United States District Court, W.D. Virginia, Roanoke Division
REPORT AND RECOMMENDATION
Robert S. Ballou United States Magistrate Judge.
Matthew James Hudgins (“Hudgins”) 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”), and
disability insurance benefits (“DIB”) under the
Social Security Act (“Act”). 42 U.S.C.
§§ 401-433, 1381- 1383f. Specifically, Hudgins
alleges that the Administrative Law Judge (“ALJ”)
erred by asking a hypothetical question to the vocational
expert (“VE”) which did not account for
Hudgins's moderate limitations in concentration,
persistence, and pace and declining to give more weight to
the opinion of consultative examiner Julia Ewen, M.D. I
conclude that substantial evidence supports the
Commissioner's decision on all grounds. Accordingly, I
RECOMMEND DENYING Hudgins' Motion for
Summary Judgment (Dkt. No. 18), and GRANTING
the Commissioner's Motion for Summary Judgment (Dkt. No.
Court limits its review to a determination of whether
substantial evidence exists to support the Commissioner's
conclusion that Hudgins failed to demonstrate that he was
disabled under the Act. 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).
protectively filed for SSI and DIB on October 3, 2013,
claiming that his disability began on July 3, 2012. R.
227-39. The Commissioner denied the application at the
initial and reconsideration levels of administrative review.
R. 73-74, 121, 138. On April 12, 2016, ALJ Geraldine H. Page
held an administrative hearing to consider Hudgins's
disability claim. R. 35-67. Hudgins was represented by an
attorney at the hearing, which included testimony from
Hudgins and VE John Newman. Id.
25, 2016, the ALJ entered her decision analyzing
Hudgins's claim under the familiar five-step process,
denying his claim for disability. R. 18-31. The ALJ found
that Hudgins suffered from the following severe impairments:
obesity, diabetes mellitus with neuropathy, patella-femoral
pain syndrome, depression, anxiety, borderline intellectual
functioning, and a hearing disorder. R. 20. The ALJ further
found that Hudgins retained the RFC to perform sedentary
work, but he is restricted to occasionally pushing and
pulling with the bilateral lower extremities, kneeling,
crouching, stooping, balancing, and climbing ramps and
stairs. However, the ALJ explained that Hudgins can never:
crawl; climb ladders, ropes, and scaffolds; work on vibrating
surfaces; work at unprotected heights; be exposed to
hazardous machinery; and work around excessively loud
background noise. R. 23. The ALJ further explained that
Hudgins “can understand, remember, and carry out simple
instructions in repetitive, unskilled work that involves only
occasional interaction with the general public.”
Id. The ALJ determined that Hudgins could not return
to his past relevant work as a fast food worker and
dishwasher, but that he could work as an assembler, packer,
and inspector/tester/sorter. R. 31. Thus, the ALJ concluded
that Hudgins was not disabled. Id.
appealed the ALJ's decision to the Appeals Council, but
his request for review was denied. R. 1. This appeal
challenges the ALJ's decision on two grounds: (1) the ALJ
improperly relied upon the VE's testimony because the
hypothetical question to the VE did not account for
Hudgins's moderate limitations in concentration,
persistence, and pace; and (2) the ALJ failed to give the
most weight to Dr. Ewen, a consultative examiner.
See Dkt. No. 18, at 1.
Persistence, and Pace
challenges the hypothetical question to the VE because it
failed to account for all of his functional limitations.
See id. at 9. Specifically, Hudgins asserts that the
“hypothetical question was incomplete because the RFC
does not account for [Hudgins's] ability to stay on task
with respect to concentration, persistence, or pace. Further
the ALJ failed to explain why this limitation does not affect
[Hudgins's] ability to work.” Id. at 11.
The ALJ must present to the VE a hypothetical question which
accurately reflects a claimant's functional limitations.
Otherwise, the VE cannot reliably testify to a claimant's
work capacity. Here, the focus is on whether the RFC and
subsequent hypothetical correctly reflected limitations
Hudgins has in the areas of concentration, persistence, and
Mascio v. Colvin, the Fourth Circuit held that an
ALJ does not generally account for a claimant's
limitations in concentration, persistence, or 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.” 780 F.3d 632, 638 (4th Cir. 2015); 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) (holding that a “limitation
to simple, unskilled work does not necessarily”
accommodate a person's difficulty in concentrating on or
persisting in a task, or maintaining the pace required to
complete a task)). In Mascio, the Fourth Circuit
found that the ALJ did not explain why Mascio's moderate
limitation in concentration, persistence, or pace did not
translate into a limitation in his RFC. Mascio, 780
F.3d at 638. The court noted, however, that the ALJ may find
that the concentration, persistence, or pace limitation would
not affect Mascio's ability to work, in which case it
would have been appropriate to exclude it from the
hypothetical tendered to the vocational expert. Id.;
see also Hutton v. Colvin, No. 2:14-cv-63, 2015 WL
3757204, at *3 (N.D. W.Va. June 16, 2015).
does not broadly dictate that a claimant's moderate
impairment in concentration, persistence, or pace always
translates into a limitation in the RFC. Rather,
Mascio underscores the ALJ's duty to adequately
review the evidence and explain the decision, especially
where, as the ALJ held in Mascio, a claimant's
concentration, persistence, or pace limitation does not
affect the ability to perform simple, unskilled work. See
Mascio, 780 F.3d at 638. The ALJ's responsibility to
highlight the evidence of record that supports his conclusion
was further emphasized in Monroe v. Colvin, where
the court found that the ALJ must provide a sound basis for
his ruling, including discussing what evidence he found
credible and specifically apply the law to the record. 826
F.3d 176, 189 (4th Cir. 2016).
Mascio court relied upon Winschel v. Comm'r
of Soc. Sec., where the court rejected the argument that
an ALJ generally accounts for a claimant's limitations in
concentration, persistence, or pace by restricting the
claimant to simple, routine tasks or unskilled work. 631 F.3d
1176, 1180 (11th Cir. 2011). 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