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Johnson v. Berryhill

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

February 11, 2019

LAURA G. JOHNSON, 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 Laura G. Johnson ("plaintiff' or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 18, 24. Both filed memoranda in support of their respective motions (D.E. 19, 26) and plaintiff filed a reply (D.E. 30).[1] 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 18 July 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 on 15 December 2013, alleging a disability onset date of 1 May 2011. Transcript of Proceedings ("Tr.") 20. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 20. On 29 September 2016, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, who was represented by counsel, and a vocational expert testified. Tr. 20; 35-60. The ALJ issued a decision denying plaintiffs claims on 1 November 2016. Tr. 20-30.

         Plaintiff timely requested review by the Appeals Council. Tr. 150. On 29 August 2017, the Appeals Council admitted into the record a statement by plaintiff (Tr. 262-65 (Ex. 18E)), but denied the request for review. Tr. 1, 4.

         At that time, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 404.981.[2] On 27 October 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 405(g). See Mot. to Proceed In Forma Pauperis ("IFP") (D.E. 1); Ord. 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 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). 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).

         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).[3] 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).[4]
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 numbers 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.[5] 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. ALJ's Findings

         Plaintiff was 58 years old on the alleged onset date of disability, 1 May 2011; 60 years old on the date last insured, which the ALJ found to be 31 March 2013 (Tr. 22 ¶ 1); and 64 years old on the dates of the hearing and issuance of the ALJ's decision. See, e.g., Tr. 29 ¶ 7; 40. The ALJ found that plaintiff has at least a high school education (Tr. 29 ¶ 8) and past relevant work as an attorney (Tr. 29 ¶ 6).

         Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity from the date of alleged onset of disability through her date last insured. Tr. 22 ¶ 2. At step two, the ALJ found that through the date last insured plaintiff had the following severe medically determinable impairments: "depressive disorder versus major depressive disorder, recurrent, severe; anxiety disorder; hypertension, poorly controlled; and diabetes mellitus." Tr. 22 ¶ 3. At step three, the ALJ found that through the date last insured plaintiff did not have an impairment or combination of impairments that meets or medically equals any of the Listings. Tr. 23 ¶ 4.

         The ALJ determined that through the date last insured plaintiff had the RFC to perform work at all exertional levels subject to various nonexertional limitations as follows:

After careful consideration of the entire record, I find that, through the date last insured, the claimant had the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: occasionally climb ladders and scaffolds; frequently climb ramps and stairs; frequently balance; avoid concentrated exposure to hazardous machinery and unprotected heights; work would be limited to simple and routine tasks with only occasional changes in the work setting; work in a low stress job, which is defined as having no fixed production quotas; no interaction with the public; and only occasional interaction with coworkers.

Tr. 25 ¶ 5.

         Based on his determination of plaintiff s RFC, the ALJ found at step four that plaintiff was not able to perform her past relevant work through the date last insured. Tr. 29 ¶ 6. At step five, adopting the testimony of the vocational expert, the ALJ found that through the date last insured there were jobs existing in significant numbers in the national economy that plaintiff could perform, including jobs in the occupations of photocopy machine operator, garment sorter, and warehouse checker. Tr. 29-30 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged onset date of disability, again, 1 May 2011, through the date last insured, 31 March 2013. Tr. 30 ¶11.

         II. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), judicial review of the final decision of the Commissioner, here, the ALJ's decision adopted by the Commissioner, is limited to considering whether the 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.

         Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, "the court must 'review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'" Felts v. Astrue, No. 1:11CV00054, 2012 WL 1836280, at *1 (W.D. Va. 19 May 2012) (quoting Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at * 1-2.

         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); see also Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).

         III. OVERVIEW OF PLAINTIFF'S CONTENTIONS

         Plaintiff contends that the ALJ's decision should be reversed and this case should be remanded for a new hearing on the grounds that the ALJ erred by: (1) improperly assessing plaintiffs statements regarding her impairments, that is, her symptoms[6]; (2) not properly accounting for plaintiffs limitations in concentration, persistence, and pace in his RFC determination; (3) wrongfully basing the limitation in the RFC of a low-stress job on absence of fixed production quotas; and (4) improperly relying on the vocational expert's testimony without resolving conflicts between it and the Dictionary of Occupational Titles ("DOT"). 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). 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 (24 Mar. 2016); 20 C.F.R. § 404.1529(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) ("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); Soc. Sec. Ruling 16-3p, 2016 WL 1119029, at *4-7. 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

         The ALJ summarized plaintiffs testimony and related exhibits as follows:

The claimant alleged she was unable to work due to depression, anxiety, panic attacks, diabetes mellitus, high blood pressure, low thyroid functioning, high cholesterol, phobias, gout, traumatic flashbacks, attention problems, and obsessive behaviors. Side effects from medication included high blood sugar levels and compulsive behaviors. Because of her conditions, she reportedly had problems remembering, concentrating, understanding, paying attention, and getting along with others (2E/2 [disability report from plaintiff listing alleged impairments]; 17E [brief from plaintiff listing alleged severe impairments and citations to supporting evidence]; HT [i.e., hearing testimony).

Tr. 25 ¶ 5.

         The ALJ made the step one finding that "[a]fter careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms." Tr. 25 ¶ 5. However, at the second step, the ALJ found that

the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. Overall the evidence generally does not support the alleged loss of functioning.

Tr. 25 ¶ 5.

         Following an approximately three-page review of plaintiffs treatment records, an evaluation of the medical opinion evidence, and discussion of his RFC determination, the ALJ set out four of his reasons for discounting plaintiffs symptoms. He stated:

There are also several reasons why the evidence generally does not support the alleged loss of functioning. First, the claimant was not completely compliant with diet and exercise, which contributed somewhat to elevated blood pressure levels. Second, through the date last insured, there was no evidence of symptoms worsening to the point where she required extended inpatient treatment. Third, the record does not contain any opinions from treating or examining physicians indicating that the claimant is disabled or even has limitations greater than those determined in this decision. Fourth, as mentioned earlier, the record reflects work activity after the alleged onset date. Although that work activity did not constitute disqualifying substantial gainful activity, it does indicate that the claimant's daily activities had, at least at times, been somewhat greater than the claimant had generally reported. For these reasons, the evidence generally does not support the alleged loss of functioning and any limitations imposed by the claimant's impairments are accounted for sufficiently in the residual functional capacity.

Tr. 28 ¶ 5.

         Plaintiff contends that each of the reasons given by the ALJ is deficient and that the ALJ's errors in his assessment of plaintiffs symptoms require remand. The court finds no reversible error.

         Plaintiff challenges the first reason given by the ALJ-noncompliance with diet and exercise contributing to elevated blood pressure-on the grounds that the ALJ failed to address possible reasons for such noncompliance in purported violation of Social Security Ruling 16-3p. S ...


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