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McKenzie v. Berryhill

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

January 25, 2018

Boyce Ervin McKenzie, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II, United States Magistrate Judge

         Plaintiff 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.

         After 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 decision.[2]

         I. Background

         On 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.

         ALJ 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.

         ALJ 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.

         ALJ 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.

         After unsuccessfully seeking review by the Appeals Council, McKenzie commenced this action in December 2016. D.E. 6.

         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 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).

         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 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.

         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

         McKenzie 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. Id.

         The 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.

         In 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 extremities. Id.

         Over 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.

         Dr. 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.

         The 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. Id.

         In May 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.

         McKenzie 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.

         D. Previous Disability Determination

         McKenzie 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.

         The SSA 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 ...

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