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Carr v. Berryhill

United States District Court, W.D. Virginia, Lynchburg Division

September 18, 2017

John J. Carr, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the parties' cross-motions for summary judgment (dkts. 14 and 16), the Report and Recommendation of United States Magistrate Judge Robert S. Ballou (dkt. 21, hereinafter “R&R”), and Plaintiff's Objections to the R&R (dkt. 22, hereinafter “Objections”). Pursuant to Standing Order 2011-17 and 28 U.S.C. § 636(b)(1)(B), the Court referred this matter to U.S. Magistrate Judge Ballou for proposed findings of fact and a recommended disposition. Judge Ballou filed his R&R, advising this Court to deny Plaintiff's Motion for Summary Judgment and grant the Commissioner's Motion for Summary Judgment. Plaintiff timely filed his Objections, obligating the Court to undertake a de novo review of those portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1)(B); Farmer v. McBride, 177 F. App'x 327, 330 (4th Cir. 2006). Because Plaintiff's Objections lack merit, I will adopt Judge Ballou's R&R in full.

         I. Standard of Review

         A reviewing court must uphold the factual findings of the ALJ if they are supported by substantial evidence and were reached through application of the correct legal standard. See 42 U.S.C. §§ 405(g), 1383(c)(3); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). Substantial evidence requires more than a mere scintilla, but less than a preponderance, of evidence. Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). A finding is supported by substantial evidence if it is based on “relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).

         A reviewing court may not “re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of the ALJ. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the Secretary (or the Secretary's designate, the ALJ).” Id. (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). “Ultimately, it is the duty of the [ALJ] reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Thus, even if the court would have made contrary determinations of fact, it must nonetheless uphold the ALJ's decision, so long as it is supported by substantial evidence. See Whiten v. Finch, 437 F.2d 73, 74 (4th Cir. 1971).

         II. Analysis

         Because Plaintiff does not object to the R&R's recitation of the factual background and claim history in this case, I incorporate that portion of the R&R into this opinion. (See R&R at 2-3). By way of summary, Plaintiff applied for (and was denied) disability insurance benefits and supplemental security income under the Social Security Act based on his degenerative disc disease, diabetes, obesity, depression, and anxiety. Administrative Law Judge Brian P. Kilbane (hereinafter “ALJ”) concluded that Plaintiff maintained the residual work capacity to perform medium work with certain exceptions; that he retained the ability to perform simple, unskilled work on a sustained basis in a competitive work environment; and that, while he could not return to his previous jobs, he could work at jobs that exist in significant numbers in the national economy. Therefore, the ALJ concluded that Plaintiff was not disabled.

         Plaintiff makes four objections to the R&R, arguing that the ALJ: (1) failed to adequately considered his mental impairments; (2) gave inadequate weight to the opinion of his treating physician, Dr. Ivey; (3) improperly conducted the function-by-function part of the Residual Function Capacity analysis; and (4) insufficiently justified finding that his own statements as to his disability were not entirely credible. Each is discussed below.

         a. Mental Impairments

         Plaintiff brings two primary objections specific to the mental impairments analysis. First, he argues that the ALJ did not adequately account for his ability to sustain concentration, persistence or pace over an average work day. (Objections at 1). Rather, Plaintiff alleges that the ALJ impermissibly equated the ability to perform a task with the ability to stay on task. Second, he argues that, contrary to the conclusions of the R&R, the ALJ did not satisfy the requirements of SSR 96-8p (S.S.A.), 1996 WL 374184 because the ALJ failed to consider his ability to sustain work over a normal workday and workweek. (Id.)

         Plaintiff relies heavily on Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) for both of his objections. In particular, Mascio states that “an ALJ does not account for a claimant's limitations in concentration, persistence and pace by restricting the hypothetical question to simple, routine tasks, or unskilled work.” Mascio, 780 F.3d at 638. Plaintiff correctly points out that here, he was adjudicated with moderate limitations as to concentration, persistence and pace, but that the hypothetical presented to the vocational expert noted only his ability to perform simple, routine tasks. (R at 27, 61-62).[1] Mascio, however, recognized that “the ALJ may find that the concentration, persistence, or pace limitation does not affect [the claimant's] ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert.” Mascio, 780 F.3d at 632. Courts have interpreted this portion of Mascio to mean that failing to present concentration, persistence and pace limitations to the vocational expert is not error so long as the ALJ adequately justifies why those limitations are not relevant to the hypothetical presented. See, e.g., Del Vecchio v. Colvin, No. 1:14CV116, 2015 WL 5023857, at *6 (W.D. N.C. Aug. 25, 2015); Hutton v. Colvin, No. 2:14-cv-63, 2015 WL 3757204, at *3 (N.D. W.Va. June 16, 2015). Thus, the question before the Court is whether the ALJ adequately justified why, despite limitations to concentration, persistence and pace, Plaintiff was still able to perform work in the manner described to the vocational expert.

         Judge Ballou addressed this question directly in his R&R, responding to Plaintiff's argument that the ALJ “did not account for his difficulty staying on task” and “failed to include his moderate limitations in concentration, persistence, or pace in the hypothetical to the vocational expert.” (R&R at 3-4). Judge Ballou made the exact finding required under Mascio, concluding that “substantial evidence supports the ALJ's decision that despite Carr's limitations in concentration, persistence, or pace, he was capable of performing simple, routine, repetitive tasks.” (Id. at 8). Judge Ballou then examined the evidence supporting this conclusion in greater detail, discussing: (1) the opinion of Dr. Jennings; (2) the opinion of Dr. Insinna; (3) Plaintiff's responsiveness to limited and conservative treatment; and (4) the substantial degree of ability evinced by his daily activities. (Id. at 8-10).

         Plaintiff, in his objections, largely recycles arguments that were before Judge Ballou. He states that the opinions of Drs. Jennings and Insinna do not support the R&R's conclusion and that the ALJ and Judge Ballou failed to account for caveats in his ability to complete daily tasks. (Objections at 2). Such arguments ask this Court to “reweigh” “conflicting evidence, ” which is not its role. Craig, 76 F.3d at 589. Instead, the Court must determine whether the ALJ's decision was supported by “substantial evidence.”

         On this question, the Court concurs with Judge Ballou for the reasons stated in his R&R, and finds that substantial evidence supported the ALJ's decision that-despite Plaintiff's limitations in concentration, persistence, or pace-he was capable of performing simple, routine, repetitive tasks. As noted by Judge Ballou, this evidence included the opinions of the two doctors, the Plaintiff's daily activities, and that he was ...


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