HOLLAND v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

FILED

in the Middle District of

MICHELLE VIRGINIA HOLLAND, ) ——

Pl. ain ti ff, ) ee Court

)

v. ) 1:20CV850

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Secutity,! )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Michelle Virginia Holland (“Plaintiff”) brought this action pursuant to Section

205(g) of the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial

teview of a final decision of the Commissioner of Social Security denying her claim for

Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have filed ctoss-

motions for judgment, and the administrative record has been certified to the Court for review.

PROCEDURAL HISTORY

Plaintiff protectively filed her application for DIB on October 2, 2017, alleging a

disability onset date of June 1, 2009. (Tr. at 12, 181-82.)? Her date last insured was March 31,

2015, so the time period at issue is June 1, 2009 to March 31, 2015. Her claim was denied

1 Kilolo Kijakazi was appointed as the Acting Commissioner of Social Security on July 9, 2021. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for Andrew M. Saul

as the Defendant in this suit. Neither the Court nor the parties need take any further action to continue this

suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

* Transcript citations refer to the Administrative Record [Doc. #11].

initially (Tr. at 78-86, 105-13), and that determination was upheld on reconsideration (Tr. at

87-100, 117-24). Thereafter, Plaintiff requested an administrative hearing de novo before an

Administrative Law Judge (“ALJ”). (Tr. at 125-26.) Plaintiff attended the subsequent hearing

on August 7, 2019, along with her attorney and an impartial vocational expert. (Tt. at 12.)

Following the heating, ALJ concluded that Plaintiff was not disabled within the meaning of

the Act for the period from June 1, 2009 to March 31, 2015. (Tr. at 26.) On August 5, 2020,

the Appeals Council denied Plaintiffs request for review, thereby making the AL]’s conclusion

the Commissionet’s final decision for purposes of judicial review (Tr. at 1-6).

Il. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissioner’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of teview of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts ate 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

ALJ if they are supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal

quotation omitted).

“Substantial evidence means ‘such relevant evidence as a teasonable mind might accept

as adequate to support a conclusion.”’ Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mete

scintilla of evidence but may be somewhat less than a preponderance.” Mastro 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 there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to re-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

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 “[a] claimant for disability

benefits beats 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 teason 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

petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).3

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 C.F.R. pt. 404 (SSDI); 20 C.F.R. pt. 416 (SSI), governing these two programs 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, “[tl]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

wotking, 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 impairment meets or 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]f a claimant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.4 Step four then requires the AL] 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

hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations

(mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”

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 carty 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.

QI. DISCUSSION

In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful

activity” between her alleged onset date of June 1, 2009 and her date last insured of March 31,

2015. Plaintiff therefore met her burden at step one of the sequential evaluation process. (Tr.

at 14.) At step two, the ALJ further determined that Plaintiff suffered from the following

impairments through her date last insured:

Allergic rhinitis; reactive airway disease; dermatitis with intermittent eczema,

hypothyroidism; obesity; possible borderline personality disorder; questionable

major depressive disorder; [and] questionable posttraumatic stress disorder[.|

(Tr. at 14.) The ALJ next found at step three that none of Plaintiffs impairments, individually

or in combination, met or equaled a disability listing. (Tr. at 15-18.) Therefore, the AL]

assessed Plaintiff's RFC and determined that, through her date last insured, Plaintiff had the

REC to perform light work with the following nonexertional limitations:

[Plaintiff] can perform no mote than occasional postural movements, but can

never climb ladders, ropes or scaffolds; must avoid concentrated or frequent

exposute to pulmonary irritants and all exposure to hazards in the work

environment. Also, [Plaintiff] is limited to maintaining concentration,

petsistence and pace for performance of simple, routine and repetitive tasks

characteristic of unskilled work at all reasoning levels of unskilled work.

(Tr. at 18.) At step four of the sequential analysis, the AL] found that Plaintiff had no past

relevant work. However, at step five, the ALJ found that, given Plaintiff's age, education,

work experience, RFC, and the testimony of the vocational expert as to these factors, Plaintiff

could perform other jobs available in the national economy. (Tr. at 24-26.) Therefore, the

ALJ concluded that Plaintiff was not disabled under the Act. (Ir. at 26.)

Plaintiff now contends that substantial evidence fails to support the ALJ’s RFC finding

in two respects. First, she argues that the ALJ failed to properly consider the opinions of Dr.

Natalie Sadler, a psychiatrist who treated Plaintiff between October 12, 2016 and May 29,

2019. Second, Plaintiff asserts that the AL] failed to “sufficiently develop the record regarding

the possibility that [Plaintiffs] allegations of physical pain and symptoms wete the product of

somatoform disorder.” (Pl.’s Br. [Doc. #15] at 2.) After thorough consideration of the record,

the Court finds that neither of these contentions merit remand.

A. Dr. Sadler’s opinion evidence

Plaintiff first challenges the AL]’s treatment of a medical source statement completed

by Plaintiffs treating psychiatrist, Dr. Sadler. As the AL] correctly notes,

Dr. Sadler provided opinions based on treatments that, specifically, were for the

petiod from October 12, 2016 through May 29, 2019. Thus, the doctor did not

begin treating [Plaintiff] until some 20 months after her date last insured for

disability benefits. As such, the opinions are not based on professional

interaction with or contact with [Plaintiff] during the relevant petiod under

adjudication and have no significant relevance in determining [Plaintiffs]

residual functional capacity for the relevant period.

(Tr. at 24.)

Plaintiff now claims that the timing of Dr. Sadlet’s opinions was not a sufficient reason

to discount them. In considering Plaintiffs contention, the Court acknowledges that,

in some instances, medical evidence that post-dates a claimant’s DLI may be

considered where it is relevant to prove disability prior to that date. Specifically,

the Fourth Circuit held in Bird [v. Comm’t of Soc. Sec., 699 F.3d 337, 340-41

(4th Cir. 2012)] “that post-DLI medical evidence generally is admissible in an

SSA[Social Security Administration] disability determination in such instances

in which that evidence permits an inference of linkage with the claimant’s pre-

DLI condition.” 699 F.3d at 341 (citing Moore v. Finch, 418 F.2d 1224, 1226

(4th Cir.1969)). In the case of medical opinions, the evidence in question “must

relate back to the relevant period” and “offer a retrospective opinion on the

past extent of an impairment.”

Emrich v. Colvin, 90 F. Supp. 3d 480, 485 (M.D.N.C. 2015). Notably, the claimant in Bird

did “not have any medical records dating before his DLI.” Bird, 699 F.3d at 339. Therefore,

the court found the AL]’s refusal to consider post-DLI evidence to be error because “the

claimant’s retrospective, post-DLI evidence could have been the ‘most cogent proof of the

claimant’s pre-DLI condition.” Emrich, 90 F. Supp. 3d at 487 (citing Bird, 699 F.3d at 341)

(citations omitted). Correspondingly, “Bird has . . . repeatedly been found ‘inapplicable where

there was meaningful evidence of the claimant’s disability’ or lack of disability during the DIB

coverage period.” Tolbert v. Colvin, No. 1:15CV437, 2016 WL 6956629, at *4 (M.D.N.C.

Nov. 28, 2016) (citing Emrich, 90 F. Supp. 3d at 487 (“[A] linkage between Emrich’s pre- and

post-DLI depression conditions was unnecessaty because Emrich was treated for depression

throughout her disability insurance coverage period, and the ALJ considered whether that

direct evidence supported a finding of disability.”)).

In the present case, Dr. Sadler took over Plaintiff's mental health treatment in October

2016 after Dr. Peter Adland, Plaintiff's psychiatrist from May 2010 to April 2016, closed his

practice. (Ir. at 832.) Plaintiff contends that Dr. Sadlet’s treatment notes and opinions telate

back to Plaintiffs treatment prior to her March 31, 2015 date last insured. However, the Coutt

notes that, unlike in Bird, there was substantial record evidence in the present case regarding

Plaintiff's impairment priot to the DLI. Specifically, the medical record in this case reflects

that Dr. Adland treated Plaintiff for six years, with nearly five of those years falling prior to

Plaintiffs DLI, and with the record including dozens of treatment notes for Plaintiffs regular

visits during that time. (See Tr. at 22, 23, 284-87, 486-508.) The ALJ recounted these records

at length, noting as follows:

Doctor Adland indicated questionable diagnoses of PTSD and major

depression after he first interviewed the claimant on May 4, 2010 and his

intention was to delve further into the claimant’s history to determine the areas

in which she needed therapy (Exhibit 13F page 22). However, when he next

saw her on May 10, his diagnostic assessment focused on complaints of chronic

pain and fatigue and a notation of feelings of inadequacy. However, the

assessment also noted that the claimant was more focused and organized “to

find other employment.” The doctor also documented the claimant’s lack of

typical posttraumatic stress disorder symptoms and could only note the

claimant’s subjective history of panic attack symptoms. Based on the subjective

history of “keeping things” the doctor commented that there was minimal

evidence of obsessive compulsive disorder (OCD) symptoms (page 20). It is

significant that the claimant never mentioned symptoms of panic attacks except

at the initial intake visit on May 10, 2010 when she told the doctor that she had

a remote history of panic attacks but had not had an attack in three years. She

also noted that she had learned how to deal with these attacks (Exhibit 3F page

20). The statement contradicts the claimant’s testimony. As of March 9, 2015,

just prior to the claimant’s date last insured the claimant really was not talking

about depression but, as noted above, focused on fatigue, joint pains, poor sleep

(page 7). It was only in 2016, well after the claimant’s date last insured that she

again reported panic attacks (pages 1-5). Significantly, there are four comments

in the notes for October 2015, February 2016 and April 2016 showing that the

claimant was pursuing a class to become a yoga instructor. The claimant had

begun the class in the summer of 2015 and indicated that it was having a good

effect on her life. In fact, at that point, she was not scheduled to return for

counseling for six months. She, herself, asked for an earlier appointment for

Februaty 2016, at which time she was still engaged in yoga training. She

described in detail her yoga class with no indication of any decreased speech

output despite complaining of this at the session. She was advised to take her

Adderall prescription regularly and to increase her dose of Fluvox which, the

claimant indicated, helps her condition. When seen in April 2016 the claimant

was still engaged in her yoga training, but was not using Adderall. She was,

however, using her other medications as prescribed and adhering to het

Adderall prescription (pages 3, 5, 6).

Dr. Adland gave tentative diagnoses of depression and PTSD, but later noted

that the PTSD symptoms were atypical. He further noted in several of the initial

records that it was hard to assess the claimant’s case as a personality disorder or

a mixed mood disorder. He noted some inconsistencies of presentation with

the claimant joking and smiling despite her reports of severe depression. These

inconsistencies ate seen at the evaluations for June 27, 2011 at Exhibit 13F page

16. While the claimant said that she was not doing well, he noted that she was

joking and laughing and that her affect brightened as the session progtessed.

Assessing her progress, the doctor noted that her issues were partly

“personality-patt mood, but she is not as depressed as she would be.” Also

inconsistent with the claimant’s overall presentation, the note for May 8, 2012

(Exhibit 13 F page 15) indicated that the claimant was reporting severe

symptoms of sleeping all day, but the doctor noted her to have no obsetved

evidence of decteased mood and observed that she was “joking as ever” when

describing her problems. Dr. Adland also noted, as mentioned above, that the

claimant appeats to have been pursuing a photography business with the pursuit

causing some drama in het life involving some unspecified association with

Facebook and a nonprofit (Exhibit 13F page 14). The undersigned notes that

Dr. Adland frequently asked the claimant to return for follow-up’s [sic] in . . .

three to four months or six months, which is consistent with managed and

stable status, not exacerbation of symptoms (Exhibits 2F and 13F).

(Tr. at 22-23.) The ALJ further noted that both of the State agency psychological consultants

who reviewed Plaintiffs claims found insufficient evidence of any severe, medically-

determinable mental impairments prior to Plaintiff's date last insured. (Tr. at 23, 83-84, 97.)

Because the ALJ based the mental RFC determination in this case on contemporaneous

treatment notes and other medical evidence, no further consideration of Dr. Sadler’s opinions

was tequited under Bird. Nevertheless, the AL] did not discount Dr. Sadler’s opinions solely

on the basis of timing. She also cited significant issues regarding the consistency and

supportability of Dr. Sadler’s statements:

The doctor’s comment in Exhibits 11F and 22F that she did not feel that the

claimant could “function in a regular job” is a statement regarding the ultimate

issue of disability, a matter reserved to the Commissioner the Social Security

Administration. As for the checkmark style assessment in Exhibit 23F, the

doctor indicated “extreme loss” in the claimant’s ability to sustain performance

during an eight hour workday. She indicated extreme limitation in the claimant’s

ability to understand, remember, and execute detailed instructions, maintain

regular attendance, or maintain attention and concentration for two hour

segments. She also indicated extreme limitation in the claimant’s capacity for

working in coordination with or ptoximity to others, dealing with the stress of

semiskilled work or performing at a consistent pace without an unteasonable

number and length of rest periods. She also noted extreme loss even in the

claimant’s ability to respond appropriately to changes in routine work settings

ot use public transportation. Marked loss was indicated even when simple work-

related decisions were involved. Those limitations are inconsistent with the

longitudinal medical record, which depicts better functioning than Dr.

Sadler indicates. Specifically, the undersigned notes the observations

from Dr. Adland, who did observe the claimant during the relevant period

under adjudication, and which the undersigned has discussed above

when summarizing exhibits 2F and 13F.

at 24 (emphasis added).) In short, the AL] expressly relied on Dr. Adland’s six years of

treatment records, which recounted treatment at three- to six-month intervals, adequate

response to medications, limited problems with ongoing anxiety, a “joking” demeanor despite

allegations of depression, and the ability to pursue training as a yoga instructor and work as a

freelance photographer, to discount Dr. Sadler’s later findings of “extreme” limitations. To

the extent Plaintiff raises objections to the weighing of the evidence by the ALJ, Plaintiff

essentially asks the Court to re-weigh the evidence and come to a different conclusion than

5 For claims filed on or after March 27, 2017, the Social Security regulations specifically provide that the most

important factors when evaluating the persuasiveness of an opinion are supportability and consistency. 20

CER. § 404.1520c(a), 404.1520c(c)(1)-(c)(2).

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the ALJ. However, it is not the function of this Court to re-weigh the evidence or reconsider

the ALJ's determinations if they ate supported by substantial evidence. As noted above,

“fwlhere 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 rather,

“whether the ALJ's finding that [Plaintiff) is not disabled is supported by substantial evidence

and was reached based upon a cottect 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

determinations, and supported that explanation with substantial evidence.®

The Court also notes that as part of the challenge regarding Dr. Sadlet’s opinion,

Plaintiff also contends that the ALJ failed to properly consider the effects of Plaintiffs

limitations in maintaining concentration, persistence, and pace in the RFC assessment in

accordance with Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015). In this regard, the AL]

determined at step three of the sequential analysis that Plaintiff has moderate limitations in

her concentration, persistence, and pace. In Mascio v. Colvin, the Fourth Circuit explained

that, where moderate limitations in concentration, persistence, and pace are reflected at step

three, the ALJ 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

® To the extent Plaintiff contends that the AL] used “conclusory reasoning” to reject Dr. Sadler’s opinion, it is

clear from the above discussion that the ALJ set out detailed reasoning supporting by substantial evidence. The

AL] specifically relied on the longitudinal record reflected in Dr. Adland’s treatment notes set out at length in

the AL]’s decision. Plaintiff also criticizes Dr. Adland’s notes as “illegible,” but both Dr. Adland’s and Dr.

Sadler’s notes are handwritten, and the ALJ did not find either illegible and instead set out information from

the records at length.

‘Ad

that “an ALJ 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

claimant’s limitation in concentration, persistence, or pace.” Id. The Fourth Circuit further

noted that

[perhaps 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 tesidual functional capacity. For example, the ALJ may

find that the concentration, persistence, or pace limitation does not affect

Mascio’s ability to work, in which case it would have been appropriate to

exclude it from the hypothetical tendered to the vocational expert. But because

the ALJ here gave no explanation, a remand is in order.

Id. (internal 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 ALJ’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, or 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 requited making only simple, work-related decisions, involved few workplace changes,

and required only frequent contact with supervisors, co-workers, or the public” sufficiently

accounted for a Plaintiff s moderate limitations in concentration, persistence, or pace in light

12

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.

Bertyhill, 878 F.3d 72, 80-81 (4th Cir. 2017) (rejecting the plaintiff's 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 requites 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,

petsistence, or pace at step three of the sequential analysis. (Tr. at 17.) Later in the sequential

analysis, the ALJ formulated a mental RFC indicating that Plaintiff “is limited to maintaining

concentration, persistence and pace for performance of simple, routine and repetitive tasks

characteristic of unskilled work at all reasoning levels of unskilled work.” (Tr. at 18.) 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.

However, the language of the RFC itself reflects that the ALJ specifically accommodated

Plaintiff's moderate difficulties with concentration, persistence and pace by limiting her to

simple, routine, and repetitive tasks. Moreover, the AL] discussed the evidence regarding

Plaintiff's mental health limitations at length, specifically with regard to the records from Dr.

Adland as set out above. In addition, in undertaking the analysis at step two, the ALJ included

detailed analysis of Plaintiff's limitations and abilities as follows:

13

In understanding, remembering, or applying information, the claimant has a

moderate limitation. She is able to drive and adhere to traffic laws and the

procedures for operating a motor vehicle. She is able to learn and technical job

tasks, such as those involved in photography. The claimant has pursued

photography throughout her alleged period of disability. She follows her

medication regimen and actively participate in decisions about her medical care.

She appeared fully capable of understanding and responding during the hearing

and throughout the disability application process. The claimant has

demonstrated the ability to adequately ask and answer questions throughout her

disability application process, at the hearing, at medical encounters and in the

coutse of working as a home health aide. She has pursued her disability

application, which clearly demonstrates that she understands instructions and

requirements for vatious processes, and successfully responds to them. There

is no indication of any limitation in the claimant’s ability to learn, remember and

apply new information, at least as requited for tasks involving no more than

simple instructions based on the consistently normal mental status examinations

as to attention, concentration and memory. She has consistently been observed

to have logical thinking, intact memory and an absence of abnormal content.

In interacting with others, the claimant has mild limitation. The claimant

presented herself in an appropriate and cooperative mannet at all times during

medical encounters and before the undersigned. She has shown herself capable

of conforming to acceptable public social behavior as demonstrated by her

comportment at medical examinations, before the undersigned, in her ability to

perform normal daily activities requiring social contact. The claimant does

engage in public contact. She noted doing some photography work and, during

the alleged period of disability has gone on vacation with her husband three

times. Such activity conflicts with the claimant’s testimony of being

homebound.

With regard to concentrating, persisting, or maintaining pace, the claimant has

a moderate to limitation. The claimant maintains her medication regimen,

actively participates in her health care choices and treatment, obtains medical

cate and the necessities of daily life as needed and has persisted in her disability

application process. She is able to sustain concentration, persistence and pace

to do photography and pursue classes in yoga instruction. Mental status

examinations have indicated that the claimant’s attention and concentration,

memory and thought processes ate not significantly limited. She displayed

adequate attention and concentration during the numerous medical encounters

and before the undersigned.

As for adapting or managing oneself, the claimant has experienced mild

limitation. The record indicates an independent lifestyle and good quality of life

with the claimant demonstrating the capacity to adapt to life changes in the

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environment or to demands that ate not already part of her individual life. The

claimant has taken on the challenge of trying to do photography and of taking

classes to become a yoga instructor. The undersigned sees no evidence of lack

of independence in self-care. The claimant takes interest in her physical and

mental health, and appears aware of common daily hazards (for example, those

encountered while driving, engaging in routine public contacts, taking yoga

instruction, doing photography and taking vacations. There is no indication that

the claimant has had trouble in maintaining her active daily routines and

succeeding at endeavors.

(Ir. at 17-18.) As set out above, remand is not required under Mascio where the AL]’s

discussion of, and reliance on, substantial record evidence adequately explains why the

plaintiffs moderate limitation at step three did not translate into any additional RFC

restrictions. In this case, the ALJ discussed Plaintiffs mental impairments at length and

included sufficient explanation to allow the Court to follow her reasoning, which is supported

by substantial evidence. As such, the Court finds no basis for remand.

B. Somatoform disorder

Plaintiff next argues that “[t]he ALJ failed to develop the record regarding the question

[of] whether [Plaintiffs] subjective experience of pain was due, in part, to somatoform

disorder.” (Pl.’s Br. at 17.) As acknowledged by Plaintiff, the ALJ found that the record in

this case “show[s] a litany of subjective complaints for nearly every body system,” but that

Plaintiff's treatment notes and other medical findings provide little, if any, objective evidence

to support these complaints. (Pl.’s Br. at 17-18 (citing Tr. at 22, 23).) “The unavoidable

inference,” Plaintiff asserts, “is that [she] is either a malinger . . . or someone whose pain

experience is attributable to mental impairment,” and “[i]t is extremely unlikely, given

[Plaintiffs] long medical history, that her allegations of pain were simply the product of

malingering.” (Pl.’s Br. at 18.) Extrapolating from this line of reasoning, Plaintiff contends

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that the AL] “commit[ed] legal error by failing to consider an impairment that [was] reasonably

suggested by the evidence.” (Pl.’s Br. at 19.)

Plaintiff further argues that “the ALJ’s duty to develop the record is not negated simply

because [Plaintiff] did not allege somatoform disorder when she filed her claim,” because

“claimants who suffer from somatoform disorder are almost always unaware of having that

impairment.” (Pl.’s Br. at 22.) However, in the present case, no medical professional

diagnosed, let alone treated, Plaintiff for a somatoform disorder or any other psychological

disorder relating to her physical complaints. Plaintiff cannot fault the ALJ for failing to

specifically address a diagnosis that was never made and that Plaintiff never proffered for

consideration. Essentially, Plaintiff now suggests that the ALJ, an individual with no medical

training, should have recognized the possibility that Plaintiffs alleged physical impairments

indicated the presence of an undiagnosed and potentially disabling mental condition, a

condition that all of the providers and medical reviewers in this case somehow missed. She

further suggests that, although Plaintiff was represented by counsel who never suggested this

possibility or requested further development of the record, the AL] should have developed

the record in support of this possibility sva sponte. This suggestion is simply not reasonable

and goes well beyond the AL]’s responsibility for development of the record. Indeed, as noted

by Defendant, this suggestion is contrary to the regulations, which provide that SSA will

“consider only impairment(s) you say you have or about which we receive evidence.” 29

CER. § 404.1512(a).

Moreover, Plaintiff points to no evidence of how her alleged somatoform disorder

would affect her RFC, other than her general contention that such a finding would support

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her subjective complaints, and therefore a finding of disability. Plaintiff also contends that the

ALJ should have considered whether Plaintiffs mental impairments met Listing 12.07 for

somatoform disorder, but in doing so, she fails to allege, let alone show evidence to support,

that her alleged impairment met all of the requirements of that listing. (See Pl.’s Br. at 21-22.)

As noted above, none of the State agency physicians or psychologists in this case found

sufficient evidence to support a finding of any severe medically determinable mental

impairments, let alone an impairment that was per se disabling under the listings. (T'r. at 23.)

Nevertheless, the AL] gave Plaintiff the benefit of the doubt, finding at step two of the

sequential analysis that Plaintiff suffered from tespiratory conditions, dermatitis,

hypothyroidism, obesity, and multiple mental impairments, including borderline personality

disorder, depression, and posttraumatic stress disorder. (Tr. at 14.) The ALJ then took all of

Plaintiffs impairments into account in setting the RFC. For example, in light of Plaintiffs

obesity and pain complaints, the ALJ limited Plaintiff to light work with additional postural

restrictions. (Ir. at 18.) She also limited Plaintiff to simple, routine, repetitive tasks to account

for her mental impairments. (Tr. at 18.) Notably, the ALJ specifically stated that she included

the findings of moderate limitations in understanding, remembering, and applying information

and in concentrating, persisting, and maintaining pace included at step three of the sequential

analysis out of an abundance of caution, as they were not reflected at the hearing or to a

substantial degree, if any, in the treatment notes. (I'r. at 17.) Overall, it appears that the ALJ

largely gave Plaintiff the benefit of any doubt when it came to her mental impairments during

the televant time period. The record in this case simply fails to suggest, let alone mandate, a

determination that Plaintiff suffered from a somatoform disordet.

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IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be AFFIRMED, that Plaintiffs Motion for Judgment on the Pleadings [Doc.

#14] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #16] be

GRANTED, and that this action be DISMISSED with prejudice.

This, the 28" day of February, 2022.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

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