The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ALISHIA M. M., )
Plaintiff,
v. 1:23CV988
LELAND DUDEK,
Acting Commissioner of Social Security, )
Defendant.
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Alishia M. M. (“Plaintiff”) brought this action pursuant to Sections 205(g) and
1631(c)(3) of the Social Security Act (the “Act’’), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security
denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under, respectively, Titles I and XVI of the Act. The parties have filed cross-
motions for judgment, and the administrative record has been certified to the Court for review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed applications for DIB and SSI on February 25, 2019, alleging
a disability onset date of June 6, 2017 in both applications. (Tr. at 229-39, 697, 725, 773.)!
Her applications were denied initially (Tr. at 73-96, 140-43) and upon reconsideration (Tr. at
97-134, 146-55). Thereafter, Plaintiff requested an administrative hearing de novo before an
Administrative Law Judge (“ALJ”). (Tr. at. 161-63.) On January 26, 2021, Plaintiff, along
with her attorney, attended a telephone hearing, at which both Plaintiff and an impartial
vocational expert testified. (Tr. at 773.) Following this heating, the ALJ concluded that
Plaintiff was not disabled within the meaning of the Act (Tr. at 786), and on August 9, 2021,
the Appeals Council denied Plaintiffs request for review of the decision, thereby making the
ALJ’s conclusion the Commissionet’s final decision for purposes of judicial review (Tr. at 792-
97).
Plaintiff, who resided in Iredell County, NC at that time, filed her appeal in the Western
District of North Carolina on September 29, 2021. (Tr. at 798-804.) In March 2022, that
Court remanded Plaintiffs claim at the request of the Commissioner, to address an apparent
conflict between the Dictionary of Occupational Titles and the testimony of the Vocational
Expert. (See Tr. at 807-08, 816-22.) Accordingly, on May 18, 2023, Plaintiff and her attorney
attended a remand hearing via online video. Both Plaintiff and an impartial vocational expert
again testified (Tr. at 697, 722-69), and the ALJ again denied Plaintiffs claims (Tr. at 712).
Plaintiff did not file written exceptions to this decision with the Appeals Council, and the
Appeals Council did not undertake its own review within sixty days of the decision, making
the August 9, 2023 hearing decision the final decision of the Commissioner on October 9,
2023. See 20 C.F.R. § 404.984(c)—(d); 20 C.F.R. § 416.1484(c)-(d). Thereafter, Plaintiff, who
now tesides in Surty County, within this District, brought the present action challenging the
ALJ’s August 9, 2023 decision. (Compl. {f 1, 4.)
Il. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social secutity 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 ate 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 reasonable 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 te-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL]].” Mastto, 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 Cit.
1981). In this context, “disability” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?
“The Commissioner uses a five-step ptocess 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
requitements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
2 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program (SSDD), 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 0.1.
On the other hand, if a claimant carties 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 179.3 Step four then requites the ALJ to assess whether, based on
that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that
a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its
“evidentiary burden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
3 “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-
telated physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8
a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks
omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the clatmant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations
(mental, sensory, or skin impaitments).” 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., patn).”
Hines, 453 F.3d at 562-63.
III. DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date of June 6, 2017. The ALJ therefore concluded that Plaintiff
met her burden at step one of the sequential evaluation process. (Ir. at 700.) At step two, the
ALJ further determined that Plaintiff suffered from the following severe impairments:
fibromyalgia; rheumatoid arthritis; obesity; and degenerative joint disease of the
knees bilaterally[.]
(Tr. at 700.) The ALJ found at step three that none of the impairments identified at step two,
individually ot in combination, met or equaled a disability listing. (Tr. at 703-04.) The ALJ
therefore assessed Plaintiffs RFC and determined that she could perform light work with the
following, additional limitations:
[Plaintiff] should perform no climbing of ladders, ropes, or scaffolds, can
perform occasional balancing, stooping, kneeling, crouching, and crawling; can
tolerate frequent not constant exposute, meaning [she] should avoid
concentrated exposurte[] to workplace hazards such as unprotected heights and
dangerous machinety; and should avoid concentrated exposure to extteme
noise.
(Tr. at 704.) Based on this determination and the testimony of a vocational expert, the ALJ
determined at step four of the analysis that Plaintiff had no past relevant work. (Tr. at 710.)
However, the AL] found at step five that, given Plaintiffs age, education, work experience,
REC, and the testimony of the vocational expert as to these factors, she could perform other
jobs available in significant numbers in the national economy. (Tr. at 710-11.) Therefore, the
ALJ concluded that Plaintiff was not disabled under the Act. (TI'r. at 712.)
Plaintiff now taises two, telated challenges to the ALJ’s treatment of Plaintiff's activities
of daily living (““ADLs”). First, she contends that the AL] erred “by citing Plaintiffs Activities
of Daily Living (ADLs) as a treason to discount her impaitment severity without accounting
for countervailing evidence regarding the nature and extent of Plaintiffs ADLs.” (Pl’s Br.
[Doc. #8] at 1.) Second, Plaintiff argues that the AL] erred “by failing to explain how
Plaintiffs limited ADLs demonstrate an ability to perform full-time, competitive
employment.” (PL’s Br. at 1.) In addition, Plaintiff challenges the ALJ’s failure to include
limitations in the RFC assessment to account for Plaintiff's “mild” limitations in functioning
and non-sevete mental impairment. (Pl’s Br. at 1.) Because Plaintiffs two challenges to the
ALJ’s treatment of ADLs broadly overlap, the Court considers these issues in tandem.
A. Consideration of Activities of Daily Living
In Woods v. Berryhill, the Fourth Circuit explained that “[aJn ALJ may not consider
the type of activities a claimant can perform without also considering the extent to which she
can perform them.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018); see also Arakas v.
Comm?’s of Soc. Sec., 983 F.3d 83, 100 (4th Cir. 2020) (“Even assuming, as the AL] noted,
that Arakas’s daily activities have, at least at times, been somewhat greater than [she] . . .
generally reported, he provided no explanation as to how those particular activities . .. showed
that [s]he could persist through an eight-hour workday.”) (internal citations omitted); Lewis v.
Berryhill, 858 F.3d 858, 868, n.3 (4th Cir. 2017) (“The ALJ points to Lewis’ ability to perform
incremental activities interrupted by periods of rest, such as “driv[ing] short distances of up to
30 miles, shop for groceries with the assistance of her mother or roommate, handle her
finances, and watch television.’ The ALJ’s conclusion that Lewis’ activities demonstrate she
is capable of work is unsupported by the record.”) (citation omitted); Brown v. Comm’r, 873
F.3d 251, 263 (4th Cir. 2017) (“[T]he ALJ noted that Brown testified to daily activities of living
that included ‘cooking, driving, doing laundry, collecting coins, attending church and
shopping.’ The ALJ did not acknowledge the extent of those activities as described by Brown,
e.g., that he simply prepared meals in his microwave, could drive only short distances without
significant discomfort, only occasionally did laundry and looked at coins, and, by the time of
the second AL] hearing, had discontinued regular attendance at church and limited his
shopping to just thitty minutes once a week. Moreover, the AL] provided no explanation as
to how those particular activities—or any of the activities depicted by Brown—showed that
he could persist through an eight-hour workday.”); see also Fletcher v. Colvin, No. 1:14CV380,
2015 WL 4506699 at *5-8 (M.D.N.C. Jul. 23, 2015).
In the ptesent case, the AL] recounted Plaintiffs testimony at the first hearing
regarding daily activities as follows:
[Plaintiff] described a mostly sedentary level of daily activity, alleging that she
spends most of her day sitting or lying down, although she acknowledged that
she is “kind of’ the primary caretaker for her young son and that she spends
two to four hours per day doing physical therapy on het own. She says she has
difficulty picking her son up, changing him, or bathing him. She stated that her
boyfriend performs most of the household cleaning and shopping and takes her
to medical appointments. She said that she requites assistance in getting in and
out of the bathtub and putting on her shoes, although she is able to prepare
simple meals.
(Tr. at 705.) The ALJ further recounted Plaintiffs testimony at the second hearing, that:
on a typical day, she gets her four-year-old son up and he will play the rest of
the day until his father comes home and gives him a bath and gets him to bed.
She said she is unable to do household chores and cannot stand long. She said
she stays in her house unless she has an appointment.
(Tr. at 705.)
After discussing the medical evidence and treatment records underlying Plaintiffs
claim, including testing, imaging, assessments on examination, and Plaintiffs reports to her
providers, the ALJ noted that she “also considered [Plaintiff's] daily activities, medications or
other treatments, the nature and frequency of [her] attempts to obtain medical treatment for
symptoms, and statements by other people about [Plaintiffs] symptoms” when assessing her
RFC. (Ir. at 707.) In terms of Plaintiffs activities, the ALJ noted that Plaintiff has “been
capable of cating for her young son during the daytime.” (Tr. at 707). The ALJ further
explained that “[a]lthough [Plaintiff] reported spending much of her day lying down, there is
insufficient evidence in the record that such lying down is medically necessary. Treatment
notes do not document that [Plaintiff's] medical providers typically advised her to lie down
fot ptolonged periods. ... Further, the record does not document consistent reports of
significant fatigue.” (Tr. at 707.)
The ALJ again cited Plaintiffs activities when summarizing the evidence and ultimately
concluding that Plaintiff was not as limited as she alleged. In pertinent part, the ALJ found
that
the record certainly documents pain and symptoms telated to fibromyalgial,]
rheumatoid arthritis, and degenerative findings in various joints as well as
obesity; however, the record suggests her pain and symptoms have waxed and
waned, which is common to these types of impairments. With treatment and
medication, she has reported improvement, and the longitudinal objective
findings document fairly mild findings upon presenting for treatment, no
findings that she was in acute distress, and no emergency room or urgent cate
treatment due to uncontrolled pain or fatigue, as well as activities including
cating for her young son during the day. In considering the objective findings
in combination with the claimant’s medications or other treatments, the nature
and frequency of the claimant’s attempts to obtain medical treatment for
symptoms, and statements by other people about the claimant’s symptoms, the
undersigned finds the claimant is not as limited as alleged.
(Ir. at 708); (see_also Tr. at 710) (same). “To fully account for [Plaintiffs] pain and
symptoms,” the AL] ultimately limited Plaintiff to light work with the additional, non-
exertional limitations set out in the RFC assessment. (T'r. at 704, 708.)
Although Plaintiff now argues that the ALJ failed to consider evidence regarding the
natute and extent of Plaintiffs activities, the ALJ clearly recounted Plaintiffs testimony that
her pain and other symptoms limited her ability to perform some of the physical aspects of
patenting, such as baths and diaper changing. (Ir. at 705.) Moreover, the AL] specifically
noted that the evidence did not support Plaintiffs alleged need to lie down for much of the
day ot the level of fatigue she claimed. (Tr. at 707.) In short, the ALJ did consider
“countervailing” evidence regarding Plaintiffs ADLs, but accepted this evidence only to the
extent it was supported by the record as a whole. Ultimately, the AL]’s conclusion is supported
by substantial evidence, including Plaintiffs own testimony and the AL]’s assessment of the
record as a whole.*
4 The record reflects that Plaintiffs son was born in 2018, and that in 2019, Plaintiff reported to her provider
that “[s]he takes care of her one year old and lives with her fiance who is the baby’s father.” (Tr. at 569.) At
the time of the hearing in May 2023, Plaintiff's son was age 4, and Plaintiff herself testified that she spends her
days caring for her young son:
Q... And so, what does a typical day look like for you, like, you know, what time do you get up? Do
you make breakfast, do household chores, go to the grocery store, cook? What’s a typical day look
like for your
A I get up at 6:00 in the morning, make me a cup of coffee. I wake my son up, make him something
to eat and then it’s just, he’ll play the rest of the day while I’m laying on the couch or sitting down. I
catv’t do the housework. I can’t cook. I use the microwave, that’s the only way I can cook anything is
to microwave because I can’t stand very long. About lunchtime, we'll eat and then he’ll lay down and
take a nap, and then he’ll get up and he’ll go outside and play or play around the house or whatever.
I have help with my neighbor. She helps me with him while my son’s father is at work, or my mother
will help me through the day. She'll come clean and she’ll cook for me sometimes, or my neighbor
will cook for him. And then at nighttime my son’s father will give him a bath after he’s eaten and
then we go to bed atound 9: 00.
Q Okay. All right. So, the rest of the day, are you watching T'V, ate you reading, gardening, what else
ate you doing?
10
As for Plaintiff's second challenge regarding the treatment of her ADLs, the AL] again
made clear that the evidence as a whole, not just Plaintiffs ability to care for her son,
demonstrated that she could perform a limited range of light work for a full, 8-hour workday.
(See Tr. at 707.) In addition to Plaintiffs activities, the ALJ considered and discussed at length
the effect of Plaintiffs medications or other treatments, the nature and frequency of her
medical treatment, statements by both Plaintiff and others regarding her symptoms, the
assessments by Plaintiffs providers regarding the effect of her impairments on her functioning
A Pretty much just keeping an eye on my son. He watches cartoons. I'll teach him -- try to teach him
things but I don’t do very good a job of teaching. But pretty much I'm either sitting or standing or
laying on the couch or massaging or doing some physical therapy stretches and stuff, is pretty much
the gist of my day.
Q Okay. All right.
Q So, we’re talking about your hands, how often do they swell up?
A They’re swollen right now.
A It’s -- probably tomorrow it may go down for a little but then after a while tt swells back up. But
then I have a fourt-yeat-old, you have to understand that I have to interact with him and then my
hands will start swelling.
Q But you're not picking him up.
A No. I cannot pick up him up. No.
Q So, when you say you're interacting it means what? Just putting stuff in the microwave?
A That and putting, trying to put his clothes on. I struggle with that. And just trying to play with him
and dealing through out the day because I don’t want to neglect my child, you know.
Q But yeah, but you’re not getting on the floor --
A No, I can’t get on the floor.
Q And you're not playing --
A No. I sit on the couch or in the chair or I'll stand up for a few minutes and get him to dance
around and stuff.
Q You're not dancing with him?
A No. I can’t. I follow where he goes.
(Tr. at 734-35, 737, 748-49.) In the briefing, Plaintiff contends that she has assistance from her mother, her
neighbor, and the child’s father, although Plaintiff's brief also notes that Plaintiffs mother reported that she
sees Plaintiff only one to two days per month. (Pl. Br. at 9-10, 12, Tr. at 1027.) In addition, Plaintiff testified
that the child’s father works during the day (T’r. at 728) and helps at night, as noted above. The AL]’s decision
references Plaintiffs care for her young son during the day. Plaintiff also testified that her neighbor will
sometimes cook or help with chores (Tr. at 742), and the AL] specifically acknowledged Plaintiffs testimony
that “she is unable to do household chores.” (Ir. at 705.) Thus, this is not a case where the ALJ
mischaracterized or misconstrued the testimony.
11
on examination, and other medical records including imaging and testing. (Tr. at 705-08, 710.)
The ALJ also considered medical opinion evidence, including the findings of the State agency
medical consultants, when assessing Plaintiffs RFC. Significantly, the State agency medical
consultants at the initial level opined that Plaintiff could perform a reduced range of light
work, while the consultant at the reconsideration level opined that Plaintiff remained capable
of a reduced range of medium work. (It. at 708-09) (citing Tr. at 79-81, 127-28). The ALJ
found these opinions persuasive, noting that “[b]oth doctors supported their opinions with a
review of [Plaintiffs] medical records available to them at [the time], which showed ongoing
reports of joint pain|,] swelling[,] and diffuse bodily pain but also revealed generally normal
physical examination findings.” (Tr. at 709.) The AL] also noted that the consultants’ opinions
“ate mostly consistent with the record as a whole, including objective imaging showing only
minimal signs of degenerative changes, as well as clinical finding of normal musculoskeletal
ranges of motion, strength, muscle bult and tone, motor and sensory function, and gait.” (T'r.
at 709.) Nevertheless, the AL] found it “reasonable to limit [Plaintiff] to a reduced range of
light work as indicated in the [RFC] to fully accommodate [Plaintiffs] reports of ongoing pain
that has waxed and waned.” (Tr. at 709.) The ALJ went on to explain that no medical opinion
evidence supported physical limitations greater than those included in Plaintiffs RFC. (Tr. at
708-10.) The AL] also chronicled the relevant treatment notes in detail in her decision. (See
Tr. 705-08.) Accordingly, the ALJ did not rely Plaintiffs daily activities alone as indicative of
her physical functional abilities, nor did she overstate them as in Woods, Arakas, and similar
cases.
12
Finally, Plaintiff also contends that the ALJ improperly relied on Plaintiffs ability to
testify at the hearing and attend medical appointments, as well as her activities during the day
such as cating for her son, doing physical therapy exercises, and watching tv or reading for
short petiods, without explaining how those activities were relevant to Plaintiffs ability to
work a full day. (Pl. Br. at 11.) However, the ALJ considered these activities narrowly in the
context of Plaintiffs mental limitations, and explained exactly how those activities reflected
Plaintiffs abilities, consistent with the medical record including the mental status
examinations. With respect to Plaintiffs alleged difficulties understanding, remembering,
concentrating, and persisting, the ALJ noted that “mental status examinations conducted
duting the period at issue typically found her to be alert and oriented with intact memoty,
attention, thought processes, thought content, judgment, insight, and cognition” and “[t|hese
findings comport with the claimant’s reported activities of daily living and presentation at the
heating.” For instance, “[alt the hearings, [Plaintiff] was able to follow along during
questioning and provide clear and relevant testimony to me without asking for much repetition
ot explanation” and “also stated that she is able to watch television, read for short periods,
and act as the primary caretaker for her young son” reflecting her ability to understand,
remember, and apply information and her ability to concentrate, persist, and maintain pace.
(Tr. at 701.) Similarly, the ALJ noted that Plaintiffs relationship with her family, her conduct
at medical appointments, where she was pleasant and cooperative, and her communication
and responses at the hearing, all “indicates capacity to manage herself and interact with
others.” (Tr. at 701-02.)
13
Thus, the ALJ reasonably considered Plaintiffs activities in context, and explained how
those activities were relevant, and also considered a multitude of other factors based on the
evidence in the record as a whole. The determination was supported by substantial evidence
in the record, and Court finds no basis for remand.
B. Mental limitations
Plaintiff next contends that, in assessing her RFC, the ALJ erred by failing to include,
ot explain the absence of, mental RFC limitations “to account for Plaintiffs ‘mild’ limitations
in all four Paragraph B criteria and ‘nonsevere’ mental impairments.” (PL.’s Br. at 1, 14-20.)
This contention relates to the AL)’s analysis of Plaintiffs post-traumatic stress disorder
(“PTSD”), depression, and anxiety, which the AL] addressed at step two of the analysis, and
found to be “nonsevere” impairments that did not cause “more than a minimal limitation” in
Plaintiff's ability to do basic work activities. (Ir. at 701-03.) Specifically, at step two of the
sequential analysis, the ALJ acknowledged that Plaintiffs PTSD, depression, and anxiety
constituted medically determinable mental impairments. (Tr. at 701.) However, she further
determined that these impairments, “considered singly and in combination, [did] not cause
mote than minimal limitation in the claimant’s ability to perform basic mental work activities
and [were] therefore nonsevete.” (Tt. at 701.) As part of the analysis, the ALJ specifically
considered the four broad ateas of mental functioning, also known as the “paragraph B”
ctiteria, set out in the regulations. (Tr. at 701-03.); see also 20 C.F.R., Part 404, Subpart P,
Appendix 1, 12.00E. These areas of mental functioning are (1) understanding, remembering,
ot applying information; (2) interacting with others; (3) concentrating, persisting, and
maintaining pace; and (4) adapting and managing oneself. (See Tr. at 702-03.) For each of
14
these areas, the AL] must rate Plaintiffs degree of limitation as none, mild, moderate, marked,
ot extreme. 20 C.F.R., Part 404, Subpart P, Appendix 1, 12.00F(2).
In the present case, the ALJ found that Plaintiff had mild limitations in all four
functional ateas. (It. at 702-03.) In making these findings, the ALJ set out her rationale at
length:
The first functional area is understanding, temembering or applying
information. In this area, the claimant has mild limitation. The claimant has a
high school education and on examination and treatment, she typically had
intact memory, thought processes, thought content, judgment, insight and
cognition. At the heatings, she was able to understand and answer all questions
posed by the representative and by me without asking for much repetition or
explanation. This suggests that she is able to understand, remember, and apply
information to specific questions. In addition, she stated that she is able to serve
as the primary caretaker for her young son, which indicates an intact capacity to
understand, remember, and apply childcare techniques to cate for her son.
Further, according to the record, she has not teceitved any mental health
treatment since Februaty 2021, which suggests her symptoms are not as limiting
as alleged.
The next functional area is interacting with others. In this area, the claimant has
mild limitation. The claimant alleges social avoidance and difficulty interacting
with others—particularly men. However, medical providers often described her
as cooperative, and as having an appropriate mood and affect, although they
did describe her to appear anxious, depressed, and agitated or tearful at times.
Her providers also noted her to have normal speech and good eye contact
during most appointments. Further, the treatment notes do not consistently
document reports of difficulties getting along with others or the like. At the
heating, she communicated and responded to all questioning in an appropriate
mannet. She stated that she lives with her boyfriend and young son, and that
she attends tegular medical appointments, which suggests some ability to
interact with others. Further, according to the record, she has not received any
mental health treatment since February 2021, which suggests her symptoms ate
not as limiting as alleged.
The third functional area is concentrating, persisting or maintaining pace. In
this area, the claimant has mild limitation. The claimant alleges difficulty
concentrating and persisting. However, mental status examinations typically
found her to be oriented with intact attention and thought processes. At the
hearing, she reported that she is able to act as the primary caretaker for her
15
young son—an activity that requires concentration to complete. At the hearing,
she also was able to follow along during questioning and provide clear and
relevant testimony to me without asking for much repetition or explanation—
indicating an ability to concentrate, persist, and maintain pace for simple tasks.
Further, according to the record, she has not received any mental health
treatment since February 2021, which suggests her symptoms are not as limiting
as alleged.
The fourth functional area is adapting or managing oneself. In this atea, the
claimant has mild limitation. The claimant alleges difficulty handling stress and
adapting to changes in routine. However, medical providers often described
het as cooperative, and as having an appropriate mood and affect, although they
described her to appear anxious, depressed, and agitated or tearful at times. Her
providers also noted her to have normal speech, good eye contact, and intact
grooming during appointments. In addition, though she alleges significant
mental distress, her providers often found her to be in no acute distress during
appointments. At the hearing, she reported that she is able to care for her young
son and attend medical appointments—indicating an ability to manage herself
appropriately. The claimant alleges difficulty handling stress and adapting to
changes in routine. However, medical providers often described her as
cooperative, and as having an appropriate mood and affect, although they
described her to appear anxious, depressed, and agitated or tearful at times. Her
providers also noted her to have normal speech, good eye contact, and intact
grooming during appointments. In addition, though she alleges significant
mental distress, her providers often found her to be in no acute distress during
appointments. Further, according to the record, she has not received any mental
health treatment since February 2021, which suggests her symptoms ate not as
limiting as alleged.
Because the claimant’s medically determinable mental impairments cause no
more than “mild” limitation in any of the functional areas and the evidence does
not otherwise indicate that there is more than a minimal limitation in the
claimant’s ability to do basic work activities, they are nonsevere (20 CFR
404.1520a(d)(1) and 416.920a(d)(1)).
(Tr. at 702-03) (internal citations omitted) (emphasis omitted). Notably, Plaintiff does not
challenge the ALJ’s finding that her mental impairments were nonsevere. Rather, citing
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) and its progeny, she argues that the ALJ was
requited to address Plaintiffs “mild” paragraph B limitations when assessing Plaintiff's RFC,
ot explain the absence of corresponding limitations.
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However, Plaintiffs argument that her mild limitations should have been accounted
for in the RFC is not supported by the Fourth Circuit’s decision in Mascio and or the weight
of subsequent decisions in this Court. In Mascio, the Fourth Circuit held that if moderate
limitations in concentration, persistence, or pace ate reflected at step three, the AL] 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 further noted that
[plerhaps the ALJ can explain why Mascio’s moderate limitation in
concenttation, persistence, or pace at step three does not translate into a
limitation in Mascio’s residual 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.
Mascio, 780 F.3d at 638 (internal citation omitted).
In the present case, unlike in Mascio, the ALJ found only mild, rather than moderate,
restrictions in functioning. (I'r. at 702-03.) More recent cases in this District have held—
almost universally—that “the weight of post-Mascio authority among the district courts in the
Fourth Circuit does not favor extending Mascio to mild limitation|s].” Spradley v. Saul, No.
1:20CV337, 2021 WL 1739013, at *7 (M.D.N.C. May 3, 2021) (collecting cases); Pickett □□□
Kijakazi, No. 1:21cv500, 2022 WL 3908862, at *3-4 (M.D.N.C. Aug. 30, 2022); Baucom v.
Saul, No. 1:18CV819, 2020 WL 978256, at *10 (M.D.N.C. Feb. 28, 2020).
Moreover, in this case the ALJ made these findings in the course of her discussion at
step two of the sequential analysis, supporting her conclusion that Plaintiffs mental
impaitments do not cause “more than a minimal limitation in [her] ability to do basic work
activities” and ate therefore nonsevete. (Tr. at 703.) See 20 C.F.R. § 404.1520a(d)(1)
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(providing that if the degree of limitation in the functional areas is only “none” or “mild,” the
impairment is not severe, unless the evidence otherwise indicates a more than minimal
limitation in the ability to do basic work activities). This analysis differs from the typical
Mascio scenatio, in which the ALJ, having already identified one or more mental impairments
as sevete at step two, then performs a step three evaluation as to whether the degtee of
functional limitation resulting from Plaintiffs mental impairment(s) meets or equals a listed
impaitment. The typical Mascio challenge therefore stems from the AL]J’s failure, or alleged
failure, to include limitations from the claimant’s severe impairments in the RFC.
This distinction is significant. “Basic work activities” are defined as functions such as
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing,
speaking, understanding, carrying out and remembering simple instructions, using judgment,
responding appropriately to co-workers and supervisors, and dealing with changes in a routine
work setting. 20 C.F.R. § 404.1522(b). Here, the AL] found that Plaintiff's mental impairment
was nonsevete, meaning that it resulted in no more than a “minimal limitation in [her] ability
to do basic work activities.” (Tr. at 701, 703.) See Brownlee v. Saul, No. 1:18CV642, 2019 WL
3858652, at *7 (M.D.N.C. Aug. 16, 2019); Kimberly B. C. v. Kijakazi, No. 1:22CV617, 2023
WL 4974033, at *5—7 (M.D.N.C. Aug. 3, 2023).
Finally, the Court notes that in this case, the ALJ did provide additional explanation in
setting the RFC. See also 20 C.F.R. § 404.1523(c) (requiring that ALJs consider cumulative
limitations from both severe and nonsevere impaitments when assessing a claimant’s RFC).
When discussing her rationale for setting the RFC in this case, the ALJ noted Plaintiffs
testimony regarding “symptoms of social avoidance, anhedonia, nightmares and flashbacks to
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traumatic events, and paranoia.” (Tr. at 705.) The ALJ also acknowledged Plaintiffs reports
of “anxiety, PTSD, and difficulty being around people.” (Tr. at 706.) In terms of treatment
for these conditions, the ALJ noted that Plaintiff “said she has been taking anxiety medication
since 2017” and that “she has been trying to find the right therapist[,] but they keep placing
her with young men and she does not feel safe opening up to them.” (Tr. at 706.) However,
the ALJ found that Plaintiffs “statements concerning the intensity, persistence, and limiting
effects of these symptoms are not entirely consistent with the medical evidence and other
evidence in the record.” (Tr. at 706.) Particularly with regard to Plaintiffs mental
impairments, the AL] noted that the evidence “documents no consistent ongoing treatment
since 2021 for any mental impairment.” (Tr. at 709.)° As part of that discussion, the ALJ
also specifically considered the opinions of the State agency psychological consultants,
specifically the opinion of Dr. Grover in June 2020, who found that Plaintiff had moderate
limitations in each of the paragraph B functional areas. As a result of these limitations, she
opined that Plaintiff could perform simple, routine, repetitive tasks in a stable, low pressure
setting with minimal social interaction with coworkers and supervisors. (See Tr. at 709.) The
AL] nevertheless concluded that the treatment record did not support these limitations,
particularly in light of Plaintiffs lack of any treatment for any mental impairment for over two
5 Records from the Center for Emotional Health reflect that Plaintiff was last seen on February 4, 2021, more
than two yeats before her hearing. (Tr. at 1051.) At that appointment, Plaintiff noted her intent to stop taking
mental health medications. It does not appear that Plaintiff sought care for her mental impairments again until
Januaty 9, 2023, when she presented at Kintegra Health for the purpose of establishing care and getting a
referral for therapy. (Ir. at 1113.) However, as noted by the AL], records from Januaty 2023 also indicate that
she declined any anti-anxiety medication and had “normal memory, appropriate mood and affect, and has been
fully oriented.” (Tr. at 702, 1207, 1212.) In addition, the records received through the date of the AL)’s decision
eight months later do not reflect that Plaintiff began therapy or any other treatment during that time. Similarly,
Plaintiffs more recent medical records and self-reports do not document the use of any medications for her
mental conditions. (See Tr. at 1020, 1111.)
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years. (I'r. at 709.) Thus, the ALJ explained why there was no mental limitation in Plaintiffs
RFC, and Plaintiff's Mascio challenge is without basis. See also Shinaberry v. Saul, 952 F.3d
113 (4th Cir. 2020). As such this contention fails to provide a basis for remand.°
IT IS THEREFORE ORDERED that the Commissionet’s decision finding of no
disability is AFFIRMED, that Plaintiffs Dispositive Brief [Doc. #8] is DENIED, that
Defendant’s Dispositive Brief [Doc. #10] is GRANTED, and that this action is DISMISSED
with prejudice.
This, the 28 day of March, 2025.
h gt Peake
nited States Magistrate Judge
° The Court also notes that in the course of Plaintiffs hearing, the ALJ questioned the vocational expert
regarding the impact of mental limitations on Plaintiffs ability to perform the jobs identified at step five of the
sequential analysis. Notably, when presenting mental limitations to the vocational expert, the AL] included
limitations equal, if not greater, than the most stringent opined by the State agency consultants. She identified,
in pertinent part,
[a] hypothetical individual [who] can understand, remember and/or catryout simple or unskilled work
[of] a routine and repetitive nature, can maintain attention and concentration for at least two-hour
periods of time sufficient to carry out that work over the coutse of a normal workday and a normal
workweek. Can adapt to routine and frequent workplace changes at a non-production pace, meaning
no assembly line or conveyor belt type work, and can tolerate occasional interaction with the public
and frequent not constant interaction with coworkers and supervisors, meaning not requiring work
in tandem.
(Ir. at 761.) In response to this hypothetical, the expert identified both light and sedentary occupations such
an individual remained capable of performing. (Tr. at 761-62.) The AL] later adopted these findings at step
ftve of the sequential analysis. (Tr. at 711.) Thus, the record demonstrates both that (1) the ALJ considered
mental limitations but decided not to include them in the RFC based on the analysis set out in the decision,
including the lack of mental health treatment for over two years, and (2) even if those limitations were included
in Plaintiff's RFC, it would not alter the ALJ’s ultimate finding of no disability. Plaintiff fails to suggest if or
how this showing was insufficient ot present any other credible basis for remand.
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