Opinion
5:19-CV-93-FL
11-26-2019
JOSEPH NIETO, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Joseph Nieto ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Commissioner of Social Security Andrew Saul ("Commissioner") denying his application for Supplemental Security Income ("SSI") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 14, 16. Both filed memoranda in support of their respective motions. D.E. 15, 17. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 18 Sept. 2019 Text Ord. For the reasons set forth below, it will be recommended that the Commissioner's motion be granted, plaintiff's motion be denied, and the Commissioner's final decision be affirmed.
I. BACKGROUND
A. Case History
Plaintiff filed an application for SSI on 24 June 2015 alleging a disability onset date of 22 April 2015. Transcript of Proceedings ("Tr.") 15. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 15; 120. On 17 August 2017, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 15; 30-78. Also at the hearing, plaintiff amended the alleged disability onset date to correspond to the application filing date, 24 June 2015. Tr. 34-35. The ALJ issued a decision denying plaintiff's claims on 16 November 2017. Tr. 15-25.
Plaintiff timely requested review by the Appeals Council. Tr. 248-49. On 7 January 2019, the Appeals Council denied the request. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481. On 11 March 2019, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 1383(c)(3). See D.E. 1 (In Forma Pauperis ("IFP") Mot.); D.E. 4 (Order Allowing IFP Mot.); D.E. 5 (Compl.).
The court is reviewing the ALJ's decision under the versions of the regulations and Social Security rulings applicable to plaintiff's claim in this appeal, although several are subject to modifications that subsequently went into effect.
B. Standards for Disability
The Social Security Act ("Act") defines an individual as disabled for purposes of SSI "if he is 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 twelve months." 42 U.S.C. § 1382c (a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which arc demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. § 1382c(a)(3)(D).
The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [R]egulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [R]egulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (some bracketing original).
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [R]egulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step.
If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1). To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant numbers in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429. The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.
C. ALJ's Findings
Plaintiff was 22 years old on the alleged disability onset date and 24 years old on the date of the hearing and issuance of the ALJ's decision. Tr. 23 ¶ 6. The ALJ found that he has at least a high school education (Tr. 23 ¶ 7) and no past relevant work (Tr. 23 ¶ 5).
Applying the five-step analysis of 20 C.F.R. § 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the application date of 24 June 2015. Tr. 17 ¶ 1. At step two, the ALJ found that plaintiff has the following medically determinable impairments that are severe: schizophrenia spectrum, other psychotic disorders, and depressive, bipolar, and related disorders. Tr. 17 ¶ 2. At step three, the ALJ found that plaintiff does not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 17 ¶ 3.
The ALJ next determined that plaintiff has the RFC to perform a limited range of work at all exertional levels:
After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to hearing and understanding simple oral instructions and to communicating simple information; further, he is limited to the performance of simple, routine, and repetitive tasks but not at a production rate pace (e.g., assembly line work); he is limited to simple work-related decision[s]; and he can occasionally interact with supervisors, coworkers, and the public.Tr. 19 ¶ 4.
At step four, as indicated, the ALJ found that plaintiff has no past relevant work. Tr. 23 ¶ 5. At step five, citing the testimony of the vocational expert, the ALJ found that there are jobs in the national economy existing in significant numbers that plaintiff can perform, including jobs in the occupations of office cleaner, photocopy machine operator, and kitchen helper. Tr. 23-24 ¶ 9. The ALJ accordingly concluded that plaintiff has not been disabled since the application date, 24 June 2015. See Tr. 24 ¶ 10.
II. STANDARD OF REVIEW
Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.
The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.
Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
III. OVERVIEW OF PLAINTIFF'S CONTENTIONS
Plaintiff contends that the ALJ's decision should be reversed and benefits awarded him or, alternatively, that this case should he remanded for a new hearing on the grounds that the ALJ erred in: (1) evaluating the opinions of plaintiff's treating psychiatrist, Waheed Bajwa, M.D., and (2) accounting for side effects of plaintiff's medication in the RFC determination. Each ground is addressed in turn below.
IV. ALJ'S ASSESSMENT OF DR. BAJWA'S OPINIONS
A. Applicable Legal Principles
"Medical opinions are statements from acceptable medical sources [which include licensed physicians and psychologists] 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. § 416.927(a)(1). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. § 416.927(c); Nicholson v. Comm'r of Soc. Sec. Admin., 600 F. Supp. 2d 740, 752 (N.D.W. 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.").
The Regulations provide that opinions of treating physicians and psychologists on the nature and severity of impairments arc to be accorded 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. § 416.927(c)(2); see Craig, 76 F.3d at 590; Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); see generally Soc. Sec. Ruling 96-2p, 1996 WL 374188 (2 July 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In this circumstance, the Regulations prescribe factors to be considered in determining the weight to be ascribed, namely, the length of the treating relationship and frequency of examination, the nature and extent of the treating relationship, the supportability of the opinions, their consistency with the record as a whole, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. § 416.927(c)(2)-(6).
The factors used to determine the weight to be accorded the opinions of physicians and psychologists (and other "acceptable medical sources") not given controlling weight also apply to the opinions of providers who are deemed to be at a different professional level (or so-called "other sources"). See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *2, 4 (9 Aug. 2006); see also 20 C.F.R. § 416.913(d) (partial listing of "other sources"). As with opinions from physicians and psychologists, the ALJ must explain the weight given opinions of other sources and the reasons for the weight given. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, Civ. No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. 1 May 2013). The fact that an opinion is from an acceptable medical source may justify giving that opinion greater weight than an opinion from a source that is not an acceptable medical source, although circumstances can justify giving opinions of sources that are not acceptable sources greater weight. Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *5.
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." Soc. Sec. Ruling 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. § 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. 6 Mar. 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 medical sources on the ultimate issue of disability and other issues reserved to the Commissioner are not entitled to any special weight based on their source. See 20 C.F.R. § 416.927(d); Soc. Sec. Ruling 96-5p, 1996 WL 374183, at *2, 5 (2 July 1996). But these opinions must still be evaluated and accorded appropriate weight. See Soc. Sec. Ruling 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 is required to 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.").
B. Analysis
Medical records show that plaintiff was seen at the clinic where Dr. Bajwa practices, Cary Behavioral Health, P.C. ("CBH"), on 27 occasions between 13 May 2015 and 7 July 2017 for management of his psychiatric medication. See Tr. 267-70, 276-81, 286-87, 290-95, 309, 312-26, 331-52. Plaintiff's treatment at CBH followed a voluntary three-day hospitalization in April 2015 for psychotic and other psychiatric symptoms, including suicidal ideation and auditory hallucinations. See Tr. 20 ¶ 4. The records of the visits indicate that at virtually all of them, if not all, plaintiff was seen by a nurse practitioner or other nonphysician provider rather than Dr. Bajwa. In his decision, the ALJ reviewed comprehensively, almost visit by visit, plaintiff's treatment at CBH. See Tr. 20-22 ¶ 4. Together with the April 2015 hospital records for plaintiff, which the ALJ also reviewed (see Tr. 20 ¶ 4), the records from CBH comprise almost all medical records in the administrative transcript.
Although almost all visits are assigned a purportedly sequential number (e.g., Encounter #8), not all such numbers accurately reflect the sequence in which the visit occurred.
In a letter dated 9 August 2017 to plaintiff's counsel at the time, Dr. Bajwa set out a summary of background information on plaintiff, a review of plaintiff's psychiatric history, and an assessment of plaintiff's prognosis and functional limitations. Tr. 356-57. The ALJ reviewed the prognosis and functional limitations found by Dr. Bajwa as follows:
In August 2017, Dr. Waheed Bajwa wrote a letter in which he stated that the claimant had fair-to-poor prognosis because of the chronicity of symptoms, relapse of symptoms when medications are stopped, a history of poor compliance, and on-going negative symptoms of Schizophrenia. Further, he wrote that the claimant would experience significant difficulties in functioning because of [the] impact of positive symptoms of Chronic Paranoid Schizophrenia on cognition, ability to concentration [sic], abstract reasoning, and impairment in memory, and that negative symptoms would impact the claimant's motivation, speech, social drive, and social interest. Further, he noted that the claimant would experience difficulties in staying on task and attending work on a regular and continuing basis. (Exhibit 9F).Tr. 22 ¶ 4.
This review tracks almost verbatim the opinions of Dr. Bajwa as he expressed them:
Prognosis:
Fair - Poor because of chronicity of symptoms, relapse of symptoms when medications are stopped, history of poor compliance and on going negative symptoms of Schizophrenia.
Functional Limitations:
Patient will experience significant difficulties in functioning because of impact of positive symptoms of Chronic Paranoid Schizophrenia on cognition, ability to concentrate, abstract reasoning and impairment in memory. Negative symptoms of Schizophrenia impact patient's motivation, speech, social drive and social interest.
He will experience difficulties in staying on task and attend[ing]work on a regular and continuous basis.Tr. 357.
As the ALJ's review of Dr. Bajwa's opinions indicates, the ALJ interpreted "regular and continuous" as used by Dr. Bajwa to mean "regular and continuing." Compare Tr. 357 with Tr. 22 ¶ 4.
The ALJ gave Dr. Bajwa's opinions "partial weight." Tr. 22 ¶ 4. He stated:
The opinions of Dr. Bajwa have been considered, but have been only given partial weight. Although the undersigned is mindful of the treating relationship Dr. Bajwa has with the claimant, his opinion is somewhat vague. For example, he writes that the claimant "will experience difficulties staying on task and attending work on a regular and continuing basis" without explaining the nature or degree of these difficulties.Tr. 22-23 ¶ 4.
Plaintiff begins his challenge to the ALJ's assessment by noting that, as discussed, a claimant's RFC is the most a claimant can still do despite his limitations, see 20 C.F.R. § 416.945(a)(1), and that "[o]rdinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis," which "means 8 hours a day, for 5 days a week, or an equivalent work schedule," Soc. Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). He then states that "if he is unable to stay on task 'on a regular and continuing basis' due to his 'impact of positive symptoms of Chronic Paranoid Schizophrenia on cognition, ability to concentrate, abstract reasoning and impairment in memory' as Dr. Bajwa cited in his medical opinion (see AR 357), he would be unable to maintain SGA [i.e., substantial gainful activity]." Pl.'s Mem. 14.
Plaintiff's contention fails, in part, because it rests on a reading of Dr. Bajwa's letter that the language he used does not compel. Specifically, Dr. Bajwa did not expressly state that plaintiff "is unable to" stay on task or attend on a regular and continuing basis. Rather, as indicated, he said that plaintiff "will experience difficulties in staying on task and attend[ing] on a regular and continuous basis." Tr. 357. The ALJ could reasonably interpret "will experience difficulties" as meaning something other than "is unable to." Indeed, the ALJ discounted this opinion on the very ground that the ALJ did not "explain[] the nature or degree of these difficulties." Tr. 23 ¶ 4.
Notably, the ALJ did not state that he was assigning no weight or even little weight to Dr. Bajwa's opinions. As discussed in the next section below, the ALJ found that plaintiff has a moderate limitation in concentrating, persisting, or maintaining pace, and his RFC determination reflects that finding.
As further support for his challenge to the ALJ's assessment of Dr. Bajwa's opinions, plaintiff cites to Dr. Bajwa's reference in his letter to a side effect plaintiff alleges from each monthly injection of the antipsychotic medication Invega Sustenna ("Invega") he receives, namely, feeling "very tired and sluggish" and having "difficulty in thinking clearly" in the few days after the injection. Tr. 357. But Dr. Bajwa also recited that plaintiff found these symptoms "manageable." Tr. 357. Further, this reference by Dr. Bajwa appears in his review of plaintiff's psychiatric history, and Dr. Bajwa does not expressly relate it to his opinions. This reference by Dr. Bajwa certainly does not render erroneous the ALJ's discounting of Dr. Bajwa's opinions.
The apparent fact that Dr. Bajwa himself had very little direct contact with plaintiff would tend to limit the weight properly accordable to his opinions. See, e.g., 20 C.F.R. § 416.927(c)(2)(i).
The court concludes that the ALJ's assessment of the opinions of Dr. Bajwa is based on applicable legal standards and supported by substantial evidence. It therefore rejects plaintiff's challenge to the assessment.
V. ALJ'S RFC DETERMINATION
Plaintiff contends that the ALJ failed to adequately accommodate in his RFC determination side effects plaintiff purportedly has from the injection of Invega he receives the first of each month for schizophrenia. Principal among these purported side effects are sleepiness and difficulty concentrating.
The CBH medical records in the administrative transcript show that plaintiff received the Ivenga injections from 4 June 2015 to 19 February 2016 (see Tr. 268-70, 277-81, 290-95, 324-26) and then from 30 September 2016 to 7 July 2017 (see Tr. 331-38, 340-52). Although the ALJ states that plaintiff was seen once a month in 2016 for medication management (see Tr. 21 ¶ 4), the administrative transcript does not appear to contain records of any visit by plaintiff at CBH or any other provider in or within a few days of two months, June and August 2016, during which plaintiff was apparently not receiving Invega injections. Plaintiff does not challenge this finding by the ALJ. Nonetheless, if the ALJ's finding were deemed erroneous, the court finds the error harmless. See Garner v. Astrue, 436 F. App'x 224-26 n.* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).
In support of his argument, plaintiff points, in part, to his hearing testimony regarding the purported side effects. The ALJ accurately reviewed this testimony as follows:
He reported that he is paranoid, has suicidal thoughts, and that days after his injections, he cannot do anything. He stated that, after his injection, he zones out and has trouble concentrating. . . . The claimant testified that after he has an injection, he has a three-to-four day period where he is lethargic, and sleeps at least 12 hours a day. He stated during these days, he usually stays at home and stays in bed.Tr. 20 ¶ 4. Plaintiff also cites to the testimony by the vocational expert that an individual with plaintiff's RFC who was absent two days a month would be precluded from performing any substantial gainful activity. Tr. 73-76. The notion is that the side effects of the injections in the few days after receiving them would cause plaintiff to be absent at least this frequently.
The court finds that the ALJ did not err in handling the evidence of plaintiff's purported side effects from the injections. As to plaintiff's sleeping after receiving an injection, the ALJ expressly addressed it and discounted it: "[A]lthough the claimant testified that after his monthly injections he usually slept for 12 hours for the next three-to-four days, there was no support of his allegation in the medical evidence of record." Tr. 22 ¶ 4. While plaintiff contends that medical records do support his testimony about post-injection sleepiness, there is substantial evidence for the ALJ's determination that they do not. None of the medical records cited by plaintiff state that he requires sleep of the duration he alleges after receiving an injection.
In his memorandum, plaintiff cites to a website regarding Invega. See Pl.'s Mem. 12. Plaintiff does not move to have the information in the website introduced into the record, and he has not shown good cause for not incorporating such evidence into the record in prior proceedings. See 42 U.S.C. § 405(g) sent. 6. The court has therefore not considered the information in the website.
For example, the note on plaintiff's 26 August 2015 visit to CBH states simply: "He reports that for about a week after the last two injections he will be sluggish and even slur his words somewhat. This is not too bothersome to him at this time." Tr. 278; see also Tr. 279. The note on his visit to CBH on 18 December 2015 states: "The patient continues to have a little fatigue the first couple of days after his Invega injection, but it is not too bothersome." Tr. 290. At his 18 January 2016 visit to CBH, plaintiff reported that the Invega "causes him to feel very tired the first few days after his injection." Tr. 325. There is mention of extended sleep.
The note on the following visit, on 19 February 2016, states that plaintiff reported that he "continues to feel fatigued most days." Tr. 323. Notably, the fatigue is not even related to the immediate post-injection period. See Tr. 323-24. Plaintiff nonetheless stated that he was overall unhappy with Invega and was switched to a different medication. Tr. 323, 324.
The note on plaintiff's 30 September 2016 visit to CBH states that Invega injections were resumed. Tr. 352. The note on his 4 November 2016 visit makes no mention of post-injection sleepiness. Tr. 348-49. The note on plaintiff's 5 May 2017 visit to CBH states: "He reports some tiredness and mental and physical slowing the first few days after the injection, but this is not too bothersome, especially as he isn't currently working." Tr. 335. Again, the extended sleep plaintiff alleges is not noted.
Plaintiff suggests that he reported to CBH that the post-injection sleepiness was not unduly limiting (e.g., "not too bothersome," "manageable") because he was not working at the time. But this note of 5 May 2017 is the only one among the notes discussed that relates the limiting effect of the alleged post-injection sleepiness to his not working and, even then, his not working is cited as an additional factor for the alleged sleepiness not being unduly limiting (i.e., especially as he isn't currently working" (emphasis added)). The evidence of record did not compel the ALJ to find that plaintiff's not working accounted for his not characterizing the limiting effect of the alleged post-injection sleepiness as greater than he did.
The same is true regarding Dr. Bajwa's opinion letter of 9 August 2017. In his review of plaintiff's psychiatric history prior to plaintiff's being taken off Invega in February 2016, Dr. Bajwa stated simply the following, as previously discussed:
Mr. Nieto reported a few side effects to Invega such as it made him feel very tired and sluggish and he had difficulty in thinking clearly. However these side effects lasted only for a few days after the injection and it was manageable.Tr. 357.
Even if the records cited by plaintiff did document a need to sleep 12 hours a day in the few days following an injection, that amount of sleep is not alone disabling. It leaves 12 other hours during the day for other activities, including 8 hours for a typical workday.
Turning to the difficulty concentrating plaintiff claims as a result of the injections, the ALJ expressly addressed this purported side effect as well. At step three of the sequential analysis in his assessment of the so-called paragraph B criteria, he found as follows:
The Regulations require an ALJ to use the special technique, as described in 20 C.F.R. § 416.920a(b)-(e), to evaluate any medically determinable mental impairments the ALJ finds the claimant to have. 20 C.F.R. § 416.920a(a). Under the special technique, an ALJ rates the degree of a claimant's functional limitation in four broad areas: understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace: and adapt or manage oneself. Id. § 416.920a(c)(3). The functional areas are rated on a five-point scale: none, mild, moderate, marked, and extreme. Id. § 416.920a(c)(4). The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity. Id. § 416.920a(c)(4). The criteria, including the associated ratings, in the special technique are often referred to as the paragraph B criteria because they are the same as those in paragraph B of many of the Listings relating to mental impairments. See Listing 12.00A2b, E, F.
With regard to concentrating, persisting, or maintaining pace, the claimant has a moderate limitation. The undersigned acknowledges that the claimant may have some limitations in this domain given his mental impairment and his monthly injection medications. However, despite his impairment, the claimant was able to get himself to his own appointments, and he was able to recall what he did during the interim between appointments.Tr. 18 ¶ 3. The ALJ went on to state that "[t]he following [RFC] assessment reflects the degree of limitation the undersigned has found in the 'paragraph B' mental functional analysis." Tr. 19 ¶ 3.
As the ALJ stated, the restrictions he included in his RFC determination are, indeed, responsive to the limitation he found plaintiff to have in concentrating, persisting, or maintaining pace. These restrictions are limitations to: "hearing and understanding simple oral instructions and . . . communicating simple information"; "the performance of simple, routine, and repetitive tasks hut not at a production rate pace (e.g., assembly line work)"; "simple work-related decision[s]"; and "occasional[] interact[ion] with supervisors, coworkers, and the public." Tr. 19 ¶ 4. While a limitation to no production-pace work relates most directly to staying on task, see Mascio, 780 F.3d at 638, limitations to simple instructions and communications and to simple, routine, and repetitive tasks also tend to promote concentrating, persisting, and maintaining pace because the performance of simple activities generally requires less mental effort than more complicated ones, see, e.g., Bowen v. Berryhill, No. 5:16-CV-65-FL, 2017 WL 9478523, at *10 (E.D.N.C. 22 Feb. 2017) (collecting cases), mag. judge recommend. adopted, 2017 WL 1194462 (31 Mar. 2017). A restriction to occasional interaction with others also tends to facilitate concentrating, persisting, and maintaining pace when the claimant has limitations in interacting with others, as the ALJ found plaintiff to have, based in part on plaintiff's history of negative interactions with customers at the automobile parts store where he had worked. See, e.g., id.; Tr. 18 ¶ 3 (finding that plaintiff had moderate limitations in interacting with others and noting that plaintiff "complained of anxiety while dealing with angry customers when he worked").
The ALJ's decision makes clear why he did not deem greater restrictions to he warranted:
For the claimant's mental impairments, he has sought relatively minimal medical treatment. He voluntarily admitted himself to the hospital for three days in April 2015, hut other than this time period, he has not sought any additional emergency or urgent medical treatment. Although he has been seen once a month for medication management, he failed to seek any therapy or outpatient therapy for his impairments. Additionally, the medical records indicate that, when the claimant is compl[ia]nt with his medication, and abstains from alcohol, his symptoms are diminished.Tr. 22 ¶ 4.
In his discussion of the side effects of the Invega injections, plaintiff notes his allegation that in the few days before an injection, as the prior injection is wearing off, he experiences an increase in auditory hallucinations. Plaintiff reported this alleged circumstance at his 18 December 2015 visit to CBH (Tr. 290) and mentioned it in his hearing testimony (Tr. 66). The note on that visit states:
He admits that he has started to have a sight return of auditory hallucinations- [sic] he will notice them for a couple of days right before he gets his Invega injections. He describes it as the sound of murmuring, but no distinct words. He will only notice it at night when he is trying to go to sleep.Tr. 290.
The ALJ's decision makes apparent that the ALJ considered this allegation by plaintiff. In his description of the 18 December 2015 visit, the ALJ stated: "He complained of a slight return to auditory hallucinations a couple of days leading up to his injections during an appointment in December 2015." Tr. 21 ¶ 4. As a specific purported manifestation of plaintiff's mental impairment, it is encompassed by the ALJ's determination regarding plaintiff's limitation in concentrating, persisting, or maintaining pace and the accommodations therefor in the RFC determination. Plaintiff has certainly made no showing that the restrictions in the RFC arc inadequate to address this purported aspect of his medication.
Plaintiff reported similar hallucinations at this visit to CBH almost a year later, on 4 November 2016: "He has been nearly symptom free-[sic] only over the last few days he has thought he has heard occassional [sic] sounds, but this has not been too bothersome." Tr. 348. The note on the visit further states that these hallucinations were "mild" (Tr. 348) and "minor" (Tr. 349), and that plaintiff denied other hallucinations (Tr. 348). In his decision, the ALJ asserts that at this visit plaintiff "reported he was symptom[] free" and "denied any . . . hallucinations." Tr. 21 ¶ 4. Plaintiff does not challenge the ALJ's description of this visit. If it were deemed erroneous, the error is harmless, particularly in light of the relatively benign characterization of the hallucinations in the note and the ALJ's recognition of this purported aspect of plaintiff's medication in his decision albeit in connection with another visit by plaintiff to CBH. See Garner, 436 F. App'x at 224-26 n.* --------
The court concludes that the ALJ's RFC determination adequately accommodated the side effects he found resulted from plaintiff's Invega injections. The court accordingly rejects plaintiff's challenge to the RFC determination.
VI. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 16) for judgment on the pleadings be GRANTED, plaintiff's motion (D.E. 14) for judgment on the pleadings be DENIED, and the Commissioner's final decision 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 10 December 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct 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.
If a party docs 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).
Any response to objections shall be filed within 14 days after service of the objections on the responding party.
This 26th day of November 2019.
/s/_________
James E. Gates
United States Magistrate Judge