Opinion
4:18-CV-64-D
08-07-2019
DEXTER XAVIER TAYLOR, JR., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
In this action, plaintiff Dexter Xavier Taylor, Jr. ("plaintiff" or, in context, "claimant"), with assistance from his parents, challenges the final decision of defendant Commissioner of Social Security Andrew M. 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. 21, 23. Both filed memoranda in support of their respective motions (D.E. 22, 24), and plaintiff filed a response (D.E. 27) to the Commissioner's motion. 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 6 Feb. 2019 Text Ord. For the reasons set forth below, following careful consideration of the parties' arguments, the authorities they cite, other applicable law, and the evidence of record, it will be recommended that the Commissioner's motion be allowed, plaintiff's motion be denied, and the final decision of the Commissioner be affirmed.
I. BACKGROUND
A. Case History
Plaintiff, who was born in 1994, received SSI based on disability as a child. Transcript of Proceedings ("Tr.") 17; 27 ¶ 6. When he attained age 18, he was required to have his eligibility for these benefits redetermined under the rules for determining disability in adults. See 20 C.F.R. § 416.987 ; Tr. 17, 18.
The versions of the regulations and Social Security rulings under which the court is reviewing the decision at issue are those applicable to plaintiff's claim, although changes were made in several that subsequently took effect.
On 26 February 2013, plaintiff was found to be no longer disabled as of 25 January 2013. Tr. 17. This determination was upheld upon reconsideration, and a request for hearing was timely filed. Tr. 17. A prehearing conference was held on 22 February 2016. Tr. 560-82. On 7 July 2016, an administrative law judge ("ALJ") held a video hearing at which the witnesses were plaintiff, who was proceeding pro se; his mother; and a vocational expert. Tr. 505-59. In lieu of testifying at this hearing or a supplemental hearing, plaintiff's father submitted a written, post-hearing statement (Tr. 495-96) for consideration by the ALJ. Tr. 17. Other documents were also added to the record before the ALJ after the hearing. Tr. 17. The ALJ issued a decision denying plaintiff's claim on 6 January 2017. Tr. 17-28.
Plaintiff timely requested review by the Appeals Council. Tr. 501. The Appeals Council denied the request on 1 February 2018. Tr. 6. At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. § 416.1481. Plaintiff commenced this proceeding for judicial review on 3 April 2018, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 3); Compl. (D.E. 4).
B. Standards for Disability
The Social Security Act ("Act") defines disability as the inability "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). "[A]n 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 are 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:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. . . .
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. . . .
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in [20 C.F.R. pt. 404, subpt. P, app. 1] ["Listings"] . . . and meets the duration requirement, we will find that you are disabled. . . .
(iv) At the fourth step, we consider our assessment of your residual functional capacity ["RFC"] and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. . . .20 C.F.R. § 416.920(a)(4). The first step is not used for redetermining disability at age 18. Id. § 416.987(b).
(v) At the fifth and last step, we consider our assessment of your [RFC] and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. . . . .
The burden of proof and production rests with the claimant during the first four steps of the analysis. Pass, 65 F.3d at 1203. The burden shifts to the Commissioner at the fifth step to show that alternative work is available for the claimant in the national economy. Id.
In the case of multiple impairments, the Regulations require that the ALJ "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 416.923. If a medically severe combination of impairments is found, the combined impact of those impairments will be considered throughout the disability determination process. Id.
C. ALJ's Findings
Plaintiff was 21 years old on the date of the hearing and 22 on the date of issuance of the ALJ's decision. See, e.g., Tr. 27 ¶ 6. The ALJ found that plaintiff has at least a high school education (Tr. 27 ¶ 7) and no past relevant work (Tr. 27 ¶ 5).
At step two of the sequential analysis under 20 C.F.R. § 416.920(a)(4), the ALJ found that since 25 February 2013 plaintiff had the following severe impairments: Crohn's disease, attention deficit hyperactivity disorder ("ADHD"), expressive-receptive language disorder, and borderline intellectual functioning. Tr. 19 ¶ 2. At step three, the ALJ found that since 25 February 2013 plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of any of the Listings. Tr. 21 ¶ 3.
The ALJ next determined that since 25 February 2013 plaintiff had the RFC to perform a limited range of medium work:
After careful consideration of the entire record, I find that since February 25, 2013, the claimant has had the [RFC] to perform medium work, as defined in 20 CFR 416.967(c), except no climbing ladders, ropes, or scaffolds, and no exposure to workplace hazards such as moving machinery and unprotected heights. He is further limited to the performance of simple, routine, repetitive tasks ["SRRTs"], in a low stress job (defined as having no more than occasional decision-making required and no more than occasional changes in the work setting), with no production-rate or paced-work (such as would be done on an assembly line).Tr. 23 ¶ 4.
Under the Regulations, medium work is work that "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 416.967(c). Medium work and the other terms for exertional level as used in the Regulations have the same meaning as in the Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed. rev. 1991) ("DOT"). See 20 C.F.R. § 416.967. The DOT defines medium work (i.e., "M-Medium Work") as "[e]xerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects." DOT, app. C § IV, def. of "M-Medium Work," 1991 WL 688702.
The ALJ found at step four that plaintiff had no past relevant work. Tr. 27 ¶ 5. At step five, the ALJ accepted the testimony of the vocational expert and found that since 25 February 2013 there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of dining room attendant, hospital cleaner, and store laborer. Tr. 27-28 ¶ 9. The ALJ accordingly concluded that plaintiff's disability ended on 25 February 2013 and he had not become disabled again since that date, implicitly, through the date of the decision, 6 January 2017. Tr. 28 ¶ 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). 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).
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 be remanded for a new hearing on the grounds that the ALJ erred by not determining him to satisfy Listings 12.05B and C for intellectual disability, and relying on testimony by the vocational expert elicited by an improper hypothetical. The court will address each contention in turn.
In his supporting memorandum, plaintiff identifies as an additional argument the contention that the ALJ did not properly evaluate the opinions of the non-examining state agency consulting psychologists. See Pl.'s Support. Mem. 10-11. The court addresses this contention as part of its analysis of plaintiff's contention regarding Listing 12.05.
IV. ALJ'S DETERMINATION ON LISTINGS 12.05B AND C
A. Applicable Legal Principles
1. Listing 12.05
The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. § 416.925(a). Therefore, if a claimant's impairments meet a listing, that fact alone establishes that the claimant is disabled. Id. § 416.920(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); Soc. Sec. Ruling 83-19, 1983 WL 31248, at *2 (1983). The burden of demonstrating that an impairment meets a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
Even if an impairment does not meet the listing criteria, it can still be deemed to satisfy the listing if the impairment medically equals the criteria. 20 C.F.R. § 416.925(c)(5). To establish such medical equivalence, a claimant must present medical findings equal in severity to all the criteria for that listing. Sullivan, 493 U.S. at 531; 20 C.F.R. § 416.926(a). "A claimant cannot qualify for benefits under the 'equivalence' step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment." Sullivan, 493 U.S. at 531.
To satisfy Listing 12.05 for intellectual disability, a claimant must first satisfy the introductory diagnostic description for intellectual disability. See Listing 12.00A; Hancock v. Astrue, 667 F.3d 470, 473 (4th Cir. 2012). Specifically, the claimant must demonstrate "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period," that is, before the age of 22. Listing 12.05. General intellectual functioning may be defined by the intelligence quotient ("IQ") obtained using one or more of the standardized, individually administered intelligence tests. See Am. Psych. Assn., Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. text rev. 2000) ("DSM-IV-TR").
Listing 12.05 reads in relevant part:
12.05 Intellectual disability: Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
. . . .
Listings 12.05B, C (formatting altered from original). Effective 3 September 2013, the Social Security Administration substituted the term "intellectual disability" for the term "mental retardation" in the Regulations, including the Listings. See 78 Fed. Reg. 46,499-01, 2013 WL 3936340 (Soc. Sec. Admin. 1 Aug. 2013).
B. A valid verbal, performance, or full scale IQ of 59 or less; OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function; . . . .
"The DSM is widely recognized as the authoritative reference used in diagnosing mental disorders." United States v. Wooden, 693 F.3d 440, 452 n.4 (4th Cir. 2012) (internal quotation marks omitted). "The definition of M[ental] R[etardation] we [i.e., the Social Security Administration] use in our listings is consistent with, if not identical to, the definitions of MR used by the leading professional organizations," including the definition in the DSM. Technical Revisions to Medical Criteria for Determinations of Disability, 67 Fed. Reg. 20018-01, 2002 WL 661740, at *20022 (Soc. Sec. Admin. 24 Apr. 2002). The court notes that the current version of the DSM, the fifth edition ("DSM-5"), that was issued in May 2013, contains diagnostic criteria for intellectual disability different from those in the DSM-IV. Compare DSM-5 at 33 with DSM-IV-TR 49. Although corresponding changes were made to Listing 12.05 in an amendment effective 17 January 2017, the amendment is applicable only to Social Security cases with application filing dates after the date of the amendment. Accordingly, the prior version in effect at the time of the ALJ decision is set forth herein. Moreover, the Social Security Administration has previously explained that this version of the Listing 12.05 diagnostic description of mental retardation was based on not only the American Psychiatric Association's definition in the DSM-IV, but also on the definitions used by three other leading professional organizations and that it does not "seek to endorse the methodology of one professional organization over another." Technical Revisions, 2002 WL 661740, at 20022. For this reason, the court concludes that it remains appropriate to reference the diagnostic criteria in the DSM-IV-TR in evaluating application of Listings 12.05B and C in this case. See Hightower v. Comm'r of Soc. Sec. Admin., No. 1:14-2761-RBH-SVH, 2015 WL 5008668, at *17 (D.S.C. 12 June 2015) ("Listing 12.05 was not updated to reflect the changes present in DSM-5, which calls into question the general applicability of DSM-5 to evaluation of intellectual disability under the Listing."), rep. & recomm. adopted, 2015 WL 5008713, at *8 (20 Aug. 2015).
Adaptive functioning "refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting." DSM-IV-TR 42. Areas in which deficits in adaptive functioning may exist include "communication, self-care, home living, social/inter-personal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety." Jackson v. Astrue, 467 F. App'x 214, 218 (4th Cir. 2012) (citing Atkins v. Virginia, 536 U.S. 304, 309 n.3 (2002)) and reciting areas of adaptive functioning listed in DSM-IV-TR 49). By specifying "deficits" in adaptive functioning, the diagnostic description requires that there be at least two. Listing 12.05; see Hightower v. Colvin, Civ. Act. No. 1:14-cv-02761-RBH, 2015 WL 5008713, at *7 (D.S.C. 20 Aug. 2015). This requirement is consistent with the definition of mental retardation in the DSM-IV-TR, which requires deficits or impairments in "at least two" of the foregoing areas. DSM-IV-TR 49.
In addition to the diagnostic description, to satisfy Listing 12.05 a claimant must satisfy the criteria set forth in at least one of four paragraphs relating to the severity of the intellectual disability. Paragraph B requires a "valid verbal, performance, or full scale IQ of 59 or less." Listing 12.05B. To satisfy Listing 12.05C, a claimant must demonstrate both a "valid verbal, performance, or full scale IQ of 60 through 70" and "a physical or other mental impairment imposing an additional and significant work-related limitation of function." Listing 12.05C.
2. Evaluation of Medical Opinion Evidence
"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. § 416.927(a)(2). 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 are 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); 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, including the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, and any specialization of the opining source. 20 C.F.R. § 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." 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.").
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, 2013 WL 1856469, at *2. 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 same basic standards that govern evaluation of the opinions of treating medical sources not given controlling weight and explanation of the weight given such opinions apply to the evaluation of opinions of examining, but nontreating sources, and nonexamining sources. See 20 C.F.R. § 416.927(c), (e); Casey v. Colvin, No. 4:14-cv-00004, 2015 WL 1810173, at *3 (W.D. Va. 12 Mar. 2015), rep. & recomm. adopted, 2015 WL 1810173, at *1 (21 Apr. 2015); Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. 1 May 2013). More weight is generally given to the opinions of a treating source than to the opinions of a nontreating examining source and to the opinions of an examining source than to the opinions of a nonexamining source. See 20 C.F.R. § 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a nontreating examining source or a nonexamining 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 nontreating examining physician than to those of a treating physician); Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3 (2 July 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 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
In his decision, the ALJ does not expressly address Listing 12.05. However, his general finding that since 25 February 2013 plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings necessarily encompasses Listing 12.05. In particular, applicable to Listing 12.05 is the ALJ's general finding that "[n]o treating, examining, or non-examining medical source has opined or otherwise found the claimant to have an impairment or combination of impairments that meets or medically equals any listed impairment." Tr. 21 ¶ 3.
Plaintiff contends that the ALJ erred, in part, by not expressly discussing Listing 12.05. While the court agrees that the ALJ should have done so, the error was harmless because the ALJ's decision makes clear the basis for his determination that plaintiff did not satisfy Listings 12.05B and C. See, e.g., Garner v. Astrue, 436 F. App'x 224, 226 n* (4th Cir. 2011) (applying Shinseki v. Sanders, 556 U.S. 396, 409 (2009)); Satterwhite v. Colvin, No. 5:14-cv-01152-JMC, 2015 WL 5054559, at *7 (D.S.C. 25 Aug. 2015) (upholding the ALJ's implicit rejection of plaintiff's IQ tests as invalid for purposes of Listing 12.05C due to her level of adaptive functioning based on ALJ's consideration of evidence other than the IQ tests). Specifically, the ALJ's decision makes apparent his determination that plaintiff did not meet the "deficits in adaptive functioning" requirement in the diagnostic description in Listing 12.05 and the IQ requirements in paragraphs B and C. Listing 12.05. Notably, because all criteria of a listing must be satisfied in order to satisfy the listing, the failure to satisfy the diagnostic description alone precludes satisfaction of both Listings 12.05B and C, and the failure to satisfy the IQ requirements of each independently precludes their respective satisfaction. See Sullivan, 493 U.S. at 530-31.
As to adaptive functioning, the ALJ found:
[T]he level of adaptive functioning documented in the record (as opposed to adaptive test scores) further shows the claimant functioning at a higher level than that of intellectual disability. The claimant is independent in his self-care activities, he works parttime as a cook, he is taking classes at a local community college, and he enjoys playing football, running track, lifting weights, and playing video games (Ex. 1E and hearing testimony). In addition, the claimant's high school records show him progressing under an individualized education plan (IEP) and on grade-level with plans to graduate and attend college while working part-time (Ex. 5E and 14E).Tr. 21 ¶ 2.
The fact that these findings and others relating to the issue of plaintiff's satisfaction of Listings 12.05B and C did not appear in the ALJ's step three analysis does not render them irrelevant to this issue because an ALJ's decision must be read as a whole. See, e.g., Smith v. Astrue, No. 11-1574, 2011 WL 6188731, at *1 (4th Cir. 14 Dec. 2011); Janowsky v. Berryhill, No. 7:17-CV-246-D, 2018 WL 6710240, at *6 (E.D.N.C. 19 Nov. 2018), mem. & recomm. adopted, 2018 WL 6706678, at *1 (20 Dec. 2018). Moreover, the ALJ himself states that his listing determination relies not only on his discussion at step three, but also "the record evidence discussed more fully below under Finding 4 [i.e., the RFC determination] . . . and above in Finding 2 [i.e., the severity determination]." Tr. 21 ¶ 3.
The ALJ elaborated on plaintiff's activities elsewhere in his decision. For example, he stated:
. . . The claimant is independent in personal care . . . (see e.g. Ex 1E/2, 5).Tr. 22 ¶ 3; 23 ¶ 4. The ALJ also observed that plaintiff "admitted he did not consistently take prescribed ADHD medication, which his father reported he needed to function (Ex. 20F/2)." Tr. 25 ¶ 4; see 20 C.F.R. § 416.930(b) ("If you do not follow the prescribed treatment without a good reason, we will not find you disabled . . . .").
The claimant . . . goes to church . . . (see hearing testimony). . . . There is no indication of the claimant having any legal troubles or problems getting along with others in the record (see e.g. Ex. 1E/6-7).
. . . [T]he record also shows the claimant . . . watching sports on television . . . and maintaining a daily routine . . . . (see e.g. Ex. 4E and hearing testimony).
. . . .
The claimant further testified to working part-time as a cook (12 hours a week) while taking college classes (3 to 5 days a week) to obtain his Associate of Arts degree with emphasis in computers. The claimant denied receiving accommodations in his college classes and noted he was nonetheless doing fairly well with a 2.8 grade point average. The claimant stated he anticipates completing his degree work by next year.
While crediting plaintiff's statements about his college classes, the ALJ acknowledged that plaintiff's "mother and father noted he needed to take remedial classes/tutorials at community college (Ex. 20F and hearing testimony)." Tr. 25 ¶ 4. The ALJ's evaluation of plaintiff's parents' statements is discussed further below.
Although not mentioned by the ALJ, plaintiff's mother testified that he has a driver's license. See Tr. 543; see Hardy v. Berryhill, No. 4:16-CV-37-FL, 2017 WL 9478481, at *7 (E.D.N.C. 31 July 2017) (recognizing possession of a driver's license as a proper consideration in evaluating adaptive functioning), mem. & recomm. adopted, 2017 WL 4284493 (27 Sept. 2017).
The evidence cited by the ALJ in support of his determination that plaintiff's adaptive functioning was at a higher level than that of intellectual disability constitutes substantial evidence supporting the determination. The determination was also based on applicable legal standards. Again, this determination by the ALJ alone provides a proper ground for his conclusion that plaintiff did not satisfy Listings 12.05B and C.
To the extent that the ALJ's finding at step three that plaintiff had moderate difficulties in concentration, persistence, or pace (see Tr. 22 ¶ 3) is deemed to infer that plaintiff had deficits in adaptive functioning, the ALJ through his findings, supported by substantial evidence, adequately dispelled any such inference.
As indicated, the ALJ's decision also makes apparent his determination that plaintiff did not satisfy the IQ requirements in paragraphs B and C of Listing 12.05. This determination is shown by the ALJ's rejection of plaintiff's IQ scores as providing a valid current measure of his intellectual ability and his adoption of organic brain disorder, instead, as a basis for mental deficiencies exhibited by plaintiff.
The ALJ explained his rejection of plaintiff's IQ scores prior to age 18 on the basis of their remoteness in time and other considerations:
The record shows the claimant having a history [of] delayed language skills and very short attention span since a young child (Ex. 1F). The claimant's scores in intellectual testing administered in May 2006 [by Michael L. Reed, Ed.D.] when he was almost 12 years were all within the range of intellectual disability except for his processing speed and he had a wide range of academic achievement levels (Ex. 5E/16-20 [see Tr. 172-75]). However, the claimant was also no longer taking any medication on [a] regular basis (Ex. 5E/16) and the remoteness of these scores render[s] them unreliable for disability purposes in these proceedings. Notably, although some of his scores (but not all) remain facially in the range of intellectual disability, the claimant's scores in intellectual testing administered since he turned 18 are much higher and more consistent with an organic brain disorder.Tr. 19-20 ¶ 2. The court finds that the reasons provided by the ALJ for not crediting these childhood IQ scores in the instant proceeding are based on proper legal standards and supported by substantial evidence, including the evidence he cites. See, e.g., Listing 112D.10 (providing that "IQ test results must also be sufficiently current for accurate assessment under 112.05," "[g]enerally, the results of IQ tests tend to stabilize by the age of 16," and "IQ test results obtained between ages 7 and 16 should be considered current . . . for 2 years when the IQ is 40 or above").,
It has been held that because Listing 112.00 relates to mental disorders in children, the provisions in Listing 112D.10 cannot properly be considered in determining satisfaction of Listing 12.05C, which, of course, applies to adults. See Williams v. Astrue. No. 4:07-CV-1649(CEJ), 2009 WL 214590, at *8 (D.S.C. 28 Jan. 2009). The court deems the better view to be that these provisions are appropriately considered with respect to Listing 12.05 to help ensure that an ALJ relies only upon accurate IQ test results. The provisions purport to specify the length of time IQ test results taken at various childhood ages remain an accurate measure of the person's intellectual capacity. It is not apparent why the periods of accuracy would be extended (or shortened) simply because they are considered with respect to Listing 12.05. See, e.g., Lewis v. Astrue, Civ. Act. No. 08-0583-CB-M, 2009 WL 1904319, at *8 (S.D. Ala.) (citing Listing 112D.10 in upholding ALJ's determination not to rely on IQ test results obtained 20 years earlier when claimant was 15 years old and upholding ALJ's ruling that claimant did not satisfy Listing 12.05C in part on that ground), rep. & recomm. adopted, 2009 WL 1904319, at *1 (1 July 2009); Williams v. Apfel, No. 97-C-551, 1998 WL 852872, at 4 & n.4 (N.D. Ill. 4 Dec. 1998) (citing Listing 112D.10 in ruling that IQ scores obtained about 30 years earlier when the claimant was 10 and 13 "cannot serve as an accurate depiction of [the claimant's] current level of intellectual functioning" and upholding ALJ's determination that claimant did not satisfy Listing 12.05B in part on that ground). The Fourth Circuit's holding in Luckey v. U.S. Dep't of Health and Human Servs. that intellectual disability is a "lifelong condition" does not dictate that childhood IQ test results be deemed an accurate measure of a claimant's intellectual capacity as an adult. 890 F.2d 666, 668 (4th Cir. 1989) (internal quotation marks omitted). Luckey dealt with IQ test results obtained during adulthood (when the claimant was 49 years old) and whether they could be extrapolated back to the developmental period, not results obtained during childhood and whether they could be extrapolated into adulthood, as here. See id. at 668-69. The Luckey court also stated that the assumption of continuity in a claimant's intellectual capacity applied "in the absence of any evidence of a change." Id. at 668. As discussed, there is such evidence here.
Plaintiff alludes to the fact that "[t]he IQ scores in 12.05 reflect values from tests of general intelligence that have a mean of 100 and a standard deviation of 15; e.g., the Wechsler series" and that tests that deviate from this mean and standard deviation require conversion to a percentile rank to determine the actual degree of limitation reflected by the IQ scores. Listing 12.00D.6.c. He suggests that such conversion was necessary in this case. But the intelligence tests used by both Dr. Reed and Dr. Albert were in the Wechsler series (see Tr. 172 ("Wechsler Intelligence Scale for Children - Fourth Edition (WISC-IV)"); 385 ("WAIS-IV" signifying Wechsler Adult Intelligence Scale, Fourth Ed.)), and Dr. Reed stated expressly that the mean for the WISC-IV is 100 and the standard deviation is 15 (Tr. 173). Plaintiff did not demonstrate that the Stanford-Binet Intelligence Scale, Fifth Edition used by LPA Saylors has other than a mean of 100 and standard deviation of 15. See Tr. 370.
The ALJ also addressed the IQ scores in the 4 January 2013 report by Elizabeth B. Saylors, LPA ("LPA Saylors" or "Ms. Saylors") (Tr. 370-73) based on her psychological evaluation of plaintiff in November and December 2012 when he was 18. As the ALJ noted, LPA Saylors' report suggests that plaintiff's mental deficiencies were not grounded in intellectual disability, but rather in a language disorder, the presence of which a subsequent evaluation by a language therapist confirmed:
The claimant underwent [a] psychological evaluation for speech difficulties and ADHD in January 2013 when he was 18-years old. Although his cognitive and adaptive skills scores in administered testing were consistent with mild intellectual disability, Elizabeth Saylors, LPA, the psychological examiner, found the claimant's achievement test scores (in the low average-to-average range) inconsistent with a diagnosis of mild mental retardation (Ex. 6F). Ms. Saylors also noted a significant discrepancy between the claimant's verbal and non-verbal sub-test scores, which further suggested his difficulties were in the understanding and use of language as opposed to intellectual disability (Ex. 6F/2). As a result, the claimant underwent speech language evaluation on Ms. Saylors' referral in January 2013. The examining speech language therapist diagnosed a moderate receptive language disorder and profound expressive language disorder and recommended outpatient speech/language therapy (Ex. 5F).Tr. 20 ¶ 2; see also Tr. 25 ¶ 4 (summarizing speech and language evaluation). While the ALJ did not formally assign weight to this portion of LPA Saylors' evaluation, his decision makes clear his reliance on it. See, e.g., Tr. 20 ¶ 2 (crediting LPA Saylors' and other consultants' determination that plaintiff's testing results were inconsistent with intellectual disability). The court finds that the ALJ's handling of this portion of LPA Saylors' evaluation was proper.
The ALJ did formally give weight to the Global Assessment of Functioning ("GAF") score LPA Saylors assigned plaintiff, as discussed below. See Tr. 26 ¶ 4.
The ALJ gave "no weight" to the diagnosis of plaintiff with mild mental retardation by consulting examiner Jerome B. Albert, Ph.D. in his 13 February 2013 evaluation of plaintiff, who was then 18. See Tr. 384-86. The ALJ gave multiple reasons for his determination, including plaintiff's level of adaptive functioning as previously reviewed:
The claimant subsequently presented to Jerome Albert, Ph.D., for a consultative psychological evaluation on February 13, 2013. Dr. Albert diagnosed mild mental retardation based on the claimant's test scores in administered intellectual testing (Ex. 8F). However, he also observed the claimant having problems with both receptive and expressive language during the interview and the claimant's scores in perceptual reasoning were (again) outside the range of intellectual disability (Ex. 8F/3-4). Similarly, the level of adaptive functioning documented in the record (as opposed to adaptive test scores) further shows the claimant functioning at a higher
level than that of intellectual disability. The claimant is independent in his self-care activities, he works parttime as a cook, he is taking classes at a local community college, and he enjoys playing football, running track, lifting weights, and playing video games (Ex. 1E and hearing testimony). In addition, the claimant's high school records show him progressing under an individualized education plan (IEP) and on grade-level with plans to graduate and attend college while working part-time (Ex. 5E and 14E).Tr. 20 ¶ 2; see also Tr. 25 ¶ 4 (summarizing a portion of the foregoing analysis).
For the above reasons, I do not find the February 2013 consultative diagnosis of intellectual disability consistent with or supported by the overall record and therefore give it no weight. Dr. Albert based his mild mental retardation diagnosis on a one-time examination of the claimant and the claimant's scores in administered testing have been variable, with scoring inconsistent with intellectual disability, as other psychological consultants (examining [i.e., LPA Saylors] and reviewing [i.e., William H. Farrell, Ph.D. and Ken M. Wilson, Psy.D.]) have found (Ex. 6F/ 10F/13, and 11F/13). I find the assessments of the other psychological consultants finding the claimant having organic mental disorders and functioning intellectually in the borderline range to be more consistent with the expanded hearing record, including the claimant's testimony and documented level of adaptive functioning.
The ALJ stated:
As also discussed under Finding 2, the claimant has had variable scores in administered intellectual testing consistent with a mixed receptive expressive language disorder and ADHD as opposed to intellectual disability (Ex. 19F/2 [LPA Saylors report]; see also Ex. 10F [Dr. Farrell's psychiatric review technique form] and 11F [same form by Dr. Wilson]). This is also consistent with his part-time work as a cook while attending community college as well as his reported activities of watching/playing sports, playing video games and exercising/weight lifting.Tr. 25 ¶ 4.
The court finds that the reasons provided by the ALJ for giving no weight to Dr. Albert's diagnosis of mild mental retardation are based on proper legal standards and supported by substantial evidence, including the evidence he cites.
As indicated, these reasons include reasons cited by the ALJ for crediting the assessments by Dr. Farrell and Dr. Wilson. The ALJ later acknowledged that he gave "considerable weight" to their assessments, which he accurately observed were "generally compatible with the overall performance of . . . work involving [SRRTs]." Tr. 25 ¶ 4. Contrary to plaintiff's contention, the fact that Dr. Farrell and Dr. Wilson did not examine plaintiff did not bar the ALJ from giving their assessments the weight he did. See Soc. Sec. Ruling 96-6p, 1996 WL 374180, at *3.
The assessments by Dr. Farrell and Dr. Wilson consisted of both a mental RFC assessment and a psychiatric review technique form, which Dr. Farrell completed on 21 February 2013 (Tr. 387-90; 391-404) and Dr. Wilson on 27 March 2013 (Tr. 419-22; 405-18). Dr. Farrell found that plaintiff had the organic mental disorder of expressive and receptive language disorder (Tr. 392); did not have mild mental retardation (i.e., "clmt not MMR") (Tr. 403; see also Tr. 395); and "appears capable of performing simple, routine tasks" (Tr. 389). Similarly, Dr. Wilson found that plaintiff had the organic mental disorders of both expressive and receptive language disorder and ADHD (Tr. 406), making no diagnosis of intellectual disability (Tr. 409); and had sufficient capacity in memory, concentration, persistence, social interaction, and adaptive functioning to perform SRRTs (Tr. 421).
As is apparent, while both Dr. Farrell and Dr. Wilson found plaintiff to have an organic mental disorder, neither found him to satisfy Listing 12.02 for organic mental disorders. At step three of the sequential analysis, the ALJ expressly found that plaintiff did not meet or medically equal Listing 12.02, a finding plaintiff does not challenge. See Tr. 21-23 ¶ 3.
Again, the ALJ's determination that plaintiff did not satisfy the "deficits in adaptive functioning" requirement in the diagnostic description alone precludes plaintiff's satisfaction of Listings 12.05B and C. Listing 12.05. Likewise, the ALJ's determination that plaintiff did not satisfy the IQ requirement of paragraphs B and C independently precludes satisfaction of Listings 12.05B and C, respectively.
In sum, not only does the ALJ's decision make clear his determination that plaintiff did not satisfy Listings 12.05B and C on multiple grounds, but that determination is a proper one. Therefore, while plaintiff contends that the record compels the conclusion that he satisfied Listings 12.05B and C, that argument is meritless. It amounts to a request that the court reweigh the evidence, which it may not properly do.
Given the multiple proper grounds on which plaintiff failed to satisfy Listing 12.05C, the issues of whether plaintiff satisfied the "significantly subaverage general intellectual functioning" requirement in the diagnostic description and the additional impairment requirement in paragraph C are moot. Listing 12.05.
One specific determination by the ALJ that plaintiff asks the court to revisit is his evaluation of the GAF scores Dr. Saylors and Dr. Albert assigned to plaintiff. The ALJ attributed "some weight" to the score of 60 each assigned plaintiff:
The GAF scale measures a person's overall psychological, social, and occupational functioning. DSM-IV-TR 32. Selected GAF scores have the following meanings:
80-71 If symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).DSM-IV-TR 34 (formatting altered from original).
70-61 Some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.
60-51 Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning in social, occupational, or school functioning (e.g., few friends, conflicts, with peers or co-workers).
50-41 Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).
[Ms. Saylors] did rate his current [GAF] score a 60, which is suggestive of moderate symptoms or impairment. I give some weight to her GAF score rating. However, GAF scores are not indicative of an individual's overall long-term functioning and can vary from day-to-day and between practitioners' reducing their probative value. Nonetheless, I do not find her GAF score rating would preclude work within the parameters of the [RFC] stated herein.Tr. 26 ¶ 4. The court finds that the ALJ's evaluation of LPA Saylors' and Dr. Albert's GAF scores is based on proper legal standards and supported by substantial evidence.
. . . .
I give some weight to Dr. Albert's GAF score (also a 60) for the same reasons given above for Ms. Saylors' GAF rating.
Plaintiff also challenges the ALJ's attribution of "partial weight" to the oral testimony of plaintiff's mother and written statement of his father. See Tr. 26 ¶ 4. The ALJ accurately summarized the testimony and statement by plaintiff's parents as follows:
I also heard testimony from Cynthia Taylor, the claimant's mother. Ms. Taylor testified the claimant has always had difficulty multi-tasking and maintaining focus and concentration. She confirmed the claimant took medication for ADHD and colitis. Ms. Taylor admitted the claimant did not always take prescribed medication for Crohn's disease (she did not know why) or follow dietary restrictions, and that as a result he had flare-ups (diarrhea with foul smelling gas), which she estimated occurred four times in the past six months. She noted the claimant also did not like taking his ADHD medication because of side effects but she was unaware whether he told his doctor about this. Ms. Taylor testified the claimant had to take remedial college classes and had failed several courses.Tr. 24 ¶ 4.
In addition, in lieu of a supplemental hearing, the claimant's father, Dexter Taylor, Sr., submitted a written affidavit describing the claimant's difficulties with short-term memory, multi-tasking, communicating verbally, and maintaining attention and concentration as well as his belief that the claimant needed ADHD medication to function (Ex. 20F).
The ALJ later explained his attribution of "partial weight" to plaintiff's mother's testimony and father's statement:
I give partial weight to the hearing testimony of Cynthia Taylor and written affidavit from Dexter Taylor, Sr., the claimant's parents, as they provide added insight and observations into the claimant's impairments. However, they are not acceptable medical sources (even though Ms. Taylor testified she is a nurse) under the regulations and their observations about the claimant are not functional or diagnostic in nature. Ms. Taylor testified Mr. Taylor takes the claimant to his appointments and she does not know what the claimant tells the doctor. She also testified the claimant hid things from her. Moreover, despite reported difficulties, the claimant nonetheless maintains a schedule; working part-time and taking classes at the community college. Both his parents and the claimant acknowledge that prescribed medication is helpful with respect to his symptoms, but the claimant nonetheless admitted he does not take his medication as directed. Treatment notes also reflect symptom improvement with medication and dietary compliance as well as generally unremarkable findings on physical examination. Further, by virtue of
their relationship with the claimant, Mr. and Ms. Taylor's opinions would naturally tend to be colored by affection for the claimant and they would have an understandable tendency to agree with any limitations alleged by the claimant, as well as an incentive to portray the claimant in a disabled light. For all these reasons, I give only partial weigh to Ms. Taylor's testimony and Mr. Taylor's written affidavit.Tr. 26-27 ¶ 4. The court finds that the ALJ's assessment is based on proper legal standards and supported by substantial evidence. See, e.g., 20 C.F.R. §§ 416.913(d)(4), 416.927(f), 416.929(a), (c)(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *6-7 (16 Mar. 2016). Plaintiff's challenge to it is therefore meritless.
In context, the court understands "not functional . . . in nature" to signify that the observations in question do not focus on what plaintiff is able to do, as opposed to what he is not able to do. Tr. 26 ¶ 4.
The court concludes that plaintiff's challenge to the ALJ's determination on Listings 12.05B and C fails. The court accordingly rejects it.
V. ALJ'S HYPOTHETICAL TO THE VOCATIONAL EXPERT
A. Applicable Legal Principles
A hypothetical question is proper if it adequately reflects a claimant's RFC for which the ALJ had sufficient evidence. Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005); Baker v. Astrue, No. SAG-10-145, 2012 WL 12751, at *4 (D. Md. 3 Jan. 2012) (rejecting plaintiff's objections to the ALJ's hypothetical to the vocational expert where "the hypothetical presented to the [vocational expert] was supported by substantial evidence and adequately included all the limitations that were deemed credible by the ALJ"). Testimony by a vocational expert based on an incomplete hypothetical may not constitute substantial evidence supporting the ALJ's step-five determination. See Lyles v. Colvin, Civ. Act. No. 1:14-2042-RMG, 2015 WL 1931398, at *15 (D.S.C. 7 Apr. 2015) (citing Swaim v. Califano, 599 F.2d 1309, 1312 (4th Cir. 1979)), rep. & recomm. adopted, 2015 WL 1931398, at *1 (28 Apr. 2015).
B. Analysis
The hypothetical to the vocational expert eliciting the testimony upon which the ALJ relied at step five of the sequential analysis reads:
[L]et's start off by assuming a person the same age, education, and work experience as the claimant. Let's say that that person is limited to the medium exertional level with push or pull limited to the medium level; with no climbing of ladders, ropes, or scaffolds; and with no exposure to work place hazards such as moving machinery or unprotected heights. In addition, let's say that the work for such a hypothetical person is limited to performance of [SRRTs] in a low stress job which I'll define as having no more than occasional decision making required and no more than occasional changes in the work setting, with no production rate or paced work such as would be done on an assembly line. Would there be examples of jobs that would fit within that hypothetical?Tr. 552-53.
The hypothetical accurately tracks the ALJ's RFC determination which, again, reads:
After careful consideration of the entire record, I find that since February 25, 2013, the claimant has had the [RFC] to perform medium work, as defined in 20 CFR 416.967(c), except no climbing ladders, ropes, or scaffolds, and no exposure to workplace hazards such as moving machinery and unprotected heights. He is further limited to the performance of [SRRTs], in a low stress job (defined as having no more than occasional decision-making required and no more than occasional changes in the work setting), with no production-rate or paced-work (such as would be done on an assembly line).Tr. 23 ¶ 4.
Plaintiff contends that this hypothetical was improper, in part, on the apparent grounds that it did not reference plaintiff's ADHD or "Mild Intellectual Disability ability to stay on track." Pl.'s Support. Mem. 10. But the function of a hypothetical is to set out a claimant's pertinent abilities and limitations as found in the RFC determination. This can be accomplished—and ordinarily is—without reciting the impairments underlying the limitations. Moreover here, as previously discussed, the ALJ properly determined that plaintiff does not have an intellectual disability.
Plaintiff also argues that the ALJ failed to explain how plaintiff's mental impairments are accommodated by limitations in the RFC and thereby in the hypothetical. The court finds, though, that the ALJ did explain his accommodation of plaintiff's mental impairments in the RFC. For example, after noting that he restricted plaintiff from climbing ladders, rope, and scaffolds and exposure to work place hazards because of plaintiff's alleged dizziness from ADHD medication, the ALJ stated:
I have also restricted the claimant to the low stress, non-production work detailed above in addition to [SRRTs] to accommodate his ADHD, language disorder, and borderline intellectual functioning. I find such reduction to also be consistent with the claimant's activities of daily living, including working part-time as a cook and taking community college classes.Tr. 25-26 ¶ 4.
The court also finds that substantial evidence supports the mental limitations that the ALJ included in the RFC and thereby that the record does not compel more severe limitations. This evidence includes that reviewed in the foregoing analysis of the ALJ's determination on Listing 12.05. Notable among other evidence, the ALJ found that besides speech therapy "[t]he record does not show the claimant participating in any other special services/therapy related to his mental impairments." Tr. 25 ¶ 4. Citing office visits by plaintiff with providers treating his gastrointestinal problems, the ALJ found that "observations by medical providers reflect the claimant having a normal ability to communicate, being alert and oriented, and having a normal mood and appropriate affect (see e.g. Ex. 4F)." Tr. 25 ¶ 4. Thus, the ALJ noted that notwithstanding plaintiff's language and other mental disorders he was able to communicate adequately and otherwise comport himself in a normal manner in the medical office setting. The mental limitations in the hypothetical are therefore based on an RFC having the support of substantial evidence of record.,
Plaintiff does not challenge the physical limitations in the hypothetical.
To the extent that plaintiff contends the ALJ did not perform the requisite function-by-function analysis in making his RFC determination, at a minimum, the ALJ's allocation of "considerable weight" to the mental RFC assessments of Dr. Farrell (Tr. 387-90) and Dr. Wilson (Tr. 419-22) satisfied that requirement. See, e.g., Williams v. Berryhill, No. 5:16-CV-139-FL, 2017 WL 9480183, at *6 (E.D.N.C. 19 Apr. 2017), mem. & recomm. adopted, 2017 WL 2191591 (18 May 2017). --------
Plaintiff further argues that when the ALJ posed to the vocational expert an alternative hypothetical adding mental limitations to those included in the hypothetical upon which the ALJ relied, the vocational expert testified that no jobs would be available to plaintiff. It is true that in response to the alternative hypothetical the vocational expert testified that no jobs would be available to plaintiff. But the alternative hypothetical went well beyond simply adding limitations to the hypothetical upon which the ALJ relied and essentially posited that the hypothetical person was disabled by specifying that he could not engage in substantial gainful activity. It read:
Finally, if as a result of a combination of medical conditions with associated symptoms as well as mental impairments, if as a result of this combination the hypothetical person that we're talking about was unable to engage in sustained work activity necessary to earn income at a level of substantial gainful activity would there be jobs for such a hypothetically limited person?Tr. 554. The court therefore finds plaintiff's argument on this alternative hypothetical feckless.
The court concludes that plaintiff's challenge to the ALJ's hypothetical to the vocational expert is meritless. It accordingly rejects the challenge.
VI. CONCLUSION
For the foregoing reasons, IT IS RECOMMENDED that the Commissioner's motion (D.E. 23) for judgment on the pleadings be ALLOWED, plaintiff's motion (D.E. 21) 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 21 August 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his 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 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).
Any response to objections shall be filed within 14 days after the filing of objections.
This 7th day of August 2019.
/s/_________
James E. Gates
United States Magistrate Judge