United States District Court, E.D. North Carolina, Southern Division
Linwood Jerry Robinson, Jr. Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge
Linwood Jerry Robinson instituted this action in June 2018 to
challenge the denial of his application for social security
income. Robinson claims that Administrative Law Judge
(“ALJ”) Ronald Sweeda erred in considering the
opinion of his treating medical provider and then in
determining his residual functional capacity
(“RFC”). He also contends that ALJ Sweeda erred
in concluding that there was other work Robinson could
perform. Both Robinson and Defendant Nancy A. Berryhill,
Acting Commissioner of Social Security, have filed motions
seeking a judgment on the pleadings in their favor. D.E. 33,
reviewing the parties' arguments, the court has
determined that ALJ Sweeda reached the appropriate
determination. Substantial evidence supports his
consideration of the medical evidence and his RFC
determination. And there was no error in his step five
analysis because his questions to the Vocational Expert
(“VE”) set forth all of Robinson's
limitations. Therefore, the undersigned magistrate judge
recommends that the court deny Robinson's motion, grant
the Commissioner's motion, and affirm the
September 2014, Robinson protectively filed applications for
disability benefits and supplemental security income. In both
applications, Robinson alleged a disability that began in
July 2013. After his claims were denied at the initial level
and upon reconsideration, Robinson appeared before ALJ Sweeda
for a hearing to determine whether he was entitled to
benefits. ALJ Sweeda determined Robinson was not entitled to
benefits because he was not disabled. Tr. at 15- 26.
Sweeda found that Robinson had many severe impairments:
lumbar degenerative disc disease, right hip degenerative
joint disease, and bilateral carpal tunnel syndrome. Tr. at
17. ALJ Sweeda found that Robinson's impairments, either
alone or in combination, did not meet or equal a Listing
impairment. Tr. at 19.
Sweeda then determined that Robinson had the residual
functional capacity to perform a range of light work with
limitations. Tr. at 20. Robinson can occasionally climb
ladders and scaffolds and occasionally crouch. Id.
He can frequently climb ramps and stairs and frequently
balance, stoop, kneel, and crawl. Id. Robinson can
frequently handle and finger bilaterally. Id. And
Robinson is capable of concentrating sufficiently in two-hour
increments to perform simple, repetitive tasks. Id.
Sweeda concluded that Robinson could not perform his past
relevant work as a cook or small business owner. Tr. at 24.
But ALJ Sweeda determined that, considering his age,
education, work experience, and RFC, there were other jobs
existing in significant numbers in the national economy that
Robinson could perform. Tr. at 24-25. These include:
shipping/receiving weigher, information clerk, and storage
facility clerk. Tr. at 25. Thus, ALJ Sweeda found that
Robinson was not disabled. Tr. at 25-26.
unsuccessfully seeking review by the Appeals Council,
Robinson started this action in June 2018. D.E. 5.
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. Chater,
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. 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).
has a history of back, hip, and hand pain. Physician
assistant Tiffany Lewis at Oceanside Family Practice began
treating Robinson in July 2014. Tr. at 376-79. Robinson
related his history of anxiety and low back pain that
radiated into his right leg. Tr. at 376. Lewis prescribed
months later, Robinson saw Dr. Eric Lescault, an orthopedist,
for his right hip pain. Tr. at 394-96. After reviewing
x-rays, Dr. Lescault assessed possible femoral acetabular
impingement with osteoarthritis. Tr. at 395.
that month, Robinson began treatment with Dr. Harrison Frank,
a pain management specialist at Carolina Comprehensive
Health. Tr. at 495-97. Dr. Frank noted that Robinson's
medical history included chronic back pain, lower right
extremity neuropathy, anxiety, and migraine headaches. Tr. at
495. Robinson reported that pain medication and physical
therapy had failed to alleviate his pain symptoms. Tr. at
496. An examination revealed tenderness to palpitation,
painful range of motion, and a positive figure four test.
Id. Dr. Frank assessed sacroiliitis, lumbago,
trochanteric bursitis, and lower right leg neuropathy.
Id. He prescribed hydrocodone. Id.
Frank noted similar complaints and examination findings at
Robinson's next visit. Tr. at 492. Robinson reported
continuing back and hip pain. Id. Dr. Frank observed
tenderness to palpitation, pain with range of motion, and a
positive figure four test. Id. Dr. Frank also found
tenderness in Robinson's left knee, which he assessed as
arthritis. Tr. at 492-93.
November 2014, Robinson returned for a follow-up with Lewis
for his continuing knee pain as well as numbness in both
hands that radiated into his arms. Tr. at 423. An examination
showed a positive Phalen's test on the right and a
positive Tinel's test on the left. Id. Lewis
referred Robinson to an orthopedist. Id.
returned to Dr. Frank later that month reporting constant
pain and difficulty standing. Tr. at 488. Dr. Frank changed
Robinson's medication. Tr. at 489.
next month, Dr. Ayman Gebrail and David Richardson, a nurse
practitioner, conducted a consultative examination. Tr. at
444-47. An examination showed tenderness, decreased range of
motion, positive Phalen's and Tinel's tests, and
decreased strength. Tr. at 446. These examiners opined that
Robinson may have trouble with heavy lifting, pushing,
pulling, and postural movements. Tr. at 447.
return visit to Dr. Frank two weeks later, Robinson claimed
that his continuing pain had been disrupting his sleep. Tr.
at 484. Dr. Frank prescribed a new medication. Tr. at 485.
But the next month, Robinson reported continued pain made
worse by activity. Tr. at 480. Dr. Frank noted tenderness to
palpitation, painful range of motion, and decreased strength.
Id. He changed Robinson's medication,
prescribing morphine. Id. In February 2015, Robinson
reported that this medication resulted in abdominal upset,
and Dr. Frank prescribed Hysingla. Tr. at. 476.
month later, Dr. Reuben Silver, Ph.D., performed a
consultative psychological evaluation. Tr. at 451-55.
Robinson reported feeling angry, stressed, and anxious. Tr.
at 452. He stated he was not receiving mental health
treatment but that he took Klonopin for his symptoms.
Id. Dr. Silver diagnosed Robinson with a panic
disorder. Tr. at 454.
saw Dr. Frank later that month. Tr. at 472. He reported that
the Hysingla was the best medication he had used to treat his
pain, although he continued to experience pain in his back,
hip, knee, and wrists. Id. Robinson also stated that
his pain affected his sleep and limited his mobility and
activities. Id. Dr. Frank's ...