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Drake v. Colvin

United States District Court, M.D. North Carolina

September 17, 2014

JERRY DRAKE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Plaintiff Jerry Drake brought this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. ยง 405(g)) ("the Act"), to obtain judicial review of a final decision of the Commissioner of Social Security denying his claim for a period of disability and disability insurance benefits. The parties have both filed motions for a judgment on the pleadings (Docs. 12, 15), Drake has filed a motion to supplement the record (Doc. 10), and the administrative record has been certified to the court for review. For the reasons set forth below, the Commissioner's motion will be granted, Drake's motions will be denied, and this case will be dismissed.

I. BACKGROUND

On September 3, 2009, Drake filed an application for a period of disability and disability insurance benefits. (Tr. 279-82.)[1] He alleged that he became disabled on August 19, 2009, and continued to be disabled at the time of filing. (Id.)

Drake alleged that his disability arose from multiple sources. He sustained injuries while playing football at Hastings College and later while playing professional football in the National Football League ("NFL") for the Arizona Cardinals. (Id. 279, 676.) Thereafter, Drake held various jobs. While working in the community, he suffered four gunshot wounds, sustaining additional injuries. (Id. at 469, 647.)

The Commissioner denied Drake's initial application for disability and again on reconsideration. (Id. at 148-51, 162-69.) Drake then requested and received a hearing on September 3, 2009, before an administrative law judge ("ALJ"). (Id. at 127.) Drake appeared at the hearing before ALJ Larry A. Miller, represented by an attorney, with Rochelle R. Evans, an impartial vocational expert ("VE"), also appearing. (Id.) On April 11, 2011, the ALJ issued a decision finding Drake disabled from August 19, 2009, through November 9, 2010, inclusively, but not thereafter. (Id. at 127-41.)

Drake petitioned the Social Security Appeals Council to review this decision. The Appeals Council granted the petition, vacated the prior decision, and remanded the case to the ALJ to determine Drake's earnings during the period he was deemed disabled. (Id. at 145.) The Appeals Council did not question the unfavorable portion of the decision finding Drake not disabled after November 9, 2010. (Id. at 25.)

On remand, a second hearing was held before ALJ Miller on October 5, 2012. (Id.) Drake again appeared with counsel, and VE Julie Sawyer-Little also appeared. (Id.) The ALJ issued a second decision on October 30, 2012, again finding that Drake was only disabled for the closed period from August 19, 2009, through November 9, 2010, inclusive. (Id. at 25-40.) On November 29, 2012, Drake again requested review by the Appeals Council, claiming only, "I am disabled." (Id. at 20.) The Appeals Council denied Drake's request for review of this decision, making the ALJ's second decision the final decision of the Commissioner. (Id. at 1-4.)

The ALJ's second decision relied in part on the medical opinions of Drs. Michael J. Einbund and Dakota Cox. Dr. Einbund physically examined Drake and his medical records on behalf of the NFL to determine the extent of Drake's football-related injuries. (Id. at 644-74.) Dr. Cox assessed Drake's condition based on a review of Drake's medical records. (Id. at 117-19.) In rendering his disability determination, the ALJ made the following relevant findings later adopted by the Commissioner:

12. The claimant has not developed any new impairment or impairments since November 10, 2010, the date the claimant's disability ended. Thus, the claimant's current severe impairments are the same as that present from August 19, 2009 through November 9, 2010.
....
14. Medical improvement occurred as of November 10, 2010, the date the claimant's disability ended (20 CFR 404.1594(b)(1)).
....
15. The medical improvement that has occurred is related to the ability to work because there has been an increase in the claimant's residual functional capacity (20 CFR 404.1594(b)(4)(i)).
....
16. After careful consideration of the entire record, the undersigned finds that, beginning November 10, 2010, the claimant has had the residual functional capacity to perform sedentary work, the ability to stand/walk two hours in an eight-hour day, sit six hours in an eight hour-day, and lift, carry, push, and pull up to ten pounds occasionally, as defined in 20 CFR 404.1567(a) except the claimant was able to use his right hand frequently for fingering and handling; the claimant could perform only occasional crouching and stooping, and he was unable to perform any balancing, climbing, kneeling, crawling, working at heights, or around dangerous machinery.
....
21. Beginning November 10, 2010, considering the claimant's age, education, work experience, and residual functional capacity, there have been jobs that exist in significant numbers in the national economy that the ...

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