United States District Court, W.D. North Carolina, Asheville Division
BARBARA J. BAILES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Richard L. Voorhees United States District Judge.
MATTER IS BEFORE THE COURT on cross-motions for
summary judgment. (Docs. 9, 11). For the reasons that follow,
the Plaintiff's Motion for Summary Judgment (Doc. 9) is
DENIED, the Defendant's Motion for
Summary Judgment (Doc. 11) is GRANTED, and
the decision of the Commissioner is
2012, Plaintiff Barbara J. Bailes filed applications for
disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act,
alleging an inability to work due to a disabling condition
commencing on January 9, 2012. (Tr. 73, 198-215). The
Commissioner of Social Security (“Commissioner”
or “Defendant”) initially denied Plaintiff's
application on August 7, 2012 and, upon reconsideration,
again denied the application on October 17, 2012. (Tr. 73,
91-96, 98-115). Plaintiff requested a hearing and, on January
3, 2014, appeared by video conference before Administrative
Law Judge David S. Pang (“ALJ
Pang”). (Tr. 11-25, 73, 124-25).
a written decision, ALJ Pang concluded that Plaintiff was not
disabled. (Tr. 73-83). At Step One, ALJ Pang found that
Plaintiff's earnings subsequent to her alleged disability
onset date did not rise to the level of substantial gainful
activity. (Tr. 75). At Step Two, ALJ Pang found that
Plaintiff suffered from two severe impairments: spinal
degenerative disc disease and chronic back pain. Id.
ALJ Pang, however, found that Plaintiff's alleged
impairments of anxiety, depression, pneumonia, dyspnea,
diarrhea, iron depletion, gastroesophageal reflux disease,
urinary tract infection, lupus, reflux, benign hypertension,
and osteoarthritis did not qualify as severe. (Tr. 76-77).
Specific to Plaintiff's anxiety and depression, ALJ Pang
noted that (1) Plaintiff suffered from these disorders prior
to 2012 and worked while suffering from them; (2)
Plaintiff's anxiety and depression were controlled by
medication; (3) Plaintiff did not seek treatment from a
mental health specialist; and (4) “throughout 2013,
[Plaintiff's] mental status examinations note her for
intact cognition, appropriate mood and affect and normal
judgment.” (Tr. 76). ALJ Pang also applied the
psychiatric review technique, concluding that Plaintiff did
not experience any episodes of decompensation and that
Plaintiff's anxiety and depression “do not cause
more than minimal limitation in [Plaintiff's] ability to
perform basic mental work activities” and “cause
no more than ‘mild' limitations in any of the . . .
functional areas.” (Tr. 76-77). At Step Three, ALJ Pang
determined that Plaintiff's conditions did not meet any
of the Listings, specifically finding that Plaintiff's
degenerative disc disease and chronic back pain did not meet
Listing 1.04 because the conditions did not compromise
Plaintiff's nerve root or spinal cord. (Tr. 78).
Pang then commenced his residual functional capacity
assessment by summarizing Plaintiff's hearing testimony,
Plaintiff's medical records, and the consultative exam
findings of Dr. Albert Whitaker. (Tr. 78-81). ALJ Pang
concluded that Plaintiff's testimony was “not
entirely credible” as to the “intensity,
persistence and limiting effects of [her] symptoms.”
(Tr. 79). Regarding Plaintiff's medical records, ALJ Pang
noted that Plaintiff experienced only mild lumbar
restrictions and did not have any musculature issues
following a 2010 incident that exacerbated her preexisting
back problems and that Plaintiff cited in her hearing
testimony as “a significant occurrence” that made
her back problem “a thousand times worse” and
precipitated her not being able to work by 2012.
Id.; (see also Tr. 15-16 (Plaintiff's
testimony regarding 2010 event)). ALJ Pang noted that
Plaintiff's condition worsened in March 2012, by which
time she was diagnosed with degenerative disc disease. (Tr.
79). ALJ Pang noted, however, that Plaintiff did not seek
follow up care for her back issues in the months following
being diagnosed with degenerative disc disease, and that Dr.
Whitaker's 2012 consult exam findings showed that
Plaintiff had relatively normal range of motion and normal
sensation. Id. ALJ Pang also summarized Dr.
Whitaker's conclusion that restrictions for walking up to
six hours a day, for lifting up to thirty pounds, and for
bending, stooping, crouching, and manipulation would address
the limitations resulting from Plaintiff's back issues.
(Tr. 79-80). ALJ Pang contrasted Dr. Whitaker's modest
set of restrictions with the “extreme
limitations” advanced by Dr. Larry Smith,
Plaintiff's treating physician. (Tr. 80-81). ALJ Pang
concluded that Dr. Smith's assessment was inconsistent
with Plaintiff's reported daily activities,
Plaintiff's ability to drive to the hearing, and the
course of treatment prescribed by Dr. Smith. Id.
forming Plaintiff's residual functional capacity, ALJ
Pang relied on Plaintiff's back pain and knee pain as a
basis for limiting her to light work, with a restriction for
only occasional stooping, kneeling, crouching, and crawling.
(Tr. 80). ALJ Pang further relied on Plaintiff's back
pain and knee pain, as well as her history of falls, to
include a restriction for only occasional climbing of ramps
and stairs and a total restriction for climbing ladders,
ropes, and scaffolds. Id. Separately, ALJ Pang
relied on Plaintiff's neck pain, self-reports of poor
handling, and Dr. Whitaker's opinion to include a
restriction for only frequent handling and fingering.
Id. ALJ Pang concluded that further physical
limitations were “not required” based on
Plaintiff's self-reported daily activities and Dr.
Whitaker's evaluation. Id. Finally, regarding
Plaintiff's affective disorders-depression and
anxiety-ALJ Pang reiterated that Plaintiff did not seek
mental health treatment and credited Dr. W.W. Albertson's
opinion that Plaintiff's mental disorders were not severe
and did not necessitate the incorporation of any mental
restrictions into Plaintiff's residual functional
capacity. (Tr. 80-81; see also Tr. 62-63).
purposes of Step Four, ALJ Pang, relying on the testimony of
a vocational expert, concluded that Plaintiff's residual
functional capacity did not permit her to return to her prior
work as a licensed practical nurse. (Tr. 82). However, at
Step Five, and again relying on the testimony of a vocational
expert, ALJ Pang concluded that Plaintiff had transferrable
job skills and that her residual functional capacity
permitted her to perform the duties of a first aide
attendant, DICOT 354.667-010, nursery school attendant, DICOT
359.677-018, and medical lab technician, DICOT 078.381-014.
(Tr. 82-83). Accordingly, ALJ Pang concluded that Plaintiff
was not disabled for purposes of receiving benefits under
Titles II and XVI of the Social Security Act. (Tr. 83).
requested review of ALJ Pang's adverse decision before
the Appeals Council but the Appeals Council denied the
request. (Tr. 1-3, 7). Plaintiff initiated this action
seeking judicial review of ALJ Pang's decision and both
Plaintiff and the Commissioner have filed their respective
motions and supporting memorandums for summary judgment.
Standard of Review
to the Social Security Act, 42 U.S.C. § 405(g) and
§ 1383(c)(3), this Court's review of a final
decision of the Commissioner is limited to: (1) whether
substantial evidence supports the Commissioner's
decision, Richardson v. Perales, 402 U.S. 389, 390,
401 (1971); and (2) whether the Commissioner applied the
correct legal standards, 42 U.S.C. § 405(g); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
“The findings of the Commissioner . . . as to any fact,
if supported by substantial evidence, shall be conclusive . .
. .” 42 U.S.C. § 405(g). Thus, if this Court finds
that the Commissioner applied the correct legal standards and
that her decision is supported by substantial evidence, the
Commissioner's determination may not be overturned.
substantial evidence is not a “large or considerable
amount of evidence, ” Pierce v. Underwood, 487
U.S. 552, 565 (1988), it is “more than a scintilla and
it must do more than create a suspicion of the existence of a
fact to be established, ” Smith v. Heckler,
782 F.2d 1176, 1179 (4th Cir. 1986) (brackets and internal
quotation marks omitted). Critically, “[t]he
substantial evidence standard ‘presupposes a zone of
choice within which the decisionmakers can go either way,
without interference by the courts. An administrative
decision is not subject to reversal merely because
substantial evidence would have supported an opposite
decision.'” Dunn v. Colvin, 607 F.
App'x 264, 266 (4th Cir. 2015) (ellipsis omitted)
(quoting Clarke v. Bowen, 843 F.2d 271, 272-73 (8th
reviewing for substantial evidence, the court should not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
[Commissioner].” Mastro v. Apfel, 270 F.3d
171, 176 (4th Cir. 2001) (brackets and internal quotation
marks omitted). Consequently, as long as the judgment is
explained and supported by substantial evidence, this Court
must accept the Commissioner's decision, even if this
Court would reach an opposite conclusion or weigh the
evidence differently if it were conducting a de novo
review of the record. See Hays, 907 F.2d at 1456.
Therefore, the issue before this Court is not whether
Plaintiff is disabled, but whether ALJ Pang's
conclusion that Plaintiff is not disabled is
explained and supported by substantial evidence and
that such decision was reached based upon a correct
application of the relevant law.
motion for summary judgment, Plaintiff raises three
assignments of error: (1) ALJ Pang erred in forming
Plaintiff's residual functional capacity when he gave
significant weight to Dr. Whitaker's opinion and some
weight to Dr. Smith's opinion, but did not explain why he
did not include all of the limitations in Dr. Whitaker's
and Dr. Smith's evaluations; (2) ALJ Pang erred by not
including any restrictions in Plaintiff's residual
functional capacity to account for the mental limitations he
identified at Step Two of the disability analysis; and (3)
ALJ Pang failed to explain his credibility determination,
using only boilerplate language to find Plaintiff “not
entirely credible.” Because an administrative law judge
must assess a claimant's credibility before forming the