United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
B. JONES, JR. UNITED STATES MAGISTRATE
matter is before the court on the parties' cross-motions
for judgment on the pleadings [DE-20, -22] pursuant to
Fed.R.Civ.P. 12(c). Claimant DeeDee Kay Hayes
("Claimant") filed this action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial
review of the denial of her applications for a period of
disability and Disability Insurance Benefits
("DIB"). The time for filing responsive briefs has
expired, and the pending motions are ripe for adjudication.
Having carefully reviewed the administrative record and the
motions and memoranda submitted by the parties, it is
recommended that Claimant's Motion for Judgment on the
Pleadings be denied, Defendant's Motion for Judgment on
the Pleadings be allowed, and the final decision of the
Commissioner be upheld.
STATEMENT OF THE CASE
protectively filed applications for a period of disability,
DIB, and SSI on September 7, 2014, alleging disability
beginning October 19, 2013. (R. 18, 203-19). Her application
for SSI was denied initially for excess resources, and
Claimant did not appeal that decision. (R. 101-08, 113). Her
claims for a period of disability and DIB were denied
initially and upon reconsideration. (R. 18, 68-100, 109-12,
114-18). A hearing before the Administrative Law Judge
("ALJ") was held on August 29, 2017, at which
Claimant, represented by a non-attorney representative, and a
vocational expert ("VE") appeared and testified.
(R. 18, 36-59). On October 18, 2017, the ALJ issued a
decision denying Claimant's request for benefits. (R. 15-
35). Claimant then requested a review of the ALJ's
decision by the Appeals Council (R. 201-02), and she
submitted additional evidence as part of her request (R. 2).
The Appeals Council determined that the additional evidence
did not relate to the period at issue, and therefore it did
not affect the decision. Id. The Appeals Council
denied Claimant's request for review on June 8, 2018. (R.
1-7). Claimant then filed a complaint in this court seeking
review of the now-final administrative decision.
STANDARD OF REVIEW
scope of judicial review of a final agency decision regarding
disability benefits under the Social Security Act
("Act"), 42 U.S.C. § 301 et seq., is
limited to determining whether substantial evidence supports
the Commissioner's factual findings and whether the
decision was reached through the application of the correct
legal standards. See Coffman v. Bowen, 829 F.2d 514,
517 (4th Cir. 1987). "The findings of the Commissioner
... as to any fact, if supported by substantial"
evidence, shall be conclusive . . . ." 42 U.S.C. §
405(g). Substantial evidence is "evidence which a
reasoning mind would accept as sufficient to support a
particular conclusion." Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966). While substantial evidence is
not a "large or considerable amount of evidence,"
Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is
"more than a mere scintilla . . . and somewhat less than
a preponderance." Laws, 368 F.2d at 642.
"In reviewing for substantial evidence, [the court
should not] undertake to re-weigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the [Commissioner]." Mastro v. Apfel,
270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded
by regulation on other grounds, 20 C.F.R. §
416.927(d)(2)). Rather, in conducting the "substantial
evidence" inquiry, the court's review is limited to
whether the ALJ analyzed the relevant evidence and
sufficiently explained his or her findings and rationale in
crediting the evidence. Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
DISABILITY EVALUATION PROCESS
disability determination is based on a five-step sequential
evaluation process as set forth in 20 C.F.R. § 404.1520
under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in “substantial
gainful activity," i.e., currently working; and (2) must
have a "severe" impairment that (3) meets or
exceeds [in severity] the "listings" of specified
impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional
capacity to (4) perform ... past work or (5) any other work.
Albright v. Comm'r of the SSA, 174 F.3d 473, 475
n.2 (4th Cir. 1999). "If an applicant's claim fails
at any step of the process, the ALJ need not advance to the
subsequent steps." Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995) (citation omitted). The burden of
proof and production during the first four steps of the
inquiry rests on the claimant. Id. At the fifth
step, the burden shifts to the ALJ to show that other work
exists in the national economy which the claimant can
assessing the severity of mental impairments, the ALJ must do
so in accordance with the "special technique"
described in 20 C.F.R. § 404.1520a(b)-(c). This
regulatory scheme identifies four broad functional areas in
which the ALJ rates the degree of functional limitation
resulting from a claimant's mental impairments):
understanding, remembering, or applying information;
interacting with others; concentrating, persisting, or
maintaining pace; and adapting or managing oneself.
Id. § 404.1520a(c)(3). The ALJ is required to
incorporate into his written decision pertinent findings and
conclusions based on the "special technique."
Id. § 404.1520a(e)(3).
case, Claimant alleges the following errors: (1) the ALJ
failed to find that Claimant's impairment meets Listing
12.02, and (2) the ALJ failed to assist Claimant, who was
represented by a non-attorney representative at the hearing,
in the development of the record. Pl.'s Mem. [DE-21] at
the above-described sequential evaluation process, the ALJ
found Claimant "not disabled" as defined in the
Act. At step one, the ALJ found Claimant had not engaged in
substantial gainful employment from October 19, 2013, the
alleged onset date, to March 31, 2014, her date last insured.
(R. 20). Next, the ALJ determined Claimant had the following
severe impairments: post concussive syndrome, history of
recurrent colitis, degenerative disc disease, and
posttraumatic stress disorder ("PTSD")/adjustment
disorder. Id. The ALJ also found that Claimant's
fibromyalgia was not a medically determinable impairment.
Id. At step three, the ALJ concluded these
impairments were not severe enough, either individually or in
combination, to meet or medically equal one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R.
21-23). Applying the technique prescribed by the regulations,
the ALJ found that Claimant's mental impairments have
resulted in a mild limitation in understanding, remembering,
or applying information; a moderate limitation in interacting
with others; a moderate limitation in concentrating,
persisting, or maintaining pace; and no limitation in
adapting or managing herself. (R. 21-22).
to proceeding to step four, the ALJ assessed Claimant's
RFC, finding Claimant had the ability to perform light
except that she can never climb ladders, ropes, or scaffolds;
have no concentrated exposure to bright lights, loud noises,
or extreme heat; have no exposure to unprotected heights and
moving mechanical parts; perform and sustain simple, routine,
and repetitive tasks, but not at a production rate pace; have
no requirement for math computations; and have occasional
superficial contact with supervisors, co-workers, and the
general public. (R. 23-28). In making this assessment, the
ALJ found Claimant's statements about the intensity,
persistence, and limiting effects of her symptoms were not
entirely consistent with the medical and other evidence. (R.
four, the ALJ concluded Claimant did not have the RFC to
perform the requirements of her past relevant work as a
retail store owner and store manager. (R. 28). Nonetheless,
at step five, upon considering Claimant's age, education,
work experience, and RFC, the ALJ determined Claimant was
capable of adjusting to the demands of other employment
opportunities that exist in significant numbers in the
national economy through the date last insured. (R. 28-29).
The ALJ did not err in discussing Listing 12.02.
contends the ALJ improperly evaluated whether her impairment
met Listing 12.02 because the ALJ found that her 2014 IQ
scores were invalid. Pl.'s Mem. [DE-21] at 6-9. The court
determining whether a listing is met or equaled, an ALJ must
consider all evidence in the case record about the
claimant's impairments and their effects on the claimant.
20 C.F.R. § 404.1526(c). Where a claimant has a severe
impairment and the record contains evidence that symptoms
related to the impairment "correspond to some or all of
the requirements of a listing," it is incumbent upon the
ALJ to identify the listing and to compare the claimant's
symptoms to each of the listing's requirements. See
Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986).
While it may not always be necessary for the ALJ to perform a
"step-by-step" analysis of the listing's
criteria, the ALJ must evaluate the claimant's symptoms
in light of the specified medical criteria and explain his
rationale. Williams v. Astrue, No. 5:11-CV-409-D,
2012 WL 4321390 (E.D. N.C. Sept. 20, 2012). An ALJ's
failure to compare a claimant's symptoms to the relevant
listings or to explain, other than in a summary or conclusory
fashion, why the claimant's impairments do not meet or
equal a listing "makes it impossible for a reviewing
court to evaluate whether substantial evidence supports the
ALJ's findings." Radford v. Colvin, 734
F.3d 288, 295 (4th Cir. 2013); see also Cook, 783
F.2d at 1173.
order to meet Listing 12.02, a claimant must show a
neurocognitive disorder satisfied by:
A. Medical documentation of a significant cognitive decline
from a prior level of functioning in one or more of ...