BECKSTROM v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

LAURI JON BECKSTROM, )

)

Plaintiff, )

)

v. ) 1:19CV746

)

ANDREW M. SAUL, )

Commissioner of Social )

Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Lauri Jon Beckstrom, brought this action pursuant

to the Social Security Act (the “Act”) to obtain judicial review

of a final decision of Defendant, the Commissioner of Social

Security, determining that Plaintiff’s entitlement to Disability

Insurance Benefits (“DIB”) ended on September 1, 2015. (Docket

Entry 2.) Defendant has filed the certified administrative record

(Docket Entry 11 (cited herein as “Tr. __”)), and both parties

have moved for judgment (Docket Entries 13, 15; see also Docket

Entry 14 (Plaintiff’s Brief); Docket Entry 16 (Defendant’s

Memorandum); Docket Entry 17 (Defendant’s Suggestion of

1 The United States Senate confirmed Andrew M. Saul as the Commissioner of

Social Security on June 4, 2019, and he took the oath of office on June 17,

2019. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew

M. Saul is substituted for Nancy A. Berryhill as the Defendant in this suit.

Neither the Court nor the parties need take any further action to continue this

suit by reason of the last sentence of section 205(g) of the Social Security

Act, 42 U.S.C. § 405(g).

Subsequently Decided Authority)). For the reasons that follow,

the Court should enter judgment for Defendant.

I. PROCEDURAL HISTORY

Plaintiff initially applied for DIB, alleging a disability

onset date of January 1, 2009, which resulted in an Administrative

Law Judge (“ALJ”) decision denying benefits dated May 26, 2011.

(See Tr. 41, 59, 85, 498.)2 Plaintiff did not pursue that

application further, but instead filed a new application for DIB,

alleging disability since January 10, 2006. (Tr. 382-85.)3 Upon

denial of that application initially and on reconsideration (Tr.

176, 822-23), Plaintiff requested a hearing de novo before an ALJ

(Tr. 177-78). Plaintiff, her attorney, and a vocational expert

(“VE”) attended the hearing. (Tr. 39-52.) On July 24, 2013, the

ALJ determined that Plaintiff qualified as disabled under the Act

as of May 27, 2011, but recommended a Continuing Disability Review

(“CDR”) within 18 months. (Tr. 134-43.)

On September 23, 2015, the Social Security Administration

(“SSA”) sent Plaintiff a Notice of Disability Cessation advising

her that, as a result of the CDR which showed medical improvement

2 The record does not contain any documents from Plaintiff’s initial claim for

DIB. Further, although a subsequent ALJ and Plaintiff’s attorney both stated

that the Social Security Administration (“SSA”) approved Plaintiff’s initial

claim for benefits (see Tr. 149; see also Docket Entry 14 at 1), the record

clarifies in multiple places that the SSA in fact denied Plaintiff’s first DIB

claim (see Tr. 41, 59, 85, 498).

3 Upon the advice of counsel, Plaintiff amended her onset date to May 27, 2011,

the day after the prior ALJ decision denying benefits. (See Tr. 41, 138, 384.)

2

in her condition, she stopped qualifying for DIB as of September

2015. (Tr. 189-92; see also Tr. 114-30, 131.) Following denials

of her challenge to that determination at the reconsideration level

(Tr. 194, 695-713) and by a Disability Hearing Officer (Tr. 133,

211-36), Plaintiff sought a hearing before an ALJ (Tr. 238).

A new ALJ held a hearing, attended by Plaintiff, her attorney,

and a VE, and ordered consultative neurological and psychological

examinations for Plaintiff. (Tr. 53-73.) Following those

examinations, the ALJ convened a supplemental hearing, also

attended by Plaintiff, her attorney, and a VE. (Tr. 72-82.) That

ALJ then determined that Plaintiff’s disability ended as of

September 23, 2015 (Tr. 146-64), and Plaintiff requested review

with the Appeals Council (Tr. 323-26, 500-04). The Appeals Council

subsequently remanded the case for, inter alia, further

consideration of Plaintiff’s migraine headaches and obesity (Tr.

171-75), and a new ALJ held a hearing which Plaintiff, her

attorney, and a VE attended (Tr. 83-113). That ALJ ruled that

Plaintiff’s disability ended on September 1, 2015 (Tr. 12-31), and

the Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 1-6, 527-29), making the ALJ’s ruling the

Commissioner’s final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings:

3

1. The most recent favorable medical decision finding

that [Plaintiff] was disabled is the decision dated July

24, 2013. This is known as the “comparison point

decision” or CPD.

2. At the time of the CPD, [Plaintiff] had the

following medically determinable impairments: seizures

and bipolar disorder. These impairments were found to

result in the residual functional capacity with the

following limitation: an inability to sustain work

activity on a regular and continuing basis . . . .

3. Through the date of this decision, [Plaintiff] has

not engaged in substantial gainful activity.

4. The medical evidence establishes that, since

September 1, 2015, [Plaintiff] has had the following

medically determinable impairments: minor motor

seizures, migraines, depression, bipolar disorder, and

obesity. . . .

5. Since September 1, 2015, [Plaintiff] has not had an

impairment or combination of impairments which met or

medically equaled the severity of an impairment listed

in 20 CFR Part 404, Subpart P, Appendix 1.

. . .

6. Medical improvement occurred on September 1, 2015.

. . .

7. Since September 1, 2015, the impairments present at

the time of the CPD decreased in medical severity to the

point where [Plaintiff] has had a residual functional

capacity to sustain basic work activities . . . .

8. [Plaintiff’s] medical improvement is related to the

ability to work because it resulted in an increase in

[Plaintiff’s] residual functional capacity.

. . .

9. Since September 1, 2015, [Plaintiff] has continued

to have a severe impairment or combination of

4

impairments[:] . . . minor motor seizures, migraines,

depression, bipolar disorder, and obesity . . . .

. . .

10. Based on the impairments present since September 1,

2015, [Plaintiff] has had the residual functional

capacity to perform medium work . . . except she could

never climb ladders, ropes, or scaffolds, work at

unprotected heights, work around moving mechanical

parts, or operate a motor vehicle. She could tolerate

exposure to no more than moderate noise. She could

tolerate frequent exposure to weather, humidity and

wetness, dusts, odors, fumes, pulmonary irritants,

extreme cold, extreme heat, and vibrations. She

requires a line of vision while communicating with

others. She could perform simple, routine, and

repetitive tasks not at a production rate pace (e.g.,

assembly line work) and make simple work-related

decisions. She could occasionally interact with

supervisors, coworkers, and the public.

. . .

11. Since September 1, 2015, [Plaintiff] has been

unable to perform past relevant work.

. . .

15. Since September 1, 2105, considering [Plaintiff’s]

age, education, work experience, and residual functional

capacity based on the impairments present since

September 1, 2015, [Plaintiff] has been able to perform

a significant number of jobs in the national economy.

. . .

16. [Plaintiff’s] disability ended on September 1,

2015, and [Plaintiff] has not become disabled again

since that date.

(Tr. 17-31 (bold font and internal parenthetical citations

omitted).)

5

II. DISCUSSION

Federal law “authorizes judicial review of the Social

Security Commissioner’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).

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

“a reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks 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. 1992) (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 brackets and quotation marks omitted). “If

6

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 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should

not undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ,

as adopted by the Social Security Commissioner].” Mastro, 270

F.3d at 176 (internal 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 [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the Court], therefore, is 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).

When confronting that issue, the Court must take note that,

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 period of not less than 12 months,’” Hall v.

7

Harris, 658 F.2d 260, 264 (4th Cir. 1981) (quoting 42 U.S.C.

§ 423(d)(1)(A)).4 “To regularize the adjudicative process, the

[SSA] has . . . promulgated . . . detailed regulations

incorporating longstanding medical-vocational evaluation policies

that take into account a claimant’s age, education, and work

experience in addition to [the claimant’s] medical condition.”

Id.

After a claimant qualifies for benefits under the Act, no

presumption of continuing disability exists, see 42 U.S.C.

§ 423(f)(4); rather, the decision to award benefits remains

subject to a periodic CDR, 20 C.F.R. § 404.1589. The SSA utilizes

the prior determination granting benefits — the CPD — as a

reference to evaluate whether any medical improvement has occurred

relating to the claimant’s ability to work. See 42 U.S.C.

§ 423(f); 20 C.F.R. § 404.1594. To make this determination, the

Commissioner employs an eight-step sequential evaluation process

(“SEP”):

1) Is the claimant engaging in substantial gainful

activity?

4 The Act “comprises two disability benefits programs. [DIB] . . . provides

benefits to disabled persons who have contributed to the program while employed.

The Supplemental Security Income Program . . . provides benefits to indigent

disabled persons. The statutory definitions and the regulations . . . for

determining disability governing these two programs are, in all aspects relevant

here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations

omitted).

8

2) If not, do the claimant’s impairments meet or

medically equal the severity of any listed impairments

in 20 C.F.R. Pt. 404, Subpt. P, App’x 1?

3) If not, has there been any medical improvement in the

severity of the claimant’s impairments?

4) If medical improvement has occurred, does such

improvement relate to the claimant’s ability to work?

5) If no medical improvement has occurred, does an

exception apply?

6) If medical improvement relates to the claimant’s

ability to work, do the claimant’s current impairments,

singly or in combination, qualify as severe?

(7) If severe impairments exist, does the claimant’s

residual functional capacity (“RFC”) permit the

performance of past relevant work?

(8) If not, does the claimant have the RFC to perform

other work existing in significant numbers in the

national economy?

20 C.F.R. § 404.1594(f)(l)-(8).5 If the Commissioner finds

conclusively that a claimant qualifies as disabled at any point in

this process, review does not proceed to the next step. See id.

5 “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 claimant’s “ability to do sustained work-related 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, or skin impairments).” Hall, 658

F.2d at 265. “RFC is to be determined by the ALJ only after [the ALJ] considers

all relevant evidence of a claimant’s impairments and any related symptoms

(e.g., pain).” Hines, 453 F.3d at 562-63.

9

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he restrictions identified by the RFC [and the

dispositive hypothetical question to the VE] do not account for

[Plaintiff]’s moderate limitation in concentration, persistence,

and pace (CPP)” (Docket Entry 14 at 9 (italics and single-spacing

omitted));

2) “[t]he ALJ erred by rejecting the [opinions] of

[Plaintiff]’s treating psychiatrist, Dr. [Brian] Wasserman” (id.

at 11 (italics and single-spacing omitted));

3) “[t]he ALJ erred by failing to consider the opinions of

treating physicians rendered prior to September 1, 2015, the

alleged date of medical improvement” (id. at 16 (italics and

single-spacing omitted)); and

4) “[t]he ALJ erred by providing insufficient reasons for

giving little weight to statements by [Plaintiff]’s husband” (id.

at 18 (italics and single-spacing omitted)).

Defendant contends otherwise and seeks affirmance of the

ALJ’s decision. (See Docket Entry 16 at 5-18.)

1. CPP

In Plaintiff’s first assignment of error, she contends that

“[t]he restrictions identified by the RFC [and the dispositive

10

hypothetical question to the VE] do not account for [Plaintiff]’s

moderate limitation in . . . CPP[].” (Docket Entry 14 at 9 (italics

and single-spacing omitted).) More specifically, Plaintiff

maintains that, pursuant to Mascio v. Colvin, 780 F.3d 632 (4th

Cir. 2015), “restricting a claimant to simple, routine work, or

unskilled work, does not account for a moderate limitation in CPP.”

(Docket Entry 14 at 9 (citing Mascio, 780 F.3d at 638).)

Additionally, Plaintiff argues “that an ALJ commits error when he

attempts to account for a moderate limitation in CPP by providing

that the claimant is to do ‘no work requiring a production rate or

demand pace,’ but does not define ‘production rate.’” (Id. (citing

Mischler v. Berryhill, 766 F. App’x 369, 376 (7th Cir. 2019),

Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019), Dwayne D.

v. Berryhill, Civ. No. 17-3809, 2019 WL 1317234, at *5 (D. Md.

Mar. 22, 2019) (unpublished), and Butler v. Berryhill, No.

1:18CV59, 2019 WL 442377, at *1 (N.D. Ind. Feb. 4, 2019)

(unpublished)).) Plaintiff further points out that, “[un]like the

RFC, which at least attempted to define ‘production rate pace[]’”

by including the parenthetical “‘(e.g., assembly line work)[,]’”

the ALJ’s dispositive hypothetical question to the VE “made no

such attempt.” (Id. at 10 (citing Tr. 110, and referencing Tr.

21).) For the reasons discussed below, Plaintiff’s contentions

lack merit.

11

The Fourth Circuit has indeed held that “the ability to

perform simple tasks differs from the ability to stay on task” and

that “[o]nly the latter limitation would account for a claimant’s

limitation in [CPP].” Mascio, 780 F.3d at 638. However, as a

neighboring district court has explained:

Mascio does not broadly dictate that a claimant’s

moderate impairment in [CPP] always translates into a

limitation in the RFC. Rather, Mascio underscores the

ALJ’s duty to adequately review the evidence and explain

the decision . . . . An ALJ may account for a claimant’s

limitation with [CPP] by restricting the claimant to

simple, routine, unskilled work where the record

supports this conclusion, either through physician

testimony, medical source statements, consultative

examinations, or other evidence that is sufficiently

evident to the reviewing court.

Jones v. Colvin, No. 7:14CV273, 2015 WL 5056784, at *10-12 (W.D.

Va. Aug. 20, 2015) (magistrate judge’s recommendation adopted by

district judge) (unpublished) (emphasis added); see also Hutton v.

Colvin, No. 2:14CV63, 2015 WL 3757204, at *3 (N.D.W. Va. June 16,

2015) (unpublished) (finding reliance on Mascio “misplaced,”

because ALJ “gave abundant explanation” for why the claimant could

perform unskilled work despite moderate limitation in CPP, by

highlighting his daily activities and treating physicians’

opinions). Here, the ALJ’s decision provides a sufficient

explanation as to why restrictions to “simple, routine, and

repetitive tasks [(‘SRRTs’)] not at a production rate pace (e.g.,

assembly line work)” involving “simple work-related decisions” and

12

only “occasional[] interact[ion] with supervisors, coworkers, and

the public” (Tr. 21) adequately accounted for Plaintiff’s moderate

deficit in CPP.

First, the ALJ discussed Plaintiff’s testimony that “her mind

races so much during manic episodes [] that she cannot think

straight” and that she “ha[s] to state aloud each step she

completes during these episodes.” (Id.; see also Tr. 93.)

However, the ALJ found Plaintiff’s “statements concerning the

intensity, persistence and limiting effects of [her] symptoms []

not entirely consistent with the objective medical and other

evidence for the reasons discussed in th[e] decision” (Tr. 22),

and Plaintiff did not challenge the ALJ’s assessment of Plaintiff’s

subjective symptom reporting (see Docket Entry 14).

Second, the ALJ summarized Plaintiff’s mental health

treatment and daily activities, making the following, pertinent

observations:

•

“[f]rom 2014 through September 2015, [Plaintiff]’s

treating psychiatrists through Duke University Health

Systems routinely observed [Plaintiff] with normal

hygiene, good eye contact, a cooperative attitude,

normal psychomotor behavior, normal speech, intact

attention/memory, intact judgment/insight, and normal

thought processes/content,” and Plaintiff’s primary

care providers “routinely observed [Plaintiff] with a

normal/pleasant mood and affect” and “assessed her

bipolar disorder as ‘stable’ on current medication”

(Tr. 23 (emphasis added) (citing Tr. 534, 537, 544,

547, 549, 555, 557, 562, 571, 573, 577, 590));

13

•

Plaintiff did not receive “any emergent psychological

treatment, except for one overnight hospitalization

in 2017” (Tr. 26) involving “bizarre behavior (i.e.,

panic and screaming[] . . . in the setting of

medication noncompliance (i.e., not taking her

Depakote for five days) and . . . [Plaintiff] admitted

to consuming a marijuana gummy bear right before her

symptoms began” (Tr. 25 (citing Tr. 987, 1120-21));

and

•

Plaintiff “reported completing almost all her

[online] college credits towards a degree in library

sciences” (Tr. 24 (citing Tr. 557)), “enjoying being

a stay-at-home mother of three school-aged children”

(id. (citing Tr. 549, 552 938)), “exercising twice

per day for 30 minutes” (Tr. 25 (citing Tr. 1082)),

“volunteering at the library” (id. (citing Tr. 979)),

“enjoying participating in Girl Scouts with her

daughter” (id. (citing Tr. 1082)), and “completing

household chores” (id. (citing Tr. 958)).

Those largely normal mental health findings and significant,

varied daily activities lend support to the ALJ’s conclusion that,

despite moderate deficit in CPP, Plaintiff remained able to perform

“[SRRTs] not at a production rate pace (e.g., assembly line work)”

involving “simple work-related decisions” and only “occasional[]

interact[ion] with supervisors, coworkers, and the public” (Tr.

21).

Third, the ALJ discussed and weighed the opinion evidence as

it related to Plaintiff’s ability to function mentally. (See Tr.

27-29.) In that regard, the ALJ gave “some weight” to the state

agency psychological consultant at the reconsideration level of

review (Tr. 27), who found that, notwithstanding moderate

limitation in CPP (see Tr. 705), Plaintiff remained able to perform

14

“SRRTs” (Tr. 707) in a “low stress, low production work

environment,” with “limited interpersonal demands,” and to

“sustain and persist long enough to complete a workday” (Tr. 711

(emphasis added)). The Fourth Circuit has found an ALJ’s reliance

on a similar opinion from a state agency psychological consultant

sufficient to account for moderate limitations in CPP under Mascio.

See Sizemore v. Berryhill, 878 F.3d 72, 80–81 (4th Cir. 2017)

(finding ALJ’s crediting of consultant’s opinion that the claimant

“would generally be able to maintain [attention] for at least two

[hours] at a time as needed to do simple, routine tasks” satisfied

Mascio).

Fourth, the ALJ’s non-production restriction, in and of

itself, adequately accounts for Plaintiff’s moderate limitation in

CPP. See Grant v. Colvin, No. 1:15CV515, 2016 WL 4007606, at *9

(M.D.N.C. July 26, 2016) (unpublished) (finding non-production

restriction “facially addresse[d] moderate . . . limitation in the

claimant’s ability to stay on task” (internal quotation marks

omitted)), recommendation adopted, slip op. (M.D.N.C. Sept. 21,

2016) (Osteen, Jr., C.J.). Indeed, despite Plaintiff’s arguments

regarding the insufficiency of the ALJ’s non-production

restriction here, a review of recent decisions from the Fourth

Circuit addressing non-production restrictions in the context of

Mascio bolsters the conclusion that the ALJ’s restrictions to

15

“[SRRTs] not at a production rate pace (e.g., assembly line work)”

involving “simple work-related decisions” and only “occasional[]

interact[ion] with supervisors, coworkers, and the public” (Tr.

21) properly accommodate Plaintiff’s moderate limitation in CPP.

As another judge of this Court recently reasoned:

In [Perry v. Berryhill, 765 F. App’x 869 (4th Cir.

2019)], the Fourth Circuit found fault with “the ALJ’s

reference to a ‘non-production oriented work setting,’”

as the Fourth Circuit “d[id] not know what the ALJ

intended when she used that phrase,” making it

“difficult, if not impossible, to evaluate whether

restricting [the plaintiff] to a ‘non-production

oriented work setting’ properly accounted for [his]

well-documented limitations in [CPP].” Perry, 765 F.

App’x at 872. In so doing, the Fourth Circuit

specifically distinguished its decision in Sizemore v.

Berryhill, 878 F.2d 72 (4th Cir. 2017), where it “found

that an ALJ had adequately explained a[n RFC] assessment

that restricted the claimant, in part, to ‘non-

production jobs,’” as “the ALJ in Sizemore provided

additional context, explaining that the claimant could

perform work only in a ‘low stress’ setting, without any

‘fast-paced work’ or ‘public contact,’ to account for

moderate limitations in [CPP],” which “descriptors

helped to explain the restriction intended by the ALJ,

and allowed [the Fourth Circuit] to evaluate whether

that restriction adequately accounted for the claimant’s

limitations.” Perry, 765 F. App’x at 872 n.1.

Ross v. Berryhill, No. 1:17CV1145, 2019 WL 1430129, at *1 (M.D.N.C.

Mar. 29, 2019) (unpublished) (Schroeder, C.J.) (emphasis added);

see also Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019)

(finding that ALJ’s preclusion of “work ‘requiring a production

rate or demand pace’” and “‘crisis situations, complex decision

making, or constant changes in a routine setting’” did not suffice

16

under facts of that case). As in Ross (and consistent with

Sizemore, as construed in Perry), the ALJ here included the

additional definition of “not at a production rate pace” as meaning

no “assembly line work,” and provided the further descriptors of

“simple work-related decisions” and only “occasional[]

interact[ion] with supervisors, coworkers, and the public” (Tr.

21). Those descriptors “help[] to explain the restriction intended

by the ALJ, and allow[ the Court] to evaluate whether that

restriction adequately accounted for [Plaintiff’s] limitations,”

Perry, 765 F. App’x at 872 n.1.

Fifth, although the ALJ did not include the additional

descriptor “assembly line work” in his dispositive hypothetical

question to the VE, the VE did not express any difficulty in

understanding the meaning of the words “production rate pace” in

responding to that hypothetical. (Tr. 109-11.)6 The VE provided

three jobs that fit within the ALJ’s non-production restriction,

Hospital Cleaner, Counter Supply Worker, and Dining Room Attendant

6 Significantly, the DOT’s definition of “light work” includes the words

“production rate pace”:

[A] job should be rated [l]ight [w]ork . . . when the job requires

working at a production rate pace entailing the constant pushing

and/or pulling of materials even though the weight of those

materials is negligible. NOTE: The constant stress and strain of

maintaining a production rate pace, especially in an industrial

setting, can be and is physically demanding of a worker even though

the amount of force exerted is negligible.

DOT, App’x C (“Components of the Definition Trailer”), § IV (“Physical Demands

- Strength Rating”), 1991 WL 688702 (emphasis added).

17

(Tr. 110), and neither the corresponding job descriptions in the

Dictionary of Occupational Titles (“DOT”), see DOT, No. 323.687-

010 (“Cleaner, Hospital”), 1991 WL 672782 (G.P.O. 4th ed. rev.

1991) (involving “[c]lean[ing] hospital patient rooms, baths,

laboratories, offices, halls, and other areas”); DOT, No. 319.687-

010 (“Counter-Supply Worker”), 1991 WL 672772 (entailing

“[r]eplenish[ing] food and equipment at steamtables and serving

counters of cafeteria to facilitate service to patrons”); DOT, No.

311.677-010 (“Cafeteria Attendant”), 1991 WL 672694 (requiring

“[c]arr[ying] trays from food counters to tables for cafeteria

patrons,” “[c]arr[ying] dirty dishes to kitchen,” “[w]ip[ing]

tables and seats,” and “[s]et[ting] tables”), nor Plaintiff in

brief (see Docket Entry 14 at 9-11) show that those jobs actually

involve a production rate pace or assembly line work.

Sixth, at the hearing before the ALJ, Plaintiff failed to

question the VE regarding the meaning of the phrase “production

rate pace” or how the jobs the VE cited adhered to that

restriction, despite the fact that she had the opportunity (through

her attorney) to cross-examine the VE. (See Tr. 111-12.) As a

result, Plaintiff has waived, in this Court, any challenge to the

ALJ’s reliance upon (and adoption of) the VE’s testimony that the

three jobs in question could accommodate the ALJ’s non-production

restriction. See Stepinski v. Astrue, No. CA 11–183, 2012 WL

18

3866678, at *9–10 (D.R.I. Aug. 6, 2012) (unpublished) (“The [c]ourt

views unfavorably the silence of [the p]laintiff’s counsel at the

hearing regarding the omission about which he now complains.

Reversal and remand . . . would encourage other counsel to remain

silent in similar circumstances. This [c]ourt is disinclined to

provide such an incentive[] . . . [and] finds that [the p]laintiff

waived this issue by failing to raise it before the ALJ.” (internal

citations omitted)), recommendation adopted, 2012 WL 3863812

(D.R.I. Sept. 5, 2012) (unpublished).

In short, Plaintiff’s first assignment of error fails as a

matter of law.

2. Opinions of Dr. Wasserman

Next, Plaintiff argues that “[t]he ALJ erred by rejecting the

[opinions] of [Plaintiff]’s treating psychiatrist, Dr. Wasserman.”

(Docket Entry 14 at 11 (italics and single-spacing omitted).) In

particular, Plaintiff contends that the ALJ failed to “cite

persuasive contradictory evidence in rejecting Dr. Wasserman’s

opinions” and “overlook[ed] that [Plaintiff] has [b]ipolar

[d]isorder, an impairment which is ‘by nature episodic and admits

to regular fluctuations even under proper treatment.’” (Id. at 13

(quoting Jelinek v. Astrue, 662 F.3d 805, 814 (7th Cir. 2011)).)

Those arguments fail to establish an entitlement to relief.

19

Plaintiff asserts that, “[t]o reject a treating physician’s

opinion, the ALJ’s reasoning must cite persuasive contradictory

evidence,” citing Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.

1987). (Docket Entry 14 at 12.) However, Plaintiff’s phrasing of

the “treating physician rule” as including the “persuasive

contradictory evidence” language no longer represents the

governing standard. See Stroup v. Apfel, No. 96–1722, 205 F.3d

1334 (table), 2000 WL 216620, at *5 (4th Cir. Feb. 24, 2000)

(unpublished) (expressly rejecting “persuasive contradictory

evidence” standard and noting that “[t]he 1991 regulations

supersede[d] the ‘treating physician rule’ from our prior case

law”); Shrewsbury v. Chater, No. 94–2235, 68 F.3d 461 (table),

1995 WL 592236, at *2 n.5 (4th Cir. Oct. 6, 1995) (unpublished)

(observing that, “[a]s regulations supersede contrary precedent,

the cases cited by [the plaintiff] defining the scope of the

‘treating physician rule’ decided prior to [the 1991] regulations

are not controlling” (internal citation omitted)); Brown v.

Astrue, Civil Action No. CBD10–1238, 2013 WL 937549, at *4 (D. Md.

Mar. 8, 2013) (unpublished) (deeming “persuasive contradictory

evidence” a “defunct legal standard” in light of 1991 regulations);

Benton v. Astrue, Civil Action No. 0:09–892–HFF–PJG, 2010 WL

3419272, at *1 (D.S.C. Aug. 30, 2010) (unpublished) (holding that

1991 regulation “supersedes any prior Fourth Circuit’s common law

20

treating physician rule that is contrary to it”); Winford v.

Chater, 917 F. Supp. 398, 400 (E.D. Va. 1996) (finding “persuasive

contrary evidence . . . the wrong legal standard”); Ward v. Chater,

924 F. Supp. 53, 55–56 (W.D. Va. 1996) (recognizing that 1991

regulations supersede “persuasive contradictory evidence”

standard).7

Under the governing standard, the treating source rule

generally requires an ALJ to give controlling weight to the opinion

of a treating source regarding the nature and severity of a

claimant’s impairment. 20 C.F.R. § 404.1527(c) (“[T]reating

sources . . . provide a detailed, longitudinal picture of [a

claimant’s] medical impairment(s) and 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.”). The rule also recognizes, however, that not

all treating sources or treating source opinions merit the same

deference. The nature and extent of each treatment relationship

appreciably tempers the weight an ALJ affords an opinion. 20

7 In Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005), the Fourth Circuit

stated that an ALJ could discredit treating physician opinion in light of

“persuasive contrary evidence,” Johnson, 434 F.3d at 654 n.5; however, that

does not mean that any rationale for rejection of such opinion must cite

persuasive contradictory evidence. See, e.g. Craig, 76 F.3d at 590 (recognizing

that, if treating source’s opinion “is not supported by clinical evidence or it

is inconsistent with other substantial evidence, it should be accorded

significantly less weight” (emphasis added)).

21

C.F.R. § 404.1527(c)(2)(ii). Moreover, as subsections (2) through

(4) of the rule describe in great detail, a treating source’s

opinion, like all medical opinions, deserves deference only if

well-supported by medical signs and laboratory findings and

consistent with the other substantial evidence in the case record.

20 C.F.R. § 404.1527(c)(2)-(4). “[I]f a physician’s opinion is

not supported by clinical evidence or if it is inconsistent with

other substantial evidence, it should be accorded significantly

less weight.” Craig, 76 F.3d at 590 (emphasis added).

On October 6, 2015, Dr. Wasserman signed a “To Whom It May

Concern” letter (“2015 Letter”), which states, in pertinent part,

as follows:

This letter is written by request of [Plaintiff]

concerning her current functional status.

I have been psychiatrist [sic] for [Plaintiff] since

6/2015 for her type 1 bipolar disorder. At this time,

[Plaintiff] continues to experience symptoms associated

with her bipolar disorder. Due to these symptoms, I

would recommend that she remain on disability.

(Tr. 599.) Under a year later, on August 4, 2016, Dr. Wasserman

completed a second “To Whom It May Concern” letter (“2016 Letter”),

opining as follows:

This letter is written by request of [Plaintiff]

concerning her current functional status.

I have been the psychiatrist for [Plaintiff] since June

2015 for her type 1 bipolar disorder. [Plaintiff]

remains under treatment for her disorder and continues

to experience cycles of debilitating symptoms including

22

mood disturbances, excess or decreased energy, and sleep

disturbances every three to four months. Previous and

recent attempts at employment or extended volunteer

experiences led to rapid decompensation in her

psychiatric symptoms followed by several weeks of

recovery. Due to these issues, [Plaintiff] has been

unable to maintain employment and would benefit from

continued disability.

(Tr. 918.)

Just over a month later, Dr. Wasserman completed a pre-printed

form entitled “Medical Source Statement About What the Claimant

Can Still Do Despite Mental Impairment(s)” (“MSS”) (Tr. 912-15),

indicating that Plaintiff’s mental symptoms included appetite,

sleep, and mood disturbance, personality change, emotional

lability, psychomotor agitation or retardation, difficulty

thinking or concentrating, social withdrawal, intrusive

recollections of a traumatic experience, and

hostility/irritability (Tr. 912). Dr. Wasserman opined that

Plaintiff’s bipolar symptoms caused her to suffer “[m]arked

[l]oss” of her abilities to understand, remember, and carry out

detailed instructions (Tr. 913), “[m]aintain attention and

concentration for extended periods, i.e. 2 hour segments” (id.),

“[c]omplete a normal workday or work week without interruptions

from psychologically based symptoms” (id.), and “[p]erform at a

consistent pace without an unreasonable number and length of rest

periods” (id.), as well as “[m]oderate [l]oss” of her abilities to

“[m]aintain regular attendance and be punctual” (id.), “[s]ustain

23

an ordinary routine without special supervision” (id.), “[w]ork in

coordination with or proximity to others without being unduly

distracted” (id.), “[g]et along with coworkers and peers without

unduly distracting them or exhibiting behavioral extremes” (Tr.

915), “[r]espond appropriately to changes in a routine work

setting” (id.), and “[b]e aware of normal hazards and take

appropriate precautions” (id.). According to Dr. Wasserman,

Plaintiff’s bipolar symptoms would cause “[s]light” limitation in

Plaintiff’s ability to maintain social functioning, would

“[o]ften” cause “[d]eficiencies of [CPP] resulting in a failure to

complete tasks in a timely manner,” would result in “[r]epeated”

episodes of decompensation, and would cause her to miss work more

than three days per month. (Tr. 914.)

The ALJ accorded Dr. Wasserman’s opinions “little weight”

based upon the following rationale:

In October 2015, [Dr. Wasserman] recommended [Plaintiff]

remain “on disability” due to her bipolar symptoms. Dr.

Wasserman may be a treating specialist, but he did not

even begin treating [Plaintiff] until July 2015, which

means he only treated [Plaintiff] for four months prior

to rendering his opinion. Importantly, his examination

of [Plaintiff] revealed entirely normal findings.

Moreover, numerous examinations by [psychiatrist] Dr.

[Thomas] Recore in 2014 and 2015 routinely revealed

normal findings . . . . In addition, in June 2015, Dr.

Recore noted [Plaintiff] was doing “quite well” on a

simplified medication regimen and had “no complaints.”

In short, Dr. Wasserman’s [2015 Letter] is inconsistent

with the objective medical evidence. Finally, his [2015

Letter] is inconsistent with [Plaintiff]’s reported

activities of nearly completing a college degree in

24

library sciences while caring for her three minor

children . . . . For these reasons, his opinion is

accorded little weight.

For similar reasons, the extreme limitations found in

Dr. Wasserman’s [MSS and 2016 Letter] are also accorded

little weight. For example, he opined [Plaintiff]

“cycles” through “debilitating symptoms” such that even

a recent attempt at employment resulted in

“decompensation” and that [Plaintiff] would miss more

than three days of work per month. However, this is

highly inconsistent with Dr. Wasserman’s numerous

examinations of [Plaintiff] revealing normal psychiatric

findings . . . . It is also inconsistent with

[Plaintiff]’s reported activities of taking college

courses and caring for three minor children. Finally,

it is inconsistent with Dr. Wasserman’s routine

assessment that [Plaintiff] was doing well with “mild”

mood fluctuations and decreased severity in cycling with

Abilify . . . . For these reasons, his [MSS and 2016

Letter] are accorded little weight.

(Tr. 28 (internal citations omitted).)

Plaintiff first faults the ALJ for according little weight to

Dr. Wasserman’s 2015 Letter because “he lacked sufficient

familiarity with [Plaintiff] and her condition” and for

“assum[ing] that treating [Plaintiff] for four months was not

enough.” (Docket Entry 14 at 13 (citing Tr. 28).) According to

Plaintiff, “[t]h[at] finding clearly usurps a treating []

psychiatrist’s expertise; it is presumptuous of a layman ALJ to

say that four months is too brief a period for a trained

psychiatrist to reach a reasonable, reliable conclusion regarding

a patient’s mental impairments.” (Id.)

25

Plaintiff’s argument fails for two reasons. First, the ALJ

deemed Dr. Wasserman a “treating specialist” (Tr. 28), despite the

fact that, at the time he signed the 2015 Letter, he had only

treated Plaintiff on two occasions, July 7, 2015 (see Tr. 649

(characterizing treatment as Plaintiff’s “first visit”)), and

October 6, 2015 (see Tr. 654), the day he signed the 2015 Letter

(see Tr. 599). See Williams v. Berryhill, No. 1:17CV16, 2017 WL

4083574, at *8 (M.D.N.C. Sept. 14, 2017) (unpublished) (expressing

“doubt” whether medical source who had treated the plaintiff once

at time of opinion qualified as treating physician under

regulations), recommendation adopted, 2017 WL 5989201 (M.D.N.C.

Dec. 1, 2017) (unpublished) (Biggs, J.), aff’d, 729 F. App’x 262

(4th Cir. 2018); see also 20 C.F.R. § 404.1527(c)(2)(i) (“When the

treating source has seen [a claimant] a number of times and long

enough to have obtained a longitudinal picture of [the claimant’s]

impairment, [the SSA] will give the source’s opinion more weight

than [the SSA] would give it if it were from a nontreating source.”

(emphasis added)). Second, even if Dr. Wasserman constituted a

treating psychiatrist at the time of the 2015 Letter, the

regulations require the ALJ to consider the length of the treatment

relationship when determining how much weight to afford an opinion.

See 20 C.F.R. § 404.1527(c)(2)(i) (“Generally, the longer a

treating source has treated [a claimant] and the more times [a

26

claimant] ha[s] been seen by a treating source, the more weight

[an ALJ] will give to the source’s medical opinion.”).

Next, although Plaintiff deems the ALJ’s reliance on Dr.

Recore’s observations that Plaintiff remained “‘quite well’” with

“‘no complaints’” a “facially more defensible objection to Dr.

Wasserman’s opinion” (Docket Entry 14 at 13 (quoting Tr. 28)),

Plaintiff nonetheless complains that the ALJ’s rationale

“overlook[ed] that [Plaintiff] has [b]ipolar [d]isorder, an

impairment which is ‘by nature episodic and admits to regular

fluctuations even under proper treatment’” (id. (quoting Jelinek,

662 F.3d at 814, and citing Bauer v. Astrue, 532 F.3d 606 (7th

Cir. 2008), Sorensen v. Barnhart, 69 F. App’x 864 (9th Cir. 2003),

and Hunt v. Astrue, 889 F. Supp. 2d 1129, 1145 (E.D. Wis. 2012))).

As an initial matter, the ALJ expressly acknowledged the

cyclical nature of Plaintiff’s bipolar disorder (see Tr. 23-26),

as well as Plaintiff’s reports of the frequency and severity of

her cycling (see Tr. 21), but found her statements not entirely

consistent with the record evidence (see Tr. 22), a finding not

challenged by Plaintiff here (see Docket Entry 14). Moreover,

Plaintiff’s argument would have more probative force if the ALJ

had cherry-picked a few normal and/or mild mental health findings

in Dr. Recore’s records and overlooked more severe findings. See

Sorensen, 69 F. App’x at 866 (rejecting ALJ’s finding that treating

27

sources’ records contradicted their disability opinions “because

the[ records] contained references to [the plaintiff’]s feeling

and functioning better at certain times,” and noting that, although

the plaintiff’s “symptoms sometimes improved in response to, for

example, a new medication, [] they often worsened or plateaued

later” (emphasis added)). Here, the ALJ relied on normal and/or

mild mental health findings in the reports of both Dr. Recore and

Dr. Wasserman, and noted, accurately, that Dr. Wasserman’s

opinions conflicted with the consistently normal findings in both

doctors’ records, as well as with Plaintiff’s significant daily

activities. (Tr. 28.)

Plaintiff next asserts that, “even if Dr. Recore’s statements

do irreconcilably conflict with Dr. Wasserman’s, the ALJ’s

reasoning assumes without explanation that Dr. Recore’s statements

should prevail.” (Docket Entry 14 at 14-15.) According to

Plaintiff, “th[at] reasoning is insufficient; the ALJ must explain

why Dr. Recore’s conclusions, rather than Dr. Wasserman’s, are

more persuasive.” (Id. at 15 (citing Casteel v. Colvin, No.

4:12CV445, 2013 WL 1316389, at *19 (E.D. Mo. Mar. 29, 2013)

(unpublished)).) That argument falls short, because the ALJ did

not evaluate any opinions from Dr. Recore and then accord more

weight to Dr. Recore’s opinions than to those of Dr. Wasserman.

Instead, the ALJ merely noted, in compliance with the regulations

28

and Craig, that both Dr. Recore’s and Dr. Wasserman’s normal and/or

mild findings on mental status examination conflicted with Dr.

Wasserman’s significant mental restrictions (Tr. 28). See Craig,

76 F.3d at 590 (“[I]f a physician’s opinion is not supported by

clinical evidence or if it is inconsistent with other substantial

evidence, it should be accorded significantly less weight.”

(emphasis added)).

In sum, the ALJ did not err by according Dr. Wasserman’s

opinions little weight and supported his rationale for doing so

with substantial evidence.

3. Medical Opinions Pre-Dating the CPD

In her third assignment of error, Plaintiff contends that

“[t]he ALJ erred by failing to consider the opinions of treating

physicians [Dr. L.D. Empting, Dr. Austin B. Hall, and Dr. Nerissa

M. Price] rendered prior to September 1, 2015, the alleged date of

medical improvement.” (Docket Entry 14 at 16 (italics and single-

spacing omitted) (referencing Tr. 28-29, 714-23, 724-25, 782-87).)8

In that regard, Plaintiff asserts that, “although the ALJ said he

gave th[o]se opinions ‘little weight,’ he apparently did not really

consider them at all, for he did not repeat a word of their

substance.” (Id. (citing Tr. 28-29).) According to Plaintiff,

8 Contrary to Plaintiff’s representation, Dr. Empting did not qualify as

Plaintiff’s “treating physician” (Docket Entry 14 at 16). Dr. Empting performed

a one-time, consultative neuropsychiatric evaluation of Plaintiff at the request

of the SSA. (See Tr. 714-23.)

29

the Fourth Circuit has “rejected th[e] proposition” that medical

opinions offered “outside of the relevant adjudicatory period

[are] ipso facto irrelevant.” (Id. at 16-17 (citing Bird v.

Commissioner of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012))

(internal quotation marks omitted).) Plaintiff emphasizes that,

because her bipolar disorder qualified as “disabling before

September 1, 2015, and since . . . [her] lifelong [b]ipolar

[d]isorder [] is still reasonably likely to cause the symptoms she

repeatedly alleged after September 1, 2015, it is clearly plausible

that the factors that caused her disability before September 1,

2015, are still at work.” (Id. at 17-18 (internal quotation marks

omitted).) Plaintiff’s third issue on review misses the mark.

The ALJ offered the following rationale for discounting the

opinions in question:

All opinions rendered prior to the date of medical

improvement are accorded little weight [(Tr. 714-23

(Empting), 724-25 (Hall), 782-87 (Price))]. In short,

these opinions assess [Plaintiff]’s functioning outside

of the relevant adjudicatory period. In addition, they

are largely remote and were rendered several years prior

to the date of medical improvement. Further, they lacked

the opportunity to consider [Plaintiff]’s recent medical

treatment. For these reasons, these opinions are

collectively accorded little weight.

(Tr. 28-29.) Contrary to Plaintiff’s contentions, the ALJ did not

violate Bird or otherwise err by discounting the opinions at issue.

As an initial matter, because Plaintiff did not further appeal

the ALJ decision denying benefits dated May 26, 2011 (see Tr. 41,

30

59, 85, 498), and instead filed a new DIB application on June 27,

2011 (see Tr. 382-85), res judicata applies to the period including

and preceding the ALJ’s denial decision of May 26, 2011. See

Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 476

n.4 (4th Cir. 1999) (noting that, “to the extent that a second or

successive application seeks to relitigate a time period for which

the claimant was previously found ineligible for benefits, the

customary principles of [claim] preclusion apply with full force”

and finding ALJ’s dismissal of claims relating to previously

adjudicated period “entirely proper”).9 Here, Dr. Empting

conducted his consultative neuropsychiatric evaluation of

Plaintiff on March 18, 2011 (see Tr. 714), and Dr. Hall dated his

“To Whom It May Concern” letter April 15, 2011 (Tr. 724). Because

both of those opinions fall within the previously adjudicated time

period covered by res judicata, the ALJ did not err by discounting

those opinions because they “assess [Plaintiff]’s functioning

outside of the relevant adjudicatory period” (Tr. 28).10

9 None of the ALJs who issued decisions after the denial decision of May 26,

2011, expressly applied res judicata to the period including and preceding May

26, 2011 (see Tr. 12-31, 134-43, 146-64), because, as stated above, Plaintiff

amended her onset date to May 27, 2011 (see Tr. 41, 138, 384).

10 Notably, neither the ALJ who determined in a decision dated July 24, 2013,

that Plaintiff qualified as disabled as of May 27, 2011, nor the ALJ who issued

the decision on May 1, 2017, finding that Plaintiff’s disability ended on

September 23, 2015, discussed (let alone weighed) the opinions of Drs. Empting

and Hall. (See Tr. 134-43, 146-64.) Furthermore, neither Plaintiff’s counsel

in the request for review of the ALJ decision of May 1, 2017, nor the Appeals

Council in remanding the matter, faulted the ALJ for not discussing and/or

weighing the opinions in question. (See Tr. 171-75, 323-36, 500-04.)

31

Dr. Price’s MSS dated August 1, 2011 (see Tr. 782-86),

presents a different question, because she offered her opinion

approximately two months into the CPD (see Tr. 782), and the ALJ

who found that Plaintiff qualified as disabled as of May 27, 2011,

both discussed Dr. Price’s opinion and assigned it “great weight”

(Tr. 141). Because Dr. Price’s MSS formed a significant part of

the rationale undergirding the CPD, the ALJ’s decision to discount

Dr. Price’s opinions because they “assess [Plaintiff]’s

functioning outside of the relevant adjudicatory period” (Tr. 28)

constitutes error.

Further consideration of the time period and circumstances

covered by Dr. Price’s MSS, however, should persuade the Court to

find such error harmless. See generally Bishop v. Commissioner of

Soc. Sec., 583 F. App’x 65, 67 (4th Cir. 2014) (“[A]ny error is

reviewed under the harmless error doctrine.”); Fisher v. Bowen,

869 F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]o principle

of administrative law or common sense requires us to remand a case

in quest of a perfect opinion unless there is reason to believe

that the remand might lead to a different result”). Dr. Price

noted on the MSS, dated August 1, 2011, that she had treated

Plaintiff “since Feb[ruary] 2011” (see Tr. 782), and the record

contains five treatment records from Dr. Price dating from March

22, 2011, to July 12, 2011, with only the July 2011 visit falling

32

within the CPD (see Tr. 726-27, 757-58, 759-60, 761-62, 763-64).

Those records further reflect that Dr. Price treated Plaintiff

during a time of heightened stress triggered by a burglary of

Plaintiff’s home, an ensuing move to a new home, and Plaintiff’s

pregnancy. (See id.) Indeed, Dr. Price noted on her MSS that

Plaintiff’s pregnancy “limited [] the medications she c[ould]

tolerate” to treat her psychiatric symptoms. (Tr. 783.) In light

of those circumstances, the Court should conclude that remanding

the case for a more complete explanation by the ALJ for discounting

Dr. Price’s opinions would not result in a favorable outcome for

Plaintiff.

Moreover, Plaintiff’s reliance on Bird falls short. In that

case, the plaintiff “d[id] not have any medical records dating

before his [date last insured (‘DLI’) for benefits]” of March 31,

2005. Bird, 699 F.3d at 341 (emphasis added). “In July 2007,

[the plaintiff] was evaluated by . . . a licensed clinical

psychologist, who concluded that [the plaintiff wa]s not capable

of relating to supervisors or co-workers at any level.” Id. “The

ALJ assigned little weight to the [psychologist’s opinions] on the

basis that [they] failed to reflect [the plaintiff]’s pre–DLI

condition.” Id. The Fourth Circuit concluded that “[t]he ALJ's

failure to give retrospective consideration to the [psychologist’s

opinion] created after [the plaintiff]’s DLI was an error of law,”

33

because that evidence “provided a sufficient linkage ‘reflective

of a possible earlier and progressive degeneration.’” Id. at 342

(quoting Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)).

Here, unlike in Bird, the record contains a significant amount

of mental health treatment records, as well as three new

consultative examinations, post-dating the CPD, which support the

ALJ’s finding that Plaintiff’s functioning improved during the

post-CPD period (see Tr. 530-694, 895-939, 942-46, 949-1189). See

Emrich v. Colvin, 90 F. Supp. 3d 480, 487 (M.D.N.C. 2015) (“This

case is not like Bird. There is substantial evidence in the record

concerning [the plaintiff]’s pre-DLI condition.”). Indeed, as the

Commissioner notes, far from showing that Plaintiff’s condition

worsened over time, the opinions from Drs. Empting, Hall, and Price

actually “demonstrate the stark contrast between [Plaintiff’s]

disabling condition in 2011 and the remarkable improvement that

she made in 2015.” (Docket Entry 16 at 17.)

Simply put, Plaintiff’s third issue on review falls short.

4. Third Party Function Reports

Lastly, Plaintiff faults the ALJ for “providing insufficient

reasons for giving little weight to statements from [Plaintiff]’s

husband.” (Docket Entry 14 at 18 (italics and single-spacing

omitted) (referencing Tr. 29).) More specifically, Plaintiff

challenges the ALJ’s rationale that Plaintiff’s husband “does not

34

specialize in psychiatry or psychology” as “indefensible.” (Id.

at 19 (quoting Tr. 29).) According to Plaintiff, her husband’s

statements “are the kinds of opinions drawn from everyday, rational

observations that courts routinely find to be admissible as lay

opinion evidence” (id. (citing Fed. R. Evid. 701)), and “the

evidentiary rules are greatly relaxed, not constricted, in []

administrative hearings [before ALJs]” (id. at 20). Plaintiff

further argues that, “even if the ALJ rightly concluded that

[Plaintiff’s husband] was incorrect” in stating that Plaintiff

could only pay attention for a few minutes, “th[a]t was no reason

to dismiss [all of the opinions of Plaintiff’s husband] as having

‘little weight.’” (Id. (quoting Tr. 29, and referencing Tr. 454).)

Those arguments ultimately fail to carry the day.

The ALJ provided the following analysis of the opinions of

Plaintiff’s husband:

Although the Third Party Function Reports completed by

[Plaintiff]’s husband . . . generally corroborate

[Plaintiff]’s allegations, [her husband] does not

specialize in psychiatry or psychology. [(Tr. 427-36,

447-56, 498-99.)] In addition, his extreme reports

(e.g., [Plaintiff] can only pay attention for a few

minutes) are inconsistent with numerous clinical

examinations revealing normal findings, no psychological

counseling sessions, and only one emergent psychological

visit in the setting of [marijuana] use . . . .

Similarly, the record does not reflect a single

emergency room visit for intractable migraines since the

date of medical improvement. For these reasons,

[Plaintiff’s husband’s] opinion is accorded little

weight.

35

(Tr 29.) Contrary to Plaintiff’s contentions, the ALJ’s above-

quoted analysis provided sufficient reasons supported by

substantial evidence for discounting the opinions in question.

As an initial matter, the ALJ’s observation that Plaintiff’s

husband “d[id] not specialize in psychiatry or psychology” (id.),

although an apparently accurate statement, does not constitute a

particularly compelling consideration for an ALJ assessing the

opinions of a non-medical source, see Social Security Ruling 06-

03p, Titles II and XVI: Considering Opinions and Other Evidence

From Sources Who Are Not “Acceptable Medical Sources” in Disability

Claims; Considering Decisions on Disability by Other Governmental

and Nongovernmental Agencies, 71 F.R. 45593-03, 45596 (Aug. 9,

2006) (noting that, in evaluating “[o]pinions from ‘non-medical

sources’ who have seen [a claimant] in their professional capacity

. . . such as teachers, counselors, and social workers . . . and

other non-medical professionals, it would be appropriate [for

ALJs] to consider such factors as . . . the source’s

qualifications[ and] . . . area of specialty or expertise,” but

not including such factors for ALJs “considering evidence from

‘non-medical sources’ who have not seen [a claimant] in a

professional capacity . . ., such as spouses, parents, friends,

and neighbors”). However, the ALJ also discounted the opinions as

“inconsistent” with other evidence and provided examples. (Tr.

36

29.) Moreover, the ALJ’s inclusion of the parenthetical, “e.g.,

[Plaintiff] can only pay attention for a few minutes,” makes clear

that the ALJ did not discount all of the opinions of Plaintiff’s

husband solely on the basis of his assessment of Plaintiff’s

attention span, but rather highlighted that assessment to

exemplify the extent to which those opinions conflicted with the

other record evidence. (Id.)

Simply put, the ALJ did not reversibly err by discounting the

opinions of Plaintiff’s husband.

III. CONCLUSION

Plaintiff has not established any errors warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

Judgment on the Pleadings (Docket Entry 13) be denied, that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 15)

be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld_______

L. Patrick Auld

United States Magistrate Judge

April 21, 2020

37