Opinion
5:22-CV-00375-M
07-31-2023
Mecca McPherson, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Plaintiff Mecca McPherson challenges an Administrative Law Judge's decision to deny her application for social security income. McPherson claims that the ALJ made two errors in reaching that decision. First, the ALJ erred in evaluating the medical opinion evidence. And second, the ALJ misconfigured McPherson's residual functional capacity (RFC) by disregarding her limitations in concentrating, persisting, and maintaining pace. Both McPherson and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, seek a decision in their favor. D.E. 14, 18.
After reviewing the parties' arguments, the undersigned has determined that the ALJ reached the appropriate determination. The undersigned finds that the ALJ properly considered the medical opinions and mental health records. He explained his assessment of that evidence, as directed by an order of remand. The RFC determination sufficiently addresses McPherson's difficulties with pace. And it satisfactorily describes the limitation to nonproduction pace work. So the undersigned recommends that the court grant Kijakazi's motion, deny McPherson's motion, and affirm the Commissioner's determination.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
Because McPherson's claims relate to her mental health, the undersigned limits a recapitulation of the medical evidence to those conditions.
McPherson has a history of mental health issues. She is a high school graduate with some college education and served in the Army. Tr. at 1188. She alleged an inability to work because of her mental impairments, including PTSD, anxiety, and depression. Id.
McPherson received mental health treatment through the VA and took medications for her symptoms. Id. She worked at Sanderson Farms, but its fast-paced labor increased her anxiety. Id.
McPherson experiences depression. Id. She has difficulty keeping up and being around others. Id. She also struggles with focus and concentration, and has trouble sleeping with occasional nightmares. Tr. at 1188-89. And she reported low energy, crying spells, and an inability to focus to watch a two-hour movie. Tr. at 1189.
At a hearing in 2019, McPherson testified that she lived alone and had trouble interacting with others. Id. She experienced drowsiness, fatigue, and impaired concentration from her medications. Id. McPherson struggled with the pace of her previous work. Id. And she had varying moods and napped several times a week. Id.
At a second hearing in 2022, McPherson again noted that she lived alone. Id. She performed chores like doing laundry and washing dishes, and she shopped for groceries. Id.
McPherson underwent a VA disability examination with Mary Beth Barnes, Psy.D., in December 2014. Tr. at 1190. McPherson was a full-time student. Id. A mental status examination was generally unremarkable. Id. It noted a down mood and broad affect with occasional tearfulness but no overt psychosis. Id. She required some redirection for some circumstantial thoughts. Id. McPherson had good impulse control. Tr. at 1195. Records noted that she had hyperhidrosis, a symptom of her anxiety. Tr. at 1190
McPherson had relocated from out of state. Tr. at 1195. She had a difficult relationship with her sister and had a recent incident of road rage. Id. McPherson had seen a psychiatrist four times but has missed her last mental health appointment. Id. She could perform chores and run errands. Id. McPherson had left her job at the USPS a year earlier because of a relationship issue with her co-worker, who was also her boyfriend. Id. She went to the hospital that month but had no admissions for mental health issues since that time. Tr. at 1194, 1195.
Dr. Barnes assessed PTSD and borderline personality disorder, noting unstable interpersonal relationships and marked impulsivity. Tr. at 1195. She noted McPherson's “problems with concentration,” but found no traumatic brain injury. Id. Dr. Barnes determined that McPherson had occupational and social impairments that reduced her reliability and productivity. Id.
Additional records, some of which fall outside the relevant period, show that the VA made unsuccessful attempts at contacting McPherson about her mental health. Tr. at 1109. A November 2021 consultation noted that McPherson was attentive with goal-directed speech. Id. She had good and bad nights of sleep. Id. McPherson was stressed about a court case and requested anger management. Id.
A prior ALJ decision in June 2019 determined that McPherson could perform light work with nonexertional limitations. Tr. at 1191. She was limited to simple, routine, repetitive tasks with occasional interactions with coworkers and supervisors, but no public contacts as part of the job. Id.
VA records show that McPherson's depression and sleep issues improved with medication. Id. She worked part-time in 2018 and again in 2021. Id. And McPherson could prepare meals, drive, and care for her child. Tr. at 1193.
State agency medical consultants found that McPherson had mild limitations in understanding, remembering, and applying information and adapting or managing herself. Tr. at 1191. She was moderately limited in maintaining concentration, persistence, and pace and in interacting with others. Id.
Sean Sayers, Ph.D., found that McPherson could relate appropriately to the public on a limited basis, accept direction and criticism from supervisors, and relate appropriately to coworkers. Id. She could also adapt to routine changes and set realistic goals. Tr. at 1192. Although McPherson would have some difficulty with the stress of daily work and some lapses in concentration, she could maintain concentration, persistence, and pace to stay on-task in two-hour increments. Id.
At the reconsideration level, Jane Cormier, Ph.D., concluded that while some difficulty with attention and concentration may occur over extended periods, McPherson could understand and recall both simple and detailed tasks on a sustained basis. Id. She could respond appropriately to supervisors and to workplace changes but would work best in positions with reduced contact with others. Id.
The VA assigned McPherson an unemployable rating. Tr. at 1193. In March 2017, Julie Sawyer-Little, M.S., OTR/L, provided a private vocational assessment. Tr. at 1194. She found that McPherson's PTSD would make it harder to sustain employment. Id.
Physical therapy treatment records five months later note that McPherson had a slow pace but could complete all her exercises. Id. The next month, treatment notes show her condition improved. Id.
B. Procedural
In April 2017, McPherson applied for disability benefits alleging a disability that began in May 2015. After the Social Security Administration denied her claim at the initial level and upon reconsideration, McPherson appeared for a hearing before an ALJ to determine whether she was entitled to benefits. The ALJ determined McPherson had no right to benefits because she was not disabled. Tr. at 16-29.
After the Appeals Council affirmed that decision, McPherson filed an action in this court. See McPherson v. Saul, No. 5:20-CV-00391-BO (E.D. N.C. ). By Order dated July 20, 2021, the court granted a consent motion to remand the case for further consideration. Id. at D.E. 20.
McPherson had a second hearing with an ALJ to determine her eligibility for benefits. The ALJ determined again McPherson had no right to benefits because she was not disabled. Tr. at 1181-99.
The ALJ found that McPherson lived with several severe impairments. Among these were post-traumatic stress disorder (PTSD), major depressive disorder (MDD), personality disorder, substance use disorder, bipolar disorder, anxiety disorder, degenerative disc disease, chronic obstructive pulmonary disorder (COPD), chronic pain plantar fasciitis, hyperhidrosis, and osteoarthritis. Tr. at 1184. The ALJ also found that McPherson's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
Next, the ALJ determined that McPherson had the residual functional capacity (RFC) to perform light work with other limitations. Tr. at 1187. She can frequently climb rams and stairs and occasionally climb ladders, ropes, and scaffolds. Id. McPherson can frequently balance and occasionally stoop, kneel, crouch, and crawl. Id.
She must avoid concentrated exposure to temperature extremes of heat and pulmonary irritants such as fumes, odors, dust, gases, poor ventilation, and the like. Id. McPherson must also avoid concentrated exposure to workplace hazards such as dangerous, moving machinery and unprotected heights. Id.
McPherson can understand and perform simple, routine, repetitive tasks. Id. She can maintain concentration, persistence, and pace to stay on-task in two-hour increments over the course of an eight-hour workday, with normal breaks. Id. McPherson requires a low-stress work setting, which includes, in addition to the nature of the work, a work-setting that is not productionpace or quota-based. Id. Instead, she requires a goal-oriented job that deals primarily with things rather than people. Id. She can have occasional changes in her work setting. Id.
As part of her work, McPherson can have occasional interaction with coworkers and supervisors. Id. But she cannot have interaction with the public as part of the job, such as sales or negotiations. Id. This does not preclude incidental or casual public contact, as it might arise. Id. Yet the job itself may not require McPherson to work directly with the public to any extent. Id.
Then the ALJ concluded that McPherson could not perform her past relevant work as a unit supply clerk in the Army or post office clerk. Tr. at 1196. But considering her age, education, work experience, and RFC, the ALJ also found that other jobs existed in significant numbers in the national economy that McPherson could perform. Tr. at 1197-98. These include housekeeper, marker, and garment sorter. Id. These findings led the ALJ to conclude that McPherson was not disabled. Tr. at 1199.
After the Appeals Council declined review, McPherson commenced this action in September 2022. D.E. 1. Both parties seek the court to issue a decision in their favor. D.E. 14, 18.
II. Analysis
McPherson contends that the ALJ disregarded an order remanding her case because he failed to properly consider a mental health evaluation and mental health treatment records. The undersigned cannot agree with McPherson's position. The ALJ discussed the evidence that was the subject of the remand order and explained why he found the assessment by Dr. Barnes was only partially persuasive. And there is no error in the RFC determination. The undersigned disagrees with McPherson that the ALJ's use of the term non-production pace is fatally imprecise under Fourth Circuit case law. Instead, the ALJ provided context to explain the term and allow meaningful review. The undersigned also finds that this limitation addresses any trouble McPherson has with maintaining pace.
A. Standard for Review of the Acting Commissioner's Final Decision
When a claimant appeals the Commissioner's final decision, the district court considers whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
Under the Social Security Act, a claimant is disabled if they are 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 12 months.” 42 U.S.C. § 423(d)(1)(A). ALJs use a five-step, sequential process when considering disability claims. 20 C.F.R. § 404.1520.
First, at step one, the ALJ considers whether the claimant is engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). If so, the claim is denied. Id.
Then, at step two, the ALJ looks at whether the claimant has a severe impairment or combination of impairments that significantly limit him from performing basic work activities. Id. § 404.1520(a)(4)(ii). If not, the claim is denied. Id.
Next, at step three, the ALJ compares the claimant's impairments to those in the Listing of Impairments. Id. § 404.1520(a)(4)(iii). If the impairment appears in the Listing or if it is equal to a listed impairment, the ALJ must find that the claimant is disabled. Id.
But if the ALJ concludes that a presumption of disability is not warranted, the ALJ must then assess the claimant's residual functional capacity (“RFC”). A claimant's RFC “is the most work-related activity the claimant can do despite all of her medically determinable impairments and the limitations they cause.” Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83, 90 (4th Cir. 2020). Determining the RFC requires the ALJ to “first identify the claimant's ‘functional limitations or restrictions' and assess the claimant's ‘ability to do sustained work-related' activities ‘on a regular and continuing basis'-i.e., ‘8 hours a day, for 5 days a week, or an equivalent work schedule.'” Id. (quoting SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)). The ALJ will then “express the claimant's Residual Functional Capacity ‘in terms of the exertional levels of work[:] sedentary, light, medium, heavy, and very heavy.'” Id. (alteration in original).
After assessing the claimant's RFC, the ALJ, at step four, considers whether the claimant can perform his past work despite his impairments. Id. § 404.1520(a)(4)(iv). If the claimant can, the ALJ will deny the claim. Id. If the claimant cannot, the analysis moves on to step five.
This final step considers whether the claimant, based on his age, work experience, and RFC, can perform other substantial gainful work. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled; if so, they are considered disabled. Id.
The burden of proof shifts between the Commissioner and the claimant during the evaluation process. The claimant has the burden of proof on the first four steps, but the Commissioner bears it on the last one. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Opinion Evidence
McPherson claims that the ALJ erred in evaluating the medical opinion of Dr. Barnes as directed by the remand order. The Acting Commissioner maintains that the ALJ considered this evidence and explained his findings. The undersigned agrees that the ALJ discussed the evidence that was the subject of the remand order and sufficiently explained his reasons for finding that the assessment by Dr. Barnes was only partially persuasive.
“Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F.Supp.2d 740, 752 (W.D. Va. 2009) (“Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.”).
Because McPherson filed her application before March 2017, the revised rules for the assessment of medical opinion evidence do not govern how the ALJ considers the medical opinions here.
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Wardv. Chater, 924 F.Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's “decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight.” SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) (“In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.”).
Opinions from “other sources” who do not qualify as “acceptable medical sources” cannot be given controlling weight but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying “other sources”). An ALJ must explain the weight given opinions of “other sources” and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) (“In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.”).
Opinions from medical sources on issues reserved to the Commissioner, such as disability, deserve no special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 (“[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.”).
In 2014, Dr. Barnes examined McPherson, noting that her symptoms included outbursts and verbal aggression. Dr. Barnes assessed PTSD and borderline personality disorder. She concluded that McPherson would have occupational and social impairment with reduced reliability and productivity.
The ALJ found Dr. Barnes's assessment partially persuasive. Tr. at 1196. He noted that the examination occurred before the onset of disability. Id. Dr. Barnes's findings that McPherson needed “some” redirection and had “good” impulse control were vague. Id. Dr. Barnes's finding of social and occupational impairment affecting productivity and reliability was also vague. Id. And the limitations did not track the fairly benign mental status examination. Id. The ALJ concluded that Dr. Barnes based her assessment on McPherson's subjective statements. Id.
The ALJ pointed out that McPherson offered varying reasons for not participating in mental health treatment. Id. She testified that she left her USPS job because she could not keep up the pace but admitted that she had a bad relationship with a co-worker. Id. And he noted that she drove, ran errands, had been a full-time student, and helped her sister financially. Id. This evidence tracked the RFC determination and detracted from Dr. Barnes's findings.
McPherson argues that the ALJ failed to discuss treatment records that supported Dr. Barnes's assessment. And she asserts that this error is particularly problematic because the case was previously remanded to evaluate Dr. Barnes's opinion and McPherson's mental health.
The record discloses that McPherson used profanity to VA staff in May 2015. Five months later, although medications helped her, McPherson still experienced anger and irritability with others. In February 2017, she had a verbal altercation in a parking lot. She claimed frustration and irritability. Two months later, she cried when calling a suicide prevention line and shouted at the responder. Later that month, McPherson reported being easily irritated, but medications sometimes helped.
In December 2017, she had moods swings and would yell, although she was taking her medication. Authorities arrested McPherson two months later after she fought with a friend. The next month, she reported having arguments with various people. And she was tearful and angry three months later after the police were called again for another altercation.
McPherson claims the ALJ disregarded this evidence, which supports Dr. Barnes's findings and demonstrates her issues with temper control and social interactions. And she asserts that this error is material as the Vocational Expert testified about an employee's need to follow rules and respond appropriately to criticism in order to maintain employment.
Kijakazi maintains that the ALJ appropriately evaluated Dr. Barnes's assessment and McPherson's mental health records. As directed on remand, the ALJ considered the entire record, including VA ratings and the evidence underlying them. He discussed Dr. Barnes's assessment but concluded that it did not undermine the RFC determination.
The ALJ noted McPherson's daily activities. She had moved to North Carolina from Alabama. McPherson lived alone and had gone to church. Although she had difficult relationships, McPherson attended appointments, run errands, traveled to see her son, and had been a full-time student.
The ALJ also observed McPherson report of road rage and leaving her job because of difficulty with a coworker. And the ALJ discussed her mental health treatment. McPherson saw a psychiatrist four times but had no hospitalizations for her mental health treatment since 2013. She missed appointments and discontinued therapy.
The ALJ considered Dr. Barnes's evaluation. Mental status examination findings included anxiety, depressed mood, tearfulness, and impaired concentration, as well as a broad affect, an unremarkable thought process, and no overt evidence of psychosis. Dr. Barnes remarked that she needed some redirection, but she had good impulse control. Dr. Barnes diagnosed McPherson with bipolar disorder and PTSD symptoms. She found that McPherson had social and occupational impairment that would affect her reliability and productivity.
As noted above, the ALJ found this evaluation only partially persuasive. The ALJ explained his reasoning. It assessed limitations in vague terms. Dr. Barnes's findings did not track with other evidence, like benign mental status examination findings and normal daily activities. So it appeared to be based on McPherson's subjective statements rather than objective findings.
As Kijakazi points out, the ALJ credited some of Dr. Barnes's findings. McPherson could have limited interactions with others. The ALJ concluded that McPherson could perform simple, routine, repetitive tasks at a nonproduction pace. This restriction appears to address her trouble with productivity and pace.
The ALJ did not dispute McPherson's mental health impairments. But he observed that her daily activities, lack of inpatient treatment, and generally benign mental status examination findings support the RFC determination.
Other evidence bolsters the conclusion that McPherson could perform light work with nonexertional limitations. Physical therapy records noted McPherson had a slow pace but completed all tasks. And McPherson's work attempts after her date last insured also support a finding that her impairments are not disabling. So even with her mental health impairments, McPherson could still perform work consistent with the RFC finding.
The most recent ALJ decision expands on the previous decision, which was generally persuasive. It analyzes Dr. Barnes's assessment and the VA ratings. It points to discrepancies between McPherson's statements and other evidence. For instance, McPherson testified in both hearings that she could not work because of her pain. But she performed part-time work in 2018 and worked again in 2021, after her last insured date. She also stated she had trouble being around others and keeping up her mental health treatment. But McPherson also testified that medications helped her symptoms.
Kijakazi contends, and the undersigned agrees, that McPherson's present argument asks the court to reweigh the evidence. There is some evidence favoring McPherson's claim that her mental health symptoms restrict her ability to perform work-related activity. But her mental health symptoms are not disabling. The ALJ considered the entire record and noted evidence both supporting and discrediting a disability finding.
As directed by the remand order, the ALJ considered Dr. Barnes assessment and mental health records. McPherson may object to the ALJ's failure to discuss specific treatment records, but the Regulations impose no such burden on an ALJ. See Reid v. Comm'r of Soc. Sec., 769 F.3d 861, 865-66 (4th Cir. 2014) (ALJ need not discuss every piece of evidence in formulating the RFC).
In sum, the undersigned finds that substantial evidence supports the ALJ's consideration of Dr. Barnes's assessment. His reasons for finding it partially persuasive are supported by the record. And the ALJ corrected deficiencies in the previous decision through a detailed evaluation of Dr. Barnes's opinion and other mental health records.
While McPherson may disagree with the ALJ's evaluation of Dr. Barnes's opinion and other mental health records, she has not shown error. Lacking a basis for remand, the undersigned recommends that the court deny McPherson's claim on this issue.
D. Residual Functional Capacity
McPherson contends that the RFC is impermissibly ambiguous because the ALJ failed to explain the limitation to non-production pace work. And she claims the RFC fails to account for her moderate limitations with pace. The Acting Commissioner argues that RFC determination explains the phrase “non-production pace” and addresses McPherson's restrictions in maintaining pace. The undersigned finds that substantial evidence supports the RFC determination.
The RFC is a determination, based on all the relevant medical and non-medical evidence, of what a claimant can still do despite her impairments; the assessment of a claimant's RFC is the responsibility of the ALJ. See 20 C.F.R. §§ 404.1520, 404.1545, 404.1546; Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2. If more than one impairment is present, the ALJ must consider all medically determinable impairments, including medically determinable impairments that are not “severe,” when determining the claimant's RFC. Id. §§ 404.1545(a), 416.945(a). The ALJ must also consider the combined effect of all impairments regardless of whether any such impairment, if considered separately, would be of sufficient severity. Id. § 404.1523; see Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989) (“[I]n evaluating the effect[] of various impairments upon a disability benefit claimant, the [Commissioner] must consider the combined effect of a claimant's impairments and not fragmentize them.”).
The ALJ must provide “findings and determinations sufficiently articulated to permit meaningful judicial review.” DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Wyatt v. Bowen, 887 F.2d 1082, 1989 WL 117940, at *4 (4th Cir. 1989) (per curiam). The ALJ's RFC determination “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).” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting SSR 96-8p). Furthermore, “[t]he record should include a discussion of which evidence the ALJ found credible and why, and specific application of the pertinent legal requirements to the record evidence.” Radford v. Colvin, 734 F.2d 288, 295 (4th Cir. 2013). Fourth Circuit precedent “makes it clear that it is not [the court's] role to speculate as to how the ALJ applied the law to [her] findings or to hypothesize the ALJ's justifications that would perhaps find support in the record. Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015).
Social Security Ruling 96-8p explains how adjudicators should assess residual functional capacity. The Ruling instructs that the 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. “Only after that may [residual functional capacity] be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.” SSR 96-8p. The Ruling further explains that the residual functional capacity “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).” Id.
There is no “per se rule requiring remand when the ALJ does not perform an explicit function-by-function analysis[.]” Mascio, 780 F.3d at 636. But “[r]emand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). The function-by-function requirement can be satisfied by reference to a properly conducted analysis by a state agency consultant. See, e.g., Linares v. Colvin, No. 5:14-CV-00129, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with [Soc. Sec. Ruling] 96-8p” (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010))).
McPherson argues that the ALJ failed to perform a function-by-function analysis of her ability to concentrate, persist, and maintain pace. She asserts that he did not explain how the evidence supports his conclusions for nonexertional limitations. And McPherson contends that a restriction to nonproduction pace is undefined and conflicts with controlling case law.
The ALJ found that McPherson had moderate limitations in concentrating, persisting, and maintaining pace. Tr. at 1186. State agency psychological consultants assessed moderate limitations in this functional area. Id. Barnes had good concentration with an unremarkable thought process and thought content but there were concentration problems. Id.
The RFC limited McPherson to simple, routine, repetitive tasks performed at a nonproduction pace. Tr. at 1187. It found that she could maintain concentration, persistence, and pace to stay on-task for two-hour periods over the course of an eight-hour workday. Id. McPherson required a low-stress work setting and a goal-oriented job dealing with things rather than people. Id. The RFC further defined this restriction as a “work-setting not being production-pace or goalbased” in addition to the nature of work performed. Id.
Recent decisions from the Fourth Circuit have examined the phrase “nonproduction pace” in RFC determinations. In Sizemore v. Berryhill, the Fourth Circuit affirmed an ALJ's decision where the RFC included a limitation to “work only in [a] low stress [setting] defined as nonproduction jobs [without any] fast-paced work [and] no public contact.” 878 F.3d 72, 79 (4th Cir. 2017). Finding the additional “descriptors” explained the restriction intended by the ALJ, the Court of Appeals could evaluate whether the limitation for a non-production jobs adequately accounted for the claimant's limitations.
But in Thomas v. Berryhill, the Fourth Circuit held that an RFC restricting a claimant from work “requiring a production rate or demand pace” provided insufficient information to understand its meaning. 916 F.3d 307, 312 (4th Cir. 2019); see also Hernandez v. Saul, No. 3:19-CV-337-FDW, 2020 WL 3259802, at *5 (W.D. N.C. June 16, 2020) (remanding where “without any explanation, the Court cannot partake in any meaningful review of the ALJ's usage of the phrase ‘non-production work setting' and any purported limitations imposed regarding Plaintiff's moderate limitations in concentration, pace, or persistence”). The ALJ's failure to define the phrase in the RFC frustrated the court's ability to assess whether it accounted for the claimant's limitations. 916 F.3d at 312.
The Court of Appeals has also examined an RFC limitation to a “non-production oriented work setting” for a claimant with limitations in concentration, persistence, and pace. Perry v. Berryhill, 765 Fed.Appx. 869 (4th Cir. 2019). It remarked that the Regulations do not define the phrase, and the ALJ did not explain what he meant. Id. at 872. Noting the difficulty of evaluating whether the restriction “properly accounted for [claimant's] well-documented limitations in concentration, persistence, and pace[,]” the Court of Appeals remanded the matter for further consideration. Id.
The issue here is whether the ALJ articulated how the evidence supports his conclusion that McPherson can perform simple, routine, repetitive tasks and maintain concentration, persistence, and pace to stay on-task in two-hour periods in a low stress work setting not being production-pace or quota-based but instead a goal-oriented job that primarily deals with things rather than people, with no more than occasional work changes. Tr. at 1187. And the hypothetical questions posed to the Vocational Expert offer the same meaning of the phrase.
The hearing transcript reflects a hypothetical question that set forth the RFC adopted in the ALJ's decision but defined low stress work “by the work setting being production pace or quota based[.]” Tr. at 1232. This was the only hypothetical question posed to the Vocational Expert. So it appears to mistakenly omit a term to describe the restriction the RFC determined-“not” being productionpace or quota-based. Tr. at 1187.
The ALJ's RFC determination restricts McPherson to simple, routine, repetitive tasks that she can perform in two-hour periods. It elaborated on the phrase “non-production pace” to eliminate quota-based work and require a low stress work setting. The RFC further defined it to include goal-oriented jobs dealing with things rather than people, only occasional changes in the work setting, and occasional interactions with coworkers and supervisors, but no work with the public as part of the job. Other cases have affirmed similar restrictions. See John S. v. Saul, No. 1:20-CV-835, 2021 WL 1724930, at *4 (E.D. Va. Apr. 29, 2021) (upholding a limitation finding a claimant could not perform fast-paced work or work based on production quotas but could perform goal-oriented work in a low stress environment); Dunston v. Berryhill, No. 5:17-CV-380-FL, 2018 WL 4576783, at *1 (E.D. N.C. June 5, 2018) (finding no error when the claimant had a moderate limitation in concentrating, persisting, and maintaining pace and the RFC limited the claimant to simple, routine, repetitive tasks; occasional interaction with coworkers; no interaction with the public; and no performance of tasks that require a production pace), adopted, 2018 WL 4204639 (E.D. N.C. Sept. 4, 2018); see also Andrew E. v. Kijakazi, Civ. No. 22-1348-BAH, 2023 WL 144763, at *4 (D. Md. Jan. 10, 2023) (noting that several courts have found that “a limitation on ‘production rate or pace' combined with a prohibition on quotas provides enough detail for judicial review.”) (collecting cases)
Unlike in Perry and Thomas, the description of “non-production pace” provides enough context to allow the court to review the RFC without guessing at what is meant. So the RFC does not frustrates the court's ability to conduct a meaningful review. Thus, this issue provides no basis for remand.
McPherson also contends that the ALJ failed to explain how the RFC accounts for her difficulties with pace. She points to her testimony that she has trouble keeping up. And physical therapy treatment record noted her slow pace with exercises.
As noted above, the RFC found that she could perform simple, routine, repetitive tasks and maintain concentration, persistence, and pace to stay on-task for two-hour periods. Tr. at 1187. This limitation reflected state agency psychologist Dr. Sayers's assessment, who concluded that McPherson could perform simple, routine tasks in a nonproductive, low stress setting. Tr. at 1192. Records showing that McPherson was alert and oriented and made progress towards her goals supported this finding. Id. But McPherson maintains that Dr. Sayers's finding addresses her concentration and ability to stay on-task, not pace.
The RFC limited McPherson to a low stress work setting, which the ALJ explained meant a work setting that was “not production pace or quota based.” Tr. at 1187. This limitation specifically addresses any issues she has with pace. And it does not suffer from fatal ambiguity to prevent meaningful judicial review. To the extent that McPherson asserts that she requires additional limitations, based on her statements, the ALJ observed that the evidence did not fully support her statements.
In sum, McPherson has not shown that the RFC disregards her limitations in maintaining pace. Finding no error, the undersigned recommends that the court deny her claim.
McPherson also argues that the jobs identified at step five “appear” to conflict with her RFC for nonproduction pace work. But the VE found that the jobs identified were compatible with the RFC that limited her to nonproduction work. And the undersigned's review of the hearing testimony does not undermine that conclusion. And McPherson's argument requires one to assume facts that are not established. So the undersigned declines McPherson's invitation to characterize the jobs identified at step five as production-pace positions.
III. Conclusion
For all these reasons, the undersigned recommends that the court grant Kijakazi's motion for summary judgment (D.E. 18), deny McPherson's motion for judgment on the pleadings (D.E. 14), and affirm the Acting Commissioner's determination.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (M&R) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.