Harvey v. Colvin

Filing 33

ORDER DENYING 26 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. The clerk is directed to close this matter. Signed by US District Judge Terrence W. Boyle on 5/9/2014. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-392-BO
ZELINKAHARVEY,
Plaintiff,
v.

CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter is before the Court on the parties' cross motions for judgment on the
pleadings [DE 26, 28]. A hearing on this matter was held in Elizabeth City, North Carolina on
May 7, 2014 at 11:30 a.m. For the reasons detailed below, plaintiffs motion is DENIED and
defendant's motion is GRANTED. The decision of the Commissioner is AFFIRMED.

BACKGROUND
On October 21, 2010, Ms. Harvey protectively filed an application for disability
insurance benefits under Title II of the Social Security Act. Plaintiff alleges disability beginning
on November 20, 2006, due to back, knee, and ankle pain. The application was denied initially
and upon reconsideration. A hearing was held before an Administrative Law Judge ("ALJ") on
June 15, 2011 and the ALJ issued a decision denying the claims. On March 29, 2013, the
Appeals Council denied review thereby rendering the ALJ' s decision the final decision of the
Commissioner. Petitioner now requests judicial review pursuant to 42 U.S.C. § 405(g).

MEDICAL HISTORY

Ms. Harvey suffers from several severe impairments as found by the ALJ: degenerative
disc disease of the lumbar spine, degenerative joint disease of the right hip and right knee, a pain
disorder and an adjustment disorder. Plaintiff alleges that she became disabled following a trip
and fall at work injuring her back, right knee, and right ankle on November 20, 2006. [Tr. 22,
92]. Plaintiff was diagnosed and treated for right sacral pain, but X-rays of the right knee, right
hip, and ankles were essentially normal. [Tr. 305-06, 309-10]. Follow up revealed there to be no
distress, intact neuro and sensory, and no motor deficits. [Tr. 301-04]. Plaintiff was treated at the
ER in December 2006 and complained of back pain and atypical chest pain. [Tr. 428-40].
Shortly thereafter her back was found to be normal with no tenderness. [Tr. 430].
Plaintiff received orthopaedic treatment from November 2006 -June 2007 for low back
pain, a right knee contusion and a right ankle sprain. [Tr. 314-24, 339]. In January 2007, her
treating physician, Dr. Summers, opined that her low back strain aggravated the pre-existing
knee arthritis and ankle sprain, but noted that all of her injuries should have improved with the
conservative treatment she received, but that she failed to participate fully, complained of
symptoms that were not present, and was subjectively over-reactive to pain. [Tr. 317-20]. By the
end ofthat month, Dr. Summers opined that she could return to regular duty at work. [Tr. 321].
Plaintiff received a second opinion from Dr. Charron who ordered an MRI and steroid
injections. [Tr. 322]. Plaintiff was then treated for her pain by Dr. Lestini who opined that she
could return to work for four hours per day for two weeks, six hours per day for the following
two weeks and eight hours per day thereafter. [Tr. 374-75, 392-94, 412]. Plaintiff then
underwent a cycle of treatment, improvement, and a return of symptoms. [Tr. 323-24, 329-38,
344-70, 402-04, 408]. In February 2008, plaintiffs attorney refered her to Dr. Wright, who

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opined that she had not improved since 2006, but that physical inactivity, chronic opioids,
tranquilizers, injections, and surgery would not be helpful. [Tr. 494-96]. In October 2008, Dr.
Lestine continued Dr. Wright's suggested treatment and rejected plaintiffs request for narcotics.
[Tr. 400]. Plaintiff continued treatment into 2011, but no notable changes in her treatment and/or
condition occurred.
DISCUSSION

Pursuant to the Social Security Act, 42 U.S.C. § 405(g), this Court's review of the
Commissioner's decision is limited to determining whether the Commissioner's decision, as a
whole, is supported by substantial evidence and whether the Commissioner employed the correct
legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (citing Richardson v.

Pearles, 402 U.S. 389, 390 (1971)). '"[S]upported by substantial evidence' means 'such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."' !d. (quoting

Pearles, 402 U.S. at 401). Regulations establish a five-step sequential evaluation process to be
followed when determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520 and 416.920.
"The claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five." Rogers v. Barnhart, 216 Fed. App'x 345, 348 (4th Cit. 2007) (citing

Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)).
Plaintiff alleges that the ALJ erred by not addressing the third party statements from Ms.
Harvey's family members. Defendant concedes that the ALJ erred by not addressing the specific
statements, but argues that the error was harmless as the ALJ did address the concerns raised in
the statements. The third party statements were repetitive of plaintiffs own testimony: that she
no longer went to family functions or visited friends, they came to her; that her family members
helped her with her children and household chores; that plaintiff cannot move as fast as she used

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to due to pain; and that certain sitting positions tended to produce backaches in plaintiff. [Tr.
211, 214]. Because the information contained in the third party statements aligned with
plaintiffs own testimony and the extensive medical evidence in the record, it was clearly
harmless. Even considering that information explicitly, the Court finds that there is no question
that the ALJ would have reached the same conclusion. 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 ofthe decision); Mickels v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (Affirm
despite error because no question that ALJ would have reached the same result notwithstanding
his initial error).
Plaintiff also alleges that the ALJ erred in considering her credibility because she did not
fully credit plaintiffs subjective allegations of functional limitations and did not properly
articulate her reasons for finding plaintiff not credible. Here, however, the ALJ's credibility
determination is also supported by substantial evidence. The ALJ determined that plaintiffs
limitations were neither disabling in nature nor preclusive of her ability to perform work. The
ALJ considered the entire record which shows that plaintiff was capable of completing a rather
full range of daily living functions within the constraints of her impairments. Further the record
shows that while plaintiff experienced some degree of pain and discomfort, there is no evidence
to support that she suffered from severe, intractable pain. Two separate doctors opposed giving
plaintiff narcotic medication, plaintiff failed to follow through on her physical therapy plan, and
plaintiffs doctors noted that she tended to exaggerate pain symptoms. The ALJ clearly discussed
all of this information and more in her opinion and based her credibility determination on the

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substantial evidence in the record. Accordingly, the ALJ did not err in making her credibility
determination.
Because substantial evidence supports the decision of the Commissioner, the Court
affirms that decision.
CONCLUSION

For the reasons outlined above, defendant's motion for judgment on the pleadings is
GRANTED and plaintiffs motion is DENIED. The decision of the Commissioner is
AFFIRMED. The clerk is directed to close the file.

SO ORDERED.
This, the

_!f._ day of May 2014.
.._....,r...... ~NCE W. BOYL
UNITED STATES DISTRICT UDGE

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