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Hair v. Berryhill

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

February 13, 2019

Harvey Hair, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner, Defendant.

          MEMORANDUM & RECOMMENDATION

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         After 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 Commissioner's determination.[1]

         I. Background

         In May 2014, Hair filed applications for disability insurance benefits and supplemental security income. In both applications, Hair alleged a disability that began in February 2012.[2] 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.

         ALJ 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.

         ALJ 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.

         Hair 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.[3] Hair can frequently stoop and kneel, and he can occasionally balance and crawl. Id.

         Hair 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.

         Hair is 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.

         ALJ 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.

         After unsuccessfully seeking review by the Appeals Council, Hair began this action in March 2018. D.E. 5.

         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

         Hair 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.[4]

         In 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.

         In July 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 position. Id.

         Dr. 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.

         Dr. Theresa Miche, [5] 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.

         In 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 ...


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