Opinion
No. 2:17-CV-58-D
12-06-2018
GEORGE THOMAS KING, Plaintiff/Claimant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-18, -21] pursuant to Fed. R. Civ. P. 12(c). Claimant George Thomas King ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for Supplemental Security Income ("SSI") payments. The time for filing responsive briefing has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for SSI benefits on October 2, 2013, alleging disability beginning January 1, 2008. (R. 18, 211-19). The claim was denied initially and upon reconsideration. (R. 18, 88-128). A hearing before an Administrative Law Judge ("ALJ") was held on September 15, 2016, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 18, 43-71). On November 22, 2016, the ALJ issued a decision denying Claimant's request for benefits. (R. 15-42). On September 21, 2017, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 416.920 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 416.920a(e)(3).
In this case, Claimant alleges the ALJ committed the following errors: (1) failing to accord great weight to the opinion of Dr. Christopher Mann; (2) failing to properly assess Claimant's symptoms and credibility; (3) finding Claimant was capable of performing a reduced range of light work in the RFC assessment; and (4) failing to accurately set forth all of Claimant's physical and mental limitations in the hypothetical to the VE. Pl.'s Mem. [DE-19] at 20-24.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since the application date. (R. 20). Next, the ALJ determined Claimant had the following severe impairments: lumbar degenerative disc disease; right ankle fracture; hypertension; carcinoma of the salivary gland; generalized anxiety disorder; major depressive disorder; and schizoaffective disorder. Id. The ALJ determined Claimant's minimal degenerative joint disease of the bilateral knees and meniscus tear were non-severe impairments. (R. 20-21). At step three, the ALJ concluded Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 21-22). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments had resulted in mild restrictions in activities of daily living; moderate difficulties in social functioning and concentration, persistence, or pace; and no episodes of decompensation of an extended duration. Id.
Prior to proceeding to step four, the ALJ assessed Claimant's residual functional capacity ("RFC"), finding that Claimant had the ability to perform light work with the following restrictions:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 416.967(b).
[F]requently balance on narrow, slippery, or moving surfaces; frequently climb stairs; occasionally climb ladders; and frequently stoop, crouch, kneel, and crawl. He can never work at heights or around dangerous machinery. He can perform simple, routine, and repetitive tasks (i.e., can apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form and deal with problems involving several concrete variable in or from standardized situations[)]. He is able to concentrate for two-hour increments. He can have occasional contact with coworkers, supervisors, and the public. He is unable to work at a production [job]. He is unable to work at jobs requiring complex decision-making, constant change, or dealing with crisis situations.(R. 22-37). In making this assessment, the ALJ found Claimant's statements about the intensity, persistence, and limiting effects of his symptoms were "not entirely consistent with the medical evidence and other evidence in the record . . . ." (R. 24). At step four, the ALJ concluded Claimant had no past relevant work. (R. 37). At step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined there are jobs that exist in significant numbers in the national economy that Claimant can perform. (R. 37-38).
V. DISCUSSION
A. Opinion of Dr. Christopher Mann
Claimant contends the ALJ erred in failing to accord great weight to the opinion of Dr. Christopher Mann, Claimant's treating orthopedist, without providing sufficient reasons. Pl.'s Mem. [DE-19] at 20-21. The Commissioner contends the ALJ's evaluation of Dr. Mann's opinion is supported by substantial evidence. Def.'s Mem. [DE-22] at 4-7.
When assessing a claimant's RFC, the ALJ must consider the opinion evidence. 20 C.F.R. § 416.945(a)(3). Regardless of the source, the ALJ must evaluate every medical opinion received. Id. § 416.927(c). In general, the ALJ should give more weight to the opinion of an examining medical source than to the opinion of a non-examining source. Id. § 416.927(c)(1). Additionally, more weight is generally given to opinions of treating sources, who usually are most able to provide "a detailed, longitudinal picture" of a claimant's alleged disability, than non-treating sources such as consultative examiners. Id. § 416.927(c)(2). When a treating source's opinion is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record," the opinion is entitled to "controlling weight." Craig, 76 F.3d at 590 (quoting 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)). However, "if a physician's opinion is not supported by clinical evidence or if it is inconsistent with other substantial evidence, it should be accorded significantly less weight." Id.; see Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992) (stating "[t]he ALJ may choose to give less weight to the testimony of a treating physician if there is persuasive contrary evidence.").
If the ALJ determines that a treating physician's opinion should not be considered controlling, the ALJ must then analyze and weigh all of the medical opinions in the record, taking into account the following non-exclusive list: (1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist. Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005) (citing 20 C.F.R. § 404.1527). While an ALJ is under no obligation to accept any medical opinion, see Wireman v. Barnhart, No. 2:05-CV-46, 2006 WL 2565245, at *8 (W.D. Va. Sept. 5, 2006), the weight afforded such opinions must nevertheless be explained. S.S.R. 96-2p, 1996 WL 374188, at *5 (July 2, 1996); S.S.R. 96-6p, 1996 WL 374180, at *1 (July 2, 1996). An ALJ may not reject medical evidence for the wrong reason or no reason. Wireman, 2006 WL 2565245, at *8. "In most cases, the ALJ's failure to consider a physician's opinion (particularly a treating physician) or to discuss the weight given to that opinion will require remand." Love-Moore v. Colvin, No. 7:12-CV-104-D, 2013 WL 5350870, at *2 (E.D.N.C. Sept. 24, 2013) (citations omitted).
Rulings 96-2p and 96-6p were rescinded, effective March 27, 2017, and therefore still apply to this claim. 82 Fed. Reg. 15263-01 & 15263-02 (Mar. 27, 2017).
On November 13, 2013, Dr. Mann provided a letter regarding Claimant, which stated as follows: "This patient has significant degenerative disc disease in his lumbar spine at multiple levels. He also has degenerative joint disease at multiple facet joints in the lumbar spine. These contribute to chronic back pain and stenosis in the lumbar spine." (R. 346). The ALJ gave little weight to Dr. Mann's opinion because "claimant has not had any significant treatment of his back pain other than medications received at the emergency department." (R. 35).
Claimant contends Dr. Mann's opinion was entitled to great weight because it was supported by the longitudinal record and objective medical findings, specifically two diagnostic studies and Claimant's course of treatment with the Community Care Clinic. Pl.'s Mem. [DE-19] at 21. The ALJ acknowledged the lumbar spine x-rays and MRI demonstrating moderate to severe degenerative disc disease at L5-S1 and mild to moderate foraminal narrowing, mild facet hypertrophy, and disc bulges, which were part of the records from the Community Care Clinic. (R. 24, 364-66). The ALJ also discussed Claimant's course of treatment related to his chronic back pain, including his multiple visits to the emergency department and his treatment with Dr. Mann at Vidant Orthopedics. (R. 24-28, 30-34).
In evaluating Dr. Mann's opinion, the ALJ appropriately considered Claimant's course of treatment, which included medications but no other significant treatment such as physical therapy or injections, both of which Claimant declined. See Hall v. Berryhill, No. 5:16-CV-802-RJ, 2017 WL 4330356, at *7 (E.D.N.C. Sept. 29, 2017) ("[A]n ALJ may discount an opinion where it is inconsistent with a conservative course of treatment.") (citing Bright v. Colvin, No. 4:13-CV-226-FL, 2014 WL 5871348, at *10 (E.D.N.C. Nov. 12, 2014) (finding no error in the ALJ's decision to give a treating physician's opinion only some weight because, among other things, the opinion was inconsistent with the conservative nature of the claimant's treatment)). Furthermore, it is unclear how assigning more weight to Dr. Mann's opinion would change the ultimate outcome. Dr. Mann opined that Claimant's back impairments contribute to his pain, and the ALJ acknowledged as much. (R. 24). Dr. Mann's opinion says nothing about the degree to which Claimant's back impairments limit is ability to function or what, if any, restrictions are appropriate. See Jackson v. Berryhill, No. 7:15-CV-229-D, 2017 WL 685603, at *5 (E.D.N.C. Jan. 23, 2017) (citing Hurtado v. Astrue, No. 1:09-1073-MBS-SVH, 2010 WL 3258272, at *11 (D.S.C. July 26, 2010) (error in an opinion is harmless because it would not change the outcome of the ALJ's decision)), adopted by 2017 WL 694484 (E.D.N.C. Feb. 19, 2017). The ALJ's discussion of the medical evidence coupled with his discussion, albeit brief, of Dr. Mann's opinion provide substantial evidence for discounting Dr. Mann's opinion. See Dunn v. Colvin, 607 F. App'x 264, 276 (4th Cir. 2015) ("[T]he fact that the ALJ could have offered a more thorough explanation for his decision does not change our conclusion that substantial evidence in the record supports that decision."). Accordingly, the ALJ did not commit reversible error in weighing Dr. Mann's opinion.
Claimant was offered and declined physical therapy in November 2014 (R. 30, 548-50). Claimant agreed to physical therapy in May 2016 (R. 32, 554-55), but there are no subsequent physical therapy treatment notes in the record. --------
B. Claimant's Subjective Symptoms and Credibility
Claimant contends objective testing and his course of treatment support his reports of chronic back, hip, knee, and ankle pain that substantially limit his ability to perform work on a sustained basis, and the ALJ's credibility assessment is not supported by objective evidence. Pl.'s Mem. [DE-19] at 22-24. Defendant contends substantial evidence supports the ALJ's evaluation of Claimant's subjective complaints. Def.'s Mem. [DE-22] at 9-12.
When assessing the RFC, an ALJ must consider a claimant's subjective symptoms, including pain. 20 C.F.R. § 416.929(a); S.S.R. 16-3p, 2016 WL 1119029 (Mar. 16, 2016) (effective Mar. 28, 2016). Federal regulation 20 C.F.R. § 416.929 provides the "authoritative standard" for the evaluation of subjective complaints of pain and symptomology, whereby "the determination of whether a person is disabled by pain or other symptoms is a two-step process." Craig, 76 F.3d at 593-94. First, the ALJ must objectively determine whether the claimant has medically documented impairments that could cause his or her alleged symptoms. Id. at 594 (citing 20 C.F.R. §§ 404.1529(b), 416.929(b)). If the ALJ makes an affirmative finding at the first step, at the second step the ALJ must evaluate "the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work." Id. at 595 (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)).
The ALJ must consider "not only the claimant's statements about her pain, but also 'all the available evidence,' including the claimant's medical history, medical signs, and laboratory findings; any objective medical evidence of pain (such as evidence of reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.); and any other evidence relevant to the severity of the impairment, such as evidence of the claimant's daily activities, specific descriptions of the pain, and any medical treatment taken to alleviate it." Id. (internal citations omitted) (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)). While objective medical evidence must be considered in evaluating pain and other subjective symptoms, "because pain is subjective and cannot always be confirmed by objective indicia, claims of disabling pain may not be rejected 'solely because the available objective evidence does not substantiate [the claimant's] statements' as to the severity and persistence of her pain." Craig, 76 F.3d at 595 (quoting 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2)).
The ALJ recounted Claimant's testimony regarding his physical impairments and pain as follows:
He stated he had pain in his back, hips, knees, and ankles. He said he had arthritis. The claimant testified he goes to New Horizons and has problems remembering things. He stated he was prescribed a cane and uses a brace on each knee. He said Dr. Mann prescribed the knee braces. The claimant testified he worked hard in roofing and landscaping and wore himself out. He stated he had Medicaid. He said he went to Vidant Orthop[]edics in 2016. The claimant testified it is uncomfortable to sit, and he can sit for 15 minutes. He stated he has pain in his back, hips, knee, and leg. He said his ankle always has pain and needles shoot up. The claimant testified he can walk 15 to 30 feet and can lift five pounds. The claimant testified he lies down during the day and has problems going up and down the steps. He stated he cannot climb ladders. He said he needs the cane to walk and maintain his balance (Hearing Testimony).(R. 24). The ALJ then found,
[C]laimant'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. . . . [T]hese statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence.Id. After discussing Claimant's treatment history, the ALJ concluded as follows:
The undersigned finds the claimant's lumbar degenerative disc disease; right ankle fracture; hypertension; carcinoma of the salivary gland; generalized anxiety disorder; major depressive disorder; and schizoaffective disorder, alone or in combination, does not preclude all work activity. On February 19, 2013, x-rays of the lumbar spine showed moderate to severe degenerative disc disease at L5-S1 (Ex. B4F). A lumbar MRI on September 16, 2013, showed mild to moderate foraminal narrowing, mild facet hypertrophy, and disc bulges but no neural compromise (Ex. B2F). He was treated in the emergency department for back pain and received
medications. However, he has not been treated with steroid injections or physical therapy. He had a right ankle fracture for which surgery was recommended; however, he refused surgery and casting and continued to walk on his ankle after he was informed to be non-weightbearing (Ex. B8F). At the consultative internal medicine evaluation, his blood pressure was elevated. He refused to attempt many of the tests requested by Dr. Riddick (Ex. B5F). . . . The claimant complained of bilateral knee pain; however, x-rays of the bilateral knees on September 23, 2014, showed no significant osseous abnormality (Ex. B9F). In July 2015, x-rays of the bilateral knees showed only minimal degenerative joint disease. He appeared several times with a cane, but there is no indication that a cane was prescribed or was medically necessary. In July 2015, the claimant reported doing manual labor. Bilateral knee x-rays in May 2016 showed no evidence of degenerative changes, joint space narrowing, avascular nec[]rosis, deformity, or any bone or soft tissue lesions. (Ex. B14F). . . . The undersigned finds the limitation to light work with additional postural and environmental limitations adequately accommodates his physical impairments.(R. 33-34).
In assessing the Claimant's RFC, the ALJ considered Claimant's complaints of pain and other relevant evidence, including medical history, objective medical evidence, and medical treatment. The ALJ discounted Claimant's testimony regarding the severity of his pain based primarily on his lack of treatment other than medication for his back impairments, as well as his failure to follow recommended treatment for his ankle impairment and minimal objective evidence regarding his knee impairment. See Ladda v. Berryhill, No. 17-1366, 2018 WL 5096065, at *3 (4th Cir. Oct. 18, 2018) (finding no error in the ALJ's credibility determination where the ALJ sufficiently explained how the evidence supported his conclusions, including evidence that existing treatments managed the claimant's pain and the claimant failed to follow his doctor's advice and pursue physical therapy when it could have helped ease the claimant's pain). With respect to Claimant's hip pain, the ALJ in discussing Claimant's treatment history noted as follows: 2013 x-rays showed mild degenerative changes in his right hip, Claimant reported back pain radiating to his hip throughout 2013 and 2014, and Claimant had no hip pain with range of motion in November 2014 and May 2016. (R. 24-32). The ALJ also noted Claimant reported in August 2016 that braces helped with his knee pain. (R. 33). The ALJ's reasoning relies on appropriate considerations when evaluating the extent to which pain affects an individual's ability to work, see Craig, 76 F.3d at 593-94, and the ALJ's determination regarding Claimant's subjective symptoms and credibility is supported by substantial evidence. Accordingly, the ALJ did not err in evaluating Claimant's subjective symptoms and credibility.
C. Claimant's Ability to Perforin Light Work
Claimant contends that, due to his chronic back and hip pain, he cannot sit, stand, or walk for six hours in an eight-hour workday, consistent with the requirements of light work. Pl.'s Mem. [DE-19] at 21-22. Defendant contends Claimant has failed to cite specific evidence in support of his argument, and the ALJ thoroughly discussed the evidence and sufficiently explained the RFC determination. Def.'s Mem. [DE-22] at 7-9.
An individual's RFC is the capacity an individual possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 416.945(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 416.945(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5. Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted).
The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The RFC "assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." S.S.R. 96-8p, 1996 WL 374184, at *7; see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
Claimant does not indicate specifically what evidence demonstrates that he cannot sit, stand, or walk for six hours in an eight-hour workday but rather generally refers to his back and hip pain. Pl.'s Mem. [DE-19] at 21-22. However, as discussed above, the ALJ appropriately considered Claimant's allegations of pain, and the ALJ's conclusion that Claimant's pain did not preclude a reduced range of light work is supported by substantial evidence. Additionally, in formulating the RFC, the ALJ considered Claimant's testimony, his medical history, the objective medical evidence, his treatment history, and the opinion evidence and sufficiently explained his conclusions. (R. 24-37); 20 C.F.R. § 416.945(a)(3); S.S.R. 96-8p, 1996 WL 374184, at *5. Thus, the ALJ did not err in the RFC determination because he applied the correct legal framework and substantial evidence supports the RFC.
D. Hypothetical to the VE
Finally, Claimant contends the ALJ failed to accurately set forth all of Claimant's physical and mental limitations in the hypothetical to the VE. Pl.'s Mem. [DE-19] at 24. Specifically, Claimant asserts that the RFC exceeded his limited ability to sit, stand, and walk, to sustain attention and follow instructions, to relate to others, and to tolerate stress. Id. Claimant relies on his hearing testimony, two consultative examinations, multiple GAF scores, and statements by Ms. Demooy and Mr. Damoth at Port Human Services. Id. Defendant contends the ALJ's hypothetical was proper and supported by substantial evidence. Def.'s Mem. [DE-22] at 12.
The purpose of a VE's testimony is "to assist the ALJ in determining whether there is work available in the national economy which this particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). In order for a VE's opinion to be "relevant or helpful," it must be given in response to a proper hypothetical question. Id. A proper hypothetical question "fairly set[s] out all of claimant's impairments" that are supported by the record. Id.; Russell v. Barnhart, 58 F. App'x 25, 30 (4th Cir. 2003) (per curiam) (holding the ALJ's hypothetical question "adequately contemplated all of [Claimant's] impairments and resulting limitations" as evidenced by the record); Cannon v. Astrue, No. 4:08-CV-160-D, 2010 WL 902485, at *2 (E.D.N.C. Mar. 11, 2010).
Claimant's argument related to his limited ability to sit, stand, and walk is derivative of the RFC argument addressed above and is rejected here for the same reasons. Claimant also contends the ALJ's hypothetical did not sufficiently address his limitations in the ability to sustain attention and follow instructions, relate to others, and tolerate stress. In the hypothetical to the VE, the ALJ posed the following relevant limitations: perform simple, routine, and repetitive tasks, i.e., apply common sense and understanding, carry out instructions furnished, in written, oral, or diagrammatic form, and deal with problems involving several concrete variables in or from standardized situations; concentrate for two-hour increments; occasional contact with co-workers, supervisors, and the public; no jobs that require complex decision-making, constant change, or dealing with crisis situations; and no production work. (R. 67-68). These same limitations were ultimately included in the RFC. (R. 22-23).
The ALJ assessed Claimant's mental impairments at step three and determined Claimant had moderate difficulties in social functioning and in concentration, persistence, or pace. (R. 21-22). The ALJ specifically noted the following evidence: Claimant reported he had difficulty remembering and had to write things down, had difficulty communicating with others, and preferred not to be with people he did not agree with; at a consultative examination, Claimant was unable to count in serial 3 s, to subtract 82 from 100, to interpret proverbs, or to remember three out of three unrelated items following five minutes; and Claimant's attention and concentration were noted as "focused" during visits to Port Human Services. (R. 21-22, 50, 59, 383, 402-04, 462-63, 489-536, 538-39).
In the RFC discussion, the ALJ recounted Claimant's testimony at the hearing that he has difficulty remembering things and prefers not to be around people because it causes him stress (R. 24) but explained that Claimant routinely had normal mental status examinations and reported doing well on his medications. (R. 34, 383, 402-04, 489-536).
As for the opinion evidence, the ALJ considered Claimant's Global Assessment of Functioning ("GAF") scores, ranging from 40 to 55, but gave them little weight because they were "not indicative of long-term functioning" and "not consistent with the claimant's generally normal mental status exams and positive response to medication." (R. 34, 325, 340, 383, 395, 399, 402-04, 411, 489-536).
The ALJ also considered the opinions of Demooy, a clinical social worker, and Damoth, a counselor with specialties in rehabilitation and addiction, both at Port Human Services. (R. 35). These providers noted Claimant had moderate impairment with school and job performance. (R. 492-98, 540-45). The ALJ discounted these opinions based on Claimant's treatment notes from Port Human Services that indicated he exhibited normal mental status exams and reported a positive response to psychotropic medication. (R. 35, 383, 402-04, 489-536); 20 C.F.R. § 416.927(c)(4) ("Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.").
Finally, the ALJ considered the consultative opinion of Dr. Farmer that Claimant was limited in his ability to follow instructions and to relate to others, may be somewhat limited in the ability sustain attention to perform simple tasks, and most probably was limited in his ability to tolerate the stress of day-to day work. (R. 35, 461-63). The ALJ gave this opinion little weight because it was "based on a one-time visit, and the claimant had regular treatment at Port Human Services with normal mental status examinations." (R. 35, 383, 402-04, 489-536); 20 C.F.R. § 416.927(c)(4).
The ALJ considered all of the evidence cited by Claimant in support of his argument that further limitations were necessary in the hypothetical to the VE, and the ALJ sufficiently explained why this evidence did not support further limitations. Accordingly, the ALJ posed a proper hypothetical to the VE.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-18] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-21] be ALLOWED, and the final decision of the Commissioner be affirmed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until December 20, 2018 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir.
1985).
SUBMITTED, the 6th day of December 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge