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Bailes v. Berryhill

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

June 12, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Richard L. Voorhees United States District Judge.

         THIS 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 AFFIRMED.

         I. BACKGROUND

         In May 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”).[1] (Tr. 11-25, 73, 124-25).

         Through 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).

         ALJ 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.

         In 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).

         For 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).

         Plaintiff 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. (Docs. 9-12).


         A. Standard of Review

         Pursuant 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.

         While 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 Cir. 1988).

         “In 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.

         B. Analysis

         In her 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 ...

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