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Richard v. Berryhill

United States District Court, E.D. North Carolina, Southern Division

December 18, 2017

Edward Joseph Richard, Jr., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM & ORDER

          Robert T. Numbers, II, United States Magistrate Judge

         Plaintiff 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.

         After 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.[2]

         I. Background

         On June 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.

         ALJ 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. D.E. 1.

         II. Analysis

         A. Standard for Review of the Acting Commissioner's Final Decision

         When a 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).

         B. Standard for Evaluating Disability

         In 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).

         C. Medical Background

         Richard 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.

         In June 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 felt. Id.

         The 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. at 54.

         Later 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.

         In 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.

         At this 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.

         During 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.

         Richard 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. Id.

         Later 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.

         State 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.

         When 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. Id.

         In 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 ΒΆ 4-5 with possible impingement of the extraforaminal left L4 nerve root, and a tiny left ...


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