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Newton v. Saul

United States District Court, D. South Carolina

July 11, 2019

CINDY MARIE NEWTON, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE

         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein she was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Rule 73.02(B)(2)(a), (D.S.C.).

         Plaintiff applied for Supplemental Security Income (SSI)[1] on October 2, 2014[2] (protective filing date), alleging disability beginning December 13, 1991[3] due to closed spina bifida, arthritis, neurogenic syncope, spinal bifida, degenerative arthritis, neurogenic syncope, club foot, social anxiety disorder, polycystic ovarian syndrome, depression, self harm, asthma, and migraines. (R.pp. 69-70, 81, 151-152, 183). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on July 11, 2017. (R.pp. 42-68, 109-111). The ALJ thereafter denied Plaintiff's claim in a decision issued October 11, 2017. (R.pp. 15-36). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-6).

         Plaintiff then filed this action in United States District Court. Plaintiff asserts that the ALJ made numerous errors in her decision, and that this case should be reversed for an award of benefits, or remanded for further proceedings. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is “substantial evidence.” [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th cir. 2008)[Noting that the substantial evidence standard is even “less demanding than the preponderance of the evidence standard”].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. “[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by ‘substantial evidence.'” Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Discussion

         Plaintiff was twenty-two years old on when she filed her application, and twenty-five years old at the time of the ALJ's decision. Plaintiff did not graduate from high school and did not obtain her GED.[4] She has no past relevant work. (R.pp. 34-35, 47, 49, 51). In order to be considered “disabled” within the meaning of the Social Security Act, Plaintiff must show that she has an impairment or combination of impairments which prevent her from engaging in all substantial gainful activity for which she is qualified by her age, education, experience, and functional capacity, and which has lasted or could reasonably be expected to last for a continuous period of not less than twelve (12) months.

         After a review of the evidence and testimony in the case, the ALJ determined that, although Plaintiff does suffer from the “severe” impairments[5] of obesity, degenerative disc disease, history of spina bifida, status post childhood cord release and club foot surgeries, seizures and syncope, migraine headaches, polycystic ovarian syndrome, depression, anxiety, and posttraumatic stress disorder (R.p. 17), she nevertheless retained the residual functional capacity (RFC) to perform sedentary work[6] with the limitations that she can never climb ladders/ropes/scaffolds and can only occasionally climb ramp/stairs, balance, stoop, kneel, crouch, and crawl; that she can have frequent exposure to hazards; and that she is limited to simple, routine tasks performed for two (2) hours at a time and can only have occasional interaction with the public. (R.p. 22). Since the Plaintiff did not have any past relevant work, the ALJ obtained testimony from a vocational expert (VE) and found at step five that there were jobs existing in significant numbers in the national economy that Plaintiff could perform with these limitations, and that she was therefore not entitled to disability benefits. (R.pp. 35-36, 63-67). See Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980)[ALJ may rely on VE opinion based on training, experience and familiarity with skills necessary to function in various jobs].

         Plaintiff argues that the ALJ erred in reaching her conclusions by failing to adequately explain how the limitations in Plaintiffs RFC account for her mental limitations; by making no findings as to the frequency or severity of Plaintiffs migraine headaches at the Listing level; by making no determination of the frequency or severity of Plaintiffs migraine headaches when formulating her RFC; by failing to conduct a function-by-function analysis; by cherry-picking evidence; by finding Plaintiff's symptoms of difficulty with sitting were inconsistent with the objective medical evidence; and by not complying with the Fourth Circuit's recent ruling in Woods v. Berryhill.[7] However, after a careful review and consideration of the evidence and arguments presented, the undersigned finds and concludes for the reasons set forth hereinbelow that there is substantial evidence to support the decision of the Commissioner, and that the decision should therefore be affirmed. Laws, 368 F.2d at 642 [Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion”].

         I.

         (Moderate difficulties in concentration, persistence, or pace)

         Plaintiff initially contends that the ALJ committed reversible error in accounting for her mental limitations in the RFC by failing to properly account for her moderate difficulties in concentration, persistence, or pace.[8] Plaintiff argues that the ALJ's limitation to unskilled work in the RFC does not account for this difficulty, citing to Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), which held that “an ALJ does not account ‘for a claimant's [moderate] limitations in concentration, persistence, and pace by restricting the hypothetical question to simple, routine tasks or unskilled work.' ” Mascio, 780 F.3d at 638, quoting Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). The Court determined in Marcio that the ability to perform simple, routine tasks is not the same as having the ability to stay “on task” during a workday, which is the limitation that would account for a claimant's impairment in concentration, persistence or pace. Mascio, 780 F.3d 638. However, contrary to Plaintiff's contention, the ALJ specifically discussed Plaintiff's mental limitations in her decision, including her moderate difficulties with regard to concentration, persistence, and pace, and made the following findings:

She can attend to and perform simple tasks without special supervision for at least two-hour periods. She is able to understand normal work-hour requirements and to be prompt within reasonable limits. She is able to work in coordination with or proximity to others without being unduly distracted as long as she has no more than occasional interaction with the public. She retains the ability to make simple, work-related decisions. Her symptoms would not interfere with satisfactory completion of a normal workday or workweek or require an unreasonable number of rest or cooling off periods [and] would not be off task during the workday other than during regular breaks.

(R.pp. 23-24).

         Therefore, the decision clearly reflects that the ALJ did account for Plaintiff's CPP limitation by restricting her not just to simple, routine tasks, but by limiting her time “on task” to two hour periods together with only occasional interaction with the public. (R.p. 22). She also found that Plaintiff's symptoms would not interfere with satisfactory completion of a normal workday. See Mascio, 780 F.3d at 638 [Proper for ALJ to find that limitation in CPP does not affect a claimant's ability to work]. The Winschel case, on which Mascio relies, recognized that “when medical evidence demonstrates that a claimant can engage in simple, routine tasks or unskilled work despite limitations in concentration, persistence, and pace, courts have concluded that limiting the hypothetical to include only unskilled work sufficiently accounts for such limitations.” 631 F.3d at 1180 (citing Simila v. Astrue, 573 F.3d 503, 521-22 (7th Cir.2009); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-76 (9th Cir.2008); Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001)). Here, of course, the ALJ went further, specifically addressing Plaintiff's ability to stay “on task” as part of the RFC, as required by Mascio. (R.pp. 22, 24).

         The ALJ's decision is supported by the findings of the state agency psychologists. Dr. Craig Horn, Ph.D., found that Plaintiff was able to understand and remember both simple and detailed instructions; that she is able to carry out short and simple instructions, as well as more detailed instructions; that she was not significantly limited in her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; that she was able to sustain an ordinary routine without special supervision; that she was not significantly limited in her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and that she was able to maintain concentration and attention for periods of at least two (2) hours. (R.pp. 93-94). Dr. Debra C. Price found that Plaintiff could perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; that she was not significantly limited in her ability to make simple work-related decisions; that Plaintiff was able to understand and remember simple and detailed instructions; that Plaintiff can carry out short and simple instructions but not detailed instructions; and that Plaintiff was able to maintain concentration and attention for periods of two (2) hours. (R.pp. 78-79). The opinions of these two psychologists provide substantial support for the ALJ's finding that, despite Plaintiff's overall moderate limitation in concentration, persistence, or pace, she would be able to perform simple, routine tasks for up to two (2) hours at a time, coupled with only occasional interaction with the public. Cf. Sizemore v. Berryhill, 878 F.3d 72, 80-81 (4th Cir. 2017)[rejecting the plaintiff's argument under Mascio where the ALJ relied on the opinion of the state agency psychologist that, notwithstanding moderate limitations in concentration, persistence, and pace, the plaintiff could sustain attention sufficiently to perform simple, routine, repetitive tasks in a low stress setting defined as non-production jobs without fast-paced work and with no public contact].

         The ALJ gave great weight to these mental assessments from the state agency consultants. (R.p. 31). See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986) [opinions of non-examining physicians can constitute substantial evidence to support the decision of the Commissioner]; see also Marquez v. Astrue, No. 08-206, 2009 WL 3063106, at *4 (C.D.Cal. Sept. 21, 2006)[No error where ALJ's RFC finding was even more restrictive than the exertional levels suggested by the State Agency examiner[9]. The ALJ also gave great weight to the opinion of Dr. John C. Whitley, a consultative psychological examiner, who opined that Plaintiff is able to “follow simple repetitive and routine instructions fairly well with minimal demands” and would “function best in a work setting with minimal to no contact with the public.” (R.pp. 31-32, 445-446). These records and opinions provide further substantial support for the ALJ's conclusions. Laws, 368 F.2d at 642 [Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion”].

         Plaintiff has not shown that the ALJ failed to comply with Marcio in reaching her decision, and the undersigned can discern no reversible error in the ALJ's treatment of the evidence or her findings with respect to Plaintiff's RFC in conjunction with Plaintiff's moderate limitation in concentration, persistence and pace. Clarke v. Bowen, 843 F.2d 271, 272-273 (8th Cir. 1988)[“The substantial evidence standard presupposes . . . a zone of choice within which the decision makers can go either way without interference by the Courts”]. Therefore, this claim is without merit. Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990) [Courts should properly focus not on a claimant's diagnosis, but on the claimant's actual functional limitations].

         II.

         (Listing 11.03)

         Plaintiff also contends that the ALJ erred by failing to explain why the evidence identified by Plaintiff as supporting her claim did not meet Listing 11.03.[10] However, the neurological Listings were revised effective September 29, 2016, and Listing 11.03 was removed and combined with Listing 11.02 in the revised version. See Hill v. Berryhill, No. 17-3198, 2019 WL 1232634 at * 3 (D.S.C. Mar. 18, 2019)(quoting 81 Fed.Reg. 43048-01, 2016 WL 3551949 (July 1, 2016)(emphasis added)[Applying revised rules to “new applications filed on or after the effective date of the rules, and to claims that are pending on or after the effective date.”] (emphasis in original). Accordingly, the ALJ properly considered and discussed Plaintiff s seizure and syncope impairments under Listing 11.02, which although addressing epilepsy, is the most similar Listing to Plaintiffs seizures and syncope. (R.pp. 19-20).

         Therefore, Plaintiffs argument that the ALJ committed reversible error by failing to separately discuss Plaintiffs claim ...


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