The opinion
Statesville DIVISION
DOCKET NO. 5:19-cv-00142-FDW
Cindy Culbertson Strauch, )
)
Plaintiff, )
)
vs. ) ORDER
)
Andrew M. Saul, )
)
Defendant. )
THIS MATTER is before the Court on Plaintiff’s Motion for Summary Judgment, (Doc.
No. 14), and Defendant’s Motion for Summary Judgment. (Doc. No. 20). Plaintiff, through
counsel, seeks judicial review of an unfavorable administrative decision on her application for
Supplemental Security Income under 42 U.S.C. § 405(g).1 Plaintiff alleges the Administrative Law
Judge (“ALJ”) erred in making the RFC determination because (1) he failed to account for
Plaintiff’s mental limitations, and (2) the RFC determination is not supported by substantial
evidence. (Doc. No. 14, pp. 6, 16). After careful review, and for the reasons that follow, the Court
finds the ALJ did not commit reversible error. Accordingly, Plaintiff’s Motion (Doc. No. 14) is
DENIED, Defendant’s Motion (Doc. No. 20) is GRANTED, and the Commissioner’s decision is
AFFIRMED.
I. BACKGROUND
Plaintiff filed an application for Title XVI disability benefits on December 31, 2015,
alleging disability beginning March 2, 2015. (Doc. No. 12, p. 176). The claim was initially denied
on March 28, 2016 and denied again upon reconsideration on July 5, 2016 Id. at pp. 113, 122. A
1 “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for
a rehearing.” 42 U.S.C. § 405(g).
hearing before an ALJ was held on May 23, 2018 in Charlotte, North Carolina. Id. at p. 136. The
ALJ returned an unfavorable decision to Plaintiff on September 25, 2018. Id. at p. 29.
The ALJ made his decision after following the five-step evaluation process for disability
claims under the Social Security Act (“The Act”). Id. at pp. 32-34; see also 20 C.F.R.
§ 416.920(a)(4). At the first step, the ALJ determined Plaintiff has not engaged in “substantial
gainful activity” since the date of her initial application for benefits in December of 2015. (Doc.
No. 12, p. 34). At step two, the ALJ determined which of Plaintiff’s impairments are “severe.” Id.;
20 C.F.R. §§ 404.1520(c). The ALJ found Plaintiff’s severe impairments are: gunshot wound to
the left foot; left talonavicular fusion with allograft; lumbar spondylosis; obesity; mild chronic
obstructive pulmonary disease; nicotine dependence; hepatitis C; cirrhosis; alcohol use disorder;
and depressive disorder. (Doc. No. 12, p. 34). At step three, the ALJ determined that the severe
impairments did not meet or medically equate the severity of impairments found in 20 C.F.R. Part
404, Subpart P, Appendix 1 (“Listings”). (Doc. No. 12, p. 34). After considering the record and
Plaintiff’s severe impairments, at step four the ALJ determined Plaintiff had the residual functional
capacity (“RFC”) to perform light work, “except that she is limited to occasionally climbing ramps
and stairs; never climbing ladders, ropes or scaffolds; performance of simple, routine tasks; and
avoidance of concentrated exposure to fumes, odors, dusts, gases, and poor ventilation.” Id. at p.
37. The ALJ also determined Plaintiff has no past relevant work. Id. at p. 42. Finally, at step five,
the ALJ considered Plaintiff’s age, education, work experience, RFC, and the testimony of the
Vocational Expert (“VE”) to determine Plaintiff can adjust to other jobs in the national economy,
including mail clerk non-postal, marker, and housekeeper. Id. at p. 43. The ALJ accordingly denied
Plaintiff’s application. Id. at pp. 43-44. Plaintiff timely requested review by the Appeals Council,
which was denied on August 30, 2019. Id. at p. 6.
II. STANDARD OF REVIEW
Section 405(g) of Title 42 of the United States Code provides judicial review of the Social
Security Commissioner’s denial of social security benefits: “[t]he court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). When examining a disability determination, a reviewing court is
required to uphold the determination when an ALJ has applied correct legal standards and the
ALJ’s factual findings are supported by substantial evidence. Id.; Westmoreland Coal Co., Inc. v.
Cochran, 718 F.3d 319, 322 (4th Cir. 2013); Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337,
340 (4th Cir. 2012). A reviewing court may not re-weigh conflicting evidence or make credibility
determinations because “it is not within the province of a reviewing court to determine the weight
of the evidence, nor is it the court’s function to substitute its judgment for that of the Secretary if
his decision is supported by substantial evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)
(alteration and quotations omitted). “It consists of more than a mere scintilla of evidence but may
be less than a preponderance.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (internal
quotation marks omitted). Courts do not reweigh evidence or make credibility determinations in
evaluating whether a decision is supported by substantial evidence; “[w]here conflicting evidence
allows reasonable minds to differ,” courts defer to the ALJ’s decision. Johnson, 434 F.3d at 653.
“In order to establish entitlement to benefits, a claimant must provide evidence of a
medically determinable impairment that precludes returning to past relevant work and adjustment
to other work.” Flesher v. Berryhill, 697 F. App’x 212, 212 (4th Cir. 2017) (per curiam) (citing
20 C.F.R. §§ 404.1508, 404.1520(g)). In evaluating a disability claim, the Commissioner uses a
five-step process. 20 C.F.R. § 404.1520(a)(4). Pursuant to this five-step 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 severity of
a listed impairment; (4) could return to his past relevant work; and (5) if not, could perform any
other work in the national economy. Id.; see also Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir.
2017) (citing Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The claimant bears the burden of proof at steps one through four, but the burden
shifts to the Commissioner at step five. See Lewis, 858 F.3d at 861; Monroe v. Colvin, 826 F.3d
176, 179–80 (4th Cir. 2016).
The Fourth Circuit has held:
If the claimant fails to demonstrate she has a disability that meets or medically
equals a listed impairment at step three, the ALJ must assess the claimant’s residual
functional capacity (“RFC”) before proceeding to step four, which is “the most [the
claimant] can still do despite [her physical and mental] limitations [that affect h[er]
ability to work].”
Lewis, 858 F.3d at 861-62 (quoting 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1)) (alterations in
original).
In Lewis, the Fourth Circuit explained the considerations applied before moving to step
four:
[The RFC] determination requires the ALJ to “first identify the individual’s
functional limitations or restrictions and assess his or her work-related abilities on
a function-by-function basis, including the functions listed in the regulations.”
Mascio, 780 F.3d at 636 (internal quotations omitted); see also SSR 96-8p, 1996
WL 374184, at *1 (July 2, 1996). Once the function-by-function analysis is
complete, an ALJ may define the claimant’s RFC “in terms of the exertional levels
of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p, 1996 WL
374184, at *1. See generally 20 C.F.R. §§ 404.1567, 416.967 (defining “sedentary,
light, medium, heavy, and very heavy” exertional requirements of work).
When assessing the claimant’s RFC, the ALJ must examine “all of [the claimant’s]
medically determinable impairments of which [the ALJ is] aware,” 20 C.F.R.
§§ 404.1525(a)(2), 416.925(a)(2), “including those not labeled severe at step two.”
Mascio, 780 F.3d at 635. In addition, he must “consider all [the claimant’s]
symptoms, including pain, and the extent to which [her] symptoms can reasonably
be accepted as consistent with the objective medical evidence and other evidence.”
20 C.F.R. §§ 404.1529(a), 416.929(a). “When the medical signs or laboratory
findings show that [the claimant has] a medically determinable impairment(s) that
could reasonably be expected to produce [her] symptoms, such as pain, [the ALJ]
must then evaluate the intensity and persistence of [the claimant’s] symptoms so
that [the ALJ] can determine how [her] symptoms limit [her] capacity for work.”
20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).
Lewis, 858 F.3d at 862.
Proceeding to step four, the burden remains with the claimant to show he or she is unable
to perform past work. Mascio, 780 F.3d at 635. If the claimant meets their burden as to past work,
the ALJ proceeds to step five.
“At step five, the burden shifts to the Commissioner to prove, by a preponderance
of the evidence, that the claimant can perform other work that ‘exists in significant
numbers in the national economy,’ considering the claimant’s residual functional
capacity, age, education, and work experience.” [Mascio, 780 F.3d at 635]
(quoting 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c)(2), 416.1429). “The
Commissioner typically offers this evidence through the testimony of a vocational
expert responding to a hypothetical that incorporates the claimant’s limitations.”
Id.
Lewis, 858 F.3d at 862.
If the Commissioner meets this burden in step five, the claimant is deemed not disabled,
and the benefits application is denied. Id.
III. ANALYSIS
At step four, the ALJ found that Plaintiff has the RFC to “perform light work, “except that
she is limited to occasionally climbing ramps and stairs; never climbing ladders, ropes or scaffolds;
performance of simple, routine tasks; and avoidance of concentrated exposure to fumes, odors,
dusts, gases, and poor ventilation.” (Doc. No. 12, p. 34). Plaintiff alleges the ALJ erred in two
respects when making this determination: (1) the ALJ failed to properly account for Plaintiff’s
mental limitations in the RFC, and (2) the RFC determination is not supported by substantial
evidence. (Doc. No. 14, p. 6). The Court addresses each argument in turn.
A. Mental Limitations
Plaintiff’s first assignment of error with respect to the RFC is twofold: first, the ALJ failed
to account for Plaintiff’s limitations in concentration, persistence and pace as required by Mascio
v. Colvin, 780 F.3d 632 (4th Cir. 2015); and second, the ALJ failed to account for Plaintiff’s other
mental limitations in “Paragraph B” of Listings 12.04 and 12.06. (Doc. No. 14, pp. 7, 11). With
respect to concentration, persistence, and pace, Plaintiff argues the ALJ “does not specifically
discuss in the decision how the RFC accounted for [Plaintiff’s] moderate limitations in
concentration, persistence, or pace or her ability to stay on task throughout the workday.” (Doc.
No. 14, p. 8). In response, Defendant argues the ALJ sufficiently explained why Plaintiff’s
limitations in concentration, persistence, and pace in accordance with Shinaberry v. Saul, 952 F.3d
113 (4th Cir. 2020).
In Mascio, the Fourth Circuit held that a hypothetical tendered to a VE was legally
insufficient where the ALJ failed to explain why the plaintiff’s moderate mental limitation in
concentration, persistence, and pace did not translate into the RFC. 780 F.3d at 638. The court
reasoned that an ALJ cannot sufficiently account for a claimant’s limitation in concentration,
persistence, and pace by simply limiting the hypothetical to simple or unskilled work. Id. at 638
(citing Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011)). In other words,
“Mascio held that the ability to perform simple work is not the same as having the ability to stay
on task during a workday, which is the limitation that would account for a claimant’s impairment
in concentration, persistence or pace.” Minor v. Berryhill, No. 9:17-1087-TMC-BM, 2018 WL
1305181, at *5 (D.S.C. Feb. 20, 2018) (emphasis in original). On the other hand, where an ALJ
finds that the concentration, persistence, and pace limitation does not affect the claimant’s ability
to work, then exclusion of the limitation from the hypothetical tendered is appropriate. Mascio,
780 F.3d at 638; see also Winschel, 631 F.3d at 1180 (“But when medical evidence demonstrates
that a claimant can engage in simple, routine, tasks or unskilled work despite limitations in
concentration, persistence, and pace, courts have concluded that limiting the hypothetical to
include only unskilled work sufficiently accounts for such limitations.”). The Mascio court
remanded because the ALJ provided no explanation at all regarding whether the claimant’s
limitation affected her RFC. Mascio, 780 F.3d at 638.
More recently, the Fourth Circuit held that a limitation to “simple, routine, repetitive tasks”
sufficiently accounted for a moderate limitation in concentration, persistence, and pace and borderline
intellectual disability where the ALJ “issued a comprehensive decision denying [Plaintiff’s] claim.”
Shinaberry v. Saul, 952 F.3d 113, 119 (4th Cir. 2020). The plaintiff argued that a limitation only to simple,
routine, repetitive tasks violated Mascio, but the court disagreed. Id. at 121. The court reiterated that
Mascio did not enact a per se rule, but instead allowed the ALJ to explain why a restriction greater than
simple, routine, repetitive tasks was not warranted. Id. After discussing the plaintiff’s mental limitations,
which consisted primarily of explaining the rationale for giving great weight to the State Agency
psychological experts’ and consultative psychologist’s opinions, the ALJ stated that the “simple, routine,
repetitive tasks” restriction “accounted” for Plaintiff’s limitations. Id. at 121-22. “In sum … the ALJ …
addressed [Plaintiff’s mental limitations] and explained why the psychological evidence and [Plaintiff’s]
statements support [only] a mental limitation to [simple, routine, repetitive tasks].” Id. at 122. Accordingly,
the court affirmed the ALJ’s hearing decision. Id. at 124.
Here, unlike in Mascio, the ALJ accounted for Plaintiff’s ability to stay on task in his hypothetical
posed to the VE, and comprehensively explained why the RFC was limited to “simple, routine tasks” in
his written decision. For instance, the ALJ specifically asked the VE whether work would be available to
an individual who could only “receive simple, routine tasks” and would also “require three to five
unplanned rest periods to leave the work area.” (Doc. No. 12, p. 74). In his written decision, the ALJ
acknowledged that Plaintiff suffered from “anxiety, depression, and alcohol use disorder” and was limited
to performing “simple, repetitive tasks.” Id. at pp. 39, 41. He also acknowledged Plaintiff’s diagnosis of
borderline intellectual functioning but noted the record did not provide any intelligent quotient scores. Id.
at p. 40. The ALJ furhter referenced the observations of non-examining State agency psychological
consultants and explained:
[Plaintiff] would have some difficulty maintaining attention and concentration to
complete simple tasks and interacting with co-workers, supervisors and the public. In
addition, she would have difficulty adapting to changes and stressors in a work setting.
Based on the findings of a mental status examination, which showed that the claimant
could repeat four digits forward but not five or six and recall three of three objects after
five minutes, the undersigned finds that the claimant is limited to the performance of
simple, routine tasks. However, the undersigned finds that the further limitations of low
stress work setting and limited social contact are inconsistent with the claimant working
three years as a certified nursing assistant, as well as, working as a housekeeper in nursing
homes. Treatment notes also indicated that she enjoyed interacting with others at
Alcoholic Anonymous meetings.
Id. at p. 41. The ALJ also explained his decision to give little weight to the examining psychologist’s
conclusion that Plaintiff “would miss work or have a difficult time working a full-time job” because the
examining psychologists conclusion was “based on a one-time examination and prone to the inherent
limitations of the claimant’s subjective reports of past work experiences.” Id. Additionally, the examining
psychologist’s findings “did not support that the claimant was not stable, as the claimant was alert and
oriented, drove herself to the hearing, and executed a three-step command.” Id.
The ALJ also extensively discussed his evaluation of the “Paragraph B” criteria regarding mental
limitations. He found Plaintiff has a mild limitation “in understanding, remembering, or applying
information” and cited specific medical evidence to support this finding. Id. at p. 36. The ALJ likewise
found a mild limitation with respect to Plaintiff’s ability to “interact with others.” Id. The ALJ also
explicitly discussed Plaintiff’s ability to concentrate, persist, and maintain pace, finding Plaintiff had a
moderate limitation based on opinions by psychological consultants. Id.
The ALJ discussed Plaintiff’s mental limitations and sufficiently explained why the record
supported only a limitation of “simple, routine tasks.” Accordingly, the ALJ did not fail to account for
Plaintiff’s limitations regarding concentration, persistence, or pace, and Plaintiff’s assignment of error as
to this point is overruled.
B. RFC and Substantial Evidence
Plaintiff also contends the ALJ’s RFC determination is not supported by substantial evidence
because he does not properly build a “logical bridge” between the objective medical evidence and
the RFC conclusion. (Doc. No. 14, p. 16). Specifically, Plaintiff argues the ALJ committed harmful
error because the ALJ did not properly consider Dr. Trivedi’s—Plaintiff’s treating
gastroenterologist—evaluation. Id. In response, Defendant contends that any failure of the ALJ’s
part is harmless error as the ALJ’s RFC finding is more limiting than Dr. Trivedi’s opinion. (Doc.
No. 20, p. 8).
The Social Security regulations make clear that the Commissioner “will evaluate every
medical opinion [he] receive[s].” 20 C.F.R. § 404.1527(c). Courts have consistently held it to be
error when the ALJ fails to evaluate an opinion in the record. E.g., Jolley v. Colvin, No. 1:14-CV-
00230-GCM, 2016 WL 633412, at *4 (W.D.N.C. Feb. 17, 2016); Allen v. Colvin, No. 1:13-CV-
00177-MOC, 2014 WL 496474, at *3 (W.D.N.C. Feb. 6, 2014) (“Generally, failure by the
Commissioner to consider an entire line of evidence falls well below the minimal level of
articulation required by the Social Security Act.”). This duty is balanced, however, by the practical
reality that it is not possible or feasible for an ALJ to “discuss every piece of evidence.” Vance v.
Colvin, No. 1:13-CV-186-RJC, 2014 WL 838906, at *3 (W.D.N.C. Mar. 4, 2014); see also Allen,
2014 WL 496474, at *3. Accordingly, such error is harmless where the evidence would not have
caused the ALJ to reach a different outcome. See Brown v. Colvin, No. 1:13-CV-96-GCM, 2014
WL 4666978, at *7 (W.D.N.C. Sept. 18, 2014) (noting it was error for the ALJ to fail to mention
medical opinions, but holding the error to be harmless because the opinions “ultimately concluded
that Plaintiff was not disabled”), vacated and remanded on other grounds, Brown v. Colvin, 639
F. App’x 921 (4th Cir. 2016) (per curiam); Jones v. Colvin, No. 1:13-CV-212-RLV-DCK, 2014
WL 4265926, at *8 (W.D.N.C. June 6, 2014) (magistrate judge memorandum and
recommendation) (addressing a medical source’s records, even if not citing to the source’s
“opinion,” is sufficient), adopted by Jones v. Colvin, No. 1:13CV212-RLV, 2014 WL 4266306
(W.D.N.C. Aug. 27, 2014); Vance, 2014 WL 838906, at *3 (upholding the ALJ’s review of the
plaintiff’s doctor’s visit without explicitly discussing the doctor’s statements).
Here, the ALJ discusses Dr. Trivedi’s evaluation, but does not address every portion of the
evaluation. As an initial matter, the ALJ assigned only “some weight” to Dr. Trivedi’s opinion.
(Doc. No. 12, p. 42). The ALJ explained:
Based on the claimant’s cirrhosis of the liver and hepatitis C, Dr. Trivedi
opined that the claimant could perform a job seated, standing, or walking for more
than six hours. The claimant could frequently lift over fifty pounds and would be
absent from work less than once a month. Because Dr. Trivedi’s opinion does not
consider the claimant’s talonavicular fusion of her left foot or lumbar spondylosis,
some weight is given to her opinion.
Id. In his discussion of Dr. Trivedi’s opinion, the ALJ does not acknowledge that, in Dr. Trivedi’s
opinion, Plaintiff would have frequent work interferences due to pain, fatigue and other symptoms
associated with Plaintiff's cirrhosis and hepatitis C. (Doc. No. 12, p. 822). The ALJ likewise fails
to acknowledge Dr. Trivedi’s opinion that Plaintiff would need to use the restroom three to four
times per day, for an average of 30 minutes to one hour. Id. at p. 823. However, the ALJ does
acknowledge other portions of Dr. Trivedi’s opinion, including that Plaintiff would be likely to
miss work less than once a month. Id. It is not feasible to require the ALJ to consider every piece
of objective evidence, and in this case, the ALJ had other evidence to rely on concerning Plaintiffs
ability to stay on task during the workday. Indeed, the ALJ ultimately limited Plaintiff to an RFC
of “light work” based on all objective medical evidence despite Dr. Trivedi’s opinion that Plaintiff
could “frequently” lift or carry over 50 pounds during the workday. Id. at p. 822. Thus, the portions
of Dr. Trivedi’s opinion that the ALJ failed to discuss would not have caused the ALJ to reach a
different outcome. Accordingly, any error committed by the ALJ in failing to discuss every portion
of Dr. Trivedi’s opinion is harmless error.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Summary Judgment (Doc. No. 14) is
DENIED, Defendant’s Motion for Summary Judgment (Doc. No. 20) is GRANTED, and the
Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Signed: October 29, 2020
Frank D. Whitney
United States District Judge * ey
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