United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II, United States Magistrate Judge
Boyce Ervin McKenzie instituted this action on December 14,
2016, to challenge the denial of his application for social
security income. McKenzie claims that the Administrative Law
Judge ("ALJ") Tammy Georgian erred in (1)
considering a previous disability determination, (2) failing
to conduct a proper function-by-function analysis, (3)
determining that he had a residual functional capacity
("RFC") to perform light work with limitations, (4)
evaluating the opinions of McKenzie's treating providers,
(5) evaluating McKenzie's credibility, and (6) posing
hypothetical questions to the Vocational Expert
("VE"). Both McKenzie 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, 24.
reviewing the parties' arguments, the court has
determined that ALJ Georgian reached the appropriate
decision. ALJ Georgian properly considered the previous
disability determination and the opinions of McKenzie's
treating providers. Her decision reflects that she analyzed
McKenzie's abilities and accurately determined his RFC.
Moreover, there was no error with her evaluation of
McKenzie's credibility or in the hypothetical questions
posed to the VE. Therefore, the undersigned magistrate judge
recommends that the court deny McKenzie's motion, grant
Berryhill's motion, and affirm the Commissioner's
September 9, 2013, McKenzie protectively filed applications
for disability benefits and supplemental security income. In
both applications, he alleged a disability that began on May
19, 2010. After his claim was denied at the initial level and
upon reconsideration, McKenzie appeared before ALJ Georgian
for a hearing to determine whether he was entitled to
benefits. ALJ Georgian determined McKenzie was not entitled
to benefits because he was not disabled. Tr. at 23-31.
Georgian found that McKenzie's degenerative disc disease
was a severe impairment. Tr. at 26. ALJ Georgian found that
McKenzie's impairments, either alone or in combination,
did not meet or equal a Listing impairment. Tr. at 27.
Georgian then determined that McKenzie had the residual
functional capacity ("RFC") to perform a range of
light work with additional limitations. Id. He can
never climb ladders, ropes, or scaffolds and may have no more
than frequent exposure to hazards. Id.
Georgian concluded that McKenzie was incapable of performing
his past relevant work as an auto body repairperson. Tr. at
30. But ALJ Georgian determined that, considering
McKenzie's age, education, work experience, and RFC,
there were other jobs that existed in significant numbers in
the national economy that McKenzie was capable of performing.
Tr. at 30- 31. These include: grader/sorter, parts packer,
and quality control examiner. Tr. at 31. Thus, ALJ Georgian
found that McKenzie was not disabled. Id.
unsuccessfully seeking review by the Appeals Council,
McKenzie commenced this action in December 2016. D.E. 6.
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
determining 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)). The
court must affirm the Commissioner's decision if it is
supported by substantial evidence. Smith v. Chafer,
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 ALJ must consider the factors in order. At step
one, if the claimant is 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.
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 back pain. A March 2011 MRI of his cervical
spine demonstrated arthritic narrowing of the disc volumes of
the lower cervical spine with mild exiting nerve root canal
stenosis. Tr. at 28. The MRI did not show cervical disc
herniation or evidence of AP neural canal stenosis.
Id. A lumbar spine MRI revealed no evidence of
lumbar disc herniation producing an exiting nerve root mass
effect, spinal stenosis, or compression fracture.
following month, Dr. Darlene Pressley performed a
consultative examination. Id. McKenzie reported neck
and back pain. Id. He was independent in personal
care, could walk one block, and was able to carry a bag of
groceries. Id. An examination found full range of
motion in the cervical spine and upper extremities as well as
full strength. Id. Although he had a normal gait,
McKenzie could not tiptoe or tandem walk. Id. He was
able to squat and stand but had difficulty doing so.
Id. Dr. Pressley opined that McKenzie may have
difficulty squatting, kneeling, crawling, lifting heavy
objects, performing overhead work, and engaging in prolonged
standing and walking. Id.
August 2012, McKenzie underwent a physical examination at
Columbus Regional Healthcare System. Id. He reported
lumbar pain with muscle spams and foot numbness. Id.
An examination demonstrated normal alignment and range of
motion in his back and full range of motion in his
one year later, McKenzie returned to Columbus reporting back
pain after a lot of cleaning and moving things at his house.
Id. Providers noted that McKenzie stood erect with a
steady gait. Id. An MRI the following month showed
degenerative disc disease throughout the lumbosacral spine
with multilevel endplate osteophyte formations and facet
joint arthrosis. Id. Multilevel chronic disc
protrusions and multilevel neural foraminal narrowing were
also observed. Id.
Francis Locklear performed a consultative examination in
December 2013. Tr. at 29. McKenzie described pain in his hips
down through his legs and numbness in his feet. Id.
Dr. Locklear's examination found that McKenzie had full
grip strength and full strength in his extremities.
Id. McKenzie was able to walk on his heels and toes
without a cane and he could bend, squat, and rise as well as
get on and off the examination table. Id. McKenzie
displayed tenderness to palpitation along the lumbosacral
spine. Id. Dr. Locklear opined that McKenzie could
sit, stand, and walk and did not require a cane. Id.
following month, McKenzie reported to providers that he would
like to try physical therapy for his back pain. Id.
Three months later, he described his back pain as greater on
the right side than the left side. Id. He further
claimed it had been increasing for the past year.
2014, providers at G&G Healthcare opined that McKenzie
ability to perform even simple work tasks was significantly
impaired by his chronic pain and that he would be unable to
work any amount of time. Tr. at 556. These providers
reiterated this assessment in September 2015 when they opined
that McKenzie was he was totally and permanently disabled.
Tr. at 564.
testified that he formerly worked as an auto mechanic but
stopped because of back pain. Tr. at 28. He also testified
that he experiences pain in his arms and legs and numbness in
his hands and feet. Id. McKenzie described trouble
with buttons because of his hand numbness. Id. He
also claimed memory difficulties. Id.
Previous Disability Determination
first argues that ALJ Georgian failed to properly consider
the findings in a previous ALJ decision. Specifically, he
contends ALJ Georgian was required to adopt the step two
findings made in a January 2013 decision denying his
application for benefits. Tr. at 67-76. The Commission
maintains, and the court agrees, that ALJ Georgian properly
considered the previous decision and explained why its
findings were not accorded more weight.
issued Acquiescence Ruling 00-1(4), 65 FR 1936-01 (Jan. 12,
2000), which addressed a Fourth Circuit case, Albright v.
Commissioner of Social Security Administration, and the
consideration of prior agency decisions:
[W]here a final decision of SSA after a hearing on a prior
disability claim contains a finding required at a step in the
sequential evaluation process for determining disability, SSA
must consider such finding as evidence and give it
appropriate weight in light of all relevant facts and
circumstances when ...