Douglas v. Astrue

Filing 21

ORDER denying 14 Plaintiff's Motion for Judgment on the Pleadings and granting 18 Defendant's Motion for Judgment on the Pleadings. Signed by Chief Judge James C. Dever III on 810/2012. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

NORTHERN DIVISION

No.2:11-CV-37-D

DARRELL R. DOUGLAS,
Plaintiff,

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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ORDER

On July 20, 2011, Darrell R. Douglas ("Douglas" or "plaintiff") filed a complaint under 42
U.S.C. § 405(g) seeking review of Michael J. Astrue's ("Commissioner" or "defendant") denial of
his applications for disability insurance benefits and supplemental security income ("benefits") [D.E.
1]. On January 12,2012, Douglas filed a motion for judgment on the pleadings [D.E. 14] and a
supporting memorandum [D.E. 15]. On April 11, 2012, the Commissioner filed a motion for
judgment on the pleadings [D.E. 18] and a supporting memorandum [D.E. 19]. As explained below,
the court grants the Commissioner's motion for judgment on the pleadings, denies Douglas's motion
for judgment on the pleadings, and affirms the Commissioner's final decision.

I.
The Social Security 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
ofnot less than 12 months ...." 42 U.S.C. § 423(d)(1)(A); see Pass v. Chater, 65 F.3d 1200, 1203
(4th Cit. 1995). AnALJ must follow a five-step process to determine whether a claimant is disabled.

An ALJ must consider whether a claimant (1) is engaged in substantial gainful employment, (2) has
a severe impairment, (3) has an impairment that meets or equals the requirements of a listed
impairment, (4) possesses the residual functional capacity ("RFC") to return to his past relevant
work, and (5) if not, whether he can perform other work in light of his age, education, work
experience, and RFC. See 20 C.F.R. §§ 404.1520(a)(4), 4l6.920(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,~,

Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Pass, 65 F.3d at 1203.

Douglas applied for benefits on July 18, 2008, and on July 24, 2008, alleging that he became
disabled on April 1, 2008, due to lower back pain, high blood pressure, and acid reflux. Tr. [D.E.
11] 91-95, 110-20. His applications were denied initially and upon reconsideration, and Douglas
timely requested a hearing. Id.44-60. On November 18, 2010, an Administrative Law Judge

("ALJ'') held a hearing on Douglas'S applications. Id. 61-74, 450-77. On December 9, 2010, the
ALJ issued a decision denying Douglas's applications. Id.25-35. On December 14, 2010, Douglas
timely requested review. Id. 12-13. On May 23, 2011, the Appeals Council denied Douglas's
request for review. Id.4-6.
The ALJ followed the five-step process in Douglas's case. At step one, the ALJ found that
Douglas had not engaged in substantial gainful activity since April 1, 2008. Id.30. At step two, the

ALJ found that Douglas suffered from severe medically determinable impairments, including
asthma, hypertension, lower back pain, and gastroesophegeal reflux disease. Id. 30. At step three,
the ALJ found that Douglas's impairments did not meet or medically equal a listed impairment. Id.
30. The ALJ next determined that Douglas had the RFC to perform light/unskilled work, except that
he could not work around fumes, dust, smoke, or extreme temperatures. Id. 31-33. In light of
Douglas's RFC, the ALJ found at step four that Douglas could not perform any past relevant work.

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Id. 33. At step five, the ALJ found that there was a significant number of jobs in the national
economy that Douglas could perform, including the jobs of print screen assembler, nut and bolt
assembler, and returned good sorter. Id. 34. Accordingly, the ALJ found that Douglas was not
disabled during the relevant period and was thus not entitled to benefits. Id.35.
In a section 405(g) action, the court "must uphold the factual findings of the [ALl] if they

are supported by substantial evidence and were reached through application of the correct legal
standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see 42 U.S.C. § 405(g). "Substantial
evidence" is ''more than a mere scintilla of evidence but may be somewhat less than a
preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966), abrogated by implication
on other grounds by Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003). The court may
not ''undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its]
judgment for that of the [ALJ]." Craig. 76 F.3d at 589. To determine whether a decision is
supported by substantial evidence, the court must determine 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
ofan administrative decision is impossible without an adequate explanation ofthat decision by the
administrator." DeLoatche v. Heckler, 715 F.2d 148, 150 (4th Cir. 1983).
In support of his motion for judgment on the pleadings, Douglas first contends that the ALl

failed to sufficiently assess Douglas's asthma. See Pl.'s Mem. Supp. Mot. J. Pleadings [D.E. 15]
3-5. Specifically, Douglas argues that, because the ALl found at step two that Douglas'S asthma
was a severe impairment, the ALJ erred by not discussing the severity of Douglas's asthma at
subsequent stages. See id. Douglas claims that the ALl failed to discuss whether Douglas's asthma
met a listing and failed to assess his asthma in determining Douglas's RFC.

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See id. The

Commissioner responds that the ALJ did consider Douglas's asthma at steps three, four, and five.
See Def.'s Mem. Supp. Mot. J. Pleadings [D.E. 19] 10-11. The Commissioner notes that the ALJ
found that Douglas's impairments did not meet or equal a listing, that Douglas does not contend that
his asthma was of listing-level severity, that the ALJ did take Douglas's asthma into account by
limiting Douglas's RFC to avoid exposure to environmental factors, that the ALJ appropriately
included Douglas's asthma in a hypothetical question posed to a vocational expert ("VE") at the
hearing, and that the ALJ relied on the VE's testimony to conclude that there were jobs in significant
numbers in the national economy that Douglas could perform. See id.
The court agrees with the Commissioner. The ALJ sufficiently considered Douglas's asthma
at steps three, four, and five. See Tr. 31-35. At step three, the ALJ found that Douglas did not have
an impairment or combination of impairments which met or medically equaled a listing. Tr. 30.
Although at step three the ALJ did not specifically discuss Douglas's asthma or listing 3.03, Douglas
does not argue and there is little evidence suggesting that Douglas's asthma was sufficiently severe
to meet or medically equal listing 3.03. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 3.03. 1 "The ALJ

1 Listing

3.03 provides:

3.03 Asthma. With:
A. Chronic asthmatic bronchitis. Evaluate under the criteria for chronic
obstructive pulmonary disease in 3.02A;

Or
B. Attacks (as defined in 3.00C), in spite of prescribed treatment and
requiring physician intervention, occurring at least once every 2 months or at least
six times a year. Each in-patient hospitalization for longer than 24 hours for control
of asthma counts as two attacks, and an evaluation period of at least 12 consecutive
months must be used to determine the frequency of attacks.
20 C.F.R. pt. 404, subpt. P, app. 1, § 3.03.
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is only required to explicitly identify and discuss the relevant listing ofimpainnents ifthere is ample
evidence in the record to support the determination that the impainnent meets or is medically
equivalent to one of the listed impainnents." Kelly v. Astrue, No. 5:08-CV-289-FL, 2009 WL
1346241, at *14 (B.D.N.C. May 12, 2009) (unpublished) (quotation omitted). Accordingly, the AU
sufficiently considered Douglas's asthma at step three.
At step four, the ALJ found that Douglas retained the RFC to perform "light/unskilled work,
with no work around fumes, dust, smoke, and extreme temperatures." Tr. 31. In so finding, the AU
summarized Douglas's testimony regarding his asthma as follows:
In regard to his asthma he stated that the uses an inhaler 3-4 times per day. Wheezing
is a problem that comes on 4-5 times a week. He also uses a different inhaler once
[every] night and the breathing causes him to have attacks during the night and he
loses sleep. This makes him tired the next morning.
Id. Although the ALJ did not specifically note Douglas's asthma in determining Douglas's RFC,
the AU did discuss Douglas's testimony about his asthma and the record does not suggest that
Douglas had any other condition which might have caused the ALJ to impose environmental
limitations on Douglas's RFC. Therefore, the ALJ appropriately took Douglas's asthma into account
in determining Douglas's RFC.

See,~,

Fox v. Astrue, No. 6:09-cv-06060, 2010 WL 2035602,

at *5 (W.D. Ark. May 20, 2010) (unpublished). Thus, the ALJ sufficiently considered Douglas's
asthma at step four.
At step five, the ALJ found that Douglas was able to perform jobs that exist in significant
numbers in the national economy. Tr. 34. In making this finding, the AU relied on the testimony
of aVE. Id. To solicit the VE's opinion, the ALJ asked the VE,
I'd ask you to assume due to asthma, which is documented in the record, that he
would be precluded from working in environments with respiratory irritants such as:
[d]ust, fumes and smoke at a significant level. And furthermore, that due to asthma,

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he would not be able to work full time outdoors or in temperature extremes. And,
lastly, I'd ask you to assume that he is restricted to unskilled work.
Id. 473. This hypothetical question appropriately took into account Douglas's asthma. Accordingly,
the ALJ sufficiently considered Douglas's asthma at step five. In sum, the ALJ appropriately
assessed Douglas's asthma at steps three, four, and five. Thus, the court rejects Douglas's first
challenge to the Commissioner's final decision.
Next, Douglas contends that the AU found an RFC for light work on legally insufficient
grounds. See PI. 's Mem. Supp. Mot. J. Pleadings 5-6. Douglas argues that the ALJ based his RFC
assessment solely on reports prepared by two non-examining state agency consultants, neither of
which adequately considered Douglas's asthma. See id. Douglas notes that one report omits
Douglas's asthma entirely and that the other report includes only a single, brief reference to
Douglas's asthma. See id.; see also Tr. 356--63,413-20. The Commissioner responds that the ALJ
did not rely solely on these reports in assessing Douglas's RFC and that the second report sufficiently
addresses Douglas's asthma. See Def.'s Mem. Supp. Mot. J. Pleadings 11-13.
The court agrees with the Commissioner. The ALJ sufficiently considered Douglas's asthma
in finding that he retained the RFC for light/unskilled work with asthma-related limitations. See Tr.
31-33. In assessing Douglas'S RFC, the ALJ considered reports of consultative examinations
performed on January 2, 2009, by Dr. Jonas Horwitz and January 5, 2009, by Dr. Juan Alva,
respectively, id. 341-46, 349-55, state agency medical consultant reports prepared on February 13,
2009, by Dr. Alan B. Cohen and November 12,2009, by Dr. Lillian Home, respectively, id. 356--63,
413-20, and amedical source statement prepared on November 12,2010, by Douglas's primary care
physician, Dr. Raven Deloatch, id. 422-27. See id. 31-33. The ALJ also reviewed the records of
several routine examinations that Dr. Deloatch performed. Id. 33. Thus, contrary to Douglas's

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argument, the ALJ did not determine Douglas's RFC based solely on two reports. Moreover,
substantial evidence supports the ALJ's assessment ofDouglas's RFC. For example, the records of
Douglas's visits to Dr. Deloatch during 2009 and 2010 note Douglas's asthma (id. 406-11, 428-49),
and the ALJ considered these records. Id. 33. Moreover, Douglas cites no other evidence that
supports the conclusion that asthma rendered him disabled. As for the evidence that he cites, the
court may not "undertake to re-weigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the [ALJ]." Craig, 76 F.3d at 589. Furthermore, although Dr.
Cohen's February 13, 2009 report does not mention Douglas's asthma and Dr. Home's November
12, 2009 report does not discuss Douglas's asthma at length, these facts are not surprising given that
Douglas's initial complaints were not related to asthma. Notably, Douglas did not mention asthma
in his original applications. Tr. 114. Rather, on April 20, 2009, Douglas supplemented his
applications to allege that he had trouble breathing. See id. 160-70. Thus, the consultative
physicians justifiably focused their opinions on Douglas's previously-claimed impairments, given
that information about these impairments comprised most of the record when the physicians
prepared their reports. Additionally, the record suggests that Douglas did not stop working because
of any physical limitation but due to his employer's death. See id. 114; see also id. 33. The
regulations make clear that, if an individual is otherwise able to work, the individual's inability to
obtain work does not render him disabled. See 20 C.F.R. §§ 404.1566(c), 416.966(c).

In sum, the ALJ's determination that Douglas retained the RFC to perform light/unskilled
work with asthma-related limitations is supported by substantial evidence. Thus, the court rejects
Douglas's second challenge to the Commissioner's final decision.
Finally, Douglas contends that the ALJ erroneously failed to conduct a function-by-function
analysis under Social Security Ruling ("SSR") 96-8p. See PI.' s Mem. Supp. Mot. 1. Pleadings 6-7.
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Specifically, Douglas argues that the AU "did not assess Douglas's ability to carry, walk, stand,
bend, stoop, etc." Id. 7 (emphasis omitted). The Commissioner responds that the ALl satisfied SSR
96-8p in assessing Douglas's RFC. See Def.'s Mem. Supp. Mot. 1. Pleadings 13-14.
The court agrees with the Commissioner. SSR 96-8p directs an ALl to consider a claimant's
ability to meet physical, mental and other requirements of work before the ALl expresses an RFC
in terms ofexertionallevels of work. See SSR 96-8p, 1996 WL 374184, at "'I (July 2,1996); 20
C.F.R. §§ 404. 1545(b}-{d). The regulations provide that,
[l]ight work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying ofobjects weighing up to 10 pounds. Even though the weight lifted may
be very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most ofthe time with some pushing and pulling
of arm or leg controls. To be considered capable ofperforming a full or wide range
of light work, you must have the ability to do substantially all of these activities.
20 C.F.R. §§ 404. 1567(b), 416.967(b).
Douglas's argument is puzzling. A function-by-function analysis would consider only
Douglas's impainnents other than asthma. Douglas apparently concedes that the ALl's finding that
these impainnents did not render Douglas disabled was correct. See Pl.'s Mem. Supp. Mot. 1.
Pleadings 5. Nonetheless, the ALl gave some weight to the opinions oftwo consultative physicians
who each performed a function-by-function analysis. See Tr. 32-33; see also id. 356--63,413-20.
To the extent that these consultative physicians' conclusions were different from the conclusion of
Douglas's treating physician, the AU appropriately discredited the opinion of Douglas's treating
physician, finding that it was "not supported by the doctor's treatment records or by the bulk ofthe
objective medical evidence ofrecord as a whole." Id. 33; see id. 421-27. Moreover, in finding that
Douglas retained the RFC to perform light/unskilled work with asthma-related limitations, the ALl
appropriately considered Douglas's ability to meet physical, mental and other requirements ofwork

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before expressing an RFC in terms ofan exertionallevel ofwork, as required by SSR 96-8p. To the
extent that the ALJ did not explicitly mention each function, he was not required to do so. See, e.g.,
Manring v. Barnhart, No. 2:05CY00058, 2007 WL 201081, at *4-5 (W.D. Ya. Jan. 25, 2007)
(unpublished). Accordingly, the ALJ appropriately determined that Douglas retained the RFC to
perform light/unskilled work with asthma-related limitations and did not err by failing to conduct
a function-by-function analysis.

Thus, the court rejects Douglas's third challenge to the

Commissioner's final decision.

n.
Accordingly, the Commissioner's motion for judgment on the pleadings [D.E. 18] is
GRANTED, Douglas's motion for judgment on the pleadings [D.E. 14] is DENIED, and the
Commissioner's final decision is AFFIRMED.
SO ORDERED. This --1tL day of August 2012.

Chief United States District Judge

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