United States District Court, W.D. North Carolina, Asheville Division
BRIE K. BUSHAW, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiff Brie K. Bushaw's
Motion for Summary Judgment (Doc. No. 11) filed on December
26, 2017, and Defendant Acting Commissioner of Social
Security Nancy A. Berryhill's
(“Commissioner”) Motion for Summary Judgment
(Doc. No. 13) filed on February 22, 2018.
reviewed and considered the written arguments, administrative
record, and applicable authority, and for the reasons set
forth below, the Court DENIES Plaintiff's Motion for
Summary Judgment; GRANTS the Commissioner's Motion for
Summary Judgment; and AFFIRMS the Commissioner's
filed an application for Title II and Title XVI disability
benefits in April 2012, alleging disability. (Tr. 321, 325,
335). After her application was denied initially and upon
reconsideration (Tr. 219, 226, 235), Plaintiff requested a
hearing (Tr. 245). After the hearing on March 20, 2014, the
ALJ issued an unfavorable decision. (Tr. 85, 194).
Plaintiff's request for review by the Appeals Council was
granted and remanded to the ALJ for a new hearing. (Tr. 216-
17). The ALJ held a remand hearing and supplemental hearing
on May 5, 2016 and November 10, 2016, respectively. (Tr. 37,
55). The ALJ issued an unfavorable decision again, and
Plaintiff's request for review by the Appeals Council was
denied. (Tr. 1, 8).
determined Plaintiff was not disabled from the alleged onset
date through the date of the decision. (Tr. 11). The ALJ
found that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date and that she had the
following severe impairments: “diabetes, obesity,
affective disorders and anxiety disorders.” (Tr. 13).
The ALJ determined that none of these impairments nor any
combination of the impairments met or medically equaled a per
se disabled medical listing under 20 C.F.R. Pt. 404, Subpt.
P, App. 1. (Tr. 14). The ALJ then found that Plaintiff had
the Residual Functional Capacity (“RFC”) to
perform light work as defined in 20 CFR §§
404.1567(b) and 416.967(b):
[E]xcept she can never climb ladders, ropes, or scaffolds,
occasionally climb ramps or stairs, stoop, crouch, or kneel,
but never crawl; her work is limited to simple, routine, and
repetitive tasks; performed in a work environment free of
fast-paced production requirements; involving only simple,
work-related decisions; and with few, if any, work place
changes; she is capable of learning simple vocational tasks
and completing them at an adequate pace with persistence in a
vocational setting; and can perform simple tasks for two hour
blocks of time with normal rest breaks during an eight hour
work day; she is also limited to only occasional interaction
with the public and coworkers.
16). In response to a hypothetical that factored in
Plaintiff's age, education, work experience, and RFC, the
vocational expert (“VE”) testified that such an
individual can perform jobs in the national economy that
exist in significant numbers. (Tr. 23). Thus, the ALJ
concluded that Plaintiff was not disabled, as defined under
the Social Security Act. (Tr. 23).
has exhausted all administrative remedies and now appeals
pursuant to 42 U.S.C. §§ 405(g) and 1382(c)(3).
Plaintiff claims that the ALJ's decision should be
reversed because the ALJ relied on testimony from the VE that
appears to conflict with the Dictionary of Occupational
Titles (“DOT”) and failed to sufficiently explain
his determination that Plaintiff could perform tasks for two
hour blocks of time.
STANDARD OF REVIEW
405(g) of Title 42 of the United States Code provides
judicial review of the Social Security Commissioner's
denial of social security benefits. When examining a
disability determination, a reviewing court is required to
uphold the determination when an ALJ has applied correct
legal standards and the ALJ's factual findings are
supported by substantial evidence. 42 U.S.C. § 405(g);
Westmoreland Coal Co., Inc. v. Cochran, 718 F.3d
319, 322 (4th Cir. 2013); Bird v. Comm'r of Soc. Sec.
Admin., 699 F.3d 337, 340 (4th Cir. 2012). A reviewing
court may not re-weigh conflicting evidence or make
credibility determinations because “it is not within
the province of a reviewing court to determine the weight of
the evidence, nor is it the court's function to
substitute its judgment for that of the Secretary if his
decision is supported by substantial evidence.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005) (alteration and internal quotation marks omitted).
“It consists of more than a mere scintilla of evidence
but may be less than a preponderance.” Pearson v.
Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (internal
quotation marks omitted). Courts do not reweigh evidence or
make credibility determinations in evaluating whether a
decision is supported by substantial evidence; “[w]here
conflicting evidence allows reasonable minds to differ,
” courts defer to the ALJ's decision.
Johnson, 434 F.3d at 653.
order to establish entitlement to benefits, a claimant must
provide evidence of a medically determinable impairment that
precludes returning to past relevant work and adjustment to
other work.” Flesher v. Berryhill, 697
Fed.Appx. 212 (4th Cir. 2017) (citing 20 C.F.R. §§
404.1508, 404.1520(g)). In evaluating a disability claim, the
Commissioner uses a five-step process. 20 C.F.R. §
404.1520. Pursuant to this five-step process, the
Commissioner asks, in sequence, whether the claimant: (1)
worked during the alleged period of disability; (2) had a
severe impairment; (3) had an impairment that met or equaled
the severity of a listed impairment; (4) could return to his
past relevant work; and (5) if not, could perform any other
work in the national economy. Id.; see also
Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017)
(citing Mascio v. Colvin, 780 F.3d 632, 634 (4th
Cir. 2015)); 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4)). The claimant bears the burden of proof at
steps one through four, but the burden shifts to the
Commissioner at step five. See Lewis, 858 F.3d at
861; Monroe v. Colvin, 826 F.3d 176, 179-80 (4th
the claimant fails to demonstrate she has a disability that
meets or medically equals a listed impairment at step three,
the ALJ must assess the claimant's residual functional
capacity (“RFC”) before proceeding to step four,
which is ‘the most [the claimant] can still do despite
[her physical and mental] limitations [that affect h[er]
ability to work].'” Lewis, 858 F.3d at
861-62 (quoting 20 C.F.R. §§ ...