United States District Court, W.D. North Carolina, Statesville Division
GLENDA S. EDWARDS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.
RICHARD L. VOORHEES, District Judge.
BEFORE THE COURT are cross-motions for summary judgment filed by Glenda S. Edwards ("Edwards" or "Plaintiff") and Carolyn W. Colvin ("Commissioner" or "Defendant"). (Docs. 12, 15). The specific issue before the Court is whether the case of Bird v. Comm'r of Soc. Sec., 699 F.3d 337 (4th Cir. 2012) compels reversal or remand of the final decision of the Commissioner.
I. BACKGROUND OF THE LAW
The Social Security Administration ("SSA") has established a five-step sequential evaluation process for determining whether an individual is disabled. 20 C.F.R. §§ 404.1520(a) and 416.920(a). If it is determined that a claimant is or is not disabled at one step, the SSA or Administrative Law Judge ("ALJ") will issue a decision without proceeding to the next step in the evaluation. A claimant's residual functional capacity ("RFC") is determined after step three has been completed, but before step four is begun, in order to determine what level of physical and mental exertion the claimant can perform at work. 20 C.F.R. § 404.1545(a) and § 416.945(a). The ALJ determines the RFC by assessing claimant's ability to do physical and mental activities on a sustained basis, despite limitations from identified impairments and claimed symptoms that are reasonably consistent with objective medical evidence and supported by other evidence. 20 C.F.R. §§ 404.1529, 404.1545, 416.929, and 416.945.
In addition to the five step process, in the case of period of disability and disability insurance benefits ("DIB") under Title II of the Act, 42 U.S.C. §401 et seq, the Plaintiff must show that she was disabled prior to her date last insured ("DLI"). Bird, 699 F.3d at 341; 20 C.F.R. §§ 404.101, 404.130, 404.131.
II. STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's review of a final decision of the Commissioner to: (1) whether substantial evidence supports the Commissioner's decision; and (2) whether the Commissioner applied the correct legal standards. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the evidence or to substitute its judgment for that of the Commissioner-so long as that decision is supported by substantial evidence. Hays, 907 F.2d at 1456 (4th Cir. 1990); see also, Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Hancock v. Astrue, 657 F.3d 470, 472 (4th Cir. 2012). "Substantial evidence has been defined as more than a scintilla and [it] must do more than create a suspicion of the existence of a fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401). Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and to resolve conflicts in the evidence. Hays, 907 F.2d at 1456; King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979) ("This court does not find facts or try the case de novo when reviewing disability determinations."); Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) ("We note that it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistences in the medical evidence, and that it is the claimant who bears the risk of nonpersuasion."). Indeed, so long as the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court disagrees with the final outcome. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
III. ADMINISTRATIVE HISTORY
On October 13, 2009, Plaintiff filed a DIB application, alleging an inability to do work due to a disabling condition beginning July 18, 2004. The Commissioner denied Plaintiff's application initially and upon reconsideration. (Tr. 103-08, 109-14). Plaintiff then filed a request for a hearing and was granted one presided over by ALJ Theresa R. Jenkins. (Tr. 62-68, 69-102). The ALJ issued an unfavorable decision on November 22, 2011 and the Appeals Council denied review. Therefore, the ALJ's decision became the Commissioner's final decision.
The ALJ found that Plaintiff's DLI was December 31, 2004 and she does not contest this on appeal. (Tr. 17). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity. ( Id. ). At step two, the ALJ found that through the DLI Plaintiff had the following severe impairments: left foot peripheral neuropathy, left knee prolapsed lateral meniscus and left anterior cruciate ligament tears, status post arthroscopic repair with residual effects, as well as obesity. (Tr. 17). At step two, the ALJ found that Plaintiff's lipomyelomeningocele was not a "severe" impairment because of the lack of medical evidence before her DLI. Given that this analysis is the subject of the appeal, the Court shall reproduce it:
In addition to the claimant's depression... her lipomyelomeningocele was not a medically determinable impairment until approximately five years after her insured status expired, since the evidence does not contain objective findings until 2009 (Exhibit 1F, 10F, 11F). The regulations state that the claimant's impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by the claimant's statement of symptoms. See, 20 CFR 404.1508. No matter how genuine an individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable impairment, the condition cannot be considered a "severe" impairment SSR 96-4p. In this case, although the evidence documents that the claimant apparently underwent a neurosurgical procedure when she was 18 months old, allegedly for a type of spina bifida, the claimant's surgery appeared to have been a success (Exhibit 1F). To illustrate, her earnings record indicates that despite undergoing this surgical correction when she was 18 months old, she was capable of substantial gainful activity for several years (Exhibit 6D). However, although diagnostic, objective, and subjective findings demonstrated that the claimant's lipomyelomeningocele is a "severe" impairment, this evidence was not present prior to the expiration of her last date insured. Interestingly, although the claimant alleges that her debilitating symptoms began on June 18, 2004, she testified and the record substantiates her symptoms including back pain, and left foot neuropathy did not intensify causing her to seek treatment until 2009. Additionally, despite the claimant's alleged onset date, she did not file her Title II application until 2009 a further indication that the claimant's symptoms including pain did not increase or become possibility [ sic ] debilitating until approximately five years after her date last insured.
(Tr. 19). At step three, the ALJ found that through Plaintiff's DLI she did not have an impairment or combination of impairments that met or medically equaled one of the listings. (Tr. 19). Then the ALJ found that she had the RFC to perform "light" work as defined in 20 C.F.R. § 404.1567(b) through her DLI. (Tr. 20). At the fourth step, the ALJ found that she was able to perform her past relevant work as a car jockey. (Tr. 22). The ALJ also proceeded to step five. At step five, the ALJ found that Plaintiff could perform other occupations existing in ...