Curtis v. Colvin
ORDER DENYING 21 Plaintiff's Motion for Judgment on the Pleadings, and GRANTING 28 Defendant's Motion for Judgment on the Pleadings. The decision of the Commissioner is affirmed. Signed by US District Judge Terrence W. Boyle on 8/28/2014. (Fisher, M.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Acting Commissioner of Social Security,
This matter is before the Court on the parties' cross-motions for judgment on the
pleadings. [DE 21, 28]. A hearing on this matter was held in Elizabeth City, North Carolina on
July 28, 2014. For the reasons detailed below, plaintiffs motion is DENIED and defendant's
motion is GRANTED. Accordingly, the decision ofthe Commissioner is AFFIRMED.
Plaintiff protectively filed for disability insurance benefits (DIB) and supplement security
income (SSI) pursuant to Titles II and XVI of the Social Security Act on March 22, 2011. Ms.
Curtis alleged disability beginning on December 31, 2008. The Social Security Administration
denied plaintiffs application initially and upon reconsideration. On October 16, 2012, Plaintiff
appeared and testified at a hearing before an Administrative Law Judge (ALJ), who denied her
claim. The Appeals Council denied plaintiffs request for review and the ALJ's decision became
the final decision of the Commissioner on April 16, 2013. Ms. Curtis now seeks judicial review
ofthe Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
When a social security claimant appeals a final decision of the Commissioner, the district
court's review is limited to the determination of whether, based on the entire administrative
record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence
which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v.
Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed.
Smith v. Chafer, 99 F.3d 635,638 (4th Cir. 1996).
An individual is considered disabled if he is unable "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
of not less than [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual "shall be determined to 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 his 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).
In evaluating whether a claimant is disabled, an ALJ uses a sequential multi-step process.
First, a claimant must not be able to work in a substantial gainful activity. 20 C.F.R. § 404.1520.
Second, a claimant must have a severe impairment that significantly limits his or her physical or
mental ability to do basic work activities. !d. Third, to be found disabled, without considering a
claimant's age, education, and work experience, a claimant's impairment must be of sufficient
duration and must either meet or equal an impairment listed by the regulations (Listing). !d.
Fourth, a claimant may be disabled if his or her impairment prevents the claimant from doing
past relevant work and, fifth, a claimant may be disabled if the impairment prevents the claimant
from doing other work. !d. The burden of proof is on the claimant for the first four steps of this
inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th
After finding that plaintiff met the insured status requirements and had not engaged in
substantial gainful activity since her alleged onset date, the ALJ determined that plaintiff had the
following severe impairments: anxiety, mood disorder, bipolar disorder, attention deficit
hyperactivity disorder, cervical degenerative disc disorder, and lumbar degenerative disc
disorder. [Tr. 17-18].The ALJ then found that Ms. Curtis did not have an impairment or
combination of impairments that met or equaled a Listing at step three, and had a residual
functional capacity (RFC) to perform medium work limited to simple, routine, repetitive tasks.
[Tr. 19-20.]. The ALJ found that plaintiff could not return to her past relevant work, but that,
considering plaintiffs age, education, work experience, and RFC, there were other jobs that exist
in significant numbers in the national economy that she could perform. Thus, the ALJ
determined that plaintiff was not disabled as of the date of his opinion.
Ms. Curtis first contends that new evidence, namely her treating nurse practitioner's
opinion, was submitted to the Appeals Council and there is a reasonable possibility that this
evidence would have changed the outcome of this case. Plaintiff also contends that the ALl erred
by improperly evaluating her credibility, not considering the impact of side effects of her
medications and frequency of treatment, and not finding plaintiffs migraine headaches to be a
severe impairment. Upon review of the record and the decision of the ALJ, the Court finds that
substantial evidence supports the ALJ' s decision, that he employed the correct legal standard,
and that his decision should therefore be affirmed.
It is proper for a court to consider subsequent medical evidence where it is not
duplicative or cumulative and if there is a "reasonable possibility that the new evidence would
have changed the outcome ofthe case." Wilkins v. Sec'y, Dept. of Health & Human Servs., 953
F.2d 93, 96 (4th Cir. 1991). Where a court determines subsequent evidence is material, not
duplicative, or cumulative, remand is appropriate. 42 U.S.C. § 405(g). The nurse practitioner's
opinion and treatment notes were submitted after the ALJ's decision, but were presented to the
Appeals Council and thus, are appropriately considered here. Wilkins v. Sec'y, Dep't of Health &
Human Servs., 953 F.2d 93, 96 (4th Cir. 1991) (en bane). However, an opinion from a nurse
practitioner is not entitled to any special weight. First, disability is a finding reserved to the
Commissioner. 20 C.F.R. § 404.1527(d)(2). Second, nurse practitioners are not acceptable
medical sources and cannot provide medical opinions. 20 C.F.R. §§ 404.1513, 404.1527(a)(2).
Therefore, the nurse practitioner's statement is simply evidence like any other evidence that is
not a medical opinion. Given the plethora of other evidence relied upon by the ALJ, the Court
finds that the nurse practitioner's statements would not have changed the outcome of the case
and do not warrant remand.
The ALJ's credibility determination in this case is supported by substantial evidence. In
making said determination, the ALJ relied on the longitudinal medical record, plaintiffs
testimony, and consultative examinations. The ALJ considered the entire record, which shows
that while plaintiff experienced some mental and physical limitations, she had periods of stable
mood coinciding with medication compliance and was capable of completing a reduced range of
daily living functions. [Tr. 22]. The ALJ's decision to find plaintiffs subjective allegations of
pain and limitations only partially credible is supported by substantial evidence, and the Court
finds no basis upon which to disturb the ALI's credibility finding here. Shively v. Heckler, 739
F.2d 987, 989 (4th Cir. 1984) ("ALI's observations concerning [credibility] are to be given great
weight."). The ALJ clearly discussed all of the available evidence, based his credibility
determination on the substantial evidence in the record, and accordingly, did not err.
The ALJ also considered the frequency ofMs. Curtis's treatment. Much of the ALJ's
RFC determination focused on the plaintiffs mental health and whether she was compliant with
medication. [Tr. 21-23]. While the ALJ did not explicitly discuss the side effects of Ms. Curtis's
treatment, there is minimal evidence in the record beyond plaintiff's testimony to indicate that
medication side effects would have changed the ALI's decision. One of plaintiffs treating
physicians consistently noted that she suffered no medication side effects, Tr. 774, 858, 859, and
plaintiff never mentioned the same during her emergency room visits, Tr. 497-559. The Court
finds that there is no question the ALJ would have reached the same conclusion had he explicitly
addressed the medication side effects. Therefore the decision of the Commissioner is supported
by substantial evidence in the record. See Ngarurih v. Ashcroft, 371 F .3d 182, 190 n.8 (4th Cir.
2004) (reversal is not required when the alleged error had no bearing on the substance of the
decision); Mickels v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (affirming despite error because
no question that ALJ would have reached the same result notwithstanding his initial error).
Plaintiff bore the burden of demonstrating that her migraine headaches rose to the level of
a severe impairment at step two. Rogers v. Barnhart, 216 Fed. App'x 345, 348 (4th Cit. 2007)
(citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)). The record contains only a few
references to Ms. Curtis's headaches, Tr. 46-47, 556, 578, thus the ALJ's decision not to include
plaintiffs migraines as a severe impairment at step two is supported by substantial evidence.
As the ALI employed the correct legal standard and substantial evidence supports his
findings, the decision of the Commissioner must be affirmed.
For the foregoing reasons, plaintiffs motion for judgment on the pleadings [DE 21] is
DENIED, and defendant's motion for judgment on the pleadings [DE 28] is GRANTED. The
decision of the Commissioner is AFFIRMED.
This J!/day of August, 2014.
T RRENCE W. BOYLE
UNITED STATES DISTRICT
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