United States District Court, M.D. North Carolina
CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE
Recommendation of the United States Magistrate Judge [Doc.
#13] was filed with the Court in accordance with 28 U.S.C.
§ 636(b) and, on July 29, 2016, was served on the
parties in this action. Plaintiff Kelly Bryan-Tharpe filed
Objections to the Magistrate Judge's Recommendation
within the time limits prescribed by 28 U.S.C. § 636.
[Doc. # 15].
Court has appropriately reviewed the portions of the
Magistrate Judge's Recommendation to which objection is
made and has made a de novo determination in accord
with the Magistrate Judge's thoroughly reasoned report.
As the Magistrate Judge explained, “following
Mascio [v. Colvin, 780 F.3d 632 (4th Cir. 2015)],
federal district courts in the Fourth Circuit have split on
whether a restriction to non-production work adequately
accounts for moderate limitations in [concentration,
persistence, or pace].” (Recommendation at 9-10.)
However, not only does the Magistrate Judge's review of
case law (see id. at 10-19) support the conclusion
that, in this case, such a restriction is sufficient, but,
so, too, does a comparison of the underlying facts of many
district court cases within the Fourth Circuit, (see,
e.g., Ross v. Colvin, No. TMD 15-1146, 2016 WL
4364146 (D. Md. Aug. 16, 2016) (affirming); Scruggs v.
Colvin, No. 3:14-cv-00466-MOC, 2015 WL 2250890 (W.D.
N.C. May 12, 2015) (remanding)), with those of
case is distinguishable from those where the courts have
concluded that a limitation to simple, routine, repetitive
tasks in a non-production environment does not account for a
claimant's moderate limitations in concentration,
persistence, or pace. Here, for example, the ALJ recognized
that Bryan-Tharpe testified that she had trouble
concentrating and focusing, but that she also enjoyed doing
crossword puzzles, which, according to the ALJ, would require
more than a basic level of concentration and focus. (Tr. 24.)
Both state agency psychological consultants, whose opinions
as to Bryan-Tharpe's mental residual functional capacity
the ALJ afforded great weight (id. at 25), opined
that Bryan-Tharpe was moderately limited in her ability to
carry out detailed instructions, to maintain attention and
concentration for extended periods, and to complete a normal
workday and workweek without interruptions from
psychologically based symptoms and perform at a consistent
pace without an unreasonable number and length of rest
periods (id. at 95, 118).
other hand, they opined that she was not significantly
limited in her ability to carry out very short and simple
instructions, to perform activities without a schedule,
maintain regular attendance, and be punctual within customary
tolerances, to sustain an ordinary routine without special
supervision, to work in coordination with or in proximity to
others without being distracted by them, and to make simple
work-related decisions. (Id. at 95, 118.) When asked
to explain in narrative form the sustained concentration and
persistence limitations they had previously indicated, both
consultants stated, “Claimant would be able to maintain
attention and concentration for two hours at a time as
required for the performance of simple tasks at a non rapid
pace.” (Id. at 95-96, 118.)
determined that Bryan-Tharpe's “mental
impairments” resulted mainly from her physical
impairments and situational stressors such as family illness
and financial issues. (Id. at 24.) When the ALJ
asked the vocational expert the ever-important hypothetical,
the ALJ included the following, “The individual would
be further limited to simple, routine, repetitive-type tasks
and finally needs to avoid production work or similar
fast-paced jobs with deadlines and quotas.”
(Id. at 57.)
on its face the limit in the residual functional capacity to
a non-production environment mirrors some restrictions found
to be insufficient, the context within which the ALJ
developed the non-production environment restriction here
supports that, in this case, such a restriction does account
for Bryan-Tharpe's moderate limitations in concentration,
persistence, and pace.
a review of the record also supports the ALJ's affording
the Physical Residual Functional Capacity Questionnaire from
Bryan-Tharpe's treating physician little weight, as the
Magistrate Judge explained. Therefore, the Court adopts the
Magistrate Judge's Recommendation.
THEREFORE ORDERED that the Commissioner's decision
finding no disability is affirmed, that Plaintiff's
Motion for Judgment on the Pleadings [Doc. # 9] is denied,
and that the Commissioner's Motion for Judgment on the
Pleadings [Doc. # 11] is granted. A Judgment dismissing this
action will be entered contemporaneously with this Order.
On January 23, 2017, Nancy A. Berryhill
became the Acting Commissioner of Social Security. She is,
therefore, substituted as Defendant in this matter.