United States District Court, W.D. North Carolina, Statesville Division
JOANNE J. O'NEILL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
C. Keesler, United States Magistrate Judge
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.
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).
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.
"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).
"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).
pending motions are ripe for review and disposition.
STANDARD OF REVIEW
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.
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).
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).
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. (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).
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).
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. (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).
the ALJ assessed Plaintiffs RFC and found that she retained
the capacity to perform light work activity, with the
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
(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).
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).
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").
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
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 ...