Jones v. Commissioner Social Security Administration, No. 6:2011cv06361 - Document 21 (D. Or. 2012)

Court Description: OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 12/11/2012 by Judge Malcolm F. Marsh. (pvh)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 6:11-cv-06361-MA ALAN D. JONES, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. KATHRYN TASSINARI Harder, Wells, Baron & Manning, P.C. 474 Willamette, Suite 200 Eugene, Oregon 97401 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 DAPHNE BANAY Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-2113 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff, Alan D. Jones, . brings this action for judicial review of a final decision of the Commissioner of Social Security denying Commissioner) (the his for applications disability insurance benefits (DIB) under Title II of the Social Security Act Act) (the and Supplemental Security (SSI) Income 42 U.S.C. benefits under Title XVI of the Act. 401-434, 1381- §§ This court has jurisdiction pursuant to 42 U.S.C, 1383f. and 1383 (c) (3). disability For the reasons set forth below, §§ 405(g) I affirm the final decision of the Commissioner. PROCEDURAL BACKGROUND On November 12 and 25, 2008, plaintiff protectively filed applications for DIB and SSI, respectively, alleging disability due to "slight mental retardation," asthma, depression, and anxiety. Tr. 126. The Commissioner denied plaintiff's application initially and upon rehearing. (ALJ) Judge A video hearing before an Administrative Law was held on February 23, 2010, with the plaintiff appearing in Medford, Oregon, and the ALJ presiding from Eugene, Oregon. counsel. At the hearing, plaintiff testified and was represented by Additionally, Vocational Expert (VE) Lynn Jones was present throughout the hearing and testified. On March 4, 2010, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. 2 - OPINION AND ORDER After the Appeals Council denied review, plaintiff timely filed a petition for review in this court. FACTUAL BACKGROUND Born on December 1, 1968, plaintiff was 35 years old on the alleged date of disability and 41 years old on the date of the hearing. diploma, Tr. 30, Plaintiff has a 121. modified high school and past relevant work experience as an auto detailer, janitor, and laundry aid. Tr. 33, 43. Plaintiff alleges his various conditions became disabling on January 1, 2004. wife, Diana M. Report. In addition to plaintiff's testimony, plaintiff's Jones, submitted an Adult Third Party Function Plaintiff was evaluated by Robert A. Kruger, Psy.D., who submitted an opinion. Previously, as part of an unrelated criminal proceeding, plaintiff was examined at the request of plaintiff's criminal defense counsel by Norvin R. Cooley, Ph.D. Additionally, Robert Henry, Ph.D., reviewed plaintiff's records and submitted a Psychiatric Capacity Review (MRFC) Technique Mental Finally, Assessment. plaintiff's group counselor, and Residual Steven C. Functional Mounce, Ph.D., submitted an opinion letter at the request of plaintiff's counsel. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step process for determining whether a person is disabled. Yuckert, 482 u.s. 3 - OPINION AND ORDER 137, 140-42 (1987); 20 sequential Bowen v. C.F.R. §§ The claimant bears the burden of proof at potentially dispositive. Steps One through Four. that Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to Cir. 1999). show is step Each 416.920(a) (4) (i)-(v). 404.1520(a) (4) (i)-(v), a significant jobs exist number of in the 482 U.S. at See Yuckert, economy that the claimant can perform. national 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged in substantial January 1, gainful See 2004. 416.920(a) (4) (i), activity since 20 C.F.R. §§ the alleged onset date, 404.1520(a)(4)(1), (b), (b); Tr. 16. At Step Two, the ALJ determined that plaintiff's borderline intellectual functioning was a severe impairment. See 20 C.F.R. §§ In addition, the ALJ found that 404.1520 (c), 416.920 (c); Tr. 16. plaintiff's asthma was a non-severe impairment that had no effect on plaintiff's ability to perform work-related activities. Tr. 16- 17. At Step Three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 17. The ALJ found that plaintiff had the residual functional capacity (RFC) to perform a full range of work at all exertional levels subject to the limitation that he is limited to performing 4 - OPINION AND ORDER one to three step tasks, equivalent to unskilled work, which do not require reading and/or writing as an essential component of the tasks. Tr. 18-22. At Step Four, the ALJ determined that plaintiff was capable of See 20 C.F.R. hospital laundry aid. auto detailer, janitor, performing past relevant work as a and 404.1565, 416.965; Tr. 22. §§ the ALJ found that plaintiff was not disabled Accordingly, within the meaning of the Act. ISSUES ON REVIEW Plaintiff asserts the erred ALJ First, ways. four in plaintiff claims that the ALJ improperly discredited plaintiff's testimony. Second, plaintiff argues rejected the lay witness testimony. improperly ALJ the that Third, plaintiff contends that the ALJ erred in failing to include all of his limitations in the Fourth, RFC. plaintiff maintains that the discredited the opinion of his group therapist. improperly ALJ Finally, plaintiff argues that these errors resulted in a faulty Step Four finding that plaintiff could perform his past relevant work. STANDARD OF REVIEW The court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the 405(g); Andrews v. Shalala, 53 F. 3d 1035, record. 1039 42 u.s.c. (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less 5 - OPINION AND ORDER than a preponderance; it is such relevant evidence as a reasonable Id. mind might accept as adequate to support a conclusion." court must all weigh of the evidence, whether If the evidence is susceptible 807 F.2d 771, 772 (9th Cir. 1986). more than one rational decision must be upheld. or Martinez v. Heckler, detracts from the Commissioner's decision. to supports it The the interpretation, Andrews, Commissioner's I f the 53 F.3d at 1039-40. evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Rejection of Plaintiff's Testimony In deciding whether to accept subjective symptom testimony, an ALJ must perform two stages of analysis. 416.929. evidence First, of an the claimant underlying produce must impairment that expected to produce the symptoms alleged. F.3d 1273, 1281-82 (9th Cir. 1996). 20 C.F.R. §§ 404.1529, objective medical could reasonably be Smolen v. Chater, 80 Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the severity of his symptoms only by offering specific, convincing reasons for doing so. clear and Id. at 1281. If an ALJ finds that the claimant's testimony regarding his subjective symptoms is unreliable, the "ALJ must make a credibility 6 - OPINION AND ORDER why reasons the is testimony the determination citing unpersuasive." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 the ALJ must identify what In doing so, 1999). (9th Cir. testimony is credible and what testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit the Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). claimant." The Commissioner's will findings upheld be if by supported Baston v. Comm'r of reasonable inferences drawn from the record. Soc. Sec. Admin., 359 F. 3d 1190, 1193 (9th Cir. 2004). In his Function Report, plaintiff states that during a normal day he goes to his in-law's property to cut wood, comes home, eats, Tr. 141. watches television, .and goes to bed. that since his disability janitorial work at difficulties began he schools." preparing Tr. meals or is "not 142. getting Plaintiff states able Plaintiff around. to do [his] reports Tr. no 143. According to plaintiff, he goes shopping once per week - although not alone - and needs help filling out checks and money orders. Tr. 144. Plaintiff reports that his hobbies are unchanged since the onset of his disability, although he is limited in his social activities because he is "not allowed around minor children." 145-46. Tr. Plaintiff states that he does not read or write well, has a second or third grade comprehension level, and does not handle stress or change well. 7 - OPINION AND ORDER Tr. 146-47. Finally, plaintiff reports having a fear of ftgoing to prison for what I have been accused of." Tr. 147. At the hearing, plaintiff testified that he left his previous janitorial job because were his. hours getting cut. Tr. 36. Plaintiff thought this was because he was slower than the other janitors, but he never discussed this with his employer and did not have any documentation of his former employer's dissatisfaction with plaintiff's performance. When asked what will keep him Id. from returning to his janitorial work, plaintiff initially replied "Well, my criminal background." After reminding plaintiff Id. that his criminal background was not a valid basis for disability, the ALJ asked plaintiff if there was anything else that kept him from working. Tr. 37. Tr. 36-73. Plaintiff replied "Just being slow." Plaintiff further testified that his difficulties reading and writing caused problems understanding and following written instructions at work, but that he would complete his tasks by either knowing what to do from experience or asking a coworker for verbal instructions. Tr. 39. When about asked his daily activities, plaintiff reported that he spends his days talking and playing Texas Hold'em with his wife. The ALJ rejected plaintiff's Tr. 41. statements concerning the intensity, persistence, and limiting effects of his symptoms to the extent they were inconsistent with the RFC. Tr. 19. Plaintiff maintains that the ALJ's rejection of his testimony to the extent 8 - OPINION AND ORDER required of order assessment RFC the with inconsistent analysis by deciding assessing plaintiff's credibility. F. 3d 640 (7th Cir. 2012). reversed the RFC See Bjornson v. the first, improperly then 671 As true, I disagree. I am persuaded by the reasoning of several decisions within this District. When addressing this precise argument, it has been observed that while "an ALJ may not simply define an RFC and then, without more, conclude the claimant's testimony is only credible to . there is nothing wrong the extent it aligns with the RFC, with an ALJ stating a conclusion and then explaining it, as opposed to providing an explanation and then reaching a conclusion.'" (D. Bostic v. Astrue, No. 3:10-cv-1153-HU, 2012 WL 786909, at *1 Or. Mar. 9, 2012) (quoting Black v. Astrue, No. 3:10-cv-06409-MO, 2011 WL 6130534, at *6 (D. Or. Dec. 7, 2011)); Cruise v. Astrue, No. 2012 WL 5037257, 6:11-cv-06199-ST, 2012); but 2401642, at see *9 Bowers (D. v. Or. Astrue, Jun. 25, No. 2012) at *3 (D. 6:11-cv-583-SI, (concluding language does erroneously reverse the analysis, 28, Sep. Or. 2012 that WL this but finding such error harmless because the ALJ cited other clear and convincing reasons for rejecting the claimant's testimony). "In other words, the ALJ does not err simply by noting that a claimant's testimony is not credible to the extent it is inconsistent with the RFC where that conclusion is followed by sufficient reasoning." WL 5037257, at *3. 9 - OPINION AND ORDER Thus, Cruise, 2012 the language complained of here is a conclusion which may be affirmed if the ALJ's stated reasons for rejecting the plaintiff's testimony are clear and convincing. I conclude the ALJ has done so. The ALJ rejected plaintiff's testimony with regard to the intensity, persistence, and limiting effects of his because disability plaintiff made inconsistent statements regarding the cause of his inability to work and the extent and effect of his alleged limitations, objective evidence did not alleged the corroborate extent of plaintiff's pace limitation and its effect on his ability to work, and plaintiff's activities of daily living are inconsistent with the alleged level Tr. 19-21. of disability. As the ALJ noted, when asked at the hearing what will keep him from working, plaintiff responded "Well, my criminal background." Tr. 36. The ALJ found this statement "forthright" and concluded that it was inconsistent with plaintiff's testimony that his pace limitations are the true cause of his inability to work. The ALJ's supported by the record. Report, that inconsistency of finding For example, in this Tr. 21. respect on plaintiff's is Function when asked what he was able to do before his disability he no longer janitorial work at inability to could, he schools," with minors. question regarding his probation 142. changes 10 - OPINION AND ORDER am not suggesting that Tr. work was contact replied "I in able to do my the cause of his condition which prohibits Similarly, social in response activities, to a plaintiff Tr. 145- responded that he was "not allowed near minor children." 46. Additionally, the ALJ's finding of inconsistency is supported by the fact other than plaintiff's probation conditions, that, nothing in the record explains why plaintiff was able to maintain relatively consistent employment before his disability began, but no Plaintiff does longer can. borderline his claim that not or any other disabling condition, intellectual functioning, has In fact, plaintiff's Function Report largely worsened over time. indicates that his functional limitations are much the same now as Tr. 142, they were before the alleged onset date of disability. 145, 146. Thus, reasonably ALJ the found plaintiff's that statement that he cannot work because of his criminal background was inconsistent with testimony that plaintiff's pace and literacy limitations were the true cause of his inability to work. Tr. 21. See Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (an ALJ may consider techniques "ordinary claimant's reputation credibility of for evaluation, prior lying, such inconsistent as the statements concerning the symptoms, and other testimony by the claimant that appears less than candid"; 1276-LAB, adopted, 2011 WL 7092322, 2012 WL 218365 see also Baker v. As true, at (S.D. *6 Cal. (S.D. Jan. Cal. 23, Feb. 2012) No. 10-cv- 22, 2011), (discrediting claimant whose disability coincided with release from prison, among other reasons). 11 - OPINION AND ORDER With regard to the effect of plaintiff's pace limitations, the that ALJ found did not evidence objective support plaintiff's testimony that he had negative employment actions taken against him because he worked more slowly than his coworkers. Tr. 21. When asked why he left his prior janitorial job, plaintiff stated that his were hours however, slow. was cut because he Plaintiff admitted, that he had never been disciplined by, or received a negative review or special supervision from, his employer for this reason. Tr. And, 36. there are no documents reflecting that plaintiff's job performance was unsatisfactory. as the ALJ noted, I d. Additionally, plaintiff reported in his initial Disability Report that he could work as long as his "employer does not give [him] instructions plaintiff's to testimony inability to work. read." that Tr. his 19, pace 126. This limitations contradicts caused his The ALJ could reasonably reject plaintiff's testimony that his hours were cut because he worked too slowly because it was unsupported by record evidence and inconsistent with his Disability Report. Finally, Tr. 19, 21-22. the ALJ noted that plaintiff engages in extensive activities of daily living. Tr. 19. Indeed, plaintiff's Function Report indicated that he is capable of chopping wood at his inlaws' property, and is not significantly limited in his daily activities, except with respect to his literacy limitations and the terms of his probation. 12 - OPINION AND ORDER Tr. 141-48. The record thus reflects that plaintiff is capable of engaging in relatively normal activities of daily living, activities, including cooking, getting around, ·activities tend to suggest doing most household performing the basic demands of unskilled work. still capable of The ALJ reasonably discredited plaintiff's testimony for this reason. Burch v. Barnhart, These and performing manual labor. that plaintiff is 400 F. 3d 676, 681 work (9th Cir. Tr. 2005). 19; see After a review of the record, I find that these reasons together are clear and convincing reasons for discounting plaintiff's testimony. II. Rejection of Lay Testimony Lay testimony regarding a claimant's symptoms or how an impairment affects his ability to work is competent evidence that an ALJ must take into account. 1114 (9th Cir. 2012). Molina v. Astrue, 674 F.3d 1104, To discount lay witness testimony, the ALJ must give reasons that are germane to the witness. Plaintiff's Function Report living. wife, reference report, to Jones, submitted a Third Party that described plaintiff's activities of daily Tr. 133-40. plaintiff's Diana Id. Ms. Jones's report is largely consistent with with the exception that Ms. plaintiff's alleged pace Jones made no limitations. To the contrary, Ms. Jones reported that household chores take plaintiff "not very long." Tr. 135. Ms. Jones reported that plaintiff has "always had problems with reading, 13 - OPINION AND ORDER writing, [and) spelling, you have to fully explain thing[s) to him before he understands." 134. Tr. Similarly, Ms. Jones reported that plaintiff "doesn't grasp what he's reading or being told, possible for him instructions pictures." to "well you have to make as simple as understand," when it's and broken that down he follows or [he spoken is) shown Tr. 138. Plaintiff argues testimony regarding incomplete and testimony. I that the plaintiff's that the disagree. ALJ ALJ's surmnary limitations improperly of was Ms. Jones's inaccurate rejected The ALJ surmnarized the Ms. and Jones's report about plaintiff's limitations by stating that "Mrs. Jones reported that her husband has difficulty understanding and following instructions unless they are made as simple as possible and presented verbally." Tr. 19. The ALJ' s surmnary accurately captures the limitations described in Ms. Jones's report, when read as a whole. To the testimony extent failed that the to provide ALJ' s germane assessment reasons of for Ms. Jones's rejecting her testimony about plaintiff's alleged limitations, any such error is harmless. Stout v. Cormn'r, Soc. Sec. Admin, 454 F.3d 1050, 1055 (9th Cir. 2006) (holding that an ALJ's error may be harmless if it "was inconsequential to the ultimate nondisabili ty determination.") Here, even if the limitations described by Ms. Jones are fully credited, the RFC adequate accounts for them. Ms. Jones described plaintiff's limitations with regard to literacy and understanding 14 - OPINION AND ORDER complex or written instructions, and the ALJ translated them by limiting plaintiff to performing one to three step tasks equivalent to unskilled work that do not require reading or writing as an essential component. Commissioner, Tr. 18. "Unskilled work," as defined by the is "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time." 20 C.F.R. § 404.1568(a). Thus, even if Ms. Jones's testimony were fully credited, the limitations contained in the RFC capture both the literacy and cognitive limitations she described by limiting plaintiff to simple work and verbal instructions. Accordingly, the ALJ's error in failing to discuss the lay witness testimony was determination, inconsequential to and was harmless. the ultimate See Stout, nondisability 454 F.3d at 1055; Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) . III. Incorporation of Plaintiff's Limitations in the RFC A. Plaintiff's Pace Limitation Plaintiff argues that the ALJ failed to incorporate his moderate limitation with regard to concentration, persistence, and pace that the ALJ found at Step Three into the RFC. "An ALJ' s assessment of a claimant adequately captures restrictions related to concentration, persistence, 15 - OPINION AND ORDER or pace where the assessment is consistent with restrictions identified in the medical testimony." Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008}. At Step Three, the ALJ noted: With regard to concentration, persistence or pace, Mr. Jones has moderate difficulties. Mr. Jones denied having any attention deficits; however, he indicated that he has difficulty completing tasks. He also alleged being limited in how quickly he can finish tasks. The thirdparty reports provided support these allegations. Objective evidence of record supports finding that Mr. Jones is capable of brief, basic, routine, repetitive tasks; however, he would be unable to perform adequately on more complicated tasks. Tr. In the 18. RFC, the ALJ found plaintiff was limited to "performing one to three step tasks, equivalent to unskilled SVP 2 work, which do not require reading and/or writing as an essential component of the tasks." Two psychologists persistence, clinical commented on "overall plaintiff's Robert A. and pace limitation. psychologist plaintiff's Id. who examined ability and concentration, Kruger, plaintiff, capability of Psy.D., concluded a that sustaining his attention on brief, basic, routine, repetitive tasks were seen as fair, such adequately, that within he an would be able appropriate to complete period of those time." Tr. tasks 230. Similarly, Robert Henry, Ph.D., who reviewed plaintiff's records, checked that plaintiff had a moderate limitation with regard to concentration, persistence, and pace when determining the "'B' Criteria of the Listings" for Step Three purposes, but also checked 16 - OPINION AND ORDER that plaintiff was not significantly limited in his "ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods," when completing the worksheet associated with plaintiff's Mental RFC Assessment. Tr. 244, 250 (emphasis added). Plaintiff's contention that the RFC does not include his concentration, persistence, or pace limitations is meritless. The medical testimony suggests that plaintiff is capable of performing short, simple tasks at a reasonable pace, that the plaintiff could complete a normal workday and workweek, and could work at a consistent pace without an unreasonable number of rest periods. Here, the accommodates RFC's limitation plaintiff's of plaintiff persistence, to unskilled concentration, and work pace limitations because the medical evidence demonstrates that such limitation does not preclude plaintiff from completing simple tasks "within an appropriate period of time." Tr. 230. Thus, the ALJ did not impermissibly omit plaintiff's persistence, concentration, and pace limitation from the RFC. See Stubbs-Danielsen, 539 F.3d at 1174; Israel v. Astrue, No. 11-35794, 2012 WL 4845578 (9th Cir. Oct. 12, 2012). Ill Ill 17 - OPINION AND ORDER B. Plaintiff's Work Adaptability Limitations Plaintiff also argues that the ALJ failed to include two work adaptability limitations described by Dr. Henry into the RFC. I disagree. In Section I of the MRFC, Dr. Henry checked that plaintiff is moderately limited with regard to his abilities to respond appropriately to changes in the work setting and set realistic goals or make plans independently of others. In Section III, however, Dr. Henry concluded that "[Claimant) is able to adapt and respond appropriately to changes in the work setting, hazards, set goals and travel independently." workplace Tr. 250-51. Here, the ALJ's RFC was consistent with the narrative discussion of Dr. Henry' s MRFC. Because workplace restrictions, Dr. Henry's MRFC did not describe any I conclude the ALJ did not impermissibly exclude plaintiff's alleged work adaptability limitations in the RFC. See Israel, 2012 WL 4845578, at *2-*3 (citing Stubbs- Danielson, 539 F. 3d at 1174). IV. Rejection of Dr. Mounce's Opinion Plaintiff argues that the ALJ improperly rejected the opinion of Steven C. Mounce, Ph.D., who conducted group therapy sessions that plaintiff was required to attend as a condition of probation. At the request of plaintiff's counsel, Dr. Mounce wrote a letter describing his experience with plaintiff in a group setting. 18 - OPINION AND ORDER Tr. 260. After summarizing some of the findings of Dr. Cooley, the psychologist who examined plaintiff in relation to his criminal charges, Dr. Mounce stated, in whole, that: I see [plaintiff) in a group setting. [Plaintiff's] performance is consistent with the claims of Dr. Cooley. [Plaintiff) needs special attention from me in completing his written assignments. I also need to take special time with him in efforts to make sure he understands the vocabulary I use and the skills that are taught. Needless to say, I repeat myself often to make sure [plaintiff) understands information received in group. Tr. 260. that The ALJ partially rejected Dr. Mounce's opinion, finding "Dr. Mounce's letter relied upon the findings of another physician and did not add any material information to the record; however, I give his comments regarding Mr. with written assignments great weight." To the Mounce's extent opinion, the any ALJ such erred error in is Jones's difficulties Tr. 21. partially harmless rejecting because the Dr. RFC adequately accommodates the limitations described by Dr. Mounce. The crux of Dr. Mounce's opinion is that he has to break down his instructions such that plaintiff can understand them. above, As discussed the RFC limits plaintiff to one to three step tasks that constitute unskilled work. Tr. 18. This necessarily accommodates plaintiff's limitations with regard to complex instructions, plaintiff Mounce's can only opinion perform simple fully credited, is limitations described therein. 19 - OPINION AND ORDER tasks. the Thus, RFC even as if Dr. accommodates the V. Ability to Perform Past Relevant Work Plaintiff argues that the ALJ improperly found that he has the capacity to perform past relevant work at Step Four because the RFC did not incorporate plaintiff's alleged persistence, concentration, and pace limitation. Because I have found that the ALJ appropriately accounted for these limitations in the RFC, the ALJ's finding at Step Four was not in error. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this ~day of December, 2012. ~~4&~ Malcolm F. Marsh United States District Judge 20 - OPINION AND ORDER is

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