THOMAS M. DiGiROLAMO, Magistrate Judge.
Plaintiff Sandra Lynn Smith 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 her applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 14) and Defendant's Motion for Summary Judgment (ECF No. 17).
Plaintiff was born in 1971, has a high-school education, and previously worked as a receptionist, unit secretary, pharmacy technician, and cashier. R. at 110, 752. Plaintiff filed applications for DIB and SSI on September 29, 2003 (with a protective filing date of July 23, 2003), alleging disability beginning on October 1, 2001, due to fibromyalgia, cervical junctional disc disease, and chronic fatigue syndrome. R. at 97-100, 118, 680-81. The Commissioner denied Plaintiff's applications initially and again on reconsideration, so Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. at 60-62, 69-77, 682-89. ALJ G.B. Arthur held a hearing on April 13, 2006 (R. at 32-58), and issued an unfavorable decision on February 22, 2007 (R. at 13-30). On December 21, 2007, the Appeals Council denied Plaintiff's request for review. R. at 7-10, 690-94. Plaintiff sought judicial review in this Court. Smith v. Astrue, Civil No. JKS 08-446 (D. Md. filed Feb. 20, 2008). Upon the Commissioner's consent, the Court remanded the case on July 27, 2009. The Appeals Council vacated the ALJ's decision and remanded the case on October 8, 2009. R. at 756-65.
On February 3, 2010, ALJ Arthur held a supplemental hearing at which a vocational expert ("VE") testified, but Plaintiff did not appear because of health reasons. R. at 877-86. The ALJ held a second supplemental hearing where Plaintiff testified on March 30, 2010. R. at 839-76. On April 26, 2010, the ALJ issued a decision finding Plaintiff not disabled from the alleged onset date of disability of October 1, 2001, through the date of the decision. R. at 729-55. On October 11, 2010, Plaintiff filed exceptions to the decision with the Appeals Council (R. at 723-26), which declined to assume jurisdiction on July 12, 2012 (R. at 717-20). The ALJ's decision thus became the final decision of the Commissioner after remand. See 20 C.F.R. §§ 404.984(b)(2), 416.1484(b)(2).
On May 12, 2015, the Appeals Council granted Plaintiff's request for additional time to file a civil action in this Court. R. at 713-15. On June 11, 2015, 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.
R. at 223. "This condition of disordered sleep could potentially cause susceptibility to the effects of sedating medications and may explain her recent involvement in a single car motor vehicle accident." R. at 223.
On March 19, 2004, a state agency medical consultant, Philip Moore, M.D., assessed Plaintiff's physical residual functional capacity ("RFC"). R. at 250-58, 745. Dr. Moore opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten 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 251. Plaintiff occasionally could climb ladders, balance, stoop, kneel, crouch, and crawl. R. at 252. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 253-54. Dr. Moore opined that Plaintiff's alleged symptoms were partially credible. R. at 255.
On January 5, 2005, another state agency consultant, James Johnston, M.D., again assessed Plaintiff's physical RFC. R. at 550-58. Dr. Johnston opined that Plaintiff could (1) lift and/or carry twenty pounds occasionally and ten 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 551. Plaintiff frequently could balance, stoop, kneel, crouch, crawl, and climb ramps and stairs (but only occasionally ladders, ropes, and scaffolds). R. at 552. Plaintiff had no manipulative, visual, communicative, or environmental limitations. R. at 553-54. Dr. Johnston also opined that Plaintiff's symptoms were partially credible. R. at 555.
On October 15, 2004, Plaintiff was referred to Zahir Yousaf, M.D., for persistent daytime fatigue. R. at 559. "Her pain medications were increased earlier this year and [she] was started on Duragesic Patch with significant improvement. However, [Plaintiff] noted significant daytime sleepiness and restless sleep with insomnia." R. at 559.
R. at 559.
On January 30, 2010, Michael Kaiser, Ph.D., a psychologist, completed a "Mental Source Statement of Ability to Do Work-Related Activities (Mental)." R. at 797-98. According to Dr. Kaiser, because Plaintiff "had difficulty following two and three step instructions on the WAIS" (R. at 790-94) and was "too emotionally fragile to make complex work decisions," she had moderate limitations in (1) understanding, remembering, and carrying out complex instructions; and in (2) making judgments on complex work-related decisions. R. at 797.
On February 5, 2010, Gerald Lee, M.D., Ph.D., conducted a consultative musculoskeletal examination of Plaintiff. R. at 780-89. Dr. Lee opined that "[Plaintiff] is able to perform work-related activities such as walking, sitting, hearing, handling objects, speaking, and traveling. She would experience difficulties [with] prolonged walking, prolonged standing, overhead reaching with left, and heavy lifting and carrying." R. at 781. Specifically, Dr. Lee opined that, because of her left shoulder pain, Plaintiff could reach overhead and in all other directions with her left hand only occasionally. R. at 786.
The ALJ reviewed Plaintiff's testimony in his decision:
R. at 747-48; see R. at 844-73.
The VE testified on February 3, 2010, that a hypothetical individual with Plaintiff's same age, education, and work experience with the RFC outlined below in Part III could perform the unskilled, light
On April 26, 2010, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity from the alleged onset date of disability of October 1, 2001; 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) was unable to perform her past relevant work; but (5) could perform other work in the national economy, such as the light jobs of office helper, router, or small-products assembler and the sedentary jobs of addresser, document preparer, or surveillance-system monitor. R. at 734-54. The ALJ thus found that she was not disabled from October 1, 2001, through the date of the decision. R. at 754.
In so finding, the ALJ found that, with regard to concentration, persistence, or pace, "[Plaintiff] has moderate difficulties. . . . Although [Plaintiff] has some difficulty in concentrating, the difficulty is no more than moderate." R. at 751. The ALJ then found that Plaintiff had the RFC
R. at 751-52 (footnotes omitted). The ALJ defined "moderate" "to preclude the attention and concentration required for high-stress work and complex work, but which is not at a level of severity for less stressful work of an unskilled nature involving using common sense while following instructions." R. at 751 n.5. The ALJ also considered Plaintiff's credibility and found that her "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent" with the ALJ's RFC assessment. R. at 749.
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).
If an ALJ finds that a claimant, who has medical evidence of drug addiction or alcoholism, is disabled, the ALJ must then determine whether the addiction or alcoholism is a contributing material factor to the determination of disability. Id. §§ 404.1535(a), 416.935(a). The key factor is whether the ALJ still would find the claimant disabled if the drug or alcohol use stopped. Id. §§ 404.1535(b)(1), 416.935(b)(1). To make this determination, the ALJ evaluates which of the claimant's current physical and mental limitations would remain if the claimant stopped using drugs or alcohol and then determines whether any or all of the remaining limitations would be disabling. Id. §§ 404.1535(b)(2), 416.935(b)(2). If the ALJ determines that the remaining limitations would not be disabling, then the ALJ will find that the drug addiction or alcoholism is a material contributing factor, and a determination of disability is prohibited. Id. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i). The burden to prove that substance abuse is not a contributing factor material to his disability lies with the claimant. Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999).
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 her 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). The court in Mascio concluded that remand was appropriate because it was "left to guess about how the ALJ arrived at his conclusions on [the claimant's] ability to perform relevant functions" because the ALJ had "said nothing about [the claimant's] ability to perform them for a full workday," despite conflicting evidence as to the claimant's RFC that the ALJ did not address. Id. at 637; see Monroe v. Colvin, 826 F.3d 176, 187-88 (4th Cir. 2016) (remanding because ALJ erred in not determining claimant's RFC using function-by-function analysis; ALJ erroneously expressed claimant's RFC first and then concluded that limitations caused by claimant's impairments were consistent with that RFC).
Plaintiff contends that, in assessing her RFC, the ALJ failed to consider adequately her moderate difficulties in maintaining concentration, persistence, or pace, contrary to Mascio. Pl.'s Mem. Supp. Mot. Summ. J. 7-8, ECF No. 14-1. In Mascio, the Fourth Circuit held 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 (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. In other words, "[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).
"The Social Security Administration has promulgated regulations containing `listings of physical and mental impairments which, if met, are conclusive on the issue of disability.' A claimant is entitled to a conclusive presumption that he is impaired if he can show that his condition `meets or equals the listed impairments.'" Radford, 734 F.3d at 291 (citation omitted); see 20 C.F.R. pt. 404, subpt. P, app. 1. In addition to the five-step analysis discussed above in Part IV and outlined in 20 C.F.R. §§ 404.1520 and 416.920, the Commissioner has promulgated additional regulations governing evaluations of the severity of mental impairments. 20 C.F.R. §§ 404.1520a, 416.920a. These regulations require application of a psychiatric review technique at the second and third steps of the five-step framework, Schmidt v. Astrue, 496 F.3d 833, 844 n.4 (7th Cir. 2007), and at each level of administrative review. 20 C.F.R. §§ 404.1520a(a), 416.920a(a). This technique requires the reviewing authority to determine first whether the claimant has a "medically determinable mental impairment." Id. §§ 404.1520a(b)(1), 416.920a(b)(1). If the claimant is found to have such an impairment, then the reviewing authority must "rate the degree of functional limitation resulting from the impairment(s) in accordance with paragraph (c)," id. §§ 404.1520a(b)(2), 416.920a(b)(2), which specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decompensation. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). According to the regulations, if the degree of limitation in each of the first three areas is rated "mild" or better, and no episodes of decompensation are identified, then the reviewing authority generally will conclude that the claimant's mental impairment is not "severe" and will deny benefits. Id. §§ 404.1520a(d)(1), 416.920a(d)(1). If the claimant's mental impairment is severe, then the reviewing authority will first compare the relevant medical findings and the functional limitation ratings to the criteria of listed mental disorders in order to determine whether the impairment meets or is equivalent in severity to any listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). If so, then the claimant will be found to be disabled. If not, the reviewing authority will then assess the claimant's RFC. Id. §§ 404.1520a(d)(3), 416.920a(d)(3).
"The ALJ's decision must show the significant history and medical findings considered and must include a specific finding as to the degree of limitation in each of the four functional areas." Felton-Miller v. Astrue, 459 F. App'x 226, 231 (4th Cir. 2011) (per curiam) (citing 20 C.F.R. §§ 404.1520a(e)(4), 416.920a(e)(4)). With regard to the four functional areas, which correspond to the paragraph B criteria of the listings for mental disorders, "[a]ctivities of daily living include adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for [the claimant's] grooming and hygiene, using telephones and directories, and using a post office." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(1). "In the context of [the claimant's] overall situation, [the Commissioner assesses] the quality of these activities by their independence, appropriateness, effectiveness, and sustainability. [The Commissioner] will determine the extent to which [the claimant is] capable of initiating and participating in activities independent of supervision or direction." Id. Moreover, "[s]ocial functioning refers to [the claimant's] capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals. Social functioning includes the ability to get along with others, such as family members, friends, neighbors, grocery clerks, landlords, or bus drivers." Id. § 12.00(C)(2). Further, "[c]oncentration, persistence, or pace refers to the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." Id. § 12.00(C)(3). "On mental status examinations, concentration is assessed by tasks such as having [the claimant] subtract serial sevens or serial threes from 100. In psychological tests of intelligence or memory, concentration is assessed through tasks requiring short-term memory or through tasks that must be completed within established time limits." Id. Finally, "[e]pisodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace." Id. § 12.00(C)(4). "Episodes of decompensation may be demonstrated by an exacerbation in symptoms or signs that would ordinarily require increased treatment or a less stressful situation (or a combination of the two)." Id. Episodes of decompensation may be inferred from "medical records showing significant alteration in medication; or documentation of the need for a more structured psychological support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and directing household); or other relevant information in the record about the existence, severity, and duration of the episode." Id. "The term repeated episodes of decompensation, each of extended duration in these listings means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks." Id.
Here, the ALJ expressly limited Plaintiff to "low-stress work," or work needing no more than moderate attention, concentration, persistence, and pace for prolonged periods. R. at 751-52. The ALJ also found that Plaintiff had moderate limitations in performing activities within a schedule, maintaining regular attendance, being punctual within customary tolerances, and in completing a normal workday or workweek without an unreasonable number and length of rest periods. R. at 752. Because all these limitations relate to Plaintiff's ability to stay on task, Plaintiff's contention that the Court should remand this case under Mascio is unavailing.
Plaintiff next contends that the ALJ failed to evaluate the opinions of Drs. Kerasidis and Yousaf regarding her daytime somnolence and fatigue. Pl.'s Mem. Supp. Mot. Summ. J. 8-9, ECF No. 14-1. "A diagnosis that a person suffers from a condition or disease does not establish disabling functional limitations," however. Carringer v. Colvin, No. 2:13-CV-00027-MOC, 2014 WL 1281122, at *5 (W.D.N.C. Mar. 27, 2014); see Johnson, 434 F.3d at 658 ("Drowsiness often accompanies the taking of medication, and it should not be viewed as disabling unless the record references serious functional limitations." (quoting Burns v. Barnhart, 312 F.3d 113, 131 (3d Cir. 2002))); Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (per curiam) (indicating that a diagnosis is insufficient to establish disability, as "[t]here must be a showing of related functional loss").
As the Commissioner points out, neither doctor's records indicate the degree or frequency of Plaintiff's somnolence in terms of work-related limitations. Def.'s Mem. Supp. Mot. Summ. J. 10, ECF No. 17-1. In any event, "an ALJ's failure to sufficiently weigh a medical source's opinion can amount to harmless error, such as where the plaintiff otherwise fails to show how a proper weighing of the opinion would have altered his or her RFC . . . ." Williams v. Colvin, No. 1:14CV423, 2015 WL 4878162, at *6 (M.D.N.C. Aug. 14, 2015) (citing Tanner v. Comm'r of Soc. Sec., 602 F. App'x 95, 100-01 (4th Cir. 2015) (per curiam)). Here, the ALJ reviewed Dr. Yousaf's October 2004 examination of Plaintiff (R. at 741) and Dr. Kerasidis's June 2003 report (R. at 740), as well as Plaintiff's January and April 2004 sleep studies (R. at 741). The ALJ further evaluated a treating source's opinion about the side effects of Plaintiff's pain medication causing fatigue, drowsiness, and daytime somnolence. R. at 742. Also, Plaintiff does not dispute the ALJ's evaluation of her testimony regarding the effect of her pain and fatigue on her ability to work. Any error by the ALJ in evaluating the opinions of Drs. Kerasidis and Yousaf regarding her daytime somnolence and fatigue thus was harmless See Wait v. Colvin, Civil Action No. 1:13-1363-TMC, 2014 WL 2979797, at *3 (D.S.C. June 27, 2014). ("[E]ven though the record contains minimal evidence of sleep apnea, and no sleep study or physician opinion regarding resulting functional limitations, the ALJ expressly considered [the claimant's] sleep apnea. . . . [T]he ALJ clearly considered [the claimant's] overall ability to concentrate in assessing her residual functional capacity. The court cannot see how [the claimant] suffered any prejudice from the ALJ's analysis, and, thus, agrees with the Report that any error regarding sleep apnea was harmless."). Plaintiff's contention that remand is warranted in this case because the ALJ failed to consider her somnolence and fatigue as found by Drs. Kerasidis and Yousaf thus is unavailing.
Plaintiff also argues to no avail that the ALJ failed to evaluate properly pertinent evidence of Dr. Lee's opinion that she would have difficulty with reaching overhead with her left arm (R. at 781) and Dr. Kaiser's finding that she had difficulty following two- and three-step instructions (R. at 797). Pl.'s Mem. Supp. Mot. Summ. J. 9-10, ECF No. 14-1. First, in assessing Plaintiff's RFC, the ALJ explicitly considered Dr. Lee's opinion regarding her ability to perform work-related activities, including her difficulty with overhead reaching with her left hand. R. at 752. In any event, even if the ALJ had erred in failing to include a limitation in the RFC assessment to occasional overhead reaching, the error was harmless, as the sedentary job of surveillance-system monitor identified by the VE involves no reaching. See DOT 379.367-010, 1991 WL 673244; see also McClellan v. Comm'r, Soc. Sec. Admin., Civil No. SAG-12-1767, 2013 WL 1703879, at *4 (D. Md. Apr. 18, 2013).
Second, Plaintiff's contention that the ALJ's failure to discuss Dr. Kaiser's finding that she had difficulty following two- and three-step instructions warrants remand is unavailing as well. The burden is on the party attacking an agency's determination to show that prejudice resulted from the error. Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S.Ct. 1696, 1705-06 (2009). "Where harmfulness of the error is not apparent from the circumstances, the party seeking reversal must explain how the error caused harm." McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011). "[R]eversal is not required when the alleged error `clearly had no bearing on the procedure used or the substance of [the] decision reached.'" Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004) (quoting Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 248, 84 S.Ct. 1236, 1245 (1964)). Because Dr. Kaiser found that Plaintiff had difficulty with following two- and three-step instructions, the doctor opined, among other things, that she was moderately limited in understanding, remembering, and carrying out complex instructions. R. at 797. The ALJ's RFC assessment, in turn, limited Plaintiff to unskilled work that is not complex "involving using common sense while following instructions." R. at 751 n.5; see R. at 882. Plaintiff has not demonstrated that the ALJ's failure to address Plaintiff's difficulty with following two- and three-step instructions in the RFC assessment would have altered the administrative result. See Jones v. Astrue, 691 F.3d 730, 735 n.8 (5th Cir. 2012). The ALJ's error, if any, in this regard thus was harmless.
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
