United States District Court, E.D. North Carolina, Western Division
LAURA G. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
E. GATES UNITED STATES MAGISTRATE JUDGE.
action, plaintiff Laura G. Johnson ("plaintiff' or,
in context, "claimant") challenges the final
decision of defendant Acting Commissioner of Social Security
Nancy A. Berryhill ("Commissioner") denying her
application for a period of disability and disability
insurance benefits ("DIB") on the grounds that she
is not disabled. The case is before the court on the
parties' motions for judgment on the pleadings. D.E. 18,
24. Both filed memoranda in support of their respective
motions (D.E. 19, 26) and plaintiff filed a reply (D.E.
motions were referred to the undersigned magistrate judge for
a memorandum and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B). See 18 July 2018 Text Ord. For the
reasons set forth below, it will be recommended that the
Commissioner's motion be granted, plaintiffs motion be
denied, and the Commissioner's decision be affirmed.
filed an application for DIB on 15 December 2013, alleging a
disability onset date of 1 May 2011. Transcript of
Proceedings ("Tr.") 20. The application was denied
initially and upon reconsideration, and a request for a
hearing was timely filed. Tr. 20. On 29 September 2016, a
hearing was held before an administrative law judge
("ALJ"), at which plaintiff, who was represented by
counsel, and a vocational expert testified. Tr. 20; 35-60.
The ALJ issued a decision denying plaintiffs claims on 1
November 2016. Tr. 20-30.
timely requested review by the Appeals Council. Tr. 150. On
29 August 2017, the Appeals Council admitted into the record
a statement by plaintiff (Tr. 262-65 (Ex. 18E)), but denied
the request for review. Tr. 1, 4.
time, the ALJ's decision became the final decision of the
Commissioner. 20 C.F.R. § 404.981. On 27 October 2017,
plaintiff commenced this proceeding for judicial review of
the ALJ's decision, pursuant to 42 U.S.C. § 405(g).
See Mot. to Proceed In Forma Pauperis
("IFP") (D.E. 1); Ord. Allowing IFP Mot. (D.E. 4);
Compl. (D.E. 5).
Standards for Disability
Social Security Act ("Act") defines disability as
the "inability 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 12 months." 42 U.S.C. §
423(d)(1)(A); see Pass v. Chater, 65 F.3d 1200, 1203
(4th Cir. 1995). "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
kind of substantial gainful work which exists in the national
economy." 42 U.S.C. § 423(d)(2)(A). The Act defines
a physical or mental impairment as "an impairment that
results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques."
Id. § 423(d)(3).
disability regulations under the Act
("Regulations") provide a five-step analysis that
the ALJ must follow when determining whether a claimant is
To summarize, the ALJ asks at step one whether the claimant
has been working; at step two, whether the claimant's
medical impairments meet the [Regulations' severity and
duration requirements; at step three, whether the medical
impairments meet or equal an impairment listed in the
[Regulations; at step four, whether the claimant can perform
her past work given the limitations caused by her medical
impairments; and at step five, whether the claimant can
perform other work.
The first four steps create a series of hurdles for claimants
to meet. If the ALJ finds that the claimant has been working
(step one) or that the claimant's medical impairments do
not meet the severity and duration requirements of the
[Regulations (step two), the process ends with a finding of
"not disabled." At step three, the ALJ either finds
that the claimant is disabled because her impairments match a
listed impairment [i.e., a listing in 20 C.F.R. pt.
404, subpt. P, app. 1 ("the Listings")] or
continues the analysis. The ALJ cannot deny benefits at this
If the first three steps do not lead to a conclusive
determination, the ALJ then assesses the claimant's
residual functional capacity ["RFC"], which is
"the most" the claimant "can still do
despite" physical and mental limitations that affect her
ability to work. [20 C.F.R.] § 416.945(a)(1). To make this
assessment, the ALJ must "consider all of [the
claimant's] medically determinable impairments of which
[the ALJ is] aware," including those not labeled severe
at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find
the claimant not disabled because she is able to perform her
past work. Or, if the exertion required for the
claimant's past work exceeds her [RFC], the ALJ goes on
to step five.
At step five, the burden shifts to the Commissioner to prove,
by a preponderance of the evidence, that the claimant can
perform other work that "exists in significant numbers
in the national economy," considering the claimant's
[RFC], age, education, and work experience. Id.
§§ 416.920(a)(4)(v); 416.960(c)(2);
416.1429. The Commissioner typically offers this
evidence through the testimony of a vocational expert
responding to a hypothetical that incorporates the
claimant's limitations. If the Commissioner meets her
burden, the ALJ finds the claimant not disabled and denies
the application for benefits.
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir.
2015) (some bracketing original).
was 58 years old on the alleged onset date of disability, 1
May 2011; 60 years old on the date last insured, which the
ALJ found to be 31 March 2013 (Tr. 22 ¶ 1); and 64 years
old on the dates of the hearing and issuance of the ALJ's
decision. See, e.g., Tr. 29 ¶ 7; 40. The ALJ
found that plaintiff has at least a high school education
(Tr. 29 ¶ 8) and past relevant work as an attorney (Tr.
29 ¶ 6).
the five-step analysis of 20 C.F.R. § 404.1520(a)(4),
the ALJ found at step one that plaintiff had not engaged in
substantial gainful activity from the date of alleged onset
of disability through her date last insured. Tr. 22 ¶ 2.
At step two, the ALJ found that through the date last insured
plaintiff had the following severe medically determinable
impairments: "depressive disorder versus major
depressive disorder, recurrent, severe; anxiety disorder;
hypertension, poorly controlled; and diabetes mellitus."
Tr. 22 ¶ 3. At step three, the ALJ found that through
the date last insured plaintiff did not have an impairment or
combination of impairments that meets or medically equals any
of the Listings. Tr. 23 ¶ 4.
determined that through the date last insured plaintiff had
the RFC to perform work at all exertional levels subject to
various nonexertional limitations as follows:
After careful consideration of the entire record, I find
that, through the date last insured, the claimant had the
[RFC] to perform a full range of work at all exertional
levels but with the following nonexertional limitations:
occasionally climb ladders and scaffolds; frequently climb
ramps and stairs; frequently balance; avoid concentrated
exposure to hazardous machinery and unprotected heights; work
would be limited to simple and routine tasks with only
occasional changes in the work setting; work in a low stress
job, which is defined as having no fixed production quotas;
no interaction with the public; and only occasional
interaction with coworkers.
Tr. 25 ¶ 5.
on his determination of plaintiff s RFC, the ALJ found at
step four that plaintiff was not able to perform her past
relevant work through the date last insured. Tr. 29 ¶ 6.
At step five, adopting the testimony of the vocational
expert, the ALJ found that through the date last insured
there were jobs existing in significant numbers in the
national economy that plaintiff could perform, including jobs
in the occupations of photocopy machine operator, garment
sorter, and warehouse checker. Tr. 29-30 ¶ 10. The ALJ
accordingly concluded that plaintiff was not disabled from
the alleged onset date of disability, again, 1 May 2011,
through the date last insured, 31 March 2013. Tr. 30
STANDARD OF REVIEW
42 U.S.C. § 405(g), judicial review of the final
decision of the Commissioner, here, the ALJ's decision
adopted by the Commissioner, is limited to considering
whether the decision is supported by substantial evidence in
the record and whether the appropriate legal standards were
applied. See Richardson v. Perales, 402 U.S. 389,
390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990). Unless the court finds that the
Commissioner's decision is not supported by substantial
evidence or that the wrong legal standard was applied, the
Commissioner's decision must be upheld. See Smith v.
Schweiker, 795 F.2d 343, 345 (4th Cir. 1986);
Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir.
1972). Substantial evidence is "such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Perales, 402 U.S. at 401 (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). It is more than a scintilla of evidence, but
somewhat less than a preponderance. Id.
court may not substitute its judgment for that of the
Commissioner as long as the decision is supported by
substantial evidence. Hunter v. Sullivan, 993 F.2d
31, 34 (4th Cir. 1992) (per curiam). In addition, the court
may not make findings of fact, revisit inconsistent evidence,
or make determinations of credibility. See Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v.
Califano, 599 F.2d 597, 599 (4th Cir. 1979). A
Commissioner's decision based on substantial evidence
must be affirmed, even if the reviewing court would have
reached a different conclusion. Blalock, 483 F.2d at
as here, the Appeals Council considers additional evidence
before denying the claimant's request for review of the
ALJ's decision, "the court must 'review the
record as a whole, including the [additional] evidence, in
order to determine whether substantial evidence supports the
Secretary's findings.'" Felts v.
Astrue, No. 1:11CV00054, 2012 WL 1836280, at *1 (W.D.
Va. 19 May 2012) (quoting Wilkins v. Sec'y Dep't
of Health & Human Servs., 953 F.2d 93, 96 (4th Cir.
1991)). Remand is required if the court concludes that the
Commissioner's decision is not supported by substantial
evidence based on the record as supplemented by the evidence
submitted at the Appeals Council level. Id. at *
a court can determine whether a decision is supported by
substantial evidence, it must ascertain whether the
Commissioner has considered all relevant evidence and
sufficiently explained the weight given to probative
evidence. See Sterling Smokeless Coal Co. v. Akers,
131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review
of an administrative decision is impossible without an
adequate explanation of that decision by the
administrator." DeLoatche v. Heckler, 715 F.2d
148, 150 (4th Cir. 1983); see also Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
OVERVIEW OF PLAINTIFF'S CONTENTIONS
contends that the ALJ's decision should be reversed and
this case should be remanded for a new hearing on the grounds
that the ALJ erred by: (1) improperly assessing plaintiffs
statements regarding her impairments, that is, her
symptoms; (2) not properly accounting for
plaintiffs limitations in concentration, persistence, and
pace in his RFC determination; (3) wrongfully basing the
limitation in the RFC of a low-stress job on absence of fixed
production quotas; and (4) improperly relying on the
vocational expert's testimony without resolving conflicts
between it and the Dictionary of Occupational Titles
("DOT"). Each ground is addressed in turn below.
ALJ'S ASSESSMENT OF PLAINTIFF'S SYMPTOMS
Applicable Legal Principles
noted, symptoms are defined under the Regulations as a
claimant's own descriptions of his impairments. 20 C.F.R.
§ 404.1528(a). The ALJ must employ a two-step process
for evaluating a claimant's symptoms:
First, we must consider whether there is an underlying
medically determinable physical or mental impairment(s) that
could reasonably be expected to produce an individual's
symptoms, such as pain. Second, once an underlying physical
or mental impairment(s) that could reasonably be expected to
produce an individual's symptoms is established, we
evaluate the intensity and persistence of those symptoms to
determine the extent to which the symptoms limit an
individual's ability to perform work-related activities
for an adult....
Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *2 (24 Mar.
2016); 20 C.F.R. § 404.1529(b), (c)(1); Craig,
76 F.3d at 594-95.
evaluating a claimant's symptoms at step two, the ALJ
must consider "the entire case record." Soc. Sec.
Ruling 16-3p, 2016 WL 1119029, at *4; 20 C.F.R. §
404.1529(c)(1) ("In evaluating the intensity and
persistence of your symptoms, we consider all of the
available evidence . . . ."); Craig, 76 F.3d at
595. The evidence and factors that are considered, when
relevant, include: the claimant's history; medical signs
and laboratory findings; statements from the claimant, the
claimant's treating and nontreating sources, and other
persons about how the claimant's symptoms affect the
claimant, including medical opinions; the claimant's
daily activities; the location, duration, frequency, and
intensity of the claimant's pain or other symptoms;
precipitating and aggravating factors; the type, dosage,
effectiveness, and side effects of any medication the
claimant takes or has taken to alleviate his pain or other
symptoms; treatment, other than medication, the claimant
receives or has received for relief of his pain or other
symptoms; any measures the claimant uses or has used to
relieve his pain or other symptoms; and other factors
concerning the claimant's functional limitations and
restrictions due to pain or other symptoms. 20 C.F.R. §
404.1529(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029,
at *4-7. The ALJ's decision "must contain specific
reasons for the weight given to the individual's
symptoms, be consistent with and supported by the evidence,
and be clearly articulated so the individual and any
subsequent reviewer can assess how the adjudicator evaluated
the individual's symptoms." Soc. Sec. Ruling 16-3p,
2016 WL 1119029, at *9.
summarized plaintiffs testimony and related exhibits as
The claimant alleged she was unable to work due to
depression, anxiety, panic attacks, diabetes mellitus, high
blood pressure, low thyroid functioning, high cholesterol,
phobias, gout, traumatic flashbacks, attention problems, and
obsessive behaviors. Side effects from medication included
high blood sugar levels and compulsive behaviors. Because of
her conditions, she reportedly had problems remembering,
concentrating, understanding, paying attention, and getting
along with others (2E/2 [disability report from plaintiff
listing alleged impairments]; 17E [brief from plaintiff
listing alleged severe impairments and citations to
supporting evidence]; HT [i.e., hearing testimony).
Tr. 25 ¶ 5.
made the step one finding that "[a]fter careful
consideration of the evidence, I find that the claimant's
medically determinable impairments could reasonably be
expected to cause the alleged symptoms." Tr. 25 ¶
5. However, at the second step, the ALJ found that
the claimant's statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this
decision. Overall the evidence generally does not support the
alleged loss of functioning.
Tr. 25 ¶ 5.
an approximately three-page review of plaintiffs treatment
records, an evaluation of the medical opinion evidence, and
discussion of his RFC determination, the ALJ set out four of
his reasons for discounting plaintiffs symptoms. He stated:
There are also several reasons why the evidence generally
does not support the alleged loss of functioning. First, the
claimant was not completely compliant with diet and exercise,
which contributed somewhat to elevated blood pressure levels.
Second, through the date last insured, there was no evidence
of symptoms worsening to the point where she required
extended inpatient treatment. Third, the record does not
contain any opinions from treating or examining physicians
indicating that the claimant is disabled or even has
limitations greater than those determined in this decision.
Fourth, as mentioned earlier, the record reflects work
activity after the alleged onset date. Although that work
activity did not constitute disqualifying substantial gainful
activity, it does indicate that the claimant's daily
activities had, at least at times, been somewhat greater than
the claimant had generally reported. For these reasons, the
evidence generally does not support the alleged loss of
functioning and any limitations imposed by the claimant's
impairments are accounted for sufficiently in the residual
Tr. 28 ¶ 5.
contends that each of the reasons given by the ALJ is
deficient and that the ALJ's errors in his assessment of
plaintiffs symptoms require remand. The court finds no
challenges the first reason given by the ALJ-noncompliance
with diet and exercise contributing to elevated blood
pressure-on the grounds that the ALJ failed to address
possible reasons for such noncompliance in purported
violation of Social Security Ruling 16-3p. S ...