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Graham v. Colvin

United States District Court, W.D. North Carolina, Statesville Division

January 8, 2015

MARIE GRAHAM, Plaintiffs,
CAROLYN W. COLVIN, Defendants.


RICHARD L. VOORHEES, District Judge.

THIS MATTER is before the Court on pro se Plaintiff Marie Graham's Motion for Summary Judgment, (Doc. 8), and Defendant Carolyn W. Colvin's Motion for Summary Judgment, (Doc. 13). For the following reasons, this Court will DENY Plaintiff's Motion for Summary Judgment and GRANT Defendant's Motion for Summary Judgment.


The Social Security Administration ("SSA") has established a five-step sequential evaluation process for determining whether an individual is disabled.[1] 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.


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).


On February 3, 2009, Graham filed a Title II application for period of disability and disability insurance benefits. (Tr. 15). Graham alleged that her disability began on March 29, 2007. ( Id. ). Her claim was initially denied on June 17, 2009. ( Id. ). She then requested a hearing, received one, and was again denied on December 28, 2010. At the hearing, her attorney represented that the "medical record was complete.'" ( Id. ).

At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity from March 29, 2007 to September 30, 2007. ( Id. at 17). Notably, the ALJ found that Graham's earnings records establish that her date last insured ("DLI") was September 30, 2007. ( Id. at 16). This means that Graham must establish disability on or before that date in order to be entitled to a period of disability and disability insurance benefits. ( Id. ).

At step two, the ALJ found that Graham had a severe cervical back impairment, but declined to find that Graham had a severe tremor disorder. ( Id. at 17). The ALJ's basis for finding that the tremor disorder was not severe was the fact that the "condition was not medically determined on and before her last date insured." ( Id. ). The ALJ noted that there were no complaints or clinical observations of tremors to Dr. Brusie. ( Id. ). Dr. Brusie was Graham's treating physician between 2002 and 2007. ( Id. ). The ALJ also discussed Dr. Drag's records. On August 1, 2007, Graham visited Dr. Drag with complaints of neck pain and headaches. ( Id. ). Graham failed to mention any issues with tremors and there were no clinical observations of tremors. ( Id. at 18). The ALJ noted that Graham reported tremor symptoms to her treating physician on March 10, 2008 but "stated that this had been only over the past three months.'" ( Id. ). The ALJ noted that she denied having any issues with memory, neck pain, and vertigo. ( Id. ).

At step three, the ALJ found that none of Graham's impairments or combination of impairments satisfied the Listings. ( Id. ).

The ALJ found that Graham had the RFC to perform the full range of light work as defined by 20 C.F.R. 404.1567(b). ( Id. at 19). The ALJ considered Graham's testimony that she had to quit working during the month of March 2007 due to her neck pain and increasing tremors. The specific reason for Graham gave for terminating her employment was because "her hands were constantly shaking, she was unable to use a computer, and her voice was shaky.'" ( Id. ). The ALJ found that this testimony was not credible considering the objective medical evidence on record from 2007. Specifically, the ALJ found that while there was a history of disc herniation in 2002, the medical record showed substantial improvement after physical therapy and she was discharged from physical therapy after meeting all goals on December 11, 2002. ( Id. ).

The ALJ found that "the medical record does not show a sudden' increase in symptoms during the month of March 2007." ( Id. ). The ALJ again referenced Dr. Brusie and Dr. Drag's records to support his findings of lack of issues with tremors. The ALJ found that all reports of tremors were outside of the DLI. ( Id. ). Therefore, the ALJ found that "symptoms of tremors' were not identified the medical record.'" ( Id. ).

The ALJ then referenced Dr. Drag's opinion that her cervical problems were unrelated to the disc herniation that existed in 2002. ( Id. ). The ALJ stated that "there is no clinical confirmation that any disc herniations actually existed" in 2007. ( Id. ). However, the ALJ credited the claimant's complaints of neck pain by stating that it ...

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