same, and noting that Mascio “did not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC”
How later courts described this case
- same, and noting that Mascio “did not impose a categorical rule that requires an ALJ to always include moderate limitations in concentration, persistence, or pace as a specific limitation in the RFC”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CASSANDRA MCLEAN, )
)
Plaintiff, )
)
v. ) 1:20CV599
)
KILOLO KIJAKAZI! )
Acting Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Cassandra McLean (‘Plaintiff’) brought this action pursuant to Sections
205(g) and 1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g)
and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social
Secutity denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental
Secutity Income (“SSI”) under, respectively, Titles IT and XVI of the Act. The parties have
filed ctoss-motions for judgment, and the administrative record has been certified to the Court
for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed applications for DIB and SSI on April 10, 2017, alleging a
disability onset date of December 1, 2016 in both applications. (Tr. at 14, 196-200.)? Her
1 Kilolo Kijakazi became 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, therefore, for Andrew Saul as
the defendant in this suit. No further action need be taken to continue the suit by reason of the last sentence
of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2 Transcript citations refer to the Sealed Administrative Record [Doc. #10].
applications were denied initially (Tr. at 60-91, 124-34) and upon reconsideration (Tr. at 92-
121, 137-54). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (Tr. at 155-56.) On April 22, 2019, Plaintiff, along with
her attorney, attended the subsequent video heating, during which both Plaintiff and an
impartial vocational expert testified. (Tr. at 14.) The ALJ ultimately concluded that Plaintiff
was not disabled within the meaning of the Act (Tr. at 25), and, on June 8, 2020, the Appeals
Council denied Plaintiffs request for review of the decision, thereby making the AL]’s
conclusion the Commissioner’s final decision for purposes of judicial review (Tr. at 1-7).
Il LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of teview of such a decision is “extremely limited.” Brady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
AL] if they ate supported by substantial evidence and were reached through application of the
correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (Gnternal
quotation omitted).
“Substantial evidence means ‘such relevant evidence as a teasonable mind might accept
as adequate to support a conclusion.”” Hunter vy. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete
scintilla of evidence but may be somewhat less than a preponderance.” Mastto v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then thete is
substantial evidence.” Hunter, 993 F.2d at 34 (Gnternal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to te-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL}].” Mastro, 270 F.3d at 176 (internal brackets and quotation matks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
{the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
AL)’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that “Ja] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A))
3 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq, provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 CFR. pt. 404 (SSDI); 20 CR. pt. 416 (SSI), governing these two ptogtams are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. 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 the first two steps, and if
the claimant’s impaitment meets ot equals a “listed impairment” at step three, “the claimant
is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,
but falters at step three, ie., “[i]fa clatmant’s impairment is not sufficiently severe to equal ot
exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional
capacity (REC’).” Id. at 179.4 Step four then requires the ALJ to assess whether, based on
4 “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
a day, for 5 days a week, or an equtvalent work schedule” (internal emphasis and quotation marks
omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations
(mental, sensory, ot skin tmpairments).” Hall, 658 F.2d at 265. “RFC ts to be determined by the ALJ only aftet
[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (e.g, pait).”
Hines, 453 F.3d at 562-63.
that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that
a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its
“evidentiary burden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
I. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since her alleged onset date. The ALJ therefore concluded that Plaintiff met her
burden at step one of the sequential evaluation process. (Ir. at 16.) At step two, the AL]
further determined that Plaintiff suffered from the following severe impairments:
bipolar I disorder with mood swings and obesity[.]
at 16.) The AL] found at step three that neither of these impairments, individually or in
combination, met or equaled a disability listing. (T'r. at 17-19.) Therefore, the AL] assessed
PlaintifPs RFC and determined that she could perform medium work with the following, non-
exettional limitations:
[Plaintiff] is capable of performing all postural functions with the exception of
no climbing of ladders, ropes, or scaffolds. [She] retains the capacity to
understand, remember and carty out simple instructions and perform simple
routine tasks as consistent with unskilled work. In the course of work, [Plaintiff]
is to have no in-person contact with the public with the exception that
incidental, telephonic and computer contact is not precluded. [Plaintiff] is to
have only occasional contact with coworkers and supervisors, occasional being
defined as occasional interaction and coordination, but not necessarily
proximity to the same.
at 19-20.) Based on this determination, the AL] found at step four of the analysis that
Plaintiff could not perform any of het past relevant work. (T't. at 23.) However, the AL]
concluded at step five that, given Plaintiff's age, education, work experience, and RFC, along
with the testimony of the vocational expert regarding those factors, Plaintiff could perform
other jobs available in the national economy and therefore was not disabled. (Tr. at 24-25.)
Plaintiff now contends that, in assessing her RFC, the AL] failed to properly (1) account
for Plaintiff's moderate limitation in concentration, persistence, or pace in accotdance with
the Fourth Circuit's decision Mascio v. Colvin, 780 F.3d 632, 638 (4th Cir. 2015); (2) assess
the consistency of Plaintiff's complaints with the medical and other evidence;> and (3) weigh
the medical opinion evidence. (Pl.’s Br. [Doc. #14] at 6.) After a thorough review of the
tecotd in this case, the Court finds that none of Plaintiffs contentions merit remand.
A. Concentration, Persistence, and Pace
Plaintiff first argues that the AL] failed to properly address the effects of Plaintiffs
moderate limitations in maintaining concentration, persistence, and pace. The AL]
determined at step three of the sequential analysis that Plaintiff has moderate limitations in
this functional area. (Ir. at 19.) In Mascio v. Colvin, the Fourth Circuit explained that, where
moderate limitations in concentration, persistence and pace are reflected at step three, the ALJ
5 Plaintif£ raises two challenges to the AL]’s treatment of her subjective complaints. Because of the overlap
between these two contentions, the Court addresses them in tandem.
should address those limitations in assessing the RFC or should explain why the limitations
do not affect the claimant’s ability to work. The Fourth Circuit specifically held that “an AL]
does not account for a claimant’s limitations in concentration, persistence, and pace by
restricting the hypothetical question to simple, routine tasks or unskilled work.” Mascio, 780
F.3d at 638 (quotation omitted). This is because “the ability to perform simple tasks differs
from the ability to stay on task. Only the latter limitation would account for a clatmant’s
limitation in concenttation, persistence, or pace.” Id. ‘The Fourth Circuit further noted that
[plethaps the ALJ can explain why Mascio’s moderate limitation in
concentration, persistence, or pace at step three does not translate into a
limitation in Mascio’s residual functional capacity. For example, the AL] may
find that the concentration, persistence, or pace limitation does not affect
Mascio’s ability to work, in which case it would have been approptiate to
exclude it from the hypothetical tendered to the vocational expert. But because
the ALJ here gave no explanation, a remand is in ordet.
Id. (nternal citation omitted). However, as previously noted in other cases in this District,
the Fourth Circuit’s decision in Mascio
does not broadly dictate that a claimant’s moderate impairment in
concentration, persistence, or pace always translates into a limitation in the
RFC. Rather, Mascio underscores the AL]’s duty to adequately review the
evidence and explain the decision... .
An AL] may account for a claimant’s limitation with concentration, persistence,
ot pace by restricting the claimant to simple, routine, unskilled work where the
record supports this conclusion, either through physician testimony, medical
soutce statements, consultative examinations, ot other evidence that is
sufficiently evident to the reviewing coutt.
Tolbert v. Colvin, 1:15CV437, 2016 WL 6956629, at *8 (M.D.N.C. Nov. 28, 2016) (finding
that RFC limitations to “simple, routine, repetitive tasks with simple, short instructions, in a
job that required making only simple, work-related decisions, involved few workplace changes,
and requited only frequent contact with supetvisors, co-workers, ot the public” sufficiently
accounted for a Plaintiff s moderate limitations in concentration, persistence, or pace in light
of the AL]’s explanation throughout the administrative decision) (quoting Jones v. Colvin, No.
7:14CV273, 2015 WL 5056784, at *10-12 (W.D. Va. Aug. 20, 2015)); see also Sizemore v.
Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017) (rejecting the plaintiffs argument under Mascio
where the ALJ relied on the opinion of the state agency psychologist that, notwithstanding
moderate limitations in concentration, persistence, and pace, the plaintiff could sustain
attention sufficiently to perform simple, routine, repetitive tasks with additional limitations);
Shinaberry v. Saul, 952 F.3d 113, 121-22 (4th Cir. 2020) (same, and noting that Mascio “did
not impose a categorical rule that requires an ALJ to always include moderate limitations in
concentration, persistence, or pace as a specific limitation in the RFC”).
In the present case, as in Mascio, the ALJ found moderate limitations in concentration,
persistence, or pace at step three of the sequential analysis. (I'r. at 19.) Later in the sequential
analysis, the ALJ formulated a mental RFC in which she found Plaintiff “retains the capacity
to understand, remember and carty out simple instructions and perform simple routine tasks
as consistent with unskilled work.” (Tr. at 20.) Plaintiff now argues that, in making this RFC
finding, the ALJ did not fully account for Plaintiffs ability to stay on task in light of her
moderate difficulties with concentration, persistence, or pace. Accordingly, Plaintiff contends
that the ALJ failed to “build an accurate and logical bridge from [that] evidence to his
conclusion” to allow for meaningful review of the SSA’s ultimate findings. Woods v. Berryhill,
888 F.3d 686, 694 (4th Cir. 2018) (quoting Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir.
2016)).
Plaintiff acknowledges that an ALJ may account for a claimant’s limitation with
concentration, persistence, ot pace by restricting the claimant to simple, routine, unskilled
work where the record supports this conclusion. In this case, however, Plaintiff contends that
the ALJ failed to provide a basis for omitting additional limitations. However, the AL]
specifically found that “the disability determination explanations ftom the State Agency
psychological consultants [were] persuasive with regard to [Plaintiff's] moderate limitation
with interacting with others and concentrate, persist, or maintain pace” and that the record,
“as evidenced by treatment history, treating notes, and mental status examination findings,”
supported the consultants’ opined limitations in these areas. (T'r. at 22.)
With respect to the explanations from the State Agency psychological consultants, at
the initial level Darolyn Hilts, Ph.D., opined that Plaintiff was moderately limited in her ability
to “maintain attention and concentration for extended periods”, and further explained that
Plaintiff “would be expected to have difficulty sustaining attention to detailed instructions
secondary to her issues with depression... and possible PISD.” (Tr. at 70-71.) Nevertheless,
Dr. Hilts concluded that Plaintiff “appears to be capable of sustaining attention for shorter
petiods of time required for the performance of SRRT’s [simple, routine, repetitive tasks].”
(Tr. at 70-71.) After completing her psychiatric review, Dr. Hilts concluded that “[t]he current
evidence in [the] file supports a finding that mental conditions merit restrictions but ate not
so sevete to pteclude all work” as further set out in the functional capacity assessment. (Tr.
at 67.) Similarly, upon reconsideration, Brett A. Fox, Psy.D., opined as follows:
[Plaintiff] may have some difficulty at times maintaining attention and
concenttation for extended periods, working in coordination with, or in
ptoximity to, others, and completing a workday without interruptions from
psychologically based symptoms. However, she should be able to maintain
attention and concentration in order to complete simple, routine tasks.
(Tr. at 102.) Dr. Fox further explained:
[Plaintiff] alleges depression along with bipolar disorder. [Plaintiff] is in
treatment for mental health issues including Bipolar Disorder, PTSD, Panic
Disorder, and ADHD. [Plaintiff] is in treatment with ongoing symptoms that
ate noted to be mild to moderate in nature per recent progress note.
At this time, [Plaintiff] should be stable enough to complete simple tasks in a
less demanding work setting provided they fall within her physical abilities.
(Tr. at 103.) In short, both State agency consultants determined that, despite her moderate
limitations in concentration, persistence, and pace, Plaintiff retained the ability to work in a
less demanding position involving only simple, routine tasks. The AL] expressly adopted these
findings, provided reasons for doing so, and included nearly identical limitations in Plaintiffs
REC assessment. (Tr. at 20, 22.) In addition, the ALJ also specifically noted with regard to
Plaintiffs limitations in concentration, petsistence, and pace, that she “often reported
adequate symptoms control from psychiatric medications” and she “reported watching
television and reading for pleasure, which requires some concentration and persistence” and
“{s]he is able to drive and grocery shop, which requires some concentration and persistence.”
(Tt. at 19.) In assessing the RFC, the AL] also considered the medical evidence at length, and
specifically concluded that Plaintiffs functional limitations could be accommodated “by
limiting interaction with others in the workplace and unskilled work.” (Tr. at 22.) In reaching
this conclusion, the AL] relied on het own analysis of the evidence and the opinions of the
state agency psychological consultants, as discussed above. ‘Thus, the ALJ considered and
discussed the record and built a logical bridge between the evidence in the record and the
RFC. In these circumstances, the Court finds no basis for teversal under Mascio.
10
B. Subjective Complaints
Plaintiff next argues that AL] erred in two respects when evaluating her subjective
complaints. First, Plaintiff contends that the AL] determined the RFC before assessing the
consistency of Plaintiffs complaints, tn contradiction to the Fourth Circuit’s holding in
Mascio, 780 F.3d at 639. (PL’s Br. at 13-16.) Second, Plaintiff asserts that symptom evaluation
itself was flawed, as the ALJ failed to provide “specific rationale for finding [Plaintiffs]
statements inconsistent with the . . . evidence,” and instead relied on “vague teferences in the
medical records.” (Pl.’s Br. at 18-21.)
With regard to Plaintiffs Mascio challenge, the Court finds no basis for remand.
Notably, in Mascio, the AL] applied boilerplate language which stated, in pertinent part, that
“the claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms ate not credible to the extent they ate inconsistent with the above residual
functional capacity assessment.” 780 F.3d at 639 (citation omitted). The Fourth Circuit held
that “this boilerplate gets things backwards by implying that ability to work is determined first
and is then used to determine the claimant's credibility.” Id. Gnternal quotation omitted). The
Fourth Circuit held that the ALJ “should have compared Mascio’s alleged functional
limitations from pain to the other evidence in the record, not to Mascio’s residual functional
capacity.” Id. In the present case, however, the AL] found that Plaintiffs “statements
concerning the intensity, persistence[,] and limiting effects of [her] symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the reasons
explained in this decision.” (Tr. at 22.) Unlike the language in Mascio, this boilerplate does
11
not imply “that ability to work [was] determined first and [was] then used to determine the
claimant’s credibility.” 780 F.3d at 639 (quotation omitted).
Moteovet, Mascio further explains that, even where an AL] makes a “backwards”
credibility determination, “[t]he AL]’s error would be harmless if [she] properly analyzed
ctedibility elsewhere.” Id. In that case, the ALJ stmply failed to perform such an analysis. In
contrast, the ALJ in the present case recounted Plaintiff's testimony and related her reasons
for discounting the severity and limiting effects of Plaintiffs mental impairment based on the
tecotd as a whole. (T't. at 20-23.) As reflected in the ALJ’s decision, Plaintiff testified that
“Tdjaily symptoms that prevent her from working include fatigue, depression, anxiety,
difficulty being around people, paranoia, and fear that something bad will happen to her.” (Tr.
at 20.) Plaintiff further testified that she has experienced improvement with medications and
that she has not had a psychiatric admission since 1996, when she attempted suicide. (T'r. at
20.) The ALJ ultimately concluded that PlaintifPs statements about the intensity, persistence,
and limiting effects of her symptoms “are not entirely supported by the record.” (Tr. at 22.)
The ALJ then explained the rationale for this finding as follows:
[Plaintiff] has undergone conservative treatment for her mental health
symptoms including medication management and some therapy. She often
reported adequate response with medications and improvement of
symptomatology. She did not frequently complain of adverse side effects from
medications. Despite medications, she did have some ongoing symptoms;
however, her psychiatrist indicated that she remained with good functioning
despite current symptoms. It is noted that [Plaintiff] endorsed significant
symptoms at times, including suicidal thoughts, however she did not requite||
any inpatient mental health treatment and no voluntary or involuntary
psychiatric hospitalizations. Her mental status examinations and reported
symptoms showed improvement with treatment and medication compliance.
Overall, the record does not support her allegations of disabling mental
symptoms or functional limitations to the extent purported. The [RFC]
assessment more than accommodates [Plaintiffs] supported allegations by
12
limiting interaction with others in the workplace and [limiting her to] unskilled
work.
(Tr. at 22.) Plaintiff now asserts that the above explanation fails to provide “specific rationale”
for discounting her statements. Instead, she argues, the AL] relied on “vague references in
the medical records in order to conclude that” Plaintiffs subjective statements were not
entitely consistent with the evidence. (P1.’s Br. at 18.)
Plaintiff is correct that, under the applicable regulations, the AL]’s decision must
“contain specific reasons for the weight given to the individual’s symptoms, be consistent with
and supported by the evidence, and be clearly articulated so the individual and any subsequent
reviewer can assess how the adjudicator evaluated the individual’s symptoms.” Social Security
Ruling 16-3p, Titles IT and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p,
2017 WL 5180304 (Oct. 25, 2017) (“SSR 16-3p”);® see also 20 C-F.R. § 404.1529. Moreover,
in Arakas v. Comm’t of Soc. Sec., 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit recently
clarified the procedure an AL] must follow when assessing a claimant’s statements:
When evaluating a claimant’s symptoms, ALJs must use the two-step
framework set forth in 20 C.F-R. § 404.1529 and SSR 16-3p, 2016 WL 1119029
(Mar. 16, 2016). First, the AL] must determine whether objective medical
evidence presents a “medically determinable impairment” that could reasonably
be expected to produce the claimant’s alleged symptoms. 20 C.F.R. §
404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.
Second, after finding a medically determinable impairment, the ALJ must assess
the intensity and persistence of the alleged symptoms to determine how they
affect the claimant’s ability to work and whether the claimant is disabled. See 20
C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step,
objective evidence is sof required to find the clatmant disabled. SSR 16-3p, 2016
WL 1119029, at *4—-5. SSR 16-3p recognizes that “[s]ymptoms cannot always
be measured objectively through clinical or laboratory diagnostic
6 SSR 16-3p was initially published on March 16, 2016, and is available at 2016 WL 1119029. The Ruling was
republished on October 25, 2017, 2017 WL 5180304, to clarify the effective date of the rule.
13
techniques.” Id. at *4. Thus, the AL] must consider the entire case record and
may “not disregard an individual’s statements about the intensity, persistence,
and limiting effects of symptoms solely because the objective medical evidence
does not substantiate” them. Id. at *5.
983 F.3d at 95-96.
In the present case, contrary to Plaintiffs assertions, the ALJ provided more than
conclusoty statements discounting Plaintiffs testimony. As instructed by the regulations, the
ALJ considered the entire case record and explained her reasons for deviating from Plaintiffs
statements regarding the impact of her symptoms on her ability to work. This explanation
was ptovided, not only in the paragraph quoted above, but throughout the AL]’s RFC
discussion and her discussion at step three of the sequential analysis. For example, the ALJ
noted that Plaintiff had “undergone conservative treatment for her mental health symptoms
including medication management and some therapy,” and further explained this finding by
specifying that “she did not require[] any inpatient mental health treatment and no voluntaty
ot involuntary psychiatric hospitalizations.” (It. at 22.) In addition, the AL] found that “she
often reported adequate response with medications and improvement of symptomatology”
and in support of this finding, the AL] recounted Plaintiffs psychiatric treatment notes at
length. In particular, the ALJ’s discussion of this evidence reflects multiple medication
changes between early 2017, when Plaintiff began treatment, and the end of that year. During
that time, Plaintiffs doctors adjusted both the type of medication and the dosages numerous
times in tesponse to PlaintifPs feedback regarding the effectiveness of the various
ptesctiptions and their side effects. (Tr. at 21-22.) However, treatment records from 2018
forward increasingly characterize Plaintiffs symptoms as “stable” (I't. at 21, 893) or “well
controlled on her current medication regimen.” (Tr. at 21, 524, 534, 824, 826, 877). Although
14
Plaintiffs providers continued to tweak the dosages of her medications duting this period, and
addressed a petiod tn mid-2018 when she ran out of her medications for three weeks (Tr. at
890), the record indicates that PlaintifPs functioning improved despite her remaining
symptoms, which included moderate depression with occasional auditory hallucinations. (Tr.
at 21, 874, 877, 880, 1213-14.) The most recent mental health treatment tecords reflect that
in October 2018 her CGI tating had improved to 4/7, reflecting “moderately ill” (Tr. at 880-
81), two months later in December 2018 she remained at that level with only moderate
symptoms by her subjective report (Tr. at 877), and the next month in January 2019 she
remained at the same level with only mild and moderate symptoms by her subjective report
(Tr. at 874). The January 2019 mental status examination noted that her depression was
“moderate, without functional impairment from symptoms” and her mania was “moderate,
without functional impairment from symptoms.” (Tr. at 872.) Her thought process was
“coherent with slow production” with unimpaired judgment. (I'r. at 872-73.) Finally, two
months later in March 2019, she had improved to a severity tating of 3/7 reflecting only
“mildly ill,” and the medical record of “Updates to Psychiatric History since Last Visit” reflect
that “[s]he remains with good functioning despite current symptoms.” (I'r. at 1213.) By her
subjective reports, her symptoms were generally mild and low-moderate (Tr. at 1213-14), and
on mental status examination her depression was “[m]oderate, without functional impairment
from symptoms,” and her mania was “mild,” with moderate slowing and unimpaired judgment
at 1214-15.) The treatment plan reflects she was “stable at this time on cutrent medication
regimen.” (T'r. at 1215.)
15
The ALJ discussed these records, and they support the AL]’s conclusion that Plaintiffs
“mental status examinations and reported symptoms showed improvement with treatment
and medication compliance.” (Tr. at 22.) The AL] also discussed specific details from the
most recent mental health treatment record from March 2019, supporting the ALJ’s finding
that “her psychiatrist indicated that she remained with good functioning despite current
symptoms” (I'r. at 21-22). By relying on treatment records demonstrating improvement, the
AL] did not suggest that Plaintiffs treatment rendered her free from mental limitations.
Rather, the ALJ acknowledged that Plaintiff continued to suffer from “fatigue, depression,
anxiety, difficulty being around people, paranoia, and fear that something bad will happen to
her” throughout the time period at issue. (Tr. at 20.) However, the ALJ ultimately concluded,
based on the record as a whole, that the intensity, persistence, and functionally-limiting effects
of PlaintifPs mental impairments did not preclude all work activity as Plaintiff contends.
Notably, as explained with regard to PlaintifPs previous contention, the ALJ also
expressly relied on the opinions of the State agency psychological consultants in assessing the
limiting effects of Plaintiffs mental limitations. (See Tr. at 22.) In doing so, the ALJ declined
to adopt the consultants’ finding that Plaintiff was moderately limited in adapting or managing
herself or the finding of Dr. Fox at the reconsideration level that Plaintiff was moderately
limited in understanding, remembering, or applying information. (T'r. at 22, 66, 98.) The ALJ
explained that these finding “are not persuasive or consistent with the record.” (Tr. at 22.) In
terms of understanding, remembering, ot applying information, the AL] further explained that
The medical evidence or record, including mental status reports, generally
shows no setious deficits in long-term memory, short-term memory, insight,
and judgment. [Plaintiff] was able to give a good history of her medical and
mental health history to treating and examining practitioners. [She] has reported
16
watching television and reading for pleasure, which requires some memory and
understanding. [Plaintiff] is able to perform activities of daily living, such as
driving and grocery shopping, which require a basic level of understanding,
remembering, and applying information.
at 18.) Similarly, the ALJ found only mild limitations in adapting or managing oneself,
noting that
The medical evidence of record shows [Plaintiff] did not usually complain about
setious problems with adaptation and managing herself. Observations of
treating and examining practitioners generally show [Plaintiff] had no
deficiencies in hygiene and wore apptopriate attire. There is no evidence
[Plaintiff] had serious problems being aware of normal hazards and taking
appropriate precautions. [She] had no problems with independently making
plans and setting goals. However, [Plaintiff] testified that she did not handle
her own activities of daily living[] without assistance from others.
at 19.) In light of these findings, the AL] formulated an RFC assessment consistent with
the consultants’ ultimate conclusions in terms of social and concentration limitations. (Tr. at
20, 68, 103.) Significantly, both consultants found that, despite her impairments, Plaintiff
remained capable of performing simple, routine tasks and interacting appropriately with
coworkers and supervisors. (Tr. at 67-68, 71-72, 103.) Dr. Fox specifically recounted at the
reconsideration level that Plaintiff “is in treatment [for bipolar disorder, PTSD, panic disorder,
and ADHD] with ongoing symptoms that are noted to be mild to moderate in nature per
recent progress note[s].” (Ir. at 103.) He posited that, as of his Januaty 2018 opinion, Plaintiff
“should be stable enough to complete simple tasks in a less demanding work setting provided
they fall within her physical abilities.” (Ir. at 103.) These findings are again consistent with
the AL]’s findings of improved functioning, which continued to improve further into 2019 as
set out by the AL] in reviewing the medical records, and would support the AL]’s ultimate
RFC assessment. In sum, a thorough reading of the administrative decision teveals that, in
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accordance with the regulations, the ALJ articulated specific reasons supporting her evaluation
of Plaintiffs symptoms.
C. Opinion Evidence
Finally, Plaintiff contends that the AL] failed to sufficiently consider the medical
opinion of Physician’s Assistant Chelle Stinson Jeffery in accordance with the regulations.
Under the applicable regulations for claims filed on or after March 27, 2017,7
[The ALJ] will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative medical
finding(s), including those from your medical sources. When a medical soutce
ptovides one or more medical opinions or prior administrative medical findings,
we will consider those medical opinions or prior administrative medical findings
from that medical source together using the factors listed in paragraphs (c)(1)
through (c)(5) of this section, as approptiate. ....
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical soutce ate to support his
ot her medical opinion(s) or prior administrative medical finding(s), the
mote persuasive the medical opinions or prior administrative medical
finding(s) will be.
(2) Consistency. The mote consistent a medical opinion(s) otf prior
administrative medical finding(s) is with the evidence ftom other medical
soutces and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.
(3) Relationship with the claimant . . . [which includes]: @) Length of the
treatment relationship. . . (i) Frequency of examinations. ... (iii) Purpose
of the treatment relationship. . . . (tv) Extent of the treatment relationship.
.. [and] (v) Examining relationship. .. .
(4) Specialization. The medical opinion or prior administrative medical finding
of a medical source who has received advanced education and training to
become a specialist may be more persuasive about medical issues related to
his or her atea of specialty than the medical opinion or prior administrative
7In 2017, the Social Security Administration revised its regulations governing the analysis of opinion evidence.
Under the new tegulations, for claims filed on or after March 27, 2017, decision-makers must consider the
petsuasiveness of each opinion as set out above.
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medical finding of a medical source who is not a specialist in the relevant
atea of specialty.
(5) Other factors. ... This includes, but is not limited to, evidence showing a
medical soutce has familiarity with the other evidence in the claim or an
understanding of our disability program’s policies and evidentiary
requirements. ...
20 C.F.R. § 404.1520c(a) and (c). Thus, in weighing the opinion evidence under the revised
regulations, all medical source opinions, including those from both treating and non-treating
physicians, must be considered using the factors listed in patagtaphs (c)(1) through (c)(5) of
§ 404.1520c. The regulations specifically provide that the most important factors when
evaluating the persuasiveness of an opinion ate the first two: supportability and consistency.
20 C.F.R. § 404.1520c(a), 404.1520c(c)(1)-(2) (2)
In this case, on Match 28, 2019, Ms. Jeffery, a physicians’ assistant at Plaintiffs primary
cate provider, completed a five page “Physical Medical Source Statement,” prepared by
Plaintiffs attorney. (I'r. at 1056-1060.) In the statement, Ms. Jeffery listed Plaintiff's diagnoses
as fibromyalgia, irritable bowel syndrome, and bipolar disorder, but she specifically noted that
Plaintiffs mental impairment is “managed by psychiatry.” (T'r. at 1056.) Ms. Jeffery described
Plaintiffs physical impairments as causing “constant pain,’ which is “aggravated by
movement, mood],| and often unidentified triggers.” (T'r. at 1056.) She then went on to
indicate that Plaintiff's pain would significantly, and in some cases severely, limit her ability to
perform neatly all basic work activities, including standing, walking, sitting, and the
performance of all postural activities. (Ir. 1057-59.) Moreover, she indicated that Plaintiff
would need one ot two unscheduled, 15-30 minute breaks each workday, would be off task
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10% of a typical workday, was incapable of even “low stress” work, and would miss more than
four workdays per month as a result of her impairments or treatment. (T'r. at 1057-60.)
In consideting this opinion evidence, the Court notes as an initial matter that Ms.
Jeffery’s opinion relates primarily to Plaintiffs physical impairments, specifically fibromyalgia
and irritable bowel disease. However, Plaintiff does not raise any appeal or challenge in this
case regatding the AL]’s determination as to her physical impairments. At step two of the
sequential analysis, the ALJ specifically found that neither Plaintiffs fibromyalgia nor her
irritable bowel disease constituted severe impairments, let alone rendeted her disabled. (Tr. at
17.) The ALJ noted that, although she considered fibromyalgia a medically determinable
impairment, “[t]hete are no significant objective medical findings or identification of
limitations in the record” relating to fibromyalgia. (Tr. at 17.) She further recounted that
“It]here ate no physical examinations in exhibits 9F, 11F, and 13F that reveal trigger points.
The representative also agreed that his review of the record showed no tender or trigger points
on examination. Accordingly, this medically determinable impairment produces no more than
minimal limitations upon [Plaintiffs] ability to perform work-related activities and is non-
severe.” (Tr. at 17.) With respect to Plaintiffs alleged irritable bowel syndrome, the AL]
found even less support, concluding that “there are no medical signs or laboratory findings
established by medically acceptable clinical or laboratory diagnostic techniques, showing the
existence of [this] impairment ..., showing that [this impairment] result[s] in anatomical,
physiological[,] or psychological abnormalities[,] or showing that [this impairment] could
reasonably be expected to produce the pain or other symptoms alleged.” (Tr. at 17.) These
findings are not challenged by Plaintiff, and these findings would clearly support the ALJ’s
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later determination that Ms. Jeffery’s assertion of disabling symptoms from fibromyalgia and
irritable bowel syndrome were not persuasive. (It. at 22.) In any event, given that Plaintiff
has not taised any appeal or challenge regarding her physical impairments, there is no basis to
futther consider any issues regatding Ms. Jeffery’s opinion as to Plaintiffs physical
impairments.
With respect to Plaintiffs mental impairment, Plaintiff contends that the ALJ failed to
sufficiently consider Ms. Jeffery’s opinion and just summarily concluded that the opinion was
“not wholly persuasive” because it was not “consistent with the record” (Tr. at 22). Plaintiff
contends that the ALJ failed to cite any particular inconsistencies and that the ALJ’s analysis
was not sufficiently detailed to permit review. However, the AL]’s decision here, read as a
whole, sets out multiple reasons for concluding that Ms. Jeffery’s opinion was not persuasive.
For example, with respect to the type of provider, the ALJ recognized Ms. Jeffery as Plaintiff's
primary care provider (I'r. at 22), and the ALJ in contrast noted that the State Agency
psychological consultants Dr. Hilts and Dr. Fox wete “psychological specialists” and their
opinions regarding Plaintiff's mental health impairments were “within the area of expertise.”
(Tr. at 22.) As discussed in detail above, the State agency psychological consultants considered
Plaintiffs treatment records through 2018, and concluded that Plaintiff could work with some
limitations in light of the information set out in the records. The ALJ found these opinions
persuasive as specified. (Tr. at 20, 22.)
Moreover, to the extent that Ms. Jeffery’s opinion is based on limitations from
Plaintiffs bipolar disorder, Ms. Jeffery’s opinion itself specifically notes that Plaintiffs mental
health was managed by psychiatry, rather than primary cate providers. (Tr. at 1056.) With
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respect to Plaintiffs psychiatric treatment, the ALJ chronicled the evidence of Plaintiffs
mental health treatment with Plaintiffs treating psychiatrist Dr. Aiken and his staff. (Tr. at
17, 19-22.) That evidence is discussed at length above. Of particular note, the ALJ discussed
in detail Plaintiff's psychiatric treatment record from March 5, 2019 (Tr. at 21, 1213-14), which
was the most recent psychiattic treatment record and is the only treatment note from around
the time of Ms. Jeffery’s March 2019 opinion. As noted by the ALJ, that March 2019 mental
health treatment tecotd reflects that Plaintiff had good functioning despite her current
symptoms and that she was stable on the current medication regimen as set out in greater
detail above. (Tr. at 21, 1213-14.)
Moreover, Ms. Jeffery’s opinions are inconsistent with her own treatment records. As
noted by the ALJ, “[p|rimary care treating notes dated June 26, 2018 indicate that [Plaintiffs]
bipolar disorder is well controlled on her current treatment regimen” and “[ml]ood, affect, and
behavior wete normal.” (Tr. at 21, 826.) Indeed, in the 18 months prior to Ms. Jeffery’s
opinion, Ms. Jeffery’s own treatment notes reflect four visits in total: a visit on February 27,
2018 for cough, noting that Plaintiffs bipolar disorder was managed by psychiatry and that
she “is vety pleased with recent changes to her psychiatric medication regimen” with an
examination reflecting normal mood, affect, speech and behavior (Tr. at 1152-54); a visit on
June 26, 2018 for fibromyalgia, with a notation that her bipolar disorder is “well controlled”
and she “feels good on her current medication” and will “follow-up with psychiatry” with an
examination reflecting normal mood, affect, speech, and behavior (Ir. at 1161-62, 1164, 1167);
a visit on October 16, 2018 for a gynecological exam, with a notation that her bipolar disorder
is “stable and managed primarily by psychiatry” with an examination reflecting normal mood,
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affect, speech and behavior (Tr. at 1174-76); and a visit on January 15, 2019 for fibromyalgia,
with a notation that she “[s]ees Laura at the Mood Treatment Center” and with an examination
reflecting normal mood, affect, speech, and behavior (Tr. at 1186-88). Thus, as noted by the
ALJ, these ptimary care treating notes reflect that her bipolar disorder is well controlled on
her current medication and her mood, affect, and behavior were normal. (Tr. at 21.) Read as
a whole, the basis of the AL]’s determination is clear, and substantial evidence supports the
determination that Ms. Jeffery’s opinion is not consistent with the record.
Plaintiff cites the Court’s decision in Brown v. Saul, No. 1:18CV658, 2020 WL 887974
(M.D.N.C. Feb. 24, 2020), but in Brown, “the AL] gave [the providet’s] opinion ‘partial
weight,’ but failed to describe which limitations he accepted, which he did not, and why he did
so,” and in that case the Court was “left to guess as to what portions of [the provider’s]
treatment records the AL] found inconsistent with [that providert’s] opinion.” 2020 WL
887974, at *6. In contrast, in the present case, the ALJ did not accept any of Ms. Jeffery’s
opinions. (Tr. at 19-22, 1056-60.) Accordingly, the Court is not “left to guess” which
limitations the ALJ accepted. In addition, as discussed above, the ALJ’s discussion of the
record sets out the evidence that conflicts with Ms. Jeffery’s opinions, including the State
Agency psychological consultants’ opinions, the mental health treatment records, and Ms.
Jeffery’s own treatment records. Overall, the ALJ provided a sufficient basis, susceptible to
judicial review, for her finding that the record did not support the severely restrictive
limitations opined by Ms. Jeffery.
Plaintiff also notes in particular that Ms. Jeffery opined that Plaintiff would be off task
— that is, that her symptoms would interfere with her attention and concentration as to even
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simple work tasks — for 10% of a typical work day. (Tr. at 1060.) However, the ALJ did not
find Ms. Jeffery’s opinion persuasive and did not adopt this limitation. With respect to this
aspect of Ms. Jeffery’s opinion, the AL] further noted that “even if [Plaintiff] were to be off
task mentally 10% in an eight-hour workday, she would still be able to work as the vocational
expert testified that the most time off-task that would preclude all work is greater than 15%
off-task in an eight-hour workday.” (Tr. at 22, 56.) On this point, Plaintiff contends that
“while the VE says that 15 percent off task is ‘excessive,’ the VE does not say that everything
below 15 percent is not excessive.” (PI. Br. at 18.) However, the Vocational Expert specifically
responded regarding a hypothetical individual as follows:
Q. ... Hypothetical two, if an individual is off task mentally for 20 percent
of an eight-hour workday, any jobs?
A. No, Judge. According to the studies by the U.S. Department of Labor,
and my 25 to 35 years of working with my career and doing job analysis, 15
percent is the maximum tolerated off task. And that is excessive. ‘That
individual, most especially in unskilled work, would not be able to maintain a
job.
(Ir. at 56.) This testimony confirms that being off task 20% of the time would be excessive
and that such an individual would not be able to maintain an unskilled job, and that the
maximum tolerated off task is 15%, at least according to the VE testifying in this case. This
is consistent with the ALJ’s determination that even if she accepted Ms. Jeffery’s opinion
(which she did not), being off task 10% of the day would still be below the maximum tolerated
according to the VE, and would not be disabling. Nothing about this observation requites
remand hete.
In sum, the AL] sufficiently explained her decision and substantial evidence supports
the AL]’s determination. Plaintiff essentially asks the Court to reconsider and re-weigh the
24.
evidence ptesented. However, it is not the function of this Court to re-weigh the evidence or
reconsider the ALJ's determinations if they are supported by substantial evidence. As noted
above, “[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant
is disabled, the responsibility for that decision falls on the [ALJ]” Hancock, 667 F.3d at 472
(quotation omitted). Thus, the issue before the Court is not whether a different fact-finder
could have drawn a different conclusion, ot even “whether [Plaintiff] is disabled,” but tather,
“whether the ALJ's finding that [Plaintiff] is not disabled is supported by substantial evidence
and was teached based upon a correct application of the relevant law.” Craig, 76 F.3d at 589.
Here, the AL] reviewed the evidence, explained her decision, explained the reasons for her
determination, and that determination is supported by substantial evidence 1n the record.
Plaintiff has not identified any errors that require remand, and Plaintiffs Motion for Judgment
on the Pleadings should therefore be denied.
IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding
no disability be AFFIRMED, that Plaintiffs Motion for Judgment on the Pleadings [Doc.
#13] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #15] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 12 day of August, 2021.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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