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Burgin v. Berryhill

United States District Court, W.D. North Carolina, Charlotte Division

March 12, 2019

NANCY A. BERRYHILL, Commissioner of Social Security Administration, Defendant.


          Frank D. Whitney, Chief United States District Judge.

         THIS MATTER is before the Court on Plaintiff's Motion for Summary Judgment (Doc. No. 9); Defendant's Motion for Summary Judgment (Doc. No. 22); Plaintiff's Motion to Remand Pursuant to Rule 7(b), Federal Rules of Civil Procedure (“Motion to Remand”) (Doc. No. 14); and Plaintiff's Motion to Receive New and Material Evidence (Doc. No. 11). Plaintiff, through counsel, seeks judicial review of an unfavorable administrative decision on her application for Supplemental Social Security Income (“SSI”) under Title XVI of the Social Security Act.

         Having reviewed and considered the written arguments, administrative record, and applicable authority, for the reasons set forth below, Plaintiff's Motion for Summary Judgment is DENIED; Defendant's Motion for Summary Judgment is GRANTED; Plaintiff's Motion to Remand is DENIED; and Plaintiff's Motion to Receive New and Material Evidence is DENIED.

         I. BACKGROUND

         Plaintiff originally filed for SSI in 2004, although this application was denied at the initial level, and the determination was never appealed. (Tr. 13). Plaintiff again filed an application for SSI on February 26, 2014, claiming a disability onset of the same date. (Tr. 13, 32). The claim was denied on June 26, 2014, and upon reconsideration on October 30, 2014. (Tr. 83, 91). On November 14, 2016, Plaintiff testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 29). After a review of Plaintiff's medical history and testimony, on February 22, 2017, the ALJ denied Plaintiff's application for SSI, finding Plaintiff was not disabled under § 1614(a)(3)(A) of the Social Security Act. (Tr. 24).

         The ALJ found Plaintiff had not engaged in substantial gainful activity since the application date of February 26, 2014, and found Plaintiff to have the following severe impairments: “degenerative disc disease, chronic obstructive pulmonary disease (“COPD”), depressive disorder, anxiety disorder, and substance addition disorder . . . .” (Tr. 15). The ALJ further determined Plaintiff suffered from otitis media and otitis otalgia of the right ear and Bell's palsy, although these impairments were found to be “non-severe.” (Tr. 16). The ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 25). The ALJ then decided Plaintiff had the Residual Functional Capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. § 416.967(a). More specifically, the ALJ found:

The claimant can lift and carry, push and pull 10 pounds occasionally, and 10 pounds frequently. With normal breaks in an eight-hour day, she can sit for six hours, and stand and/or walk for two hours; can occasionally climb ladders, ropes and scaffolds; can occasionally stoop; can frequently climb ramps and stairs; and can tolerate occasional exposure to fumes, odors, dusts, gases, and poor ventilation. The claimant can understand, remember and perform simple, routine, repetitive tasks with a typically set routine; can concentrate and persist on those tasks, but not on higher level tasks, for at least two hours at a time; can acceptably relate to co-workers, supervisors on an occasional basis, but should not have direct contact with the public; and can adapt to occasional changes in routine.

(Tr. 17-18). In response to a hypothetical that factored in Plaintiff's age, education, work experience, and RFC, the vocational expert (“VE”) testified Plaintiff could perform the requirements of occupations such as “a tube operator (DOT 239.687-014) with 30, 000 jobs in the United States; escort vehicle driver (DOT 919.663-022) with 170, 000 jobs nationally; and addresser (DOT 209.587-010) with 29, 000 jobs nationally.” (Tr. 23). As a result, the ALJ concluded Plaintiff was not disabled as defined under the Social Security Act from June 18, 2008, through the date of the ALJ's decision. Id.

         The Appeals Council denied Plaintiff's request for review of the ALJ's decision. (Tr. 1). Having exhausted all administrative remedies, Plaintiff then sought judicial review of the ALJ's decision at this Court pursuant to 42 U.S.C. § 405(g). In three separate briefs, Plaintiff argues: (1) the ALJ “failed to properly assess the Plaintiff's vocational limitations” (Doc. No. 10, at 12); (2) the appointment of the ALJ to this case was invalid (Doc. No. 15, at 3); and (3) the Court should receive new evidence of a psychological evaluation by Dr. Reavis performed after the date of the ALJ decision (Doc. No. 11, at 1).


         When reviewing a Social Security disability determination, a reviewing court must “uphold the determination when an [ALJ] has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.” Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). Substantial evidence is that which “a reasonable mind might accept as adequate to support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation marks omitted). It “consists of more than a mere scintilla of evidence but may be less than a preponderance.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (citation omitted). In reviewing the record for substantial evidence, the Court does “not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the ALJ. Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the ALJ.” Id. (citation omitted).

         In considering an application for disability benefits, an ALJ uses a five-step sequential process to evaluate the disability claim. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Pursuant to this five-step process, the Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the severity of a listed impairment; (4) could return to his past relevant work; and (5) if not, could perform any other work in the national economy. Id.; see also Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017) (citing Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015)); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). The claimant bears the burden of proof at steps one through four, but the burden shifts to the Commissioner at step five. See Lewis, 858 F.3d at 861; Monroe v. Colvin, 826 F.3d 176, 179-80 (4th Cir. 2016).

         “If the claimant fails to demonstrate she has a disability that meets or medically equals a listed impairment at step three, the ALJ must assess the claimant's residual functional capacity (“RFC”) before proceeding to step four.” Lewis, 858 F.3d at 861. The RFC equates to “the most” the claimant “can still do despite” physical and mental limitations that affect her ability to work. Id. § 416.945(a)(1); § 404.1520(a)(4)(iv).

When assessing the claimant's RFC, the ALJ must examine “all of [the claimant's] medically determinable impairments of which [the ALJ is] aware, ” 20 C.F.R. §§ 404.1525(a)(2), 416.925(a)(2), “including those not labeled severe at step two.” Mascio, 780 F.3d at 635. In addition, he must “consider all [the claimant's] symptoms, including pain, and the extent to which [her] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, ” 20 C.F.R. §§ 404.1529(a), 416.929(a). “When the medical signs or laboratory findings show that [the claimant has] a medically determinable impairment(s) that could reasonably be expected to produce [her] symptoms, such as pain, [the ALJ] must then evaluate ...

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