United States District Court, E.D. North Carolina, Western Division
MEMORANDUM & RECOMMENDATION
T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Harvey Hair instituted this action in March 2018 to challenge
the denial of his application for social security income.
Hair claims that the Administrative Law Judge
(“ALJ”) Joseph Booth, III, erred in (1)
determining his residual functional capacity
(“RFC”), (2) evaluating the medial opinion
evidence, and (3) failing properly consider a previous
disability finding. Both Hair and Defendant Nancy A.
Berryhill, Acting Commissioner of Social Security, have filed
motions seeking a judgment on the pleadings in their favor.
D.E. 21, 24.
reviewing the parties' arguments, the court has
determined that ALJ Booth reached the appropriate
determination. ALJ Booth properly determined Hair's RFC
and, in doing so, considered all his exertional and
non-exertional impairments. And substantial evidence supports
ALJ Booth's consideration of both the medical opinion
evidence and the prior disability determination, and the
weight he given to this evidence. Therefore, the undersigned
magistrate judge recommends that the court deny Hair's
motion, grant the Commissioner's motion, and affirm the
2014, Hair filed applications for disability insurance
benefits and supplemental security income. In both
applications, Hair alleged a disability that began in
February 2012. After his claims were denied at the
initial level and upon reconsideration, Hair appeared before
ALJ Booth for a hearing to determine whether he was entitled
to benefits. ALJ Booth determined Hair was not entitled to
benefits because he was not disabled. Tr. at 11-22.
Booth found that Hair had severe impairments of status-post
anterior cervical discectomy and fusion, degenerative joint
disease of the left knee, and degenerative disc disease. Tr.
at 13. ALJ Booth also found that Hair's impairments,
either alone or in combination, did not meet or equal a
Listing impairment. Tr. at 15.
Booth then determined that Hair had the RFC to perform light
work with additional limitations. Id. Hair must be
able to alternate to stand for one hour after an hour of
sitting, and sit for one hour after an hour of standing or 30
minutes of walking. Tr. at 15, 70. He can frequently reach
overhead bilaterally in all directions. Tr. at 15.
can frequently climb ramps, stairs, ladders, ropes, and
scaffolds, and frequently use stepladders that are no more
than four feet high. Id. But he cannot climb ladders
above that height or ropes and scaffolds of any height.
Id. Hair can frequently stoop and kneel, and
he can occasionally balance and crawl. Id.
can have frequent exposure to unprotected heights, moving
mechanical parts, and he can operate a motor vehicle.
Id. He can have frequent exposure to dust, odors,
fumes, and pulmonary irritants. Id. Hair may have
occasional exposure to vibration, and he may be exposed to
loud noise levels. Id.
limited to non-production rate pace work (e.g., no assembly
line work or work with production-based performance quotas).
Id. And his time off-task can be accommodated by
normal breaks. Tr. at 15-16. Finally, Hair is limited to only
frequent changes in the work-setting and the manner and
method of performing the assigned work. Tr. at 16.
Booth concluded that Hair could not perform his past relevant
work as a truck driver. Tr. at 20. But ALJ Booth determined
that, considering his age, education, work experience, and
RFC, there were other jobs existing in significant numbers in
the national economy that Hair could perform. Tr. at 21.
These include garment sorter, ticket taker, and routing
clerk. Id. Thus, ALJ Booth found that Hair was not
disabled. Tr. at 21-22.
unsuccessfully seeking review by the Appeals Council, Hair
began this action in March 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. 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).
has a history of back and lower extremity impairments. These
problems began after a boating accident and an injury
sustained while driving a truck. Tr. at 84.
2014, Hair received treatment at Betsy Johnson Regional
Hospital and Benson Area Medical Center for his back pain.
Tr. at 17. Providers assessed radiculopathy and prescribed
him medications. Id. Hair sought follow-up care for
low back pain that radiated into his left buttock.
Id. Hair had a decreased range of motion, for which
providers prescribed medication and directed him to use
heating pads. Id.
2014, Dr. Alan Cohen performed a consultative examination.
Id. Dr. Cohen observed no muscle tenderness or
atrophy, and Hair could sit, stand, and walk. Id.
Hair could not squat and he displayed a partial left foot
drop, but he had a steady gait. Id. Although Hair
could pinch, grasp, and manipulate objects, he could not
reach his arms overhead. Id. An examination also
showed decreased range of motion in the spine and left ankle
as well as a mildly positive straight leg raise from a supine
Cohen assessed degenerative disease of the cervical spine
with a chronic but stable lumbosacral strain as well as
stable impingement of the left shoulder. Id. Dr.
Cohen opined that Hair could walk a block at a reasonable
pace and climb a few steps at a reasonable pace with a
handrail. Id. He concluded that Hair had limited use
of his upper extremity for carrying objects and he was
moderately impaired in his his stamina as well as his ability
to move about and lift. Id.
Theresa Miche,  Hair's primary care provider, issued a
Medical Source Statement in August 2015. Tr. at 18. Her
diagnoses included chronic low back pain, neuropathy, gait
disturbance, and depression. Id. Dr. Miche noted
that Hair walked with a limp, had decreased range of motion,
and displayed diminished strength. Id. Dr. Miche
opined that Hair could sit, stand, and walk for less than two
hours in an eight-hour workday, would be off-task for 25% of
the day, and would miss four or more days of work per month.
Id. She also concluded that Hair was incapable of
even low-stress jobs. Id.
January 2016, Hair underwent surgery. Id. Providers
performed a C5-6 anterior cervical discectomy and fusion.
Id. Records from a follow-up visit the next month
noted that Hair's radiculopathy had ...