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Westmoreland v. Berryhill

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

February 14, 2018

NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.


          Robert S. Ballou United States Magistrate Judge.

         Plaintiff Karen J. Westmoreland (“Westmoreland”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) determining that she was not disabled and therefore not eligible for disability insurance benefits (“DIB”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433. Specifically, Westmoreland alleges that the ALJ failed to assess her impairments on a function-by-function basis and failed to provide sufficient reasons for the credibility analysis. I conclude that substantial evidence supports the ALJ's decision as a whole. Accordingly, I RECOMMEND DENYING Westmoreland's Motion for Summary Judgment (Dkt. No. 14), and GRANTING the Commissioner's Motion for Summary Judgment (Dkt. No. 16).


         This Court limits its review to a determination of whether substantial evidence supports the Commissioner's conclusion that Westmoreland failed to demonstrate that she 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).


         Westmoreland filed for DIB on June 21, 2012, claiming that her disability began on March 1, 2011. R. 15. The Commissioner denied the applications at the initial and reconsideration levels of administrative review. R. 78-96. On January 14, 2015, ALJ Benjamin R. McMillion held a hearing to consider Westmoreland's disability claim. R. 28-49. Westmoreland was represented by an attorney at the hearing, which included testimony from Westmoreland and vocational expert Gerald Wells. Id.

         On March 19, 2015, the ALJ entered his decision analyzing Westmoreland's claim under the familiar five-step process, [2] and denying Westmoreland's claim for benefits. R. 15-22. The ALJ found that Westmoreland suffered from the severe impairments of polyarthralgia, rotator cuff tendinitis/bursitis, mild chronic obstructive pulmonary disease (“COPD”), and chronic diarrhea. R. 17. The ALJ found that these impairments did not meet or medically equal a listed impairment. R. 19. The ALJ further found that Westmoreland had the residual functional capacity (“RFC”) to perform light work, except that she: (1) can sit, stand, and walk for six hours in an eight-hour workday; (2) can balance an unlimited amount; (3) can frequently stoop; (4) can occasionally climb, kneel, crouch, and crawl; (5) can occasionally reach overhead; (6) must avoid even moderate exposure to fumes, odors, dusts, gases, poor ventilation, and hazards; and (7) requires proximity to a restroom as can be found in a business office, retail store, or similar setting. Id. The ALJ determined that Westmoreland is capable of performing her past relevant work as a companion, and concluded that she is not disabled. R. 22.

         Westmoreland requested that the Appeals Council review the ALJ's decision. On July 25, 2016, the Appeals Council denied Westmoreland's request for review. R. 1-6. This appeal followed.


         Westmoreland challenges the ALJ's decision on two grounds, claiming: (1) the ALJ failed to perform a function-by-function analysis when he developed Westmoreland's RFC; and (2) the ALJ failed to provide an explanation regarding her credibility.

         Function-by Function Analysis

         Westmoreland asserts that the ALJ failed to consider how her impairments affect her ability to work on a function-by-function basis. Specifically, Westmoreland argues that the ALJ failed to consider how often she would need to take breaks at work due to her chronic diarrhea.

         A function-by-function analysis requires the ALJ to develop an adequate RFC which accounts for the work activities the claimant can perform given the physical or mental impairments affecting the ability to work. Importantly, the ALJ must explain the conclusions reached and explain any record evidence which contradicts the RFC determination. See SSR 96- 8p. The ALJ is instructed to cite specific medical facts and non-medical evidence supporting his conclusion, discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis, describe the maximum amount of each work-related activity the individual can perform, and explain how any material inconsistencies or ambiguities in the evidence were considered and resolved. SSR 96-8p.

         In Mascio v. Colvin, the court rejected a “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis, ” agreeing instead with the Second Circuit that “‘[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.'” Mascio, 780 F.3d 632, 636 (4th Cir. 2015) (citing Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). “The Mascio Court held remand was necessary, in part, because the ALJ failed to indicate the weight given to two residual functional capacity ...

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