pain and limitation are not as severe as she alleges;” and because “she
has reported improvement in pain with nerve blocks and injections, she is able to ambulate
without an assistive device, and she reports activities that are not significantly limited,” the
totality of the evidence supports that the plaintiff could perform the range of exertional work
activity described. [Id. at 26-27]. The Court finds that this analysis complies with the
requirements of the second step of the disability determination.
In an attempt to show that the ALJ’s credibility determination is wrong, the plaintiff
argues that the ALJ ignored evidence that contradicted his conclusion. [Doc. 18 at 13-15].
Importantly, this Court’s review is to determine whether the ALJ’s findings are supported
by substantial evidence. As explained herein, the Court is concerned with whether the
21

ALJ’s finding that the plaintiff was not disabled as defined by the Social Security Act is
supported by substantial evidence and was reached based upon a correct application of
the relevant law. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011) (citing Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996)). The “possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative agency’s findings from
being supported by substantial evidence.” Sec’y of Labor v. Mutual Mining, Inc., 80 F.3d
110, 113 (4th Cir. 1996) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1996)). As such, the fact that evidence exists that contradicts the ALJ’s ultimate finding
is not fatal if “evidence that a reasonable mind might accept as adequate to support a
conclusion” exists to support the ultimate finding. See Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The plaintiff’s objection reflects a misunderstanding of the ALJ’s opinion. The record
shows that the plaintiff does, in fact, have impairments, and the ALJ acknowledged that the
plaintiff is impaired. However, pursuant to his RFC evaluation, the ALJ found that the
plaintiff’s impairments were not as severe as she alleged and did not cause her to be
disabled as defined by the statute. The evidence that the plaintiff alleges contradicts the
ALJ’s finding was addressed in the ALJ’s opinion. For example, the plaintiff argues that the
ALJ ignored Dr. McCullough’s report. [Doc. 18 at 13]. However, the ALJ stated that “the
opinion of independent psychologist Rod McCullough, M.A., is given little weight” because
of inconsistencies and because it was based on a one-time assessment. [Doc. 6-2 at 28].
The plaintiff also argues that the ALJ ignored evidence that showed that the plaintiff agreed
to medical treatment that was then unsuccessful. [Doc. 18 at 15]. However, the plaintiff’s
argument ignores the evidence highlighted by the ALJ that indicates that the plaintiff
22

summarily refused many treatment recommendations on several occasions, including
physical therapy and pool therapy. [Doc. 6-2 at 25-26].
The plaintiff additionally argues that her Adult Function Report, in its entirety, was
ignored by the ALJ, who “ignored the parts that did not fit that portrayal.” [Doc. 18 at 14].
That the ALJ did not mention each particular aspect of the plaintiff’s limitations does not
attenuate his finding that her daily activities served to undermine her credibility as to the
severity of her symptoms, especially in light of the fact that the information from the Adult
Function Report was not the only reason that the ALJ did not regard the plaintiff as entirely
credible. Taking the ALJ’s opinion as a whole, these omissions do not negate the plethora
of evidence that the ALJ cites in support of his conclusion. The plaintiff’s argument that the
ALJ did not properly consider the plaintiff’s work history is equally as unpersuasive. The
statute does not specifically require the ALJ to consider the plaintiff’s work record in the
way she asserts. Moreover, the letter that the plaintiff claims “resolved this issue once and
for all” [Doc. 18 at 14] was sent to the Appeals Council after the ALJ issued his decision.
[Doc. 6-6 at 61-62]. As such, the ALJ did not take the letter into consideration in issuing
his opinion. The fact that the ALJ’s “speculation” with regard to the reason the plaintiff left
her job is disagreeable to the plaintiff does not cause his opinion to be wrong. In sum, the
plaintiff has pointed to no evidence that is sufficient to undermine the ALJ’s credibility
assessment, nor is any apparent to the Court. The ALJ properly assessed the plaintiff’s
credibility pursuant to the Fourth Circuit’s guidance.
In reviewing the ALJ’s decision and the entirety of the administrative record, it is
apparent to the Court that the ALJ was successful in ensuring that his opinion was thorough
and well-founded in the plaintiff’s medical history. The ALJ provided continual support for
23

his findings with citations to the evidence of record. Review of the record indicates that the
ALJ’s decision is, in fact, supported by substantial evidence that a reasonable mind would
accept as adequate to support his ultimate conclusion. The ALJ was not required to
mention each specific piece of evidence contained in the record, and there is nothing to
suggest that the ALJ did not actually consider the entirety of the record. For all of the
foregoing reasons, this Court finds that the ALJ’s decision is supported by substantial
evidence, and the plaintiff’s objection is OVERRULED.
IV.

CONCLUSION
Upon careful consideration of the above, it is the opinion of this Court that the

Report and Recommendation [Doc. 17] should be, and is, hereby ORDERED ADOPTED
for the reasons more fully stated in the magistrate judge’s report. Further, the plaintiff’s
Objections [Doc. 18] are OVERRULED. Thus, the defendant’s Motion for Summary
Judgment [Doc. 11] is GRANTED, and the plaintiff’s Motion for Summary Judgment [Doc.
9] is DENIED.
Accordingly, this Court hereby DENIES and DISMISSES WITH PREJUDICE the
plaintiff’s Complaint [Doc. 1] and ORDERS that this matter be STRICKEN from the active
docket of this Court. The Court further DIRECTS the Clerk to enter judgment in favor of
the defendant.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.

24

DATED: January 31, 2017.

25