# CHAPPELL v. KIJAKAZI

> District Court, M.D. North Carolina · July 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10253853

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** July 21, 2021
- **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/10253853

## 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”
- rejecting the Commissioner’s argument that an “apparent” conflict meant only an “obvious” one
- rejecting the plaintiff’s argument under Mascio where ALJ relied on opinions of consultative examiner and state agency psychological 18 consultant that, notwithstanding moderate deficit in CPP, the plaintiff could sustain attention sufficiently to perform SRRTs

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
APRIL CHAPPELL, )
)
Plaintiff, )
)
v. ) 1:20CV609
)
KILOLO KIJAKAZI, )
Acting Commissioner of )
Social Security, )
)
Defendant.1 )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, April Chappell, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security, denying Plaintiff’s claims for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.) Defendant has filed the certified administrative record
(Docket Entry 10 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 12, 15; see also Docket Entry 13
(Plaintiff’s Memorandum); Docket Entry 16 (Defendant’s
Memorandum)). For the reasons that follow, the Court should remand
this matter for further administrative proceedings.
1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul 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).
I. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
February 12, 2016. (Tr. 209-21.) Upon denial of those claims
initially (Tr. 82-101, 129-33) and on reconsideration (Tr. 102-28,
138-46), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 147-48). Plaintiff, her
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 35-68.) The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act. (Tr. 13-28.) The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 6-12,
205-08), thereby making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1. [Plaintiff] meets the insured status requirements of
the . . . Act through September 30, 2018.[2]
2. [Plaintiff] has not engaged in substantial gainful
activity since February 12, 2016, the alleged onset date.
. . .

2 In the Jurisdiction and Procedural History portion of the ALJ’s decision, she
identified Plaintiff’s date last insured (“DLI”) as “March 31, 2018” (Tr. 17
(emphasis added)); however, in the Findings of Fact and Conclusions of Law, the
ALJ found that Plaintiff “me[t] the insured status requirements of the . . . Act
through September 30, 2018” (Tr. 19 (emphasis added)). As all other references
in the record to Plaintiff’s DLI appear as March 31, 2018 (see Tr. 82, 91, 102,
115, 324, 367, 384, 403), the ALJ erred by finding that Plaintiff remained
insured through September 30, 2018 (see Tr. 19). That error qualifies as
harmless because, in light of Plaintiff’s concurrent claim for SSI, the ALJ
evaluated the entire period from Plaintiff’s onset date of February 12, 2016,
through the date of the ALJ’s decision (see Tr. 27).
2
3. [Plaintiff] has the following severe impairments:
status-post right foot fracture and fusion, De Quervain’s
tenosynovitis, and 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 sedentary work . . . except she can
frequently stoop, kneel, crawl, crouch, and climb stairs;
frequently push and pull with the right upper extremity;
never push with the right lower extremity for foot
controls; can perform simple, routine, and repetitive
tasks; and would need the option to sit every 45 minutes
for 1 to 5 minutes, but could continue working while
seated.
. . .
6. [Plaintiff] is unable to perform any 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 [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the . . . Act, from February 12, 2016, through
the date of this decision.
(Tr. 19-27 (bold font and internal parenthetical citations
omitted).)
3
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).
Even given those limitations, the Court should remand this case for
further administrative proceedings.
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
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). “Tf 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
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.

5
(quoting 42 U.S.C. § 423(d)(1)(A)).3 “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
n.2 (4th Cir. 1999).4 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

3 The Act “comprises two disability benefits programs. [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, in all aspects relevant here, substantively identical.” Craig, 76 F.3d at
589 n.1 (internal citations omitted).
4 “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).
6
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 179.5 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
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

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.
7
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.°
B. Assignments of Error
According to Plaintiff, the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ err[ed] by failing to identify and obtain a
reasonable explanation for any conflicts between occupational
evidence provided by the VE and information in the [Dictionary of
Occupational Titles (‘DOT’)], including its companion publication,
the [Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles (*‘*SCO’)] . . . or failled] to
explain how any conflict that ha[d] been identified was resolved”
(Docket Entry 13 at 7 (italics omitted)); and
2) “[t]he ALJ faill[ed] to incorporate non-exertional
limitations on the ability to stay on task where the ALJ first
finds that [Plaintiff] was moderately impaired in the maintenance
of [concentration, persistence, or pace (‘CPP’)]” (id. at 12).

° 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.”).

Defendant contends otherwise and seeks affirmance of the ALJ's
decision. (See Docket Entry 16 at 5-12.)
1. Conflict Between VE and DOT
Plaintiff first asserts that “[t]he ALJ err[ed] by failing to
identify and obtain a reasonable explanation for any conflicts
between occupational evidence provided by the VE and information in
the [DOT], including its companion publication, the [SCO] .. □ or
failled] to explain how any conflict that ha[d] been identified was
resolved” (Docket Entry 13 at 7 (italics omitted)), in violation of
Social Security Ruling 00-4p, Policy Interpretation Ruling: Titles
and XVI: Use of Vocational Expert and Vocational Specialist
Evidence, and Other Reliable Occupational Information in Disability
Decisions, 2000 WL 1898704 (Dec. 4, 2000) (“SSR 00-4p”), and
Pearson v. Colvin, 810 F.3d 204, 210-11 (4th Cir. 2015) (see Docket
Entry 13 at 8). In particular, Plaintiff notes that, pursuant to
the DOT, the jobs of “charge account clerk, document preparer, and
call out operator . . . all require functioning at [Reasoning
Development Level 3 (*RDL 3’)]” (id.), which “requires the ability
to carry out instructions furnished in written, oral, or
diagrammatic form, and the ability to deal with problems involving
several variables” (id. at 9 (citing DOT, App’x C (“Components of
the Definition Trailer”), 1991 WL 688702 (4th ed. rev. 1991))).
According to Plaintiff, “[a]n apparent conflict exists between [the
RFC’s] limitation to [simple, routine, and repetitive tasks

(*SRRTs’)] and [the DOT’s] job requirements to perform at [RDL 3].”
(Id. at 11 (citing Diana F. v. Saul, No. 5:19CV43, 2020 WL 5526501,
at *4 (W.D. Va. July 31, 2020) (unpublished), Smith v. Berryhill,
No. 1:18CV225, 2019 WL 5783529, at *2 (M.D.N.C. Sept. 30, 2019)
(unpublished) (Schroeder, C.J.) (adopting recommendation of
magistrate judge), Eddie v. Berryhill, No. 5:16CV801, 2017 WL
4002147, at *8 (E.D.N.C. Aug. 24, 2017) (unpublished), and Yurek v.
Astrue, No. 5:08CV500, 2009 WL 2848859, at *9 (E.D.N.C. Sept. 2,
2009) (unpublished) Plaintiff thus argues that, because “the
ALJ failed to identify and resolve th[at] conflict on the record”
(id. (citing Tr. 66)), the ALJ’s “decision must be vacated,
reversed, and remanded for a new hearing and decision” (id. at 12).
That argument has merit and warrants remand.
SSR 00-4p places an affirmative duty on an ALJ to elicit an
explanation from the VE as to any “apparent unresolved conflict”
between the VE’s testimony and the DOT:
Occupational evidence provided by a VE .. . generally
should be consistent with the occupational information
supplied by the [DOT]. When there is an apparent
unresolved conflict between VE . . . evidence and the
[DOT], the [ALJ] must elicit a reasonable explanation for
the conflict before relying on the VE .. . evidence to
support a determination or decision about whether the
claimant is disabled. At the hearings level, as part of
the [ALJ’s] duty to fully develop the record, the [ALJ]
will inguire, on the record, as to whether or not there
is such consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added). “[A]n ALJ has
not fulfilled his affirmative duty merely because the [VE] responds

10

‘yes’ when asked if her testimony is consistent with the [DOT],”
Pearson, 810 F.3d at 208 (internal quotation marks omitted); thus,
“[t]he ALJ independently must identify . . . where the [VE’s]
testimony seems to, but does not necessarily, conflict with the
[DOT],” id. at 209 (emphasis added); see also id. (rejecting the
Commissioner’s argument that an “apparent” conflict meant only an
“obvious” one).
As relevant to the instant case, the ALJ queried the VE
whether an individual limited to SRRTs could perform any jobs
existing in significant numbers in the national economy. (Tr. 62-
65.) In response, the VE opined that such an individual would
remain capable of performing the jobs of charge account clerk,
document preparer, and call out operator, and provided the
corresponding DOT codes for the three jobs, as well as their
incidence in the national economy. (See Tr. 65.) The ALJ then
asked the VE if her testimony harmonized with the DOT, and the VE
responded that the DOT did not directly address time off-task and
sit/stand options, that she based her testimony regarding such
matters on her education, experience, and training, and that her
testimony otherwise remained consistent with the DOT. (Tr. 66.)’
The ALJ subsequently adopted the VE’s testimony as to
Plaintiff’s ability to perform the three jobs in question:

Although Plaintiff’s counsel cross-examined the VE regarding the impact of
monthly absences on the available jobs, he did not query the VE regarding the
jobs’ RDLs. (See Tr. 66.)
11

To determine the extent to which [the RFC’s non-
exertional limitations] erode the unskilled sedentary
occupational base, through the date last insured, the
[ALJ] asked the [VE] whether jobs exist in the national
economy for an individual with [Plaintiff’s] age,
education, work experience, and [RFC]. The [VE]
testified that given all of these factors the individual
would be able to perform the requirements of
representative occupations such as:
Job Exertional SVP/Skill [DOT] Jobs
Level Level Number Nationally
Charge Account Clerk Sedentary 2/Unskilled 205.367-014 74,700
Document Preparer Sedentary 2/Unskilled 249.587-018 80,000
Call Out Operator Sedentary 2/Unskilled 237.367-014 99,300
Pursuant to SSR 00-4p, the [ALJ] has determined that the
[VE’s] testimony is consistent with the information
contained in the [DOT]. Although a sit/stand option is
not found in the [DOT] and therefore SSR 00-4[p] is not
applicable to this provision, the [ALJ] relied on the
[VE]’s professional experience, who determined that the
above identified work could be performed with this
limitation and the [ALJ] accepts his testimony.
Based on the testimony of the [VE], the [ALJ] concludes
that, considering [Plaintiff]’s age, education, work
experience, and [RFC], [Plaintiff] is capable of making
a successful adjustment to other work that exists in
significant numbers in the national economy.

(Tr. 27 (emphasis added).)
The United States Court of Appeals for the Fourth Circuit has
found an apparent conflict between jobs that require RDL 3 and a
limitation to “short and simple instructions,” based upon the
following rationale:
In reaching this conclusion, we consider not only the
[DOT]’s definitions of [RDL] 1 and 3, but also the
[DOT]’s definition of [RDL] 2. [RDL] 2 — which is more
demanding than [RDL] 1 but less demanding than [RDL] 3 —
is defined as the ability to apply commonsense
12
understanding to carry out detailed but uninvolved
written or oral instructions.

A limitation to short and simple instructions appears
more consistent with [RDL] 1 or [RDL] 2 than with [RDL]
3. Indeed, it seems that such a limitation falls
somewhere between [RDL] 1 and 2. That is, a short and
simple instructions restriction shares the word “simple”
with the [RDL] 1 definition but could permit instructions
of more than two steps. On the other hand, it is not
entirely clear to us that a person limited to short and
simple instructions can also carry out [RDL] 2 jobs that
include “detailed but uninvolved” instructions. Because
[RDL] 3 is more demanding than [RDL] 2 by the very nature
of the Reasoning Development scale, it appears that [RDL]
3 jobs require more than the ability to carry out short
and simple instructions. That determination is also
supported by the fact that — unlike the definitions of
[RDLs] 1 and 2 — [RDL] 3’s definition places no explicit
limitation on the complexity of the instructions to be
carried out; instead, [RDL] 3 describes only the form of
those instructions. We therefore conclude that an
apparent conflict exists between a limitation to short
and simple instructions and [RDL] 3 occupations.
Keller v. Berryhill, 754 F. App’x 193, 197-98 (4th Cir. 2018)
(internal quotation marks, brackets, footnotes, and citations
omitted). Significantly, the Fourth Circuit observed in a footnote
that “[s]everal other courts of appeals have relied on precedent
addressing a simple tasks limitation when considering a simple
instructions limitation” and “conclude[d] that it [wa]s appropriate
to do the same in [Keller].” Keller, 754 F. App’x at 197 n.4
(emphasis added). Accordingly, the Court should find Keller’s
reasoning applicable to limitations involving simple, routine, and
repetitive tasks, as in the instant case (see Tr. 21).
Moreover, the majority of rulings on this issue by judges of
this Court have held that an apparent conflict exists between a
13
limitation to SRRTs and jobs requiring an RDL of 3. See, e.g.,
Smith, 2019 WL 5783529, at *2 (“Courts in this circuit have
consistently held that [RDL] 3 jobs conflict with a limitation to
[SRRTs].”); Dunn v. Berryhill, No. 1:17CV507, 2018 WL 3383421, at
*4 (M.D.N.C. July 11, 2018) (unpublished) (Peake, M.J.),
recommendation adopted, slip op. (M.D.N.C. Oct. 26, 2018) (Eagles,
J.); Mullis v. Colvin, No. 1:11CV22, 2014 WL 2257188, at *1
(M.D.N.C. May 29, 2014) (unpublished) (Osteen, Jr., C.J.); Weaver
v. Colvin, No. 1:10CV582, 2013 WL 3989561, at *12–13 (Aug. 2, 2013)
(unpublished) (Webster, M.J.), recommendation adopted, 2013 WL
4768178 (M.D.N.C. Sept. 5, 2013) (unpublished) (Eagles, J.).
In light of Keller and the persuasive authority cited above
from other judges of this Court, the ALJ erred by failing to
identify and resolve the apparent conflict between the DOT’s
assignment of RDL 3 to all three jobs cited by the VE and adopted
by the ALJ at step five of the SEP and the VE’s testimony that an
individual limited to SRRTs could perform those jobs, requiring
remand.

2. CPP
Plaintiff’s second and final assignment of error contends that
“[t]he ALJ fail[ed] to incorporate non-exertional limitations on
the ability to stay on task where the ALJ first f[ound] that
[Plaintiff] was moderately impaired in the maintenance of CPP.”
(Docket Entry 13 at 12.) More specifically, Plaintiff contends
14
that the Fourth Circuit has “noted that[] ‘the ability to perform
simple tasks differs from the ability to stay on task[ and oJ]nly
the latter limitation would account for a claimant’s limitation in
[CPP]’” and thus “held that ‘an ALJ does not account for a
claimant’s moderate limitations in [CPP] by restricting the
hypothetical question to simple, routine tasks or unskilled work.’”
(Id. (quoting Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015)
(internal quotation marks omitted)).) According to Plaintiff,
“La]lpart from the conclusory statement that ‘additional mental
restrictions are not supported,’ the ALJ [] d[id] not adequately
explain why further limitations in the RFC were not warranted.”
(Id. at 12-13; see also id. at 13-16 (containing Plaintiff’s
arguments as to why ALJ’s discussion of mental evidence does not
suffice under Mascio).) Plaintiff’s contentions in this regard
fall short.
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 the
Fourth Circuit recently affirmed, in Mascio, the court held “that
an ALJ cannot summarily ‘account for a claimant’s limitations in
[CPP] by restricting the hypothetical question to simple, routine
tasks or unskilled work,’ .. . [b]lut [the court] did not impose a
categorical rule that requires an ALJ to always include moderate

15

limitations in [CPP] as a specific limitation in the RFC.”
Shinaberry v. Saul, 952 F.3d 113, 121 (4th Cir. 2020) (emphasis
added). 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). Here, the ALJ’s
decision provides a sufficient explanation as to why the RFC’s
restrictions to SRRTs (Tr. 21) adequately accounted for Plaintiff’s
moderate deficit in CPP.
First, the ALJ pointed out at step three of the SEP that
Plaintiff remained able to “use Facebook” (Tr. 20), “manage her
finances” (id.), “follow instructions completely” (Tr. 21), “pay
attention” (id.), and “drive” (id.), as well as “clean, cook, take
care of herself, and perform activities of daily living” (id.). In
the ALJ’s later discussion of the mental health evidence, she
further noted that Plaintiff “report[ed] she [wa]s able to follow
instructions, bathe herself, watch television, use the internet for
Facebook, and grocery shop.” (Tr. 24.) Plaintiff challenges the
16
ALJ’s reliance upon such activities, arguing that “th[o]se
statements address [Plaintiff]’s ability to perform discrete
household tasks, not her ability to maintain concentration or pace
for an extended period in the performance of successive tasks ona
sustained basis as would be the case in a competitive work
environment.” (Docket Entry 13 at 15.) Plaintiff further notes
that “[t]his [C]lourt has held that a limited discussion of mental
impairments and ability to perform simple tasks ‘bears little-to-no
relation to [the claimant’s] abilities in the area of [CPP], even
as to [her] ability to sustain unskilled work.’” (Id. (quoting
Culver v. Commissioner, Civ. No. 14-432, 2015 WL 4485268, at *3 (D.
Md. July 21, 2015) (unpublished)).)*®
Plaintiff’s argument fails, because the ALJ did not rely
solely on Plaintiff’s abilities to engage in those activities to
determine the mental RFC. As discussed in more detail below, the
ALJ additionally discussed Plaintiff’s mental health treatment and
the mental opinion evidence to support the limitation to SRRTs.
(See Tr. 23-25.) Moreover, Plaintiff herself did not place any
concentration-based qualification on her ability to engage in those
activities (see Tr. 40-61, 338-45) and thus cannot fault the ALJ
for failing to consider a qualification about which Plaintiff did
not testify. Plaintiff’s ability to engage in those activities

® Although Plaintiff attributes the Culver case to “[t]his [C]ourt” (Docket Entry
13 at 15; see also id. (citing case as “(M.D.N.C. July 21, 2015)”)), the United
States District Court for the District of Maryland actually issued that decision,
see Culver, 2015 WL 4485268, at *1.
17

provides support, along with the other factors discussed below, for
the ALJ’s finding that, despite moderate limitation in CPP,
Plaintiff remained capable of SRRTs (see Tr. 21).
Second, the ALJ’s discussion of the opinion evidence supports
her conclusion that, despite moderate limitation in CPP, Plaintiff
remained capable of performing SRRTs (see Tr. 21). In that regard,
the ALJ accorded “some weight” to the opinions of the
reconsideration-level state agency psychological consultant (Tr.
24), explaining that the ALJ disagreed with the consultant’s
opinions that Plaintiff had no limitation in her ability to
understand, remember, and apply information and moderate limitation
in her abilities to interact with others and adapt and manage
herself (Tr. 24-25; see also Tr. 107, 120), but credited the
consultant’s opinions that Plaintiff had moderate deficit in CPP
(see Tr. 24, 107, 120) but nonetheless remained “[a]ble to sustain
attention [and] concentration for the performance of SRRT’s [sic]”
(Tr. 111, 123 (emphasis added)). The ALJ’s crediting of the
consultant’s above-described opinion sufficed under Mascio to
explain the ALJ’s conclusion that, despite moderate limitation in

CPP, Plaintiff remained capable of performing SRRTs (see Tr. 21).
See Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017)
(rejecting the plaintiff’s argument under Mascio where ALJ relied
on opinions of consultative examiner and state agency psychological

18
consultant that, notwithstanding moderate deficit in CPP, the
plaintiff could sustain attention sufficiently to perform SRRTs).
Third, the ALJ made the following observations regarding
Plaintiff’s mental health treatment:
• “[m]ental status examinations have been largely
normal” and, “[i]n March 2017, [Plaintiff] did not
appear anxious or depressed on examination and her
cognition and memory were normal” (Tr. 24; see also
Tr. 1060);
• “when offered medications and a referral to
psychotherapy, she told her providers that she did
not wish to seek mental health treatment and she
felt that her mood was ‘good’” (Tr. 24; see also
Tr. 1061);
• “[i]n January 2019, [Plaintiff] denied experiencing
any anxiety, depression, or insomnia” and, “[o]n
examination, she appeared well-groomed,
cooperative, displayed normal speech, and showed a
normal affect” (Tr. 24; see also Tr. 1329-30); and
• “treatment for [Plaintiff’s] condition has been
limited and conservative in nature” and “[t]he
record does not contain evidence of any inpatient
hospitalizations for her mental health condition”
(Tr. 24).
Plaintiff challenges the ALJ’s above-quoted discussion of the
mental health evidence on four grounds, none of which carry the
day. (See Docket Entry 13 at 13-14, 15-16.)
First, Plaintiff criticizes the ALJ’s statement that, “[i]n
March 2017, [Plaintiff] did not appear anxious or depressed on
examination and her cognition and memory were normal” (Tr. 24; see
also Tr. 1060) because, during the visit in question, Plaintiff
sought treatment of right foot pain rather than a mental
19
impairment. (See Docket Entry 13 at 13 (citing Tr. 1059); see also
id. at 14 (objecting to ALJ’s observations that, in January 2019,
Plaintiff denied mental symptoms and displayed a normal mental
status on examination (Tr. 24 (citing Tr. 1330)), because
“[t]h[o]se observations were also in the context of a visit for
chronic foot pain, wherein psychiatric observations would be of
only secondary concern”).) That argument rings hollow, because the
record does not contain any records from psychiatrists,
psychologists, counselors, or therapists and thus the ALJ
necessarily gleaned evidence of the nature and severity of
Plaintiff’s affective disorder from non-mental treatment records.
Second, Plaintiff points out that the March 2017 treatment
record showed a labile affect, rapid and/or pressured speech, and
hyperactivity, which constitute “not normal but abnormal findings
on mental status exam[ination].” (Id. (citing Tr. 1060).)
Plaintiff’s argument, however, glosses over the ALJ’s inclusion of
the word “largely” modifying the word “normal” in describing
Plaintiff’s mental status examinations (Tr. 24), i.e., the ALJ
acknowledged that Plaintiff’s mental status examination contained
some abnormal findings. The entirety of the mental health findings
at the March 2017 examination consisted of the following:
[Plaintiff’s] mood appears not anxious. Her affect is
labile. Her affect is not inappropriate. Her speech is
rapid and/or pressured. She is hyperactive. She is not
agitated, not aggressive and not actively hallucinating.
Thought content is not paranoid and not delusional.
Cognition and memory are normal. She does not exhibit a
20

depressed mood. She expresses no homicidal and no
suicidal ideation.
(Tr. 1060 (emphasis added).) The emphasized language reflects
normal findings, which clearly predominate over the abnormal
findings. Thus, the ALJ did not err by remarking that “[m]ental
status examinations have been largely normal.” (Tr. 24 (emphasis
added).)
Third, Plaintiff argues that the ALJ erred when she found
that, at the March 2017 office visit, Plaintiff “told her providers
that she did not wish to seek mental health treatment” (Tr. 24
(citing Tr. 1061)), noting that Plaintiff actually “stated that
‘she does not wish to seek mental health service at DayMark,’ and
requested another referral.” (Docket Entry 13 at 13-14 (emphasis
added) (quoting Tr. 1061).) The ALJ overstated the record by
describing Plaintiff as having refused any further mental health
treatment (see Tr. 24), as Plaintiff declined referral specifically
to DayMark and requested another referral (see Tr. 1061); however,
that overstatement qualifies as harmless under the circumstances of
this case. The record reflects that, between March 24, 2017, and
May 3, 2017, a “mental health professional” evaluated Plaintiff
“who did not push any treatment for depression” but “did recommend
treatment for neuropathy” (Tr. 1079). The record does not contain
that evaluation by an unidentified “mental health professional,”
and no further mention of treatment by that individual or any other
mental health professional appears in the record. Accordingly,
21
Plaintiff has not shown that remand for an acknowledgment by the
ALJ of this subsequent evaluation that did not result in “any
treatment for depression” or any follow-up would have resulted in
a more favorable outcome in her case. See generally 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”).
Fourth, Plaintiff disputes the ALJ’s characterization of
Plaintiff’s mental health treatment as “‘limited and conservative’”
(Docket Entry 13 at 15 (quoting Tr. 24)), contending that “a
district court in this circuit observed that because ‘[m]any
potentially disabling conditions can be treated by routine and
conservative treatment, the characterization of treatment as
conservative alone does not provide any insight into the severity
of a given condition and may even belie the condition’s
seriousness’” (id. at 15-16 (quoting Ellis v. Colvin, No. 5:13CV43,
2014 WL 2862703, at *9 (W.D. Va. June 24, 2014) (unpublished))
(internal quotation marks omitted)).

Plaintiff’s citation to Ellis does not aid her cause, because
in that case, the court specifically noted that “the treatment
options available for fibromyalgia are all conservative in nature”
and thus that “[a] claimant cannot be faulted ‘for failing to
pursue non-conservative treatment options where none exist.’”
22
Ellis, 2014 WL 2862703, at *9 (quoting Lapierre–Gutt v. Astrue, 382
F. App’x 662, 664 (9th Cir. 2010)). In contrast, the record here
contains no psychiatric inpatient hospitalizations, no counseling
or therapy sessions, and no visits to psychiatrists or
psychologists, and shows that Plaintiff only took anti-depressant
medication for a few days before discontinuing it for side effects
and declining further psychiatric medication (see Tr. 525, 527,
1059). In light of those facts, the ALJ did not err by
characterizing Plaintiff’s mental health treatment as “limited and
conservative.” (Tr. 24.)
For the foregoing reasons, the Court should deny relief on
Plaintiff’s second issue on review.
III. CONCLUSION
Plaintiff has established an error warranting remand.9
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be vacated and that the matter be remanded
under sentence four of 42 U.S.C. § 405(g), for further
administrative proceedings to include identification and resolution
of any apparent conflicts between the VE’s testimony and the DOT in
accordance with SSR 00-4p and Pearson. As a result, Plaintiff’s
Motion for Judgment on the Pleadings (Docket Entry 12) should be

9 Plaintiff’s Memorandum alternatively asks that the ALJ’s “decision [] be
vacated and reversed, or remanded, for a new hearing and decision.” (Docket
Entry 13 at 16.) In this case, the Court should opt for remand, because
Plaintiff’s Memorandum does not adequately develop a cogent argument justifying
reversal for an award of benefits. (See id.)
23
granted in part, i.e., to the extent it requests remand, and
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 15)
should be denied.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 21, 2021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253853. Public record. Not legal advice.