JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Leslie Murphy Fain ("plaintiff' or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 16, 18. Both filed memoranda in support of their respective motions. D.E. 17, 19. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 4 May 2018 Text Ord. For the reasons set forth below, it will be recommended that the Commissioner's motion be granted, plaintiffs motion be denied, and the Commissioner's decision be affirmed.
Plaintiff filed an application for DIB on 12 July 2013, alleging a disability onset date of 22 October 2011. Transcript of Proceedings ("Tr.") 17. The application at issue was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 17. On 12 May 2016, a hearing was held before an administrative law judge ("ALJ"), at which the witnesses were plaintiff, who was represented by counsel; plaintiffs husband; and a vocational expert. Tr. 17; 36-71. The ALJ issued a decision denying plaintiffs claims on 26 August 2016. Tr. 17-30.
Plaintiff timely requested review by the Appeals Council. Tr. 247. On 4 August 2017, the Appeals Council denied the request for review. Tr. 1.
At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981.
The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he 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 the national economy." 42 U.S.C. § 423(d)(2)(A). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (some bracketing original).
Plaintiff was 34 years old on the alleged onset date of disability; 37 years old on the date last insured, which the ALJ found to be 31 December 2014 (Tr. 19 ¶ 1); and 38 years old on the date of the hearing. See, e.g., Tr. 28 ¶ 7. The ALJ found that plaintiff has at least a high school education (Tr. 29 ¶ 8) and past relevant work as a registered nurse (Tr. 28 ¶ 6).
Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity from the date of alleged onset of disability through her date last insured. Tr. 19 ¶ 2. At step two, the ALJ found that through the date last insured plaintiff had the following severe medically determinable impairments: fibromyalgia, chronic fatigue syndrome, chronic pain syndrome, narcolepsy, major depressive disorder, personality disorder, and anxiety disorder. Tr. 19 ¶ 3. At step three, the ALJ found that through the date last insured plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 20 ¶ 4. The ALJ's analysis at step three expressly included consideration of Social Security Ruling 12-2p on evaluation of fibromyalgia. Soc. Sec. Ruling 12-2p, 2012 WL 3104869 (25 July 2012).
The ALJ determined that through the date last insured plaintiff had the RFC to perform a reduced range of light work as follows:
Tr. 24 ¶ 5.
Under 20 C.F.R. § 404.1567(b), light work is defined as work involving "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b). In addition, "the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday . . . [and] [s]itting may occur intermittently during the remaining time." Soc. Sec. Ruling 83-10, 1983 WL 31251, at *6 (1983); see also Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"), app. C §IV, def. of "L-Light Work," 1991 WL 688702; 20 C.F.R. § 404.1567 (providing that light work and the other terms for exertional level as used in the Regulations have the same meaning as in the DOT). Nonetheless, "[a] job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work." Soc. Sec. Ruling 83-10, 1983 WL 31251, at *5.
Based on her determination of plaintiffs RFC, the ALJ found at step four that plaintiff was not able to perform her past relevant work through the date last insured. Tr. 28 ¶ 6. At step five, adopting the testimony of the vocational expert, the ALJ found that through the date last insured there were jobs existing in significant numbers in the national economy that plaintiff could perform, including jobs in the occupations of merchandise marker, router, and routing clerk. Tr. 29 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged onset date of disability, 22 October 2011, through the date last insured, 31 December 2014. Tr. 30 ¶ 11.
Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner, here, the ALJ's decision adopted by the Commissioner, is limited to considering whether the decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded without a remand on the grounds that the ALJ erred by: (1) not according great weight to the opinions in the medical source statement of two of plaintiffs primary care providers, Dan A. Naumann, M.D. and Christen Crisostomo, M.D., both of Cedar Road Medical Associates in Chesapeake, Virginia; (2) improperly assessing plaintiffs statements regarding her impairments, that is, her syrnptoms
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. § 404.1527(c); Nicholson v. Comm'r of Soc. Sec. Admin., 600 F.Supp.2d 740, 752 (N.D.W. Va. 2009) ("Pursuant to 20 C.F.R. § 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments are to be accorded controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); see Craig, 76 F.3d at 590; Ward v. Chater, 924 F.Supp. 53, 55-56 (W.D. Va. 1996); see generally Soc. Sec. Ruling 96-2p, 1996 WL 374188 (2 July 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, namely, the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. § 404.1527(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. § 404.1527(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. 6 Mar. 2013) ("In doing so [i. e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
The same basic standards that govern evaluation of the opinions of treating medical sources not given controlling weight and explanation of the weight given such opinions apply to the evaluation of opinions of examining, but nontreating sources, and nonexamining sources. See 20 C.F.R. § 404.1527(c), (e); Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. 12 Mar. 2015), rep. & recomm. adopted, 2015 WL 1810173, at *1 (21 Apr. 2015); Napier, 2013 WL 1856469, at *2. More weight is generally given to the opinions of a treating source than to the opinions of a nontreating examining source and to.the opinions of an examining source than to the opinions of a nonexamining source. See 20 C.F.R. § 404.1527(c)(1), (2). Under appropriate circumstances, however, the opinions of a nontreating examining source or a nonexamining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a nontreating examining physician than to those of a treating physician); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3 (2 July 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on the ultimate issue of disability and other issues reserved to the Commissioner are not entitled to any special weight based on their source. See 20 C.F.R. § 404.1527(d); Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *2, 5 (2 July 1996). But these opinions must still be evaluated and accorded appropriate weight. See Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
The record contains notes on three office visits by plaintiff with Dr. Naumann, on 11 September 2014 (Tr. 502-05), 25 November 2014 (Tr. 497-501), and 9 March 2015 (Tr. 493-96).
In addition, on 9 March 2015, Dr. Naumann issued a medical source statement on a preprinted form. Tr. 484-91. In it, he found essentially that plaintiffs impairments were disabling. For example, he opined that plaintiff: had reduced range of motion, reduced grip strength, and abnormal posture (Tr. 484 no. 5); could sit for less than 15 minutes at a time and a total of 1 hour in an 8-hour workday (Tr. 485-86 no. 11 (A), (F)); could stand or walk for no more than 15 minutes at a time and less than a total of 1 hour in an 8-hour workday (Tr. 486-87 no. 12(A), (D)); would need more than a total of 6 hours of resting or lying down in a supine position in an 8-hour workday (Tr. 487 no. 13(C)); could never carry or lift more than 10 pounds (Tr. 487-88 no. 14); could never stoop (Tr. 488 no. 16); could never flex her neck backward or forward, or rotate it to the right or left (Tr. 488 no. 17(A)-(D)); could occasionally engage in reaching with either hand, but never engage in handling or fingering with either hand (Tr. 488-89 no. 18(A)-(C)); and would likely be absent from work more than 3 times every month (Tr. 490 no. 20).
The ALJ gave "little weight" to Dr. Naumann's opinions. Tr. 27 ¶ 5. Plaintiff contends that the ALJ should have given Dr. Naumann's opinions "great weight" pursuant to the attending or treating physician rule in Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). The court disagrees.
Plaintiffs reliance on the treating physician rule is misplaced. Promulgation of 20 C.F.R. §§ 404.1527 and 416.927 in 1991 superseded that rule. See, e.g., Stroup v. Apfel, 205 F.3d 1334, 2000 WL 216620, at *4-5 (4th Cir. 24 Feb. 2000) (table).
More fundamentally, the ALJ's evaluation of Dr. Naumann's opinions was proper. She stated:
Tr. 27 ¶ 5.
The reason given by the ALJ for discounting Dr. Naumann's opinions-inconsistency with his own treatment records-is a proper consideration under the Regulations. See Tr. 20 C.F.R. § 404.1527(c)(4).
In addition, the ALJ's analysis is supported by substantial evidence. Dr. Naumann's findings on examination of plaintiff were almost uniformly normal, including findings of normal gait and posture and range of motion of the neck on each of her visits with him. See Tr. 495-96, 499-500, 504-05. In only one visit, that of 9 March 2015, did he note multiple trigger points for plaintiff. Tr. 496 ("multiple trigger points symmetric"). As the ALJ observed, the description of plaintiff by Dr. Naumann in his medical source statement is "not reflective of th[e] findings" by him in his treatment notes. Tr. 27 ¶ 5; see also Tr. 25 ¶ 5 (ALJ's finding expressed through citation to the exhibit, Ex. B12F, containing Dr. Naumann's treatment notes that at visits with him plaintiff "consistently had normal mood and affect, orientation, judgment, and insight").
Plaintiff argues that the ALJ erred by not identifying the inconsistencies with Dr. Naumann's office visit findings to which she was referring in her determination to discount his opinions. The inconsistencies, though, are manifest. No further specification by the ALJ was necessary.
Plaintiff also cites the vocational expert's testimony on cross-examination to the effect that plaintiff was disabled. But the testimony to which she refers was premised on limitations posited by Dr. Naumann, as well as Dr. Crisostomo. See Tr. 67-70. This testimony therefore does not address whether the ALJ acted properly in discounting those opinions.
The court concludes that plaintiffs challenge to the ALJ's assessment of Dr. Naumann's opinions is meritless. The court therefore rejects it.
The record contains notes on six office visits by plaintiff with Dr. Crisostomo, on 12 June 2015 (Tr. 545-47), 14 July 2015 (Tr. 542-44), 14 October 2015 (Tr. 539-41), 8 March 2016 (Tr. 536-38), 14 April 2016 (Tr. 533-35), and 20 April 2016 (Tr. 531-32).
On 19 April 2016, Dr. Crisostomo issued a medical source statement on the same form used by Dr. Naumann. Tr. 560-66. Like Dr. Naumann, she found essentially that plaintiffs impairments were disabling. Mirroring many of Dr. Naumann's findings, she opined that plaintiff: had reduced range of motion (Tr. 560 no. 5); could sit for 15 minutes at a time but no more than a total of 2 hours in an 8-hour workday (Tr. 562-63 no. 11(A), (F)); could stand or walk for 2 hours at a time but no more than a total of less than 1 hour in an 8-hour workday (Tr. 562-63 nos. 12(A), (D)); would need more than a total of 6 hours of resting in an 8-hour workday (Tr. 563 no. 13(C)); could never carry or lift more than 10 pounds (Tr. 563 no. 14); could stoop occasionally (Tr. 564 no. 16); could occasionally flex her neck backward or forward, or rotate it to the right or left (Tr. 564 no. 17(A)-(D)); could occasionally engage in reaching, handling, and fingering with either hand (Tr. 564 no. 18(A)-(C)); and would likely be absent from work more than 3 times every month (Tr. 565 no. 20).
The ALJ gave "little weight" to Dr. Crisostomo's opinions. Tr. 28 ¶ 5. Plaintiff contends that the ALJ should have given Dr. Crisostomo's opinions "great weight" pursuant to the treating physician rule in Coffman but, as discussed, that rule has been superseded by the Regulations. See, e.g., Stroup, 205 F.3d 1334, 2000 WL 216620, at *4-5; 20 C.F.R. § 404.1527.
Moreover, as with the ALJ's evaluation of Dr. Naumann's opinions, the ALJ's evaluation of Dr. Crisostomo's opinions was proper. She stated:
Tr. 28 ¶ 5.
Inconsistency of Dr. Crisostomo's opinions with her treatment records is, of course, a proper consideration under the Regulations. See 20 C.F.R. § 404.1527(c)(4).
In addition, review of Dr. Crisotomo's treatment notes shows that the ALJ's analysis is supported by substantial evidence. Dr. Crisostomo's findings on examination of plaintiff were generally normal and do not reflect the disabling limitations she posits in her medical source statement. See Tr. 532, 534, 537, 540, 543, 546.
Plaintiff argues, as with the ALJ's assessment of Dr. Naumann's opinions, that the ALJ did not adequately identify the inconsistencies between Dr. Crisostomo's opinions and her treatment records. As with Dr. Naumann's treatment notes, though, the inconsistencies are apparent and did not require further identification.
Lastly, as discussed, the vocational expert's testimony on cross-examination to the effect that plaintiff is disabled does not relate to the issue of whether the ALJ erred in discounting those opinions. Rather, the testimony is premised on the validity of those limitations.
For the reasons stated, the court rejects plaintiffs challenge to the ALJ's assessment of Dr. Crisostomo's opinions.
As noted, symptoms are defined under the Regulations as a claimant's own descriptions of his impairments. 20 C.F.R. § 404.1528(a). The ALJ must employ a two-step process for evaluating a claimant's symptoms:
Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *2 (25 Oct. 2017) (effective 28 Mar. 2016); 20 C.F.R. § 404.1529(b), (c)(1); Craig, 76 F. 3d at 594-95.
In evaluating a claimant's symptoms at step two, the ALJ must consider "the entire case record." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4; 20 C.F.R. § 404.1529(c)(1) ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence. . . ."); Craig, 76 F. 3d at 595. The evidence and factors that are considered, when relevant, include: the claimant's history; medical signs and laboratory findings; statements from the claimant, the claimant's treating and nontreating sources, and other persons about how the claimant's symptoms affect the claimant, including medical opinions; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of his pain or other symptoms; any measures the claimant uses or has used to relieve his pain or other symptoms; and other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. The ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *9.
The ALJ summarized plaintiffs testimony as follows:
Tr. 24-25 ¶ 5.
The ALJ made the step one finding that "[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms." Tr. 25 ¶ 5. However, at the second step, the ALJ found that
Tr. 25 ¶ 5.
The ALJ went on to explain, in part, as follows:
Tr. 26 ¶ 5.
As to plaintiffs daily activities with her family, the ALJ found:
Tr. 23 ¶ 4. The ALJ also found that, as to social functioning, plaintiff "interacts with . . . her own family regularly," although because of stamina and fatigue, was unable to act with others on a sustained basis. Tr. 23 ¶ 4. The ALJ made these findings as part of her determinations that plaintiff had mild restrictions in activities of daily living and moderate limitations in social functioning in applying the special technique for mental impairments at step three of the sequential analysis.
Further support for and explanation of the ALJ's assessment of plaintiffs symptoms is found in various sets of medical opinions and the ALJ's evaluation of them. One such set of medical opinions is those of psychiatrist Robert Mitchell, M.D., who performed a consultative psychiatric evaluation of plaintiff on 4 October 2013. Tr. 440-42. Consistent with the ALJ's assessment of plaintiffs symptoms, he did not find her to have disabling mental impairments. Indeed, he found plaintiff to have fewer limitations in social functioning than the ALJ did, resulting in her attribution of "partial weight" to Dr. Mitchell's opinions. See Tr. 27 ¶ 5. The ALJ stated:
Tr. 27 ¶ 5.
Also supportive of the ALJ's assessment of plaintiffs symptoms are the opinions of psychologist Gregory Michael, Ed.D. In his report on his consultative evaluation of plaintiff on 19 July 2015 (Tr. 511-18), he found, as the ALJ stated, that "the claimant has some limitations related to her mental impairments, but not enough to be disabling." Tr. 27 ¶ 5. The ALJ gave Dr. Michael's opinions "great weight," stating:
Tr. 27 ¶ 5.
Nonexamining state agency consulting psychologist Betty B. Aldridge, Psy.D. also found on 18 October 2013 at the initial level of review that plaintiffs mental conditions were not disabling. Tr. 98-99. In fact, she found plaintiff not to have any severe mental impairments. Because the ALJ found that this evaluation understated plaintiffs mental limitations, she gave it "little weight":
Tr. 26 ¶ 5.
Nonexamining state agency consulting psychologist Lori Brandon Souther, Ph.D. additionally found on 19 November 2013 at the reconsideration level of review that plaintiffs mental impairments were not disabling. Tr. 111-13, 115-17. In this instance, the ALJ gave the opinions "partial weight," stating as follows:
Tr. 26-27 ¶ 5.
In addition, there is the physical evaluation of plaintiff at the reconsideration level by Dorothy Linster, M.D. on 20 November 2013.
Tr. 27 ¶ 5.
Although the opinions of Dr. Naumann and Dr. Crisostomo do tend to support plaintiffs statements regarding her impairments, the ALJ properly discounted these opinions, as previously discussed.
Plaintiff argues essentially that the nature and chronicity of her impairments, despite treatment, have imposed functional limitations on her and that there is no evidence that her allegations regarding these limitations are incredible. The fact that plaintiffs impairments impose functional limitations on her is, of course, undisputed. And there is evidence justifying the determination that plaintiffs symptoms should not be fully credited. As the foregoing review of the ALJ's decision indicates, the ALJ identified substantial evidence supporting her determination that plaintiffs statements concerning the intensity, persistence, and limiting effects of her impairments are not entirely consistent with the medical and other evidence in the record and therefore warranted being discounted.
Plaintiff also contends that the ALJ failed to build "`an accurate and logical bridge from the evidence to [her] conclusion'" to discount plaintiffs symptoms. Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). The court disagrees. The foregoing review of the ALJ's decision shows that the ALJ did adequately explain her assessment of plaintiffs symptoms.
In sum, the court concludes that the ALJ's assessment of plaintiffs symptoms is based on applicable legal standards, including consideration of plaintiffs daily activities, her medical signs, her treatment, and statements by treating and nontreating sources regarding the effects of her impairments. See 20 C.F.R. § 404.1529(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. The assessment of plaintiffs symptoms is also supported by substantial evidence. Plaintiffs challenge to the assessment therefore fails.
As discussed, a claimant's RFC is the most a claimant can still do despite his limitations. 20 C.F.R. § 404.1545(a)(1). More specifically, "[o]rdinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a week, or an equivalent work schedule." Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). The assessment of a claimant's RFC must be based on all the relevant medical and other evidence in the record. 20 C.F.R. § 404.1545(a)(3). The assessment includes evaluation of the claimant's symptoms. See, e.g., Mascio, 780 F.3d at 639; Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *12; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *5, 7. An ALJ's decision must state his RFC determination and provide the supporting rationale for it. See Mascio, 780 F.3d at 636; Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *7.
Concentration, 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." Listing 12.00C3. As noted previously, it is one of four broad functional areas assessed using the special technique for mental impairments under the Regulations. See 20 C.F.R. § 404.1520a. Mascio instructs 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)). The court reasoned:
Id. The court recognized that a claimant's limitation in concentration, persistence, or pace may not translate into a limitation in the RFC, but held that the ALJ must explain if that is the case. Id. In the absence of such an explanation, remand is in order. Id.; see also, e.g., Herren v. Colvin, No. 1:15-cv-00002-MOC, 2015 WL 5725903, at *5-7 (W.D.N.C. 20 Sept. 2015).
Plaintiff challenges the ALJ's RFC determination, in part, on the ground that the medical evidence shows that she could not meet the standing and walking, or sitting requirements for light work. Again, to perform a full range of such work, a claimant must be able to stand or walk approximately six hours in an eight-hour workday and to sit, at a minimum, during the remaining time. Soc. Sec. Ruling 83-10, 1983 WL 31251, at *6. Substantial evidence, though, supports the determination by the ALJ that plaintiff did have this capacity.
This evidence includes the explicit determination by Dr. Linster, as part of her physical RFC assessment, that plaintiff could stand or walk, or sit up to six hours in an eight-hour workday. Tr. 114. In addition, in the treatment records of Dr. Naumann and Dr. Crisostomo, there is a paucity of evidence supporting their opinions that plaintiffs physical (and other limitations) prevent her from performing work at even the sedentary level. As discussed, the ALJ properly discounted Dr. Naumann's and Dr. Crisostomo's opinions on this basis.
The evidence of plaintiffs daily activities also supports the ALJ's determination that she can perform light work. Moreover, the ALJ properly discounted plaintiffs statements to the effect that her impairments prevented her from standing or walking six to eight hours in an eight-hour workday, or sitting sufficiently long to perform light work.
The burden rested on plaintiff to show that her RFC was as limited as she alleges. See Mascio, 780 F.3d at 634-35. She has not pointed to evidence in the record compelling the determination that it was so limited.
Plaintiff also challenges the ALJ's RFC determination on the ground that it fails to adequately account for the moderate difficulties she found plaintiff to have in concentration, persistence, or pace in violation of Mascio. But the ALJ did not limit plaintiff solely to simple routine tasks as in Mascio. In addition to SRRTs, she also limited plaintiff to no production pace work, no public interaction, and occasional interaction with co-workers and supervisors. Tr. 24 ¶ 5. Such limitations with the limitation to SRRTs can be sufficient to account for a plaintiffs moderate difficulties in concentration, persistence, or pace. See, e.g., Bowen v. Berryhill, No. 5: 16-CV-65-FL, 2017 WL 9478523, at *10 (E.D.N.C. 22 Feb. 2017) (collecting cases), mag. judge recomm. adopted, 2017 WL 1194462 (31 Mar. 2017).
Substantial evidence supports the ALJ's determination here that limitation of plaintiff to SRRTs, no production pace work, no public interaction, and occasional interaction with co-workers and supervisors was sufficient to account for her moderate difficulties in concentration, persistence, or pace. This evidence includes the specific finding by Dr. Souther that "the [claimant] appears capable of performing SRRTs in a low-stress setting with minimal social demands." Tr. 117. This specification is consistent with the limitations the ALJ imposed. There are also the opinions of Dr. Mitchell, Dr. Michael, and Dr. Aldridge, which do not include any determination that plaintiff requires any limitations beyond those, or even equivalent to those, adopted by the ALJ. In addition, there are plaintiff's daily activities. While at face value the opinions of Dr. Naumann and Dr. Crisostomo, and plaintiff's own statements about her mental impairments would arguably warrant limitations greater than those the ALJ adopted, the ALJ properly discounted those opinions and statements, as discussed.
The other ground upon which plaintiff challenges the ALJ's RFC determination is that plaintiff can be expected to be absent from work more than one and a half to two days per month. She cites the vocational expert's testimony (Tr. 69-70) that a person missing work with that frequency is unemployable.
As noted, however, a finding that a claimant can work on a regular and continuing basis-that is, eight hours a day for five days a week or on an equivalent schedule-is implicit in a determination that the claimant has the RFC to perform work at any exertional level. See Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2. Therefore, the opinions of Dr. Aldridge, Dr. Souther, and Dr. Linster that plaintiff had the RFC to perform work supports the ALJ's implicit determination that she could work on a regular and continuing basis, without the rate of absenteeism plaintiff posits. Similarly, neither Dr. Mitchell nor Dr. Michael opine that plaintiff would be absent from work at the rate of one and a half to two days a month. And, of course, the ALJ properly discounted opinion evidence from Dr. Naumann and Dr. Crisostomo and statements by plaintiff to the effect that plaintiff would be absent at a rate precluding employment.
The court concludes that the ALJ's RFC determination is based on applicable legal standards and supported by substantial evidence. It accordingly rejects plaintiffs challenge to the RFC determination.
To be helpful, the vocational expert's opinions must be "in response to proper hypothetical questions which fairly set out all of [a] claimant's impairments." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). A hypothetical question is proper if it adequately reflects a claimant's RFC for which the ALJ had sufficient evidence. Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005); Baker v. Astrue, No. SAG-10-145, 2012 WL 12751, at *4 (D. Md. 3 Jan. 2012) (rejecting plaintiffs objections to the ALJ's hypothetical to the vocational expert where "the hypothetical presented to the [vocational expert] was supported by substantial evidence and adequately included all the limitations that were deemed credible by the ALJ"). The vocational expert must accept as true the RFC as determined by the ALJ. Hines v. Barnhart, 453 F.3d 559, 566 n.5 (4th Cir. 2006).
The hypothetical the ALJ posed to the vocational expert that produced the testimony upon which the ALJ relied at step five of the sequential analysis reads:
Tr. 66.
Plaintiff contends that this hypothetical was deficient because it failed to include: limitations on her ability to sit, stand, walk, and lift consistent with her testimony; her purported need to lie down during the workday; her likely absence from work more than two days per month; and restrictions accommodating her limitations in concentration, persistence, or pace. These contentions fail.
The hypothetical the ALJ posed reflects the ALJ's RFC determination, which is supported by substantial evidence and based on applicable legal standards, as discussed. In particular, the RFC reflects the proper discounting of plaintiffs symptoms.
The hypothetical was therefore proper. The court accordingly rejects plaintiffs challenge to it.
Plaintiff contends that the ALJ erred in not finding plaintiff disabled. The focus of this argument is the contention that plaintiff cannot work on a regular and continuing basis. The court has already found this contention to be meritless in connection with plaintiffs contention that she would be absent from work too frequently to perform work.
The ALJ's conclusion that plaintiff was not disabled was otherwise proper for the reasons discussed. This final challenge by plaintiff to the ALJ's decision therefore fails.
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 18) for judgment on the pleadings be GRANTED, plaintiffs motion (D.E. 16) for judgment on the pleadings be DENIED, and the Commissioner's final decision be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 2 January 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C.
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
DOT, app. C § IV, def of "S-Sedentary Work," 1991 WL 688702. As noted, the terms for exertional level as used in the Regulations have the same meaning as in the DOT. See 20 C.F.R. § 404.1567.
