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Overstreet v. Berryhill

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

January 3, 2018

TONEY L. OVERSTREET, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Robert S. Ballou, United States Magistrate Judge.

         Plaintiff Toney L. Overstreet (“Overstreet”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) determining that he was not disabled and therefore not eligible for supplemental security income (“SSI”) under the Social Security Act (“Act”). 42 U.S.C. §§ 1381-1383f. Specifically, Overstreet alleges that the ALJ failed to adequately address his limitations with concentration, persistence and pace; failed to properly evaluate the opinion of his treating physician; failed to properly assess his impairments on a function by function basis; and failed to provide sufficient reasons for his credibility analysis. I conclude that substantial evidence supports the ALJ's decision as a whole. Accordingly, I RECOMMEND DENYING Overstreet's Motion for Summary Judgment (Dkt. No. 14), and GRANTING the Commissioner's Motion for Summary Judgment. Dkt. No. 18.

         STANDARD OF REVIEW

         This court limits its review to a determination of whether substantial evidence supports the Commissioner's conclusion that Overstreet failed to demonstrate that he was disabled under the Act.[1] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it 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) (internal citations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         CLAIM HISTORY

         Overstreet filed for SSI on November 7, 2012, claiming that his disability began on January 1, 2008. Administrative Record, hereinafter “R.” 12. The Commissioner denied the application at the initial and reconsideration levels of administrative review. R. 83-87, 91-93. On July 1, 2015, ALJ David Lewandowski held a hearing to consider Overstreet's disability claim. R. 35-60. Overstreet was represented by an attorney at the hearing, which included testimony from Overstreet and vocational expert Robert Jackson. Id.

         On July 30, 2015, the ALJ entered his decision analyzing Overstreet's claim under the familiar five-step process, [2] and denying Overstreet's claim for benefits. R. 12-30. The ALJ found that Overstreet suffered from the severe impairments of chronic obstructive pulmonary disease (COPD), lumbrosacral degenerative disc disease, degenerative joint disease of the hands and feet, right knee osteoarthritis, obesity, bipolar disorder, anger disorder, cluster B traits, personality disorder, and paranoia. R. 14. The ALJ found that these impairments did not meet or medically equal a listed impairment. R. 15-17. The ALJ further found that Overstreet had the residual functional capacity (“RFC”) to perform light work, except that he can frequently balance and climb stairs, and occasionally stoop, kneel, crouch or crawl. R. 17. The ALJ found that Overstreet should avoid exposure to pulmonary irritants, and industrial hazards. Id. The ALJ determined that Overstreet is capable of understanding, remembering, and carrying out simple instructions and performing simple tasks, with occasional interaction with others. Id. The ALJ determined that Overstreet could not return to his past relevant work as a carpenter and boiler room worker, but that he could work at jobs that exist in significant numbers in the national economy, such as marker or inspector/grader. R. 28-29. Thus, the ALJ concluded that he was not disabled.

         Overstreet requested that the Appeals Council review the ALJ's decision. On November 10, 2016, the Appeals Council denied Overstreet's request for review (R. 1-5), and this appeal followed.

         ANALYSIS

         Concentration, Persistence and Pace

         Overstreet asserts that the mental limitations set forth in the RFC of understanding, remembering and carrying out simple instructions and performing simple tasks do not adequately account for his moderate limitations with concentration, persistence and pace. Pl. Br. Summ. J. at 10. Overstreet asserts that “simply limiting plaintiff to 1-3 step tasks with on-complex work instructions in his RFC assessment does not address limitations in concentration, persistence, or pace and is not enough to fulfill SSR 96-8p.” Pl. Br. Summ. J. at 13. See Titles II & Xvi: Assessing Residual Functional Capacity in Initial Claims, Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184 (S.S.A. July 2, 1996). Overstreet further argues that the ALJ failed to include his moderate limitations in concentration, persistence, or pace in the hypothetical to the vocational expert. Id. at 14

         SSR 96-8p requires the ALJ to include a narrative discussion describing how the evidence supports his conclusions when developing the RFC. Teague v. Astrue, No. 1:10-cv-2767, 2011 WL 7446754, at *8 (D.S.C. Dec. 5, 2011). The ALJ “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).” SSR 96-8p at *7; Meadows v. Astrue, No. 5:11-cv-63, 2012 WL 3542536, at *8 (W.D. Va. Aug. 15, 2012) (citing Davis v. Astrue, No. 9-cv-2545, 2010 WL 5237850, at *5 (D. Md. Dec. 15, 2010)).

         Here, the ALJ's discussion of Overstreet's mental limitations satisfies the requirements of SSR 96-8p. The ALJ considered both medical and non-medical evidence in assessing Overstreet's RFC and provided the narrative discussion required by the regulations. The ALJ reviewed the history of Overstreet's mental symptoms and his mental health treatment in detail. R. 17-25. The ALJ then summarized the evidence relating to Overstreet's mental health symptoms and treatment, and noted that “[a]fter going back to jail, the claimant did seek regular treatment for mental health issues, but treatment notes suggest that the combination of medications and regular monitoring was generally successful in maintaining the claimant's psychiatric stability.” R. 26. The ALJ also reviewed the opinion evidence, including a statement from Overstreet's case manager that he has “mental health issues, ” the opinion of a state agency psychological consultant, and a review of the GAF scores[3] assigned by his treating physician. R. 26-27. Thus, the ALJ's narrative discussion considering the medical opinions, Overstreet's testimony, and evidence of mental impairment satisfied the requirements of SSR 96-8p. See Taylor v. Astrue, No. 11-cv-32, 2012 WL 294532, at *6 (D. Md. Jan. 31, 2012) (noting that while SSR 96-8p requires an ALJ to consider the evidence presented on a function-by-function basis, it does not require the ALJ to produce such a detailed statement in writing, but rather is sufficient if it includes a narrative discussion of the claimant's symptoms and medical source opinions).

         Overstreet argues that the RFC set forth by the ALJ failed to properly account for his limitations with concentration, persistence and pace. In Mascio v. Colvin, the Fourth Circuit held that an ALJ does not generally account for a claimant's limitations in concentration, persistence, and pace by restricting the claimant to simple, routine tasks or unskilled work. The court noted, “the ability to perform simple tasks differs from the ability to stay on task. Only the latter limitation would account for a claimant's limitation in concentration, persistence, or pace.” Id. at 638; see also Sexton v. Colvin, 21 F.Supp.3d 639, 642-43 (W.D. Va. 2014) (citing Wiederholt v. Barnhart, 121 Fed.Appx. 833, 839 (10th Cir. 2005)). The court noted, however, that the ALJ may find that the concentration, persistence or pace limitation would not affect a claimant's ability to work, in which case it would have been appropriate to exclude it from the hypothetical tendered to the vocational expert. 780 F.3d at 638; see also Hutton v. Colvin, No. 2:14-cv-63, 2015 WL 3757204, at *3 (N.D. W.Va. June 16, 2015). The court found error in Mascio because the ALJ did not explain why Mascio's moderate limitation in concentration, persistence, or pace did not translate into a limitation in his RFC.

         The Mascio decision does not broadly dictate that a claimant's moderate impairment in concentration, persistence, or pace must always translate into a limitation in the RFC. Rather, Mascio underscores the ALJ's duty to adequately review the evidence and explain the disability decision, especially where, as the ALJ held in Mascio, a claimant's concentration, persistence or pace limitation does not affect the claimant's ability to perform simple, unskilled work. The ALJ has the responsibility to address the evidence of record that supports that conclusion, and ensure that the hypothetical presented to the vocational expert includes all of the limitations set forth in the RFC.

         The Mascio court relied upon Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011), where the court rejected the argument that an ALJ generally accounts for a claimant's limitations in concentration, persistence, and pace by restricting the claimant to simple, routine tasks or unskilled work. However, the Winschel court explained that:

when medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations. Additionally, other circuits have held that hypothetical questions adequately account for a claimant's limitations in concentration, persistence, and pace when the questions otherwise implicitly account for these limitations.

Id. (internal citations omitted). Courts within the Fourth Circuit have come to rely upon Winschel's reasoning to comply with Mascio. See St. Clair v. Colvin, No. 7:13cv571, 2015 WL 5310777, at * 7 (W.D. Va. Sept. 11, 2015) (ALJ properly relied upon the opinion of consultative physician that plaintiff's impairment in concentration, persistence and pace did not prevent him from performing simple, repetitive tasks); Del Vecchio v. Colvin, No. 1:43cv116, 2015 WL 5023857 at * 5 (W.D. N.C. Aug. 25, 2015) (ALJ's reliance upon the opinion of state agency medical consultant that plaintiff could complete simple tasks even with moderate limitations in concentration, persistence, or pace satisfied the explanation necessary to support the RFC limitations); Geisler v. Comm'r, No. SAG-14-2857, 2015 WL 4485459, at *5 (D. Md. July 21, 2015) (ALJ properly relied on the opinions of state agency physicians that plaintiff's impairment in concentration, persistence or pace does not prevent him from performing simple, spoken instructions and simple routine tasks). Likewise, in Hutton v. Colvin, the court held that a restriction of “unskilled work” accounted for claimant's limitations with concentration, persistence or pace where the ALJ examined the claimant's ability to perform daily activities such as paying bills and counting change in the step 4 analysis, and noted that his treating physicians found that he exhibited good attention, intact memory, logical thought flow, and good immediate and recent memory. 2015 WL 3757204, at *3-5. The court found that these reasons constituted “abundant explanation” for the ALJ's RFC findings regarding the claimant's concentration limitations, and thus, there was no error in the ALJ's conclusion that the claimant could perform unskilled work. Id.

         Thus, Mascio reiterates the long-held proposition that substantial evidence in the record must support the limitations contained in the RFC and those limitations must be included in the hypothetical question presented to the vocational expert. An ALJ may account for a claimant's limitation with concentration, persistence, or pace by restricting the claimant to simple, routine, unskilled work where the record supports this conclusion, either through physician ...


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