MASSEY v. COLVIN, No. 1:2013cv00965 - Document 21 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNTIED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 6/19/2015. After a careful consideration of the evidence of record, the Court finds that the Commissioner's decision is supported by substantial evidence. Accordingly, this Court RECOMMENDS that Plaintiff's motion for judgment on the pleadings (Docket Entry 13 ) be DENIED, Defendant's motion for judgment on the pleadings (Docket Entry 19 ) be GRANTED, and the final decision of the Commissioner be upheld. (Daniel, J)
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MASSEY v. COLVIN Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA WILLIE DOUGLAS MASSEY, Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) t13CV965 ) ) ) ) ) ) ) MEMORA.NDUM OPINION AND RECOMMENDATION Plaintiff, 1631(c)(3) \ùØillie Douglas Massey, brought this action pursuant to Sections 205(9) and of the Social Security ct (the "ct"), as amended (42 U.S.C. $$ a05(g) and 1383(c)(3)), to obtain teview of a [tnal decision of the Commissioner of Social Security denying his claims for a Period of Disability ("POD"), Disability Insutance Benefits ("DIB"), and Supplemental Secudty Income ("SSI") under Titles II and XVI of the Act. The Court has befote it the certified administtative recotd and cross-motions fot judgment. I. PROCEDURAL HISTORY Plaintiff protectively filed applications for a POD, DIB, and SSI on November 2,2009 alleging a disability onset date of Febtuzly 2,2000.1 Qr.20,21.8-222.) The applications wete denied initially and again upon reconsideration. Qd. at120-27, 1,36-43.) Plaintiff then requested a hearing before an Administrative Law Judge Apdl 1,8,201,2 hearing were (",\LJ"). (Id. at 145-46.) ,{.t the Plaintiff, his attorney, and Plaintiff's mother. (Id. at40-72.) t Transcrþt citations tefer to the administrative record. pocket Entries .A. 9-10.) Dockets.Justia.com vocational expert ('1/-E") also appeared telephonically. Qd.) The ALJ determined that Plaintiff was not disabled under the Act. (Id. at20-35.) Plaintiff requested that the Appeals Council teview the LJ's decision. (td. at 1,4.) On -August 30, 201.3, it denied Plaintiff's request for teview, making the -ÀLJ's determination the Commissionet's fìnal decision for purposes of teview. (Id. at1,-5.) II. LEGAI STANDARD The Commissioner held that Plaintiff was not undet a disability within the meaning of the A.ct. Under 42U.5.C. $ 405(9), the scope of judiciai teview of the Commissioner's final decision is specific and narow. Smith u. Schweiker,795 F.2ð,343,345 (4th Cit. 1986). This Court's teview of that decision is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision. 42U.5.C" $ a05(g); Hønteru. Salliuan, 993 tr.2d 31, 34 (4th Cir. 1992); Hay u" Sulliuan, 907 tr.2d 1453, 1456 (4th Cir. 1990) Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusioî." Hxlnter,993F.2dat34 (ctlngNchardson (1,971)). It "consists u. Perales,402 U.S. 389,401, of more than a mere scintilla" "but may be somewhat ptepondetaÍrce." Id. (quolng Lnws u. Celebreçry,368 F.2d 640, 642 (4th Cir. less than a 1,966)). The Commissioner must make fìndings of fact and resolve conflicts in the evidence. HnJt, 907 tr.2d ^t 1456 (citing King u. Calffano, 599 tr.2d 597 , 599 (4th Cir. 1979)). The Coutt does not conduct a de novo review Schwei,Qer,795 tr.2d of the evidence not of the Commissioner's fìndings. at 345. In reviewing fot substantial evidence, the Coutt does not undertake to re-weigh conflicting evidence, to make credibility detetminations, or to substitute 2 its judgment for that of the Commissioner. Craig u. Chater, 7 6 F.3d 585, 589 (4th Cir. 1996) (citing HoJt,907 F.2d at 1456). 'lX/hete conflicting evidence allows reasonable minds to differ as to whether a clatnant is disabled, the tesponsibility for that decision falls on the [Commissione{ (ot the [Commissioner's] designate, the ALJ)." Craig76F.3dat589 (quoting Walker u. Bowen, 834 tr.2d 635, 640 (7th Cir. 1987)). The denial only See if no reasonable mind could accept the recotd Nthard¡on u. of benefits will be reversed to support the determination. as adequate Perales,402U.5. 389,401, (1,971). The issue befote the Coutt, thetefote, is not whether Plaintiff is disabled, but whether the Commissioner's fìnding that Plaintiff is not disabled is supported by substantial application of the relevant law. See evidence and was reached based upon a correct id.; Cofman u. Bowen,829 tr.2d 514, 517 (4th Cir. 1987). III. DISCUSSION Plaintiff raises fout issues. First, he contends that the ÀLJ etted by giving little weight to the opinion of Dr. Joseph Appollo. (Docket E.ttty 14 at3.) Second, he contends that the ALJ did not develop the record and did not mention favotable evidence. Qd. at6.) Third, he asserts that the LJ etted in his RFC finding and ered futther by framing a hypothetical question to the VE that failed to account for his low IQ. (Id. at7 .) Last, Plaintiff contends that the.ALJ erted by disregarding his low GF scores. (Id. at9.) A. Dr. Appollo Plaintiff contends that the'ALJ committed reversible error in giving "little weight" to the medical opinion of Dr. Joseph ,{ppollo. (Id. at 3-5.) Dt. Appollo conducted consultative evaluation of Plaintiff on January 22,201,0. a J (fr. a at 423-435.) -Àccordingly, he conducted a series of tests, including the WoodcockJohnson Tests of Achievement, the Wide Range ssessment of Memory and I-eatning, and the Wechslet Adult Intelligence ("\MÀIS"). Qd.) All test tesults were "very low." Qr aß.) Scale Dr. Appollo concluded that Plaintiff "may have difficulty understanding, retaining and following instuctions, but should be reviewed with any previous academic records." (Itl. ^t 434.) He concluded futther that Plaintiff "can attend for only shot pedods of time," "can relate to others," and "does not appear to be able to handle stress." (Id.) While noting PlaintifFs very low test scotes, Dt. Appollo also stated they should be reviewed in light of his medical or academic records and that "þloot motivation needs to be ruled out." (Id. at433.) Plaintiff was diagnosed with rule out cognitive disorder, not otherwise specifìed; rule out mild mental retardatton; and was assigned a global assessment of functioning ("GAF") scote of 50. (Id. at 434.) The -dLJ afforded Dt. Appollo's opinion little weight, essentially discounting the low scores Plaintiff received on the administered tests, because these results were inconsistent with his prior petformance in school. (Ir. 30.) Plaintiff contends that the LJ's reasons for discounting Dr. Appollo's opinion are "unsustainable." (Docket Entty 1,4 at 4.) He argues that Dr. ,\ppollo's opinion is corroborated by his school IQ scotes and that the ALJ etted by faiìing to specifically mention them. (Id. at 5.) An ,{LJ must evaluate all of the medical opinions in the record in light of: the examining relationship, the treatment relationship, the degtee to which the opinion telies on relevant evidence, the consistency of the opinion with the recotd as a whole, the specialtzalon of the source of the opinion, and other factors brought to the AIJ's attention. 20 C.F.R. 4 S 404.1,527 (c),416.927 (c). A medical source's opinion must be both well-supported by medical signs and laboratory fìndings as well as consistent with other substantial evidence in the case recotd. Id. "Fff u physician's opinion is not supported by clinical evidence ot if it inconsistent with other substantial evidence, is it should be accorded signifìcantly less weight." Craigu. Chaîer,76tr.3d 585,590 (4th Cit. 1,996). In teviewing fot substantial evidence, the Court does not undettake to re-weigh conflicting evidence, to make credibility determinations, ot to substitute its judgment fot that of the Commissioner. C-tç76 P.3d at 590 (citation omitted); accord Mastro ,. Aprt[270 F.3d 17'1,,178 (4th Cir. 2001). The ALJ's decision to give "little weight" to Dr. Appollo's opinion is suppotted by substantial evidence. The record indicates that Plaintiff, born \n 1,970, graduated from high school in 1988, was not in special education classes, and did "faiirly well" in school.2 56, 59-61,281, 423 ("DOB 09 /29 /1970").) The LJ correctly pointed to this as a suffìcient reason to discount Dr. ,\ppollo's test tesults, especially given that concerns about possible "poor motivation" ^nd Dt. ,\ppollo noted his his suggestion that Plaintiffs test results be considered in light of his school record. The LJ also took into considetation Dt. report in light of the medical Çl44, evidence of record. Qr 2a.) The ,\LJ '{.ppollo's concluded that PlaintifPs mental limitations were no more than mild to modetate and wete adequately Plutnttff contends that the ALJ erred in finding that he was an honor student. pocket F;nty 1,4 at 5.) Thete is evidence in the tecotd that Plaintiff was on the honot toll. fr. 290,320.) Any error, if this is indeed an etrot, in the distinction between being on the honot toll and being an honor student is at most harmless, especially in light of evidence that Plaintiff did reasonably well in mainstream classes. ,\nd, in any event, even without clanty on this specific issue, the ALJ did not err in giving litde weight to Dr. Appollo's opinion. Plaintiffs high school performance was one of the many issues in the tecord the ALJ weighed in determining which evidence to give greater weight to. "The ALJ may choose to give less weight to the testimony of a trea(tne physician if there is persuasive contrary evidence." Hanter,993 F.2d at34. ' 5 cptured by the RF'C. fr. 24-25, 28-30, 47.) Fot example, one factor the ALJ considered relevant was the absence of references to any mental impairments in Plaintiffs pdson medical records, which is noteworthy because Plaintiff spent the prepondetance of his alleged POD incarcerated. Qr. 29, 47.) Nevetheless, Plaintiff points to priot IQ scotes he teceived in the late 1970's and eatly 1980's and faults the A.LJ for not explicitly refetencing them in his decision. However, the ,\LJ stated repeatedly that she considered the entite record, and the Coun may tely on statements.3 Çr.20,22,25,30.) Likewise, an,\LJ need not ptovide a these written evaluation for document.a The ALJ's "farhute" to discuss all the exhibits, including those mentioned by each Plaintiff, in a 500 plus page tecotd is not error. The regulations also suggest that IQ tests administered decades ago before a claknant\Ã/25 si¡¡ss¡-as was the case and have long since grown stale.s A.nd, setting that aside, the oldet þs¡s-2¡s unteliable IQ scores are generally ltigber-and often considerably highet-than the IQ scotes Plaintiff teceived from Appollo. Yet, even setting this aside, the non-examining state agency physicians also considered these other IQ scores and recornnended an RFC limited to simple, routine repetitive tasks, which is consistent with-though /¿r testrictive than-the RFC ultimately adopted by the 5553677, at *6 CX/.D.N.C. (unpublished) Q"it;ngRappaporr u. Salliuan,942tr.2d1,320,1,323 (8th Ctu. 1991)). 3 See Grabbl u. AsTrwe, No. 1:09cv364,201.0 4 WL Nov. 18, 2010) eg, Diaqu. Chater,55 F.3d 300, 308 (7th Cir. 1995); Mellon u. AsÍrue, No. 4:08-211O-MBS, 2009 WL2777653,at*1,3 p.S.C.Aug. 31,2009) (unpublished); Breweru.AsTrae,No. 7:07-CV-24-FL,2008 WL 46821,85, at*3 (E.D.N.C. Oct21.,2008) (unpublished). s See, Coluin,5:1.2CY187-RLV, 2014WL538799, at *5 [M.D.N.C. Feb. 11,201,4) (fitd-g IQ scores obtained before claimant was 16 invalid under 20 C.F.R. pt. 404, subpt. P, app'x 1 $ 112.00(D)(10));Gibson u.Astrue,No.2:10CV00060, 2011WL 6888532, at *2 flX/.D.Va. Dec. 29,2011) See e.g.,Yoance u. (same). 6 ,\LJ. (r77,90, 101 74-84,87-93,96-1.1.9.) The,A.LJ indicated that she had consideted the medicai opinions of these experts, stated that she "generally agree[d] with them," andgave their opinions "signifìcant weight." (Tr. 30.) The logical implication here is that the ALJ found that these older IQ scores did not change the disposition of the RFC ot the disability determination. Plaintiff also states that he was ptejudiced by this perceived ertor, but fails to meaningfully explain how. Plaintiff does not contend that he meets a listing at step thtee fot an intellectual disability and does not state what additional limitation should have been included in his RFC. Dt. ,\ppollo indicated Plaintiff retaining, and following directions, but can attend others, and does not appear able to handle stress. rnay have difficulty undetstanding, fot shott periods of tjme and relate to (r. a3a.) In compatison, the ALJ found that Plaintiff could petform simple, routine, repetitive tasks and was able to toletate only routine changes in a non-production wotk environment with limited exposure to noise with no contact with the public and only occasional contact with co-workets or supervisors. 25) Given that the AIJ (fr. appears to have accounted for Dr. ppollo's proposed limitations, even assuming it was error for the ,\LJ not to mention the oldet IQ scores, which it was not, prejudice is absent. Finally, in attributing litde weight to Dr. Åppollo's opinion, the ALJ indicated that absent a new brain injury causing a precipitous dtop in his IQ, Appollo's test tesults appeared invaLid. (It. 30.) See, e.!., Clarþ. u. Coluin,No. 1:12CV1.27 ,201,4WL211,2519, at *4 (À4.D"N.C. lr{ay 20,2014). To understand this conclusion, it is important to know that at vadous points 7 in the record, Plaintiff and his mother indicate that what ultimately turned out to be a lipoma on Plaintiffls head was actually a brain tumor that caused a detetioratton in his cognitive abilities. Importantly, Plaintiff asserts, and testified undet oath, that he did not have mental limitations prior to 2009. (It. these 48-50, 56,61.,283,552-53.) Plaintiff, thtough counsel, nov/ concedes that he did not have btain sutgery, nor did he have a btain tumor. (Docket Er,try 14 at 4-5.) In light of all this, the -A,LJ's conclusion that a toutine temoval of a benign cyst ftom Plaintifls head would not account for the low test scores Plaintiff received from Dr. ppollo is suppoted by substanttal evidence Çr.29-30 referencing393-96,552-53.) B. The Record In an ovedapping argumenq Plaintiff next contends that the ALJ erted by failing to develop the recotd because he did not mention a statement by PlaintifFs mother that he was in special education classes. (Docket E.rtry 1,4 at The AIJ 6.) This argument is not persusive. is required "to explore all relevant facts and inquire into the issues necessary for adequate development of the recotd . . . ." Coo,ë u. Heckler, 1936). 'When the evidence submitted by the claimant is disabled, the 83 tr .2d 11168, 1,1,7 3 (4th Cn. is inadequ^te as to whether the claimant IJ cannot rely on that evidence alone. 'lX/here the -dLJ fails T 20 C.F.R. SS 404.1512(d),416.912(d). in his duty to fully inquire into the issues necessary for adequate development of the record, and such failute is prejudicial to the claimant, the case should be temanded." Mar¡h u. Harris, 632 tr .2d 296, 300 (4th Cir. 1980). Plaintiff faults the LJ fot "failing to mention" he was in special education (Docket E.rtty 14 at 6-7.) However, classes. substantial evidence supports the conclusion that 8 Plaintiff was not in special education classes and that he did reasonably well in school. (See e.g.,Tr.56,59-61.,28L,286,290,424.) Plaintiff himself reported to the agency that he did not take special education classes. Qr. 281,.) He later repotted the same to Dt. Appollo. (ft. 424.) Plaintiffs mother reported to an agency employee education classes. Qr.236.) She later teported and"always made honot toll in school." that Plaintiff had not been in special to the agency that Plaintiff was 'î.ty smaLr(' Çr 290.) Yet, Plaintiff points to a notation by Dr. Swati Dakodya stating that "Mother reports that fPlaintiff] was in special-ed classes and he did faitly in school. He was a bright and intelligent kid." (Ir. 455.) Defendant contends that this statement appears to contain typographical errors. (Docket E.rtty 20 at 10-11.) Plaintiff, on the other hand, argues the ,\LJ should have developed this matter further" Howevet, the '{.LJ did investtgate Plaintifls academic recotd furthet by asking both Plaintiff and his mothet how Plaintiff petfotmed in school. (Tr. 48, 56,59-61.) Plaintiff testified he graduated ftom high school in 1988 and did fairly well. [r. 44, 56, 59-61,281.) He attributed his lapses in temembedng, concenttation, reading, and understanding English to his 2009 scalp surgery fot lipoma removal. (r 48-49, 56,61.) \X/hen questioned by the ,{LJ, Petitioner's mother likewise atffibuted these issues to his scalp surgery and said that in school he had been "norrø:al" and "a. very smart guy." (It. 58-59.) When examined by Plaintiffs counsel, Plaintiffs mother stated that Plaintiff was a "fatÄy good student" and that he made "decent grades." (Tr. 60-61.) ,\t the administrative hearing, counsel did not ask Plaintiff or his mothet whether Plaintiff was in special education classes. In light of the above, the ÀLJ satisfìed his duty to develop the tecotd. The record 9 contains ample evidence and discussion of this issue. C. GAF Scores Plaintiff contends that the LJ erred by distegarding his low G,tF scores6 on the ground that he continued to drink alcohol. @ocket E.ttry 1,4 at 9.) As explained below, Plaintiff has demonstrated, at most, harmless error. '. GAF score is intended to be used in treatment decision and may have little to no beating on 4899989, at occupational functioning." Lnue u. Astrae, *4 (W.D.N.C. Sept. 6, 201,1) (unpublished No. 3:11-CV-014, opinion), 2011' WL adoþted 201,1. VlL 4899984 flX/.D.N.C. Oct. 1,4,201,1). Consequent)y,"itis unsutptising that courts have concluded that 'the failure to reference a G,{.F score is not, standing alone, sufficient gtound to reverse disability determination."' Clemin¡ u. A¡trae, No. 5:13-CV-00047, 2014 WL 4093424, at a x"l. flX/.D. Va. Aug. 18,201.4) (quotingParis u. Coluin, No. 7:12-CV-00596, 201,4Uil- 534057, at*6 (]X/.D. Va. Feb. 1,0, 201.4); Lnue, 201.1 \XaL 4899989, dditionally, reversal on the grounds that the ú x5 (quotation marks omitted). ,\LJ failed to consider a G-ÀF score "is patticulady inappropriate'where the,\LJ fully evaluated the tecotds and tteatment notes upon which the G,\F scores were based."' Id. (qøotingParis,2014 ìfL 534057 , atx6). Here, the ÀLJ considered the entite t^nge of Plaintifls GÅF scores, noting: His GAtr scores range from 50-55 to o 35. Dr. Appollo reponed The GAF is a scale ranging fromzero to one hundred used to r^te^î individual's psychological, social, and occupational functioning. See Ãrr'. Psychratdc Assoc, Diagnostic and Statistical Manual of Mental Disotders 32-34 (4th Ed., Text Revision 2000). The Fifth Edition of the DSM published in 2013 discontinued use of the GF, in part because of "conceptual lack of clanty" and "questionable psychometrics in routine practice." I)iagnostic and Statistical Manual of Mental Disorders 16 (5th ed., -Am. Psychiatric Ass'n 2013). 10 his GAF was 50 @,xhibit 5F). ,{.lthough the claimant's GAF score of 35 indicates maior impaitments in wotk /school/famlLy relations, there is evidence that the claimant ddnks alcohol. His scores of 50-55 reflect generally moderate symptoms. It is noteworthy that G.,\F scores r^îge from 41,-50 (serious symptoms) and 51-60 (moderate symptoms). The claimant's chronic alcohol abuse probably contributes to his symptoms, as well as his situational stressors. Indeed, Gr\F scotes ate only estimations of an individual's functioning. Thetefore, no more than mild to moderate limitations cari be inferred from the modetate mental condition. (Id. at29.) The ALJ stated further that "[t]he undersigned has considered the low GAF scotes in the record, but the claimant continues ddnking alcohol and those scores ^ppe^r to be based on what he said and not on any objective criteria." (Id. at30.) -A.s explained above, one of the reasons the ALJ discounted Plaintiffs low GAF scores is because they "were based on what he said and not on any objective criteria." This is a proper rattonale for discounting GAF scores and is borne out by the record hete, given that the G-,\F scores at issue afe flot given meaningful discussion in the tfeatment notes and also latgely ^ppeat to be based on Plaintiffs subjective reporting.T (Docket Etttty 1.4 zt 9-12 referenùn9Tr.398,520-21,533,538,542,548.) 22436040, ú See Morri¡ u. Bamhart, No. 03-1332,2003WL x4 (3d Cir. Oct. 28, 2003) 590 n.2); Hanter Qitiog Craig 76 tr.3d ^t u. Coluin,No. 1:10CV401,2013WL2122575,atx7 (N{.D.N.C. May 15,2013);Oliuera. Comm'rof Soc.|ec.,415 Fed. -App'x. 681, 684 (6th Clr. 2011). The ALJ also evaluated all of the medical tecotds upon which the G,\F scores were t plaintiff also appears to allege that the fact that the physicians on whom the ALJ relied never mentioned PlaintifPs low GAF scores makes the,\LJ's reliance on those physicians' opinions "hrghly suspect, if not immediately reversible." (Docket Entty 1,4 at 9.) Plaintiff cites no authority for this ptoposition and the Court is unawate of any. f, based and took them into considetation in setting forth Plaintiffs RFC. Qr.28'30.) While Plaintiff cleady asserts he is disabled in l-ight of his GAF' scores, he does not meaningfully take issue with any of the,\IJ's findings or conclusions as to the specific medical records on which they ate based. Plaintiffs atgument fails fot this teason alone. Àdditionally, where alcohol andf or drug addiction is a contdbuting factor material to the determination of disabiliy, and the claimant would not be disabled but fot the drug addiction or alcoholism, then the claimant is not entitled to disability benefits. See 42 U.S.C. 423(d)Q)ç). Here, the record demonsrates a history of cannabis, cocaine, and alcohol S use. -{ physical examination record fromJune 2009, shows that Plaintiff teported that he had been drug-free for seven years. (Ir. 396.) An assessment from June 2010, indicates polysubstance dependence Daymatk Recovery Services in in full-sustained remission. Çt a52.) On October 4,2}1,0,Plaintiff ptesented to the emergency room aftet he had been drinking alcohol and was exhibiting anger andbizarce 201,0, and refetred for behaviot. (Ir. 45S.) psychiatric treatment. FIe was discharged on Octobet 6, Çr. 462.) On October 7,2010, Plaintiff presented to Daymark Recovery Services and teported that he was deptessed because he could not find a job. Qr 525,530.) with alcohol. His therapist noted that he was self-medicating his deptession (It. 530.) In March polysubstance dependence was 201,2, Dr. Daniel Johnston in remission. assessed that Plaintiffs (It. 5a8.) Consequently, even if PlaintifPs GAF scores were suffìcient to demonsttate he was disabled, which they are not, substantial evidence supports the ALJ's conclusion that alcohol use may have affected PlaintifFs GAF scofes. 12 Finally, as with the ,\LJ's purported failure to consider past IQ scores, Plaintiff fails to meaningfully explain what futther limitations Consequently, even his GAF scores would have justified. if the .,\LJ somehow failed in evaluating Plaintiffs GF scores, which is not the case, Plaintiff has not demonstrated prejudice. D. The RFC Last, Plaintiff contends that the ALJ erred by making an RFC fìnding, and fuarrring a hypothetical to the VE, that failed to account for his mental limitations stemming from his low IQ, patticulady "the ftequency and duration of fPlaintifPs] concenü:ational lapses." (Docket E.ttry 14 at7.) Here, the ,{LJ stated to the VE: Assume the existence of an individual who is 41 yeats old. Thus, is consideted to be a younger individual. Has a high school education, past v/ork as described. ssume further this individual has the tesidual functional capacity to petform work at all exertional levels. Flowever, the person-the individual should avoid concentrated exposure to hazards. There should be no more than modeTate exposure to noise. The wotk should be unskilled-simple, routine, repetitive in nature. No contact with the public. Occasional contact with co-workers and supervisots fot the essential functions of the position. Routine changes in the wotk environment. Should be a non-production oriented job. (fr. 69.) When asked tf that person could do any wotk besides Plaintifls past work, the VE answeted that "there would be unskilled non-production work at the light level" as a cleaner, laundry worker, or vehicle cleaner. (Id. at 69-70.) VE testimony as to the existence of jobs will constitute substantial evidence in support of the -ALJ's decision if itis in tesponse to a hypothetical question based on an accurate RFC 13 See lYalker u. Bowen,889 F'.2d 47, 50-5'l (4th Cir. 1989). dditionally, after the bdefing was filed in this case, the Fourth Circuit Coutt of ,{.ppeals decided Ma¡ùo pertinent part-concluded that a which-in u. Coluin, claimant's limitations in concenttation, persistence, and pace are not addressed by a hypothetical limitation to simple, toutine tasks, ot unskilled wotk. 780 tr.3d 632,638 (4th Clr,.201,5). Neither party has supplemented the btiefing by raising Ma¡ùo hete, and the undersigned notes that while thete ate similatities between this case and Masù0, Masdo appears factually distinct ftom the facts of this case. More specifìcally, at step three in this case Çr. 24.), as tn Ma¡cio, 780 F.3d at 638, the ALJ concluded that there were modetate limitations in concentration, persistence, or pace. There is a further similadty to Masdo here as well, because the ALJ limited Plaintiff to simple, routine, tepetitive work Çr. 25), whereas the LJ tn Ma¡cio concluded that the plaintiff could petfotm unskilled (2.e., simple and routine) work, Mavio,780 F.3d at 638 n.7 . The diffetences end here, howevet, because unlike Mascio, the ALJ in this case also lirnited Plaintiffs exposure to noise; his contact with the public, co-workets, and supervisors; environment; and his ptoduction pace. changes in his work (Id.) In light of all this, the undersigned concludes that the ÀLJ's RFC was based on substantial evidence of recotd, and his hypothetical to the VE mirrored his RFC detetmination and propedy captuted Plaintiff mental limitations. (Tr. 69.) '{.ccotdingly, the VE's testimony constituted substantial evidence upon which the ALJ apptopriately relied at step five. IV. CONCLUSION ,\ftet a careful consideration of the evidence 14 of record, the Coutt fìnds that the Commissionet's decision is suppotted by substantial evidence. ,\ccotdingly, this Court RECOMMENDS that Plaintiffs motion for judgment on the pleadings @ocket Entry be 13) DENIED, Defendant's motion fot judgment on the pleadings (Docket Entry 19) be GRANTED, and the fìnal decision of the Commissionet be upheld. June ,2015 Webster United States Magistrate Judge 15
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