Harrison v. Colvin
ORDER granting 28 Motion for Judgment on the Pleadings, adopting 33 Memorandum and Recommendation, and denying 24 Motion for Judgment on the Pleadings - Signed by District Judge Louise Wood Flanagan on 6/26/2017. (Tripp, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
CONNIE L. HARRISON,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
This matter is before the court on the parties’ cross motions for judgment on the pleadings.
(DE 24, 28). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United
States Magistrate Judge Kimberly A. Swank entered a memorandum and recommendation
(“M&R”), wherein it is recommended that this court deny plaintiff’s motion, grant defendant’s
motion, and affirm defendant’s final decision. Plaintiff timely filed an objection to the M&R, and
the issues raised are ripe for ruling. For the reasons that follow, this court adopts the M&R as its
own, grants defendant’s motion, denies plaintiff’s motion, and affirms defendant’s final decision.
On March 1, 2011, plaintiff filed an application for supplemental security income, alleging
disability since July 1, 2009. The application was denied initially and upon reconsideration. Plaintiff
filed a request for hearing before an administrative law judge (“ALJ”), who, after a January 8, 2013,
hearing, denied plaintiff’s claim by decision entered January 29, 2013. Following the ALJ’s denial
of her application, plaintiff timely filed a request for review with the Appeals Council, which
vacated the ALJ’s decision and remanded the case for a new hearing before an ALJ. On September
24, 2014, the ALJ conducted another hearing, and on January 12, 2015, again issued an unfavorable
ruling. The Appeals Council denied plaintiff’s request for review on March 4, 2016. Plaintiff then
filed a complaint in this court on May 10, 2016, seeking review of defendant’s decision.
Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review defendant’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).
In reviewing for substantial evidence, the court is not to “re-weigh conflicting evidence, make
credibility determinations, or substitute [its] judgment” for defendant’s. Craig, 76 F.3d at 589.
“A necessary predicate to engaging in substantial evidence review is a record of the basis
for the ALJ’s ruling,” including “a discussion of which evidence the ALJ found credible and why,
and specific application of the pertinent legal requirements to the record evidence.” Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013). An ALJ’s decision must “include a narrative discussion
describing how the evidence supports each conclusion,” Monroe v. Colvin, 826 F.3d 176, 189 (4th
Cir. 2016) (quoting Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)), and an ALJ “must build
an accurate and logical bridge from the evidence to his conclusion.” Id. (quoting Clifford v. Apfel,
227 F.3d 863, 872 (7th Cir. 2000)).
To assist it in its review of defendant’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). The court does not
perform a de novo review where a party makes only “general and conclusory objections that do not
direct the court to a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely objection, the
court reviews only for “clear error,” and need not give any explanation for adopting the M&R.
Diamond v. Colonial Life & Accident 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 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 or her] 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 March 1, 2011, her
application date. At step two, the ALJ found that plaintiff had the following severe impairments:
chronic obstructive pulmonary disease (“COPD”)/asthma, alcohol dependence in reported remission,
and an adjustment disorder with depressed mood. However, at step three, the ALJ determined that
these impairments were not severe enough, viewed either individually or in combination, to meet
or medically equal those in the Listing of Impairments (“Listings”), found in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. Before proceeding to step four, the ALJ determined that during the relevant time
period, plaintiff had the residual functional capacity (“RFC”) to perform light exertional work, as
defined in 20 C.F.R. § 416.967(b), with exceptions.1 In particular, plaintiff should avoid
concentrated exposure to temperature extremes of heat and cold, poorly ventilated areas, and
pulmonary irritants, such as dust, odors, and gases. Further, the ALJ noted that plaintiff is limited
to simple, routine, repetitive tasks in a low-stress job, which was defined as having only occasional
changes in the work setting, and she should not perform any fast-paced production rate or pace
work. In making this assessment, the ALJ noted that although plaintiff’s medically determinable
impairments could be expected to cause some of the alleged symptoms, her statements concerning
the intensity, persistence, and limiting effects of her symptoms were “not entirely credible.” (Tr.
24). At step four, the ALJ concluded that plaintiff was able to perform her past relevant work as a
mail sorter. In an alternative finding, at step five, the ALJ found that in light of plaintiff’s age,
Light work involves lifting no more than twenty pounds at a time with frequent lifting or
carrying of objects weighing up to ten pounds. See 20 C.F.R. § 416.967(b). An individual that
can do light work can also do sedentary work, unless there are additional limitations such as loss
of fine dexterity or an inability to sit for extended periods of time. Id.
education, work experience, and RFC, there are other jobs that exist in significant numbers in the
national economy that she can perform. Thus, the ALJ concluded that plaintiff was not disabled
under the terms of the Social Security Act from her application date, March 1, 2011, through the
date of the ALJ’s decision, January 12, 2015.
Plaintiff objects to the M&R’s finding that her combination of mental impairments did not
meet or medically equal Listing 12.02. See Objection (DE 35) at 3-5. In particular, plaintiff
contends that she satisfied her burden of proof at step three in the sequential evaluation because she
met Listing 12.02 in two ways: 1) through criteria in paragraphs (A)(2) and (B)(2)-(3) and 2)
through criteria in paragraphs in (A)(3) and (B)(2)-(3).2 Id. at 5.
The Listings describe impairments that are considered “severe enough to prevent an
individual from doing any gainful activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. 416.925(a). In the Listings, “[e]ach impairment is defined in terms of
several specific medical signs, symptoms, or laboratory test results.” Sullivan v. Zebley, 493 U.S.
521, 530 (1990). To satisfy the requirements of the Listings, a claimant’s impairment must “meet
all of the specified medical criteria.” Id. (emphasis in original).
Listing 12.02 addresses “organic mental disorders,” and is met when history and medical
evidence “demonstrate the presence of a specific organic factor judged to be etiologically related
Plaintiff’s brief actually states that she meets Listing 12.02 in the following two ways:
1) through crieria in paragraphs (A)(2) and (B)(2)-(3) and 2) through criteria in paragraphs
(A)(5) and (B)(2)-(3). See Objection (DE 35) at 5. Plaintiff’s reference to (A)(5) appears to be a
typographical error. Based on the context of plaintiff’s brief, it appears that she intended to
reference paragraph (A)(3).
to the abnormal mental state and loss of previously acquired functional abilities.”3 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.02 (introductory paragraph). In order to establish the required level of
severity for an organic mental disorder, a claimant must satisfy the following: (1) the diagnostic
criteria in the introductory paragraph, (2) the criteria in both paragraphs A and B, or (3) the criteria
in paragraph C. Id.
A. Demonstration of a loss of specific cognitive abilities or affective changes and the
medically documented persistence of at least one of the following:
1. Disorientation to time and place; or
2. Memory impairment, either short-term (inability to learn new information),
intermediate, or long-term (inability to remember information that was known
sometime in the past); or
3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and
impairment in impulse control; or
7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid
levels or overall impairment index clearly within the severely impaired range on
neuropsychological testing, e.g., the Luria–Nebraska, Halstead–Reitan, etc.;
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
Listing 12.02 has been updated since the date of the ALJ’s decision. Because the ALJ issued
her decision on January 12, 2015, the Listings in effect at that time will apply. See 81 Fed. Reg.
66138 n.1, 2016 WL 5341732 *66138 n.1 (Sept. 26, 2016) (“We expect that Federal courts will
review our final decisions using the rules that were in effect at the time we issued the
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
C. Medically documented history of a chronic organic mental disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to do basic
work activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that even
a minimal increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or
3. Current history of 1 or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an arrangement.
Plaintiff initially argues that the magistrate judge erred in finding that she did not satisfy
paragraphs (A)(2) and (A)(3). See Objections (DE 35) at 3. In support of this argument, plaintiff
points to the following objective evidence: (1) her lack of a driver’s license; (2) her history of
working only minimally skilled jobs; (3) her history of incarceration/imprisonment; and (4) her
psychiatric hospitalization for alcohol and cocaine dependence and depression. Id. Plaintiff
suggests that this evidence coupled with the observations of the mental health professionals who
evaluated her demonstrates memory impairment and perceptual or thinking disturbances. Id.
Having considered the entire record, this court finds plaintiff’s argument to be unpersuasive.
In particular, extensive reports from the evaluating mental health professionals in this case foreclose
plaintiff’s argument. On May 15, 2006, plaintiff was evaluated by Gary Bachara, Ph.D. (Tr. 481-
Dr. Bachara opined that plaintiff’s remote memory for childhood events, ages, and
anniversaries was “fairly good.” (Tr. 482). Then, on August 2, 2006, plaintiff was evaluated by
Edward V. English, M.A., to assess her cognitive abilities (IQ), along with memory functioning.
(Tr. 486-89). English evaluated plaintiff using the Wechsler Memory Scale and opined as follows:
It does appear that her memory functioning is slightly higher across the board than
her cognitive level although not significantly. There are deficiencies in her memory
functioning and most of her scores fall within “borderline” range.
(Tr. 488). On March 18, 2010, plaintiff was evaluated by Carol M. Gibbs, M.D. (Tr. 549-51). On
that date, plaintiff had an asthma attack, so Dr. Gibbs was unable to complete the cognitive portion
of the exam and expressed no opinions regarding plaintiff’s memory. (Tr. 550). Finally, on January
10, 2012, plaintiff was evaluated by Christopher M. Ricci, Ph.D., and he conducted a comprehensive
clinical psychological evaluation. (Tr. 725-27). Dr. Ricci determined that plaintiff’s recent and
remote memory skills appeared to be mildly-to-moderately impaired secondary to possibly limited
intellectual functioning, which was evidenced by her inability to recall three out of three objects
immediately and one out of three objects after five minutes. (Tr. 726).
Of the four mental health professionals that evaluated plaintiff, only three made findings with
respect to memory. Importantly, these findings do not rise to the level required in paragraph (A)(2).
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02(A)(2) (requiring short-term memory impairment,
defined as an inability to learn new information; intermediate memory impairment; or long-term
memory impairment, defined as an inability to remember information that was known sometime in
the past). In sum, the magistrate judge’s finding that plaintiff did not satisfy the paragraph (A)(2)
criteria is supported by substantial evidence.
As for plaintiff’s thinking disturbances under paragraph (A)(3), only one of the four mental
health professionals who evaluated plaintiff found any sign of thinking disturbances. Dr. Gibbs
noted that plaintiff reported she could hear strange people talking and the sound of footsteps in her
living room. (Tr. 549). Plaintiff also reported that she could hear people trying to come into the
door. (Tr. 549). The other three evaluating mental health professionals found no evidence of
thought disorder, hallucinations, delusions, or paranoia. (Tr. 482, 487, 726). In light of the record
as a whole, the magistrate judge’s finding that plaintiff did not satisfy the paragraph (A)(3) criteria
is supported by substantial evidence.
In her second and final argument, plaintiff argues that the ALJ erred by finding that she did
not have “marked” deficits in concentration, persistence, or pace.4 See Objection (DE 35) at 4. The
ALJ concluded that the paragraph B criteria were not satisfied because plaintiff’s mental
impairments did not cause at least two “marked” limitations or one “marked” limitation and
“repeated” episodes of decompensation, each of extended duration. (Tr. 21-22, 89, 90, 162, 266,
459, 483, 550, 554, 726-27).
Even if plaintiff prevailed on this argument, she would still fail to satisfy paragraph B’s
requirement that a claimant experience at least two “marked” limitations listed in paragraph B or
one “marked” limitation and “repeated” episodes of decompensation. Consequently, the ALJ’s
finding that plaintiff fails to satisfy the criteria of paragraph B is supported by substantial evidence.
A “marked” limitation “interfere[s] seriously with [the] ability to function independently,
appropriately, effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
In sum, remand is not required in this case, where the ALJ’s finding that plaintiff’s
combination of mental impairments did not meet or medically equal Listing 12.02 is supported by
substantial evidence and was reached through application of the correct legal standard. See Craig,
76 F.3d at 589.
Based on the foregoing, this court ADOPTS the recommendation in the M&R. Plaintiff’s
motion for judgment on the pleadings (DE 24) is DENIED, and defendant’s motion for judgment
on the pleadings (DE 28) is GRANTED. The clerk of court is DIRECTED to close this case.
SO ORDERED this 26th day of June, 2017.
LOUISE W. FLANAGAN
United States District Judge
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