MARAVEL v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DEVIN JAMES MARAVEL, )

)

Plaintiff, )

)

v. ) 1:20CV624

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Devin James Maravel, 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,

denying Plaintiff’s claim for Adult Child’s Disability Benefits

(“CDB”) and Supplemental Security Income (“SSI”). (Docket Entry

1.) 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 Memorandum); Docket Entry 16 (Defendant’s

Memorandum)). For the reasons that follow, the Court should enter

judgment for Defendant.

I. PROCEDURAL HISTORY

Plaintiff applied for CDB and SSI (Tr. 268-74), alleging a

disability onset date of July 1, 2008 (see Tr. 268, 269).1

1 Plaintiff filed two applications for CDB, one based upon the earnings record

of his disabled mother, and the other based on the earnings record of his

(continued...)

Following denial of those applications initially (Tr. 69-110) and

on reconsideration (Tr. 111-73, 177-86), Plaintiff requested a

hearing de novo before an Administrative Law Judge (“ALJ”)

(Tr. 187-89). Plaintiff, his attorney, and a vocational expert

(“VE”) attended the hearing. (Tr. 36-68.) The ALJ subsequently

ruled that Plaintiff did not qualify as disabled under the Act.

(Tr. 12-27.) The Appeals Council thereafter denied Plaintiff’s

request for review (Tr. 1-6, 264-67, 401-04), thereby making the

' (...continued)

deceased father. (See Tr. 15, 268.) To qualify for CDB, an individual must, at

the time of application, 1) remain unmarried, 2) remain a dependent of the

person(s) on whose earnings record(s) the individual bases his CDB claim(s), and

3) either not have attained the age of 18 or have attained the age of 18 and

remain under a disability which began before the individual attained the age of

22. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a) (5). Plaintiff filed his CDB

applications shortly after attaining the age of 18, and the ALJ adjudicated

Plaintiff’s CDB claims before Plaintiff attained the age of 22. (See Tr. 17, 27,

268.) Thus, to qualify for CDB, Plaintiff must, at a minimum, show that he

remained disabled as of November 22, 2016, the date he filed his CDB

applications. See Smolen v. Chater, 80 F.3d 1273, 1280 (9th Cir. 1996) (holding

that CDB “claimant must be disabled continuously and without interruption

beginning before her twenty-second birthday until the time she applied for

[CDB]”). Similarly, notwithstanding Plaintiff’s onset date of July 1, 2008,

Plaintiff lacked eligibility for SSI benefits until his application date of

October 6, 2016. See 20 C.F.R. §$ 416.202 (explaining that a claimant remains

ineligible for SSI benefits until the date he or she files an SSI application);

20 C.F.R. § 416.501 (stating that a claimant may not receive SSI benefits for any

period that predates the first month he or she satisfies the eligibility

requirements, which cannot precede the application date). Threshold eligibility

requirements aside, the standards for demonstrating disability in a CDB claim

match those of claims for SSI. See 42 U.S.C. § 402(d) (providing that 42 U.S.C.

§ 423(d) supplies applicable definition of “disability” for CDB claims); 42

U.S.C. § 423(d) (1) (A) (setting forth standard definition of “disability” for

Disability Insurance Benefits (“DIB”) claims, i.e., “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted

or can be expected to last for a continuous period of not less than 12 months”);

42 U.S.C. § 1382c(a) (3) (A) (describing same standard of disability for SSI

claims); see also Craig v. Chater, 76 F.3d 585, 589 n.1 (4th Cir. 1996) ([DIB]

provides benefits to disabled persons who have contributed to the program while

employed. [SSI] provides benefits to indigent disabled persons. The statutory

definitions and the regulations .. . for determining disability governing these

two programs are . . . substantively identical.” (internal citations omitted)).

ALJ’s ruling the Commissioner’s final decision for purposes of

judicial review.

In rendering that disability determination, the ALJ made the

following findings:

1. . . . [Plaintiff] had not attained age 22 as of July

1, 2008, the alleged onset date.

2. [Plaintiff] has not engaged in substantial gainful

activity since July 1, 2008, the alleged onset date.

. . .

3. [Plaintiff] has the following severe impairment(s):

fibromyalgia, hypertension, gastroesophageal reflux

disease (GERD), obesity, Asperger’s Disorder,

post-traumatic stress disorder [(“PTSD”)], mood disorder,

and bipolar affective disorder.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

5. . . . [Plaintiff] has the residual functional

capacity to perform light work . . . except he has

frequent use of bilateral upper and lower extremities for

pushing, pulling, or hand and foot controls and frequent

use of bilateral upper extremities for handling,

fingering, and feeling. He can occasionally climb ramps,

stair, ladders, ropes or scaffolds. He can occasionally

balance, stoop, kneel, crouch, and crawl. He can have

frequent exposure to extreme heat and cold, unprotected

heights, and moving mechanical parts. He can understand

and carry out a variety of complex and simple

instructions, but can only sustain attention to perform

simple tasks in an environment with no work-related

contact with the general public and only occasional

interaction with coworkers.

. . .

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6. [Plaintiff] has no past relevant work.

. . .

10. Considering [Plaintiff]’s age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [he] can perform.

. . .

11. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from July 1, 2008, through the

date of this decision.

(Tr. 17-27 (bold font and internal parenthetical citations

omitted).)

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 [the Court’s] 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,

the Court “must uphold the factual findings of the ALJ 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

4

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, 401 (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) (brackets and internal

quotation marks omitted). “If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there

is substantial evidence.” Hunter, 993 F.2d at 34 (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 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

[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

“[a] claimant for disability benefits bears the burden of proving

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a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and 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,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)). “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . 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. “These regulations establish a

‘sequential evaluation process’ to determine whether a claimant is

disabled.” Id.

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475

6

n.2 (4th Cir. 1999).2 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s residual functional capacity

(‘RFC’).” Id. at 179.3 Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant

work; if so, the claimant does not qualify as disabled. See id. at

179-80. However, if the claimant establishes an inability to

2 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

3 “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.

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return to prior work, the analysis proceeds to the fifth step,

whereupon the ALJ must decide “whether the claimant is able to

perform other work considering both [the claimant’s RFC] and [the

claimant’s] vocational capabilities (age, education, and past work

experience) to adjust to a new job.” Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary

burden of proving that [the claimant] remains able to work other

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.4

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he [ALJ]’s finding that [Plaintiff] does not meet a

Mental Disorder Listing is not supported by substantial evidence”

(Docket Entry 14 at 3 (bold font and single-spacing omitted));

2) “[t]he ALJ committed error by failing to include

schizoaffective disorder and anxiety disorder as severe

impairments” (id. at 12 (bold font and single-spacing omitted));

and

4 A claimant thus can establish disability via two paths through the SEP. The

first path requires resolution of the questions at steps one, two, and three in

the claimant’s favor, whereas, on the second path, the claimant must prevail at

steps one, two, four, and five. Some short-hand judicial characterizations of

the SEP appear to gloss over the fact that an adverse finding against a claimant

on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at

35 (“If the ALJ finds that a claimant has not satisfied any step of the process,

review does not proceed to the next step.”).

8

3) “[t]he mental RFC is not supported by substantial evidence”

(id. at 15 (bold font omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 16 at 12-22.)

1. Listings 12.04, 12.10, and 12.15

In Plaintiff’s first assignment of error, he asserts that

“[t]he [ALJ]’s finding that [Plaintiff] does not meet a Mental

Disorder Listing is not supported by substantial evidence.”

(Docket Entry 14 at 3 (bold font and single-spacing omitted).) In

particular, Plaintiff maintains that he met the requirements of

Listings 12.04 (“Depressive, bipolar and related disorders”), 12.10

(“Autism spectrum disorder”), and 12.15 (“Trauma- and stressor-

related disorders”), because his mental impairments caused extreme

limitation in his abilities to interact with others (see id. at 6-

8), concentrate, persist, or maintain pace (“CPP”) (see id. at 8-

9), and adapt/manage himself (see id. at 9-11). Plaintiff further

contends that “[t]he ALJ used non sequiturs in her [listings]

analysis,” in that “[t]he facts she cited did not support the

conclusions she reached.” (Id. at 11.) Plaintiff additionally

faults the ALJ for neither “discuss[ing] the detailed daily records

of Turning Point that specifically address the B criteria” of the

listings at issue, nor analyzing “how [Plaintiff]’s autism and

hallucinations affect his concentration or his interaction with

others.” (Id.) Those contentions fail to warrant relief.

9

“Under Step 3, the [SEP] regulation states that a claimant

will be found disabled if he or she has an impairment that ‘meets

or equals one of [the] listings in [A]ppendix 1 of [20 C.F.R. Pt.

404, Subpt. P] and meets the duration requirement.’” Radford v.

Colvin, 734 F.3d 288, 293 (4th Cir. 2013) (quoting 20 C.F.R.

§ 404.1520(a)(4)(iii)) (internal bracketed numbers omitted). “The

listings set out at 20 CFR [P]t. 404, [S]ubpt. P, App[’x] 1, are

descriptions of various physical and mental illnesses and

abnormalities, most of which are categorized by the body system

they affect. Each impairment is defined in terms of several

specific medical signs, symptoms, or laboratory test results.”

Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (internal footnote

and parentheticals omitted). “In order to satisfy a listing and

qualify for benefits, a person must meet all of the medical

criteria in a particular listing.” Bennett, 917 F.2d at 160

(citing Zebley, 493 U.S. at 530, and 20 C.F.R. § 404.1526(a)); see

also Zebley, 493 U.S. at 530 (“An impairment that manifests only

some of th[e] criteria [in a listing], no matter how severely, does

not qualify.”).

The ALJ here apparently assumed without express analysis that

Plaintiff’s mood disorder/bipolar affective disorder, Asperger’s

disorder, and PTSD met the paragraph A criteria of Listings 12.04,

12.10, and 12.15, respectively, and proceeded to analyze whether

Plaintiff could meet the requirements of paragraphs B and C of

those listings, ultimately concluding that he could not do so.

10

(See Tr. 18-19.) Moreover, Plaintiff has not challenged the ALJ’s

determination that Plaintiff’s mental impairments failed to satisfy

the paragraph C criteria of Listings 12.04, 12.10, 12.15. (See

Tr. 19; see also Docket Entry 14 at 3-11.) Thus, the relevant

inquiry focuses on whether substantial evidence supports the ALJ's

findings with respect to the paragraph B criteria of the listings

in question.

Paragraph B of Listings 12.04, 12.10, and 12.15 all require

proof that the condition documented via Paragraph A resulted in at

least “[e]xtreme limitation of one, or marked limitation of two, of

the following areas of mental functioning:

1. Understand, remember, or apply information[;]

2. Interact with others[;]

3. Concentrate, persist, or maintain pace[; and]

4. Adapt or manage oneself.”

20 C.F.R. Pt. 404, Subpt. P, App’x 1, §§ 12.04B, 12.10B, 12.15B

(internal citations omitted) (emphasis added). In this context, to

qualify as “marked,” a limitation must “seriously” restrict the

ability to function “independently, appropriately, effectively, and

on a sustained basis.” Id., § 12.00F.2.d (emphasis added); see

also 20 C.F.R. §$§ 404.1520a(c) (4), 416.920a(c) (4) (explaining that

“marked” represents the fourth-highest of five levels, below

“extreme,” but above “none, mild, [and] moderate”); and an

“extreme” limitation means an individual has no “ab[ility] to

function . . . independently, appropriately, effectively, and on

11

a sustained basis,” id., § 12.00F.2.e. The ALJ here found that

Plaintiff’s mental symptoms caused no limitation in Plaintiff’s

ability to understand, remember, and apply information and moderate

limitation in his abilities to interact with others, maintain CPP,

and adapt/manage himself. (See Tr. 19.) Plaintiff has challenged

the ALJ’s findings with respect to interaction, CPP, and

adaptation/self-management. (See Docket Entry 14 at 3-11.)

a. Interaction

The ALJ provided the following analysis regarding Plaintiff’s

ability to interact with others:

In interacting with others, [Plaintiff] has a moderate

limitation. Medical records showed that [Plaintiff] has

[PTSD], mood disorder, and bipolar affective disorder,

requiring medications. He seems to respond well to

medications. He has friends who he socializes with. He

said he does not like to be around others and has

difficulty making friends. He has no recent inpatient

hospitalization. He can only sustain attention to

perform simple tasks in an environment with no

work-related contact with the general public and only

occasional interaction with co-workers.

(Tr. 19 (emphasis added).) Plaintiff challenges multiple aspects

of the ALJ’s above-quoted analysis, none of which ultimately carry

the day.

Plaintiff first objects to the ALJ’s observation that

Plaintiff “seem[ed] to respond well to medications” (Docket Entry

14 at 6 (referencing Tr. 19)), arguing that Plaintiff “t[ook] a

single medication - [W]ellbutrin for depression” and, “[a]ssuming

arguendo [Plaintiff wa]s responding to [W]ellbutrin, that has no

relevance as to Asperger’s Disorder[, which] is a developmental

12

disorder affecting the individual’s ability to effectively

socialize and communicate” (id.). In that regard, Plaintiff faults

the ALJ for “not discuss[ing] how Asperger’s Disorder affects

[Plaintiff]’s ability to interact with others.” (Id.)

The ALJ did not prejudicially err by omitting an express

discussion of Plaintiff’s Asperger’s disorder in the above-quoted

analysis, because the ALJ’s overall decision makes clear she

adequately considered the impact of Plaintiff’s Asperger’s disorder

on his ability to function socially. At step two, the ALJ

expressly found Plaintiff’s Asperger’s disorder to qualify as a

severe impairment (see Tr. 18), thus finding that Plaintiff’s

Asperger’s disorder significantly limited his ability to perform

work-related mental activities, see 20 C.F.R. § 404.1522(a),

416.922(a). Then, in the ALJ’s evaluation of Plaintiff’s RFC, the

ALJ acknowledged that 1) “[a] Child Diagnostic Evaluation from UNC

TEACCH Center in April 2009 show[ed Plaintiff] was diagnosed with

Asperger’s Disorder” (Tr. 21), 2) at Holly-Hill Behavioral Health

System hospital in January 2010, Plaintiff exhibited “suicidal

thoughts, hallucinations and paranoid thinking” and “received

treatment for bipolar disorder and Asperger’s syndrome” (id.

(emphasis added)), 3) Plaintiff “was hospitalized in September 2012

for agitation and aggression along with hallucinations[ and ] was

diagnosed with . . . Asperger’s disorder by history” (id. (emphasis

added)), 4) Plaintiff “received residential services from September

27, 2013 through April 3, 2015, [at Solutions Community Support

13

Agency] for [PTSD], autism spectrum disorder, Tourette’s Disorder

and obsessive compulsive disorder[, ] did not exhibit any

aggressive behaviors during his short stay in the level II

facilityl[, ] met [his] goal[,] and was discharged” (Tr. 22

(emphasis added)), 5) “[f]rom October 6, 2014 through July 13,

2015, [Plaintiff] attended [the Turning Point] day treatment

program where he .. . was diagnosed with Asperger’s disorder and

depression .. . [but] had difficulty connecting to other students,

particularly since he was gifted academically” (id. (emphasis

added)), 6) at a “psychological consultative evaluation on February

22, 2017, performed by Donna Mansour, licensed psychological

associate [(“LPA Mansour”}] and Christopher Clougherty, Ph.D.,

supervising psychologist,” LPA Mansour noted that Plaintiff “ha[d]

a diagnosis of depression and autism, which d[id] seem consistent

with his presentation,” “was very nervous at times and likely had

some awkward mannerisms that could cause some issues relating to

coworkers and supervisors,” but that Plaintiff “felt that he had

the ability to conform to social standards, comply with rules, and

cooperate with others” (id. (emphasis added); see also Tr. 24

(reflecting ALJ’s remarks that Plaintiff’s “Asperger’s manifest □□□□

itself as social awkwardness rather than limited cognition,” that

Plaintiff did “have some limitations related to mental health

issues . . . but they [we]re not disabling,” and that the RFC

“provide[d] limitations to social interaction consistent with the

evidence in the record”)). That discussion supports the ALJ’s

14

finding that Plaintiff’s mental impairments, including Asperger’s

disorder, caused Plaintiff to suffer moderate limitation, i.e., had

“fair” ability to function “independently, appropriately,

effectively, and on a sustained basis,” 20 C.F.R. Pt. 404, Subpt.

P, App’x 1, § 12.00F.2.c (emphasis added), in his ability to

interact with others.5

Plaintiff further contends that “the ALJ contradict[ed]

herself” by “stating [Plaintiff] ‘has friends who he socializes

with,’” but then remarking that Plaintiff “‘said he does not like

to be around others and has difficulty making friends.’” (Docket

Entry 14 at 7 (quoting Tr. 19).) However, that argument fails for

two reasons. First, both of the ALJ’s above-quoted remarks are

based on Plaintiff’s own statements (see Tr. 49-50 (documenting

Plaintiff’s testimony that he had friends whom he visited and that,

the day before the hearing, he had spent time with friends he had

not seen in awhile), 50 (recording Plaintiff’s statement that he

found it “hard” to make friends due to nervousness)) and thus, to

the extent the statements do contradict one another, the ALJ simply

5 As discussed above, Plaintiff must show that his mental impairments caused

listing level limitations in his ability to function mentally as of the time of

his application dates – October 6, 2016 (SSI) and November 22, 2016 (CDB).

Although mental health records discussed by the ALJ from 2009 to mid-2015 showed

that Plaintiff suffered greater levels of mental dysfunction during that time,

the records from mid-2015 to the date of the ALJ’s decision demonstrated

significant improvement in Plaintiff’s mental symptoms. (See Tr. 21-23; see also

Tr. 24 (containing ALJ’s observations that Plaintiff “experienced significant

traumatic events during childhood after his father passed away, including his

mother engaging in substance abuse and not having custody of [Plaintiff] for a

time[, but n]ow, as an adult, he and his mother have repaired their relationship,

she has stayed sober, and they support each other”).)

15

fulfilled her duty to deal with conflicting evidence. Second, that

argument glosses over the fact that, in finding a moderate

limitation in Plaintiff’s ability to interact with others, the ALJ

necessarily found evidence that supported some limitation in that

area, while also noting evidence that failed to support greater

limitations.

Next, Plaintiff argues that “the notes from the Turning Point

Day Treatment program document [Plaintiff] ha[d] an extreme

limitation interacting with others . . . and acting in a socially

appropriate manner” (Docket Entry 14 at 7 (citing Tr. 514, 520,

524, 526, 530, 541, 543, 545, 549, 551, 553, 555, 567, 570, 572,

574, 575, 578, 582, 585, 587, 598, 601, 602, 604, 607, 614, 615,

621, 628, 629, 652, 659, 698, 717, 751, 768)), as well as “an

extreme problem accepting authority and following instructions”

(id. (citing Tr. 514, 520, 524, 526, 530, 543, 545, 553, 555, 567,

570, 572, 578, 582, 586, 588, 598, 601, 607, 615, 628, 629, 659,

702, 713, 717)). Plaintiff additionally notes that “[t]he ALJ did

not discuss the Turning Point records.” (Id.)

As an initial matter, as quoted above, the ALJ did discuss

Plaintiff’s treatment at Turning Point, noting that, “[f]rom

October 6, 2014 through July 13, 2015, he attended [the Turning

Point] day treatment program where he received academic instruction

along with mental health treatment[, ] was diagnosed with

Asperger’s disorder and depression . . . [but] had difficulty

connecting to other students, particularly since he was gifted

16

academically.” (Tr. 22 (emphasis added).) Moreover, although the

ALJ did not expressly recite the daily details of Plaintiff’s

treatment at Turning Point (see id.), the ALJ labored under no

obligation to discuss every piece of evidence in the record. See,

e.g., Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th

Cir. 2014); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998); Diaz

v. Chater, 55 F.3d 300, 308 (7th Cir. 1995). Furthermore,

Plaintiff has not shown how a remand for the ALJ to further discuss

the 2014-15 Turning Point records would lead to a different result

in this case. To qualify for CDB and SSI, Plaintiff must show that

he remained disabled as of his application dates of October 2 and

November 22, 2016, respectively. As discussed above, and as the

ALJ acknowledged (see Tr. 24), although records from 2009 to mid-

2015 (including the Turning Point records) show that Plaintiff

suffered from greater limitations in his ability to interact with

others (see, e.g., Tr. 1010-13, 1017-19, 1022-24, 1042-54, 1512-18,

1526-29, 1534-44, 1594-1677), records since mid-2015 demonstrate

improvement in his symptoms (see, e.g., Tr. 428-34, 444-46, 458-61,

467-70, 488-90, 497-500, 914-18, 923-24, 973-76).

Plaintiff also maintains that “the ALJ’s statement that

[Plaintiff] ‘has no recent inpatient hospitalization’ is a non

sequitur” (Docket Entry 14 at 7 (quoting Tr. 19)), because “[i]t

has no bearing on [Plaintiff]’s ability to interact with others”

(id.). According to Plaintiff, he “can have an extreme limitation

17

on interacting with others and have no need for inpatient

hospitalization.” (Id. at 7-8.) Contrary to Plaintiff’s

allegation, the fact that Plaintiff had no recent psychiatric

inpatient hospitalizations does hold relevance to an assessment of

his ability to interact with others. Indeed, Plaintiff’s

aggression towards himself and others and other inappropriate

social behavior triggered many of Plaintiff’s prior psychiatric

inpatient hospitalizations, as well as his stints in group homes.

(See, e.g., Tr. 1010-13, 1017-19, 1022-24, 1042-54, 1516-17, 1526-

29, 1657-58.) Thus, the absence of any psychiatric inpatient

hospitalizations (or group home stays) since mid-2015 provides

support for the ALJ’s finding that Plaintiff’s mental impairments

improved over time and now caused only moderate limitation in his

ability to interact with others.

Additionally, Plaintiff asserts that “the records from the

consulting examiners indicate [Plaintiff] ha[d] difficulty

interacting with others” (Docket Entry 14 at 8), pointing out that

consultative medical examiner Mike Dearinger, D.O., noted Plaintiff

“‘was anxious and constantly moving about the exam room[, ] had a

strange effect [sic][, and] was very sweaty’” (id. (quoting Tr.

790)). Plaintiff also singles out the following observations of

LPA Mansour as supporting extreme limitation in Plaintiff’s ability

to interact with others:

• “‘[Plaintiff] is described as getting very easily

angered and agitated with changes in his routine, which

18

could cause issues relating to others’” (id. at 8

(quoting Tr. 800) (emphasis added));

« “*ThjJe is described as isolating himself from others

because of depression and pain’” (id. (quoting Tr. 800)

(emphasis added));

« “*‘Th]e does have a diagnosis of depression and autism,

which do seem consistent with his presentation’” (id.

(quoting Tr. 802));

« “*‘Th]e was very nervous at times and likely has some

awkward mannerisms that could cause some issues relating

to coworkers and supervisors’” (id. (quoting Tr. 802)

(emphasis added)); and

* “‘thjle is described as having great difficulty

tolerating changes in his routine as well as stress and

pressures’” (id. (quoting Tr. 802) (emphasis added)).°®

As an initial matter and as emphasized above, three of the six

statements upon which Plaintiff relies constitute LPA Mansour’s

mere recitations of Plaintiff’s subjective symptom reports, rather

than LPA Mansour’s objective observations of Plaintiff’s behavior

during the examination or other independent verification. (See Tr.

800, 802.) The ALJ found Plaintiff’s “statements concerning the

intensity, persistence and limiting effects of [his] symptoms are

not entirely consistent with the medical evidence and other

evidence in the record for the reasons explained in th[e] decision”

(Tr. 24) and, as discussed below in the context of Plaintiff’s

third assignment of error, Plaintiff has not demonstrated error

with respect to that finding. Thus, Plaintiff’s above-quoted

° LPA Mansour ultimately concluded that Plaintiff could understand, retain, and

follow instructions and could sustain attention sufficiently to perform simple,

repetitive tasks. (See Tr. 802.)

19

statements (recounted by LPA Mansour) would not have compelled the

ALJ to find marked (let alone extreme) limitation in Plaintiff’s

ability to interact with others. The three remaining statements at

issue actually harmonize with the ALJ’s findings that Plaintiff’s

Asperger’s disorder constituted a severe impairment (see Tr. 18),

manifested as social awkwardness (see Tr. 24), caused moderate

limitation in Plaintiff’s ability to interact with others (see Tr.

19), but did not qualify as disabling (see Tr. 19, 24).

Lastly, Plaintiff argues that “the longitudinal evidence is

persuasive” because, “[s]Jince dropping out of Turning Point six

years ago, [Plaintiff] has not attended school, has not worked, []

has not participated □□□ any social activities[, and ] lives the

life of a recluse with his mother providing for all his needs.”

(Docket Entry 14 at 8 (emphasis added).) Although the record does

show that Plaintiff has neither attended school nor performed any

substantial gainful activity since dropping out of the Turning

Point program in 2015, the record refutes Plaintiff’s claim that,

during such time, he did not “participate[] in any social

activities” and “live[d] the life of a recluse” (id. (emphasis

added)). In that regard, Plaintiff (A) testified at the hearing in

May 2019 that he had friends whom he visited and that, the day

before the hearing, he had spent time with friends he had not seen

in awhile (see Tr. 49-50) and (B) stated, on a Function Report

dated December 9, 2016, that he could go out alone (see Tr. 316),

participated in social gatherings as a hobby (see Tr. 317), talked

20

and joked with others (see id.), and experienced no problems

getting along with others (see Tr. 318) or respecting authority

(see Tr. 319). Plaintiff additionally told LPA Mansour in February

2017 that he could conform to social standards and rules, as well

as that he could cooperate with others. (See Tr. 800.)

In short, Plaintiff has neither established prejudicial error

by the ALJ in her evaluation of Plaintiff’s ability to interact

with others, nor pointed to evidence that would have compelled the

ALJ to find marked (or extreme) limitation in that functional area.

lb. CPP

Here, the ALJ offered the following explanation for finding

moderate limitation in Plaintiff’s ability to maintain CPP:

With regard to [CPP], [Plaintiff] has a moderate

limitation. Medical records showed that [Plaintiff] has

[PTSD], mood disorder, and bipolar affective disorder.

He reported concentration issues that would interfere

with work activity. However, he watches television,

plays video games and does research on the internet. He

can sustain attention and follow instructions.

(Tr. 19 (emphasis added).) Plaintiff objects to the ALJ’s analysis

on three grounds; however, none of those grounds have merit.

First, Plaintiff maintains that the ALJ’s reliance on

Plaintiff’s above-emphasized leisure activities constitutes a “non

sequitur,” because “[t]he act of watching TV, playing video games

or surfing the internet provides no information about how long the

individual can concentrate” (Docket Entry 14 at 9 (emphasis

added)}), and “[t]he ability to perform simple tasks differs from

21

the ability to stay on task” (id. (citing Mascio v. Colvin, 780

F.3d 632, 638 (4th Cir. 2015))). Plaintiff’s argument fails,

because his own statements reflect “how long [he] c[ould]

concentrate” (id.). Plaintiff testified at the hearing that he

usually woke up at 4 am and read, played video games, or used his

computer until 8 or 9 am, i.e., a time period of four to five

hours. (See Tr. 50.) He later testified that he watched videos on

YouTube, looked at the news, and played video games that involved

history “for a couple of hours.” (Tr. 61 (emphasis added); see

also Tr. 21 (containing ALJ’s acknowledgment of Plaintiff’s

testimony that, “in a typical day[,] he goes on-line and watches

funny videos or the news[ and ] enjoys playing video games for a

couple of hours” (emphasis added)).) Thus, Plaintiff’s own

testimony provided the ALJ with a basis to gauge “how long

[Plaintiff] cfould] concentrate” (Docket Entry 14 at 9), and

supported the ALJ’s finding that Plaintiff had moderate limitation

in CPP.

Second, Plaintiff criticizes the ALJ for “not discuss[ing] any

of the records addressing concentration.” (Id. (emphasis added)

More specifically, Plaintiff points to LPA Mansour’s statement that

Plaintiff “is described as having difficulty with focusing, poor

concentration and attention, easily frustrated and angered with new

Situations” (id. (quoting Tr. 799) (emphasis added)), as well as to

“Turning Point records [which] document that [Plaintiff] has an

extreme lack of focus” (id. (citing Tr. 514, 526, 530, 532, 534,

22

537, 539, 541, 543, 545, 551, 553, 565, 567, 570, 572, 575, 587,

601, 602, 604, 607, 614, 615, 628, 629, 652, 656, 659, 661, 669,

671, 679, 700, 702, 704, 711, 715, 717, 725, 740, 743, 745, 749,

751, 754, 764, 766, 768)).

Plaintiff’s contention fails for two reasons. First,

Plaintiff again relies on LPA Mansour’s recitation of Plaintiff’s

subjective symptoms reports, rather than LPA Mansour’s objective

observations of Plaintiff during the examination (or other

independent verification). Notably, LPA Mansour actually concluded

that Plaintiff could sustain attention sufficiently to perform

simple, repetitive tasks. (See Tr. 802.) Second, as discussed

above, although the 2014-15 Turning Point records do reflect that

Plaintiff then struggled with focus and attention, Plaintiff must

show that he remained disabled as of his application dates in

October and November 2016, and treatment records since mid-2015,

which the ALJ did discuss (see Tr. 22-23), consistently reflected

normal attention and concentration (see Tr. 429, 437, 445, 452,

459, 468, 475, 482, 489, 498, 506, 802, 917, 924, 974).

Third, Plaintiff faults the ALJ for failing to discuss how

Plaintiff’s PTSD, mood disorder, bipolar disorder, fibromyalgia,

and hallucinations affect his concentration. (Docket Entry 14 at

9.) With regards to hallucinations, Plaintiff points to his

“testi[mony] that constantly hearing voices is absolutely

distracting.” (Id. (citing Tr. 55).) The ALJ expressly referenced

Plaintiff’s “[PTSD], mood disorder, and bipolar affective disorder”

23

in her discussion of Plaintiff’s ability to maintain CPP (Tr. 19)

and, although the ALJ did not explicitly evaluate the impact of

Plaintiff’s fibromyalgia on his ability to maintain CPP, the ALJ

did discuss Plaintiff’s fibromyalgia treatment as part of her

analysis of his RFC (see Tr. 23) and, in particular, Dr.

Dearinger’s observation that, despite objective signs of

fibromyalgia symptoms on examination, Plaintiff had normal

concentration (see Tr. 23-24; see also Tr. 786-96). Although

Plaintiff did testify that he found hearing voices distracting

(see Tr. 55), the ALJ found that Plaintiff’s “statements concerning

the intensity, persistence and limiting effects of [his] symptoms

[we]re not entirely consistent with the medical evidence and other

evidence in the record” (Tr. 24; see also Tr. 24-25 (“[Plaintiff]’s

testimony at the hearing was not persuasive as to intensity,

persistence and limiting effects of symptoms and not fully

consistent with the medical record.”)) and, as discussed below in

the context of Plaintiff’s third assignment of error, Plaintiff has

not demonstrated error with respect to that finding.

In sum, Plaintiff has failed to point to record evidence that

would have compelled the ALJ to find marked (or extreme) limitation

in Plaintiff’s ability to maintain CPP.

c. Adaptation/Self-Management

Regarding Plaintiff’s ability to adapt/manage himself, the ALJ

provided the following evaluation:

24

As for adapting or managing oneself, [Plaintiff] has a

mild limitation. There are no records from treating or

consultative sources showing consistent problems with

[Plaintiff]’s ability to regulate emotions, control

behavior and maintain well-being in a work setting. He

lives with his mother. He said he does not shower and

sometimes sleeps in his clothes several times per week.

He is often noted to have normal appearance and mood with

no evidence of trouble controlling his temper (see e.g.

Exhibit 9F). He has no recent inpatient hospitalization.

(Tr. 19-20 (emphasis added).) Plaintiff provides four rationales

to contest the ALJ’s analysis, none of which provide the Court with

a basis to disturb the ALJ’s adapation/self-management finding.

First, Plaintiff notes that “there are no records of

[Plaintiff]’s functioning in a work setting because he has no work

experience.” (Docket Entry 14 at 10.) Plaintiff’s effort to parse

the ALJ’s chosen verbiage misses the mark, as the ALJ clearly

tracked the language from the applicable regulation, which defines

the ability to adapt and mange onself as including “the abilit[y]

to regulate emotions, control behavior, and maintain well-being in

a work setting,” 20 C.F.R. Pt. 404, Subpt. P, § 12.00E.4 (emphasis

added). The ALJ’s analysis conveys the salient point that he found

“no records from treating or consultative sources showing

consistent problems with [Plaintiff]’s ability to regulate

emotions, control behavior and maintain well-being.” (Tr. 19

(emphasis added).) As discussed both above and below, the record

supports that observation by the ALJ.

Second, Plaintiff faults “the ALJ [for] cit[ing] Ex[hibit] 9

to support a finding of ‘normal’ appearance and mood,” noting that

25

Exhibit 9 “consists of a single visit with a therapist on 5/19/16,

three years prior to the Hearing[, and t]he therapist put an ‘X’ by

the box indicating normal general appearance, an ‘X’ by the box

indicating normal mood, and an ‘X’ by the box indicating normal

interview behavior[] . . . [without] comments on these topics.”

(Docket Entry 14 at 10 (citing Tr. 973-75).) Plaintiff’s argument,

however, ignores the fact that the ALJ cited “[s]ee eg Exhibit 9”

(Tr. 20 (emphasis added)), meaning “exempli gratia,” or “for

example.” Thus, the ALJ did not rely on a single instance of

normal appearance, mood, and behavior to support his moderate

finding in this functional area. Indeed, consistent with the

example singled out by the ALJ as representative of the record more

broadly, most of the mental status examinations since mid-2015

reflect Plaintiff’s normal appearance, mood, and/or behavior. (See

Tr. 428-30, 444-46, 458-60, 488-90, 497-99, 505-07, 917-18, 923-24,

973.)

Third, Plaintiff points to LPA Mansour’s finding that

Plaintiff “‘is described as having great difficulty tolerating

changes in his routine as well as stress and pressures.’” (Docket

Entry 14 at 10 (quoting Tr. 802) (emphasis added).) As discussed

above, Plaintiff again misrelies on LPA Mansour’s recitation of

Plaintiff’s subjective symptoms reports, rather than LPA Mansour’s

objective observations of Plaintiff during the examination (or

other independent determinations). LPA Mansour neither made any

26

objective findings nor offered any opinions relating to Plaintiff’s

ability handle stress or pressure. (See Tr. 800-02.)

Fourth, Plaintiff maintains that “the Turning Point records

show severe problems with [Plaintiff]’s ability to regulate his

emotions and control his behavior in a structured academic

setting.” (Docket Entry 14 at 10 (citing Tr. 514, 520, 524, 526,

530, 541, 543, 545, 549, 551, 553, 555, 567, 570, 572, 574, 575,

578, 582, 585, 587, 598, 601, 602, 604, 607, 614, 615, 621, 628,

629, 652, 659, 698, 717, 751, 768).) Although the 2014-15 Turning

Point records show that, during that time period, Plaintiff had

difficulty regulating his emotions, controlling his behavior, and

maintaining his well-being, Plaintiff must show that his disability

continued through his application dates in October and November

2016, and treatment records since mid-2015 consistently reflected

Plaintiff’s normal appearance, mood, and/or behavior. (See Tr.

428-30, 444-46, 458-60, 488-90, 497-99, 505-07, 917-18, 923-24,

973.)

Put simply, Plaintiff has not shown that the ALJ erred with

regard to finding moderate limitation in Plaintiff’s ability to

adapt and manage himself. As a result, the Court should deny

relief on Plaintiff’s first issue on review.

2. Schizoaffective and Anxiety Disorders

Next, Plaintiff asserts that “[t]he ALJ committed error by

failing to include schizoaffective disorder and anxiety disorder as

27

severe impairments.” (Docket Entry 14 at 12 (bold font and

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

that he “has a psychotic disorder as defined by Listing 12.03 A”

(id. at 13), and points out that he “has been hearing voices since

his father died when he was eight years old” (id. at 12 (citing Tr.

1010)), that, “[a]t the hearing[, he] testified he still hear[d]

voices” (id. (citing Tr. 54-55)), and that “[t]he Turning Point

records also document hallucinations” (id. at 13 (citing Tr. 541)).

Plaintiff further contends that he “has an anxiety disorder as

defined by Listing 12.06 A” (id. at 15), and notes that, upon

discharge from Central Regional Hospital on January 30, 2013, “his

principal diagnosis was anxiety disorder, [no other specification

(‘NOS’)]” (id. at 13 (citing Tr. 1542)), that LPA Mansour “affirmed

anxiety, stating ‘[h]e does indicate that he can get really anxious

when he has too much information to focus on[ and ] can get

stressed and have anxiety attacks with shortness of breath and

heart palpitations’” (id. (citing Tr. 799, 801)), that “UNC

Psychiatry affirmed anxiety” (id. (citing Tr. 1467)), and that,

“[a]t the hearing[, Plaintiff] described his anxiety” (id. (citing

Tr. 52-54)). Plaintiff’s arguments fall short.

a. Schizoaffective Disorder

As a threshold matter, at step two, the ALJ found Plaintiff’s

Asperger’s disorder, PTSD, mood disorder, and bipolar affective

disorder to constitute severe impairments, and found Plaintiff’s

Tourette’s syndrome and obsessive-compulsive disorder non-severe

28

medically determinable impairments. (See Tr. 18.) Thus, the ALJ

did not find that schizoaffective disorder qualified as even a

medically determinable impairment, let alone a severe impairment.

The ALJ did not err in that regard.

The Commissioner’s regulations provide that a medically

determinable impairment “must result from . . . psychological

abnormalities that can be shown by medically acceptable clinical

and laboratory diagnostic techniques[ and, t]herefore, a . . .

mental impairment must be established by objective medical evidence

from an acceptable medical source.” 20 C.F.R. §§ 404.1521, 416.921

(emphasis added). In other words, a claimant’s own “statement of

symptoms” does not suffice “to establish the existence of a[

medically determinable] impairment[].” Id. (emphasis added).

Here, records from an inpatient psychiatric hospitalization in

July 2012 at age 13 reflect a diagnosis of “[s]chizoaffective

d[isorder], bipolar type v[ersus] schizophrenia” (Tr. 1010);

however, at another hospitalization just a couple of months later,

Plaintiff’s diagnoses no longer included schizoaffective disorder

(see Tr. 1019). More significantly, at an inpatient psychiatric

hospitalization in October 2012, the provider made the following

observations:

[Plaintiff] claims that he has delusions and visual

hallucinations and auditory hallucinations but declines

to discuss them with me and does not seem to be affected

by those delusions. He also mentions that he has split

personality. He believes that he talks to people that

are images of himself and that he creates situations that

are not true and then he believes in them.

29

Reason for admission was aggression, psychosis, mood

dyscontrol. We have not seen any of that throughout the

hospitalization. [Plaintiff] came in and during his

master treatment plan he insisted that his diagnosis

should change to schizophrenia. He said that he started

by having bipolar disorder then the evolution was to

schizoaffective but now he believed that he could be

given a diagnosis of schizophrenia. We never saw any

symptoms and our understanding of that was that

[Plaintiff] was made [to] believe that he was sick

throughout his life. He grew up in a dysfunctional

environment and he did tell us later that he saw his

mother being possessed by the demon and that step-dad was

abusive and he was always made [to] believe that _he was

crazy and delusional.

(Tr. 1540 (emphasis added) .) Plaintiff’s diagnoses at discharge

did not include schizoaffective disorder (or schizophrenia). (See

Tr. 1542.)

Most importantly, none of Plaintiff’s treatment records after

July 2012 contain a diagnosis of schizoaffective disorder. (See

Tr. 424, 433-34, 441-42, 463-64, 493-94, 502-03, 510-11, 819, 851,

858, 869, 874, 883, 888, 894, 905 (containing treating physician’s

diagnosis of “[m]ood disorder with history of psychosis” (emphasis

added)), 915, 921, 934, 970-71, 979-80, 1599, 1610, 1622, 1635-44,

1648-49, 1652-53, 1656, 1682, 1692 (reflecting treating physician’s

diagnosis of “[u]nderlying mood disorder previously characterized

as bipolar affective disorder with psychosis” (emphasis added)).)’

7 A treatment record dated October 25, 2013, contains a diagnosis of “psychotic

d[isorder NOS]” without accompanying explanation for that diagnosis (Tr. 1648),

which neither appeared before nor appeared after that date in the ongoing

treatment records of the Solutions Community Support Agency (see Tr. 1594-1677).

30

Moreover, LPA Mansour did not diagnose schizoaffective disorder

(see Tr. 801-02), and the reconsideration-level state agency

psychological examiner, whose opinions the ALJ credited (see Tr.

25), did not assess schizoaffective disorder as one of Plaintiff’s

mental impairments. (See Tr. 120-21.) Furthermore, although

Plaintiff testified to experiencing ongoing hallucinations, his

testimony alone does not suffice to establish schizoaffective

disorder as a medically determinable impairment. See 20 C.F.R.

404.1521, 416.921.

As Plaintiff has not shown “objective medical evidence from an

acceptable medical source,” 20 C.F.R. §§ 404.1521, 416.921

(emphasis added), that his schizoaffective disorder persisted past

2012, he has not shown that the ALJ erred by failing to categorize

it as a medically determinable impairment, let alone a severe

impairment.

b. Anxiety Disorder

Similar to schizoaffective disorder, the ALJ did not find that

Plaintiff’s anxiety disorder qualified as a medically determinable

impairment. (See Tr. 18.) Even assuming, arguendo, that the ALJ

erred in that regard, any such error remains harmless under the

circumstances presented here. See Fisher v. Bowen, 869 F.2d 1055,

1057 (7th Cir. 1989) (observing that “[n]lo 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”). The ALJ clearly

31

acknowledged Plaintiff’s anxiety symptoms (see Tr. 21 (containing

ALJ’s recitation of Plaintiff’s testimony that he “has trouble

making friends due to nervousness,” “experiences anxiety attacks

that cause numbness in his wrists and ankles,” “becomes anxious

when he becomes depressed and vice versa,” and has “anxiety []

triggered by loud noises or being in a crowded place”)), but

evaluated them under Listing 12.15 for PTSD (see Tr. 19). Listings

12.06 and 12.15 contain the same paragraph B criteria, compare 20

C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.06B, with id., § 12.15B,

and, as discussed above, Plaintiff has not shown that the ALJ erred

with respect to the paragraph B criteria findings. See Morrison v.

Saul, No. 1:19CV413, 2020 WL 5111251, at *8 (M.D.N.C. Aug. 31,

2020) (unpublished) (finding any error by ALJ regarding Listing

chosen to analyze mental impairment remained harmless, because

“remand for the ALJ to analyze [the p]laintiff’s intellectual

deficits under Listing 12.05B would not result in a different

outcome,” where “Listings 12.05B and 12.l1 share the same paragraph

B criteria”), recommendation adopted, 2020 WL 5821077 (M.D.N.C.

Sept. 30, 2020) (unpublished) (Osteen, Jr., J.).

In light of the above analysis, the Court should deny relief

on Plaintiff’s second issue on review.

3. Mental RFC

Lastly, Plaintiff maintains that “[t]he mental RFC is not

supported by substantial evidence.” (Docket Entry 14 at 15 (bold

32

font omitted).) In particular, Plaintiff raises three arguments

challenging the ALJ’s mental RFC: 1) “[t]he ALJ failed to provide

a logical bridge between the evidence cited and [RFC] conclusions

reached” (id. at 16), 2) the ALJ “placed too much weight on there

being no recent [inpatient psychiatric] hospitalizations” (id.

(bold font omitted)), and 3) “the ALJ [] cherry[-]picked the

evidence to support her conclusion” (id. at 18). Those contentions

fail to entitle Plaintiff to relief.

Plaintiff first asserts that “[t]he ALJ failed to provide a

logical bridge between the evidence cited and [RFC] conclusions

reached” (id. at 16) in two respects: 1) “[t]he ALJ cite[d]

records” in her evaluation of the RFC, but “did not explain why she

reached the conclusions she did,” stating only that Plaintiff’s

“‘testimony at the hearing was not persuasive as to intensity,

persistence and limiting effects of symptoms and not fully

consistent with the medical record’” (id. (quoting Tr. 24-25)), and

2) “[t]he ALJ mention[ed] hallucinations, but [neither] discuss[ed]

the impact hallucinations ha[d] on [Plaintiff]’s ability to

concentrate and interact with others,” nor “discuss[ed] the

synergistic effect the combination of depression, anxiety, PTSD and

autism ha[d] on the severity of symptoms” (id.).

The ALJ’s decision adequately explains why she did not find

Plaintiff’s testimony about his mental symptoms fully consistent

with the record. To begin, the ALJ provided more of an explanation

for finding Plaintiff’s testimony not fully consistent with the

33

record than Plaintiff’s above-listed quotation alleges. (See

Docket Entry 14 at 16 (quoting Tr. 24-25).) In fact, the ALJ

explained as follows:

[Plaintiff] experienced significant traumatic events

during childhood after his father passed away, including

his mother engaging in substance abuse and not having

custody of [Plaintiff] for a time. Now, as an adult, he

and his mother have repaired their relationship, she has

stayed sober, and they support each other. There are no

recent inpatient hospitalization for any mental

impairment.

(Tr. 24.)

The ALJ additionally discussed medical evidence which showed

that Plaintiff’s mental symptoms began to stabilize in late 2014

and then remained stable from mid-2015 through the time of the

ALJ’s decision:

[Plaintiff] began receiving medication management at

Freedom House on November 4, 2014, which he felt to be

helpful and kept him stabilized and out of the hospital.

. . .

Records from UNC Health Care on May 2, 2015, show

[Plaintiff] was seen for psychiatry evaluation. His mood

was depressed, but he had normal thoughts, orientation,

attention, concentration, and memory. He had fair

insight, judgment and impulse control. He had [PTSD];

mood disorder, [NOS]; and hypertension. On March 17,

2016, [Plaintiff] was dealing with stress considerably

well and had started back for GED tests. He felt more

independent and he was making good decisions. Notes show

[Plaintiff] had a job and was doing really well. He

denied suicidal ideation. His mental status examination

was normal. [Plaintiff] was making friends. He was

diagnosed with [PTSD], chronic; [PTSD] and Tourette’s

disorder. On May 19, 2016, [Plaintiff] was feeling less

depressed.

(Tr. 22 (internal parenthetical citations omitted).)

34

The ALJ’s discussion of the opinion evidence also supported

the ALJ’s mental RFC. In that regard, the ALJ afforded “great

weight” to the reconsideration-level state agency psychological

consultant (Tr. 25) who opined that, despite Plaintiff’s mental

impairments, he remained capable of simple, routine, and repetitive

tasks with limited interaction with the general public (see Tr.

122, 127, 142, 147, 162, 167). The ALJ also accorded “partial

weight” to LPA Mansour’s opinions, explaining further as follows:

. . . it is vague in degree of limitations, though

finding that he can understand, remember and follow

instructions is consistent with evidence of no limitation

in understand, remember and apply information, can

sustain attention to simple tasks and “likely has some

awkward mannerisms that could cause some issues relating

to coworkers and supervisors” is vague but with other

evidence, supports occasional interaction with coworkers

and no interaction with public.

(Tr. 25.) As the Court can trace the path of the ALJ’s reasoning

from the evidence to the mental RFC findings, Plaintiff has not

shown that “[t]he ALJ failed to provide a logical bridge” (Docket

Entry 14 at 16).

Regarding hallucinations, the ALJ did discuss Plaintiff’s

claim that “[h]e begins hearing voices in his head telling him to

run away or hurt himself” and “hears voices that say things that

upset him” (Tr. 21), but found his testimony not fully consistent

with the record (see Tr. 24), and Plaintiff has not shown error

with respect to that finding. Moreover, the ALJ found moderate

limitations in Plaintiff’s ability to interact with others and to

maintain CPP (see Tr. 19), and Plaintiff simply has not shown that

35

the evidence relating to his hallucinations should have compelled

the ALJ to adopt greater restrictions.

Plaintiff’s assertion that the ALJ failed to “discuss the

synergistic effect the combination of depression, anxiety, PTSD and

autism ha[d] on the severity of symptoms” (Docket Entry 14 at 16)

fares no better. At step three, the ALJ found that “[t]he severity

of [Plaintiff]’s mental impairments, considered singly and in

combination, d[id] not meet or medically equal the criteria of

listings 12.02, 12.04, 12.10, and 12.15” (Tr. 19 (emphasis added))

and, in formulating the RFC, the ALJ indicated that he had

“careful[ly] consider[ed ] the entire record” (Tr. 20 (emphasis

added)). Absent evidence to the contrary (not adduced here), the

Court may take the ALJ at her word. See Reid, 769 F.3d at 865

(holding that, if “the ALJ . . . stated that the whole record was

considered, . . . absent evidence to the contrary, we take her at

her word”).

Next, Plaintiff objects to the ALJ’s reliance on the lack of

recent inpatient psychiatric hospitalizations in formulating the

mental RFC. (Docket Entry 14 at 16-18.) As to that matter,

Plaintiff notes that “[t]he primary reason for a psychiatric

hospitalization is the individual represents an immediate suicidal

or homicidal risk,” and points out that “[a] person can have a

disabling mental disorder and at the same time not be suicidal or

homicidal.” (Id. at 17.) Thus, Plaintiff argues that his

testimony that “he [wa]s no longer experiencing significant

36

suicidal or homicidal ideation” does not preclude a finding of

mental disability, and that “[t]he only logical inference to be

derived from no recent hospitalizations is that [Plaintiff] ha[d]

not recently been suicidal or homicidal.” (Id. at 17.) The lack

of recent inpatient psychiatric hospitalizations does not, in an of

itself, disprove mental disability. However, the ALJ did not rely

solely on the absence of such hospitalizations in determining the

mental RFC, nor did she find that such absence meant that Plaintiff

lacked severe mental impairments or any limitations arising out of

those impairments. Rather, the ALJ found that the lack of such

hospitalizations constituted evidence, along with other factors in

the record, showing that Plaintiff’s mental symptoms stabilized

after mid-2015. (See Tr. 24.) The ALJ did not err in that regard.

Plaintiff further contends that “the ALJ used a negative (the

lack of hospitalizations) to prove a positive (medical

improvement)” and, “[a]lthough this assertion is not impossible,

. . . [t]here are several more plausible explanations for

[Plaintiff] not being hospitalized since he was sixteen.” (Docket

Entry 14 at 17.) According to Plaintiff, “a more reasonable

explanation for there being no recent hospitalizations is that

[Plaintiff] was traumatized by past hospitalizations.” (Id. at

18.) Plaintiff further emphasizes that he experienced “panic

attacks every time he le[ft] his house,” and “seclude[d] himself in

his bedroom because it [wa]s the safest place he kn[ew].” (Id.

(citing Tr. 1011).) Plaintiff’s argument glosses over the fact

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that, although Plaintiff may opt against attending therapy, as he

testified at the hearing (see Tr. 58-59), involuntary commitment

for psychiatric reasons does not constitute a matter a choice. If

Plaintiff had continued to engage in the kind of aggressive and

violent behavior that lead to his earlier hospitalizations, he

likely would have faced involuntary commitment. Those

considerations bear relevance to the ALJ’s assessment of the

continuing severity of Plaintiff’s symptoms. For the same reasons,

Plaintiff’s reliance on his panic attacks to explain the lack of

hospitalizations falls short. Moreover, the record reflects that

Plaintiff’s panic attacks did not prevent him from going on walks

and attending regular medical appointments, church, shopping

excursions, and social gatherings. (See Tr. 49-50, 61, 316, 317,

428, 444, 770, 916.)

Finally, Plaintiff faults the ALJ for cherry-picking the

evidence to support the mental RFC. (Docket Entry 14 at 18.)

However, in that same paragraph, Plaintiff notes that “[t]Jhe ALJ

concluded that Plaintiff c[ould] perform Light work” (id. (emphasis

added)), i.e., an exertional component of the physical RFC rather

than a non-exertional component of the mental RFC, and then failed

to provide any support for the assertion that the ALJ “cherryl[-

]Jpicked” the evidence (id. at 18-19). That failure precludes

relief on this front. See United States v. Zannino, 895 F.2d 1, 17

(lst Cir. 1990) (“[A] litigant has an obligation to spell out its

arguments squarely and distinctly, or else forever hold its peace.”

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(internal quotation marks omitted)); Hughes v. B/E Aerospace, Inc.,

No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014)

(unpublished) (Schroeder, J.) (“A party should not expect a court

to do the work that it elected not to do.”).

Under these circumstances, Plaintiff’s third assignment of

error lacks merit.

III. CONCLUSION

Plaintiff has not established an error 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

May 4, 2021

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