Mode v. Saul

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

5:20-cv-00063-MOC

)

KELSIE LYNN MODE, )

)

)

Plaintiff, )

) ORDER

v. )

)

ANDREW M. SAUL, )

Commissioner of Social Security )

)

Defendant. )

)

THIS MATTER is before the Court on review of a final decision of the Commissioner

of Social Security denying Plaintiff Kelsie Lynn Mode’s application for disability and disability

insurance benefits under Title II, of the Social Security Act (“Act”). Plaintiff filed a Motion for

Summary Judgment, requesting remand for rehearing. (Doc. No. 19). The Commissioner in turn

filed a Motion for Summary Judgment, requesting affirmance. (Doc. No. 22). As set forth below,

Plaintiff’s motion is denied, the Commissioner’s motion is granted, and this action is dismissed.

I. BACKGROUND

A. Administrative History

Plaintiff brought this action under section 205(g) of the Social Security Act (the “Act”),

42 U.S.C. § 405(g), to obtain judicial review of the Commissioner’s final decision denying her

claim for a period of disability under Title II of the Act, 42 U.S.C. §§ 401-433.

Plaintiff, who in June 2007 had been awarded Supplemental Security Income Benefits,

turned 18 years old, thus triggering a redetermination under the rules of disability used for adults

per Section 1614(a)(3)(H) of the Act. (Doc. No. 18-1 at 306). On May 1, 2017, Plaintiff’s

disability was terminated. (Doc. No. 18-1 at 112-17). Plaintiff requested reconsideration of her

disability termination on June 1, 2017. (Doc. No. 18-1 at 118, 122). On December 11, 2017, a

Disability Hearing Officer found that Plaintiff was not disabled. (Doc. No. 18-1 at 130-47).

Plaintiff filed a written request for a hearing on March 3, 2018. (Doc. No. 18-1 at 150). Plaintiff

appeared before an Administrative Law Judge (ALJ) on May 23, 2019. (Doc. No. 18-1 at 16,

35). The ALJ, considering the claim de novo, found on June 21, 2019 that Plaintiff was not

disabled. (Doc. No. 18-1 at 13-33). Plaintiff requested review of the ALJ’s decision by the

Appeals Council on July 9, 2019. (Doc. No. 18-1 at 197-200). The Appeals Council denied

Plaintiff’s request for review. (Doc. No. 18-1 at 1-7).

B. Sequential Evaluation

The Act defines “disability” as an inability “to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period of not less

than 12 months.” 42 U.S.C. § 423(d)(2). To qualify for disability benefits under Title II of the

Act, 42 U.S.C. §§ 416(i) and 423, an individual must meet the insured status requirements of

these sections, be under retirement age, file an application for disability insurance benefits and a

period of disability, and be under a "disability" as defined in the Act.

A five-step process, known as “sequential” review, is used by the Commissioner in

determining whether a Social Security claimant is disabled. The Commissioner evaluates a

disability claim pursuant to the following five-step analysis:

a. An individual who is working and engaging in substantial gainful activity will not be

found to be “disabled” regardless of medical findings;

b. An individual who does not have a “severe impairment” will not be found to be

disabled;

c. If an individual is not working and is suffering from a severe impairment that meets

the durational requirement and that “meets or equals a listed impairment in Appendix

1” of Subpart P of Regulations No. 4, a finding of “disabled” will be made without

consideration of vocational factors;

d. If, upon determining residual functional capacity, the Commissioner finds that an

individual is capable of performing work he or she has done in the past, a finding of

“not disabled” must be made;

e. If an individual's residual functional capacity precludes the performance of past work,

other factors including age, education, and past work experience, must be considered

to determine if other work can be performed.

20 C.F.R. § 416.920(a)-(f). The burden of proof and production during the first four steps of the

inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth

step, the burden shifts to the Commissioner to show that other work exists in the national

economy that the claimant can perform. Id.

C. The Administrative Decision

The issue before the ALJ was whether Plaintiff was disabled under Section 1614(a)(3)(A)

of the Social Security Act. In rendering his decision, the ALJ applied the five-step sequential

evaluation process set forth in the regulations for evaluating disability claims. See 20 C.F.R. §

404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Step one was not considered as this

was a redetermination for disability at age 18. See 20 C.F.R. § 416.920(a). At step two, the ALJ

found that Plaintiff had the following severe impairments: borderline intellectual function and

attention-deficit hyperactivity disorder (ADHD). (Doc. No. 18-1 at 18). At step three, the ALJ

found that Plaintiff did not have an impairment or combination of impairments that met or

medically equaled a listed impairment. (Doc. No. 18-1 at 18-20). The ALJ found Plaintiff has the

residual functional capacity to perform a full range of work at all exertional levels with certain

nonexertional limitations: Plaintiff can perform simple, routine, repetitive tasks for two-hour

intervals for the duration of the workday with no concentrated exposure to hazards or

unprotected heights and occasional public interaction. (Doc. No. 18-1 at 25). Further, Plaintiff

can work at a non-production pace in a stable work environment. (Id.).

Step four was resolved for Plaintiff as she has no past relevant work history. Id. But at

Step five, based on Plaintiff’s residual functional capacity, the ALJ concluded there were jobs

that exist in significant numbers in the national economy that she could perform. (Doc. No. 18-1

at 25). Because such work existed, the ALJ held that Plaintiff was not disabled under the Act.

(Doc. No. 18-1 at 26-27).

II. DISCUSSION

In considering cross-motions for summary judgment, this Court “examines each motion

separately, employing the familiar standard” provided by Federal Rule of Civil Procedure 56.

Desmond v. PNGI Charles Town Gaming, 630 F.3d 351, 354 (4th Cir. 2011). Thus, each motion

is reviewed “on its own merits ‘to determine whether either of the parties deserve judgment as a

matter of law.’” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (citation omitted).

When reviewing a disability determination, the 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.” Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th

Cir. 2012). Courts do not conduct de novo review of the evidence. See Smith v. Schweiker, 795

F.2d 343, 345 (4th Cir. 1986). Instead, our inquiry is limited to whether there is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Hancock v.

Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)). It “consists of more than a mere scintilla evidence but may be less than a

preponderance.” Id. The Court will not “reweigh conflicting evidence, make credibility

determinations, or substitute [its] judgment for that of the ALJ.” Id. (alterations omitted). Put

simply, “[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.” Id. (alterations omitted).

“A necessary predicate to engaging in substantial evidence review is a record of the basis

for the ALJ’s ruling.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Thus, “[t]he record

should include a discussion of which evidence the ALJ found credible and why, and specific

application of the pertinent legal requirements to the record evidence.” Id. If the Court has “no

way of evaluating the basis for the ALJ’s decision, ‘the proper course, except in rare

circumstances, is to remand to the agency for additional investigation or explanation.’” Id.

(quoting Florida Power & Light v. Lorion, 470 U.S. 729, 744 (1985)); see Brown v. Colvin, 639

F. App’x 921, 922 (4th Cir. 2016) (explaining courts do not “min[e] facts from the

[administrative] record to support the ALJ’s decisions”). This ensures the ALJ can “adequately

explain his reasoning . . . in the first instance.” Radford, 734 F.3d at 296.

Plaintiff advances claims regarding the practical effects of Plaintiff’s mental impairments

in the RFC ruling. First, Plaintiff claims that the ALJ’s residual functional capacity finding did

not include all limitations stemming from her borderline intellectual functioning and ADHD.

Next, Plaintiff asserts that because the ALJ’s residual functional capacity finding did not include

all limitations allegedly arising from Plaintiff’s borderline intellectual functioning and ADHD

claims, the ALJ’s RFC finding and denial of benefits is not supported by substantial evidence.

a. The ALJ’s Consideration of Expert Opinion

Plaintiff argues that the ALJ failed to fully consider the expert opinion of the State

Agency consultative evaluator, Rebecca Taylor, and improperly omitted limitations from the

RFC finding. (Doc. No. 20 at 5). Plaintiff extrapolates three additional practical limitations of her

alleged disability from Taylor’s report: (1) Plaintiff’s distractibility and resultant need to be

refocused by someone else; (2) Plaintiff’s inability to sustain attention for more than 90 minutes;

(3) and Plaintiff’s limitation to only one-step instructions and need for additional

accommodations, improperly omitted limitations from the RFC finding. (Id.). Plaintiff alleges

that failing to recognize the three aformentioned practical limitations in the RFC frustrates

judicial review, so remand is appropriate. The Court disagrees and finds that the ALJ properly

evaluated Taylor’s opinion as well as that of other opinions referenced in the ALJ decision. An

ALJ’s determination “as to the weight to be assigned to a medical opinion generally will not be

disturbed absent some indication that the ALJ has dredged up ‘specious inconsistencies,’. . . or

has failed to give a sufficient reason for the weight afforded a particular opinion.” Dunn v.

Colvin, 607 Fed. App’x 264, 267 (4th Cir. 2015) (internal citations omitted).

Plaintiff recounts in detail the numerous evaluations Plaintiff has undergone, arguing that

there are additional practical limitations the ALJ did not consider implicit in the opinions of the

host of evaluators. (Doc. No. 20 at 5-13). But while Plaintiff may disagree with how the ALJ

characterized these experts’ opinions, there can be no doubt that the ALJ considered the

evidence. First, the ALJ considered Talyor’s psychological evaluation and relied on Taylor’s

findings throughout his review of Plaintiff’s case. (Doc. No. 18-1 at 19-22) (citing Doc. No. 18-1

at 551-55). The ALJ noted from Taylor’s report that Plaintiff had some trouble understanding

questions during her examination, but that she was observed forming appropriate mental

responses to things with which she was unfamiliar. (Doc. No. 18-1 at 24) (citing Doc. No. 18-1

at 551-56). The ALJ also noted from a combination of Taylor’s, Johnny Kirby’s, and Lincoln

County School’s reports that Plaintiff was able to follow instructions, remember where things

belonged, and perform tasks like changing money. (Id.) (citing Doc. No. 18-1 at 551-56, 557-66,

570-76).

Plaintiff argues that as early as 2014, she had “test results indicat[ing] that her thought

processes do not always reach completion. In other words, she may be working on a task or

planning to do something and will not complete the activity because she gets distracted.” (Doc.

No. 20) (citing Doc. No. 18-1 at 564). The ALJ, when considering Plaintiff’s distractability,

discussed and weighed the opinions of both Dr. William Elmore and Taylor. (Doc. No. 18-1 at

19-24). Specifically, the ALJ took into account Dr. Elmore’s opinion that “[h]er attention

occationally drifted but she was easily refocused,” and that Taylor concluded she was “easily

redirected.” (Doc. No. 18-1 at 29) (citing Doc. No. 18-1 at 551-56, 562).

Plaintiff relies on her High School Exit-Summary as evidence supporting the claim that

the ALJ did not consider expert opinion about Plaintiff’s ability to maintain her attention. (Doc.

No. 20 at 5). Citing the Exit-Summary, Plaintiff concludes that she completed assignments 95%

of the time and could maintain sustained attention for 90 minutes. (Doc. No. 20 at 9) (citing Doc.

No. 18-1 at 558). Plaintiff improperly asserts that the ALJ did not consider this evidence. (Id.).

The ALJ considered the High School Exit-Summary nearly one dozen times in the findings of

fact and conclusion of law (Doc. No. 18-1 at 19-25). Further, the ALJ weighed the Exit-

Summary in conjuction with Taylor’s evaluation and the Initial Disability Determination

completed by the state agency psychological consultants Dr. April L. Strobel-Nuss and Dr.

Sharon J. Skoll. (Doc. No. 18-1 at 24-25) (citing Doc. No. 18-1 at 99-110, 421-440). The ALJ

properly weighed numerous sources of evidence to conclude that Plaintiff is indeed capable of

working jobs requiring attention in excess of 90 minutes. (Doc. No. 18-1 at 26).

Plaintiff also alleges that the ALJ failed to consider expert opinion that Plaintiff was only

capable of completing one-step tasks. (Doc. No. 20 at 5). However, the ALJ considered this

alleged practical limitation and specifically considered her ability to complete tasks. In doing so,

the ALJ referred to the opinion of Shameka Gordon, the vocational coaching specialist at

Goodwill. (Doc. No. 18-1 at 23-25) (citing Doc. No. 18-1 at 618-26). Drawing from Gordon’s

treatment records, the ALJ found that while at times she needed some redirection, Plaintiff could

generally multi-task and was observed excelling in stocking, pulling orders, food preparation

cleaning, and retail and book scanning. (Doc. No. 18-1 at 23). From the function report

completed by Plaintiff’s mother, the ALJ considered that Plaintiff had a hard time following

instructions and was forgetful. (Doc. No. 18-1 at 24) (citing Doc. No. 18-1 at 288-98). But, the

ALJ afforded Plaintiff’s mother’s opinion little weight, as he found she overstated the degree of

limitation compared to other expert opinions. (Id.).

To thoroughly consider multiple perspectives relating to Plaintiff’s ability to complete

tasks, the ALJ synchronized the reports of additional experts. When weighing Leah Sigmon’s

Teacher Questionnaire, he compared her findings with Taylor’s Consultative Examination

Report. (Doc. No. 18-1 at 24) (citing Doc. No. 18-1 at 315-26). From Sigmon’s assessment, the

ALJ found that Plaintiff could perform repetitive tasks based on objective testing. (Id.). Sigmon

had the additional benefit of observing Plaintiff for five hours a day over the course of three

years leading up to Plaintiff’s eighteenth birthday. (Id.). The ALJ noted that Sigmon’s report

supported some greater limitation based on Plaintiff’s cognitive testing. (Id.). The ALJ also

weighed Taylor’s Consultative Examination Report (Doc. No. 18-1 at 24) (citing Doc. No. 18-1

at 551-56) against the Lincoln County Psychological Evaluation (Doc. No. 18-1 at 24) (citing

Doc. No. 18-1 at 557-66), and Kirby’s Consultative Examination Report (Doc. No. 18-1 at 24)

(citing Doc. No. 18-1 at 570-76), finding that their conclusions were consitent with Sigmon’s

assessment that Plaintiff has the adequate ability to perform tasks and follow instructions.

b. RFC Determination

Having identified additional practical effects of her functional limitations, Plaintiff argues

that the RFC determination is deficient. (Doc. No. 20 at 13– 21). This argument fails because the

ALJ provided the explanatory discussion necessary to support his findings and because

substantial evidence supports the ALJ’s conclusions.

Residual functional capacity is an administrative assessment of the most an individual

can do despite the limitations caused by physical and mental impairments. 20 C.F.R. §

404.1545(a); Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *1-2 (July 2, 1996).

Plaintiff bears the burden of providing evidence establishing the degree to which her

impairments limit her residual functional capacity. 20 C.F.R. § 404.1245(a)(3). The ALJ bears

sole responsibility for assessing a claimant’s residual functional capacity. 20 C.F.R. §

404.1546(c).

In making the residual functional capacity assessment, the ALJ must consider the

functional limitations resulting from the claimant’s medically determinable impairments. SSR

96-8p, 1996 WL 374184, at *2. The ALJ is not obliged, however, to precisely mirror any

particular piece of evidence, or to discuss every piece of evidence in the record. See Reid v.

Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (citing 42 U.S.C. § 405(b)(1) and

affirming an ALJ decision that contained a discussion of “the whole record,” instead of a

description of every piece of evidence in the record); Felton-Miller v. Astrue, 459 F. App’x 226,

230–31 (4th Cir. 2011) (explaining that an ALJ should base an individual’s residual functional

capacity on all available evidence); Griffin v. Comm’r, Soc. Sec. Admin., No. SAG-16-274,

2017 WL 432678, at *3 (D. Md. Jan. 31, 2017 (“ALJ need not parrot a single medical opinion, or

even assign ‘great weight’ to any opinions, in determining [residual functional capacity]”).

Rather, the ALJ must review and synthesize the record in its entirety and make findings about

what the evidence shows. See 20 C.F.R. § 404.1520b (“After we review all of the evidence

relevant to your claim we make findings about what the evidence shows.”). Moreover, a

reviewing court must read the ALJ’s decision as a whole, meaning the decision should be

affirmed even if the supporting discussion for a particular fact is found in a section of the

decision covering some other aspect of the sequential review process. Smith v. Astrue, 457 F.

App’x 326, 328 (4th Cir. Dec. 14, 2011) (affirming ALJ decision on Listings, in part, because the

rest of the ALJ’s decision made clear the reasoning for the conclusion regarding the Listings);

Keene v. Berryhill, 732 F. App’x 174, 177 (4th Cir. May 2, 2018) (reading an ALJ decision as a

whole and affirming based on the fact that the ALJ stated a coherent basis for conclusions).

Plaintiff claims that the ALJ failed to adequately account for Plaintiff’s multiple alleged

limitations in her RFC. The Court disagrees.

Plaintiff first argues that the ALJ did not consider Plaintiff’s distractibility and did not

include any limitation in the RFC to account for this limitation. (Doc. No. 20 at 13-16).

However, the ALJ’s determination included an accounting of Plaintiff’s reported distractibility.

(Doc. No. 18-1 at 19-20). This included evidence from the extended vocational assessment at

Goodwill which the ALJ compared against Plaintiff’s mother’s report and Plaintiff’s High

School Psychological Evaluation. Weighing all this together, the ALJ concluded that Plaintiff’s

attention deficits were not so severe as to negatively impact her test results. (Id.) (citing Doc. No.

18-1 at 618-26, 288-98, 557-66). Plaintiff completed all tasks during her vocational rehabilitation

assessment. (Doc. No. 18-1 at 618-26). Additionally, while Plaintiff struggled to prepare clothing

for display, she demonstrated the ability to wipe tables, clean windows, vacuum, and exchange

money. (Id.). To the extent the ALJ found functional limitations to be supported by the

aforementioned expert opinions, he included them in the residual functional capacity finding.

(Doc. No. 18-1 at 19-25).

Plaintiff continues her argument by asserting that the mere fact that the 2017 High School

Exit Evaluation concluded “[s]he completed assignments 95% of the time and could maintain

sustained attention for 90 minutes,” (Doc. No. 20 at 9) (citing Doc. No. 18-1 at 558) is sufficient

to conclude that Plaintiff is only able to sustain attention for 90 minutes. (Doc. No. 20 at 17).

Plaintiff further improperly concludes that the ALJ reference to the aforementioned Exit

Evaluation means that the ALJ only considered this evidence. (Id.). The ALJ also weighed the

expert opinion found in the Initial Disability Determination (Doc. No. 18-1 at 24-25) (citing Doc.

No. 18-1 at 99-110), and both the Mental RFC Assessment and Psychiatric Review. (Doc. No.

18-1 at 24-25) (citing Doc. No. 18-1 at 421-40).

Finally, Plaintiff disagrees with the ALJ’s finding that Plaintiff is capable of performing

reasoning level 2 jobs. (Doc. No. 20 at 19). Plaintiff contends that requiring her to “apply

commonsense understanding to carry out detailed but uninvolved written or oral instructions” is

at odds with Taylor’s finding that Plaintiff can perform “simple, routine, repetitive tasks.” (Doc.

No. 18-1 at 552). But the ALJ does not pick and choose evidence to consider—the ALJ reviews

and synthesizes all of the evidence. While the RFC is the most one can do despite functional

limitations, it is the ALJ’s preogative to weigh numerous sources of evidence and reach a

conclusion about Plaintiff’s actual ability.

The ALJ’s decision is supported by substantial evidence. While the ALJ did not discuss

every minute piece of evidence, his determination reflects a wholistic evaluation of the available

evidence. Anderson v. Colvin, No. 5:13-cv-55-RLV, 2015 WL 6394397, at *9 (W.D.N.C. Oct.

22, 2015) (reasoning “there is no rigid requirement that the ALJ specifically refer to every piece

of evidence in his decision.”) (quoting Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865 (4th Cir.

2014).

Hl. CONCLUSION

The Court has carefully reviewed the decision of the ALJ, the transcript of proceedings,

Plaintiff's motion and brief, the Commissioner's responsive pleading, and Plaintiff's assignments

of error. Review of the entire record reveals that the decision of the ALJ is supported by

substantial evidence. Finding that there was “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971),

the Court affirms the decision of the ALJ.

ORDER

IT IS, THEREFORE, ORDERED that:

(1) The decision of the Commissioner, denying the relief sought by Plaintiff, is

AFFIRMED;

(2) Plaintiff's Motion for Summary Judgment, (Doc. No. 19) is DENIED;

(3) The Commissioner’s Motion for Summary Judgment, (Doc. No. 22) is GRANTED; and

(4) This action is DISMISSED with prejudice.

Signed: June 23, 2021

i )

Korine.

Max O. Cogburn i yg

United States District Judge Tie ga

-12-