United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
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.).
applied for Supplemental Security Income (SSI) on October 2,
2014 (protective filing date), alleging
disability beginning December 13, 1991 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).
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.
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
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.”
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”].
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).
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. 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.
review of the evidence and testimony in the case, the ALJ
determined that, although Plaintiff does suffer from the
“severe” impairments 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 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].
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. 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”].
difficulties in concentration, persistence, or pace)
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. 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.
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).
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].
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. 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
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].
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. 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.
Plaintiffs argument that the ALJ committed reversible error
by failing to separately discuss Plaintiffs claim ...