Kelly v. Social Security Administration
Filing
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ORDER denying 32 Motion for Judgment on the Pleadings and granting 39 Motion for Judgment on the Pleadings; denying as moot 38 Motion to Continue and 41 Motion to Continue. Signed by US District Judge Terrence W. Boyle on 2/23/2018. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:17-CV-6-BO
AMIEE KELLY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner ofSocial Security,
Defendant.
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ORDER
This cause comes before the Court on cross-motions for judgment on the pleadings. The
matters have been fully briefed and are ripe for ruling.
For the reasons discussed below, the
decision of the Commissioner is affirmed.
BACKGROUND
Plaintiff1 brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the
final decision of the Commissioner denying her claim for disability and disability insurance
benefits (DIB) pursuant to Title II of the Social Security Act. Plaintiff applied for DIB on May·
29, 2012, alleging disability since August 4, 2010. After initial denials, a video hearing was held
before an Administrative Law Judge (ALJ) who issued an unfavorable ruling. The decision of the
ALJ became the final decision of the Commissioner when the Appeals Council denied plaintiffs
request for review. Plaintiff then timely sought review of the Commissioner's decision in the
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United States District Court for the Eastern District of Pennsylvania.
Plaintiffs claim was
transferred to this Court by order entered January 30, 2017.
1 Plaintiff filed
this action pro se, but an attorney has appeared on her behalf and filed the instant
motion for judgment on the pleadings.
DISCUSSION
Under the Social Security Act, 42 U.S.C. §§ 405(g), and 1383(c)(3), this Court's review of
the Commissioner's decision is limited to determining whether the decision, as a whole, is
supported by substantial evidence and whether the Commissioner employed the correct legal
standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant
evidence as 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 and citation omitted).
An individual is considered disabled if he is unable "to engage in any substantial gainful
activity by reason of any medically determ.inable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for
acontinuous period
of not less than [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual "shall be determined t? be under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do liis previous work but cannot,
considering his age, education, and work experience, engage in any other line of substantial gainful
work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation process
to be followed in a disability case. 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 Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision regarding disability
can be made at any step of the process the inquiry ceases. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).
At step one, if the Social Security Administration determines that the claimant is currently
engaged in substantial gainful activity, the claim is denied. If not, then step two asks whether the
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claimant has a severe impairment or combination of impairments. If the claimant has a severe
impairment, it is compared at step three to those in the Listing of Impairments ("Listing") in 20
C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or medically equals a Listing,
disability is conclusively presumed. If not, at step four, the claimant's residual functional capacity
(RFC) is assessed to determine if the claimant can perform his past relevant work. If so, the claim
is denied.
If the claimant cannot perform past relevant work, then the burden shifts to the
Commissioner at step five to show that the claimant, based on his age, education, work experience,
and RFC, can perform other substantial gainful work. If the claimant cannot perform other work,
then he is found to be disabled. See 20 C.F.R. § 416.920(a)(4).
At step one, the ALJ determined that plaintiff had not engaged in substantial gainful
activity during the period from her alleged onset date through her date last insured. Plaintiffs
degenerative disc disease of the cervical and lumbar spine were considered severe at step two but
were not found alone or in combination to meet or equal a Listing at step three. At step four, the
ALJ concluded that plaintiff had the RFC to perform sedentary work with limitations. The ALJ
found that plaintiff could no longer perform her past relevant work as a dental assistant, dental
hygienist, bridal consultant, or store manager. At step five, the ALJ found that, considering
plaintiffs age, education, work experience, and RFC, jobs existed in significant numbers in the
national economy which plaintiff could perform, including receptionist/clerk, office clerk, and
inspector. Thus, the ALJ concluded that plaintiff was not disabled as of the date of her decision.
In this appeal, plaintiff contends that the ALJ improperly discounted plaintiffs subjective
statements about her pain, failed to conduct an analysis of Listings 1.04 and 11.14, improperly
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discounted Dr. McAuley's opinion, and failed to properly analyze step five. The Court considers
each argument in turn.
I.
Credibility determination.
The ALJ makes an RFC assessment based on all of the relevant medical and other evidence.
20 C.F.R. § 404.1545(a)(3). The
ALJ follows a two-step analysis when considering a claimant's subjective
statements about impairments and symptoms. First, the ALJ looks for objective
medical evidence showing a condition that could reasonably produce the alleged
symptoms. Second, the ALJ must evaluate the intensity, persistence, and limiting
effects of the claimant's symptoms to determine the extent to which they limit the
claimant's ability to perform basic work activities. The second determination
requires the ALJ to assess the credibility of the claimant's statements about
symptoms and their functional effects.
Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017) (internal citations omitted). Plaintiff
contends that the ALJ erred when she determined that plaintiffs statements regarding the intensity,
persistence, and limiting effects of her symptoms were not entirely credible. The Court finds that
substantial evidence supports the ALJ' s determination.
While plaintiff correctly argues that once an impairment that is reasonably likely to cause
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pain has been demonstrated, a claimant is entitled to "rely exclusively on subjective evidence" to
demonstrate that his pain is "so continuous and/or so severe that it prevents [him] from working a
full eight hour day." Hines v. Barnhart, 453 F.3d 559, 564 (4th Cir. 2006). However, an ALJ
must also consider any conflicts between a claimant's statements and the rest of the evidence when
determining how much credit to assign a claimant's subjective statements.
20 C.F.R. §
404.1529(c)(4). Here, the ALJ considered the MRis in the record, taken both before and after
plaintiffs motor vehicle accident, which showed no evidence of acute traumatic injury to the spine,
no spinal cord compression or foraminal stenosis, no significant arthritic changes, and no evidence
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of_ nerve root impingement or significant degenerative changes. Tr. 434-5, 562. However, plaintiff
testified that, for example, she experiences extreme numbness which results in dropping things
and her husband testified that plaintiff needs assistance with personal care such as bathing and
dressing. Tr. 64-66. In light of the objective MRI evidence which demonstrated no significant
objective findings, substantial evidence supports the ALJ's determination that the severity of pain
and impairment alleged by plaintiff was not entirely credible.
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Listings arguments.
Plaintiff contends that the ALJ erred in failing to consider Listings 11.14 and 1.04. The
ALJ expressly considered whether plaintiff met the criteria for Listing 1.04 and properly
determined that she does not as plaintiffs MRis did not reveal nerve root compression, spinal
arachnoiditis, or spinal stenosis resulting in pseudoclaudication. The opinion of Dr. McAuley, a
primary care physician who opined that plaintiffs pain was caused by nerve root inflammation,
Tr. 549, does not alter the analysis in the face of the radiological findings. As to the ALJ's failure
to consider Listing 11.04, any error in doing so was harmless as the record does not demonstrate
that plaintiff has suffered a traumatic brain injury or other qualifying neurological event or
condition, and thus could not satisfy the Listing criteria. See Tr. 418;. 20 C.F.R. Part 404, Subpart
P, App'x. 1, § 11.14 (addressing neurological disorders and requiring, inter alia, "significant and
persistent" disorganization of motor function in two extremities, resulting in sustained disturbance
of gross and dexterous movements or gait and station).
III.
Treating physician opinion.
Dr. McAuley, plaintiffs primary care physician, offered a narrative opinion regarding
plaintiffs conditions and limitations. Tr. 548-551. Treating source opinions are entitled to
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controlling weight if they are "well supported by medically acceptable clinical and laboratory
diagnostic techniques and [are] not inconsistent with the other substantial evidence in [the] case
record." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Substantial evidence supports the ALJ's
decision to afford Dr. McAuley's opinion little weight as it was unsupported by both the objective
medical record and Dr. McAuley's own treatment records. For example, as noted above, Dr.
McAuley's opinion that plaintiffs pain was caused by nerve root inflammation is not supported
by the MRis. Dr. McAuley's treatment notes also indicated negative Spurling's tests, which tests
for cervical radiculopathy, on several occasions. See Williams v. Colvin, No. 3:13CVL73-HEH,
2014 WL 1248031, at *3 (E.D. Va. Mar. 25, 2014) (citing Dorland's Illustrated Medical Dictionary
1900 (32d ed.2012)).
IV.
Step five analysis.
Plaintiff argues that the ALJ failed to fully develop the record before reaching her RFC
determination, failed to resolve conflicts between the testimony of the vocational expert (VE) and
the Dictionary of Occupational Titles (DOT), failed to include all of plaintiffs impairments in the
hypotheticals presented to the VE, and failed to conduct a function by function analysis. The Court
finds no error in the ALJ' s step five analysis. As discussed above, substantial evidence supports
the RFC finding and the hearing transcript reveals that the ALJ and the VE had a detailed
discussion about the hypotheticals presented and the bases for the VE's opinions. Tr. 91-95. The
ALJ's colloquy with the VE satisfies Pearson v. Colvin, 801 F.3d 204, 209-10 (4th Cir. 2015),
which requires that an ALJ receive an adequate explanation from the VE as to how any conflict
has been resolved if the VE's testimony is in conflict with the DOT. Plaintiff contends that the
VE did not provide an explanation that established that the suggested occupations encompassed
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consideration of plaintiffs limitations, but as was noted by the VE at the hearing, the VE considers
the hypotheticals posited by the ALJ and not a claimant's limitations as presented at the hearing.
Tr. 97-98. Finally, the ALJ's decision comports with Mascio v. Colvin, 780 F.3d 632, 636 (4th
Cir. 2015), which requires that an ALJ conduct a function by function analysis before expressing
an RFC, but declines to adopt a per se rule that failing to do so requires remand. See also SSR 96Sp. Here, the ALJ fully addressed the record and testimonial evidence in arriving at the RFC
finding which was utilized at step five. The Court finds no error and no basis for remand under
Mascio.
CONCLUSION
Having conducted a full review of the record and decision in this matter, the Court finds
that the decision as a whole is supported by substantial evidence and that the correct legal standard
was applied. Accordingly, plaintiffs motion for judgment on the pleadings [DE 32] is DENIED
and defendant's motion for judgment on the pleadings [DE 39] is GRANTED. The decision of
the Commissioner is AFFIRMED. The motions to continue which remain pending [DE 38, 41]
are DENIED AS MOOT.
SO ORDERED, thisµ__ day of March, 2018.
T RRENCE W. BOYLE
UNITED STATES DISTRICT
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