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holding that an RFC limiting the claimant to "no quotas or fast-paced production work with uninvolved oral and written instructions in two-hour segments" adequately accounted for moderate limitations in concentrating, persisting, and maintaining pace
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No. 5:17-CV-00004-D
01-10-2018
Joseph Jerome Simmons, III, Plaintiff, v. Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Joseph Jerome Simmons, III, instituted this action on January 20, 2017, to challenge the denial of his application for social security income. Simmons claims that the Administrative Law Judge ("ALJ") Joseph L. Brinkley erred in (1) failing to find that his intellectual impairments met or equaled the criteria for Listing 12.05C, and (2) failing to fully incorporate his non-exertional limitations into the residual functional capacity ("RFC") determination. Both Simmons and Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 15, 17.
After reviewing the parties' arguments, the court has determined that ALJ Brinkley reached the appropriate decision. Substantial evidence supports his conclusion that Simmons's intellectual deficits failed to satisfy the criteria of Listing 12.05C. Additionally, the RFC determination sufficiently reflects his non-exertional limitations. Therefore, the undersigned magistrate judge recommends that the court deny Simmons's motion, grant Berryhill's motion, and affirm the Commissioner's decision.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
On November 22, 2013, Simmons protectively filed applications for disability benefits and supplemental security income. In both applications, Simmons alleged a disability that began on January 1, 2012. After his claims were denied at the initial level and upon reconsideration, Simmons appeared before ALJ Brinkley for a hearing to determine whether he was entitled to benefits. ALJ Brinkley determined Simmons was not entitled to benefits because he was not disabled. Tr. at 10-21.
ALJ Brinkley found that Simmons had severe impairments: organic mental impairment and degenerative disc disease. Tr. at 12. ALJ Brinkley found that Simmons's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 13.
ALJ Brinkley then determined that Simmons had the RFC to perform a range of light work with additional limitations. Tr. at 15. He is limited to occasional kneeling, bending, crouching, climbing stairs and ramps, and crawling. Id. He cannot climb ladders, ropes, or scaffolds. Id. Simmons must avoid concentrated exposure to work hazards such as dangerous, moving mechanical parts and unprotected heights. Id.
Additionally, Simmons is limited to unskilled occupations and retains the commonsense ability to understand and carry out detailed but uninvolved oral and written instructions in two-hour segments. Id. He also is limited to occupations that would not require completion of a fixed number of production quotas or the performance of fast-paced, assembly work. Id.
ALJ Brinkley concluded that Simmons was incapable of performing his past relevant work as a plumber. Tr. at 19. But ALJ Brinkley determined that, considering Simmons's age, education, work experience, and RFC, there were other jobs that existed in significant numbers in the national economy that Simmons was capable of performing. Tr. at 20. These include: housekeeping cleaner, office helper, and photocopier. Id. Thus, ALJ Brinkley found that Simmons was not disabled. Tr. at 21.
After unsuccessfully seeking review by the Appeals Council, Simmons commenced this action in October 2016. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Simmons withdrew from high school in the ninth or tenth grade and has worked in the past as a plumber. Tr. at 230-31. He has alleged pain in his back, legs, spine, and knee as well as high blood pressure. Tr. at 229.
In February 2014, Dr. Jerome Albert and Robert Radson, M.S., performed a consultative psychological examination. Tr. at 349-52. Testing yielded an IQ score of 49. Tr. at 351. The examiners diagnosed an unspecified neurocognitive disorder and insomnia, as well as possible mild mental retardation and alcohol abuse disorder. Tr. at 352. Dr. Albert and Radson noted that Simmons may not have tried his best in testing. Id.
Dr. Ismael Tamba performed a consultative physical examination the next month. Tr. at 366-69. Simmons claimed that back and knee pain prevented him from working. Tr. at 366-67. Dr. Tamba remarked that Simmons was able to attend to most activities of daily living and did not require assistance. Tr. at 367. Dr. Tamba assessed back pain but he opined that Simmons had no limitations in sitting, standing, walking, lifting, or carrying. Tr. at 368-69. Dr. Tamba also concluded that Simmons had no postural, manipulative, or communicative limitations. Id.
That same month, state agency psychologist Darolyn Hilts, Ph.D., performed a psychological assessment after reviewing Simmons's school records and IQ scores. Tr. at 73-74. Dr. Hilts remarked that the IQ score of 49 from Dr. Albert and Radson raised concerns of "suboptimal effort in testing," as Simmons also had scores ranging from 65 to 85 on other tests. Id. Dr. Hilts they Dr. Hilts opined that Simmons was capable of performing simple, routine, repetitive tasks. Tr. at 73-74.
At this same time, state agency reviewing physician, Dr. Melvin Clayton, remarked that Simmons demonstrated normal functioning upon examination. Tr. at 71. Noting a lipoma and mild degenerative changes in his spine, Dr. Clayton opined that Simmons was capable of medium work with no postural, manipulative, or communicative limitations. Id.
Two months later, another state agency psychological reviewer, Neil Barry, Ph.D., noted the discrepant IQ scores in the record. Tr. at 103-04. Like Dr. Hilts, he opined that Simmons was capable of simple, routine, repetitive tasks. Tr. at 104.
In June 2014, Dr. Jagjit Sandhu, a second state agency physical reviewer, opined that Simmons would be capable of medium work with no additional functional limitations. Tr. at 101.
D. Listing 12.05C
Simmons contends that ALJ Brinkley erred by failing to find that his impairments met the criteria for Listing 12.05C. The Commissioner maintains that ALJ Brinkley properly concluded that Simmons failed to meet the Listing criteria. The court finds that ALJ Brinkley did not err in determining that Simmons failed to satisfy the criteria of Listing 12.05C.
1. Overview of Listing of Impairments
The Listing of Impairments details impairments that are "severe enough to prevent an individual from doing any gainful activity." 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). "The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The Listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just 'substantial gainful activity.'" Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the Listings are designed to weed out only those claimants "whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background").
The claimant has the burden of demonstrating that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: "[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, is insufficient to establish that a claimant satisfies a listing's criteria. Id. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D.N.C. Dec. 10, 2010) ("Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.").
Listing 12.05C was deleted from the Listings as of January 17, 2017, pursuant to the final rule on Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138 (Sept. 26, 2016). However, because 81 Fed. Reg. 66138-01 clearly states that the Social Security Administration does not intend for the court to apply the revised Listings retroactively in evaluating final agency decisions rendered prior to January 17, 2017, the court will analyze this case as if Listing 12.05C were still in effect. See Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138 n.1 (Sept. 26, 2016) ("We expect that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions."). For cases that reverse the Commissioner's final determination and remand for further administrative action after January 17, 2017, the amended rules will be applied for the entire period at issue. Id.
Listing 12.05C is based on three elements that characterize intellectual disorder: significantly subaverage general intellectual functioning; significant deficits in current adaptive functioning; and the disorder manifested before age 22. 20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.00H. In determining intellectual disability, a claimant must first satisfy the diagnostic description of the impairment, and second, a claimant must meet the required severity level. 20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.05. Where, as here, the paragraph C severity criteria are at issue, the Fourth Circuit has described the presence of an intellectual disability as Prong 1 and the requirements of paragraph C regarding IQ level and a significant work-related limitation as Prongs 2 and 3, respectively. Hancock, 667 F.3d at 473.
In this case, the dispute centers on whether the evidence satisfies the first and second factors of Listing 12.05C. Simmons contends that it does, but the Commissioner disagrees. Specifically, the Commissioner contends that the evidence does not support a finding that Simmons has deficits in adaptive functioning and that the ALJ properly rejected the results of an IQ test Simmons contends support his claim. After consideration of the evidence with the record, the court agrees with the Commissioner and determines that Simmons has failed to establish that he satisfies the criteria of Listing 12.05C.
The third and final factor requires the ALJ to find that a claimant has a "significant work-related limitation." Hancock, 667 F.3d at 473. Under Prong 3, the required physical or mental impairment "need not be disabling in and of itself." Branham v. Heckler, 775 F.2d 1271, 1273 (4th Cir. 1985). This requirement is satisfied when the ALJ finds that a claimant has other severe impairments. Luckey v. U.S. Dep't of Health & Human Servs., 890 F.2d 666, 669 (4th Cir. 1989). There appears to be no dispute that Simmons would satisfy Prong 3 given that ALJ Brinkley found that he has severe impairments including an organic mental impairment and degenerative disc disease. Tr. at 12.
3. Deficits in Adaptive Functioning
The diagnostic criteria for an intellectual disability includes two components—deficits in adaptive functioning and an onset before age 22—that must both be satisfied in order for the Listing to apply. Id. at 475. Although the age-related component is generally self-explanatory, the adaptive functioning component requires further discussion.
The American Psychiatric Association states that "adaptive functioning" refers "to how well a person meets standards of personal independence and social responsibility, in comparison to others of similar age and sociocultural background. Adaptive functioning involves adaptive reasoning in three domains: conceptual, social, and practical." Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 37 (5th ed. 2013) ("DSM-V"); Gibbs v. Comm'r, Soc. Sec. Admin., No. 16-16445, 2017 WL 1501082, at *2 (11th Cir. 2017). The Regulations note that evidence of adaptive functioning may come from medical records, standardized tests, third party reports, school records, reports from employers or supervisors, and a claimant's own statements of daily activities. 20 C.F.R. Pt. 404, Subpart P, App. 1, § 12.00H(3)(b).
Whether a claimant's alleged deficits satisfy this prong is a fact-specific inquiry and must be determined on a case-by-case basis. Richardson v. Colvin, No. 8:12-cv-03507, 2014 WL 793069, at *11 (D.S.C. Feb. 25, 2014) ("[W]hether a claimant manifested deficits in adaptive functioning during the developmental period is a fact-specific inquiry with few bright-line rules." (citation omitted)). Thus, although cases interpreting Listing 12.05 provide some guidance, the factors that will satisfy this prong are unique to each case.
Simmons contends that the evidence supports a finding that he has significant adaptive functioning deficits. He testified that he worked slowly and relied on assistance from others to read instructions. Tr. at 16. He withdrew from high school and did not obtain his GED. Tr. at 33-34. He points out that his earnings record shows he worked at the level of substantial gainful activity for only six of the 32 years in his adult life. Tr. at 15. Simmons also states that he relies on others to assist him with daily activities. Tr. at 53, 261-62. He argues that the simple work he could perform is not inconsistent with deficits in adaptive functioning.
Despite his allegations, Simmons has not established that he has deficits in adaptive functioning sufficiently to satisfy this prong of Listing 12.05. ALJ Brinkley's decision concluded that Simmons's alleged mental impairments did not result in deficits in adaptive functioning before the age of 22. Tr. at 15. ALJ Brinkley noted that Simmons was able to obtain his driver's license and worked as a backhoe operator. Id. While work history does not conclusively establish adaptive functioning, it is a relevant factor in determining a claimant's abilities or limitations. Luckey v. U.S. Dep't of Health & Human Servs., 890 F.2d 666, 669 (4th Cir. 1989).
ALJ Brinkley also observed that Simmons was independent in activities of daily living, including preparing simple meals and personal care. Tr. at 14, 15, 17, 18. Simmons reported getting along well with his girlfriend and her son, with whom he lived. Tr. at 15. The record also reflected that he was a good historian of his family and medical histories, was well-groomed, performed household chores and shopped in stores. Id.
However, one provider remarked that Simmons was unkempt and odorous. Tr. at 14. Additionally, Simmons contends he was a poor historian. D.E. 16 at 15.
ALJ Brinkley also observed that Simmons had worked at the substantial gainful level for several years and was able to support himself. Simmons testified that he was unable to work because of physical limitations. Dr. Tamba's records similarly reflect Simmons's assertion that he quit his last job due to recurrent back pain. Tr. at 367. Simmons also related to Dr. Tamba that he was independent in most activities of daily living and did not require assistance with other activities. Id.
ALJ Brinkley's finding that Simmons had not shown a sufficient lack of adaptive functioning is supported by the following substantial evidence: he held jobs for several years despite his alleged mental deficits; his past work was classified as semi-skilled; he stopped working at his last job because of physical, not mental, issues; he was independent in personal care; he was able to obtain a driver's license; he performs some household chores, such as cooking and cleaning; he occasionally goes shopping; and he got along with his girlfriend and her son with whom he lived. Thus, although there may be some evidence weigh in in favor of finding adaptive functioning deficits, there is also evidence supporting ALJ Brinkley's conclusion that Simmons did not establish significant deficits in adaptive functioning prior to age 22.
In sum, Simmons invites the court to review the evidence to find that he has the necessary deficits in adaptive functioning required for Listing 12.05. But the court will not revisit an ALJ's decision when it is supported by substantial evidence. See Hancock, 667 F.3d at 476.
Because Simmons cannot establish that ALJ Brinkley erred in finding that he failed to demonstrate the required deficits in adaptive functioning, he is unable to satisfy the criteria of Listing 12.05. As his argument on this issue lacks merit, the court should deny his motion.
4. Valid IQ Score
Even if Simmons established deficits in adaptive functioning before the age of 22, he would still be required to show the requisite IQ score to qualify as disabled under Listing 12.05C Prong 2 of the 12.05C analysis requires a valid IQ score between 60 and 70 in the verbal, performance, or full-scale area. Hancock, 667 F.3d at 473. Simmons presented evidence of full-scale IQ scores of 49, obtained by Dr. Albert and Radson in February 2014. However, ALJ Brinkley afforded little weight to this evaluation. Tr. at 18. He observed that this IQ score was inconsistent with other data, including objective evidence, treatment notes, and school records. Tr. at 18. ALJ Brinkley remarked that the validity of this IQ score could not be determined. Id.
In this Circuit, "an ALJ has the discretion to assess the validity of an IQ test result and is not required to accept it even if it is the only such result in the record." Hancock, 667 F.3d at 474. ALJ Brinkley expressly discounted the IQ test results by Dr. Albert and Radson. Tr. at 15, 18. ALJ Brinkley identified several reasons to question this IQ score. Tr. at 18. He observed that the evaluators could not conclude that Simmons had put forth his best effort and that the score was inconsistent with other evidence. Tr. at 15, 18.
ALJ Brinkley's consideration of the IQ scores is supported by substantial evidence. He observed that Simmons withdrew from high school in the ninth or tenth grade and did not obtain his GED. Tr. at 16, 17. However, Simmons was able to obtain his driver's license and was generally independent in activities of daily living. Tr. at 14, 16. Although one school record showed an IQ score of 66, subsequent IQ testing yielded scores between 79 and 96. Tr. at 14.
Additionally, Simmons was able to work at a substantial gainful level for several years. He reported that he had stopped working because of physical, not mental, impairments. Tr. at 350, 366-67. The Vocational Examiner noted that Simmons's previous position had a specific vocational preparation ("SVP") of 7. Tr. at 19, 55.
"Specific Vocational Preparation" is the amount of time required for a typical claimant to [l]earn the techniques, [a]cquire the information, and [d]evelop the facility needed for average performance in a job." POMS DI 25001.001 Medical and Vocational Quick Reference Guide. The SVP rating is used as a guideline for determining how long it would take a claimant to achieve average performance in a job. Id. An SVP rating of 7 reflects knowledge and skills that a claimant can learn in two to four years. Id. --------
Dr. Hilts noted that there was no reasonable explanation for the discrepancy in IQ scores, a remark with which Dr. Barry agreed. Tr. at 64, 103-04. Drs. Hilts, Barry, and Tamba all commented the invalid testing was possible as to the IQ score of 49. Tr. at 74, 103-04, 352.
Given this evidence, ALJ Brinkley decision to discount the IQ scores that testing by Dr. Albert and Radson yielded was well within his discretion and supported by specific reasoning. In such circumstances, the court cannot conclude that ALJ Brinkley erred in disregarding this IQ score. See Johnson, 434 F.3d at 653 (reviewing court should not undertake to reweigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the ALJ). Accordingly, Simmons has failed to establish the requirements of this factor of Listing 12.05C.
Because the court finds ALJ Brinkley's determination is supported by substantial evidence, Simmons has not demonstrated that he meets the requirements of Listing 12.05. Therefore, Simmons's argument that he was entitled to a finding of disability based upon Listing 12.05C lacks merit.
E. Residual Functional Capacity
Simmons also contends that ALJ Brinkley incorrectly concluded that he had the RFC to perform a reduced range of light work. He argues that the RFC fails to address the moderate limitations in concentration, persistence, or pace found at step three. The Commissioner asserts that substantial evidence supports ALJ Brinkley's RFC determination. The undersigned finds that the RFC finding sufficiently address Simmons's limitations in concentration, persistence, or pace.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the ALJ's responsibility. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; SSR 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not "severe," when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments without regard to whether any impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) ("[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.").
In Mascio v. Colvin, the Court found that a limitation to simple, routine tasks or unskilled work may fail to account for a moderate limitation in concentration, persistence, or pace. 780 F.3d 632, 638 (4th Cir. 2015). The Fourth Circuit "agree[d] with other circuits that an ALJ does not account for a claimant's limitation in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work" because "the ability to perform simple tasks differs from the ability to stay on task." Id. (quotation omitted). It emphasized that "[o]nly the latter limitation would account for a claimant's limitation in concentration, persistence, or pace." Id. Because the ALJ failed to explain why the plaintiff's "moderate limitation in concentration, persistence, or pace at step three does not translate into a limitation in [plaintiff's] residual functional capacity," the Fourth Circuit remanded the Mascio case. Id. Although the ALJ's findings at step three may not require any additional limitations for concentration, persistence, or pace in the RFC, the ALJ must at least provide a sufficient explanation in the decision to allow the court to conduct meaningful review of the RFC determination. See Scruggs v. Colvin, No. 3:14-cv-466-MOC, 2015 WL 2250890, at *5 (W.D.N.C. May 13, 2015); Reinhardt v. Colvin, No. 3:14-cv-00488-MOC, 2015 WL 1756480, at *3 (W.D.N.C. Apr. 17, 2015).
ALJ Brinkley found, at step three, that Simmons had moderate limitations in concentration, persistence, or pace. Tr. at 14. The RFC finding limits Simmons to unskilled occupations. Tr. at 15. It also determined that he could understand and carry out detailed but uninvolved oral and written instructions in two-hour segments. Id. He is further limited to occupations that do not require production quotas or fast-paced, assembly work. Id.
Standing alone, a limitation to unskilled work would not comply with Mascio because it does not sufficiently represent a moderate limitation in concentration, persistence, or pace. Here, however, there are additional limitations for work that involves no quotas or fast-paced production work with uninvolved oral and written instructions in two-hour segments. Tr. at 15. These additional restrictions address Simmons's ability to stay on task. See Farrington v. Berryhill, No. 1:15-cv-846, 2017 WL 807180, at *5 (M.D.N.C. Mar. 1, 2017) (RFC limiting claimant to simple, routine, repetitive work avoiding production, quota, or fast-paced jobs complied with Mascio); Burge v. Colvin, No. 7:15-cv-249-D, 2016 WL 6902118, at *9 (E.D.N.C. Oct. 24, 2016) (RFC for simple, routine, repetitive tasks with only occasional and gradual change and no fast-paced production satisfied directive of Mascio), adopted by, 2016 WL 6905936 (E.D.N.C. Nov. 23, 2016); Belton v. Colvin, No. 14-CV-777, 2015 WL 5023087, at *8-9 (M.D.N.C. Aug. 24, 2015), adopted by, 2015 WL 5712732 (M.D.N.C. Sept. 29, 2015) (RFC limitation to simple, routine, and repetitive tasks, avoidance of production work or similar fast-paced jobs with deadlines and quotas addressed claimant's limitations in concentration, persistence, or pace); Bryan-Tharpe v. Colvin, No. 1:15-cv-00272, 2016 WL 4079532, at *7 (M.D.N.C. July 29, 2016), adopted by, 2017 WL 980324 (M.D.N.C. Mar. 14, 2017) ("[T]he weight of authority in the circuits that rendered the rulings undergirding the Fourth Circuit's holding in Mascio supports the view that the non-production restriction adopted in this case sufficiently accounts for Plaintiff's moderate limitation in [concentration, persistence, or pace.]"); Hill v. Colvin, No. DKC 15-1027, 2016 WL 3181762, at *8 (D. Md. June 8, 2016) (finding limitation to "no production rate or piece work" accounted for the plaintiff's moderate difficulties in concentration, persistence, or pace); O'Brien v. Colvin, No. 1:15-cv-536, 2016 WL 2755459, at *6 (M.D.N.C. May 11, 2016) (remand under Mascio not warranted where RFC found claimant could maintain attention and concentration for two hour segments, as this restriction addressed his ability to stay on task), adopted by, 2016 WL 5660296 (M.D.N.C. Sept. 30, 2016).
The RFC reflected Simmons's difficulties in mental functioning by restricting him to unskilled work entailing detailed but uninvolved oral and written instructions in two-hour segments and further limiting him to occupations that would not require completion of a fixed number of production quotas or the performance of fast-paced, assembly work. Tr. at 15. As noted above, courts have found these limitations to be sufficient to reflect a moderate limitation in concentration, persistence, or pace found at step three and are consistent with Mascio. Accordingly, Mascio does not require remand in this instance.
III. Conclusion
For the forgoing reasons, the undersigned recommends that the court deny Simmons's Motion for Judgment on the Pleadings (D.E. 15), grant Berryhill's Motion for Judgment on the Pleadings (D.E. 17), and affirm the Commissioner's decision.
The court directs that the Clerk of Court serve a copy of this Memorandum and Recommendation on each of the parties or, if represented, their counsel. Each party shall have until 14 days after service of the Memorandum and Recommendation on the party 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.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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 review. In addition, the party's failure to file written objections by the foregoing deadline will 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 Owen v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985). Dated: January 10, 2018
/s/_________
Robert T. Numbers, II
United States Magistrate Judge