United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger, United States District Judge
MATTER is before the Court on the Plaintiff's
Motion for Summary Judgment [Doc. 9] and the Defendant's
Motion for Summary Judgment [Doc. 10].
Plaintiff Sherry Fuller Queen first filed an application for
a period of disability benefits, disability insurance
benefits, and supplemental security income
(“SSI”) benefits on October 25, 2004, alleging an
onset date of October 19, 1993. [See Transcript
(“T.”) 99]. The Plaintiff's claim was denied
initially and on reconsideration. [Id.]. At the
request of the Plaintiff, an administrative law judge
(“ALJ”) held a hearing to review the
Plaintiff's claim, resulting in an unfavorable decision
on September 17, 2008 (“the 2008 ALJ decision”).
Plaintiff filed a second application for SSI benefits on May
4, 2010, alleging an onset date of November 1,
2006. [T. 22, 161]. The Plaintiff's
application was denied initially and on reconsideration. [T.
22, 109, 119]. At the Plaintiff's request, an ALJ held a
hearing on June 13, 2011, at which the Plaintiff and a
vocational expert testified. [T. 22, 37]. At the hearing, the
Plaintiff amended her alleged onset date to May 4,
2010. [T. 22, 41]. On August 19, 2011, the ALJ
issued a written decision (“the 2011 ALJ
decision”), finding that the Plaintiff was not disabled
within the meaning of the Social Security Act since May 4,
2010. [T. 19- 32]. The Appeals Council denied review of the
2011 ALJ decision on March 5, 2013, making the ALJ's
decision the final decision of the Commissioner. [T. 1-6].
Plaintiff filed yet another application for SSI benefits on
May 7, 2013. [T. 572]. The following day, on May 8, 2013, the
Plaintiff initiated a civil action in this Court seeking
review of the 2011 ALJ decision. [See Civil Case No.
2:13-cv-00021-FDW-DSC, Doc. 1]. On November 18, 2013, the
Honorable Frank D. Whitney, Chief United States District
Judge, entered an Order granting the Defendant's consent
motion for remand pursuant to sentence four of 42 U.S.C.
§ 405(g) for further administrative proceedings.
[Id., Doc. 12]. In the remand order, Judge Whitney
specifically directed as follows:
Upon remand, the administrative law judge (ALJ) will be
directed to consider the findings in the claimant's prior
hearing decision, dated September 17, 2008, under
Acquiescence Ruling 00-1(4); reevaluate the treating and
nontreating source opinions pursuant to the provisions of 20
C.F.R. § 416.927 and Social Security Rulings (SSR) 96-2p
and 96-5p; and explain the weight given to the treating and
nontreating source opinion evidence. The ALJ should also
reevaluate the North Carolina disability determination for
Medicaid and the third-party opinion evidence from the
claimant's stepmother in accordance with SSR 06-03p. On
remand, the ALJ will be directed to give Plaintiff an
opportunity for a new hearing, to further develop the record,
and issue a new decision.
[Id. at 1].
Appeals Council issued a remand order on February 11, 2014,
vacating the decision of the Commissioner and remanding the
case to an ALJ for further hearing. [T. 572-74].
Specifically, the Appeals Council found that the 2011 ALJ
decision failed to give proper consideration to the findings
made in the 2008 ALJ decision; that the 2011 ALJ decision did
not address in the RFC two non-examining state agency
physicians (Drs. Woods and Garner) limiting the Plaintiff to
medium exertional work based on her hypertension and
migraines; and that the 2011 ALJ decision failed to address a
North Carolina Department of Health and Human Services
determination that the Plaintiff is disabled for the purposes
of Medicaid eligibility and further failed to address the
third-party opinion evidence provided by the Plaintiffs
step-mother. [T. 572-73].
remanding the case, the Council noted the Plaintiffs
subsequent application for SSI benefits filed on May 7, 2013,
and ordered the ALJ to “associate the applications and
address them in the hearing decision.” [T. 572].
Additionally, the Council directed the ALJ on remand to:
• Consider the findings in the [Plaintiffs] prior
hearing decision dated 2008 in accordance with AR-001(4).
• Give further consideration to the [Plaintiffs] maximum
residual functional capacity during the period at issue and
provide specific references to evidence of record in support
of the assessed limitations (Social Security Ruling 96-8p).
In so doing, evaluate the treating and nontreating source
opinions pursuant to the provisions of 20 CFR 416.927 and
Social Security Rulings 96-2p and 96-5p, and explain the
weight given to such opinion evidence; and reevaluate the NC
disability determination for Medicaid and third party opinion
evidence in accordance with SSR 06-03p.
• Based on the updated record, further evaluate the
[Plaintiffs] subjective complaints and provide rationale in
accordance with the disability regulations pertaining to
evaluation of symptoms (20 CFR 416.929 and Social Security
• If warranted by the expanded record, the [ALJ] will
obtain supplemental evidence from a vocational expert to
clarify the demands of the [Plaintiffs] past relevant work
and/or of the assessed limitations on the [Plaintiffs]
occupational base (Social Security Rulings 83-12, 83-14,
85-15, and/or 96-9p). The hypothetical questions should
reflect the specific capacity/limitations established by the
record as a whole. The [ALJ] will ask the vocational expert
to identify examples of appropriate jobs and to state the
incidence of such jobs in the national economy (20 CFR
416.966). Further, before relying on the vocational expert
evidence the [ALJ] will identify and resolve any conflicts
between the occupational evidence provided by the vocational
expert and the information in the Dictionary of Occupational
Titles (DOT) and its companion publication, the Selected
Characteristics of Occupations (Social Security Ruling
hearing was held on October 14, 2014, before Administrative
Law Judge Alice Jordan (“ALJ Jordan”). [T.
478-517]. The Plaintiff testified at this hearing, as did a
vocational expert (“VE”). On December 22, 2014,
ALJ Jordan issued a decision denying the Plaintiff benefits.
[T. 451-69]. The Appeals Council denied the Plaintiffs
request for review, thereby making the ALJ's decision the
final decision of the Commissioner. [T. 441-43]. The
Plaintiff has now exhausted all available administrative
remedies, and thus this case is ripe for review pursuant to
42 U.S.C. § 405(g).
STANDARD OF REVIEW
Court's review of a final decision of the Commissioner is
limited to (1) whether substantial evidence supports the
Commissioner's decision, see Richardson v.
Perales, 402 U.S. 389, 401 (1971), and (2) whether the
Commissioner applied the correct legal standards, Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). The Court does not review a final decision of the
Commissioner de novo. Smith v. Schweiker,
795 F.2d 343, 345 (4thCir. 1986).
Social Security Act provides that “[t]he findings of
the Commissioner of any Social Security as to any fact, if
supported by substantial evidence, shall be conclusive. . .
.” 42 U.S.C. § 405(g). The Fourth Circuit has
defined “substantial evidence” as “more
than a scintilla and [doing] more than creat[ing] 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).
Court may not re-weigh the evidence or substitute its own
judgment for that of the Commissioner, even if it disagrees
with the Commissioner's decision, so long as there is
substantial evidence in the record to support the final
decision below. Hays, 907 F.2d at 1456; Lester
v. Schweiker, 683 F.2d 838, 841 (4th Cir.
THE SEQUENTIAL EVALUATION PROCESS
determining whether or not a claimant is disabled, the ALJ
follows a five-step sequential process. 20 C.F.R. §
416.920. If the claimant's case fails at any step, the
ALJ does not go any further and benefits are denied. Pass
v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
if the claimant is engaged in substantial gainful activity,
the application is denied regardless of the medical
condition, age, education, or work experience of the
applicant. 20 C.F.R. § 416.920. Second, the claimant
must show a severe impairment. If the claimant does not show
any impairment or combination thereof which significantly
limits the claimant's physical or mental ability to
perform work activities, then no severe impairment is shown
and the claimant is not disabled. Id. Third, if the
impairment meets or equals one of the listed impairments of
Appendix 1, Subpart P, Regulation 4, the claimant is disabled
regardless of age, education or work experience. Id.
Fourth, if the impairment does not meet the criteria above
but is still a severe impairment, then the ALJ reviews the
claimant's residual functional capacity (RFC) and the
physical and mental demands of work done in the past. If the
claimant can still perform that work, then a finding of not
disabled is mandated. Id. Fifth, if the claimant has
a severe impairment but cannot perform past relevant work,
then the ALJ will consider whether the applicant's
residual functional capacity, age, education, and past work
experience enable the performance of other work. If so, then
the claimant is not disabled. Id. In this case, the
ALJ's determination was made at the fifth step.
THE ALJ'S DECISION
denying the Plaintiff's claim, the ALJ found that the
Plaintiff has not engaged in substantial gainful activity
since May 4, 2010, the application date. [T. 456]. The ALJ
then found that the medical evidence established that the
Plaintiff has the following severe impairments: hypertension,
migraines, anxiety, depression, post-traumatic stress
disorder, social phobia, borderline personality disorder, and
bipolar disorder. [T. 457-61]. The ALJ specifically found
that the Plaintiff's allegation of back pain to be
non-medically determinable. [T. 461]. The ALJ further found
that the Plaintiff's diagnoses of GERD and irritable
bowel syndrome and the Plaintiff's history of alcohol
abuse to be non-severe. [Id.].
three, the ALJ determined that none of Plaintiff's
impairments, either singly or in combination, met or equaled
the criteria of listings 12.04, 12.06, and 12.08. [T. 461].
then assessed the Plaintiff's residual functional
capacity (RFC), finding as follows:
[T]he [Plaintiff] has the residual functional capacity to
perform medium work . . . except she can occasionally
interact with the public and frequently interact with
coworkers; she is limited to the performance of unskilled
work requiring no more than simple, routine and repetitive