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Maldonado v. Berryhill

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

January 2, 2019

LEIDA PAULA MALDONADO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          James E. Gates, United States Magistrate Judge

         In this action, plaintiff Leida Paula Maldonado ("plaintiff or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that she is not disabled.[1] The case is before the court on the parties' motions for judgment on the pleadings. D.E. 20, 24. Both filed memoranda in support of their respective motions (D.E. 21, 25), and plaintiff filed a reply (D.E. 26). The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See 24 May 2018 Text Ord. For the reasons set forth below, it will be recommended that the Commissioner's motion be granted, plaintiffs motion be denied, and the Commissioner's decision be affirmed.

         I. BACKGROUND

         A. Case History

         Plaintiff filed an application for DIB and an application for SSI on 16 June 2012, alleging a disability onset date of 12 June 2009 in both. Transcript of Proceedings ("Tr.") 18. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 18; 141. On 12 April 2016, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 18; 41-60. At the hearing, plaintiff amended the alleged disability onset date to 16 June 2012, the date she filed her applications for DIB and SSI. Tr. 18; 44 (ALJ's reference at hearing to change); 234 (form stating change signed by plaintiff). The ALJ issued a decision denying plaintiffs claims on 13 June 2016. Tr. 18-35.

         Plaintiff timely requested review by the Appeals Council. Tr. 189-93. On 11 July 2017, the Appeals Council denied the request. Tr. 1. At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 8 September 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 4); Compl. (D.E. 5).

         B. Standards for Disability

         The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see Id. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see Id. § 1382c(a)(3)(B). The Act defines a physical or mental impairment as "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. §§ 423(d)(3), 1382c(a)(3)(D).

         The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:

To summarize, the ALJ asks at step one whether the claimant has been working; at step two, whether the claimant's medical impairments meet the [Regulations' severity and duration requirements; at step three, whether the medical impairments meet or equal an impairment listed in the [Regulations; at step four, whether the claimant can perform her past work given the limitations caused by her medical impairments; and at step five, whether the claimant can perform other work.
The first four steps create a series of hurdles for claimants to meet. If the ALJ finds that the claimant has been working (step one) or that the claimant's medical impairments do not meet the severity and duration requirements of the [Regulations (step two), the process ends with a finding of "not disabled." At step three, the ALJ either finds that the claimant is disabled because her impairments match a listed impairment [i.e., a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 ("the Listings")] or continues the analysis. The ALJ cannot deny benefits at this step.
If the first three steps do not lead to a conclusive determination, the ALJ then assesses the claimant's residual functional capacity ["RFC"], which is "the most" the claimant "can still do despite" physical and mental limitations that affect her ability to work. [20 C.F.R.] § 416.945(a)(1).[2] To make this assessment, the ALJ must "consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware," including those not labeled severe at step two. Id. § 416.945(a)(2)[3]
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because she is able to perform her past work. Or, if the exertion required for the claimant's past work exceeds her [RFC], the ALJ goes on to step five.
At step five, the burden shifts to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform other work that "exists in significant No. in the national economy," considering the claimant's [RFC], age, education, and work experience. Id. §§ 416.920(a)(4)(v); 416.960(c)(2); 416.1429.[4] The Commissioner typically offers this evidence through the testimony of a vocational expert responding to a hypothetical that incorporates the claimant's limitations. If the Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the application for benefits.

Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015) (some bracketing original).

         C. Commissioner's Findings

         Plaintiff was 36 years old on the amended alleged disability onset date, and 40 years old on the date of the hearing and the ALJ's decision. See, e.g., Tr. 34 ¶ 7; 45. The ALJ found that plaintiff has at least a high school education (Tr. 34 ¶ 8), having had two years of college education (Tr. 23 ¶ 5), and past relevant work as a parts manager, department manager, and cashier (Tr. 33¶6).

         Applying the five-step analysis of 20 C.F.R §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the amended alleged disability onset date. Tr. 20 ¶ 2. At step two, the ALJ found that plaintiff had the following severe medically determinable impairments: systemic lupus erythematosus ("SLE"), migraine headaches, degenerative disc disease of the lumbar spine, fibromyalgia, thrombocytopenia, H. pylori infection, Epstein-Barr virus, and depression. Tr. 21 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 21 ¶ 4.

         The ALJ determined that plaintiff had the RFC to perform a limited range of sedentary work as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)[5] with some exceptions. The claimant can stand/walk 2 hours of an 8-hour day, and sit for 6-hours of an 8-hour day. She can lift/carry 10 pounds occasionally and push/pull 10 pounds occasionally. The claimant is limited to frequently stooping, crouching, kneeling, or crawling. She is limited to frequently balancing on narrow, slippery, or moving surfaces/climbing. The claimant cannot work at heights or around dangerous machinery. She must avoid working at high temperature extremes or loud noise. The claimant has a decrease in the ability to concentrate on and attend to work tasks to the extent that she can only do simple, routine, repetitive tasks ["SRRTs"] (i.e., can apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form and deal with problems involving several concrete variables in or from standardized situations). She is able to concentrate for two-hour increments with normal rest breaks (i.e., 15, 30, 15 minutes).

Tr. 23 ¶ 5.

         Based on his determination of plaintiff s RFC, the ALJ found at step four that plaintiff was unable to perform any of her past relevant work. Tr. 33 ¶ 6. At step five, the ALJ found that there were jobs existing in significant No. in the national economy that plaintiff could perform, including jobs in the occupations of order clerk, call-out operator, and surveillance system monitor. Tr. 34-35 ¶ 10. The ALJ therefore concluded that plaintiff was not disabled from the amended alleged disability onset date, 16 June 2012, through the date of his decision, 13 June 2016. Tr. 35¶ 11.

         II. STANDARD OF REVIEW

         Under 42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Id.

         The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial evidence must be affirmed, even if the reviewing court would have reached a different conclusion. Blalock, 483 F.2d at 775.

         Before a court can determine whether a decision is supported by substantial evidence, it must ascertain whether the Commissioner has considered all relevant evidence and sufficiently explained the weight given to probative evidence. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review of an administrative decision is impossible without an adequate explanation of that decision by the administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).

         III. OVERVIEW OF PLAINTIFF'S CONTENTIONS

         Plaintiff contends that the ALJ's decision should be reversed or, in the alternative, that this case should be remanded for a new hearing on the grounds that the ALJ erred by: (1) improperly assessing her statements regarding his impairments, that is, her symptoms[6]; and (2) improperly evaluating plaintiffs RFC. Each ground is addressed in turn below.

         IV. ALJ'S ASSESSMENT OF PLAINTIFF'S SYMPTOMS

         A. Applicable Legal Principles

         As noted, symptoms are defined under the Regulations as a claimant's own descriptions of his impairments. 20 C.F.R. §§ 404.1528(a), 416.928(a). The ALJ must employ a two-step process for evaluating a claimant's symptoms:

First, we must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms, such as pain. Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce an individual's symptoms is established, we evaluate the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities for an adult....

Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *2 (25 Oct. 2017) (effective 28 Mar. 2016); 20 C.F.R. §§ 404.1529(b), (c)(1), 416.929(b), (c)(1); Craig, 76 F.3d at 594-95.

         In evaluating a claimant's symptoms at step two, the ALJ must consider "the entire case record." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4; 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1) ("In evaluating the intensity and persistence of your symptoms, we consider all of the available evidence"); Craig, 76 F.3d at 595. The evidence and factors that are considered, when relevant, include: the claimant's history; medical signs and laboratory findings; statements from the claimant, the claimant's treating and nontreating sources, and other persons about how the claimant's symptoms affect the claimant, including medical opinions; the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate his pain or other symptoms; treatment, other than medication, the claimant receives or has received for relief of his pain or other symptoms; any measures the claimant uses or has used to relieve his pain or other symptoms; and other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7.

         When there is evidence that a claimant has not followed the prescribed treatment or the treatment sought is not consistent with the degree of the claimant's subjective complaints, the ALJ is required to consider possible reasons for such noncompliance or inconsistency, which may include the following:

• An individual may have structured his or her activities to minimize symptoms to a tolerable level by avoiding physical activities or mental stressors that aggravate his or her symptoms.
• An individual may receive periodic treatment or evaluation for refills of medications because his or her symptoms have reached a plateau.
• An individual may not agree to take prescription medications because the side effects are less tolerable than the symptoms.
• An individual may not be able to afford treatment and may not have access to free or low-cost medical services.
• A medical source may have advised the individual that there is no further effective treatment to prescribe or recommend that would benefit the individual.
• An individual's symptoms may not be severe enough to prompt him or her to seek treatment, or the symptoms may be relieved with over the counter medications.
• An individual's religious beliefs may prohibit prescribed treatment.
• Due to various limitations (such as language or mental limitations), an individual may not understand the appropriate treatment for or the need for consistent treatment of his or her impairment.

Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *8-9.

         The ALJ's decision "must contain specific reasons for the weight given to the individual's symptoms, be consistent with and supported by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *9.

         B. Analysis

         Plaintiff testified to the effect that she is disabled. See Tr. 45-55, 56-57.

         The ALJ made the step one finding that "[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms." ...


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