United States District Court, W.D. North Carolina, Statesville Division
SUSAN E. KELLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE..
MATTER is before the Court on Plaintiff Susan E.
Keller's Motion for Summary Judgment (Doc. No. 10) filed
on May 22, 2017, and Defendant Nancy A. Berryhill's
Motion for Summary Judgment (Doc. No. 12) filed on June 5,
2017. Plaintiff, through counsel, seeks judicial review of an
unfavorable administrative decision on her application for
Disability Insurance Benefits (“DIB”) and
Supplemental Social Security Income (“SSI”).
reviewed and considered the written arguments, administrative
record, and applicable authority, and for the reasons set
forth below, the Court DENIES Plaintiff's Motion for
Summary Judgment (Doc. No. 10), GRANTS Defendant's Motion
for Summary Judgment (Doc. No. 12), and AFFIRMS the
filed an application for Title XVI Social Security benefits
on October 19, 2012, alleging disability due to back
problems, stomach problems, gall bladder surgery, hernia
repair, irritable bowel syndrome, and hip problems. (Tr. 239,
329). After her application was denied initially and upon
reconsideration (Tr. 152, 163), Plaintiff requested a hearing
(Tr. 173). The hearing commenced on June 4, 2015, and on July
17, 2015, the Administrative Law Judge (“ALJ”)
issued a decision denying Plaintiff's application. (Tr.
determined Plaintiff was not disabled. (Tr. 57). The ALJ
found that Plaintiff has not engaged in substantial gainful
activity since her alleged onset date and that she had severe
impairments of headaches, ventral and inguinal hernia,
cervical posterior disc bulge, central stenosis, piriformis
syndrome, osteoarthritis, hypertension, anxiety, depression,
and obesity (Tr. 48); however, those impairments did not meet
or medically equal a per se disabled medical listing under 20
C.F.R. Pt. 404, Subpt. P, App. 1 (Tr. 48-50). The ALJ then
found that Plaintiff had the Residual Functional Capacity
(“RFC”) to perform light work with the following
[S]itting for up to six hours during an eight-hour workday
and standing and/or walking for up to two hours during an
eight-hour work day with the use of an assistive device to
ambulate. [Plaintiff] must be allowed to alternate between
sitting and standing up to two times an hour. [Plaintiff] is
limited to occasional postural activities and to frequent,
but not continuous, use of her bilateral lower extremities to
push, pull, and operate foot controls. [Plaintiff] can follow
short and simple instructions and perform routine tasks.
[Plaintiff] cannot perform work that requires a production
rate or demanding pace. [Plaintiff] is able to sustain
attention and concentration for up to two hours at a time . .
. and must avoid workplace hazards and avoid working in
environments dealing with crisis situations, complex
decision-making, or constant changes in a routine setting.
(Tr. 50-1). Nevertheless, in response to a hypothetical that
factored in the above limitations, a vocational expert
identified various jobs Plaintiff could perform that were
available in significant numbers in the economy. (Tr. 56-7).
Accordingly, the ALJ concluded that Plaintiff was not
disabled. (Tr. 57).
requested review of the ALJ's decision by the Appeals
Council, and the Appeals Council denied the request for
review on November 3, 2016. (Tr. 1-4). Plaintiff has
exhausted all administrative remedies and now appeals
pursuant to 42 U.S.C. § 405(g). Plaintiff claims that
the ALJ's decision is not based on proper legal standards
and is not supported by substantial evidence as 42 U.S.C.
§ 405(g) requires.
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 of Social Security 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) (2006); Westmoreland Coal Co., Inc. v.
Cochran, 718 F.3d 319, 322 (4th Cir. 2013). A reviewing
court may not re-weigh conflicting evidence or make
credibility determinations because "it is not within the
province of a reviewing court to determine the weight of the
evidence, nor is it the court's function to substitute
its judgment for that of the Secretary if his decision is
supported by substantial evidence." Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
evidence is "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 that a
reasonable mind might accept as adequate to support a
conclusion." Smith v. Heckler, 782 F.2d 1176,
1179 (4th Cir. 1986) (quoting Richardson, 402 U.S.
at 401). If this Court finds that the Commissioner applied
the correct legal standards and that his decision is
supported by substantial evidence, the Commissioner's
determination may not be capriciously overturned.
appeal to this Court, Plaintiff makes the following
assignments of error: (1) the ALJ failed to resolve an
apparent conflict between the vocational expert's
testimony and the Dictionary of Occupational Titles
(“DOT”); (2) the ALJ failed to give a complete
explanation of the nonexertional mental functions in the
broad areas of functioning and make a complete finding as to
Plaintiff's mental RFC; and (3) the ALJ failed to
adequately assess ...