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Ivey v. Berryhill

United States District Court, M.D. North Carolina

September 22, 2017

MABLE D. IVEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. PATRICK AULD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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 for Defendant.

         I. PROCEDURAL HISTORY

         Plaintiff 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).

         Following 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.

         In 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, Appendix 1.
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 interpersonal interaction.
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 decision.

(Tr. 37-45 (bold font and internal parenthetical citations omitted).)[2]

         II. DISCUSSION

         Federal 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.

         A. Standard of Review

         “[C]ourts 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).

         “In 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).

         When 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)).[3] “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 citations omitted).

         This 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).[4] 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).

         On the 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.[5] 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.[6]

         B. Assignments of Error

         Plaintiff 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 (capitalization omitted)).

         Defendant contends otherwise and seeks affirmance of the ALJ's decision. (Docket Entry 14 at 3-18.)

         1. RFC

         In 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.

         Plaintiff's 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 ...

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