Lambre v. Commissioner of Social Security

Filing 37

ORDER DENYING 25 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 11/30/2013. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-54-BO
GERALDINE M. LAMBRE,

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Plaintiff,

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V.

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ORDER

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CAROLYN COLVIN,
Acting Commissioner of Social Security,

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Defendant.

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This matter is before the Court on the parties' cross-motions for judgment on the
pleadings [DE 25 & 28]. A hearing on this matter was held in Raleigh, North Carolina on August
16, 2013. For the reasons detailed below, plaintiffs motion is DENIED and defendant's motion
is GRANTED. The decision of the Commissioner is AFFIRMED.

BACKGROUND
On August 25, 2011 Ms. Lambre filed an application for disability insurance benefits
alleging an onset date of February 28, 2011. Her application was denied initially and upon
reconsideration. After a hearing, an Administrative Law Judge ("ALJ") denied her application on
May 10, 2012. On September 28, 2012, the Appeals Council denied the plaintiffs request for
review rendering the ALJ' s opinion the final decision of the commissioner. The plaintiff now
seeks review of the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g).

MEDICAL HISTORY
As early as November 2010, plaintiff sought treatment for anxiety, sleep difficulties,
migraines, and chronic foot pain. [Tr. 234]. Plaintiff began to notice her foot pain during a

deployment to Iraq in 2009. Id After return from her deployment, plaintiff continued to
experience foot pain, undertook pain management, and was placed on a restrictive work profile.
Id From November 2010 until February 2011, plaintiff continued to complain of anxiety and
sleep difficulties. [Tr. 232-33, 245, 229]. On February 25, 2011, plaintiff underwent an Akin
bunionectomy and a Tailor's bunionectomy with distal V-osteotomy, and internal screw fixation
on her right foot. [Tr. 384-87]. After her operation she was diagnosed with retained screws in the
first metatarsal of her right foot, recurrent hallux valgus deformity of her right foot, and Tailor's
bunion deformity of her right foot. [Tr. 384].
In April 2011, plaintiff remained diagnosed with an adjustment disorder with an anxious
mood and sleep difficulties. [Tr. 270]. On April 29, 2011, she reported a significant increase in
anxiety and a corresponding reduction in the quality and quantity of her sleep. Id Plaintiff
continued to be diagnosed with an adjustment disorder with anxious mood and sleep difficulties
through November 2011. [Tr. 274, 278, 266, 262, 303, 336]. Throughout this time period and
beyond, plaintiff continued to experience difficulties with her foot and the associated pain. On
August 22, 2011, plaintiff was diagnosed with residual plantar fasciitis and complained of
swelling and pain at the site of her surgery. [Tr. 255]. The next day, plaintiff was treated with
instrument assisted soft tissue mobilization and active release techniques. [Tr. 253]. On October
29, 2011, plaintiff was diagnosed with right foot Reynaud's syndrome and chronic pain. [Tr.
299]. She was also diagnosed with right foot chronic pain and hyperesthesia with history of
Reynaud's, possible post-surgical reflex sympathetic dystophry improved, low back pain,
musculoskeletal in nature, and right hip pain, musculoskeletal in nature. [Tr. 301]. At that time
the doctor opined that plaintiff had mild limitations to repetitive weight bearing activity,
repetitive standing, and heavy exertion in the standing position. [Tr. 302]. In December 2011,

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plaintiff was diagnosed with right foot pain, neuralgia over the right foot, early symptoms of
compression syndrome over the right foot and Lumbago. [Tr. 394]. Later that month, she was
treated for right foot pain and low back pain. [Tr. 390].
On January 25, 2012, the U.S. Army Physical Evaluation Board found plaintiff unfit to
continue military service due to hallux valgus deformities of the right foot, residual surgery pain,
limited mobility of the great toe, scars, and Reynaud's phenomenon in theright foot with residual
cold weather intolerance and pain. [Tr. 379]. Afterwards, plaintiff continued to receive treatment
for her right foot and low back pain. [Tr. 388, 382, 380].

DISCUSSION
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).
In making a disability determination, the ALJ engages in a five-step evaluation process.
20 C.P.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis
requires the ALJ to consider the following enumerated factors sequentially. At step one, if the
claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the
claim is denied if the claimant does not have a severe impairment or combination of impairments
significantly limiting him or her from performing basic work activities. At step three, the

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claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part
404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is
equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's
impairment does not meet or equal a listed impairment then, at step four, the claimant's residual
functional capacity ("RFC") is assessed to determine whether plaintiff can perform his past work
despite his impairments. If the claimant cannot perform past relevant work, the analysis moves
on to step five: establishing whether the claimant, based on his age, work experience, and RFC
can perform other substantial gainful work. 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 Cir. 1995).
Here, after proceeding through the sequential five-step evaluation the ALJ found that the
defendant was not disabled. At step one, the ALJ found that although plaintiff was receiving
payments from the Army, her earnings did not constitute substantial gainful activity because she
had not actually performed any services since her alleged onset date. [Tr. 34 (citing 20 C.F.R.
404.1574(a)(3))]. Proceeding with his analysis, the ALJ determined that plaintiff had severe
impairments that did not meet the requirements of a listing. [Tr. 34-36]. The ALJ then reviewed
in detail the relevant medical and nonmedical evidence of record and thereupon determined that
plaintiff had the residual functional capacity of sedentary with the ability to lift/carry ten pounds
occasionally and less than ten pounds frequently, to stand/walk for two hours in an eight hour
workday, and to sit for six hours in an eight hour workday. [Tr. 37]. The ALJ further found that
mentally the plaintiff retained the ability, on a sustained basis, to understand and follow simple
instructions and directions, perform simple tasks with supervision and independently, maintain
attention and concentration for simple tasks, regularly attend to a routine and maintain a

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schedule, and to relate to and interact with others to the extent necessary to carry out simple
tasks. /d. However, he found that she should avoid work requiring more complex interaction
with the public, but that she can handle reasonable levels of simple work-related stress and can
make simple decisions directly related to the completion of her tasks and work in a stable,
unchanging work environment. /d. The ALJ then found that plaintiff could not return to her past
relevant work, but that under the Medical Vocational Guidelines, Rule 201.28 she was not
disabled within the meaning ofthe Act. [Tr. 40-41].
Plaintiff argues that the ALJ' s residual functional capacity determination is unsupported
by the substantial evidence, the ALJ' s credibility determination is unsupported by substantial
evidence because the ALJ erred in assessing the required factors in determining plaintiffs
credibility, and that the ALJ's step five determination is unsupported by substantial evidence and
is the product of legal error. This Court agrees with defendant that each of the ALJ' s
determinations is supported by substantial evidence.
I.

THE RFC DETERMINATION.

Plaintiff argues that the ALJ erred in affording significant weight to the opinion of Dr.
Boehlert because it was incomplete and vague. Plaintiff suggests that 20 R.F.C. §
404.1519n(c)(6) requires a statement as to plaintiffs functional limitations. However, 20 R.F.C.
§ 404.1519n(c)(6) plainly states that "the absence of such a statement in a consultative

examination report will not make the report incomplete." Plaintiff also argues that the use of the
term "mild limitation" is vague. Dr. Boehlert found that plaintiff had "mild limitations to
repetitive weightbearing activity, repetitive standing, [and] heavy exertion in a standing
position." [Tr. 302]. First, this is not vague. Second, the ALJ stated that he interpreted these
limitations as limiting plaintiff to sedentary work. [Tr. 37]. The limitations would not interfere in

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the performance of sedentary work activity. See 20 C.F.R. § 404.1567(a). Therefore, even if
"mild limitation" is seen as vague, it is of no consequence here.
Plaintiff next argues that the RFC is wrong because the ALJ erred in affording some
weight to the report of Dr. Ransom. Plaintiff again argues that the report did not render an
opinion as defined under 20 C.F.R. 404.1519n(c)(6) because it did not include a statement about
plaintiffs functional limitations. This, as the Court has already pointed out, is incorrect.
Finally, plaintiff attacks the validity of the RFC by stating that the ALJ erred in failing to
recontact the Department of the Army for clarification of their opinion. The ALJ gave limited
weight to the Army reports that released plaintiff from assigned duty in April 2012 due to her
permanent physical disability because the determination of whether a claimant is disabled under
the Social Security Act is reserved to the ALJ and the reports relate to her claim in the Army.
Social Security Ruling 06-03p directs that ALJs should explain the consideration given to a
determination of disability made by another agency, but notes that the different rules and
standards used by the agency may limit the relevance of the determination. 2006 WL 2329939 at
*6 (S.S.A. Aug. 9, 2006). Here, the ALJ properly explained his consideration of the Army's
determination and gave it limited weight, noting the Army's definition of disability is different
from that in the Social Security Act and that although plaintiff may not be able to return to
military service, the evidence shows that she can perform sedentary work activity. [Tr. 37-38].
Additionally, there was no duty on the ALJ to recontact the Department of the Army
here. The duty to recontact a treating source arises only when evidence from the claimant's
treating doctor is inadequate to determine if the claimant is disabled. See 20 C.F .R. § 404.1520b.
Here, however, the ALJ did not find that the evidence from plaintiffs primary treating physician
was inadequate to make a determination. Indeed, the record contains a detailed and longitudinal

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picture of plaintiff's condition from before her alleged onset date to beyond the date of the
administrative hearing. At the hearing, plaintiff's counsel was asked if there were any additional
records to be submitted and he stated that there were two reports he wanted to admit. [Tr. 4546]. These, plus an additional report were placed into the record after the hearing. [Tr. 332--409].
Even now plaintiff does not allege that any specific records are missing. Although an ALJ has a
duty to explore all relevant facts and inquire into the issues necessary for adequate development
of the record, it is well settled that the claimant bears the ultimate burden of establishing a prima
facie entitlement to benefits. See Craig v. Chater, 76 F.3d 585, 588 (4th Cir. 1996); Hall v.
Harris, 658 F.2d 260, 264-65 (4th Cir. 1981). The ALJ's duty to develop the record does not

replace the burden of a plaintiff to produce evidence proving her disability.
II.

THE CREDIBILITY DETERMINATION.

Plaintiff next claims that the ALJ erred in assessing the required factors in determining
plaintiff's credibility. Here, the ALJ recognized the relevant regulations and rulings and properly
found that plaintiff was not fully credible. [Tr. 37--40]. The ALJ did not, as plaintiff contends,
reject her subjective complaints solely because they were not substantiated by the objective
medical evidence. Rather he considered her reports of being able to take short jogs and that her
walking was improving. He also considered doctors reports of her normal gait and stance. He
contrasted her claims of swelling with the lack of any report of swelling in her medical reports.
This is a short run down of the extensive way in which the ALJ assessed plaintiff's credibility.
He did so further and in the same correct manner on other issues which do not need to be
discussed here.

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III.

THE STEP FIVE DETERMINATION.

The final argument plaintiff makes is that the ALJ's step five determination is
unsupported by substantial evidence and is the product of legal error. Mainly, plaintiff argues
that the ALJ should have introduced the testimony of a vocational expert ("VE") because where
"a claimant suffers from both exertional and nonexertional limitations, the grid tables are not
conclusive but may only serve as guidelines." Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989).
"However, not every nonexertional limitation or malady rises to the level of nonexertional
impairment, so as to preclude reliance on the grids." !d. The proper inquiry is whether the
nonexertional condition affects an individual's RFC to perform work of which he is exertionally
capable. !d.
Here, the nonexertional limitations that plaintiff claims exist were either found to be not
credible by the ALJ, or they do not affect plaintiffs ability to perform sedentary work. Indeed,
the ALJ explained that although he found plaintiff had limitations resulting from nonexertional
impairments, these limitations would have little effect on the occupational base of unskilled
sedentary work. [Tr. 41]. As such, the ALJ's application of the Medical-Vocational rules was
proper and supported by the substantial evidence.
CONCLUSION

For the reasons outlined above, plaintiffs motion for judgment on the pleadings is
DENIED, defendant's motion for judgment on the pleadings is GRANTED. The decision of the
Comissioner is AFFIRMED.
SO ORDERED.
This, the ~day ofNovember, 2013.

RRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE
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