FOLTZ v. COLVIN, No. 1:2014cv00055 - Document 14 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOE L. WEBSTER signed on 1/23/2015, that the Commissioner's decision is supported by substantial evidence. Accordingly, this Court RECOMMENDS that Plaintiffs Motion for Judgment on the Pleadings (Docket Entry 9 ) be DENIED, Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be GRANTED and the final decision of the Commissioner be upheld. (Daniel, J)
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FOLTZ v. COLVIN Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA JEFFREY ALLAN FOLTZ, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. t14CV55 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Jefftey ,{llan Foltz, brought this action pursuant to Section 205(9) of the Social Secutity Act (the "-,{.ct"), as amended (42 U.S.C. $ a05(g), to obtain review of a FtnaI decision of the Commissionet of Social Secudty denying his claims fot a Petiod of Disability ("POD') and Disability Insurance Benefits ("DIB") under Title II of the Act. The Court has befote it the certified administtative recotd and ctoss-motions for judgment. I. PROCEDURAL HISTORY Plaintiff filed an application fot onset date of November 24,2007 a POD and DIB on July 23,201.0 alleging . (fr. 15, 27 , 1,1.6-1,9.)1 The application a disability was denied initially and again upon teconsidetation. Qd. zt 56-85, 90-97.) Plaintiff then requested a headng before an Administrative LawJudge wete Plaintiff, his ^ttotîey, ("ALJ"). (Id. at 100-02.) At the J:une 1,4,201,2heanng and a vocational expett ('1¡E,"). (Id. at25-55.) The LJ detetmined that Plaintiff was not disabled undet the ct. (Id. at 15-24.) Plaintiff requested 1 Transcrþt citations refer to the administrattve record. (Docket Entry 7.) Dockets.Justia.com that the ppeals Council teview the AIJ's decision. (Id. at 10-11.) OnJuly 27,201.2the ,A.ppeals Council denied Plaintiffs request for review, making the LJ's detetmination the Commissionet's final decision fot purposes of review. (Id. ^t 1.-5.) II. FACTUAL BACKGROUND Plaintiff was 35 yeats old on the alleged disability onset date. (d. at23,11.6.) He had at least a high school education and was able to communicatein English. (Id. at23.) III. STANDARD FOR REVIEW The Commissionet held that Plaintiff was not under a disability within the meaning the of ,{.ct. Undet 42 U.S.C. $ 405(9), the scope of judicial teview of the Commissionet's final decision is specifìc and nattow. Snitb u. Schweiker,795 F.2d 343,345 (4th Cir. 1986). This Coutt's review of that decision is limited to determining whether there is substantial evidence in the tecotd to support the Commissionet's decision. 42U.5.C. 993 F.2d 3'1., 34 (4th Cir. 1,992); Hals u. Sulliuan, 907 $ a05G); Hanter u. Salliuan, tr.2d 1453, 1,456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support (1971)). a conclusio It n." Hunter, 993 F .2d at 34 (cinng Nchardson u. Perales, 402 U.S. 389, 401. "consists of more than a mete scintilla" "but may be somewhat less than preponderatrce." Id. (qtonng L^aws u. Celebreqqe, 368 a F.2d 640, 642 (4th Cir. 1,966)). The Commissionet must make findings of fact and tesolve conflicts in the evidence. Ha1s,907 F.2d ^t 1.456 (citing King u. Calfano, 599 does not conduct a de novo teview Schweiker, 795 tr.2d at 345. In F.2d 597 , 599 (4th Cir. 1,979)). The Cout of the evidence not of the Commissioner's reviewing fot 2 fìndings. substantial evidence, the Coutt does not undettake to te-weigh conflicting evidence, to make credibility determinations, or to substitute its judgment fot that of the Commissioner. Craig u. Chater, 7 6 tr.3d 585, 589 (4th Cit. 1996) (citing Hryt,907 tr.2d ^t 1,456). 'îX/here conflicting evidence allows teasonable minds to diffet as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissionet] (ot the [Commissioner's] designate, the IJ)." C*t5,76tr.3d at 589 (quoting lYalker u. Bowen,834 F.2d 635, 640 (7th Cir. 1987). The denial of benefits will be tevetsed only if no teasonable mind could accept the record as adequate to suppott the determination. See Nchardson u. Pera/es,402 U.S. 389,401, (1971). The issue before the Coutt, thetefote, is not whethet Plaintiff is disabled, but whethet the Commissionet's finding that Plaintiff is not disabled is supported by substantial application of the televant law. evidence and was teached based upon coffect Bowen,829 tr.2d 514, 51.7 (4th Cit. 1,987). id.; Cofnan u. AL See a DI The Social Security Regulations define "disability" for the purpose of obtaining disability benefits as the 'lnability to do any substantial gainful activity by reason of any medically detetminable physical or mental impaitment2 which can be expected to result in death or which has lasted or c rrbe expected to last for a continuous pedod of not less than 12 months." 20 C.F.R. S 404.1505(a); see al¡o 42 U.S.C. S 423(dX1XÐ. To meet this definition, a clatrnant must have a severe impairment which makes it impossible to do previous work or ' A "physical or mental impairment" is an impairment resulting ftom "anatomical, physiological, or psychological at¡normalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. S 423 (dX3). a 3 any other substantial gainful acivity3 that exists 404.1,505(a); see also 42 U.S.C. S A. 'fhe Commissioner follows is disabled, which is set in the nalonal economy. 20 C.F.R. S 423(dX2XÐ. The Five-Step Sequential Analysis a five-step sequential analysis to ascettain whethet the claimant foth in 20 C.tr.R. \ 404.1520. See Albrigltt u. Corurz'r of Soe Sec. Admin., 1,74F.3d 473,475 n.2 (4th Cu. 1,999). The ALJ must determine in sequence: (1) Slhether the claimant is engaged in substanlal gainful activity Q.e.,whether the claimant is working). Q) If so, the claimant is not disabled and the inquiry ends. Whether the claimant has a severe impaitment. If not, then the claimant is not disabled and the inquiry ends. (3) IØhether the impaitment meets ot equals to medical críteria of 20 C.F.R., Patt 404, Subpatt P, -r\ppendix 1, which sets foth a list of impafuments thatwartant a findingof disabilitywithoutconsidedngvocationalcritetia. If so, theclakna¡tis disabled and the inquiry is halted. (4) Whether the impairment prevents the claimant ftom perfotming past relevant work. If not, the claimant (5) is not disabled and the inquiry is halted. W.hether the claimant is able to perfotm any othet work considering both his residual functional capacitya and his vocational abilities. If so, the claimant is not disabled. t "S,lbrtuntial gainfirl acdvity" is work that (1) involves perfotming significant ot producdve physical ot mental duties, and Q) is done (ot intended) for pay or ptofit. 20 C.F.R. S 404. 1 51 0. a "Residual functional capacity" is the most a claimantcan do in 4 a work setting despite the physical and 20 c.F.R. S 404.1520 FIere, the AIJ ftst determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of November 24,2007 . Çr. at 1.7 .) The AIJ next found in step two that Plaintiff had the following severe impairments: bipolat disorder; panic disotder; personality disorder; diabetes mellitus; hypetension; and obesity. (Id.) t step thtee, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1. (Id.) At step fout, the Á,LJ concluded that Plaintiff could perform his past relevant wotk as a warehouse 22.) At worker. (Id. at step fìve, the ALJ detetmined alternatively that considering Plaintiffs age, education, work experience, and RFC, there wete jobs in the national economy that Plaintiff could petform such as cleanet and assembly line B. wotket. (Id. at23-24.) Residual Functional Capacity Determination Pdor to step four, the ALJ determined Plaintiffs RFC based on his evaluation of the evidence, including Plaintiffs testimony and the fìndings of treating and examining health cate ptovidets. (Id. at 1,9-22.) Based on the evidence as a whole, the AIJ detetmined that Plaintiff tetained the RFC to perform medium work, except that he could never climb laddets, ropes or scaffolds, and could only occasionally balance, stoop ot was futher required to avoid concentrated exposure to ctouch. (Id. at1.9.) Plaintiff operational conttol of moving machinery andhazardous machinery and working at unprotected heights. Qd.) Plaintiff was mental limitations 404.1545(a)(7); of her impairment and see also Hines a Barnbart,453 any related symptom (e.g., pan). 20 C.F.R. S includes both a See F3d 559,562 (4th Cir. 2006). The RFC "physical exertional or sttength limitadon" that assesses the claimant's "abiJity to do sedentary,light, medium, heav!, or very heavy work," as well as "nonexertional limit¿tions (mental, sensory or skin impairments)." Hall u. Harris,658 F.2d 260,265 (4th Cir. 1981). 5 futhet limited to simple, toutine, repetitive tasks in a work environment free of fast paced ptoduction tequirements, involving only simple, wotk-telated decisions with feq if any, work place changes. (Id.) Finally, Plaintjff was limited to work tequiring only occasional interaction with the public and co-workers with no tandem tasks. (Id.) C. The Past Relevant Work AIJ found in step four that Plaintiff was capable of petfotming past televant wotk as a watehouse wotket, which did not require the performance ptecluded by Plaintiffs RFC. Qd. D. of wotk-telated activities at22.) Adiustment to Othet Work The claimant bears the initial burden of proving the existence of a disability. 42U.5.C. S 423(dX5); 20 C.tr.R. S 404.1,51,2; Smitlt u. Calfano,592tr.2d 1235,1,236 (4th Clr. 1,979). Once the claimant has established at step four that he cannot do any work he has done in the past because of his sevete impairments, the burden shifts to the Commissioîet ^t step fìve to show that jobs exist in significant numbers in the national economy which the claimant could petform consistent with his RFC, age, education, and past . Hunter,gg3 F.2d ,{IJ found that given work expetience at 35; lYilson u. Califano, 61.7 F.2d 1050, 1053 (4th Cir. 1980). Flere, the Plaintiffs age, education, work experience, and RFC, thete were other jobs existing in significant numbets assembly line in the national economy that he could perform such as a clearter and worket. (Id. at 23-24.) Y. ANALYSIS Plaintiff essentially raises three issues. First, Plaintiff contends that the ALJ ered by 6 failing to affotd conttolling weight to the opinion of Plaintiffs treating psychiatrist, Dr. Raymond -{ndtew. pocket Entty 1,0 at 2.) Second, Plaintiff next contends that the .A.LJ ered by failing to address the factors cited in Social Security Ruling 06-03p. (Id.) Last, Plaintiff asserts that the ALJ etred by failing to include, both in the RFC and in to the VE, and a a a hypothetical limitation permitting Plaintiff to "take breaks as needed to manage his anxiety" testtiction addressing his moderate limitations in the ability to concentrate. Qd.) A. The ALJ Complied With the Treating Physician Rule. Plaintiff argues that the AIJ erred by declining to give conttolling weight to the opinion of his treating psychiatrist, Dr. Raymond ndrew. pocket Entty 1,0 at3-9.) The "treating physician rule," 20 C.F.R. S 404.1,527 (c)(2) generally ptovides more weight to the opinion of a tteating soutce, because it may "provide a detailed, longitudinal pictute of fthe claimant's] medical impairmentþ) [which] may bdng a unique petspective to the medical evidence." 20 C.tr.R. S 404J,527 (.)(2).u But not all treating sources arc created equal. An ALJ refusing to accotd conttolling weight to the medical opinion of a tteattne physician must consider various "f^ctors" to determine how much weight to give it. Id. S 404.1,527(c)Q)-$). These factots include: (i) the ftequency of examination and the length, nature and extent of the treatment t 962p ptovides that "Controlling weight may not be given to a úeaitngsource's medical opinion unless the opinion is well-suppotted by medically acceptable clinical and laboratory diagnostic techniques." SSR 96-2p, GiuingConrrollinglf/eight ro TrearingSoarce Medical Opinions. Howevet, where "a tteat)ng source's medical opinion is well-suppotted and not inconsistent with the other substantial evidence in the case record, it must be given conftolling weight." Id. SSR 96-5p provides furthet SSR never entitled to conttolling that "treadng sorrrce opinions on issues reserved to the Commissiorter ^ne weight or special significance." SSR 96-5p, Medical Source Opinions on Issues Reseraed lo tbe Commissioner. However, "opinions ftorn any medical source about issues teserved to the Commissioner must never be þoted, and . . . the nodce of the determination ot decision must explain the considetation given to the treating source's opinion(s)." 1/. 7 relationship; (ü) the evidence in support of the tteating physician's opinion; (üi) the consistency of the opinion with the recotd as a whole; (iv) whether the opinion is from a speciaìist; and (v) other factors btought to the Social Secutity r{.dministration's attention that tend to support or contradict the opinion. Id. Significantly, as subsections (2) through (4) of the de describe in gteat detail, source's opinion, like all medical opinions, must be both well-suppoted by medical laboratory findings Id. S 404.1,527 is inconsistent as trng and well as consistent with the other substantial evidence in the case tecotd. (c)Q)-@. "[]f u physician's opinion is not suppotted by clinical evidence or with other substantial evidence, it should be accotded significantly C*tg, 7 6 tr .3d at 590; ^úe sþs accord Mastro u. Apfel, 27 0 at 17 8. less if it weight." Opinions by physicians tegarding the ultimate issue of whether a plainttff is disabled within the meaning of the ,A.ct nevet receive conttolling weight because the decision on that issue remains fot the Commissioner alone. 20 c.F.R. S 404.1s27(d). FIere, in his Decision, the ALJ evaluated Dt. ,,\ndtew's opinions as follows: The claimant began medical treatment with psychiattist Raymond ,{ndtews in June 2010 for bipolar disotder and panic disotder. The claimant had been previously treated by Dt. Andtews several yeats eadiet. The undetsigned gives only parttal weight to Dr. Raymond Andrew's August 24, 2010 statement the claimant was totally and petmanendy disabled by his bipolat disotdet and sevete panic attacks. The opinion expressed is quite conclusory, inconsistent with treatment recotds, and provides very little explanation of the evidence telied on in forming that opinion. Notably, while the mental status evaluation dated the same day as the statement indicated that the claimant was severely anxious, the claimant was also descdbe as attentive, with no cognitive defìcits, apptopdately dressed, coopetative, not agitated, and only mildly depressed. Futhermote, the claknant was assigned a Global Assessment 8 Functioning (GAtr) score of 50, which is indicative of an individual who has bordetline setious/modetate symptoms or difficulties in social, occupational, or school functioning. In addition, at the time of this opinion statement, Dt. Andrew's recent treatment history with the claimant has been quite brief; he has seen the claimant on two or three occasions over the previous two months. It appeats that Dr. Andtews relied quite heavily on the subjective report of symptoms and limitations ptovided by the claimant, and seemed to unctitically accept as true most, if not all., of what the claimant teported. Finally, this opinion is offeted orr an issue teserved to the Commissionet, who is the ultimate arbiter of the issue of disability. Similady, the undersigned gives only parttalweight to Dr. ,{.ndrew's Match and June 201,2 opinons that the claimant is totally disabled and in fact are somewhat contradictory. Match 21,,2072tecotds at one point state that the claimant has a Gr\F of 40 and at another point note it as 50. Notably, in Match 201.2, the claimant's primary complaint was insomnia. At that time, while tecords indicate that the claimant was depressed and had tacing thoughts, no mention of panic attacks was made. Dt. Andtews'June 20'1,2 statement that the claimant was matkedly or extremely impaired in almost every work telated psychiattic limitation appears gtossly ovetstated. He stated that the claknant was markedly impaired even in his ability to caffy out very short and simply instructions and extemely limited in his ability to make simple work related decisions. This opinion is not suppotted by the treatment recotds and inconsistent v/ith psychologrcal consultative examination tecotds descdbed below stating that the claimant demonstrated the abiJity to engage in complex activitie s tequiting attention, c oncentration, p etsi s tence and memory. @,xhibits 8F and 10F.) Çr. 20-21, tefetencing In Tr. 376-94,41.9-27.) short, the -ALJ concluded that Dr. Andtew's opinions were (1) conclusory, (2) inconsistent with treatment tecords, (3) with little attendant explanation of the evidence relied on in forming that opinion, (4) intemally contradictory, (5) largely reliant on Plaintiffs own subjective complaints, and (6) weighing in on matters reserved for the Commissioner. The 9 ALJ's comprehensive assessment of Dr. Andtew's opinions, and his decision to only parld.ally diminish his teliance on those opinions, are supported by substantial recotd evidence fot the very reasons the -,\LJ cites. First, the ALJ is correct that Dr. .A.ndrew's opinions ate rendered fashion. As both the A{ in a conclusory and Defendant point out, Dr. Andtew's ptovides little-to-no explanation of the evidence used to form his opinions and the tecord generally lacks objective medical evidence in suppott of his conclusory allegations. (Ir. 376-94,4L9-27.) Sæ 20 C.F.R. S 404.1,527(c)(3) þtating that the better explanation a source provides for an opinion, the more weight the Commissioner gives that opinion). Thete is, fot example, no indication that Dr. Andrew concluded any tests on Plaintiff. Instead, Dt. ,{.ndtew appears to have been teþing in large pàt\ or perhaps exclusively, on Plaintiffs own self-reporting. 20 C.F.R. S 404.1529 (claimant's allegations alone ate insufficient to establish disability). Second, Dr. Andrew's conclusions are inconsistent with the remaindet of the record. See Roberts u. Astrae, 1:11-cv-00236-MR, 2013 WL 663306, x6 CX/.D.N.C. Feb. 22, 201,3) (concluding that "an opinion of a treating physician is not entided to conttolling weight if it is unsupported by medically acceptable clinical and laboratory diagnostic techniques and/ot inconsistent with other substantial evidence of tecotd") (citing 20 C.F'.R. S 404.1,527 (.XZ)). For example, the records of Plaintiffs primary care physician, Dt. Stephen G. Bissette, demonsttate that Plaintiffs was generally in no apparent disuess and his purpoted symptoms were minimal or adequately treated Sune/September 2007 - with medication. (Tt. 332-50, 395-4"1.8, 340-41, "doing very well" and "[f]eels the best that he has in a long time"), 10 334-39,337 Q/19/09 - "Bipolar disotdet, doing well on I(lonopin and Lexapto!'),395 - 3/19/2012 ("He has a normal mood an affect. His behavior is normal. Judgment and thought content normal.").) Dt. John F. Watten, a sta;te ^geflcy medical consultant, also provided a detailed report complete with psychological testing, a clinical interview, and 'Waren noted some indications of symptom exaggeration, observations. (Id. at 355-75.) Dr. corìcerns about possible malingedng, and other conflicting accounts ptovided by Plaintiff and in the record. Gr. 355-56, 360, 365, 367, 371,.) In peninent p^tt, Dt. Watten discounted PlaintifPs statements and concluded that he was capable of performing routine, repetitive wotkplace tasks with limited social interaction ot multi-tasking.6 Çr.372.) Third, Dr. Andrew's opinion is inconsistent with his own treatment notes. In his visits with Plaintiff post-disability claim, Dr. ,{.ndrew - in '{.ugust claim was filed - 201.0, one month aftet the pending concluded that Plaintiff was "totally and permanently disabled" due to his alleged mental impairment. Çr. 379.) However, Dt. Andtew simultaneously noted that Plaintiff showed no cognitive defects and was alett, well-oriented, and coopenttve. Likewise, recotds from Plaintiff s (Id.). visits to Dr. Andtew in 201L also lack any objective evidence but, nevertheless, Dr. Andrew determined that Plaintiff was sevetely deptessed and of stress," debilitating pantc attacks, ncing thoughts, inattentiveness, and expetienced "lots suicidal intent. Qr.376-78,387,421,.) Also, in his Match 20'1,2 tte*ment notes, Dr. Andtew contradicted the above-teferenced allegations and stated: u It is true that Dr. Warren also concluded Plaintiff would have some diffrcutty in maintaining consistent, full-time employment, due to an alleged need to take breaks as needed to manage his anxiety. Çr. 372.) However, as explained herein, the ALJ's decision to partially discount Dr. 'Vl'atten's conclusion in this regardwas supported both by substantial evidence and by an RFC which ptoperþ accounted for Plaintiffs limitations, which is also supported by substantial evidence. 11 Mental status: The patient is overweight large pleasant white male who has fatÃy flat affect. No evidence of formal thought disotder. He is moderately depressed. Prrmary complaint is that of insomnia. He has his c:ircadian thythms upside down. He is neithet suicidal nor homicidal. He is not acutely psychot[ic]. Qt 41,9). dditionally, Dt. .,\ndrew made no mention of Plaintiffs alleged panic attacks andf or symptoms telated thereto and his bipolar disorder is descdbed as being tn "par:j,al temission." (Id.) Dr. Andtew also submitted anothet contradictory opinion inJune 201,2n a checkbox form to document Plaintiffs aileged functional limitations. (Id. at 423-27.) Contary to his March 201,2 assessment, hete, Dt. ndrew assetted that Plaintiff is a "rapíd cycling bipolat þatient]" experiencing panic attacks and opined that Plaintiff was "markedly" sevete or insomnia. (Id. at 424.) Dt. Andtew futhet "extremely" impaired limitations," extremely restricted in activities in all but a few "wotk of daily living and social functioning, expetiencing continual episodes of deterioration or decompensation. (Id. at 427 .) Dt. Andtew provided no explanation or evidence in support of these conclusions, the ALJ. and Flowever, as noted by (Id. at21). Fourth, as noted above, opinions by physicians tegarding the ultimate issue of whether a plainttff is disabled within the meaning of the -Act never receive conttolling weight because the decision on thatissue remains fot the Commissioner alone. 20 C.F.R. S 404.1527(d). Dr. Andrew states a number of times in the tecord in a conclusotT fashion that Plaintiff is completely disabled. (See, e.g., Tr. at 37 6, 4L9.) Flowever, that is an issue reserved for the Commissionet. 't2 Last, Plaintiffs argums¡¡s-v/hich essentially ptopose alternative ways to view and weigh the evidence-on this issue are not persuasive. @ocket Etttty 1'0 at 3-9.) The fact that plaintiff disagrees with the LJ's assessment of this evidence does not rendet the decision improper. For all these reasons, the ALJ's decision to parttalTy discount the medical opinions of Dt. Andrew is supported by substanttal evidence. B. The ALJ Addressed the Relevant Regulatory Factors. Next, Plaintiff alleges that the ALJ failed to addtess the factots set fotth in Social Security Ruling (SSR) 06-03p in evaluating the weight of Dr. ,\ndrew's opinion. pocket Etttty 10 at 10-11.) This claim lacks medt and should be distegarded. Specifically, SSR 06-03p was issued by the gency "[t]o clad$' how we consider opinions from sources who are not'acceptable medical sources'. . . ." SSR 06-03p,2006 \)ØL 2329939, at*'|.. Only "acceptable medical sources" can ptovide medical opinions considered and may be for controlling weight. 20 CFR S 404.1,527(a)(2), (c). Here, the AtJ concluded that Dr. .{ndtew was not ùn"acceptable medical source." never Çr20-21..) Moteovet, Plaintiff does not allege otherwise and it is uncleat why SSR 06-03p is offeted in support of his argument. Plaintiff's argument fails fot this reason alone. In any event, SSR 06-03p contains a bdef summary of the regulations governing the evaluation of opinion evidence, which is what Plaintiff appeats to be teferencing. Specifìcally, as noted above, an N,J refusing to accotd controlling weight to the medical opinion of a treating physician must consider various "factors" to detetmine how much werght to give it. 20 C.tr.R. S 404.1,527GX2)-(6). s further explained above, these factots include: (i) the 13 frequency of examination and the length, naflre and extent of the treatment relationship; (ü) the evidence in support of the tteating physician's opinion; (iri) the consistency of the opinion with the recotd as a whole; (iv) whether the opinion is ftom a specialist; and (v) other factors brought to the Social Security Administration's attention that tend to support or conttadict the opinion. Id. The AIJ need not discuss all of these factots, but must give good reasons the weight assþed to a treating source's 96-2p,1996 \)fL 3741.88, at*5;Fit7¿erald opinion. u. Coluin, See, e¿.,20 C.tr.R. S 404.1,527 (cX2); SSn No. 2:12-CV-78-D, 201.3WL 6178563, at*4 (E,.D.N.C. Nov. 25, 2013) (unpublished) (collecting cases); IØare 2072 fot a. Astrue, No. 5:11-CV-446-D, WL 6645000, at x 2 @..D.N. C. D ec. 20, 201,2) (unpublished). Flere, as demonstrated above, the,AIJ considered the relevant undersigned has akeady described the application more than a factors. Given that the of these factots, this issue requires little brief recapitulation. First, the AIJ noted that while Dr. Andrew began managing PlaintifÎs medications in June 201.0, he previously tteated Plaintiff 20.) The AfJ several years eatliet.T (ft also summarized Dr. ,\ndtew's treatments notes, ptiot to atüibuting weight to his opinions. (Id. ^t20-21,.) Consequently, the and the length, nature and extent considered the supportability AIJ consideted the ftequency of examination of the treatment telationship. Second, the AIJ also of Dr. ,\ndtew's medical opinions and concluded, with justifìcation, that they were conclusory, with little ot no support, and were based in latge patt or entirely upon PlaintifPs self-teporting of his symptoms. (Id. at 20.) Coluin, No. 1:12-CV-801, 201.4 WL 3547387 , ú t See, e.!., Bamik x2 (M.D.N.C. Jul. 17, 201'4) (unpublished) Consequently, Plaintiffs contention that the ALJ "elred in finding that fPlaintiff] began seeing Andtew in June 2070" is without medt. pocket Etttty 70 at7 ;Tr. 20, 360, 423.) 1,4 u. Dr (mete memorialization of a clatrnant's subjective statements elevate those statements to a medical opinion) (citation in a medical report does not omitted). The ALJ furthet explained that Dr. ,\ndrew's opinions were inconsistent with the temaindet of the record, including the opinions of Drs. Bissette and Warren. Qd. at20-21,.) Third, and last, the ALJ was well ^w^te of Dr. Andrew's specialtzalúon as a psychiattist, and, in fact, refetted to Dt. Á.ndtew's as a psychiatrist in his Decision. Qd. at 20.) Plaintiffs claim that the ALJ failed to meaningfully consider the relevant regulatory factors is without metit. C. The ^AIJ Propedy Accounted fot Dr. Warren's Opinion. Last, Plaintiff contends that the AIJ ered by failing to mention in the RFC or in a hypothetical to the VE (1) an alleged need to "take breaks as needed to marø;ge his anxiety" and Q) a moderate limitatiofl "in his ability to sustain focused attention and concentration sufficiently long to permit the timely and approptiate completion of tasks." pocket Entry 10 at11.) These testtictions were found in Dt. ì(/arten's medical opinion. Çr.372-73.) The ALJ considered DDS consultant Warten's opinion, described it in gteat detail, and then adopted it, as follows, except insofar as it concluded that Plaintiff could not maintain employment: During that March 201,'1, psychological consultative examination, the claimant provided a lot of conflicting information and his behavior was teportedly suggestive of malingeting. Recotds note that his performance on the mental status evaluation suggested impairment far mote signifìcant than would be supported by observed and repotted abilities. Fot example, the claimant stated that he could not temembet four spoken wotds long enough to tepeat them immediately after headng them. However, he could petfotm sedal 7's without error. He was unable to recall four digits during Dgtt Span, but then correctly tecalled five digi¡s. He reported his panic attacks 1,5 happen out of nowhete, but then stated that he is likely to have panic attacks in ctowds. He often gave "near-miss" arìswers. The examiner also found that thete wete marked inconsistencies and discrepancies in the claimant's self-repott and the avallable recotds. The examiner diagnosed the claimant with mood disordet not otherwise specified Q.{OS); panic disorder with agoraphobia; and rule out malingering. The claimant was assigned a GAF of 55, which is indicative of an individual who has moderate symptoms or difficulties in social, occupation, ot school functioning. The examinet concluded that was no evidence of significant impaiffient of the claimant's ability to undetstand ot tespond to questions. His social intetaction was polite and appropriate to the situation. It was felt that the claimant would likely have some difficulty maintaining consistent, full time employment due to his maladaptive pattern of experiencing, intetpreting, and responding to his environment. He had demonstrated, howevet, the ability to engage in complex activities requiting attention, concentration, persistence, and memoly such as putsing a protracted wotkplace discrimination lawsuit against his former employer. He also teported no difficulty doing things such as cooking ot keeping up on the latest developments in the computet industry. He would likely have no significant social interaction or multitasking and that afforded him a flexible schedule so that he would be able to take breaks as needed to manage his anxiety according to the techniques he learned pteviously in psychothetapy. The undersigned notes that the consulting physician, Dt. John Waren, submitted a detailed report, which included psychological testing, a clinical interview, and observations. The undersigned finds that the examination was thorough and genetally consistent with the evidence of record but finds that the euidentv is not strong enough to sugest that maintaiaing cvnsistent emplolment woald be too dfficult for the clairnant. The undersigned finds that Dr. Warren's opinion is otherwise consistent v¡ith simple, routine, low stress jobs with only occasional intetactions with others as reflected in the residual functional capaciry determination. Qr. 21.-22 (emphasis added).) Then, in setting Plaintiffs RF'C, the -,{.LJ limited Plaintiff to "simple, toutine, repetitive tasks in a wotk envitonment ftee 16 of fast paced ptoduction requirements, involving only simple, work-related decisions with few, if any, work place changes. Finally, he is limited to work requiring only occasional intetaction with the public and co-wotkers with no tandem tasks." (Tt. 19.) The LJ, as fact-finder, must formulate the RFC assessment. 20 C.F'.R.$ 404.1546(c); Coluardu. Chater,59 F.3d 165 (4th Cir. 1995) (unpublished) ("The determination of a claimant's tesidual functioningcapacity lies with the ALJ, not a physician, and is based upon all relevant evidence"). Consequently, a medical opinion, such as Dt. Warten's, an ALJ as to a claimant's functional limitations . See 20 C.F.R. SS does not necessarily bind 404.1546(c), 404.1,527 (c)Q). ,{s explained in SSR 96-5p, an individual's RFC is not a "medical issue[] tegarding the natute and sevetity of an individual's impairment(s) but [is an] administrative 1996 WL 3741,83, úx2 QJuly 1996). fìnding[]." SSR 96-5p, Upon careful teview, the undetsigned concludes that the .,{.LJ gave sound reasorls rooted in the record fot par:úally discounting Dt. Warren's report. [t. 21-22,355-74.) Additional reasons support the ALJ's decision. First, Plaintiffs purported modetate limitation to sustain focus and concentration to permit the timely completion of wotk-telated tasks was conveyed to the VE by the ALJ and included in Plaintiffs RF'C. In het hypothetical, the ALJ noted that due to Plaintiffs mental impaitments "limit[ing] his ability to concentrate," the hypothetical individual was confined to simple, toutine, repetitive tasks to be performed in a "low stless envitonment with only occasional change in wotk setting, occasional decision making responsibilities, occasional judgment tequitement, no ptoduction r^te or pace work." Qr a9.) In turn, limitations concetning Plaintiffs a[eged concenttation 17 and task completion issues were determined as findings of facts and addressed in the RFC - "The claimant is futhet limited to simple, routine, tepetitive tasks in a work envhonment free of fast paced ptoduction tequkements, involving only simple, wotk-telated decisions with few, if any,work place changes. Finally, he is limited to work tequiting only occasional intetaction with the public and co-workers with no tandem tasks." (Id. at 1.9). Plaintiff cites roughly two dozen non-binding, unpublished cases and contends that these cases demonstrate that the ALJ erred here by not specifically mentioning "moderate" limitations in Plaintiffls abiJity to focus and concentrate. (Docket Entty 1,0 at1,6.) Howevet, many of these cases are fact:ually distinguishable ftom the case athand and, as a mote general matter, the cases Plaintiff cites do not stand for the ptoposition that the specifìc limitations ptesented to the VE and incorpotated modetate limitations law-including case in in the RFC here can never adequately account fot concentration, persistence and pace. And, in fact, ample case law ftom ¡þi5 fos1-demonstrates the contrary.8 Second, the ALJ was not obligated ¡6-2n61 cleatly did not-adopt Dt. Warren's opinion that Plaintiff be limited to jobs that allow him to take undefìned bteaks as needed. It is within the ALJ's authority to reject this notion and formulate an RFC consistent with the 8 u.Astrue,No. 1:09CV246,2072WL1268475,at+7 (X4.D.N.C. Apr. 16, 2012) ([]he resttiction to unskilled, simple, roudne, repetitive tasks and limited intetaction with othets adequately accounted fot Plaintiff s intellectual defrcit and problems with concentration, petsistence, and pace, in light of the evidence that Plaintiff can perform such two-hour blocks, as an eight-hour workday typically.'); Parker u. Astrae,792 F. Sopp. 2d 886,895-96 (E.D.N.C. 2077) (reiecting attack on ALJ's hypothetical ptemised on claim that "limitjng the [claimant] to 'simple, routine, and tepetitive tasks' did not account for [the claimant's] bordedine intellectual functioning and moderate concentration difhculties" where "state psychologist found that [the claimant] was only moderately limited in the ability to maintain attention and concentration for extended pedods"); Adarns u. Astrae, No. CV07-1248,2008 V/L2812835,at*4 (Xø.D. La.June 30,2008) (unpublished) ('A limitation to simple, repedtive, routine tasks adequately captutes deficiencies in concenffation, persistence or pace ["f] no more than moderate." (citing cases from three circuits)). 18 See, e.g., Hawle1t substantial evidence set forth in the recotd. Moteover, as Defendant coffectly points out, PlaintifPs argument that the A{ accepted this extreme functional limitation because she summarized Dr.'Warren's report is mistaken. When the LJ addtessed Dr. '\ùØatten's teport, she noted his opinion that Plaintiff should have a flexible schedule, including bteaks "as needed" to manage his alleged symptoms. Howevet, by teciting Dr. ïØatten's opinion as to PlaintifPs limitations, the ALJ did not adopt it in full. More specifìcally, the ALJ, when concluding that Dt.'Watten's fìndings wete "genetally consistent with the evidence of record" and "the evidence is not strong enough to suggest that maintaining consistent employment would be too diffìcult fot the claímant" [r.22), tejected any finding by Dt. Waren that"mairtaining consistent employmentwould be too difficult Plaintiff' Çr 22). Instead, the AtJ fot cleady set fotth the functional limitations that she did accept and converted them into the RFC finding as descdbed above, including limiting Plaintiff to the petformance of "simple, routine, low stress jobs with only occasional intetactions with others" [r. 22, 1,9). As Defendant petsuasively points out, because Dt. 'Warten's suggestion that Plaintiff needed breaks on an "as needed" basis is consistent with Dt. 'Warren's unduly restrictive finding that Plaintiff rrray lack the ability to maintain full-time employment, the ALJ clearly rejected that finding as a collective whole, too. Thus, when teading the ALJ's decision Plaintiffs argument that the ALJ did anything other than teject ^n "^s needed" ability to take breaks is unpersuasive. VI. CONCLUSION fter a carefiil considetation of the evidence of recotd, the Coutt finds that the 19 Commissionet's decision is suppoted by substantial evidence. Accotdingly, this Court RECOMMENDS that Plaintiffs Motion forJudgment on the Pleadings (Docket Entry 9) be DENIED, Defendant's Motion for Judgment on the Pleadings Q)ocket Ent"y 12) be GRANTED and the final decision of the Commissioner be upheld. e bstet United States Magistrate Judge Duham, Notth Catoltna January 23,201.5 20
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