United States District Court, W.D. Virginia, Lynchburg Division
John J. Carr, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant
K. MOON UNITED STATES DISTRICT JUDGE.
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.
Standard of Review
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).
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).
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.
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.
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.)
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). 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
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
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.”
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 ...