United States District Court, E.D. North Carolina, Southern Division
EMILY J. LEWIS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Emily J. Lewis ("plaintiff") challenges the final decision of defendant Acting Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings (D.E. 24, 26). Both filed memoranda in support of their respective motions. (D.E. 25 (Pl.'s Mem.); D.E. 34 (Comm'er's Am. Mem.); D.E. 35 (Pl.'s Supp. Mem.)). The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). ( See 6 Jan. 2014 Order (D.E. 28)). For the reasons set forth below, it will be recommended that the Commissioner's motion be allowed, plaintiff's motion be denied, and the final decision of the Commissioner be affirmed.
I. Case History
A. The ALJ's 2010 Decision
On 30 January 2008, plaintiff filed an application for SSI benefits alleging an onset of disability on 1 August 2000, which she later amended to 25 February 2008. Transcript of Proceedings ("Tr.") 171. On 19 April 2010, an ALJ issued a decision denying plaintiff's claims ("2010 decision"). Tr. 9, 171-93. Plaintiff sought review of the decision by the Appeals Council. Tr. 9.
While the Appeals Council's review was pending, in May 2010, plaintiff filed a subsequent application for SSI benefits as well as an application for a period of disability and disability insurance benefits ("DIB") benefits ("2010 applications"). Tr. 461-69.
B. Remand by the Appeals Council
On 8 April 2011, the Appeals Council vacated the 2010 decision under the "substantial evidence" provision of the disability regulations ("Regulations") under the Social Security Act ("Act"), 20 C.F.R. § 416.1470. Tr. 9, 195-98. The Appeals Council remanded the case for the issuance of a new decision by an ALJ after he further considered the evidence, obtained supplemental evidence, and provided plaintiff with the opportunity for a hearing. Tr. 9, 195-98. The Appeals Council also addressed plaintiff's pending 2010 applications, concluding that its "action with respect to the current claims renders the subsequent claims duplicate" and directing the ALJ to "associate the claim files and issue a new decision on the associated claims." Tr. 197.
C. The ALJ's 2012 Decision
In response to the remand order, an ALJ, different from the one who issued the 2010 decision, held a supplemental hearing on 4 April 2012, at which plaintiff testified. Tr. 32-72. Because the vocational expert was not available for the supplemental hearing, the ALJ submitted interrogatories to her, and her responses (Tr. 706-13) were made part of the record. On 20 July 2012, the ALJ issued a decision dismissing plaintiff's DIB claim because she would no longer have disability insured status after amending the alleged onset date to 25 February 2008 (Tr. 10) and denying plaintiff's SSI claim ("2012 decision") (Tr. 9-21). Plaintiff timely requested review by the Appeals Council. Tr. 427-29. On 31 January 2013, the Appeals Council admitted an additional exhibit, namely, a letter from plaintiff's counsel (Tr. 427-29), but denied the request for review (Tr. 1-5). At that time, the 2012 decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481. Plaintiff commenced this proceeding for judicial review on 2 April 2013, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). ( See In Forma Pauperis Mot. (D.E. 1), Order Allowing Mot. (D.E. 5), Compl. (D.E. 6)).
II. Standards for Disability
The Act defines disability as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A); Pass v. Chater , 65 F.3d 1200, 1203 (4th Cir. 1995). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D). "[A]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 1382c(a)(3)(B).
The Regulations provide the following five-step analysis that the ALJ must follow when determining whether a claimant is disabled:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled....
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled....
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in [20 C.F.R. pt. 404, subpt. P, app. 1] ["Listings"] and meets the duration requirement, we will find that you are disabled....
(iv) At the fourth step, we consider our assessment of your residual functional capacity ["RFC"] and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled....
(v) At the fifth and last step, we consider our assessment of your [RFC] and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled....
20 C.F.R. § 416.920(a)(4)(i)-(iv).
The burden of proof and production rests with the claimant during the first four steps of the analysis. Pass , 65 F.3d at 1203. The burden shifts to the Commissioner at the fifth step to show that alternative work is available for the claimant in the national economy. Id.
In the case of multiple impairments, the Regulations require that the ALJ "consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 416.923. If a medically severe combination of impairments is found, the combined impact of those impairments must be considered throughout the disability determination process. Id.
III. Findings of the ALJ
Plaintiff was 41 years old on the alleged onset date of disability and 45 years old on the date of the supplemental hearing. See Tr., e.g. , 20 ¶ 6. She has at least a high school education and past relevant work as a cashier. Tr. 19 ¶ 5; 20 ¶ 6.
Applying the five-step analysis of 20 C.F.R. § 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since 25 February 2008, the alleged onset date. Tr. 12 ¶ 1. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations, 20 C.F.R. § 416.920(c): fibromyalgia, low back pain, degenerative disc disease of the cervical spine, degenerative joint disease of the shoulders, carpal tunnel syndrome, obesity, hypertension, arthritis, bilateral patella-femoral syndrome, major depression, personality disorder, and generalized anxiety disorder. Tr. 12 ¶ 2. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listings. Tr. 13 ¶ 3.
The ALJ next determined that plaintiff had the RFC to perform less than the full range of sedentary work, which involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 416.967(a). Tr. 14 ¶ 4. The specific limitations in the RFC were as follows:
[F]requent, but not constant, use of both upper extremities for handling and fingering, as well as overhead reaching; occasional climbing [of] ramps and stairs, but no climbing [of] ladders, ropes or scaffolds; occasional balancing, stooping, kneeling, crouching, and/or crawling; must avoid concentrated exposure to workplace hazards, such as dangerous moving machinery and unprotected heights; the individual is capable of performing simple, routine, repetitive tasks in a low stress work setting, which is further defined as no more than occasional decision-making or changes in the work setting; also, must have a job that is not production pace, rather a goal-oriented job; the individual is limited to frequent social interaction with supervisors and co-workers, but no work ...