United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM & ORDER
T. Numbers, II, United States Magistrate Judge
Edward Joseph Richard, Jr. instituted this action on December
21, 2016, to challenge the denial of his application for
social security income. Richard claims that Administrative
Law Judge (“ALJ”) Richard L. Vogel erred in (1)
failing to obtain testimony from a Vocational Expert
(“VE”), (2) failing to resolve conflicts between
Richard's past work and the Dictionary of Occupational
titles (“DOT”), and (3) failing to apply the
correct Medical-Vocational Guidelines (“Grid
Rule”). Both Richard and Defendant Nancy A. Berryhill,
the Acting Commissioner of Social Security, have filed
motions seeking a judgment on the pleadings in their favor.
D.E. 19, 22.
reviewing the parties' arguments, the court has
determined that ALJ Vogel reached the appropriate decision.
The testimony of a VE was not required because ALJ Vogel
resolved the disability determination at step four of the
sequential analysis. Additionally, the court cannot conclude
that ALJ Vogel erred in classifying Richard's past work
or his identification of the applicable DOT code. Moreover,
although the Grids do not direct ALJ Vogel's disability
determination in this instance, ALJ Vogel nonetheless
referenced the Grid Rule applicable based on Richard's
age, education, and vocational factors. Therefore, the court
denies Richard's motion, grants Berryhill's motion,
and affirms the Commissioner's decision.
15, 2013, Richard protectively filed an application for
disability benefits alleging a disability that began on June
15, 2010. After his claim was denied at the initial level and
upon reconsideration, Richard appeared before ALJ Vogel for a
hearing to determine whether he was entitled to benefits. ALJ
Vogel determined Richard was not entitled to benefits because
he was not disabled. Tr. at 15-22.
Vogel found that Richard had the following severe
impairments: obesity and arthritis/degenerative disc disease.
Id. at 17. ALJ Vogel found that Richard's
impairments, either alone or in combination, did not meet or
equal a Listing impairment. Id. at 18. ALJ Vogel
then determined that Richard had the RFC to perform a full
range of light work. Id. ALJ Vogel concluded that
Richard was capable of performing his past relevant work as
an electrical trades instructor. Id. at 21. Thus,
ALJ Vogel found that Richard was not disabled. Id.
at 22 After unsuccessfully seeking review by the Appeals
Council, Richard commenced this action on December 21, 2016.
Standard for Review of the Acting Commissioner's Final
social security claimant appeals a final decision of the
Commissioner, the district court's review is limited to
the determination of whether, based on the entire
administrative record, there is substantial evidence to
support the Commissioner's findings. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401
(1971). Substantial evidence is defined as “evidence
which a reasoning mind would accept as sufficient to support
a particular conclusion.” Shively v. Heckler,
739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the
Commissioner's decision is supported by such evidence, it
must be affirmed. Smith v. Chater, 99 F.3d 635, 638
(4th Cir. 1996).
Standard for Evaluating Disability
making a disability determination, the ALJ engages in a
five-step evaluation process. 20 C.F.R. § 404.1520;
see Johnson v. Barnhart, 434 F.3d 650 (4th Cir.
2005). The analysis requires the ALJ to consider the
following enumerated factors sequentially. At step one, if
the claimant is currently engaged in substantial gainful
activity, the claim is denied. At step two, the claim is
denied if the claimant does not have a severe impairment or
combination of impairments significantly limiting him or her
from performing basic work activities. At step three, the
claimant's impairment is compared to those in the Listing
of Impairments. See 20 C.F.R. Part 404, Subpart P,
App. 1. If the impairment is listed in the Listing of
Impairments or if it is equivalent to a listed impairment,
disability is conclusively presumed. However, if the
claimant's impairment does not meet or equal a listed
impairment, the ALJ assesses the claimant's RFC to
determine, at step four, whether he can perform his past work
despite his impairments. If the claimant cannot perform past
relevant work, the analysis moves on to step five:
establishing whether the claimant, based on his age, work
experience, and RFC can perform other substantial gainful
work. The burden of proof is on the claimant for the first
four steps of this inquiry, but shifts to the Commissioner at
the fifth step. Pass v. Chater, 65 F.3d 1200, 1203
(4th Cir. 1995).
has a history of orthopedic issues. In May 2013, following
x-rays, Dr. Robert O'Malley, a podiatrist, diagnosed him
with plantar fasciitis in his left foot, third interspace
neuroma in his right foot, and bilateral calcaneal bone
spurs. Tr. at 288.
2013, Richard reported to Dr. Gregory Schimizzi that
medication provided him with significant relief from his
arthritis symptoms. Tr. at 292. An examination noted
generally normal findings. Id. Richard also reported
that he had begun an exercise program which improved how he
following month, state agency consultant April L.
Strobel-Nuss, Psy.D., performed a review and concluded that
Richard did not have a severe mental impairment. Id.
that month, Richard sought treatment at OrthoWilmington for
his back pain. Id. at 374. He stated that he did
water aerobics, which he tolerated well, and that he was pain
free when he took his medications. Id. An
examination found intact sensation, no edema, and good
strength in his lower extremities with a decreased lumbar
range of motion. Id. at 375. Providers prescribed
medications. Id. A nerve conduction study performed
the following month was normal, showing no neuropathy or
radiculopathy. Id. at 376-77.
January 2014, Richard returned to OrthoWilmington for back
pain which he rated as a six on a scale of one to ten.
Id. at 368. Richard noted that pain medication
relieved his symptoms and that he experienced no side
effects. Id. At a follow-up visit two months later,
Richard had full range of motion in his lower extremities
with his lumbar flexation limited to 45 degrees. Id.
at 366-37. The examination also disclosed no spasm, muscle
pain, or trigger points from L1 to S1, full strength in the
flexors and extensors of his hips, knees, and ankles, and no
weakness with lumbar flexation and extension, rotation, or
tilt. Id. Records again noted that he took pain
medication without any reported side effects. Id.
time, an MRI of Richard's lumbar spine showed a mild disc
bulge at ¶ 4-5 with a left foraminal component mildly
impressing on the left L4 nerve root, a small left foraminal
and lateral disc herniation at ¶ 2-3 with no mass effect
on the left L2 nerve root, and minimal disc bulges at ¶
1-2 and L3-4 without stenosis. Id. at 367, 383. An
epidural steroid injection provided limited relief of his
pain symptoms. Id. at 474.
this same time, Richard sought treatment at Trinity Wellness
Center for anxiety and depression. Id. at 357. A
mental status examination showed that he was alert and
oriented with normal insight and judgment, appropriate
affect, and euthymic mood. Id. at 360. Providers
diagnosed post-traumatic stress disorder and bipolar II, for
which they started Richard on a medication regimen.
Id. Although he continued to feel anxious and
depressed, two weeks later Richard stated that he was doing
well with the new medication. Id.
returned to Trinity Wellness Center the following month for
an evaluation. Id. at 398. He reported that he felt
better with medication and was looking forward to exercising
again. Id. He had good concentration and an intact
memory. Id. Richard indicated that he enjoyed
himself during the day and engaged in social activities.
that month, Richard complained of lower back pain while
riding a bike. Id. at 386. He stated that a recent
injection provided him little relief. Id. Dr.
Schimizzi's examination found no motor or sensory
deficits, negative straight leg raises, and normal deep
tendon reflexes in the lower extremities. Id. at
387. In May 2014, an examination showed good range of motion
in the cervical spine with some lumbar spine discomfort on
extension, normal gait, and negative straight leg raises.
Id. at 515. Richard also denied experiencing any
depression or anxiety. Id.
agency psychological consultant Betty B. Aldridge, Psy.D.,
performed a review and concluded that Richard had no
restrictions in activities of daily living, mild difficulties
in social functioning and in maintaining concentration,
persistence, or pace, and no episodes of decompensation.
Id. at 66. She also found that he did not have a
severe mental impairment. Id. at 67. State agency
medical consultant Dr. Steven Levin conducted a review at the
same time and found that Richard could perform the exertional
demands associated with light work with a limitation to
frequent kneeling, climbing, and crawling and occasional
stooping and crouching. Id. at 68-69.
Richard returned to Trinity Wellness Center in May 2014, he
denied any anxious or depressive symptoms and reported that
the medication helped “a lot.” Id. at
396. Later that month, Richard reported that his wife noticed
he was less depressed and although he had feelings of anxiety
and depression, he reported that he was “doing
well.” Id. Records note he had good
concentration, intact memory, and good social activity.
November 2014, Richard returned to OrthoWilmington
complaining that his back pain was worsening. Id. at
527. An examination showed numbness at the left L5 area.
Id. at 530. The next month, an MRI of the lumbar
spine revealed mild degenerative changes, including left
posterolateral focal disc protrusion at ¶ 4-5 with
possible impingement of the extraforaminal left L4 nerve
root, and a tiny left ...