United States District Court, W.D. Virginia, Lynchburg Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on consideration of the
parties' cross-motions for summary judgment (dkts. 14,
26), the Report and Recommendation of United States
Magistrate Judge Robert S. Ballou (dkt. 21, hereinafter
“R&R”), Plaintiff's objections (dkt. 22,
hereinafter “Objections”), and the
Commissioner's response thereto (dkt. 23, hereinafter
“Response”). Pursuant to Standing Order 2011-17
and 28 U.S.C. § 636(b)(1)(B), the Court referred this
matter to Judge Ballou for proposed findings of fact and a
recommended disposition. Judge Ballou‘s R&R advised
this Court to deny Plaintiff's motion and grant
Commissioner's motion. The Court now undertakes a de
novo review of those portions of the R&R to which
Plaintiff objects. See 28 U.S.C. §
636(b)(1)(B); Farmer v. McBride, 177 Fed.Appx. 327,
330 (4th Cir. 2006). Because the objections lack merit, the
R&R will be adopted.
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);
Bird v. Comm'r of SSA, 669 F.3d 337, 340 (4th
Cir. 2012). 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). Where “conflicting evidence allows
reasonable minds to differ as to whether a claimant is
disabled, ” the Court must defer to the
Commissioner's decision. Id.
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).
does not object to the R&R's recitation of the facts
or claim history in this case, and for that reason I
incorporate that portion of the R&R into this opinion.
(See R&R at 2-6). Briefly, Plaintiff filed for
supplemental security income under the Social Security Act
based on pain in her back, neck, left leg, and right wrist,
as well as numbness in her left leg and right wrist, post
carpal tunnel release on her left wrist, hypothyroidism,
breathing problems, borderline intellectual functioning, and
depression. (R&R at 2 (citing R 349, 379,
383)). The ALJ found that Plaintiff was capable
of performing work that was available in the economy, and
thus, Plaintiff was not disabled. (R&R at 3-4 (citing R
15-16)). The Appeals Council denied Plaintiff's request
for review. (R&R at 4 (citing R 1-4)).
lodges four objections to Judge Ballou's R&R. First,
she contends that the R&R's conclusion that
“the ALJ accounted for [P]laintiff's moderate
impairment in concentration, persistence or pace” was
erroneous because the ALJ's hypothetical questions to the
vocational expert as well has her residual functioning
capacity (“RFC”) findings “only address
[P]lainiff's ability to perform work related activities
and not [Plaintiff's] ability to sustain work activity as
required” by the Fourth Circuit. (Objections at 1
(citing Mascio v. Colvin, 780 F.3d 632, 638 (4th
Cir. 2015)). Second, Plaintiff argues that the R&R erred
in concluding that substantial evidence supports the
ALJ's decision to only give partial weight to Dr.
Humphries. (Id. at 2-3). Third, Plaintiff contends
that the R&R “erred in concluding the ALJ's
assessment of [P]laintiff's allegations is supported by
substantial evidence.” (Id. at 4). Finally,
Plaintiff objects to the R&R's characterization of
Plaintiff's arguments disputing the ALJ's physical
RFC findings as “no more than disagreements with the
ALJ's RFC determination [that] asks the court to reweight
the evidence.” (Id. at 5).
Mental Impairments Under SSR 96-8p
Plaintiff's motion for summary judgment, she argued that
the ALJ failed to properly assess her mental impairments as
required by Social Security Ruling (“SSR”) 96-8p.
See Titles II and XVI: Assessing Residual Functional
Capacity in Initial Claims. The R&R rejected this
argument, stating that the “ALJ explained why
[Plaintiff's] moderate impairment in concentration,
persistence, or pace did not translate into a limitation in
the RFC beyond unskilled, simple, routine tasks, with no
independent goal setting or decision-making.” (R&R
at 8). Plaintiff objects to this conclusion, claiming it does
not consider the ALJ's failure to question the vocational
expert or make RFC findings relating to Plaintiff's
ability to sustain work. (Objections at 1).
96-8p “explains how adjudicators should assess”
RFC, and “instructs that the [RFC] ‘assessment
must first identify the individual's functional
limitations or restrictions and assess his or her
work-related abilities on a function-by-function basis,
including functions' listed in the regulations.”
Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed.
Reg. 34, 474, 34, 475 (July 2, 1996)). SSR 96-8p
“further explains that the [RFC] assessment must
include a narrative discussion describing how the evidence
supports each conclusion.” Id. (internal
quotations omitted). “Remand may be appropriate . . .
where an ALJ fails to assess a claimant's capacity to
perform relevant functions, despite contradictory evidence in
the record.” Id. (internal quotations
omitted). Furthermore, where hypothetical questions posed to
a vocational expert match the ALJ's findings regarding
RFC, the hypothetical is “incomplete only if the ALJ
failed to account for a relevant factor when
determining” the RFC. Id. at 638
relies heavily on Mascio to support her objections.
In Mascio, the Fourth Circuit found remand
appropriate because the ALJ “said nothing about [the
plaintiff's] ability to perform [certain functions] for a
full workday, ” leaving the court to “guess about
how the ALJ arrived at his conclusions on [the
plaintiff's] ability to perform relevant
functions”. Id. at 637. In Mascio,
the Court also held 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.” Id. at 638.
However, the Court stated that had the ALJ found that
“the concentration, persistence, or pace limitation
does not affect [the plaintiff's] ability to work . . .
it would have been appropriate to exclude it from the
hypothetical tendered to the vocational expert.”
Id. Because the ALJ in that case failed to give such
an explanation, remand was in order. Id.
R&R correctly points out, this is not a case like
Mascio, “where the ALJ summarily concluded
that a limitation to simple, unskilled work accounts for the
claimant's moderate impairment in concentration,
persistence, and pace without further analysis.”
(R&R at 8). Here, the ALJ notes Plaintiff's moderate
limitations with regard to concentrating, persisting, or
maintaining pace. (R 16). The ALJ then completes an analysis
of Plaintiff's daily activities, concluding that those
tasks require “some concentration, persistence, and/or
pace.” (Id.). Based on these findings the
ALJ's RFC analysis states:
[Plaintiff's] borderline intellectual functioning and
concentration deficits support limiting her to unskilled
work. However, her negative findings, lack of aggressive
treatment . . . and her retained abilities to care for her
personal needs, cook, clean, care for her disabled husband,
shop, pay bills, handle a checking account, read, watch
television, and ...