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Toler v. Berryhill

United States District Court, E.D. Virginia, Richmond Division

September 25, 2017

ANTHONY TOLER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          DAVID J. NOVAK UNITED STATES MAGISTRATE JUDGE.

         On October 28, 2013, Anthony Toler ("Plaintiff') protectively filed for Social Security Disability Insurance Benefits ("DIB") under the Social Security Act ("Act"), alleging disability from back pain, degenerative disc disease, a torn ligament in his left knee, a pinched nerve, varicose veins and depression, with an alleged onset date of July 6, 2012. The Social Security Administration ("SSA") denied Plaintiffs claims both initially and upon reconsideration. Thereafter, an Administrative Law Judge ("ALJ") denied Plaintiffs claims in a written decision and the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner.

         Plaintiff seeks judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that the ALJ erred in assessing his residual functional capacity ("RFC") by failing to adequately account for Plaintiffs moderate limitations in concentration, persistence and pace. (Pl.'s Mot. for Summ. J. ("Pl.'s Mem.") (ECF No. 13) at 3-8.) This matter now comes before the Court by consent of the parties pursuant to 28 U.S.C. §636(c)(1), on the parties' cross-motions for summary judgment, rendering the matter ripe for review.[1] For the reasons that follow, the Court hereby DENIES Plaintiffs Motion for Summary Judgment (ECF No. 12), GRANTS Defendant's Motion for Summary Judgment (ECF No. 14) and AFFIRMS the final decision of the Commissioner.

         I. PROCEDURAL HISTORY

         On October 28, 2013, Plaintiff protectively filed an application for DIB with an alleged onset date of July 6, 2012. (R. at 200-01.) The SSA denied the claim initially on March 25, 2014, and again upon reconsideration on August 28, 2014. (R. at 96-105, 107-18.) At Plaintiffs written request, the ALJ held a video hearing on November 5, 2015. (R. at 36-88.) On December 4, 2015, the ALJ issued a written opinion, denying Plaintiffs claims and concluding that Plaintiff did not qualify as disabled under the Act, because he could make successful adjustments to jobs that existed in significant numbers in the national economy. (R. at 17-30.) Specifically, Plaintiff could perform the duties of a cashier, merchandise maker and housekeeper. (R. at 29.) On May 13, 2016, the Appeals Council denied Plaintiffs request for review, rendering the ALJ's decision as the final decision of the Commissioner subject to review by this Court. (R. at 1-3.)

         II. STANDARD OF REVIEW

         In reviewing the Commissioner's decision to deny benefits, a court "will affirm the Social Security Administration's disability determination 'when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.'" Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm V o/Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial evidence requires more than a scintilla but less than a preponderance, and includes the kind of relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Indeed, "the substantial evidence standard 'presupposes ... a zone of choice within which the decision makers can go either way, without interference by the courts. An administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision.'" Dunn v. Colvin, 607 F.App'x 264, 274 (4th Cir. 2015) (quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988)).

         To determine whether substantial evidence exists, the court must examine the record as a whole, but may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)). In considering the decision of the Commissioner based on the record as a whole, the court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951)). The Commissioner's findings as to any fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 477. If substantial evidence in the record does not support the ALJ's determination or if the ALJ has made an error of law, the court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         The Social Security Administration regulations set forth a five-step process that the agency employs to determine whether disability exists. 20 C.F.R. § 404.1520(a)(4); see Mascio, 780 F.3d at 634-35 (describing the ALJ's five-step sequential evaluation). To summarize, at step one, the ALJ looks at the claimant's current work activity. § 404.1520(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. § 404.1520(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. § 404.1520(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's RFC accounting for the most that the claimant can do despite her physical and mental limitations. § 404.1520(a). At step four, the ALJ assesses whether the claimant can perform her past work given her RFC. § 404.1520(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform work existing in the national economy. § 404.1520(a)(4)(v).

         III. THE ALJ'S DECISION

         On November 5, 2015, the ALJ held a video hearing during which Plaintiff, represented by counsel, and a vocational expert ("VE") testified. (R. at 36-88.) On December 4, 2015, the ALJ issued a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 17-30.)

         The ALJ followed the five-step evaluation process established by the Social Security Act in analyzing Plaintiffs disability claim. (R. at 18-30.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity ("SGA") since the alleged onset date. (R. at 19.) At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease and mild retrolisthesis with moderate to severe disc height loss and osteophytosis of the lumbar spine; minimal multilevel disc height loss and early osteophytosis of the thoracic spine; osteophytosis of the thoracic spine; major depressive order; generalized anxiety disorder; and, cognitive disorder. (R. at 19-20.) At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments in the listings. (R. at 20-22.)

         In assessing Plaintiffs RFC, the ALJ found that Plaintiff could perform light work with additional limitations. (R. at 22-28.) Plaintiff could never climb ladders, ropes or scaffolds, but could occasionally climb ramps, stairs, balance, stoop, kneel, crouch and crawl. (R. at 22.) The ALJ also found that Plaintiff could tolerate only occasional exposure to workplace hazards, such as unprotected heights and moving mechanical parts, and he could frequently reach bilaterally. (R. at 22.) Finally, the ALJ limited Plaintiff to simple, routine and repetitive tasks involving only simple work-related decisions. (R. at 22.)

         At step four, the ALJ determined that Plaintiff could not perform any past relevant work. (R. at 28.) Finally, at step five, the ALJ concluded that Plaintiff could perform jobs that existed in significant numbers in the national economy. (R. at 28-29.) Specifically, Plaintiff could work as a cashier, merchandise maker and housekeeper. (R. at 29.) Therefore, he did not qualify as disabled. (R. at 29-30.)

         IV. ANALYSIS

         Plaintiff, fifty-two years old at the time of this Opinion, previously worked as a technician at a physical rehabilitation center, airport screener and sales associate. (R. at. 215, 236.) He applied for Social Security benefits, alleging disability from back pain, degenerative disc disease, a pinched nerve, a torn ligament in the left knee, varicose veins and depression, with an alleged onset date of July 6, 2012. (R. at 200, 214.) Plaintiffs appeal to this Court alleges that the ALJ's RFC assessment and the hypothetical posed to the VE failed to properly account for Plaintiffs moderate limitations in concentration, persistence and pace. (Pl.'s Mem. at 3-8.) Defendant responds that both the ALJ's RFC assessment and hypothetical adequately reflect Plaintiffs mental impairments. (Def.'s Mot. for Summ. J. and Br. in Supp. Thereof ("Def.'s Mem.") (ECF No. 14) at 8-16.) For the reasons that follow, the ALJ did not err in his decision.

         A. The ALJ's RFC Assessment Properly Accounted for Plaintiffs Moderate Limitations in Concentration, Persistence and Pace.

         Relying on Mascio, Plaintiff argues that the ALJ's RFC assessment failed to properly account for Plaintiffs mental limitations. (Pl.'s Mem. at 3-8.) In Mascio, the Fourth Circuit stressed the distinction between the ability to perform simple tasks and the ability to stay on task. 780 F.3d at 638. Only an RFC assessment that includes the latter limitation sufficiently reflects a claimant's difficulties with concentration, persistence and pace. Id. Plaintiff argues that remand must occur here, because the ALJ's RFC, which limited Plaintiff to simple, routine, repetitive tasks involving simple decisions, did not adequately account for Plaintiffs moderate limitations in concentration, persistence and pace.[2] (Pl.'s Mem. At 3-8.) Defendant responds that substantial evidence, including Plaintiffs mental status examinations and Plaintiffs activities of daily living, supports the ALJ's RFC assessment. (Def.'s Mem. at 2-3, 10-16.)

         After step three of the ALJ's sequential analysis, but before deciding whether a claimant can perform past relevant work at step four, the ALJ must determine the claimant's RFC. 20 C.F.R. §§ 404.945(a)(1), 404.1520(a)(4)(iv). In analyzing a claimant's disabilities, the ALJ must first assess the nature and extent of a claimant's limitations and then determine the claimant's RFC for work activity on a regular and continuing basis. § 404.1545(b). Generally, the claimant shoulders the responsibility for providing the evidence that the ALJ utilizes in making his RFC determination; however, before determining that a claimant does not have a disability, the ALJ must develop the claimant's complete medical history, including scheduling consultative examinations if necessary. § ...


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