Opinion
No. 2:17-CV-43-D
01-02-2019
JODY LEE BRICKHOUSE, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
This matter is before the court on the parties' cross motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Jody Lee Brickhouse ("Plaintiff") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his applications for disability insurance benefits ("DIB"), and supplemental security income ("SSI"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, the undersigned recommends that Plaintiff's Motion for Judgment on the Pleadings [DE #16] be denied, Defendant's Motion for Judgment on the Pleadings be granted [DE #19], and the Commissioner's decision be upheld.
STATEMENT OF THE CASE
Plaintiff applied for a period of disability, DIB, and SSI on November 11, 2013, with an alleged onset date of September 1, 2012. (R. 20, 237-248.) These applications were denied initially and upon reconsideration, and a request for hearing was filed. (R. 153-64, 168-75, 176-85.) A hearing was held on August 23, 2016, before Administrative Law Judge ("ALJ") James E. Williams, who issued an unfavorable ruling on September 26, 2016. (R. 20-38.) The Appeals Council denied Plaintiff's request for review on July 19, 2017. (R. 1-5.) At that time, the decision of the ALJ became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Plaintiff seeks judicial review of the final administrative decision pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
DISCUSSION
I. Standard of Review
The scope of judicial review of a final agency decision denying disability benefits is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; [i]t consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)) (citations omitted) (alteration in original). "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 [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig, 76 F.3d at 589) (first and second alterations in original). Rather, in conducting the "substantial evidence" inquiry, the court determines whether the Commissioner has considered all relevant evidence and sufficiently explained the weight accorded to the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
II. Disability Determination
In making a disability determination, the Commissioner utilizes a five-step evaluation process. The Commissioner asks, sequentially, whether the claimant: (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, App. 1; (4) can perform the requirements of past work; and, if not, (5) based on the claimant's age, work experience, and residual functional capacity can adjust to other work that exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th. Cir. 1995). At the fifth step, the burden shifts to the Commissioner to show that other work exists in the national economy that the claimant can perform. Id. "The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits." Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015).
III. ALJ's Findings
The ALJ found that Plaintiff met the requirements for insured status under the Social Security Act through December 31, 2016. (R. 23.) Applying the five-step, sequential evaluation process, the ALJ found Plaintiff "not disabled" as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful employment since September 1, 2012, the alleged onset date. (R. 23.) Next, the ALJ determined Plaintiff had the following severe impairments: "diabetes mellitus, adhesive capsulitis of the right shoulder, status post arthroscopic capsular release and debridement of adhesions and subacromial bursectomy and manipulation under anesthesia, hyperlipidemia, essential hypertension, and an affective disorder." (Id.) The ALJ found Plaintiff's sinusitis and otitis media, visual impairment, and kidney stone to be non-severe impairments. (R. 23-24.) The ALJ also found Plaintiff's carpal tunnel syndrome symptoms in his hands attributable to diabetes, and not carpal tunnel syndrome. (R. 24.) The ALJ also found that Plaintiff's back pain resolved after a short duration and did not meet the duration requirements of the Act. (Id.)
At step three, the ALJ concluded that Plaintiff's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 24.) The ALJ analyzed Listings 1.02 (major dysfunction of a joint), 4.00H (cardiovascular impairments), 9.00 (endocrine disorders), 12.00 (mental disorders) and 12.04 (depressive, bipolar, and related disorders). (R. 25.)
Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and found that Plaintiff had
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except he is limited to occasional reaching, both overhead and in all other directions, and frequent handling and fingering with the right upper extremity, can tolerate no exposure to weather or extreme heat, and is limited to performing simple, routine tasks.(R. 27.) In making this assessment, the ALJ found Plaintiff's statements about the severity of his symptoms "not consistent with his subjective reports to his treatment providers, the mostly mild findings on examination, and the evidence of the claimant's response to treatment." (R. 36.) At step four, the ALJ concluded Plaintiff was not able to perform his past relevant work as a laborer or electrician helper, customer service worker or counter clerk, pest control technician, sales clerk, delivery truck driver, dispatcher, and warehouse worker. (R. 36.) At step five, the ALJ concluded, based on Plaintiff's age, education, work experience, and RFC, that there are jobs that exist in significant numbers in the national economy that Plaintiff could perform. (R. 37.) Specifically, the ALJ found Plaintiff capable of performing work as a cashier, marker, and photocopy machine operator. (R. 37.)
IV. Plaintiff's Arguments
Plaintiff contends the ALJ erred by:
(A) improperly discounting the weight assigned to the opinion of a nurse practitioner (Pl.'s Mem. Supp. Mot. J. Pldgs. [DE #16] at 20-21);The Commissioner has addressed each argument and contends that the ALJ's decision correctly applied relevant law and regulations and is supported by substantial evidence. The undersigned agrees with the Commissioner, and therefore, recommends that the ALJ's decision be upheld.
(B) improperly discounting the weight assigned to Plaintiff's statements regarding the severity of his symptoms and determining Plaintiff's RFC to be light work with specified modifications (id. at 21-24); and
(C) failing to incorporate all of Plaintiff's alleged physical and mental limitations in the hypothetical questions posed to the Vocational Expert ("VE") and determining Plaintiff was not disabled (id. at 25-27).
A. Medical Statements
An ALJ "is required to evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner." SSR 96-5p, 1996 WL 374183, at *3. As part of this consideration and explanation, an ALJ must evaluate all medical opinions in the record. 20 C.F.R §§ 404.1527(b)-(c), 416.927(b)-(c); SSR 96-8p, 1996 WL 374184, at *7. Medical opinions are statements from physicians or other "acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1).
This agency ruling was rescinded March 27, 2017, for claims filed on or after that date. 82 Fed. Reg. 15263 (Mar. 27, 2017); see also 20 C.F.R. §§ 404.1527, 416.927.
All references to 20 C.F.R. §§ 404.1527 and 416.927 are to the regulations in effect at the time Plaintiff filed his claim, which preceded the effective date of updated regulations on March 27, 2017. See Brown v. Berryhill, 873 F.3d 251, 255 (4th Cir. 2017).
Acceptable medical sources—such as licensed physicians—are well defined in the regulations, and opinions of those sources are considered more probative than opinions of "other" sources—such as nurse practitioners. See 20 C.F.R. §§ 404.1513, 416.913. However, "an ALJ may, under the regulations, assign no or little weight to a medical opinion, even one from a treating source . . . if he sufficiently explains his rationale and if the record supports his findings." Grant v. Astrue, 574 F. Supp. 2d 559, 564 (E.D.N.C. Aug. 29, 2008) (quoting Wireman v. Barnhart, No. 2:05CV00046, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006)).
"With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not 'acceptable medical sources,' such as nurse practitioners, physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists." SSR 06- 03p, 2006 WL 2329939, at *3 (Aug. 9, 2009). Information from these "other medical sources" cannot be used to establish the existence of a medically determinable impairment, but it should be considered in assessing the severity of an impairment or its functional effects. Id. ("Opinions from these medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file."). A summary statement from a medical source that a claimant is "disabled" or is "unable to work" is not considered a medical opinion, but rather a legal conclusion, which is an opinion on an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d). Such opinions are entitled to no special significance. 20 C.F.R. §§ 404.1527.(d)(3), 416.927(d)(3). A medical source's legal conclusion must be evaluated "in light of the entire record to determine the extent to which the legal conclusion is supported." Morgan v. Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005).
In determining the weight to be accorded "other medical sources," an ALJ should consider the following factors: (1) the length of time the source has known the individual and the frequency of their contact; (2) the consistency of the source's opinion with the other evidence; (3) the degree to which the source provides relevant evidence to support her opinion; (4) how well the source explains her opinion; (5) whether the source has an area of specialty or expertise related to the claimant's impairments; and (6) any other factors tending to support or refute the source's opinion. SSR 06-03p, 2006 WL 2329939, at *4-5. Although "accepted medical sources" are considered the most qualified health care professionals, "an opinion from a medical source who is not an 'acceptable medical source'" may, in certain cases, "outweigh the opinion of an 'acceptable medical source,' including the medical opinion of a treating source." Id. at *5. Therefore, it is important that the ALJ not only consider these factors, but also explain "the weight given to opinions from these 'other sources' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case." Id. at *6.
In the present case, Plaintiff contends the ALJ did not properly evaluate the opinion of Family Nurse Practitioner Amanda Joyner Williams ("Ms. Williams"). (Pl.'s Mem. Supp. Mot. J. Pldgs. at 20-21.) Plaintiff presented to Ms. Williams in July 2016 with general illness and back pain and received lab testing for his diabetes mellitus type I and essential hypertension. (R. 380-82, 385-92.) In a letter dated August 11, 2016, and addressed "To whom it may concern," Ms. Williams stated that Plaintiff "has been deemed unable to work due to chronic medical conditions managed by myself, as his primary care provider. If you should need any further information regarding this matter, please feel free to contact my office." (R. 405.)
The Commissioner argues the ALJ properly credited Ms. Williams' opinion with "little weight," explaining his decision as follows:
Although Ms. Williams is a treating source, she is not an acceptable medical source, and it does not appear she has a long-term treating relationship with the claimant. Her opinion that the claimant was unable to work is on an issue reserved to the Commissioner and is therefore not entitled to any special significance (SSR 96-5p). More importantly, her opinion is vague and conclusory, cites no evidence in
support, and contains no explanation. Further, it specifies no functional limitations and gives no indication as to how long Ms. Williams believed the claimant would be unable to work. Additionally, it is inconsistent with the essentially benign examination less than a month earlier (Exhibit 9F/1-2). Although that examination noted some reports of recent symptoms, and laboratory findings reflected poorly controlled diabetes and hypertension, the examination report fails to reflect either subjective reports or objective findings that would support an inability to work.(R. 34-35.)
As the ALJ notes, Ms. Williams' statement does not cite to any objective findings and specifies no functional limitations. (Id.) Although opinions of nurse practitioners may show the severity of a plaintiff's impairments and how it affects a plaintiff's ability to work, the ALJ correctly found Ms. Williams' opinion to be vague and conclusory, giving no explanation as to Plaintiff's inability to work. See 20 C.F.R. §§ 404.1527(d), 416.927(d). It appears that Plaintiff saw other nurse practitioners and doctors in his visits to the Outer Banks Hospital, but saw Ms. Williams on only one occasion—July 26, 2016. (R. 371-404.) During the visit, Ms. Williams noted that Plaintiff's diabetes and hypertension were not controlled. (R. 380.) However, Ms. Williams had not evaluated Plaintiff over a long period of time and did not provide any explanation for her statement that Plaintiff "has been deemed unable to work due to chronic medical conditions." Nor was Ms. Williams' opinion signed by a supervising physician, which could evolve a non-acceptable medical source's opinion into an acceptable medical source's opinion if adopted by a treating physician. See Argeris v. Colvin, 195 F. Supp. 3d 812, 815 (E.D.N.C. 2016). Additionally, as the Commissioner points out, the determination of whether Plaintiff is unable to work is an issue reserved to the Commissioner under 20 C.F.R. §§ 404.1527(d) and 416.927(d). Accordingly, the ALJ did not err in assigning Ms. Williams' statement "little weight."
B. RFC Assessment and Plaintiff's Symptoms
Second, Plaintiff contends that the ALJ's finding that Plaintiff can perform modified light work is not supported because his RFC is less than sedentary. (R. 24.) Specifically, Plaintiff argues that the ALJ's RFC assessment is not supported by substantial evidence because (1) he cannot stand and walk for six hours in an eight-hour workday; and (2) the RFC does not account for Plaintiff's moderate difficulties in concentration, persistence, or pace. (R. 21-24.) The court finds that the ALJ applied the correct legal standard in assessing Plaintiff's RFC and that the ALJ's decision in this regard is supported by substantial evidence.
The RFC is an administrative assessment of "an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" despite impairments and related symptoms. SSR 96-8p, 1996 WL 374184, at *1; see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In determining the RFC, the ALJ considers an individual's ability to meet the physical, mental, sensory, and other requirements of work. 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(4). It is based upon all relevant evidence and may include the claimant's own description of limitations from alleged symptoms. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); SSR 96-8p, 1996 WL 374184, at *5;. The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." SSR 96-8p, 1996 WL 374184, at *7. The RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (quoting Mascio, 780 F.3d at 636). In other words, the ALJ must "build an accurate and logical bridge from the evidence to his conclusion." Id. (quoting Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)). If necessary, an ALJ must "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p, 1996 WL 374184, at *7.
At step four of the sequential disability analysis, an ALJ must undertake a two-step analysis to determine whether a claimant's subjective complaints of pain are in accord with objective medical evidence. Craig, 76 F.3d at 593-96; 20 C.F.R. §§ 404.1529(a)-(c), 416.929(a)-(c); SSR 16-3p, 2016 WL 1119029, at *2-3 (Mar. 16, 2016). First, the ALJ must determine whether the claimant has medically documented impairments that could cause his alleged symptoms. Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006); SSR 16-3p, 2016 WL 1119029, at *3. If the ALJ determines the claimant has medically determinable impairments that could reasonably be expected to cause the alleged symptoms, the ALJ must then evaluate the extent to which the claimant's statements concerning the intensity and persistence of his symptoms are supported by the objective medical record. Hines, 453 F.3d at 564-65; SSR 16-3p, 2016 WL 1119029, at *4.
1. Light Exertional Work
Plaintiff argues that the ALJ erred in finding that Plaintiff is physically capable of performing light work. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 21-24.) The Commissioner argues that the ALJ's RFC assessment is supported by substantial evidence and that the ALJ thoroughly explained his reasons for the RFC assigned. (Def.'s Mem. Supp. Mot. J. Pldgs. at 8-13.)
The ALJ carefully considered the entire record and discussed the existence and consequences of Plaintiff's physical limitations, finding as follows:
[T]he overall record supports a finding that the claimant is able to sit six hours in an eight-hour workday, stand and/or walk six hours in an eight-hour workday, lift, carry, push, and/or pull 20 pounds occasionally and 10 pounds frequently, and that he is limited to occasional reaching and frequent handling and fingering with the right upper extremity, and can tolerate no exposure to weather or extreme heat.(R. 29.) The ALJ cited substantial evidence in support of his RFC, including treatment notes and medical opinion evidence. (R. 29-36.) The ALJ noted Plaintiff's "long history of treatment for insulin-dependent diabetes, as well as diagnoses of hypertension and hyperlipidemia." (R. 29.) Plaintiff's 2013-14 visits to Community Care Clinic of Dare documented Plaintiff's evaluation and management of his diabetes. On April 22, 2014, Plaintiff's treating nurse practitioner provided a statement that he could return to work without any restriction. (R. 348.)
The ALJ considered Plaintiff's testimony and found that Plaintiff has mild restriction in his activities of daily living. (R. 25.) Plaintiff testified he could cook, clean, sweep, attend to his personal care on his own, and enjoyed fishing and playing cards with his children. (R. 72-73.) Plaintiff stated that he was unable to vacuum and was limited in his ability to do yard work due to fatigue. (R. 73.) He could go to the grocery store, although he had to have his children move the groceries into the house. (Id.) In a typical day, Plaintiff said he gets his children ready for school, sits and watches television with his mother, does a little housework, eats lunch, and spends time with his children, playing cards or watching his son play video games. (R. 66.)
The ALJ also carefully considered the medical evidence. Although the ALJ found that Plaintiff's diabetes, hypertension, and hyperlipidemia were well documented and not "entirely controlled throughout the period at issue," he determined that neither Plaintiff's subjective reports to his treatment providers nor the provider's findings on examination support any limitation to Plaintiff's ability to sit six hours in an eight-hour workday or to stand and/or walk six hours in an eight-hour workday. (R. 30.) The ALJ points out that Plaintiff reported symptoms of neuropathy in his hands and feet to his provider in 2013 but had not reported such symptoms since then. (Id.) The ALJ also found that Plaintiff "only rarely reported symptoms of fatigue or malaise." (Id.) Although Plaintiff did not generally report difficulty tolerating weather or extreme heat to his treatment providers, the ALJ accommodated Plaintiff's "testimony as to those difficulties by precluding him from any exposure to weather or extreme heat." (R. 30.)
The ALJ concluded that Plaintiff's allegations of his symptoms were not "fully consistent with the overall record evidence." (R.32.) The ALJ considered Plaintiff's testimony to be "significantly out of proportion to and inconsistent with both his subjective complaints to and the clinical findings of treating and examining sources." (R. 32.) Plaintiff did not report shoulder pain until early 2015 and underwent a diagnostic arthroscopy, arthroscopic capsular release and debridement of adhesions and subacromial bursectomy and manipulation under anesthesia in April 2016. (R. 408-09.) In the follow up appointment twelve days later, he was healing well with a better range of motion and less pain than prior to the surgery. (R. 406.) The ALJ concluded that the surgery was "generally effective in reducing the claimant's symptoms." (R. 31.) However, the ALJ did note Plaintiff's ongoing reports of symptoms in his right shoulder and restricted him to "lifting, carrying, pushing and/or pulling 20 pounds occasionally and 10 pounds frequently" and "occasional reaching and frequent handling and fingering with the right upper extremity." (R. 31.) The ALJ also noted that although Plaintiff "testified to significant difficulty in standing, walking, and grasping and holding objects due to diabetic neuropathy, treatment records since 2014 have not reflected significant subjective reports or objective findings consistent with such difficulties." (R. 32.) For the reasons discussed above, the ALJ adequately explained why he did not find Plaintiff's statements fully credible in determining Plaintiff's RFC assessment. A review of the medical evidence of record supports these findings, and Plaintiff has not identified any evidence in the record that refutes the ALJ's findings or suggests that the ALJ overlooked evidence contrary to his findings.
2. Mental Limitations
Plaintiff next argues that the ALJ failed to adequately account for Plaintiff's moderate difficulties in concentration, persistence, or pace in the RFC analysis. The functional area of concentration, persistence, or pace refers to "the ability to sustain focused attention and concentration sufficiently long to permit the timely and appropriate completion of tasks commonly found in work settings." 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(C)(3).
Mascio and SSR 96-8p require an explanation as to why a particular finding regarding Plaintiff's functional abilities with respect to concentration, persistence, or pace translates or does not translate into an RFC restriction. The ALJ must "build an accurate and logical bridge from the evidence to his conclusion." Mascio, 826 F.3d at 189. "Pursuant to Mascio, once an ALJ has made a step three finding that a claimant suffers from moderate difficulties in concentration, persistence, or pace, the ALJ must either include a corresponding limitation in her RFC assessment, or explain why no such limitation is necessary." Collins v. Berryhill, No. 1:17CV224, 2018 WL 278667, at *3 (M.D.N.C. Jan. 3, 2018), report and recommendation adopted, No. 1:17-CV-224, 2018 WL 1596428 (M.D.N.C. Jan. 25, 2018) (quoting Talmo v. Comm'r Soc. Sec., No. ELH-2214, 2015 WL 2395108, at *3 (D. Md. May 19, 2015)).
Here, the ALJ built "an accurate and logical bridge" between the evidence and his RFC findings regarding Plaintiff's concentration, persistence, or pace limitation. The ALJ found only mild restriction in Plaintiff's activities of daily living, mild difficulties in social functioning, and moderate difficulties with concentration, persistence, or pace. (R. 25.) The ALJ discussed that although Plaintiff "has reported some difficulty with focus and concentration due to mental health issues and side effects of medication, the record does not show that those difficulties have been of a severity that would preclude him from performing simple, routine tasks." (R. 32.) In assessing Plaintiff's RFC, the ALJ accorded significant weight to the February 2014 opinion of Dr. Farmer, a state agency psychological consultant, in which it was reported that Plaintiff "was able to count serial 3s accurately but could not remember three out of three unrelated items after five minutes." (R. 31.) However, Dr. Farmer further opined that Plaintiff's "abilities to sustain attention to perform simple repetitive tasks and to tolerate the stress and pressures associated with day-to-day work activity were adequate." (R. 33.)
The ALJ rejected Plaintiff's reports of greater difficulty with focus and concentration, including any side effects of his medications, stating:
Although the claimant reported problems with side effects of pain medication, the record does not reflect reports of such side effects to his treatment providers. Further, the record does not show that the claimant's prescription for narcotic pain medication was intended for long-term use, rather than for short-term relief following surgery (Exhibit 1 1F/1-2). Nevertheless, the undersigned finds that the limitation to performing only simple, routine tasks adequately accommodates the claimant's alleged side effects from those medication[s].(R. 32.) The ALJ further noted that Dr. Farmer assigned Plaintiff a Global Assessment of Functioning (GAF) score of 65 in February 2014. (R. 32-34.) Although he accorded limited weight to the GAF score due to the "low utility of such measures of functioning," the ALJ noted that Plaintiff's score of 65 was "generally consistent with the overall record evidence" and reflective of "an ability to perform simple, routine tasks." (R. 34.)
The ALJ noted that Plaintiff reported feeling tired and stressed in July 2016 but no psychological difficulties were noted and no mental health treatment was recommended or provided. (R. 31-32.) Although prescribed Trazodone to aid with insominia, a treatment note in June 2015 indicates that Plaintiff was sleeping well without Trazodone once stressors at home lessened. (R. 26, 31, 373.)
The ALJ properly explained his assessment of Plaintiff's limitations. The ALJ's findings are supported by the evidence, and Plaintiff has not cited any evidence of functional limitations not considered by the ALJ.
C. VE Testimony
Plaintiff's final argument is that the ALJ did not accurately set forth all of Plaintiff's physical and mental limitations in the hypothetical questions posed to the VE. (Pl.'s Mem. Supp. Mot. J. Pldgs. at 25-26.) The Commissioner argues that the ALJ did not err by posing several hypothetical questions to the VE about someone with Plaintiff's past relevant work experience and various exertional and nonexertional work limitations. (Def.'s Mem. Supp. Mot. J. Pldgs. at 16.) The undersigned agrees with the Commissioner.
While a claimant has the burden at steps one through four, it is the Commissioner's burden at step five to show the availability of work the claimant is capable of performing. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). "The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert to testify." Aistrop v. Barnhart, 36 F. App'x 145, 146 (4th Cir. 2002). The regulations permit the use of testimony from a VE to determine whether Plaintiff's "work skills can be used in other work and the specific occupations in which they can be used." 20 C.F.R. §§ 404.1566(e), 416.966(e). In order for a VE's testimony to be relevant, an ALJ's hypothetical question must represent all of a claimant's substantial impairments. Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).
The ALJ's hypothetical questions to the VE set forth the limitations he determined in the RFC. The ALJ asked the VE if jobs existed for a hypothetical person with Plaintiff's age, education, and work experience, where the claimant is "limited to reaching overhead and all other directions with the right upper extremity on a frequent basis. Handling and fingering with the right upper extremity on a frequent basis. The individual should have no exposure to weather or extreme heat. And would be limited to performing simple, routine tasks." (R. 78.) The VE identified three positions—cashier II, marker, and cleaner housekeeping—that could accommodate these restrictions for someone with Plaintiff's vocational profile. (R. 79.) The ALJ then modified the hypothetical to the VE by reducing the reaching of the right upper extremity. The VE stated that the cashier and marker jobs would still apply, but the cleaner housekeeping position would be precluded. (R. 79-80.) The VE stated that a photocopying machine operator could be interposed for the cleaner housekeeping with this limitation. (R. 80.) If the hypothetical were further limited to occasional handling and fingering along with occasional reaching using the right upper extremity, the VE stated that only the marker position would be precluded. (R. 81.) The ALJ found that the VE provided a reasonable explanation for her opinion as to matters outside the scope of the D.O.T. and the S.C.O. concerning the distinction between use of the right and left upper extremities and reaching overhead as opposed to in all other directions based on the VE's education, training and experience in the field. (R. 27.)
Dictionary of Occupational Titles, (Rev. 4th ed. 1991).
Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles. --------
Plaintiff contends the hypothetical questions were erroneous because they omitted limitations reflecting that he would be absent from or need to leave work early two or more times per month and that he would have difficulty maintaining attention and concentration. When asked an additional hypothetical, which included a limitation for two or more absences per month, the VE testified that such absences would preclude competitive employment. (R. 81.)
The Commissioner correctly points out that the additional limitations Plaintiff advances were properly omitted from the RFC determination as well as the hypothetical questions to the VE. The ALJ discussed his findings of inconsistencies between Plaintiff's testimony and the record, and his RFC determination is supported by substantial evidence of record. (R. 37-38.) Because the hypothetical questions to the VE properly represented all of Plaintiff's well-established limitations, the ALJ was entitled to rely on the VE's testimony as relevant and reliable. Consequently, Plaintiff's argument in this regard should be rejected.
CONCLUSION
For the reasons stated above, it is RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings [DE #16] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE #19] be GRANTED, and the Commissioner's decision be upheld.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 17, 2019, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b) (E.D.N.C. Jan. 2019).
A party that does not file written objections to the Memorandum and Recommendation by the foregoing deadline, will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, a party's failure to file written objections by the foregoing deadline may bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).
This 2nd day of January 2019.
/s/_________
KIMBERLY A. SWANK
United States Magistrate Judge