# BECKSTROM v. SAUL

> District Court, M.D. North Carolina · April 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10253447

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253447

## How later opinions describe it (automated extraction)

- 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”
- 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
- 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)
- finding “persuasive contrary evidence . . . the wrong legal standard”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253447. Public record. Not legal advice.