# BAUCOM v. BERRYHILL

> District Court, M.D. North Carolina · February 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10253433

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** February 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LINDA G. BAUCOM, )
)
Plaintiff, )
)
v. ) 1:18CV819
)
ANDREW SAUL, )
Commissioner of Social Secutity,! _ )
)
Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Linda G. Baucom (“Plaintif?’) brought this action pursuant to Section 205(g)
of the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(2)), to obtain judicial
review of a final decision of the Commissioner of Social Security denying her claim for
Disability Insurance Benefits (“DIB”) under Title IT of the Act. The parties have filed cross-
motions for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed an application for DIB in February 2015, alleging a disability
onset date of November 1, 2014. (Tr. at 15, 162-63.)? Her application was denied initially (It.
at 58-70, 87-90) and upon reconsideration (Tr. at 71-86, 97-100). Thereafter, Plaintiff

* Andrew Saul was confitmed as the Commissioner of Social Security on June 4, 2019, and was sworn in on
June 17, 2019. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew Saul should be
substituted for Nancy A. Berryhill as the Defendant in this suit. No further action need be taken to continue
this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(9).
* Transcript citations refer to the Sealed Administrative Record [Doc. #8].

tequested an administrative hearing de novo before an Administrative Law Judge (“ALJ”).
(Tr. at 101-02.) On September 20, 2017, Plaintiff, her attorney, and an impartial vocational
expert, attended the heating. (It. at 30-57.) The ALJ ultimately ruled that Plaintiff did not
qualify as disabled. (Tr. at 12-29.) On May 24, 2018, the Appeals Council denied Plaintiffs
request for review of the ALJ’s decision, thereby making the ALJ’s conclusion the
Commissionet’s final decision for purposes of judicial review. (I'r. at 1-6.)
Il. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing coutt must uphold the factual findings of the
AL) if they ate supported by substantial evidence and were reached through application of the
cortect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 44th Cir. 2012) Gnternal
quotation omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”’ Hunter v. Sullivan, 993 F.2d 31, 34 4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation matks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 Gnternal quotation marks omitted).

“In teviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, ot substitute its judgment for that of the
[AL]].” Mastro, 270 F.3d at 176 Gnternal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, 1s not whether [the claimant] is disabled, but whether the
ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means 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
petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A))3
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Progtam (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. ‘The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Sectetary for
determining disability, see 20 C.F.R. pt. 404 (SSDI; 20 CER. pt. 416 (SSD), governing these two programs ate,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

of disability; (2) had a severe impaitment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. ‘he second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant catties his or her burden at the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant
is disabled.” Mastto, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,
but falters at step three, te., “[i]f a claimant’s impairment is not sufficiently severe to equal or
exceed a listed impaitment,” then “the ALJ must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on
that RFC, the claimant can “perform past relevant work’; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

+ “RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that administrative regulations require RFC to reflect clatmant’s “ability to do sustained work-
telated physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8
hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks
omitted)). ‘The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations
(mental, sensory, ot skin impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only after
[the AL]] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”
Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If at this step, the Government cannot carry its
“evidentiary burden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
Ill. DISCUSSION
In the present case, the AL] found that Plaintiff had not engaged in “substantial gainful
activity” since her alleged onset date. ‘The AL] therefore concluded that Plaintiff met her
burden at step one of the sequential evaluation process. (Ir. at 17.) At step two, the AL]
further determined that Plaintiff suffered the following sevete impairment:
degenerative disc disease.

(Tr. at 17.) At step three, the ALJ found that Plaintiffs degenerative disc disease did not meet
ot equal the criteria of any disability listings (Ir. at 18). Therefore, the AL] assessed Plaintiffs
REC and determined that she could perform light work with further limitations. Specifically,
the AL] found that Plaintiff could
perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] can □
occasionally climb laddets, ropes, or scaffolds and frequently perform posturals
of balancing, stooping, kneeling, crouching, and crawling.
(Tr. at 19.) Under step four of the analysis, and in reliance upon the testimony of the VE, the
ALJ determined that Plaintiff could perform her past relevant work as an Occupational Health
Nurse and Head Nurse. (Tr. at 23.) Alternatively, the AL] concluded at step five that, given

Plaintiffs age, education, work experience, and RFC, along with the testimony of the
vocational expert regarding those factors, Plaintiff possessed transferrable skills that would
permit her to perform the job of Office Nurse. As a tesult, the ALJ concluded that Plaintiff
had not been disabled at any time from her onset date of November 1, 2014, through January
19, 2018, the date of the AL]’s decision. (T° 1. at 24.)
Plaintiff now raises two challenges to the AL]’s decision. First, Plaintiff argues that the
ALJ “imprtopetly evaluated the medical opinion evidence in violation of 20 CFR.
[§] 416].]927.” (PL’s Br. [Doc. #11] at 1.) Second, Plaintiff contends that “[t]he AL]
committed error in failing to consider [Plaintiff's] testimony and inability to engage in full time
employment as a registered nutse and consideration [sic] of the impairments set forth in the
REC and medical evidence.” (PL’s Br. at 5.) After a careful review of the record, the Court
finds no basis for remand.
A. Medical Opinion Evidence
Plaintiff first takes issue with the ALJ’s determination to accord “little weight” to the
opinions of Plaintiffs treating spine specialist, Dr. John A. Welshofer. Specifically, Plaintiff
contends that the “ALJ failed to give the treating physician’s opinion and records the
apptoptiate weight and consideration.” (Pl’s Br. at 4 (citing Tr. at 22).) The “treating
physician rule,” as set out in 20 C.F.R. § 404.1527(), generally requires an AL] to give
controlling weight to the well-supported opinion of a treating soutce as to the natute and
sevetity of a claimant’s impairment, based on the ability of treating sources to
ptovide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
[which] may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.

20 CER. § 404.1527(c). However, if a treating source’s opinion is not “well-supported by
medically acceptable clinical and laboratory diagnostic techniques of is inconsistent with other
substantial evidence in the case record,” it is not entitled to controlling weight. Social Security
Ruling 96-2p, Policy Interpretation Ruling Titles I] and XVI: Giving Controlling Weight to
‘Treating Source Medical Opinions, 1996 WL 374188, at *5 (July 2, 1996) (“SSR 96-2p”); 20
C.F.R. § 404.1527(c)(2); see also Craig, 76 F.3d at 590; Mastto, 270 F.3d at 178. Instead, the
opinion must be evaluated and weighed using all of the factors provided in 20 C.F.R.
§ □□□□□□□□□□□□□□□□□□□□□□□ including (1) the length of the treatment relationship, (2) the
frequency of examination, (3) the nature and extent of the treatment telationship, (4) the
supportability of the opinion, (5) the consistency of the opinion with the record, (6) whether
the soutce is a specialist, and (7) any other factors that may support or contradict the opinion.
Where an ALJ declines to give controlling weight to a treating source opinion, he must
“sive good reasons in [his] . . . decision for the weight” assigned, taking the above factors into
account. 20 C.F.R. § 404.1527(c)(2). “This requires the AL] to provide sufficient explanation
for ‘meaningful review by the courts.” Thompson v. Colvin, No. L09CV278, 2014 WL
185218, at *5 (M.D.N.C. Jan. 15, 2014) (quotations omitted); see also SSR 96-2p (noting that
the 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 adjudicator gave to the treating
soutce’s medical opinion and the reasons for that weight”).°

The Court notes that for claims filed after March 27, 2017, the regulations have been amended and several of
the prior Social Secutity Rulings, including SSR 96-2p, have been rescinded. The new regulations provide that

Plaintiff sought treatment from Dr. Welshofer on November 14, 2014, while out of
work on a medical leave of absence. (See Tr. at 37, 39, 295-302.) In connection with lumbar
epidural steroid injections to treat PlaintifPs lower back pain on December 5, 2014 (T'r. at 307-
08), Dr. Welshofer provided Plaintiff with a note providing simply:
Linda Baucom is currently under my cate.
The patient is unable to return to work at this time.
Date of return: 12/08/2014. □
(I'r. at 294). On December 8, 2014, Dr. Welshofer issued a note extending Plaintiffs return
to work date to January 1, 2015, and recommending that Plaintiff “return back to sedentary
duty with no lift, push, pull or carry greater than 10 pounds and position changes as necessary.”
(Tr. at 309.) In conjunction with another set of lumbar epidural steroid injections on
December 19, 2014 (T'r. at 314-15), Dr. Welshofer extended Plaintiff's return to work date to
January 6, 2015 (Ir. at 316); however, on January 5, 2015, Dr. Welshofer examined Plaintiff
(Tt. at 317-24) and changed his opinion to the following:
Linda Baucom is currently under my care.
The patient is unable to return to work at this time.
Permanently unable to work.
(Tr. at 325.) In addition, the treatment notes for that date reflect the following:
Given the multilevel cervical spinal stenosis I believe the patient is presently and
will continue to be unemployable and should seek Social Security Disability and
I will support her claim for the same. If she has an individual policy or work-
telated disability I think she also would be considered disabled due to the
cetvical stenosis.

the Social Security Administration “will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical
soutces.” 20 C.F.R. § 404.1520c. However, the claim in the present case was filed before Match 27, 2017, and
the Court has therefore analyzed Plaintiffs claims pursuant to the treating physician rule set out above.

(Tr. at 320.)° Finally, on October 23, 2015, Dr. Welshofer penned a “Io Whom It May
Concern” letter opining as follows:
‘The patient has been under my cate since 2008. She has a progressive spinal
degenerative condition that includes cervical spinal stenosis with spinal cord
compression at C4-C5, C5-C6 and C6-C7. The patient has a spondylolisthesis
at L2-L3 with multilevel disc bulging at that level, as well as L4-L5 and L5-S1.
The patient has been through a significant number of treatments including
therapies, medications, as well as injections and her symptoms have progressed
to the point that I believe that she has a significant enough spinal condition that
would prohibit her from working not only now but at least for the next 12
months, and likely on a permanent basis. It is my medical opinion that the
patient is disabled from gainful employment because any type of work activity
will exacerbate these underlying significant spinal conditions making sustained
employment impossible.
(Tr. at 353.) The AL] evaluated and weighed Dr. Welshofet’s opinions as follows:
The undetsigned notes that on several occasions, medical providers, especially
John Welshofer, M.D., involved in the cate of the claimant opined that the
claimant is unable to work and/or is disabled (5F/6, 21, 32, 37, 7F/10, 8F).
However, disability is an issue reserved to the Commissioner pursuant to 20
CFR 404.1527(d) and 416.927(d). The opinions, findings, and determinations
of disability or a person’s ability to work from others is given little weight in
genetal, and is taken as no more than a general statement regarding what they
feel is the seriousness of the claimant’s perceived functional imitations. The
claimant’s medical provider provided no additional information on these
documents as to why he felt the claimant was unable to return to work unless it
was “sedentary,” nor does his vague medical opinion justify the claimant’s
inability to perform any type of work as exists in the national economy. Further,
disability is an issue reserved to the Commissioner pursuant to 20 CFR
404.1527(d) and 416.927(d). The findings and determinations of disability from
other agencies, individuals, and organizations ate given little weight as, as noted
in this instance, different definitions and standards are used to teach the
determination of disability in the context of the claimant’s ability to work.
at 22.)

® Plaintiffs treating primaty cate physician, Dr. Michael Scott Camp, noted on March 27, 2015, that Dr.
Welshofer had “recommended disability” and noted that he found that “a reasonable recommendation.” (Tr.
at 349.)

Thus, the AL] explained his decision to assign little weight to Dr. Welshofer’s opinions,
noting that: (1) an assertion that Plaintiff is disabled or unable to work is “an issue reserved to
Commissioner pursuant to 20 CFR 404.1527)”; (2) Dr. Welshofer “provided no
additional information on these documents as to why he felt the claimant was unable to return
to wotk unless it was ‘sedentary’; (3) “his vague medical opinion” did not justify Plaintiffs
“inability to perform any type of work as exists in the national economy”; and (4) such
determinations that Plaintiff is disabled (or unable to work or unemployable) are given little
weight given the “different definitions and standards [] used to reach the determination of
disability” in vatious contexts. (Tr. at 22.)
Plaintiff does not challenge any of these rationales. Instead, Plaintiff asserts that the
ALJ’s assignment of “little weight” to Dr. Welshofetr’s opinions “fails to take into

consideration that Dr. Welshofer has treated [Plaintiff] for a long period of time, eight years,
for the same maladies.” (Pl.’s Br. at 4.) In that regard, Plaintiff argues that “it is disingenuous
to conclude the physician of eight yeats cannot evaluate [Plaintiffs] work ability, especially
when considering the opinion that work activity will exacerbate the underlying diagnosed and
treated conditions.” (PL’s Br. at 4.)
However, the AL] specifically considered all of the treating records by Dr. Welhofer
included in the record, and it is clear that the AL] considered Dr. Welshofer as Plaintiffs
treating physician throughout the relevant period. (Tr. at 22.) In Dr. Welshofet’s opinion,
cited by the ALJ, Dr. Welshofer indicated that he had treated Plaintiff since 2008 (Tr. at 353;
see also Tr. at 40 (containing Plaintiffs testimony that she started seeing Dr. Welshofer in
August of 2008 and that he ordered MRIs every two yeats)). Duting the period covered by

10

the AL]’s decision, the tecord reflects that Dr. Welshofer physically examined Plaintiff in
November 2014 (Ir. at 295-302); January 2015 (Tr. at 317-24); November 2016 (Tr. at 395-
401, 402-12); and December 2016 (Tr. at 456-62), and the AL] specifically discussed and cited
those treatment records. Thus, the ALJ’s consideration of this factor is appatent from
consideration of the ALJ’s decision as a whole. See Gelbart v. Berryhill, No. 17-CV-61361,
2018 WL 4573145, at *3 (S.D. Fla. Sept. 25, 2018) (“[A]lthough the AL] did not specifically
enumerate and discuss by name the regulatory factors listed in 20 C.F.R. § 404.1527, it is
evident from reviewing the AL]’s decision as a whole that she considered these factors in her
analysis.”); Morales v. Colvin, No. 3:14-CV-2330, 2016 WL 907743, at *10 (M.D. Pa. Mar. 2,
2016) (“[I]he ALJ did in fact take the factors of 20 C.F.R. § 404.1527(d) into consideration in
great detail, and simply because they were not discussed in the opinion section of the decision
does not amount to error on the ALJ’s part of the weight he assigned to [the treating
psychiatrist’s] opinion.”). In the portion of the decision in which the AL] discussed Plaintiff's
REC, the ALJ described Dr. Welshofer’s treatment of Plaintiff as follows:
Due to her pain symptoms [], the claimant underwent a bilateral epidural steroid
injection in December 2014.
The claimant’s back pain improved in 2015, with the claimant reporting that the
epidural reduced her pain symptoms by a quatter. Objective examination notes
from this petiod indicate that the claimant had no significant abnormalities
beyond some teduced range of motion, or difficulties with her gait and station.
This is consistent with the claimant|’s] reports that she was still capable of
driving herself to medical appointments as necessary, and her reports of pain
symptoms typically lower than ‘5’ on a scale of one to ten, with ten being the
greatest severity. ...
The claimant’s physical examination notes [towards the end of 2016] indicate
that while the claimant had limited range of motion of flexion and rotation in
the neck along with pain complaints, her physical findings were largely
unremarkable and consistent with updated diagnostic imaging that revealed little
11

cetvical or lumbar spine changes. Further, no more than physical therapy,
exercise, and other conservative methods of treatment wete recommended to
treat the claimant’s pain complaints, which the claimant reported was helpful.
(Tr. at 20 (internal citations omitted).) Thus, while the ALJ did not expressly state that Dr.
Welshofer had treated Plaintiff since 2008, the ALJ clearly discussed the length and frequency,
as well as the nature and extent, of Dt. Welshofer’s treatment of Plaintiff during the relevant
period in this case.
Plaintiff additionally maintains that the AL]’s decision to grant “little weight” to Dr.
Welshofet’s opinions “fails to take into consideration that Dr. Welshofer. . . found her able to
tetutn to sedentaty work with restrictions.” (Pl.’s Br. at 4.) However, as set forth above, the
ALJ specifically considered Dr. Welshofer’s December 8, 2014 opinion, and found that Dr.
Welshofer “provided 0 additional information on these documents as to why he felt the
claimant was unable to teturn to work unless it was ‘sedentary”’, and “his vague medical
opinion” did not justify Plaintiffs “inability to perform any type of work as exists in the
national economy”. In addition, as discussed above, Dr. Welshofer’s December 8, 2014
reference to sedentary work was only a temporaty opinion that was in place prior to January
5, 2015. Specifically, on December 8, 2014, Dr. Welshofer opined that Plaintiff was unable to
return to work tempotatily, and that at the expiration of that temporary period she could
return to sedentary duty. However, Dr. Welshofer changed his opinion on January 5, 2015,
toa simple determination that Plaintiff “is unable to return to work at this time” and was
“Tp]etmanently unable to work.” The ALJ correctly discounted that opinion as involving “an
issue tesetved to the Commissioner pursuant to 20 CFR 404.1527(d)” (Tr. at 22; see also 20
C.F.R. § 404.1527(d) (providing that medical soutce staternents that a claimant is “disabled”

12

ot “unable to work” do not constitute “medical opinions” under 20 C.F-R. § 404.1527(a)(1),
but ate statements “on issues reserved to the Commissioner because they ate administrative
findings dispositive of a case,” and that the Commissioner “will not give any special
significance” to such statements)), a rationale that Plaintiff does not challenge (Pl’s Br. at 3-
4).
Finally, as to all of Dr. Welshofer’s opinions, the AL] correctly noted that Dr.
Welshofet’s disability opinions lacked a sufficient supporting explanation. (Ir. at 22.) Most
of Dr. Welshofer’s opinions include no discussion or explanation at all) Dr. Welshofet’s
October 23, 2015 opinion did list Plaintiffs diagnoses and stated that, despite various
treatments, her condition had worsened. However, he still failed to explain how Plaintiffs
symptoms arising from those diagnoses would preclude her from performing any work
existing in significant number in the national economy, or how the conditions would limit her
at 353), particularly given Dr. Welshofer’s regular findings of normal gait, station,
coordination, strength, sensation, reflexes, and pulses (Tr. at 296-97, 318-19, 397-99, 405-08,
458-59), as recognized by the AL] (Ir. at 20).
Accordingly, Plaintiffs first assignment of error fails to warrant remand.
B. RFC and Symptom Evaluation
In Plaintiffs second issue on teview, she contends that “[t]he AL] committed error in
failing to consider [Plaintiff's] testimony and inability to engage in full time employment as a
registered nurse and consideration [sic] of the impairments set forth in the RFC and medical
evidence.” (PL’s Br. at 5.) Plaintiff further contends that the AL]’s dispositive hypothetical
question “fails to take into consideration the severe nature of het condition and the effect of

13

moving atound'on her pain levels.” (Pl.’s Br. at 6.) The Court consttues this claim as a
challenge to the AL]’s evaluation of Plaintiffs subjective complaints of pain.
Under the applicable regulations, the AL]’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.” Social Security Ruling 16-3p, Titles
land XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p, 2017 WL 5180304 (Oct.
25, 2017) (“SSR 16-3p”); see also 20 C.F.R. § 404.1529. In Craig v. Chater, the Fourth Circuit
addressed the two-part test for evaluating a claimant’s statements about symptoms. Craig, 76
F.3d at 594-95. “First, there must be objective medical evidence showing ‘the existence of a
medical impairment(s) which results from anatomical, physiological, or psychological
abnormalities and which could reasonably be expected to produce the pain or other symptoms
alleged.”’ Id. at 594 (emphasis omitted) (citing 20 C-F.R. §§ 416.929(b), 404.1529(b)). Lf such
an impairment exists, the second part of the test then requires the AL] to consider all available
evidence, including a claimant’s statements about pain, in order to evaluate “the intensity and
persistence of the claimant’s pain, and the extent to which it affects [the] ability to work.”
Craig, 76 F.3d at 595.
This approach facilitates the AL]’s ultimate goal, which is to accurately determine the
extent to which a claimant’s pain or other symptoms limit the ability to perform basic work
activities. Relevant evidence for this inquiry includes a claimant’s “medical history, medical
signs, and laboratory findings” Craig, 76 F.3d at 595, as well as the following factors set out in
20 C.F.R. § 404.1529(c)(3):

14

(@) [Clatmant’s] daily activities;
(it) The location, duration, frequency, and intensity of [claimant’s] pain or other
symptoms;
Git) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
[claimant] take[s] or [has] taken to alleviate [his] pain or other symptoms;
(v) Treatment, other than medication, [claimant] receive[s] or [has] recetved for
telief of [his] pain or other symptoms;
(vi) Any measutes [claimant] use[s] or [has] used to telieve [his] pain or other
symptoms (e.g., lying flat on [his] back, standing for 15 to 20 minutes evety
hout, sleeping on a board, etc.); and
(vii) Other factors concerning [claimant’s] functional limitations and restrictions
due to pain or other symptoms.
Where the ALJ has considered these factors and has heard a claimant’s testimony and obsetved
his demeanor, the ALJ’s determination is entitled to deference. See Shively v. Heckler, 739
987, 989 (4th Cir. 1984).
In the present case, Plaintiff relies on het own “testimony [] that activities, including
stait climbing, and het household activities increase het pain level” to support her argument
that the ALJ’s dispositive hypothetical question and RFC inadequately accounted for her pain.
(PL’s Br. at 6 (citing Tr. 42-46).) However, the ALJ specifically noted Plaintiffs testimony,
but ultimately found that Plaintiffs subjective “statements concerning the intensity,
persistence and limiting effects” of her pain were “not entitely consistent with the medical
evidence and other evidence in the record.” (Ir. at 20) Therefore, Plaintiffs challenge hinges
on step two of the Craig analysis.

15

It is undisputed that at step two of the analysis, the AL] should not reject a claimant’s
statements “about the intensity and persistence of [his] pain or other symptoms or about the
effect [his] symptoms have on [his] ability to work solely because the available objective
medical evidence does not substantiate [his] statements.” 20 C.F.R. § 404.1529(c)(2). Thus,
“subjective evidence of pain intensity cannot be discounted solely based on objective medical
findings.” Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017). However, it is also undisputed
that a plaintiff's “symptoms, including pain, will be determined to diminish [his] capacity for
work activities. [only] to the extent that [his] alleged functional limitations and restrictions
due to symptoms, such as pain, can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” 20 C.F.R. § 404.1529(c)(4). Thus, objective medical
evidence and other evidence in the tecord ate “crucial to evaluating the intensity and
persistence of a claimant’s pain and the extent to which it impairs [the] ability to work” and
“fajlthough a claimant’s allegations about . . . pain may not be discredited solely because they
ate not substantiated by objective evidence of the pain itself or its severity, they need not be
accepted to the extent they are inconsistent with the available evidence, including objective
evidence of the underlying impairment, and the extent to which that impairment can
reasonably be expected to cause the pain the claimant alleges [ ]he suffers.” Hines, 453 F.3d
at 565 n.3 (quoting Craig, 76 F.3d at 595); see also SSR 16-3p (“[O]bjective medical evidence
is a useful indicator to help make reasonable conclusions about the intensity and persistence
of symptoms, including the effects those symptoms may have on the ability to perform work-
related activities ....”). According to the regulatory guidance:
If an individual’s statements about the intensity, persistence, and limiting effects
of symptoms ate consistent with the objective medical evidence and the other
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evidence of record, we will determine that the individual’s symptoms ate more
likely to teduce his or her capacities to perform work-telated activities .... In
conttast, if an individual’s statements about the intensity, persistence, and
limiting effects of symptoms ate inconsistent with the objective medical .
evidence and the other evidence, we will determine that the individual’s
symptoms ate less likely to reduce his or her capacities to perform work-related
activities ....
SSR 16-3p.
In the present case, a thorough review of the AL]’s decision and the record as a whole
reveals that the AL] properly considered objective medical evidence and other evidence, and
explained that determination in the decision. In evaluating the evidence, the AL] specifically
identified multiple reasons supporting her determination.
First, the ALJ acknowledged Plaintiffs statements “that she experiences difficulty
sleeping due to her pain symptoms, and experiences functional limitations daily that affect her
ability to engage in a variety of tasks,” but noted that Plaintiff “reports that she is still able to

engage in light housework and complete errands, albeit at a slower or mote testrained pace
than she was able to in the past.” (rr. at 20.) The AL] also considered the medical records,
including the results of examinations and treatment records reflecting that “she was still
capable of driving herself to medical appointments as necessary” and that she reported “pain
symptoms typically lowet than ‘5’ on a scale of one to ten” in 2015, and also reflecting the
effectiveness of medication and physical therapy, that she “went days without needing to use
oxycodone” fot sevete pain in 2016, that no more than physical therapy, exercise, and other
consetvative methods of treatment were recommended, and that she was “doing well” with
unrematkable physical findings on examination. (I't. at 19-20.) In addition, the ALJ also gave
gteat weight to the medical opinion of State Agency consultant Dr. Jack Drummond, who

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reviewed Plaintiffs medical records and found that she retained a light residual functional
capacity, with additional postural limitations. (Tr. at 21.) Plaintiff has not raised any challenge
as to any of these these findings.
Having considered all of the evidence, the ALJ ultimately limited Plaintiff to light work
with additional postural restrictions specifically due to the neck and back pain caused by
Plaintiffs cervical and lumbar degenerative disc disease:
[I]he record indicates that the claimant has [a] severe medically determinable
impairment, as evidenced by objective medical evidence that results in
limitations to the claimant’s functional capacity. To that end, the [AL]] finds
that due to a combination of the claimant’s severe medically determinable
impairments, the claimant is limited to light exertional work. However, the
claimant can only occasionally climb ladders, ropes, or scaffolds and frequently
perform postural[s] of balancing, stopping, kneeling, crouching, and crawling
due to a combination of her subjective pain complaints, degenerative disc
disease symptoms, and the medications used to treat her degenerative disc
disease.
(Tr. at 21; see also Tr. at 52 (reflecting ALJ’s dispositive hypothetical question to VE which
included limitation to light work and postural restrictions consistent with RFC).) Thus, the
ALJ explained the RFC determination which formed the basis for the hypothetical question
to the vocational expert, and telied on substantial evidence in the record to support that
determination. See also Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (“Under the substantial-
evidence standard, a court looks to an existing administrative record and asks whether it
contains ‘sufficien[t] evidence’ to suppott the agency’s factual determinations. And whatever
the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is
not high. Substantial evidence, this Court has said, is ‘more than a mete scintilla.’ It means—
and means only— ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’ ” (internal citations omitted)).
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C. Concentration, Petsistence, ot Pace
Although not separated as a distinct assignment of error, Plaintiff also argues that the
AL)’s adoption of the state agency psychological consultants’ opinions that Plaintiff had mild
difficulties in her ability to maintain concentration, persistence, or pace (Pl.’s Br. at 5 (citing
Tr. 64, 78)) should have been taken into account in setting Plaintiffs RFC. Plaintiff concedes
that the AL] found that any mental impairment was non-severe and that a finding of “mild”
difficulties assumes no mote than minimal limitation in the ability to do basic work activities.
Plaintiff points out that “[blasic work activities is [sic] defined as ‘the abilities and
aptitudes necessary to do most jobs” @L’s Br. at 5 (quoting 20 C.P.R. § 404.1522(b))), and -

Plaintiff contends that “[mlost jobs is a broad and encompassing definition and in the case
hete, there wete two job identified the claimant could perform, both nursing jobs.” (Pl.’s Br.
at 5.) Thus, Plaintiff asserts that her “‘mild’ limitation should have been taken into
consideration with the hypothetical in light of the very limited scope of employment found by
the vocational expert” (PL’s Br. at 5-6). Plaintiff emphasizes that, “[iJn her disability report,
[she] states ‘memory and concentration issues’; and concerning spoken instructions: ‘ok; if
detailed I would have to write them down.” (Pl’s Br. at 6 (quoting T'r. at 209) (internal citation
omitted).) Plaintiff contends that “it is questionable that a patient’s health care would be
entrusted to the cate of an occupational or office nurse that has these “difficulties.” (PL.’s Br.
at 7.)
However, Plaintiff has not shown that the ALJ etted by failing to include additional
limitations in the hypothetical question. Plaintiff again relies on her own statements regarding
her difficulties with memory and concentration (Pl.’s Br. at 6 (quoting Tr. at 209)), but, as

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stated above, the AL] did not fully credit Plaintiffs subjective statements (I'r. at 20), and
Plaintiff did not otherwise challenge that determination (Pl.’s Br. at 4-7). Furthermore, the
ALJ offered a sufficient explanation as to why Plaintiffs mild difficulty in concentration,
persistence, or pace did not translate into any mental resttictions in the RFC or hypothetical
question. The AL] gave “great weight” to the opinions of the State Agency psychological
consultants (It. at 21), who each found that, despite mild limitation in concentration,
persistence, or pace (Tr. at 64, 78), Plaintiff remained able to perform a limited range of light
work that did not include any mental limitations (Ir. at 66, 80-81). The AL] additionally
accotded “great weight” to the opinions of consultative psychological examiner Dr. Patrick
Quinn (Tr. at 21), who noted that, despite “some minor difficulties with attention” (Ir. at
338), Plaintiff “was able to sustain attention during this evaluation” (I't. at 333) and did “not
have a psychiatric condition that would prevent her from tolerating the stress and pressures
associated with day-to-day work or similar activity” (Ir. at 338).
Although not cited by Plaintiff, the Court notes that in Mascio v. Colvin, the Fourth
Circuit held that if moderate limitations in concenttation, persistence, or pace are reflected at
step three, the ALJ should address those limitations in assessing the RFC or should explain
why the limitations do not affect the claimant’s ability to work. Mascio v. Colvin, 780 F.3d
632, 637-638 (4th Cir. 2015). However, in the present case, unlike in Mascio, the AL] found

no limitation in any functional atea, except for the domain of concentration, persistence and

pace, in which Plaintiff was mildly limited. (I'r. at 18.) Notably, the ALJ made these findings
in the course of her discussion at step two of the sequential analysis, in which she found that
Plaintiff's mental impaitment resulted in “no more than a minimal, if any, limitation in the

20

claimant’s ability to perform basic work activities.” (Tr. at 18); see 20 C-F.R. § 404.1520a(d)(1)
(providing that if the degree of limitation in the functional areas is only “none” or “mild,” the
impaitment is not sevete, unless the evidence otherwise indicates a more than minimal
limitation in the ability to do basic work activities). This analysis differs from the typical
Mascio scenatio, in which the ALJ, having already identified one or more mental impairments
as severe at step two, then performs a step three evaluation as to whether the degree of
functional limitation resulting from Plaintiff's mental impairment(s) meets or equals a listed
impaitment. In that scenatio, the resulting Mascio challenge stems from the AL]’s failure, or
alleged failure, to include limitations from the claimants’ severe impaitments in the RFC.
This distinction is significant. “Basic work activities” are defined as functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, heating,
speaking, understanding, carrying out and remembering simple instructions, using judgment,
responding appropriately to co-workers and supetvisors, and dealing with changes in a routine
work setting. 20 C.F.R. § 404.1522(b). Here, the ALJ found that Plaintiff's mental impairment
was nonsevere, meaning that it resulted in “no more than a minimal, if any, limitation in the
claimant’s ability to perform basic work activities.” (Ir. at 18.) In addition, as noted above,
the ALJ relied on the consultative examination and the State Agency evaluators in concluding
that Plaintiff did not have any work-telated limitations as a result of any mental impairments.
Thus, the ALJ explained why there was no mental limitation in Plaintiff's RFC, and Plaintiffs
Mascio challenge is without basis. See also Sinaberry v. Saul, No. 18-2096 (4th Cir. Feb. 26,
2020).

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In summary, Plaintiff has failed to show that the ALJ erred with regards to accounting
for Plaintiffs mild limitation in concentration, persistence, or pace in the RFC and the
dispositive hypothetical question. .
IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding
no disability be AFFIRMED, that Plaintiffs Motion for Summary Judgment [Doc. #10] be
DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #12] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 28% day of February, 2020.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253433. Public record. Not legal advice.