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Ely v. Colvin

United States District Court, M.D. North Carolina

July 1, 2014

CALVIN ELY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, [1] Defendant.


L. PATRICK AULD, Magistrate Judge.

Plaintiff, Calvin Ely, brought this action pursuant to Section 205(g) of the Social Security Act (the "Act") to obtain judicial review of a final decision of Defendant, the Commissioner of Social Security, denying Plaintiff's claims for Disability Insurance Benefits ("DIB") under Title II of the Act. (Docket Entry 1.) The Court has before it the certified administrative record (cited herein as "Tr. ___"), as well as the parties' cross-motions for judgment (Docket Entries 8, 11). For the reasons that follow, the Court should enter judgment for Defendant.


Plaintiff applied for DIB in early August 2008, alleging a disability onset date of May 1, 2005. (Tr. 98-99, 127-39.) Upon denial of the application initially (Tr. 67) and on reconsideration (Tr. 68), he requested a hearing de novo before an Administrative Law Judge ("ALJ") (Tr. 77-78). Plaintiff, his attorney, and a vocational expert ("VE") attended the hearing in 2010. (Tr. 37-66.) The ALJ then ruled Plaintiff not disabled under the Act. (Tr. 7-21.) The Appeals Council subsequently denied Plaintiff's request for review, making the ALJ's ruling the Commissioner's final decision for purposes of judicial review. (Tr. 1-3.)

In rendering that disability determination, the ALJ made the following findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of the... Act through December 31, 2013.
2. [Plaintiff] has not engaged in substantial gainful activity since... the alleged onset date....
3. [Plaintiff] has the following severe impairments: hypertensive heart disease and post traumatic stress disorder (PTSD)....
4. [Plaintiff] does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1....
5.... [Plaintiff] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with environmental and mental restrictions.
[Plaintiff] can stand and/or walk 6 hours in an 8-hour workday; can sit 6 hours in an 8-hour workday; can lift and/or carry 10 pounds frequently and 20 pounds occasionally; requires the option to sit or stand every 60 minutes with a cane; cannot tolerate extremes of heat or cold temperature; and can occasionally interact with the public and frequently interact with co-workers and supervisors.

(Tr. 12-13.) In light of the foregoing findings regarding residual functional capacity ("RFC"), the ALJ concluded that Plaintiff could not perform his past relevant work. (Tr. 19.) However, based on the VE's testimony, as well as consideration of Plaintiff's age, education, work experience, and RFC, the ALJ concluded that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform." (Tr. 20 (parenthetical citation omitted).) Accordingly, the ALJ found that Plaintiff did not suffer from a "disability, " as defined in the Act, at any time from the alleged onset date through the date of decision. (Tr. 21.)


Federal law "authorizes judicial review of the Social Security Commissioner's denial of social security benefits." Hines v. Barnhart , 453 F.3d 559, 561 (4th Cir. 2006). However, "the scope of [judicial] review of [such] a decision is extremely limited." Frady v. Harris , 646 F.2d 143, 144 (4th Cir. 1981). "The courts are not to try the case de novo." Oppenheim v. Finch , 495 F.2d 396, 397 (4th Cir. 1974). Instead, "a reviewing court must uphold the factual findings of the ALJ [underlying the denial of benefits] if they are supported by substantial evidence and were reached through application of the correct legal standard." Hines , 453 F.3d at 561 (internal brackets and quotation marks omitted). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"

Hunter v. Sullivan , 993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales , 402 U.S. 389, 390 (1971)). "It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Mastro v. Apfel , 270 F.3d 171, 176 (4th Cir. 2001) (internal brackets and quotation marks omitted). "If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is substantial evidence." Hunter , 993 F.2d at 34 (internal quotation marks omitted).

"In reviewing for substantial evidence, the [C]ourt should not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the [ALJ, as adopted by the Commissioner]." Mastro , 270 F.3d at 176 (internal brackets and quotation marks omitted). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the ALJ)." Id . at 179 (internal quotation marks omitted). "The issue before [the Court], therefore, is not whether [the claimant] is disabled, but whether the ALJ's finding that [the claimant] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law." Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must note that "[a] claimant for disability benefits bears the burden of proving a disability, " Hall v. Harris , 658 F.2d 260, 264 (4th Cir. 1981), and that, in this context, "disability" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, '" id. (quoting 42 U.S.C. § 423(d) (1) (A)).[2] "To regularize the adjudicative process, the Social Security Administration has... promulgated... detailed regulations incorporating longstanding medical-vocational evaluation policies that take into account a claimant's age, education, and work experience in addition to [the claimant's] medical condition." Hall , 658 F.2d at 264. "These regulations establish a sequential evaluation process' to determine whether a claimant is disabled." Id . (internal citations omitted).

This sequential evaluation process ("SEP") has up to five steps: "The claimant (1) must not be engaged in substantial gainful activity, ' i.e., currently working; and (2) must have a severe' impairment that (3) meets or exceeds the listings' of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the [RFC] to (4) perform [the claimant's] past work or (5) any other work." Albright v. Commissioner of Soc. Sec. Admin. , 174 F.3d 473, 475 n.2 (4th Cir. 1999).[3] A finding adverse to the claimant at any of several points along the SEP forecloses a benefits award and ends the inquiry. For example, "[t]he first step determines whether the claimant is engaged in substantial gainful activity.' If the claimant is working, benefits are denied. The second step determines if the claimant is severely' disabled. If not, benefits are denied." Bennett v. Sullivan , 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at each of the first three steps, "the claimant is disabled." Mastro , 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at step three, i.e., "[i]f a claimant's impairment is not sufficiently severe to equal or exceed a listed impairment, the ALJ must assess the claimant's [RFC]." Id . at 179. Step four then requires the ALJ to assess whether, based on that RFC, the claimant can "perform past relevant work"; if so, the claimant does not qualify as disabled. Id . at 179-80.[4] However, if the claimant establishes an inability to return to prior work, the analysis proceeds to the fifth step, whereupon the ALJ must decide "whether the claimant is able to perform other work considering both [the claimant's RFC] and [the claimant's] vocational capabilities (age, education, and past work experience) to adjust to a new job." Hall , 658 F.2d at 264-65. If, at this step, the Commissioner cannot carry the "evidentiary burden of proving that [the claimant] remains able to work other jobs available in the community, " the claimant qualifies as disabled. Hines , 453 F.3d at 567.[5]

Assignment (s) of Error

According to Plaintiff, substantial evidence fails to support certain of the ALJ's finding(s) at step two, as well as aspects of the ALJ's formulation of Plaintiff's RFC (and thus, by implication, the ALJ's decision adverse to Plaintiff at step five), and/or the ALJ misapplied the law concerning such matters. (Docket Entry 9 at 4-6.) In those regards, Plaintiff asserts that the ALJ "did not address [Plaintiff's] cold weather injury to the left foot, extreme obesity and degenerative disc disease...." (Id. at 4.) More specifically, Plaintiff complains that the ALJ "neither considered them severe' at Step 2, nor did he consider them during the RFC assessment..." (Id.; see also id. at 6 (contending ALJ did not properly evaluate obesity pursuant to applicable Social Security Ruling).)[6] Defendant argues otherwise and urges that substantial evidence supports the finding of no disability. (Docket Entry 12 at 6-18.) Defendant's position should prevail.

For purposes of step two, an impairment fails to qualify as "severe" if it constitutes only "a slight abnormality... that has no more than a minimal effect on the ability to do basic work activities." Social Security Ruling 96-3p, Policy Interpretation Ruling Titles II and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment is Severe, 1996 WL 374181, at *1 (emphasis added). Applicable regulations further identify "basic work activities" as:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations; and
(6) Dealing with changes in a routine work setting.

20 C.F.R. § 404.1521(b).

Plaintiff bears the burden of proving severity at step two. Hunter , 993 F.2d at 35; see also Kirby v. Astrue , 500 F.3d 705, 708 (8th Cir. 2007) ("Severity is not an onerous requirement for the claimant to meet, but it is also not a toothless standard.. (internal citation omitted)). To carry that burden, Plaintiff "must provide medical evidence showing... an impairment(s) and how severe it is...." 20 C.F.R. § 404.1512(c) (emphasis added); see also Social Security Ruling 85-28, Titles II and XVI: Medical Impairments that Are Not Severe ("SSR 85-28"), 1985 WL 56856, at *4 ("A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual's physical and mental ability(ies) to perform basic work activities. At the second step of [the SEP], then, medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities." (emphasis added)); Williamson v. Barnhart , 350 F.3d 1097, 1100 (10th Cir. 2003) ("The step two severity determination is based on medical factors alone... (emphasis added)); Washington v. Astrue , 698 F.Supp.2d 562, 579 (D.S.C. 2010) ("A severe impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A claimant's own description of her physical or mental impairments is not enough.... [SSR] 85-28 ...

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