United States District Court, E.D. North Carolina, Eastern Division
MICHAEL BULLOCK as surviving spouse of PATRICIA BULLOCK, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE.
cause comes before the Court on cross-motions for judgment on
the pleadings. A hearing was held on these matters before the
undersigned on May 18, 2017, at Edenton, North Carolina. For
the reasons discussed below, the decision of the Commissioner
Bullock brought this action under 42 U.S.C.
§§ 405(g) and 1383(c)(3) for review of the final
decision of the Commissioner denying her claim for disability
and disability insurance benefits (DIB) pursuant to Title II
of the Social Security Act. Claimant protectively filed for
DIB on August 28, 2012, alleging disability since November 1,
2008. After initial denials, a hearing was held
before an Administrative Law Judge (ALJ) who considered the
claim de novo. The ALJ issued an unfavorable ruling,
and the decision of the ALJ became the final decision of the
Commissioner when the Appeals Council denied claimant's
request for review. Claimant then timely sought review of the
Commissioner's decision in this Court. Patricia
Bullock's surviving spouse, Michael Bullock, was
substituted as plaintiff in this matter pursuant to
Fed.R.Civ.P. 25(a) following Patricia Bullock's death on
September 21, 2016.
the Social Security Act, 42 U.S.C. §§ 405(g), and
1383(c)(3), this Court's review of the Commissioner's
decision is limited to determining whether the decision, as a
whole, is supported by substantial evidence and whether the
Commissioner employed the correct legal standard.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir. 2005) (per curiam) (internal quotation and
individual is considered disabled if he is unable "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). The
Act further provides that an 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 line of substantial gainful work which exists in
the national economy." 42 U.S.C. § 1382c(a)(3)(B).
issued by the Commissioner establish a five-step sequential
evaluation process to be followed in a disability case. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four,
but the burden shifts to the Commissioner at step five.
See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
If a decision regarding disability can be made at any step of
the process the inquiry ceases. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
one, if the Social Security Administration determines that
the claimant is currently engaged in substantial gainful
activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination
of impairments. If the claimant has a severe impairment, it
is compared at step three to those in the Listing of
Impairments ("Listing") in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively
presumed. If not, at step four, the claimant's residual
functional capacity (RFC) is assessed to determine if the
claimant can perform his past relevant work. If so, the claim
is denied. If the claimant cannot perform past relevant work,
then the burden shifts to the Commissioner at step five to
show that the claimant, based on his age, education, work
experience, and RFC, can perform other substantial gainful
work. If the claimant cannot perform other work, then he is
found to be disabled. See 20 C.F.R. §
one, the ALJ determined that claimant met the insured status
requirements and had not engaged in substantial gainful
activity since the amended alleged onset date. Claimant's
degenerative disc disease, fibromyalgia, obesity, recurrent
arrhythmias, hyperlipidemia, depressive disorder, and anxiety
disorder were considered severe impairments at step two but
were not found alone or in combination to meet or equal a
Listing at step three. The ALJ concluded that claimant had
the RFC to perform a reduced range of light work with both
exertional and nonexertional limitations. The ALJ found that
claimant could lift and carry up to twenty pounds
occasionally and ten pounds frequently; stand and/or walk for
six hours of an eight-hour day; and sit six hours of an
eight-hour day. The ALJ found that claimant could not perform
her past relevant work but that, considering claimant's
age, education, and RFC, there were jobs that existed in
significant numbers in the national economy which claimant
could perform, including merchandise marker, mail clerk, and
garment inspector. Thus, the ALJ determined that claimant was
not disabled from February 7, 2011, through December 22,
2014, the date of his decision.
ALJ's decision in this instance is not supported by
substantial evidence. An ALJ makes an RFC assessment based on
all of the relevant medical and other evidence. 20 C.F.R.
§ 404.1545(a). An RFC should reflect the most that a
claimant can do, despite the claimant's limitations.
Id. An RFC finding should also reflect the
claimant's ability to perform sustained work-related
activities in a work setting on regular and continuing basis,
meaning eight-hours per day, five days per week. SSR 96-8p;
Hines v. Bamhart, 453 F.3d 559, 562 (4th Cir. 2006).
improperly evaluated the effects of claimant's pain on
her ability to perform work on a regular and continuing
basis. Claimant underwent three cervical and one lumbar
spinal surgeries, with three of those surgeries occurring in
a two-year period beginning in 2011. Although the record
evidence supports a conclusion that claimant improved
following her first surgery in 2006, the same level of
improvement is not documented following her subsequent
surgeries. After her third cervical surgery and prior to her
lumbar surgery, claimant continued to experience numbness and
tingling in her arms and little or no reduction in pain. Tr.
527. Following her lumbar surgery, claimant experienced
improvement in her radicular symptoms but no longer-term pain
relief. Tr. 450, 642, 726. In September 2013, claimant's
pain was noted to increase with activity, and pain provoking
activities were found to be bending, sitting, standing, and
lifting. Tr. 551. Her range of motion and extremity strength
was reduced, and her pain symptoms were noted to be
consistent with degeneration of her spine. Tr. 552. In
November 2013, claimant was diagnosed with chronic pain
syndrome. Tr. 661. In April 2014, claimant was diagnosed with
" spinal stenosis, lumbar region, with neurogenic
claudication." Tr. 760. Neurogenic claudication
associated with spinal stenosis can encompass "a
worsening of lower extremity pain with long periods of
standing and walking." demons v. Astrue, No.
CIV.A. 2:08-00098, 2009 WL 6337986, at *6 (M.D. Term. July
21, 2009), report and recommendation adopted, No.
CIV. 2:08-00098, 2010 WL 1406840 (M.D. Term. Apr. 6, 2010).
found that claimant's statements regarding the intensity,
persistence, and limiting effects of her symptoms were not
entirely credible. Specifically as to her pain related to her
spine and spinal surgeries, the ALJ found that claimant was
repeatedly in no acute distress on exam, that she was usually
neurovascularly intact and had normal strength and reflexes,
and that she usually had negative straight leg testing, and
thus any residual pain plaintiff might have from her
surgeries and degenerative disc disease would not prevent her
from working. Tr. 73-74. While this Court normally affords
the ALJ's credibility determination great weight,
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.
1984), it is simply not born out by the record here. While
the ALJ has relied on intermittent evidence in the record
which might support a conclusion that claimant's pain
complaints are not credible, consideration of the entire
record reveals significant objective findings of conditions
which would cause pain and consistent complaints of pain by
claimant to different providers over the years. Indeed,
"[b]ecause pain is not readily susceptible of objective
proof ... the absence of objective medical evidence of
the intensity, severity, degree or functional effect of pain
is not determinative." Hines, 453 F.3d at 564-65
(emphasis in original) (citation omitted).
affording claimant's statements regarding her limitations
some weight results in a finding that she could not perform
work on a regular and continuing basis. While claimant
testified that she could not walk for more than ten minutes
at a time, the vocational expert testified that if claimant
could not stand or walk at least two hours in an eight-hour
day a finding of disabled ...