The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
EDWARD ANDREW PRATT, )
)
Plaintiff, )
) NO. 1:21-cv-00041
v. )
) JUDGE CAMPBELL
KILOLO KIJAKAZI, ) MAGISTRATE JUDGE FRENSLEY
Acting Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM AND ORDER
Plaintiff Edward Andrew Pratt brings this action under 42 U.S.C. § 405(g) and 1383(c)(3),
seeking judicial review of the Social Security Administration’s (“SSA”) denial of his application
for disability insurance benefits and supplemental security income. The Magistrate Judge issued a
Report and Recommendation (“R&R”) (Doc. No. 32), recommending Plaintiff’s Motion for
Judgment on the Administrative Record (Doc. No. 25) be denied. Plaintiff filed objections to the
Report and Recommendation (Doc. No. 33).
I. STANDARD OF REVIEW
The district court reviews de novo any portion of a report and recommendation to which a
specific objection is made. Fed. R. Civ. P. 72(b)(1)(C); Local Rule 72.02; 28 U.S.C. §
636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). General or conclusory
objections are insufficient. See Zimmerman v. Cason, 354 F. App’x 228, 230 (6th Cir. 2009).
Thus, “only those specific objections to the magistrate’s report made to the district court will be
preserved for appellate review.” Id. (quoting Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370,
1373 (6th Cir. 1987)). In conducting the review, the court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
In Social Security cases under Title II, the Commissioner determines whether a claimant
is disabled within the meaning of the Social Security Act and, as such, entitled to benefits. 42
U.S.C. § 405(h). The Court’s review of the decision (the “Decision”) of the Administrative Law
Judge (“ALJ”) is limited to a determination of whether the ALJ applied the correct legal standards
and whether the findings of the ALJ are supported by substantial evidence. Miller v. Comm’r of
Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d
399, 405 (6th Cir. 2009)); see 28 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”). The substantial
evidence standard is met if a “reasonable mind might accept the relevant evidence as adequate to
support a conclusion.” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (internal
citations omitted). “The substantial evidence standard … presupposes that there is a zone of choice
within which the decision makers can go either way, without interference by the courts.” Blakley,
581 F.3d at 406 (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). The Court defers
to a decision by the ALJ that is supported by substantial evidence “even if there is substantial
evidence on the record that would have supported an opposite conclusion.” Id. (quoting Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997). The Court’s review of the Decision is limited to the
record made during the hearing process. Jones v. Berryhill, 392 F. Supp. 3d 831, 843 (M.D. Tenn.
2019). The administrative record has been filed on the docket in this case at Docket Entry No. 21
(hereinafter cited as “AR [page number]”).
II. ANALYSIS
Plaintiff’s Motion for Judgment on the Administrative Record raised a single assertion of
error – that the ALJ’s residual functional capacity (“RFC”) determination is not supported by
substantial evidence because the ALJ failed to incorporate all of the mental limitations set forth by
Paul Brown, Ph.D., a psychological consultative examiner. (Doc. No. 25). Plaintiff complains that,
despite finding Dr. Brown’s opinion persuasive, the ALJ failed to incorporate Dr. Brown’s opinion
that Plaintiff had moderate to marked limitations in concentration, persistence, and pace, instead
finding that Plaintiff only had moderate limitations in these areas. Plaintiff then argues if the ALJ
found Dr. Brown’s opinion persuasive only as to his opinion that Plaintiff had moderate
limitations, the ALJ did not adequately explain his reasoning for reaching this conclusion. Finally,
Plaintiff argues that the RFC limiting Plaintiff to “simple, routine tasks with occasional workplace
changes; occasional interaction with the general public; and first grade reading level and 3rd grade
math” does not address moderate or marked limitations in concentration, persistence, or pace.
Dr. Brown opined that Plaintiff exhibited a “moderate” impairment in several areas of
mental functioning, including “understanding/remembering,” “social interaction,” and “adapting
to changes and requirements.” (AR 573-74). Dr. Brown added that Plaintiff had a “moderate to
marked” impairment in “concentration/persistence/pace,” which the report defines as the ability to
make decisions, remember and carry out instructions, maintain schedules and attendance, sustain
concentration for at least a 2 hour period, [and] persist during the day without interruption from
psychological symptoms.” (AR 573). In his analysis, the ALJ noted that “Dr. Brown opined the
claimant [had] moderate limitation in all four areas of mental functioning, but his ability to
concentrate, persist, or maintain pace had a marked to moderate ability to make decisions,
remember and carry out instructions, maintain schedules and attendance, sustain concentration for
a least a 2-hour period, and persist during the day without interruption from psychological
symptoms.” (AR 20). The ALJ stated that moderate limitations were consistent with the State
Agency, which also opined the claimant had moderate limitations in all four broad areas of mental
functioning, and consistent with and supported by Plaintiff’s activities of daily living, which
showed no more than moderate limitations. (AR 20 (citing Ex. 3F, 4F, 7A, 8A, 9F, 10F, 11A,
12A)).
The Magistrate Judge found that, although the administrative decision was “not a model of
meticulousness,” the ALJ did not commit reversible error. (Doc. No. 32 at 8). Examining the
Decision as a whole, the Magistrate Judge concluded that “the ALJ found only the ‘moderate’ end,
and not the ‘marked’ side of Dr. Brown’s concentration/persistence/pace rating to be persuasive.”
(Id.). The Magistrate Judge found this reading of the Decision is consistent with the ALJ’s findings
elsewhere in the Decision that Plaintiff had a moderate impairment with respect to concentration,
persistence, and pace based on Plaintiff’s own reporting and Dr. Brown’s assessment. (Id. at 8
(citing AR at 16)). Moreover, the Magistrate Judge reasoned that the paragraph as a whole, which
groups Dr. Brown’s opinions together with the opinions of the State agency consultants, all of
which found moderate impairment, indicates that the ALJ found Dr. Brown’s opinion that Plaintiff
had moderate impairment in concentration, persistence, and pace to be persuasive.
Plaintiff objects to the Magistrate Judge’s finding that the ALJ properly accounted for Dr.
Brown’s opinion. (Doc. No. 33 at 1). Plaintiff argues that the Magistrate Judge “operated on pure
speculation,” mischaracterized the ALJ’s Decision, and set a precedent for “allowing an ALJ to
‘pick-and-choose’ which portions of an opinion he finds persuasive without explanation.” (Id. at
1-2). Plaintiff asserts that if the ALJ was only persuaded by the “moderate” portion of Dr. Brown’s
opinion he would have “likely declared the opinion partially persuasive or mostly persuasive,” and
that the ALJ’s failure to do so implies that he found the entirety of Dr. Brown’s opinion persuasive.
(Id. at 2 (emphasis in original)). Plaintiff adds that even if the ALJ did find only the “moderate”
aspect of the opinion persuasive, he failed to adequately explain why the “marked” aspect was
unpersuasive.
The Court disagrees. The ALJ’s Decision adequately explains that he found the “moderate”
aspect of Dr. Brown’s opinion persuasive because the finding of moderate limitations aligned with
the opinion of the State agency, and was consistent with the findings with regard to “paragraph B”
and with Plaintiff’s activities of daily living. (AR 20). In the “paragraph B” analysis, the ALJ
found Plaintiff has moderate limitation in concentrating, persisting, or maintaining pace based on
evidence from Dr. Brown and Plaintiff’s own reporting. (AR 16 (citing Exs. 4E, 4F, 10F)). To be
sure, the ALJ could have more precisely chosen his words and stated that Dr. Brown’s opinion
was partially or mostly persuasive. However, viewed in context, the failure to categorize the
opinion in this way does not, as Plaintiff suggests, imply that the ALJ actually found the entirety
of Dr. Brown’s opinion persuasive.
In the Motion for Judgment on the Administrative Record, Plaintiff pointed to Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 516-17 (6th Cir. 2010), for the proposition that an RFC
determination that a plaintiff can perform simple, routine, unskilled work does not adequately
address a claimant’s moderate limitation on concentration, persistence, or pace. (Doc. No. 25-1 at
11-12). The Magistrate Judge rejected Plaintiff’s contention that Ealy established a blanket rule,
pointing out that district courts in this circuit have repeatedly noted the narrow scope of Ealy and
rejected the existence of any bright-line rule pertaining to concentration, persistence, or pace. (Doc.
No. 32 at 10 (collecting cases)). Plaintiff does not assert that the Magistrate Judge’s finding
regarding that application of Ealy was in error. He argues, however, that “even if the Magistrate
Judge correctly found that the RFC properly accounted for a moderate limitation, it would still not
account for a marked to moderate limitation.” (Doc. No. 33 at 3 (emphasis in original)).
Plaintiff’s assertion of error in this regard is without merit. As stated above, the ALJ found
that Plaintiff suffered from moderate impairment in concentration/persistence/pace. Therefore, he
was not required to include additional limitations in the RFC.
Finally, Plaintiff objects to the Magistrate Judge’s observation that “there are certain
aspects of Dr. Brown’s report that appear to constitute the types of ‘conclusory statements’ that
ALJs are not bound to accept.” (Doc. No. 33 at 3-4 (citing Doc. No. 32 at 12-13)). This observation
was merely in the context of distinguishing Ealy, and was otherwise not determinative of the
finding that substantial evidence supported the ALJ’s determination.
Til. CONCLUSION
Having conducted a de novo review of the Magistrate Judge’s determinations and the
Plaintiff's objections, for the reasons stated herein, the Plaintiff's Objections are OVERRULED
and the Report and Recommendation (Doc. No. 32) is ADOPTED. Plaintiff's Motion for
Judgment Based on the Administrative Record (Doc. No. 25) is DENIED and the Commissioner’s
Decision is AFFIRMED.
It is so ORDERED.
hla X. Cb
Vile = □□
UNITED STATES DISTRICT JUDGE