Strunk v. Colvin
Filing
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MEMORANDUM OPINION AND ORDER adopting the 17 Proposed Findings and Recommendation by Magistrate Judge; denying Claimant's 12 Motion for Judgment on the Pleadings; granting the Commissioner's 13 Motion for Judgment on the Pleadings; affirming the final decision of the Commissioner; dismissing the Complaint; and directing this case removed from the Court's docket. Signed by Judge Thomas E. Johnston on 2/2/2017. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
MARVIN ANTHONY STRUNK,
Plaintiff,
v.
CIVIL ACTION NO. 2:15-cv-16563
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Marvin Strunk’s (“Claimant”) Complaint seeking review of
the decision of then Acting Commissioner of Social Security, Carolyn W. Colvin
(“Commissioner”).1 (ECF No. 2.) By Standing Order entered May 7, 2014, and filed in this case
on December 31, 2015, this action was referred to United States Magistrate Judge R. Clarke
VanDervort for submission of proposed findings and a recommendation (“PF&R”). (ECF No. 4.)
Due to Magistrate Judge VanDervort’s retirement, this case was referred to United States
Magistrate Judge Omar J. Aboulhosn on January 4, 2016, for submission of PF&R. (ECF No. 5.)
Magistrate Judge Aboulhosn filed his PF&R on October 6, 2016, recommending that this Court
affirm the final decision of the Commissioner and dismiss this matter from the Court’s docket.
(See ECF No. 17.)
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Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017, replacing the former
Social Security Commissioner, Carolyn W. Colvin, the original Defendant in this case. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Ms. Berryhill is automatically substituted as the Defendant.
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The Court is not required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation
to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file
timely objections constitutes a waiver of de novo review and Claimant’s right to appeal this Court’s
Order. 28 U.S.C. § 636(b)(1). See also Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989);
United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In addition, this Court need not
conduct a de novo review when a party “makes general and conclusory objections that do not direct
the Court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Objections to the PF&R were originally
due on October 24, 2016, and Claimant filed a timely objection to the PF&R on October 18, 2016.
(ECF No. 18.) The Commissioner submitted her response to Claimant’s objection on October 25,
2016. (ECF No. 19.)
Claimant makes a single objection in his filing.
He claims that Magistrate Judge
Aboulhosn erred by “[f]ailing to adequately address the issue raised by Strunk on appeal – that the
ALJ failed to account for Strunk’s moderate difficulties in concentration, persistence, or pace,
which the ALJ specifically had found to exist . . . .” (ECF No. 18 at 1 (citing ECF No. 17 at 29–
34).) Claimant argues that the ALJ found him to have “moderate difficulties in concentration,
persistence, or pace,” yet did not consider such findings in his residual functional capacity (“RFC”)
limitations.2 (See id. at 2.) Citing Mascio v. Colvin, Claimant avers that because the ALJ neither
While Claimant also asserts that the ALJ failed to consider the state agency psychologist’s opinion regarding
Strunk’s RFC limitations in concentration, persistence, or pace, despite giving that opinion “great weight,” (see ECF
No. 18 at 2), the Court will not discuss this objection in depth because Claimant does not argue that consideration of
this expert opinion in the RFC would lead to a different result. See Guest v. Colvin, No. 1:15CV00776, 2016 WL
4007612, at *6 (M.D.N.C. July 26, 2016) (recognizing that the ALJ’s failure to include the state agency psychological
consultants’ social restrictions in the mental RFC was, at most, harmless error) (citing Fisher v. Bowen, 869 F.2d
1055, 1057 (7th Cir. 1989) (observing that “[n]o principle of administrative law or common sense requires us to
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“include[d] for concentration, persistence, and pace in the hypothetical or . . . explain[ed] in the
RFC assessment why including this limitation was unnecessary,” the ALJ’s RFC assessment and
decision to deny Claimant benefits are “not supported by substantial evidence.” (See ECF No. 18
at 3 (citing 780 F.3d 632, 638 (4th Cir. 2015)).)
The Commissioner’s response presents a two-fold argument.
First, she argues that
Claimant’s current objection is simply a reiteration of the same issue raised in his initial brief and
thus has already been considered by Magistrate Judge Aboulhosn in his PF&R. (See ECF No. 19
at 2–3 (citing ECF No. 17 at 32–33).) Additionally, the Commissioner argues that the ALJ
sufficiently considered Claimant’s moderate limitations in concentration, persistence, or pace in
the RFC assessment “by limiting him to only occasional interaction with coworkers and
supervisors; no tandem tasks; and no interaction with the public, no further limitation was
required.” (Id. at 3–5.) Therefore, the Commissioner concludes that “[b]ecause the ALJ’s RFC
assessment was supported by substantial evidence, the PF&R should be approved and adopted . .
. .” (Id. at 6.)
The Commissioner uses a five-step “sequential evaluation” process to evaluate a disability
claim. See 20 C.F.R. §§ 404.1520(a), 416.920(a)(4). In summary, the evaluation proceeds as
follows:
The ALJ asks at step one whether the claimant has been working; at step two,
whether the claimant’s medical impairments meet the regulations’ severity and
duration requirements; at step three, whether the medical impairments meet or
equal an impairment listed in the regulations; at step four, whether the claimant can
remand a case in quest of a perfect opinion unless there is reason to believe that the remand might lead to a different
result”)). The ALJ here noted the state psychologist’s opinion and stated that it was “well supported by a reasonable
explanation and the available evidence.” (See ECF No. 10-2 at 24.) However, the ALJ made clear that he did not
consider that opinion further because the expert “did not have the same opportunity as the [ALJ] to review the evidence
submitted through [the] date of the hearing or to see and hear the claimant’s testimony.” (Id.) Further, as more fully
discussed herein, the ALJ did, in fact, find limitations consistent with the state agency consultant’s opinion, but then
appropriately did not include them in the RFC.
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perform her past work given the limitations caused by her medical impairments;
and at step five, whether the claimant can perform other work.
Mascio, 780 F.3d at 634. As a result of Claimant’s objection, the question before the Court is
whether mental impairments were properly considered in the RFC discussion located before the
ALJ’s step four determination. (ECF No. 10-2 at 19–24.) In assessing a claimant’s RFC,
adjudicators “‘must first identify the individual’s functional limitations or restrictions and assess
his or her work-related abilities on a function-by-function basis, including the functions’ listed in
the regulations.” See Mascio, 780 F.3d at 636 (citing Social Security Ruling 96–8p, 61 Fed. Reg.
34,474, 34,475 (July 2, 1996)).
The RFC discussion “must include a narrative discussion
describing how the evidence supports each conclusion.” See id. The ALJ may explain in the
RFC assessment that certain mental or physical impairments discussed in step three of the analysis
do not affect the claimant’s work ability, and in that scenario, the adjudicator may properly exclude
them from the hypothetical posed to the vocational expert (“VE”) in step five of the analysis. See
id. at 638.
To comply with the holding of Mascio, an ALJ should either “(1) include[ ] a limitation
for concentration, persistence, and pace in the hypothetical [posed to the VE] or (2) explain[ ] in
the RFC assessment why including this limitation was unnecessary.” Jackson v. Colvin, No. 3:14CV-24834, 2015 WL 5786802, at *5 (S.D. W.Va. Sept. 30, 2015) (citing Mascio, 780 F.3d at 638).
In Jackson, the ALJ “did not explain in any way how Jackson could perform light work while
laboring under moderate mental limitations.” Id. at *3 (“[T]he ALJ’s one-line summary statement
that moderate mental limitations were found, unaccompanied by any explanation of the effect
those mental limitations have on Jackson’s ability to perform light work, does not afford this Court
an opportunity to meaningfully review the ALJ’s decision.” (citation omitted)). The ALJ found
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that the claimant had moderate limitations in his concentration, persistence, or pace, but failed to
discuss in the RFC assessment why those limitations did not affect his ability to work or include
the limitation in the hypothetical. See id. at *4. Therefore, the Court found that the ALJ’s
discussion was deficient and remanded the case for further analysis. See id. at *5.
This Court and others within the Fourth Circuit have “limited Mascio’s holding when the
record supports a claimant’s ability to engage in simple and routine tasks.” See, e.g., Stover v.
Colvin, No. 3:15-CV-06269, 2016 WL 5402762, at *2–3 (S.D. W.Va. Sept. 27, 2016) (citing Ward
v. Colvin, No. 0:15-00975-TMC, 2016 WL 2956376, at *3 (D.S.C. May 23, 2016); Brewer v.
Colvin, No. 7:14-CV-712, 2016 WL 1179224, at *5 (W.D. Va. Mar. 23, 2016)). In Keatley v.
Colvin, this Court analyzed an ALJ’s discussion of a claimant’s limitations related to
concentration, persistence, or pace, and found that the ALJ provided a thorough explanation for
why the claimant’s alleged limitations did not affect her ability to work. See No. 5:15-CV-12290,
2016 WL 4539662, at *5–6 (S.D. W.Va. Aug. 31, 2016). Specifically, the Court quoted the
following section of the ALJ’s decision before concluding that the ALJ was justified in omitting
questions related to the claimant’s mental limitations from the hypothetical posed to the VE:
The [c]laimant is still able to watch television, do laundry, perform household
chores, care for her personal needs, assist her husband with the cooking, use the
vacuum, read, swim, walk to her mailbox, water and ‘dead-head’ her flowers, shop
for groceries and gifts, play Yahtzee, go to the mall, talk on the telephone, receive
visits from family members, attend doctors’ appointments, drive, pay bills, handle
a savings account, and use a checkbook/money orders.
Id. at *6 (noting that this passage provided the Court with a “fulsome explanation” of why the
claimant’s purported limitations in concentration, persistence, or pace did not affect her work
ability). These findings led the ALJ to omit questions regarding the claimant’s mental limitations
from the hypothetical and conclude that the claimant was not precluded from competitive work
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activity. Id. at *5–6 (finding that the ALJ “complied with the requirements of Mascio” and
overruling the claimant’s objection). This is unlike the ALJ’s decision in Stover, where this Court
found that remand was necessary because the ALJ recognized the claimant’s mental limitations
but failed to include a “sufficient explanation as to why Petitioner’s concentration and focus were
not addressed in the hypothetical questioning, especially when linked to [the claimant’s] testimony
to pain experienced during a workweek.” See 2016 WL 5402762, at *2–3 (noting that automatic
remand is not required when an ALJ fails to explain why the hypothetical questions posed to the
VE do not contain specific limitations accounting for the inability to stay on task).
Here, the crux of Claimant’s argument is that the ALJ’s RFC assessment “was [not]
supported by substantial evidence when the ALJ [did] not include any limitations to account for
Strunk’s moderate difficulties in concentration, persistence, or pace . . . .” (ECF No. 18 at 2.)
While the ALJ’s determination first reviewed Claimant’s mental impairments and concluded that
he “has a moderate limitation in ‘concentration, persistence and pace,’” (ECF No. 10-2 at 18), the
ALJ did not include any specific limitations of concentration, persistence, or pace in the RFC or
the hypothetical posed to the VE. (See id. at 19, 25 (“[T]he [ALJ] asked the [VE] whether jobs
exist in the national economy for an individual with the claimant’s age, education, work
experience, and residual functional capacity.”).)
Because no limitation for concentration,
persistence, or pace was included in the hypothetical, the ALJ was required to explain in the RFC
assessment why including this limitation was unnecessary. See Mascio, 780 F.3d at 638; Jackson,
2015 WL 5786802, at *5. The Court finds that, like the ALJ in Keatley, the ALJ here sufficiently
explained why Claimant’s purported limitations did not affect his work ability. The ALJ noted
the following in the RFC discussion:
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[T]he claimant noted in his function report that he can dress, bathe, care for his hair,
feed himself and use the bathroom all unassisted. The claimant takes out the
garbage and mows the grass. The claimant goes outside three to four days a week.
The claimant can ride in a car or walk to get where he needs to go. Mentally, the
claimant is able to pay bills, count change, handle a savings account and use a
checkbook or money order. The claimant noted his ability to handle money has
not changed since his impairments began. The claimant likes to watch television.
The claimant testified he can play with his grandchild. He gets up about six or
seven and plays with his grandkid. His grandchild is about 17 months old.
Sometimes the claimant cooks out with his grandchild on the porch. The claimant
alleged he cannot work but he can do all of the above activities and this undermines
his credibility.
(ECF No. 10-2 at 23.) This type of explanation was absent from the ALJ’s decisions in Jackson
and Stover in which remand was necessary.
In Claimant’s RFC assessment, the ALJ also analyzed an earlier RFC assessment of
Claimant from ten years ago. (See id. at 23–24.) While the prior RFC assessment found that
Claimant’s difficulties in concentration, persistence, or pace affected his work ability, the ALJ
here noted that “[m]uch time has passed since [that] opinion was given,” and that “[s]uch an
opinion is not consistent with the overall medical record or the above [RFC determination].” (Id.
at 23.) After considering the evidence, including the mental impairments discussed in step three,
the ALJ chose to give that prior RFC assessment “little weight.” (See id.) Because the ALJ
explained why Claimant’s purported limitations in concentration, persistence, and pace did not
affect his ability to work as it did not limit his ability to engage in other activities requiring
concentration and focus, the ALJ was not required to include the limitation in the hypothetical
posed to the VE. See Mascio, 780 F.3d at 638. Thus, the Court is able to uphold the ALJ’s
decision that Claimant is not disabled, and remand is not necessary.
Accordingly, the Court ADOPTS the PF&R, (ECF No. 17), DENIES Claimant’s Motion
for Judgment on the Pleadings, (ECF No. 12), and GRANTS the Commissioner’s Motion for
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Judgment on the Pleadings. (ECF No. 13.) Further, the Court AFFIRMS the final decision of
the Commissioner, DISMISSES the Complaint, (ECF No. 2), and DIRECTS the Clerk to remove
this case from the Court’s docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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February 2, 2017
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