Hartsfeld et al
Filing
15
MEMORANDUM OPINION AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/05/2012. IT IS THEREFORE RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's motion for judgmen t on the pleadings (Docket Entry 9 ) seeking a reversal of the Commissioner's decision be DENIED, that Defendant's motion for judgment on the pleadings (Docket Entry 11 ) be GRANTED, and that this action be dismissed with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
WILLIAM HARTSFELD,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
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1:08CV00878
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, William Hartsfeld, brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§§ 405(g)), to obtain judicial review of a final decision of the
Commissioner of Social Security denying his claim for Disability
Insurance Benefits under Title II of the Social Security Act (the
“Act”). The parties have filed cross-motions for judgment, and the
administrative record has been certified to the Court for review.
PROCEDURAL HISTORY
Plaintiff
filed
an
application
for
Disability
Insurance
Benefits (“DIB”) on February 17, 2005, alleging a disability onset
date of October 12, 2000. (Tr. 82-84.)1 His application was denied
initially and upon reconsideration.
(Tr. 31, 32.)
Thereafter,
Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”).
1
(Tr. 52.)
Present at the hearing, held on October
Transcript citations refer to the administrative record.
25, 2007, were Plaintiff, his attorney, and a vocational expert
(“VE”).
(Tr. 19.)
The ALJ ultimately determined that Plaintiff
was not disabled within the meaning of the Act.
(Tr. 19-30.)
On
October 8, 2008, the Appeals Council denied Plaintiff’s request for
review of the decision, thereby making the ALJ’s determination the
Commissioner’s final decision for purposes of judicial review.
(Tr. 7.)
In rendering this disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
The
claimant
last
met
the
insured
status
requirements of the Social Security Act on September 30,
2001.
2.
The claimant did not engage in substantial gainful
activity during the period from his alleged onset date of
October 12, 2000 through his date last insured of
September 30, 2001 (20 CFR 404.1520(b) and 404.1571 et
seq.).
3.
Through the date last insured, the claimant had the
following severe impairments: bilateral knee pain
secondary to medial meniscal tear, chronic, status post
arthroscopies; fracture of the right wrist, status post
open reduction internal fixation; depression, anxiety and
alcohol abuse (20 CFR 404.1520(c)).
4.
Through the date last insured, the claimant did not
have an impairment or combination of impairments that
meets or medically equals one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).
5.
After careful consideration of the entire record,
the undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) except no more than frequent pushing
and pulling of arm and feet controls.
The claimant
required a sit/stand option in ½ hour increments. He had
postural limitations of no climbing of ropes and ladders,
but occasional climbing of stairs. He could occasionally
balance, crouch, kneel, crawl and stoop.
He could
frequently use his right upper extremity for handling and
-2-
fingering, but could not perform these functioning
constantly.
He had environmental limitations of no
concentrated exposure to vibrations or work place hazards
(such as unprotected heights and dangerous machinery).
The claimant could carry out simple instructions and
remember and [make] simple work-related decisions. He
could respond appropriately to supervisors and coworkers,
but should not work closely with the general public or in
close coordination with others, but could have worked in
the presence of co-workers. His work needed to be low
stress with no numerical production quotas.
(Tr. 21, 25, 26-27.)
In
light
of
the
findings
regarding
residual
functional
capacity (“RFC”), the ALJ determined that Plaintiff was unable to
perform his past relevant work as a carpenter.
(Tr. 29.)
He found
that transferability of job skills was not an issue in the case,
but added that Plaintiff has a high school education and can
communicate in English.
(Id.)
Finally, because Plaintiff was 50
years old at the time of the ALJ’s decision, the ALJ noted that he
was regulatorily defined as “an individual closely approaching
advanced age.” (See id. (citing 20 C.F.R. §§ 404.1563).) Based on
these factors, Plaintiff’s RFC, and the VE’s testimony, the ALJ
concluded that “there are jobs that exist in significant numbers in
the national economy that the claimant can perform.”
20 C.F.R. §§ 404.1560(c) and 404.1566).)
(Id. (citing
Accordingly, the ALJ
decided that Plaintiff was not under a “disability,” as defined in
the Act, from his alleged onset date on October 12, 2000, through
September 30, 2001, the date last insured.
(Tr. 30.)
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
-3-
Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
However, “the scope
of review of [such an administrative] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
“The courts are not to try the case de novo.”
495 F.2d 396, 397 (4th Cir. 1974).
Oppenheim v. Finch,
Instead, “a reviewing court
must uphold the factual findings of the ALJ [underlying the denial
of benefits] if they are supported by substantial evidence and were
reached through application of the correct legal standard.” Hines,
453 F.3d at 561 (internal brackets and quotation marks omitted).
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (internal citations and quotation marks omitted).
“If
there is evidence to justify a refusal to direct a verdict were the
case before a jury, then there is substantial evidence.”
Hunter,
993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Social Security Commissioner].” Mastro, 270 F.3d at
176 (internal brackets and quotation marks omitted).
“Where
conflicting evidence allows reasonable minds to differ as to
whether
a
claimant
is
disabled,
-4-
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
“The issue before
[the reviewing court], therefore, is not whether [the claimant] is
disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based
upon a correct application of the relevant law.”
Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996).
In confronting the issue so framed, the Court must take note
that “[a] claimant for disability benefits bears the burden of
proving a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981),
and
that,
in
this
context,
“disability”
means
the
“‘inability 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 12
months,’” id. (quoting 42 U.S.C. § 423(d)(1)(A)).2
“To regularize
the adjudicative process, the Social Security Administration has .
. . promulgated . . . detailed regulations incorporating longstanding medical-vocational evaluation policies that take into
account
a
claimant’s
age,
education,
and
work
addition to [the claimant’s] medical condition.”
2
experience
Id.
in
“These
“The Social Security Act comprises two disability benefits programs. The
Social Security Disability Insurance Program . . . provides benefits to disabled
persons who have contributed to the program while employed. The Supplemental
Security Income Program . . . provides benefits to indigent disabled persons.
The statutory definitions and the regulations . . . for determining disability
governing these two programs are, in all aspects relevant here, substantively
identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
-5-
regulations
establish
a
‘sequential
evaluation
process’
to
determine whether a claimant is disabled.” Id. (internal citations
omitted).
This process has up to five steps: “The claimant (1) must not
be engaged in ‘substantial gainful activity,’ i.e., currently
working; and (2) must have a ‘severe’ impairment that (3) meets or
exceeds the ‘listings’ of specified impairments, or is otherwise
incapacitating to the extent that the claimant does not possess the
residual functional capacity to (4) perform [the claimant’s] past
work or (5) any other work.”
Albright v. Commissioner of the
Social Security Admin., 174 F.3d 473, 475 n.2 (1999).3
A finding
adverse to the claimant at any of several points in this five-step
sequence forecloses a disability designation and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
-6-
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can “perform past relevant
work”; if so, the claimant does not qualify as disabled.
179-80.
Id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the government cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
4
“RFC is a measurement of the most a claimant can do despite [the
claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative
regulations require RFC to reflect claimant’s “ability to do sustained workrelated physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an
equivalent work schedule” (internal emphasis and quotation marks omitted)). The
RFC includes both a “physical exertional or strength limitation” that assesses
the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy
work,” as well as “nonexertional limitations (mental, sensory, or skin
impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only
after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
5
A claimant thus can qualify as disabled via two paths through the fivestep sequential evaluation process. The first path requires resolution of the
questions at steps one, two, and three in the claimant’s favor, whereas, on the
second path, the claimant must prevail at steps one, two, four, and five. Some
short-hand judicial characterizations of the sequential nature of the five-step
disability evaluation appear to gloss over the fact that an adverse finding
against a claimant on step three does not terminate the analysis. See, e.g.,
Hunter, 993 F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any
(continued...)
-7-
Assignments of Error
Plaintiff argues that the Commissioner’s findings are in error
because the ALJ failed to (1) “adequately account for [Plaintiff’s]
limitations in understanding, remembering[,] and carrying out
instructions,” (2) “consider all important evidence,” (3) “assess
and
incorporate
limitations
into
all
her
of
the
Plaintiff’s
assessment
of
the
physical
and
Plaintiff’s
mental
residual
functional capacity,” and (4) base her step-five determination on
substantial evidence.
(Docket Entry 10 at 3.)
Defendant contends
that substantial evidence supports the ALJ’s determination that
Plaintiff was not disabled.
1.
(Docket Entry 12 at 12.)
Mental RFC Determination
Plaintiff’s first three claims present variations of a single
issue, that is, whether the ALJ properly determined Plaintiff’s
mental RFC.
In particular, Plaintiff questions whether the ALJ
adequately considered the mental assessments by Drs. Margaret
Wiebe, Eleanor Cruise, and H. Ezell Branham in formulating the RFC
set out in her decision.
(Docket Entry 10 at 4-8.)6
further contends that the mental RFC
5
Plaintiff
in question “fail[ed] to
(...continued)
step of the process, review does not proceed to the next step.”).
6
Drs. Wiebe and Cruise are consultative psychological examiners for the
Social Security Administration’s disability determination services (“DDS”), which
consists of federally-funded state agencies responsible for developing medical
evidence and rendering initial disability determinations. (See Tr. 212, 662);
see also Social Security Administration, Disability Determination Process,
http://www.ssa.gov/disability/determination.htm (last visited Jan. 3, 2012). Dr.
Branham is an independent psychiatrist. (See Tr. 641.)
-8-
account for the multitude of limitations” described by these three
physicians.
(Id. at 9.)
As an initial matter, the ALJ’s alleged failure to discuss the
mental limitations set forth by Drs. Wiebe, Cruise, and Branham
does not necessitate a finding of error.
Simply stated, there is
no requirement that an ALJ discuss each piece of evidence in her
decision.
See, e.g., Black v. Apfel, 143 F.3d 383, 386 (8th Cir.
1998); Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995).
Moreover, even a cursory reading of the ALJ’s decision reveals
that she did, in fact, consider the limitations set forth by Drs.
Wiebe and Cruise.
Plaintiff simply ignores the language of the
examiners’ conclusions and recommendations, which the RFC all but
quotes.
He focuses instead on the mental activity limitations
checked by Drs. Wiebe and Cruise in their underlying functional
capacity assessments.
In
particular,
“moderate”
Plaintiff’s
limitations,
as
“significant” limitations.
termed
argument
in
these
repeatedly
equates
assessments,
with
A plain-language reading of both the
applicable listings and the assessments themselves reveal the error
in this line of thinking.
reflects,
a
mental
As the ALJ’s decision accurately
impairment,
or
combination
of
mental
impairments, must result in a “marked” limitation in at least two
areas of mental activity in order to equal one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (See Tr.
25; see also 20 C.F.R. 404.1520(d), 404.1525, and 404.1526.)
-9-
“A marked limitation means more than moderate but less than
extreme.”
(Tr. 25 (emphasis added).)
Here, neither Dr. Wiebe nor
Dr. Cruise assessed Plaintiff as more than moderately limited in
any area, let alone two or more.
Plaintiff does not contend
otherwise, but instead merely alleges that Dr. Wiebe found that
Plaintiff had moderate functional limitations in five of twenty
mental
activity
areas
and
that
limitations in six of these areas.
Dr.
Cruise
found
moderate
Plaintiff provides no evidence
at all of the “significant limitations” he alleges.
(See Docket
Entry 10 at 5.)
The conclusions and recommendation set forth by Drs. Wiebe and
Cruise further demonstrate the limited nature of Plaintiff’s mental
impairments. Dr. Cruise, for example, found that Plaintiff suffers
from moderate limitations in his abilities to (1) understand and
remember
detailed
instructions,
(2)
carry
out
detailed
instructions, (3) maintain attention and concentration for extended
periods,
(4)
complete
a
normal
workday
and
workweek
without
interruptions from psychologically based symptoms, (5) accept
instructions
and
respond
appropriately
to
criticism
from
supervisors, and (6) respond appropriately to changes in the work
setting.
(Tr.
658-59.)
Despite
these
limitations,
Dr.
Cruise
summarized Plaintiff’s abilities as follows:
A) able to understand and remember simple instructions
without significant difficulty
B) able to sustain adequate attention and concentration
to complete simple tasks
C) able to appropriately interact with others
D) able to adjust to routine changes
-10-
(Tr. 660.)
Overall, she concluded that Plaintiff was capable of
simple, routine, repetitive tasks.
(Id.)
After performing a
similar assessment, Dr. Wiebe primarily agreed with Dr. Cruise, but
added that Plaintiff would benefit from low production tasks with
limited personal interaction.
(Tr. 212.)
Based on these findings, the ALJ formulated the following
mental RFC:
The claimant could carry out simple instructions and
remember and [make] simple work-related decisions. He
could respond appropriately to supervisors and coworkers,
but should not work closely with the general public or in
close coordination with others, but could have worked in
the presence of co-workers. His work needed to be low
stress with no numerical production quotas.
(Tr. 26-27.)
A comparison of this summary with the conclusions of
Drs. Wiebe and Cruise makes it abundantly clear that the ALJ in
this case fully considered and incorporated their findings into her
decision.
Because Plaintiff has failed to demonstrate that the
ALJ’s RFC determination conflicts with the assessments of Drs.
Wiebe and Cruise, the Court finds no error.
Plaintiff next argues that “the ALJ also failed to fully
consider the limitations assessed by Dr. H. Ezell Branham,” who
“found that the Plaintiff suffers from a bi-polar disorder which
has associated features of depressed and irritable mood, anhedonia,
appetite disturbance, sleep disturbance, psychomotor agitation,
decreased energy and feelings of guilt and worthlessness.” (Docket
Entry 10 at 6.)
However, as Defendant points out in his brief,
“the doctor’s opinion is based on medical observations made between
April and November 2006 and October 19, 2007 (Tr. 4, 641-647,
-11-
1024), well after Plaintiff’s date last insured, September 30,
2001.”
ALJ
(Docket Entry 12 at 6.)
[was
not]
under
any
As such, Defendant contends “the
obligation
to
accept
the
doctor’s
assessment since there is no evidence that it is based on the
impairments or restrictions that Plaintiff experienced prior to
September 2001.”
(Id. at 7.)
Plaintiff, in turn, contends that
the mental issues Dr. Branham evaluated are “long standing and
documented back through VA records that precede” his date last
insured.
(Docket Entry 10 at 6.)
Ultimately, the timing of Dr. Branham’s mental assessment is
inapposite.
Even
if
the
Court
accepts
his
evaluation
as
retrospective, Plaintiff encounters the same problems he faced in
challenging the state agency examinations.
Dr. Branham, like Drs.
Wiebe and Cruise, did not categorize any of Plaintiff’s mental
activities as more than moderately limited.
(See Tr. 1028-29.)
Further, even considering the myriad associated features of bipolar
disorder he attributed to Plaintiff, Dr. Branham still concluded
that Plaintiff is not currently significantly limited in any area,
including daily living, social functioning, or concentration,
persistence, or pace. (Tr. 1026.) In short, Plaintiff again fails
to show that his mental RFC is unsupported by substantial evidence
or is in any way inconsistent with his medical evaluations.
His
challenges in that regard thus fail.
2.
Step Five Determination
Plaintiff
evidence
of
next
record”
argues
fail
that
to
the
support
-12-
VE’s
the
testimony
ALJ’s
“and
finding
the
that
Plaintiff could maintain a full-time job. (Docket Entry 10 at 10.)
At step five of the sequential evaluation, the Commissioner bears
the burden of providing evidence of a significant number of jobs in
the national economy that a claimant could perform considering his
age, education, and vocational experience in conjunction with his
residual functional capacity. Walls v. Barnhart, 296 F.3d 287, 290
(4th Cir. 2002).
Where, as here, a claimant suffers from both
exertional and nonexertional limitations, the ALJ must make this
showing through the use of vocational testimony.
889 F.2d 47, 49-50 (4th Cir. 1989).
Walker v. Bowen,
For a vocational expert’s
opinion to be relevant, it must be based on a hypothetical question
that incorporates all of a claimant’s impairments.
Id. at 50-51.
Here, Plaintiff presents two arguments regarding the ALJ’s
step five determination.
First, in an extension of his prior
claim, Plaintiff alleges that the ALJ “presented a hypothetical [to
the VE] that was in stark contrast to [the] opinions” of Drs.
Wiebe, Cruise, and Branham.
(Docket Entry
10 at 9.)
reasons discussed above, this contention lacks merit.
For the
Plaintiff
makes no claim that the ALJ’s hypothetical question failed to
accurately reflect his RFC; he merely rehashes his previous,
unsuccessful challenge to the RFC itself.
Plaintiff’s second argument is equally unavailing.
Here, he
contends that the VE’s responses to his counsel’s hypothetical
questions demonstrated his inability to work:
One of the questions posed was essentially, if the
Plaintiff had multiple absences a month, would [that]
effect [sic] her opinions concerning the Plaintiff’s
-13-
ability to work.
(Tr. 1088). [The VE] testified the
Plaintiff would then not be capable of maintaining work
on a full time basis and that such an individual would
eventually lose their job. Id.
Similarly, the [VE] found that if the Plaintiff was
unable to “walk two-thirds of the day” they would have
difficulty maintaining full time employment. (Tr. 1089).
We note for the record that [the ALJ’s RFC] assessment
included that the Plaintiff would “require[] a sit/stand
option in ½ hour increments.” (Tr. 26).
(Docket Entry 10 at 9.)
Although Plaintiff might well be disabled if he had to miss
five days a month due to pain or needed to elevate his leg “four
times throughout a shift” (Tr. 1088-89), no evidence, let alone
substantial evidence, supports the existence of these restrictions
in the present case.
Substantial evidence thus supports the ALJ’s
finding at step five.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s motion for
judgment on the pleadings (Docket Entry 9) seeking a reversal of
the Commissioner’s decision be DENIED, that Defendant’s motion for
judgment on the pleadings (Docket Entry 11) be GRANTED, and that
this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 5, 2012
-14-
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