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Rette v. Berryhill

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

May 24, 2018

John William Rette, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge.

         Plaintiff John William Rette instituted this action in June 2017, to challenge the denial of his application for social security income. Rette claims that Administrative Law Judge (“ALJ”) Catherine Harper erred in (1) failing to find his sciatica met or equaled the criteria in the Listing of Impairments, (2) failing to afford great weight to the opinion of his physical therapist, (3) finding that he had a residual functional capacity (“RFC”) to perform medium work, (4) finding that he could perform his past work, (5) failing to apply the correct Medical Vocational Guideline (“Grid Rule”), 201.06, which directs a finding of disabled, (6) failing to present a proper hypothetical question to the Vocational Examiner (“VE”), and (7) failing to credit fully Rette's credibility and symptoms. Both Rette 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. 14, 17.[1]

         After reviewing the parties' arguments, the court has determined that ALJ Harper reached the appropriate decision. ALJ Harper properly concluded that the evidence does not support a finding that Rette's impairments meet or equal the criteria for Listing 1.04 because he does not meet all the criteria of that Listing. Additionally, ALJ Harper properly evaluated the medical opinion evidence and Rette's credibility. Substantial evidence supports ALJ Harper's finding that Rette can perform medium work. She properly found that Rette could perform his past relevant work. Finally, the undersigned cannot find error in ALJ Harper's step five analysis, including her identification of the relevant Grid Rule and her hypothetical questions to the VE. Therefore, the undersigned magistrate judge recommends that the court deny Rette's motion, grant the Commissioner's motion, and affirm the Commissioner's decision.[2]

         I. Background

         On February 2013, Rette protectively filed an application for disability insurance benefits, alleging a disability that began in May 2013. After his claim was denied at the initial level and upon reconsideration, Rette appeared before ALJ Harper for a hearing to determine whether he was entitled to benefits. ALJ Harper determined Rette was not entitled to benefits because he was not disabled. Tr. at 20-27.

         ALJ Harper found that Rette's lumbar spondylosis and herniated discs were severe impairments. Tr. at 22. ALJ Harper found that Rette's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 23.

         ALJ Harper then determined that Rette had the RFC to perform a full range of work at the medium exertional level. Id. ALJ Harper concluded that Rette was capable of performing his past relevant work as a company owner and window and door installer. Tr. at 26. ALJ Harper also found, in the alternative, that considering his age, education, work experience, and RFC, other work existed in the national economy that Rette could perform and that Grid Rule 203.07 directed a finding of “not disabled.” Tr. at 27. Thus, ALJ Harper found that Rette was not disabled. Id.

         After unsuccessfully seeking review by the Appeals Council, Rette commenced this action in June 2017. 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 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. 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 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. But 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

         Rette has a history of back problems and first sought treatment from Dr. Joseph Keenan in 2007. Tr. at 37. By 2012, Rette experienced low back pain with a shooting pain down his right leg and numbness in both feet. Tr. at 37.

         Dr. Gwendolyn Riddick performed consultative examinations in April and October 2013. Tr. at 277-84, 302-09. At the initial examination, Rette reported that activity exacerbated his foot numbness and low back pain. Tr. at 278. Rette showed negative results on straight leg testing. Tr. at 281. Dr. Riddick found that Rette could sit, stand, and walk normally during an eight-hour workday without an assistive device. Tr. at 282. Dr. Riddick found mild limitations in his abilities to lift and carry and she limited him to occasional bending, stooping, crouching, and squatting. Tr. at 283. Dr. Riddick opined that Rette may benefit from pain management and physical therapy. Tr. at 282.

         At the later examination with Dr. Riddick, Rette again reported activity exacerbated his foot numbness and low back pain and alleged difficulty with prolonged sitting and standing. Tr. at 303. Rette noted that he took over-the-counter anti-inflammatory medications for his symptoms. Tr. at 307. Dr. Riddick opined that Rette had mild limitations in sitting, standing, walking, lifting, and carrying because of back pain. Tr. at 308. She again concluded that he could occasionally bend, stoop, crouch, and squat. Id.

         Dr. Melvin Clayton, a state agency reviewer, evaluated Rette's medical record in October 2013. Tr. at 88-100. Although Rette had arthritis in his back and some reduced range of motion, Dr. Clayton opined that Rette could perform a full range of medium work. Tr. at 99.

         Rette attended physical therapy in August and September 2015. Tr. at 314-18. Rette reported intermittent back pain with occasional sleep disturbance. Tr. at 315. An examination noted good posture, normal gait, and some reduction in range of motion. Tr. at 315-16.

         After five physical therapy visits, Rette's physical therapist, John Wallace, issued a Medical Source Statement in September 2015. Tr. at 324-32. Wallace noted Rette's reduced range of motion and slightly tender lumbar spine. Tr. at 325-26. Wallace opined that Rette's pain was so severe that it would frequently interfere with his attention and concentration and it markedly limited Rette's ability to tolerate stress at work. Tr. at 326. Wallace opined that Rette could sit, stand, or walk for 15 minutes at a time, up to two hours in an eight-hour workday, but that he would need to alternate positions every 15 minutes. Tr. at 326-28. Wallace also concluded that Rette would need to recline for four hours in an eight-hour workday. Tr. at 328. Wallace noted that the assessed limitations existed since July 2012. Tr. at 331.

         Around this time, Rette underwent a lumbar spine MRI which showed mild to moderate lumbar spondylosis with superimposed disc herniations but no significant canal stenosis. Tr. at 312-13.

         Dr. David Clifford performed an orthopedic evaluation the following month. Tr. at 333- 35. Dr. Clifford noted some weakness in the tibialis anterior muscle but no numbness. Tr. at 334. Dr. Clifford assessed lumbar spondylosis with right-sided radiculopathy, for which he prescribed medications. Id. He also suggested injections if physical therapy did not improve Rette's symptoms. Tr. at 335.

         Rette testified that he previously owned a company that installed windows, doors, and awnings but stopped working in 2012. Tr. at 36-37. He described his pain as constant but of varying intensity. Tr. at 39. He relies on medications and lying down to relieve his symptoms. Id. He has taken medications and attended physical therapy to address his symptoms. Tr. at 38.

         Rette estimated that he could sit for 30 minutes, stand for up to 20 minutes, and walk for 15 to 20 minutes. Tr. at 40. He cannot perform these activities more than two hours in an eight-hour workday. Tr. at 41. Rette estimated he cannot lift more than 20 pounds. Id.

         D. Listing 1.04

         Rette contends that ALJ Harper erred by finding that his impairments did not meet or medically equal the requirements of Listing 1.04. The Commissioner maintains that the evidentiary record supports the ALJ Harper's finding. The court finds that ALJ Harper properly found that Rette's impairments did not satisfy the requisite criteria of the Listing because the evidence does not establish that his spinal condition caused a compromise of the spinal cord or a nerve root and associated symptoms.

         1. Overview of Listing of Impairments

         The Listing of Impairments details impairments that are “severe enough to prevent an individual from doing any gainful activity.” 20 C.F.R. § 416.925(a). If a claimant's impairments meet all the criteria of a particular listing, id. § 416.925(c)(3), or are medically equivalent to a listing, id. § 416.926, the claimant is considered disabled, id. § 416.920(d). “The Secretary explicitly has set the medical criteria defining the listed impairments at a higher level of severity than the statutory standard [for disability more generally]. The listings define impairments that would prevent an adult, regardless of his age, education, or work experience, from performing any gainful activity, not just ‘substantial gainful activity.'” Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (stating that the listings are designed to weed out only those claimants “whose medical impairments are so severe that it is likely they would be disabled regardless of their vocational background”).

         The claimant has the burden of proving that his or her impairments meet or medically equal a listed impairment. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981); see also Hancock v. Astrue, 667 F.3d 470, 476 (4th Cir. 2012). As a result, a claimant must present medical findings equal in severity to all the criteria for that listing: “[a]n impairment that manifests only some of those criteria, no matter how severely, does not qualify.” Sullivan, 493 U.S. at 530-31; see also 20 C.F.R. § 416.925(c)(3). A diagnosis of a particular condition, by itself, is insufficient to establish that a claimant satisfies a listing's criteria. 20 C.F.R. § 416.925(d); see also Mecimore v. Astrue, No. 5:10-CV-64, 2010 WL 7281096, at *5 (W.D. N.C. Dec. 10, 2010) (“Diagnosis of a particular condition or recognition of certain symptoms do not establish disability.”).

         An ALJ need not explicitly identify and discuss every possible listing that may apply to a particular claimant. Instead, the ALJ must provide a coherent basis for his step three determination, particularly where the “medical record includes a fair amount of evidence” that a claimant's impairment meets a disability listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). When the evidence exists but is rejected without discussion, the “insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings.” Id. (citing Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986)). In reviewing the ALJ's analysis, it is possible that even “[a] cursory explanation” at step three may prove “satisfactory so long as the decision as a whole demonstrates that the ALJ considered the relevant evidence of record and there is substantial evidence to support the conclusion.” Meador v. Colvin, No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) (citing Smith v. Astrue, 457 Fed.Appx. 326, 328 (4th Cir. 2011)). Still, the ALJ's decision must include “a sufficient discussion of the evidence and explanation of its reasoning such that meaningful judicial review is possible.” Id.

         2. Listing 1.04

         ALJ Harper found that Rette's impairments did not meet or medically equal a listing in Section 1.00 (Musculoskeletal System). Tr. at 23. Rette contends that ALJ Harper erred by not finding that his impairments met or medically equaled Listing 1.04 (disorders of the spine). Under this Listing, a claimant first must show a disorder of the spine, such as a “herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, [and/or] vertebral fracture … resulting in compromise of a nerve root (including the cauda equina) or the spinal cord.” 20 ...


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