United States District Court, M.D. North Carolina
MABLE D. IVEY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
PATRICK AULD UNITED STATES MAGISTRATE JUDGE.
Mable Darlene Ivey, brought this action pursuant to the
Social Security Act (the “Act”) to obtain
judicial review of a final decision of Defendant, the Acting
Commissioner of Social Security, denying Plaintiff's
claim for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”). (Docket
Entry 1.) Defendant has filed the certified administrative
record (Docket Entry 9 (cited herein as “Tr. ”)),
and both parties have moved for judgment (Docket Entries 11,
13; see also Docket Entry 12 (Plaintiff's
Memorandum), Docket Entry 14 (Defendant's Memorandum)).
For the reasons that follow, the Court should enter judgment
applied for DIB and SSI, alleging an onset date of April 10,
2010. (Tr. 177-80, 305-17.) Upon denial of those applications
initially (Tr. 124-38, 181-92) and on reconsideration (Tr.
139-56, 199-206), Plaintiff requested a hearing de novo
before an Administrative Law Judge (“ALJ”) (Tr.
207-08). Plaintiff, her attorney, and a vocational expert
(“VE”) attended the hearing (Tr. 89-123), at
which Plaintiff amended her onset date to August 1, 2011 (Tr.
99). The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act. (Tr. 157-67.) The Appeals
Council thereafter granted Plaintiff's request for review
(Tr. 173-76, 437-39), vacated the ALJ's decision, and
remanded the matter for further administrative proceedings,
to include evaluation of Plaintiff's mental disorders,
obesity, and new evidence Plaintiff submitted with the
request for review (Tr. 173-76).
remand, a new ALJ convened a second hearing, which Plaintiff,
her attorney, and a VE attended. (Tr. 54-88.) At the outset
of that hearing, the ALJ granted Plaintiff's renewed
motion to amend her onset date to August 1, 2011. (Tr. 58.)
The ALJ thereafter issued a decision finding Plaintiff not
disabled. (Tr. 32-46.) The Appeals Council subsequently
denied Plaintiff's request for review (Tr. 1-7, 30-31,
447-49), making the ALJ's ruling the Commissioner's
final decision for purposes of judicial review.
rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1. [Plaintiff] meets the insured status requirements of the
 Act through March 31, 2015.
2. [Plaintiff] has not engaged in substantial gainful
activity since April 10, 2010, the alleged onset date.
3. [Plaintiff] has the following severe impairments:
degenerative joint disease, right hip avascular necrosis,
obesity, diabetes mellitus, hypertension, right ventricular
hypertrophy, incontinence, posttraumatic stress disorder,
depression, and anxiety.
4. [Plaintiff] does not have an impairment or combination of
impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
5. . . . [Plaintiff] has the residual functional capacity to
perform light work (lifting and carrying 20 pounds
occasionally and 10 pounds frequently . . .), except that she
should have a sit/stand option allowing her to sit for 30
minutes and stand as needed up to 10 minutes. She can
occasionally push and pull using her right lower extremity.
She can occasionally climb, balance, stoop, kneel, and crawl.
She uses a cane for balance. She should avoid concentrated
exposure to fumes. [Plaintiff] is capable of simple routine
repetitive tasks in a stable environment with occasional
6. [Plaintiff] is unable to perform any past relevant work.
10. Considering [Plaintiff's] age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that [she] can perform.
11. [Plaintiff] has not been under a disability, as defined
in the  Act, from April 10, 2010, through the date of this
(Tr. 37-45 (bold font and internal parenthetical citations
law “authorizes judicial review of the Social Security
Commissioner's denial of social security benefits.”
Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir.
2006). However, “the scope of [the Court's] review
of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
Standard of Review
are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir.
1974). Instead, the Court “must uphold the factual
findings of the ALJ if they are supported by substantial
evidence and were reached through application of the correct
legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Hunter v.
Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)
(internal citations and quotation marks omitted). “If
there is evidence to justify a refusal to direct a verdict
were the case before a jury, then there is substantial
evidence.” Hunter, 993 F.2d at 34 (internal
quotation marks omitted).
reviewing for substantial evidence, the [C]ourt should not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
[ALJ, as adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal brackets and
quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the
[Commissioner] (or the ALJ).” Id. at 179
(internal quotation marks omitted). “The issue before
[the Court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ's finding that [the
claimant] is not disabled is supported by substantial
evidence and was reached based upon a correct application of
the relevant law.” Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996).
confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden
of proving a disability, ” Hall v. Harris, 658
F.2d 260, 264 (4th Cir. 1981), and that, in this context,
“disability” means the “‘inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
12 months, '” id. (quoting 42 U.S.C.
§ 423(d)(1)(A)). “To regularize the adjudicative
process, the Social Security Administration has . . .
detailed regulations incorporating longstanding
medical-vocational evaluation policies that take into account
a claimant's age, education, and work experience in
addition to [the claimant's] medical condition.”
Id. “These regulations establish a
‘sequential evaluation process' to determine
whether a claimant is disabled.” Id. (internal
sequential evaluation process (“SEP”) has up to
five steps: “The claimant (1) must not be engaged in
‘substantial gainful activity, ' i.e.,
currently working; and (2) must have a ‘severe'
impairment that (3) meets or exceeds the ‘listings'
of specified impairments, or is otherwise incapacitating to
the extent that the claimant does not possess the residual
functional capacity to (4) perform [the claimant's] past
work or (5) any other work.” Albright v.
Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999). A finding adverse to the claimant at any
of several points in the SEP forecloses an award and ends the
inquiry. For example, “[t]he first step determines
whether the claimant is engaged in ‘substantial gainful
activity.' If the claimant is working, benefits are
denied. The second step determines if the claimant is
‘severely' disabled. If not, benefits are
denied.” Bennett v. Sullivan, 917 F.2d 157,
159 (4th Cir. 1990).
other hand, if a claimant carries his or her burden at each
of the first three steps, the “claimant is
disabled.” Mastro, 270 F.3d at 177.
Alternatively, if a claimant clears steps one and two, but
falters at step three, i.e., “[i]f a
claimant's impairment is not sufficiently severe to equal
or exceed a listed impairment, the ALJ must assess the
claimant's residual functional capacity
(‘RFC').” Id. at 179. Step four then
requires the ALJ to assess whether, based on that RFC, the
claimant can perform past relevant work; if so, the claimant
does not qualify as disabled. Id. at 179-80.
However, if the claimant establishes an inability to return
to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is
able to perform other work considering both [the
claimant's RFC] and [the claimant's] vocational
capabilities (age, education, and past work experience) to
adjust to a new job.” Hall, 658 F.2d at
264-65. If, at this step, the Commissioner cannot carry its
“evidentiary burden of proving that [the claimant]
remains able to work other jobs available in the community,
” the claimant qualifies as disabled. Hines,
453 F.3d at 567.
Assignments of Error
argues that the Court should overturn the ALJ's finding
of no disability on these grounds:
1) the ALJ “erred in finding that [Plaintiff] has the
[RFC] to perform a reduced range of light work” (Docket
Entry 12 at 8 (capitalization omitted);
2) the ALJ “erred in failing to accord appropriate
weight to the opinion evidence in the record”
(id. at 12 (capitalization omitted)); and
3) the ALJ “erred in failing to find that
[Plaintiff's] [chronic obstructive pulmonary disease
(“COPD”)] is a severe impairment and further
failing to discuss this impairment in the step 2 discussion
of severe impairments” (id. at 15
contends otherwise and seeks affirmance of the ALJ's
decision. (Docket Entry 14 at 3-18.)
Plaintiff's first issue on review, she faults the ALJ for
committing four separate errors in formulating the RFC.
(Docket Entry 12 at 8-12.) First, Plaintiff maintains that,
because the ALJ included “a sit/stand option allowing
[Plaintiff] to sit for 30 minutes and stand as needed for up
to 10 minutes, ” the “RFC clearly does not meet
the standards of light work . . . [which requires]
standing/walking for 6 hours in a day, ” and that,
“[a]t best, the RFC . . . is essentially
sedentary.” (Id. at 9 (citing Tr. 39 and
Social Security Ruling 83-10, Titles II and XVI:
Determining Capability to Do Other Work - the
Medical-Vocational Rules of Appendix 2, 1983 WL 31251
(1983)).) Second, Plaintiff contends that her “credible
testimony serves to illustrate that she is unable to work due
to chronic severe pain.” (Id. (citing Tr. 59-
81).) Third, Plaintiff asserts that the ALJ failed to account
for Plaintiff's moderate limitation in concentration,
persistence, or pace (“CPP”) in the RFC, because
the ALJ did not address Plaintiff's ability to stay on
task in violation of Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015). (Docket Entry 12 at 10-11.) Fourth,
Plaintiff argues that VE Louise Walker's testimony
“substantiates that [Plaintiff] is unable to work,
” because Walker testified that “an individual
[with Plaintiff's RFC] would be precluded from all
substantial gainful employment if excessive breaks or
absences were caused by her impairments consistent with
[Plaintiff's] testimony.” (Id. at 12
(citing Tr. 121-22).) Plaintiff's arguments in this
regard do not provide a basis for relief.
contention that the ALJ's inclusion of a sit/stand option
renders the RFC “essentially sedentary” and thus
invalidates the ALJ's step five adoption of the three
light exertion jobs cited by the VE (id. at 9)
misses the mark. Social Security Ruling 83-12, Titles II
and XVI: Capability to Do Other Work - the Medical-Vocational
Rules as a Framework for Evaluating Exertional Limitations
Within a Range of Work or Between Ranges of Work, 1983
WL 31253 (1983) (“SSR 83-12”) explains an
ALJ's obligations when a claimant's RFC falls between
two exertional levels as follows:
Where an individual's exertional RFC does not coincide
with the definition of any one of the ranges of work . . .,
the occupational base is affected and may or may not
represent a significant number of jobs . . . . The [ALJ] will
consider the extent of any ...