United States District Court, E.D. North Carolina, Eastern Division
MARION F. ROSE, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on cross-motions for judgment on
the pleadings. A hearing was held on these matters before the
undersigned on December 21, 2017, at Raleigh, North Carolina.
For the reasons discussed below, the decision of the
Commissioner is affirmed.
brought this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of the final decision of the
Commissioner denying his claim for supplemental security
income (SSI) pursuant to Title XVI of the Social Security
Act. Plaintiff applied for SSI on January 24, 2012, alleging
disability since January 1, 2009. After initial denials, a
hearing was held before an Administrative Law Judge (ALJ) who
issued an unfavorable ruling. The Appeals Council remanded
plaintiffs claim to the ALJ for further consideration. The
ALJ conducted a second hearing on January 11, 2016, and by
decision entered March 2, 2016, plaintiffs claim was denied.
The decision of the ALJ became the final decision of the
Commissioner when the Appeals Council denied plaintiffs
request for review. Plaintiff then timely sought review of
the Commissioner's decision in this Court.
the Social Security Act, 42 U.S.C. §§ 405(g), and
1383(c)(3), this Court's review of the Commissioner's
decision is limited to determining whether the decision, as a
whole, is supported by substantial evidence and whether the
Commissioner employed the correct legal standard.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir. 2005) (per curiam) (internal quotation and
individual is considered disabled if he is unable "to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
[twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The
Act further provides that an individual "shall be
determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage
in any other line of substantial gainful work which exists in
the national economy." 42 U.S.C. § 1382c(a)(3)(B).
issued by the Commissioner establish a five-step sequential
evaluation process to be followed in a disability case. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four,
but the burden shifts to the Commissioner at step five.
See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
If a decision regarding disability can be made at any step of
the process the inquiry ceases. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
one, if the Social Security Administration determines that
the claimant is currently engaged in substantial gainful
activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination
of impairments. If the claimant has a severe impairment, it
is compared at step three to those in the Listing of
Impairments ("Listing") in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively
presumed. If not, at step four, the claimant's residual
functional capacity (RFC) is assessed to determine if the
claimant can perform his past relevant work. If so, the claim
is denied. If the claimant cannot perform past relevant work,
then the burden shifts to the Commissioner at step five to
show that the claimant, based on his age, education, work
experience, and RFC, can perform other substantial gainful
work. If the claimant cannot perform other work, then he is
found to be disabled. See 20 C.F.R. §
one, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since his application date.
Plaintiffs bipolar I disorder; antisocial personality
disorder, lumbar degenerative disc disease, and obesity were
considered severe impairments at step two but were not found
alone or in combination to meet or equal a Listing at step
three. At step four, the ALJ concluded that plaintiff had the
RFC to perform light work with limitations and found that
plaintiff was unable to perform his past relevant work as a
laborer. At step five, the ALJ found that, considering
plaintiffs age, education, work experience, and RFC, jobs
existed in significant numbers in the national economy which
plaintiff could perform, including small parts assembler,
electronics worker, laundry folder, table worker, glass
checker, and garment sorter. Thus, the ALJ concluded that
plaintiff was not disabled as of the date of her decision.
appeal, plaintiff first contends that the ALJ failed to give
a full explanation of the nonexertional mental functions
associated with plaintiffs mental impairments and that the
RFC finding is flawed. Plaintiff further contends that the
ALJ improperly relied on the testimony of a obtaining an
explanation in violation of SSR 00-4p.
makes an RFC assessment based on all of the relevant medical
and other evidence. 20 C.F.R. § 404.1545(a)(3). In
regard to plaintiffs non-exertional limitations, the ALJ
found that plaintiff had mild restrictions in activities of
daily living, moderate difficulties in social functioning,
and moderate difficulties in maintaining concentration
persistence or pace. Tr. 30. The ALJ found that, overall, the
evidence supported a conclusion that plaintiffs mental
impairments have shown a good response to medication and that
plaintiff remained functional though his abilities were
reduced by his impairments. Tr. 38. In determining plaintiffs
RFC, the ALJ, in addition to exertional limitations, found
that plaintiff could perform simple, routine, and repetitive
tasks not at a production rate, could make simple
work-related decisions, could have occasional contact with
supervisors and occasional incidental contact with
co-workers, and no interaction with the general public. Tr.
relies on the holding in Mascio v. Colvin, 780 F.3d
632, 638 (4th Cir. 2015), where the Fourth Circuit joined
with other circuits in finding that a restriction to simple,
routine tasks or unskilled work does not account for a
plaintiffs limitations in concentration, persistence, and
pace, to contend that the ALJ's RFC did not properly
account for his mental limitations. However, unlike the ALJ
in Mascio, the ALJ here did not simply limit
plaintiff to simple, routine, repetitive tasks or unskilled
work. Rather, the ALJ included further specific limitations
regarding the pace of work plaintiff could perform, the kinds
of decisions that plaintiff could make at work, and the
nature and extent of the contact plaintiff could maintain
with supervisors, co-workers, and the public. See, e.g.,
Weeks v. Colvin, No. 5:14-CV-155-D, 2015 WL 5242927, at
*2 (E.D. N.C. Sept.8, 2015) (limitations including occasional
contact with general public and few workplace changes
sufficiently accounts for limitations in concentration and
persistence); see also Russo v. Astrue, 421
Fed.Appx. 184, 192 (3d Cir. 2011) (limitation to non-quota
work sufficient to account for moderate difficulties in
concentration, persistence, and pace). The ALJ further
included specific examples of the limitations imposed,
including describing "occasional incidental contact with
coworkers" as a brief greeting. The Court finds that the
ALJ's limitations reflected in the RFC adequately address
the plaintiffs mental limitations and that the RFC is
supported by substantial evidence.
next contends that there is an unaddressed conflict between
the RFC limitation to non-production pace work and the jobs
identified by the vocational expert (VE) because some of the
jobs identified by the VE appear to be production jobs.
Social Security Ruling 00-4p requires that an ALJ must
"identify and obtain a reasonable explanation for any
conflicts between occupational evidence provided by VEs . . .
and information in the Dictionary of Occupational
Titles" and must "explain in the . . .
decision how any conflict that has been identified was
resolved." SSR 00-4p. "An expert's testimony
that apparently conflicts with the Dictionary can
only provide substantial evidence if the ALJ has received
this explanation from the expert and ...