THOMAS M. DIGIROLAMO, Magistrate Judge.
Plaintiff Kevin Mackie seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3) of a final decision of the Commissioner of Social Security ("Defendant" or the "Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 16) and Defendant's Motion for Summary Judgment (ECF No. 17).
Plaintiff was born in 1959, has a seventh-grade education, and has no past relevant work. R. at 18, 157. On October 24, 2011, Plaintiff filed an application for SSI, alleging disability beginning on September 30, 2004, due to hernia, head tumor, asthma, and seizures. R. at 126-34, 157. The Commissioner denied Plaintiff's application initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 56-73, 76-79, 82-87. On February 27, 2013, ALJ C.J. Sturek held a hearing in Washington, D.C., at which Plaintiff and a vocational expert ("VE") testified. R. at 25-55. At the hearing, Plaintiff amended his alleged onset date of disability to January 26, 2012. R. at 28, 151-52. On April 1, 2003, the ALJ issued a decision finding Plaintiff not disabled since the application date of October 24, 2011. R. at 8-24. Plaintiff sought review of this decision by the Appeals Council, which denied Plaintiff's request for review on June 26, 2014. R. at 1-6. The ALJ's decision thus became the final decision of the Commissioner. See 20 C.F.R. § 416.1481; see also Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 2083 (2000).
On August 15, 2014, Plaintiff filed a complaint in this Court seeking review of the Commissioner's decision. Upon the parties' consent, this case was transferred to a United States Magistrate Judge for final disposition and entry of judgment. The case subsequently was reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully submitted.
The ALJ noted in his decision:
R. at 16-17.
On February 27, 2012, a state agency medical consultant, M. Ahn, M.D., assessed Plaintiff's physical residual functional capacity ("RFC"). R. at 60-61. Dr. Ahn opined that Plaintiff could (1) lift and/or carry 50 pounds occasionally and 25 pounds frequently; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. R. at 60. Because of his history of seizures, Plaintiff occasionally could balance and could stoop, kneel, crouch, crawl, and climb ramps and stairs without limitation (but never climb ladders, ropes, or scaffolds). R. at 60-61. Although he had no manipulative, visual, or communicative limitations, Plaintiff was to avoid all exposure to hazards such as machinery and heights. R. at 61. On May 31, 2012, another state agency consultant, W. Hakkarinen, M.D., expressed the same opinion about Plaintiff's physical RFC. R. at 69-71.
The ALJ reviewed Plaintiff's testimony in his decision:
R. at 15-16; see R. at 29-51.
The VE testified that a hypothetical person with Plaintiff's same age, education, work experience, and the RFC outlined below in Part III could perform the medium, unskilled jobs of packer and hospital cleaner and the light, unskilled jobs of router and counter clerk.
On April 1, 2013, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity since the application date of October 24, 2011; and (2) had an impairment or a combination of impairments considered to be "severe" on the basis of the requirements in the Code of Federal Regulations; but (3) did not have an impairment or a combination of impairments meeting or equaling one of the impairments set forth in 20 C.F.R. pt. 404, subpt. P, app. 1; and (4) did not have any past relevant work; but (5) could perform work in the national economy, such as a packer, hospital cleaner, router, or counter clerk. R. at 13-19. The ALJ thus found that he was not disabled since the application date of October 24, 2011. R. at 20.
In finding that Plaintiff's mental impairments did not meet or medically equal the criteria of Listings 12.04 and 12.09 found in 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04 and 12.09, the ALJ found that, "[w]ith regard to concentration, persistence, or pace, [Plaintiff] has moderate difficulties." R. at 14. The ALJ then found that Plaintiff had the RFC
R. at 14-15.
Regarding Plaintiff's credibility, the ALJ found that his medically determinable "impairments could reasonably be expected to cause the alleged symptoms; however, [his] statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely credible, for the reasons explained in this decision." R. at 17. The ALJ noted
R. at 17-18.
The ALJ gave "significant" weight to the opinions of the state agency medical consultants "because they are deemed experts and highly knowledgeable in the area of disability, and because their opinions are largely consistent with the evidence of record as a whole." R. at 18. The ALJ afforded "little" weight to Dr. Taylor's opinion because "Dr. Taylor did not define [Plaintiff's] functional limitations with any degree of specificity." R. at 18.
The Social Security Act defines a disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is "not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-380 (2003). "If at any step a finding of disability or nondisability can be made, the [Commissioner] will not review the claim further." Thomas, 540 U.S. at 24, 124 S. Ct. at 379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).
First, the Commissioner will consider a claimant's work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see whether the claimant has a "severe" impairment, i.e., an impairment or combination of impairments that significantly limits the claimant's physical or mental ability to do basic work activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
Third, if the claimant has a severe impairment, then the Commissioner will consider the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled, regardless of age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.
Fourth, if the claimant's impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant's RFC to determine the claimant's "ability to meet the physical, mental, sensory, and other requirements" of the claimant's past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). RFC is a measurement of the most a claimant can do despite his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant's RFC, but the Commissioner is responsible for developing the claimant's "complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant's] own medical sources." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant's RFC as determined in step four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to prove that there is other work that the claimant can do, given the claimant's RFC as determined at step four, age, education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012). The Commissioner must prove not only that the claimant's RFC will allow the claimant to make an adjustment to other work, but also that the other work exists in significant numbers in the national economy. See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The Court reviews an ALJ's decision to determine whether the ALJ applied the correct legal standards and whether the factual findings are supported by substantial evidence. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court "is not whether [Plaintiff] is disabled, but whether the ALJ's finding that [Plaintiff] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Id. The Court's review is deferential, as "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion. See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971).
In evaluating the evidence in an appeal of a denial of benefits, the court does "not conduct a de novo review of the evidence," Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986), or undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, "[t]he duty to resolve conflicts in the evidence rests with the ALJ, not with a reviewing court." Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).
Plaintiff contends that the ALJ erroneously assessed his RFC contrary to Social Security Ruling
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (alteration in original) (footnote omitted) (citations omitted). The Fourth Circuit has held, however, that a per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis "is inappropriate given that remand would prove futile in cases where the ALJ does not discuss functions that are `irrelevant or uncontested.'" Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (per curiam)). Rather, remand may be appropriate "where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review." Id. (quoting Cichocki, 729 F.3d at 177). Furthermore, "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.'" Id. at 638 (quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). "[T]he 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." Id. The court in Mascio remanded the case for the ALJ to 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. Id.
Thus, "[p]ursuant to Mascio, once an ALJ has made a step three finding that a claimant suffers from moderate difficulties in concentration, persistence, or pace, the ALJ must either include a corresponding limitation in her RFC assessment, or explain why no such limitation is necessary." Talmo v. Comm'r, Soc. Sec., Civil Case No. ELH-14-2214, 2015 WL 2395108, at *3 (D. Md. May 19, 2015), report and recommendation adopted (D. Md. June 5, 2015). Plaintiff maintains that, although the ALJ determined that he had moderate difficulties with regard to concentration, persistence, or pace, the ALJ failed to include any limitation on his concentration, persistence, or pace in the ALJ's RFC assessment, instead determining that Plaintiff could still remain productive more than 85% of the time despite his limited ability to maintain a pace because of fatigue and shortness of breath (R. at 15, 52-53). Pl.'s Mem. Supp. Mot. Summ. J. 5-6, ECF No. 16-1. According to Plaintiff, remand under Mascio thus is warranted in this case.
Plaintiff's argument is unavailing. The ALJ found that Plaintiff's difficulties in maintaining concentration, persistence, or pace were moderate. R. at 14. The ALJ then found that Plaintiff was "limited in the ability to keep up a pace due to fatigue and shortness of breath" but that he was "able to remain productive more than 85% of an eight-hour day." R. at 15. The ALJ's hypothetical questions to the VE also included a capacity to be productive more than 85% of the time, despite fatigue and shortness of breath affecting the ability to maintain pace. R. at 52-53. Thus, the ALJ in his RFC assessment and hypothetical questions to the VE accounted for Plaintiff's fatigue that limited his ability to maintain pace. Remand under Mascio is not warranted here because the ALJ explained his reason for finding a moderate limitation in maintaining pace and included a corresponding limitation in the RFC assessment. See Helms v. Comm'r, Soc. Sec. Admin., Civil No. SAG-14-3687, 2016 WL 228892, at *3 (D. Md. Jan. 19, 2016) ("The ALJ specifically acknowledged, in the RFC assessment, that [the claimant's] pain would cause occasional limitations in her ability to maintain attendance and complete a normal workday. However, the ALJ was clear in his questioning of the VE that by "occasional," he still found that [the claimant] could persist more than 80% of the time. Because the ALJ explained the reason for his finding of a moderate limitation and imposed a corresponding restriction in the RFC assessment, there is no Mascio violation." (citations omitted)).
Moreover, Plaintiff bears the burden of proving that he is disabled within the meaning of the Social Security Act. English v. Shalala, 10 F.3d 1080, 1082 (4th Cir. 1993). Despite Plaintiff's contention that the ALJ failed to explain his finding that Plaintiff was able to remain productive more than 85% of the time, Plaintiff points to no evidence that his impairments would reduce his productivity by 15%, see Jeffress v. Astrue, No. 3:11-CV-806-HEH, 2012 WL 3866536, at *15 (E.D. Va. Aug. 21, 2012), report and recommendation adopted, No. 3:11CV806-HEH, 2012 WL 3851222 (E.D. Va. Sept. 5, 2012), and "has failed to point to any specific piece of evidence not considered by the Commissioner that might have changed the outcome of his disability claim." Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014); see Stitely v. Colvin, 621 F. App'x 148, 150 (4th Cir. 2015) (per curiam) ("[The claimant] points to no `overlooked' evidence, aside from his own allegations, which the court found not entirely credible, that would substantially aid his case."). The ALJ found Plaintiff's allegations regarding the intensity, persistence, and limiting effects of his symptoms not entirely credible because of the conservative nature of his treatment and the lack of objective findings that would support the severity of his allegations (R. at 17-18). See Stitely, 621 F. App'x at 150-51; Dunn v. Colvin, 607 F. App'x 264, 271-75 (4th Cir. 2015); Parris v. Heckler, 733 F.2d 324, 327 (4th Cir. 1984). Plaintiff's contention in this regard thus is without merit.
In sum, substantial evidence supports the decision of the ALJ, who applied the correct legal standards here. Thus, Defendant's Motion for Summary Judgment is
For the foregoing reasons, Defendant's Motion for Summary Judgment (ECF No. 17) is
