Brunton v. Astrue

Filing 33

ORDER denying 26 Motion for Judgment on the Pleadings; granting 28 Motion for Judgment on the Pleadings; and adopting 30 Memorandum and Recommendation - Signed by District Judge Louise Wood Flanagan on 03/25/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:12-CV-127-FL
MYRA L. BRUNTON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter comes before the court on the parties’ cross motions for judgment on the
pleadings (DE 26, 28).1 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge William A. Webb issued a memorandum and recommendation
(“M&R”), wherein it is recommended that the court deny plaintiff’s motion, grant defendant’s
motion, and that the final decision by defendant be affirmed. Plaintiff timely filed an objection to
the M&R and the response time has expired. In this posture, the issues raised are ripe for ruling.
For the reasons that follow, the court adopts the recommendation of the magistrate judge.
BACKGROUND
Plaintiff filed an application for supplemental security income on January 14, 2009, alleging
disability beginning June 30, 2002. This application was denied initially and upon reconsideration.
A hearing was held on September 14, 2010, before an Administrative Law Judge (“ALJ”) who
determined that plaintiff was not disabled during the relevant time period in a decision dated October

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Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin, Acting Commissioner of Social Security, has been named as
defendant in this case in place of former Commissioner Michael J. Astrue.

12, 2010. The appeals council denied plaintiff’s request for review on May 23, 2012, and plaintiff
filed the instant action on June 29, 2012.
DISCUSSION
A.

Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner’s final

decision denying benefits. The court must uphold the factual findings of the ALJ “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). “Substantial evidence is . . . such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). The standard is met by “more
than a mere scintilla of evidence but . . . less than a preponderance.” Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966).
To assist it in its review of the Commissioner’s denial of benefits, the court may “designate
a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and
recommendations for the disposition [of the motions for judgment on the pleadings].” See 28 U.S.C.
§ 636(b)(1)(B). The parties may object to the magistrate judge’s findings and recommendations,
and the court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id. § 636(b)(1). Absent a
specific and timely filed objection, the court reviews only for “clear error,” and need not give any
explanation for adopting the M&R. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the

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record, “the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
The ALJ’s determination of eligibility for Social Security benefits involves a five-step
sequential evaluation process, which asks whether:
(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a
medical impairment (or combination of impairments) that are severe; (3) the
claimant’s medical impairment meets or exceeds the severity of one of the
impairments listed in [the regulations]; (4) the claimant can perform [his] past
relevant work; and (5) the claimant can perform other specified types of work.
Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (citing 20 C.F.R. § 404.1520). The
burden of proof is on the claimant during the first four steps of the inquiry, but shifts to the
Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ
found that plaintiff had not engaged in substantial gainful activity since January 14, 2009, the date
of her application. At step two, the ALJ found that plaintiff had the following severe impairments:
obesity, osteoarthritis, diabetes, arthritis of the knee, visual problems, and headaches. However, at
step three, the ALJ further determined that these impairments were not severe enough to meet or
medically equal one of the impairments in the regulations. Prior to proceeding to step four, the ALJ
determined that during the relevant time period plaintiff had the residual functional capacity
(“RFC”) to perform unskilled, light work, except that due to vertigo she cannot work at heights or
around moving machinery, and that due to visual problems she is unable to read small print. In
making this assessment, the ALJ found plaintiff’s statements about her limitations not fully credible.
At step four, the ALJ concluded plaintiff had no past relevant work. At step five, upon considering

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plaintiff’s age, education, work experience and RFC, the ALJ determined that there were jobs that
existed in significant numbers in the national economy that plaintiff is capable of performing.
B.

Analysis
Plaintiff objects to the M&R’s assessment of her claim that the ALJ failed to consider

properly her heart condition as a severe impairment. In particular, she argues that the evidence
required the ALJ to consider her heart condition as severe, and that the failure to do so cannot be
considered harmless error. Upon de novo review of plaintiff’s objection, the court concludes that
plaintiff’s objection should be overruled.
Under the multi-step disability evaluation process, a claimant bears the burden of showing
that she has a “severe” impairment or combination of impairments, which is an “impairment or
combination of impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. § 404.1520(c). “An impairment can be considered as ‘not severe’
only if it is a slight abnormality which has such a minimal effect on the individual that it would not
be expected to interfere with the individual’s ability to work, irrespective of age, education, or work
experience.” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984) (quotations omitted); see SSR
85-28, 1985 WL 56856 *3.
Although the ALJ did not consider plaintiff’s heart condition at step two of the analysis, this
alleged error alone does not justify remand. As this court has previously noted, “where an ALJ
nonetheless proceeds with the sequential evaluation upon the basis of other severe impairment(s),
the failure to consider whether any other impairment also qualifies as ‘severe’ is harmless error.”
Prince v. Colvin, 5:11-CV-763-FL, 2013 WL 1786634, *2 (E.D.N.C. Apr. 25, 2013); see Morgan

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v. Barnhart, 142 F. App'x 716, 722-23 (4th Cir. 2005) (“[R]eversal is not required where the alleged
error clearly had no bearing on the procedure used or the substance of the decision reached.”)
(citation omitted). In this case, the ALJ considered both plaintiff’s severe impairments and other
impairments in making an RFC determination. (Tr. 20-23). The ALJ specifically discussed the
objective medical evidence regarding plaintiff’s asserted heart condition. (Tr. 22). Accordingly, the
ALJ’s failure to consider plaintiff’s heart condition at step two is harmless error.
Plaintiff suggests, nonetheless, that the ALJ did not properly consider the effects of her heart
impairment in making the RFC determination. In reviewing an ALJ’s RFC determination, the court
does “not undertake to re-weigh conflicting evidence,” but rather upholds the finding of the ALJ if
it is supported by substantial evidence, being “more than a mere scintilla of evidence but . . .
somewhat less than a preponderance.” Craig, 76 F.3d at 589. “[T]he burden is on the claimant to
furnish ‘evidence supporting the existence of a condition and the effect of that condition on the
claimant’s ability to work on a sustained basis.’” Gatling v. Astrue, 2:11-CV-21-FL, 2012 WL
4357013, *5 (E.D.N.C. Sept. 21, 2012) (quoting Aytch v. Astrue, 686 F. Supp. 2d 590, 599
(E.D.N.C. 2010)).
The ALJ discussed several aspects of plaintiff’s medical records related to her heart
condition that undermined plaintiff’s contention that her heart condition has an impact on her ability
to work. In particular, the ALJ noted:
[Plaintiff] was referred to a cardiologist for complaint of exertional shortness of
breath, fatigue and chest pain. July 2010 records show . . . that the claimant had
again not been taking her medication. She was encouraged to do so and to maintain
a low fat, low cholesterol diet. . . . Notably, during a July 2010 cardiac evaluation,
the claimant reported that she was independent in her activities of daily living. She
engaged in no regular exercise regiment and smoked daily. . . . The cardiologist

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recommended therapeutic lifestyle modification including low cholesterol, low
saturated fat, low carbohydrate diets and regular physical activity.”
(Tr. 22).
“[I]t was not improper for the ALJ to consider the level and type of treatment [claimant]
claimant sought and obtained in determining the weight to accord her allegations” of impairment.
Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir. 1994) (Luttig, J., concurring). Moreover, “[i]f a
symptom can be reasonably controlled by medication or treatment, it not disabling.” Gross v.
Heckler, 785 F.2d 1163, 1166 (4th Cir.1986). And, “[i]n order to get benefits, [claimant] must
follow treatment prescribed by [claimant’s] physician if this treatment can restore [claimant’s]
ability to work.” 20 C.F.R. § 404.1530. In this manner, evidence regarding plaintiff’s heart
condition properly was accounted for in making the RFC determination, where plaintiff had not been
taking medication prescribed, where plaintiff had not exercised and had smoked daily, and where
treatment prescribed was focused on lifestyle changes.
While plaintiff argues that the ALJ did not properly account for the impact of “shortness of
breath” and physical discomfort upon activity, the ALJ in fact expressly noted that these symptoms
were reported upon referral to the cardiologist. (Tr. 22). In light of the medical evaluation by the
cardiologist, the assessment of plaintiff’s activities, and the treatment prescribed, substantial
evidence supported the ALJ’s RFC determination over plaintiff’s conflicting reports of symptoms.
Where this court must not undertake to re-weigh competing evidence that the ALJ has described and
considered in his decision, plaintiff’s argument is without merit.
In sum, plaintiff’s objection regarding the ALJ’s consideration of her heart condition must
be overruled.

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CONCLUSION
Upon de novo review of those portions of the M&R to which specific objection has been
filed, and upon considered review of those portions of the M&R to which no such objection has been
made, the court ADOPTS the recommendation of the magistrate judge, DENIES plaintiff’s motion
for judgment on the pleadings (DE 26), GRANTS defendant’s motion for judgment on the pleadings
(DE 28), and AFFIRMS the final decision by defendant. The clerk is directed to close this case.
SO ORDERED, this the 25th day of March, 2014.

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LOUISE W. FLANAGAN
United States District Judge

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