Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Neill v. Berryhill

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

June 7, 2017

JOANNE J. O'NEILL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          David C. Keesler, United States Magistrate Judge

         THIS MATTER IS BEFORE THE COURT on Plaintiffs "Motion For Summary Judgment" (Document No. 13) and "Defendant's Motion For Summary Judgment" (Document No. 15). The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and these motions are now ripe for disposition. After careful consideration of the written arguments, the administrative record, and applicable authority, the undersigned will direct that Plaintiffs "Motion For Summary Judgment" be denied; that "Defendant's Motion For Summary Judgment" be granted; and that the Commissioner's decision be affirmed.

         I. BACKGROUND

         Plaintiff Joanne O'Neill ("Plaintiff), through counsel, seeks judicial review of an unfavorable administrative decision on her application for disability benefits. (Document No. 1). On August 28, 2012, Plaintiff filed applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 405, and for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1383, alleging an inability to work due to a disabling condition beginning August 1, 2009. (Transcript of the Record of Proceedings ("Tr.") 9, 300-307). The Commissioner of Social Security (the "Commissioner" or "Defendant") denied Plaintiffs application initially on September 20, 2012, and again after reconsideration on November 8, 2012. (Tr. 151-158, 163-177). In its "Notice of Reconsideration, " the Social Security Administration ("SSA") included the following explanation of its decision:

On your application you stated that you are disabled because of a right foot injury, necrosis, schizophrenia, bipolar disorder, anxiety, and vision problems.
The medical evidence shows that your condition is not severe enough to be considered disabling. We realize that your condition keeps you from doing any of your past jobs, but it does not keep you from doing less demanding work. Based on your age, education, and past work experience, you can do other work. It has been decided, therefore, that you are not disabled according to the Social Security Act.

(Tr. 163, 171).

         Plaintiff filed a timely written request for a hearing on November 21, 2012. (Tr. 9, 181). On September 8, 2014, Plaintiff appeared and testified at a hearing before Administrative Law Judge Jim Beeby (the "ALJ"). (Tr. 9, 32-82). In addition, Edward M. Smith, a vocational expert ("VE"), and Samuel Furgiuele, Plaintiffs attorney, appeared at the hearing. Id. The ALJ issued an unfavorable decision on October 16, 2014, denying Plaintiffs claim. (Tr. 6-23). On January 5, 2015, Plaintiff filed a request for review of the ALJ's decision, which was denied by the Appeals Council on April 28, 2016. (Tr. 1-3, 5). The October 16, 2014 ALJ decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff s review request. (Tr. 1).

         Plaintiffs "Complaint" seeking a reversal of the ALJ's determination was filed in this Court on June 28, 2016. (Document No. 1). On November 2, 2016, the parties filed a "Joint Stipulation of Consent to Exercise Jurisdiction by a United States Magistrate Judge" (Document No. 9).

         Plaintiffs "Motion For Summary Judgment" (Document No. 13) and "Memorandum In Support Of Plaintiff s Motion For Summary Judgment" (Document No. 13-1) were filed January 2, 2017; and "Defendant's Motion For Summary Judgment" (Document No. 15) and "Memorandum In Support Of Defendant's Motion For Summary Judgment" (Document No. 16) were filed March 2, 2017. Plaintiff declined to file a response/reply brief, and the time to do so has lapsed. See "Social Security Briefing Order, " Case No. 3:13-MC-198-FDW, (Document No. 1) (W.D. N.C. Dec. 23, 2013).

         The pending motions are ripe for review and disposition.

         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, 667 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. DISCUSSION

         The question before the ALJ was whether Plaintiff was under a "disability" as that term of art is defined for Social Security purposes, at any time between September 10, 2009, and the date of his decision.[1] (Tr. 9, 23). The ALJ noted that although Plaintiffs alleged disability onset date is August 1, 2009, a prior application was denied at the initial level on September 9, 2009 and that claim was not further pursued. (Tr. 9). Therefore, the ALJ determined that the issue of Plaintiff s disability had already been decided through September 9, 2009, and he would only consider claims beginning from September 10, 2009. Id. To establish entitlement to benefits, Plaintiff has the burden of proving that she was disabled within the meaning of the Social Security Act. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The Social Security Administration has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:

(1) whether claimant is engaged in substantial gainful activity -if yes, not disabled;
(2) whether claimant has a severe medically determinable physical or mental impairment, or combination of impairments that meet the duration requirement in § 404.1509 - if no, not disabled;
(3) whether claimant has an impairment or combination of impairments that meets or medically equals one of the listings in appendix 1, and meets the duration requirement -if yes, disabled;
(4) whether claimant has the residual functional capacity ("RFC") to perform her/his past relevant work - if yes, not disabled; and
(5) whether considering claimant's RFC, age, education, and work experience he/she can make an adjustment to other work - if yes, not disabled.

20 C.F.R. § 404.1520(a)(4)(i-v).

         The burden of production and proof rests with the claimant during the first four steps; if claimant is able to carry this burden, then the burden shifts to the Commissioner at the fifth step to show that work the claimant could perform is available in the national economy. Pass, 65 F.3d at 1203. In this case, the ALJ determined at the fifth step that Plaintiff was not disabled. (Tr. 22-23).

         First, the ALJ determined that Plaintiff had not engaged in any substantial gainful activity since September 10, 2009. (Tr. 11-12). At the second step, the ALJ found that Plaintiffs history of avascular necrosis of the right talus status post talar neck fracture with secondary degenerative change, hemorrhagic cyst or tube-ovarian abscess, anxiety disorder, mood disorder, and alcohol and cannabis dependence, were severe impairments.[2] (Tr. 12). At the third step, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. 404, Subpart P, Appendix 1. (Tr.12-13).

         Next, the ALJ assessed Plaintiffs RFC and found that she retained the capacity to perform light work activity, with the following limitations:

can lift and carry, push and pull 20 pounds occasionally, and 10 pounds frequently. With normal breaks in an eight-hour day, she can sit for six hours, and stand and/or walk for six hours. The claimant can understand and remember simple directions; and can maintain concentration and attention for an adequate period to complete short and simple tasks. The claimant would have some social limitations, and would do best in work settings with no demand for extensive social interaction.

(Tr. 13-22). In making his finding, the ALJ specifically stated that he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the obj ective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and 96-7p." (Tr. 13).

         At the fourth step, the ALJ held that Plaintiff could not perform her past relevant work as a phlebotomist and medical assistant. (Tr. 22). At the fifth and final step, the ALJ concluded based on the testimony of the VE and "considering the claimant's age, education, work experience, and residual functional capacity" that jobs existed in significant numbers in the national economy that Plaintiff could perform. (Tr. 23). Specifically, the VE testified that according to the factors given by the ALJ, occupations claimant could perform included photo copy machine operator, office helper, and sorter. Id. Therefore, the ALJ determined that Plaintiff was not under a "disability, " as defined by the Social Security Act, at any time between September 10, 2009, and the date of his decision, October 16, 2014. (Tr. 23).

         Plaintiff on appeal to this Court makes the following assignments of error: (1) the VE's hearing testimony was inconsistent with the Dictionary of Occupational Titles ("DOT"); (2) the ALJ failed to properly consider whether Plaintiff was disabled between August 1, 2009 and September 9, 2009; and (3) the RFC determination is not supported by substantial evidence. (Document No. 13-1, p.4). The undersigned will discuss each of these contentions in turn. A. Dictionary of Occupational Titles In her first assignment of error, Plaintiff notes that in responding to a hypothetical from the ALJ, the VE stated that Plaintiff could perform the work of a photocopy machine operator, office helper, and a sorter. (Document No. 13-1, pp.4-5) (citing Tr. 23, 77-78). The VE further stated that his testimony was consistent with the DOT. (Document No. 13-1, p.5) (citing Tr. 80); see also (Tr. 23) ("Pursuant to SSR 00-4p, the undersigned [ALJ] has determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles").

         In assigning error here, Plaintiff notes that the DOT "trailers" for each of these job descriptions indicate that they require a "reasoning level" of2 ("R2"). (DocumentNo. 13-1, pp.5- 6). Plaintiff further notes that R2 signifies that an employee must:

Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations, (emphasis added)

(Document No. 13-1, p.6). Plaintiff argues that with the limitation to "short and simple tasks" in the hypothetical, the VE had to name jobs with a reasoning level of 1 ("Rl"), instead of R2, to be consistent with the DOT. Id. Plaintiff notes that Rl requires an employee to:

Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.