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Queen v. Berryhill

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

September 19, 2017

SHERRY FULLER QUEEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger, United States District Judge

         THIS 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].

         I. PROCEDURAL HISTORY

         The 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”). [T. 96-108].

         The Plaintiff filed a second application for SSI benefits on May 4, 2010, alleging an onset date of November 1, 2006.[1] [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.[2] [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].

         The 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].

         The 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].

         In 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 Ruling 96-7p).
• 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 00-4p).

[T. 573-74].

         A 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).

         II. STANDARD OF REVIEW

         The 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).

         The 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).

         The 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. 1982).

         III. THE SEQUENTIAL EVALUATION PROCESS

         In 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).

         First, 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.

         IV. THE ALJ'S DECISION

         In 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.].

         At step 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].

         The ALJ 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 ...

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