Meadows v. Berryhill
Filing
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ORDER denying 17 Motion for Judgment on the Pleadings and granting 20 Motion for Judgment on the Pleadings. Signed by Chief US District Judge Terrence W. Boyle on 2/23/2019. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:18-CV-17-BO
FIKISHA A. MEADOWS,
Plaintiff,
V.
NANCY A. BERRYHILL,
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 17, 20]. The motions have been fully briefed and are ripe for disposition. A hearing on this
matter was held in Elizabeth City, North Carolina on February 15, 2019. For the reasons discussed
below, plaintiffs motion for judgment on the pleadings [DE 17] is DENIED and defendant's
motion [DE 20] is GRANTED.
BACKGROUND
Plaintiff brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of the
final decision of the Commissioner denying her claim for a period of disability and disability
insurance benefits (DIB) under Title II of the Social Security Act. Plaintiff filed her application on
March 16, 2011, alleging disability dating back to October 1, 2008. Plaintiffs application was
denied by an administrative law judge (ALJ) both initially and upon reconsideration in December
2013. The Appeals Council denied review in March 2015. In September 2016, the Court remanded
the case for further proceedings. A live hearing was held before an ALJ. The ALJ issued a partially
favorable decision in September 2017, finding that plaintiff was disabled within a closed period
from October 1, 2008 to July 13, 2012, but not since July 2012. The ALJ's decision is the final
administrative decision of the Commissioner.
In January 2018, plaintiff filed the complaint at issue, seeking judicial review of the
Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c)(3). [DE 1]. In August 2018,
plaintiff moved for judgment on the pleadings. [DE 17]. Defendant moved for judgment on the
pleadings in November 2018. [DE,20].
DISCUSSION
Under the Social Security Act, 42 U.S.C. §§ 405(g) and 1383(c)(3), this Court's review of
the Commissioner's decision is limited to determining whether the decision, as a whole, is
supported by substantial evidence and whether the Commissioner employed the correct legal
standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and citation omitted).
Courts should not make their own credibility determinations or substitute their own judgments for
the judgments of the ALJs. Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
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
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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).
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Regulations issued by the Commissioner establish a five-step sequential evaluation process
to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In making a
disability determination, the ALJ engages in a sequential five-step evaluation process. 20 C.F.R.
§ 404.1520; see Johnson, 434 F.3d at 653. 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 claimant's impairment is compared
to those in the Listing oflmpairments (Listing). See 20 C.F.R. Part 404, Subpart P, App. 1. If the
impairment is included in the Listing or is equivalent to a listed impairment, disability is
conclusively presumed. If the claimant's impairment does not meet or equal a listed impairment,
then the analysis proceeds to step four, where the claimant's residual functional capacity 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 residual functional capacity 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. Chafer, 65 F.3d 1200,
1203 (4th Cir. 1995). The claimant bears the burden of proof at steps one through four, but the
burden shifts to the Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
If a decision regarding disability can be made at any step of the process, then the inquiry ceases.
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). Here, the ALJ found that plaintiff met Listing
1.07 from October 1, 2008 until July 13, 2012, but did not meet the listing as of July 14, 2012. As
a result, the ALJ concluded that plaintiff had the residual functional capacity to perform sedentary
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work with limitations and that, while she could not return to her past work, plaintiff was capable
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of performing jobs that existed in significant numbers in the national economy. In other words, the
ALJ found that from July 14, 2012 onward, plaintiff was not disabled within the meaning of the
Social Security Act.
Plaintiff argues that the ALJ erred in concluding that plaintiff did not meet Listing 1.07 as
of July 14, 2012. When an ALJ finds that an individual is disabled for a closed period, the ALJ
can only find that the disability ended by applying the medical improvement standard used in
continuing disability review cases. Small v. Astrue, No. 7:08-CV-141-FL, 2009 WL 3029737, at
*5 (E.D.N.C. Sept. 22, 2009). When an ALJ is specifically determining whether an individual
whose impairments previously met a listing is still disabled, the ALJ must consider whether that
listing is still met. 20 C.F.R. § 404.1594(c)(3)(i). Here, the issue is whether the ALJ properly
concluded that plaintiff no longer met Listing 1.07.
Listing 1.07 is met when there is a fracture of an upper extremity with non-union of a
fracture of the shaft of the humerus, radius, or ulna, under continuing surgical management
directed toward restoration of functional use of the extremity, and such function was not restored
or expected to be restored within 12 months of onset. See Listing 1. 07. The ALJ found that plaintiff
did meet Listing 1.07 from October 1, 2008 until July 13, 2014, but relied on radiographs from
July 13, 2012 that demonstrated that there was no longer any non-union of the shaft of the humerus
to conclude that plaintiff no longer met Listing 1.07. The 2011 imaging study had shown some
lingering non-union of the humerus shaft, but the 2012 study found no fracture lucencies. The fact
that a 2016 imaging study revealed that the medial aspect of the proximal humerus remained
ununited does not change the analysis of Listing 1.07, which specifically requires non-union of a
fracture of the shaft of the humerus. Also, plaintiff argues that she has not demonstrated functional
improvement in the use of her left arm, but this is not relevant to the technical question of whether
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Listing 1.07 was met. Substantial evidence supports the ALJ's finding that Listing 1.07 was no
longer met as of July 14, 2012.
Plaintiff also argues that the ALJ erred in finding that she can frequently handle, finger,
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and feel with the left arm. But this finding, too, was supported by substantial evidence. The ALJ
relied on medical records that showed relatively normal findings with respect to plaintiffs hands
and fingers, including that her elbows, hands, and fingers had no swelling, redness, warmth,
tenderness, scarring, or spasms. Plaintiff does not offer evidence of diminished grip strength,
muscle atrophy, sensory deficits, or anything else which would support greater limitations than
those imposed by the ALJ. Substantial evidence existed to support the ALJ's findings as to
plaintiffs limitations in her residual functional capacity.
Finally, the Court finds that plaintiffs challenge to the constitutionality of the ALJ's
appointment in light of Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018),
was waived. Plaintiff failed to raise any challenge to the ALJ' s appointment at any point in the
administrative proceedings. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38
(1952) (holding that parties may not wait until they are in court to challenge agency appointments);
see also Elgin v. Dep 't of Treasury, 567 U.S. 1, 23 (2012) (requiring plaintiff to exhaust her
constitutional claim before seeking review in federal court). Because plaintiff failed to timely raise
her Appointments Clause claim, it has been forfeited, and no remand is necessary on that basis.
In sum, substantial evidence existed in the record to support the ALJ' s finding that plaintiff
no longer met Listing 1.07 as of July 14, 2012, and substantial evidence existed to support the
ALJ' s limitations as to plaintiffs handling, feeling, and fingering with her left arm. Plaintiffs
Appointments Clause claim was not timely raised. Thus, the ALJ committed no reversible error
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and remand would not be appropriate. Plaintiffs motion for judgment on the pleadings must be
denied, and defendant's motion must be granted.
CONCLUSION
Having conducted a full review of the record and decision in this matter, the Court that the
decision as a whole is supported by substantial evidence and that the correct legal standard was
applied. Accordingly, plaintiffs motion for judgment on the pleadings [DE-17] is DENIED and
defendant's motion [DE 20] is GRANTED. The decision of the ALJ is AFFIRMED. The Clerk is
directed to close the file.
CHIEF UNITED STATES
DISTRI~E
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