ROYBAL v. ASTRUE
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, signed by MAG/JUDGE L. PATRICK AULD on 5/20/2014. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment Reversing Judgment of the Commissioner or Remanding theCause for Rehearing (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that this action be dismissed with prejudice. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT H. ROYBAL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,1
Defendant.
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1:11CV389
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Robert H. Roybal, brought this action pursuant to
Section 205(g) of the Social Security Act (the “Act”) to obtain
judicial review of a final decision of Defendant, the Commissioner
of Social Security, denying Plaintiff’s claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Titles II and XVI of the Act, respectively.
2.)
(Docket Entry
The Court has before it the certified administrative record
(cited herein as “Tr. __”), as well as the parties’ cross-motions
for judgment (Docket Entries 10, 12). For the reasons that follow,
the Court should enter judgment for Defendant.
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013, resulting in her substitution as Defendant, pursuant to
Federal Rule of Civil Procedure 25(d).
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI and alleged a disability
onset date of June 15, 2003.
(Tr. 186-93.)
Upon denial of that
application initially (Tr. 63-64, 86-93) and on reconsideration
(Tr. 65-66, 96-104), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 105-06).
Plaintiff, his
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 15-62.)
The ALJ then ruled Plaintiff not disabled within the
meaning of the Act. (Tr. 67-81.) The Appeals Council subsequently
denied Plaintiff’s request for review, making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
(Tr. 1-7.)
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the . . . Act through June 30, 2006.
2.
[Plaintiff] has not engaged in substantial gainful
activity since June 15, 2003, the alleged onset date (20
CFR 404.1571 et seq., and 416.971 et seq.).
3.
[Plaintiff] has the following severe impairments:
chronic cholecy[s]titis and degenerative disc disease (20
CFR 404.1520(c) and 416.920(c)).
. . .
4.
[Plaintiff] does 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, 404.1526,
416.920(d), 416.925 and 416.926).
2
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform the full range of light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except that:
[Plaintiff] need[s] a sit/stand option. [Plaintiff] can
frequently reach in all directions and can frequently
balance, stoop, kneel, crouch, and crawl. [Plaintiff] can
occasionally climb ramps and stairs, but can never climb
ladders, ropes and scaffolds.
(Tr. 72-78.)
In
light
of
the
findings
regarding
residual
functional
capacity (“RFC”), the ALJ concluded that Plaintiff could not
perform his past relevant work as a restaurant cook, forklift
driver,
ceramic
tile
installer,
restaurant
manager,
tool
and
equipment rental clerk, equipment cleaner and vehicle unloader.
(Tr. 78-79.)
However, based on the VE’s testimony, as well as
consideration of Plaintiff’s age, education, work experience, and
RFC, the ALJ concluded that “jobs [] exist[ed] in significant
numbers in the national economy that [Plaintiff] can perform.”
(Tr. 79-80 (citing 20 C.F.R. § 404.1569, 404.1569(a), 416.969, and
416.969(a)).)
Accordingly, the ALJ found Plaintiff to suffer from
no “disability,” as defined in the Act, at any time from the
alleged onset date through the date of decision.
(Tr. 81.)
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
3
Hines v.
However, “the scope
of . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
are not to try the case de novo.”
396, 397 (4th Cir. 1974).
“The courts
Oppenheim v. Finch, 495 F.2d
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. 1992) (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 brackets 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 [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the 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
4
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the 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 that issue, the Court must 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 experience in addition to [the claimant’s]
2
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. [SSI] . . . 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
medical condition.”
Hall, 658 F.2d at 264.
“These regulations
establish a ‘sequential evaluation process’ to determine whether a
claimant is disabled.”
Id. (internal citations omitted).
This sequential evaluation process (“SEP”) 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 Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).3
A finding adverse to the claimant at any of
several points forecloses a benefits award 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
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
is not sufficiently severe to equal or exceed a listed impairment,
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 SEP.
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 SEP appear to gloss over the fact that an adverse finding against a
(continued...)
7
Assignments of Error
According to Plaintiff, substantial evidence fails to support
the ALJ’s findings at steps two, three, and four, and/or the ALJ
misapplied the law at those steps.
(Docket Entry 11 at 4-12.)
Specifically, Plaintiff asserts the ALJ erred by:
(1) improperly
evaluating Plaintiff’s credibility and the medical record resulting
in an RFC finding not supported by substantial evidence (and, by
extension, wrongful resolution of step five) (id. at 4-7); (2) not
finding Plaintiff’s shoulder pain and morbid obesity to constitute
severe
impairments
at
step
two
and
not
considering
those
impairments when assessing Plaintiff’s RFC (again, causing error at
step five) (id. at 7-10); and (3) failing to find at step three
that Plaintiff’s degenerative disc disease met the criteria of
Listing 1.04A (id. at 10-12).
urges
that
disability.
1.
substantial
Defendant contends otherwise and
evidence
supports
the
finding
of
no
(Docket Entry 13 at 4-12.)
Plaintiff’s Credibility
Plaintiff first contends that the ALJ “improperly evaluated
[Plaintiff’s] credibility and the medical record which resulted in
an RFC finding which is not supported by substantial evidence.”
(Docket
Entry
11
at
4.)
According
to
Plaintiff,
the
ALJ’s
5
(...continued)
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 step of the
process, review does not proceed to the next step.”).
8
credibility analysis fails to comport with the requirements of
Social Security Ruling 96-7p, Policy Interpretation Ruling Titles
II and XVI: Evaluation of Symptoms in Disability Claims: Assessing
the Credibility of an Individual’s Statements (“SSR 96-7p”), 1996
WL 374186 (July 2, 1996), in two respects: (1) the ALJ found
Plaintiff’s symptoms “not credible to the extent that they are not
inconsistent with [the ALJ’s] [RFC] assessment,” while “mak[ing] no
attempt to describe exactly why she feels that [Plaintiff] is not
credible” (Docket Entry 11 at 4 (citing Tr. 78)); and (2) the ALJ
did not consider Plaintiff’s “persistent efforts to obtain pain
relief” at hospitals and free clinics (id. at 5). Plaintiff argues
that
the
ALJ’s
“[f]ailure
to
articulate
the
reasons
for
discrediting subjective testimony requires as a matter of law, that
the testimony be accepted as true.”
(Id. at 6 (citing Wilson v.
Barnhardt, 284 F.3d 1219, 1225 (11th Cir. 2002)).)
Finally,
Plaintiff complains that the ALJ improperly limited her discussion
of the medical evidence to one visit with Dr. Huey Chu, who
evaluated Plaintiff post-operatively following a cholecystectomy in
May 2010.
maintains
(Id. at 5-6 (citing Tr. 78, 574-75).)
that
the
ALJ
“grossly
distort[ed]
this
Plaintiff
‘opinion’
evidence,” because Dr. Chu’s assessment reflects only Plaintiff’s
post-operative
course
in
2010
and
does
not
undermine
his
symptomatology during the “nearly seven years prior to [the]
9
surgery” when he contends he could not work.
(Id.)
These
assignments of error fall short.
SSR 96-7p, as applied by the Fourth Circuit in Craig, 76 F.3d
at 594-95, provides a two-part test for evaluating a claimant’s
statements about symptoms. “First, there must be objective medical
evidence showing ‘the existence of a medical impairment(s) which
results
from
anatomical,
physiological,
or
psychological
abnormalities and which could reasonably be expected to produce the
pain or other symptoms alleged.’”
Id. at 594 (quoting 20 C.F.R.
§ 404.1529(b)). Upon satisfaction of part one by the claimant, the
analysis proceeds to part two, which requires an assessment of the
intensity and persistence of the claimant’s symptoms, as well as
the extent to which they affect his or her ability to work.
595.
Id. at
In making that determination, the ALJ:
must take into account not only the claimant’s statements
about her pain, but also all the available evidence,
including the claimant’s medical history, medical signs,
and laboratory findings, any objective medical evidence
of pain (such as evidence of reduced joint motion, muscle
spasms, deteriorating tissues, redness, etc.), and any
other evidence relevant to the severity of the
impairment, such as evidence of the claimant’s daily
activities, specific descriptions of the pain, and any
medical treatment taken to alleviate it.
Id. (internal citations and quotation marks omitted).
In this case, the ALJ found for Plaintiff on part one of the
inquiry,
but
ruled,
in
connection
with
part
two,
that
his
statements about the degree of his symptoms lacked credibility in
10
so far as he claimed a level of physical impairment that would
prevent him from performing a range of light work.
(Tr. 78.)
particular, the ALJ noted the following:
[Plaintiff] testified that his average pain on an average
day is a five on a scale of one to ten when he is taking
his medication. [Plaintiff] testified that he drives to
the grocery store or to visit his father “maybe four to
five times per week.”
[Plaintiff] testified that the
furthest distance that he drives is to visit his father,
which is approximately twelve miles, but that he has
driven approximately sixty miles once every one to two
months to visit his mother, most recently one or two
months ago. [Plaintiff] testified that with regard to his
back, he attends a free care clinic and was unable to do
water exercises as suggested because there was no such
facility available. [Plaintiff] testified that when he is
not in pain, he does do land exercises, but that he has
not done any such exercises in the past three months due
to pain in his shoulders.
. . .
In terms of [Plaintiff’s] alleged degenerative disc
disease, [Plaintiff] testified that he spends most of his
days in the recliner with his feet up. He testified that
lying on his bed with a pillow between his legs relieves
the pressure on his back. He testified that he can sit
for approximately thirty minutes before he has to change
positions and that he can walk or stand for approximately
fifteen minutes before he has to stop and sit down.
With regard to the opinion evidence, Dr. Chu assessed
[Plaintiff] with cholelithiasis in his office visit notes
dated May 11, 2010, but stated that [Plaintiff] is “doing
very well” and “may resume usual activities.” Dr. Chu
noted that [Plaintiff’s] pain was a “2” on a scale of “110” and also included [Plaintiff’s] past medical history
of “lumbar disc degeneration.”
I afford Dr. Chu’s
opinion great weight a[s] it is based on his view of the
progressions of [Plaintiff’s] impairments over several
visits as [Plaintiff’s] treating physician and is based
on his review of objective medical testing.
11
In
(Tr. 77-78 (parenthetical numbers and hearing transcript references
omitted).)
Notably, the ALJ gave “little weight” to the opinions
of the state consultative physicians who both found that Plaintiff
remained capable of a range of medium work, remarking that she felt
those opinions did not adequately account for limitations caused by
Plaintiff’s cholecystitis and degenerative disc disease.
(Tr. 78;
see also Tr. 376-83, 398-405.)
Turning
to
the
allegations
that
the
ALJ’s
credibility
evaluation violated SSR 96-7p, Plaintiff’s contention that the ALJ
failed to give any reasons for discrediting Plaintiff’s subjective
complaints lacks merit, because the ALJ, as noted above, did
provide a rationale for finding Plaintiff’s testimony not fully
credible, e.g., that she credited the opinion of Plaintiff’s
treating physician, Dr. Chu, that Plaintiff was “doing very well”
and could resume his “usual activities.”
(Id. (citing Tr. 575).)
In addition, the ALJ described some of the activities of daily
living which Plaintiff testified he continued to do despite his
alleged disability, including driving on a regular basis and
grocery shopping.
(Tr. 77-78.)
requires
consider
ALJs
to
a
As noted above, the Craig test
claimant’s
daily
activities
conjunction with evaluation of subjective complaints.
in
The ALJ
accurately described Dr. Chu’s opinions and Plaintiff’s testimony,
and Plaintiff makes no argument to the contrary.
12
Thus, the ALJ’s
reasons for not fully crediting Plaintiff’s subjective complaints
satisfy Craig and SSR 96-7p.
Second, although Plaintiff claims the ALJ violated SSR 96-7p
by neglecting to consider Plaintiff’s attempts to obtain pain
relief at hospitals and free clinics, the ALJ’s decision reflects
consideration of numerous diagnostic studies performed at Moore
Regional Hospital regarding Plaintiff’s degenerative disc disease.
(Tr. 73; see also Tr. 287, 289, 292.)
Moreover, the ALJ considered
Plaintiff’s efforts to relieve his symptoms from esophageal reflux,
hypertension, hypercholesterolemia, and hyperthyroidism at the
Moore Free Care Clinic (see Tr. 73 (citing Exhibit 7F, records from
Moore Free Care Clinic)) and she expressly noted Plaintiff’s
hearing testimony that he obtains cortisone shots in his shoulder
twice a year (Tr. 73; see also Tr. 32).
It matters not that the
ALJ discussed those items as part of her evaluation at steps two
and three of the SEP rather than as part of the credibility
analysis, because the substantial evidence test does not require
the ALJ to rehash the same medical evidence at latter stages of the
SEP.
See Smith v. Astrue, 457 F. App’x 326, 328 (4th Cir. 2011)
(concluding that, despite ALJ’s “cursory” explanation at step
three,
ALJ’s
analysis
at
other
steps
sustained
step
three
determination); McCartney v. Apfel, 28 F. App’x 277, 279-80 (4th
Cir. 2002) (rejecting challenge to ALJ’s finding for lack of
sufficient detail where other discussion in decision adequately
13
supported finding and stating “that the ALJ need only review
medical evidence once in his decision”); Kiernan v. Astrue, No.
3:12CV459-HEH, 2013 WL 2323125, at *5 (E.D. Va. May 28, 2013)
(unpublished) (observing that, where an “ALJ analyzes a claimant’s
medical
evidence
in
one
part
of
his
decision,
there
is
no
requirement that he rehash that discussion” in other parts of his
analysis).
The ALJ adequately considered Plaintiff’s attempts to
seek pain relief in compliance with SSR 96-7p.
Finally, Plaintiff’s challenge to the ALJ’s reliance on the
opinions of Dr. Chu in discrediting Plaintiff’s credibility fails
for two reasons.
First, the ALJ properly relied on Dr. Chu’s
opinions, as Dr. Chu treated Plaintiff for one of the two severe
impairments the ALJ found to exist (cholecystitis) and indicated
his awareness of Plaintiff’s other severe impairment by noting a
past medical history of “lumbar disc degeneration.”
(Tr. 574.)
Second, as discussed above, the ALJ detailed a considerable amount
of the medical evidence of record in her analyses at steps two and
three of the SEP, including x-rays showing only mild degenerative
changes in Plaintiff’s cervical, thoracic, and lumbar spines,
negative bilateral shoulder x-rays, and a negative cholangiogram.
(Tr. 72-77.)
Significantly, the ALJ discredited the opinion
evidence from the state agency consultants who had found Plaintiff
capable of a range of medium work (Tr. 78), and no other physician
of record submitted an opinion regarding Plaintiff’s ability to
14
perform work-related activities. The ALJ did not err by relying on
Dr. Chu’s opinion.
In sum, the ALJ’s credibility analysis in this case meets the
substantial evidence test and does not contain reversible error.
2.
Severe Impairments
According to Plaintiff, the ALJ also erred by failing to
identify Plaintiff’s shoulder pain and morbid obesity as severe
impairments and to include any limitations for those impairments in
the RFC.
(Docket Entry 11 at 7-10.)
In support of this argument,
Plaintiff points to medical records showing diagnoses of rotator
cuff “tenderness” and degenerative joint disease in his left
shoulder and limited range of motion and weakness in his left
shoulder on one examination.
(Id. at 8 (citing Tr. 323-24, 331).)
Plaintiff also asserts that the ALJ failed to assess his pain
during the “six to eight months” of the year when his cortisone
injections no longer reduce his shoulder pain and that the ALJ
erroneously
“stated
arthritis.”
(Id.)
that
[Plaintiff]
did
not
suffer
from
With regard to his obesity, Plaintiff argues
that his Body Mass Index (“BMI”), which categorizes his obesity as
“morbid,”
demonstrates
impairment.
(Id.)
that
his
obesity
constitutes
a
severe
Plaintiff finally contends that the ALJ “must
consider limitations and the restrictions imposed by all of an
individuals’s impairments, even those that are not severe” and thus
erred by failing to engage in the function-by-function narrative
15
required by Social Security Ruling 96-8p, Policy Interpretation
Ruling Titles II and XVI: Assessing Residual Functional Capacity in
Initial Claims (“SSR 96-8p”), 1996 WL 374184 (July 2, 1996), when
determining Plaintiff’s RFC.
(Id. at 9.)
These contentions lack
merit.
An impairment qualifies as “not severe” if it constitutes only
“a slight abnormality . . . that has no more than a minimal effect
on the ability to do basic work activities.”
Social Security
Ruling 96-3p, Policy Interpretation Ruling Titles II and XVI:
Considering Allegations of Pain and Other Symptoms in Determining
Whether a Medically Determinable Impairment is Severe (“SSR 963p”), 1996 WL 374181, at *1.
Applicable regulations further
provide that “basic work activities” include:
(1) Physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying,
or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering
simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, coworkers and usual work situations; and
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b).
Plaintiff bears the burden of showing severity at step two.
See Hunter, 993 F.2d at 35 (“Through the fourth step, the burden of
16
production and proof is on the claimant.”).
Unless obviously
slight, insignificant, or meaningless, limitation in one of the
above-cited
areas
due
to
an
impairment
recognition of that impairment as severe.
748 F.2d 1027, 1032 (5th Cir. 1984).
generally
leads
to
See Martin v. Heckler,
Plaintiff, however, must
support any showing of severity with relevant medical evidence:
A claimant’s showing at step two that he or she has a
severe impairment has been described as “de minimis.”
Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997);
see Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.
1988)(“de minimis showing of medical severity”).
A
claimant need only be able to show at this level that the
impairment would have more than a minimal effect on his
or her ability to do basic work activities. Williams,
844 F.2d at 751. However, the claimant must show more
than the mere presence of a condition or ailment. If the
medical severity of a claimant’s impairments is so slight
that the impairments could not interfere with or have a
serious impact on the claimant’s ability to do basic work
activities, the impairments do not prevent the claimant
from engaging in substantial work activity. Thus, at
step two, the ALJ looks at the claimant’s impairment or
combination of impairments only and determines the impact
the impairment would have on his or her ability to work.
Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
The determination at step two is based on medical factors
alone. Williamson v. Barnhart, 350 F.3d 1097, 1100 (10th
Cir. 2003). A claimant must provide medical evidence
that he or she had an impairment and how severe it was
during the time the claimant alleges they were disabled.
20 C.F.R. § 404.1512(c). The evidence that a claimant
has an impairment must come from acceptable medical
sources including licensed physicians or psychologists.
20 C.F.R. § 404.1513(a).
A claimant’s statements
regarding the severity of an impairment is [sic] not
sufficient. Adame v. Apfel, 2000 WL 422341 at *3-4 (D.
Kan. March 20, 2000); Flint v. Sullivan, 743 F. Supp.
777, 782 (D. Kan. 1990).
17
Rivas v. Barnhart, No. 05-1266 MLB, 2006 WL 4046153, at *4 (D. Kan.
Aug. 16, 2006) (unpublished).
In this case, although the record reflects Plaintiff’s selfreported complaints of shoulder pain beginning in July 2008 (see,
e.g., Tr. 324, 326, 331, 333, 337, 549), “[t]he determination at
step two is based on medical factors alone.”
4046153, at *4 (emphasis added).
Rivas, 2006 WL
The medical evidence falls short
of a level that would have required the ALJ to find Plaintiff’s
shoulder pain severe.
X-rays of Plaintiff’s shoulders revealed no
abnormality (Tr. 290-91) and no treating physician assessments
exist identifying any limitations linked to Plaintiff’s shoulder
pain.
To the contrary, Plaintiff’s medical providers assessed
Plaintiff as neurologically intact (see, e.g., Tr. 331) and, with
one exception on March 19, 2009 (Tr. 324), noted normal strength in
his arms (see, e.g., Tr. 337, 550).
Plaintiff’s assertion that the ALJ failed to assess his pain
during the “six to eight months” of the year when his cortisone
injections no longer reduce his shoulder pain misses the mark.
After Plaintiff testified that his shoulders “go right back . . .
to hurting again” once the cortisone shots wear off, the ALJ asked
him whether he had sought any other type of treatment or physical
therapy and whether he had any problems gripping.
(Tr. 33.)
Plaintiff indicated that he had not sought any other treatment for
his shoulder pain and did not have problems gripping “most of the
18
time.”
(Id.)
The ALJ thus clearly attempted to gauge Plaintiff’s
degree of limitation from his shoulder pain once the cortisone
shots wear off.6
Substantial evidence thus supports the ALJ’s
omission of shoulder pain from the list of Plaintiff’s severe
impairments.
With respect to Plaintiff’s obesity, the ALJ properly noted in
her decision that she considered whether his obesity, either alone
or in combination with another medically determinable physical or
mental impairment, significantly limited his ability to perform
basic work activities in accordance with SSR 02-1p, Titles II and
XVI: Evaluation of Obesity (“SSR 02-1p”), 2002 WL 34686281 (Sept.
12, 2002).
(Tr. 74.)
The ALJ also correctly noted that Plaintiff
“did not testify that his weight has limited his ability to perform
work.”
(Id.)
Plaintiff testified that a slip and fall injury in
2003 when he worked as a cook injured his “sciatic nerve” landing
him “in bed for like over a month, month and a half” and “then that
was it” as far as his ability to work.
(Tr. 25.)
Consistent with
Plaintiff’s testimony that his back pain caused his inability to
work rather than obesity, Plaintiff did not list “obesity” as an
impairment on his Disability Report at the time of his application
6
Plaintiff’s assertion that the ALJ “stated” during the hearing that
Plaintiff “did not suffer from arthritis” constitutes a misrepresentation of the
record. The ALJ merely asked Plaintiff’s attorney where she could locate the
diagnosis of shoulder arthritis in the record, to which the attorney responded,
“It’s degenerative joint disease, I believe the former diagnosis is.” (Tr. 42.)
The ALJ then remarked, “Yes. . . .Okay, thank you.” (Id.)
19
for benefits
in
2009.
(Tr. 203.)
Substantial
evidence thus
supports the ALJ’s decision to find Plaintiff’s obesity a nonsevere impairment.
Even if the ALJ should have listed shoulder pain and obesity
as a severe impairment, that error does not warrant relief here.
Where an ALJ finds at least one severe impairment, any failure to
identify
more
because,
“upon
generally
cannot
determining
that
constitute
a
reversible
claimant
has
one
error,
severe
impairment, the [ALJ] must continue with the remaining steps in his
disability evaluation.”
Maziarz v. Secretary of Health & Human
Servs., 837 F.2d 240, 244 (6th Cir. 1987); accord Oldham v. Astrue,
509 F.3d 1254, 1256-57 (10th Cir. 2007); Lewis v. Astrue, 498 F.3d
909, 911 (9th Cir. 2007); Lauver v. Astrue, No. 2:08CV87, 2010 WL
1404767, at *4 (N.D.W. Va. Mar. 31, 2010) (unpublished); Washington
v. Astrue, 698 F. Supp. 2d 562, 579 (D.S.C. 2010); Jones v. Astrue,
No. 5:07CV452FL, 2009 WL 455414, at *2 (E.D.N.C. Feb. 23, 2009)
(unpublished).
The ALJ here found two severe impairments at step
two and proceeded with the SEP.
(Tr. 72.)
Although Plaintiff
claims the ALJ failed to address his shoulder pain and obesity in
the RFC in violation of SSR 96-8p (Docket Entry 11 at 9-10),7
7
Even assuming the ALJ violated SSR 96-8p’s requirement of a function-byfunction analysis of all work-related abilities, any such error qualifies as
harmless given that substantial evidence supports the ALJ’s RFC determination,
and in turn, the VE’s conclusion that a significant number of jobs exists that
Plaintiff could perform. See Robinson v. Astrue, No. 8:11-cv-03375-RMG-JDA, 2013
WL 625583, at *12 (D.S.C. Jan. 23, 2013) (unpublished) (concluding that ALJ’s
(continued...)
20
Plaintiff has not identified any limitations the ALJ should have
included for either impairment (id.).
adequately
dealt
with
Plaintiff’s
Moreover, the ALJ’s RFC
shoulder
pain
and
obesity
(whether classified as severe or not) by restricting him to light
work
with
a
sit/stand
option
and
limitations
to
occasional
ramp/stair climbing and frequent (but not constant) reaching, as
well as no climbing of ladders, ropes, or scaffolds.
(Tr. 77-78.)
Under such circumstances, any alleged improper application of law
at step two caused Plaintiff no prejudice (and thus requires no
relief).
See Oldham, 509 F.3d at 1256-57; Lewis, 498 F.3d at 911;
Maziarz,
837
F.2d
at
244;
Lauver,
2010
WL
1404767,
at
*4;
Washington, 698 F. Supp. 2d at 579-80; Jones, 2009 WL 455414, at
*2.
3.
Listing 1.04A
Finally, Plaintiff maintains that the record “conclusively
demonstrates” that his lumbar degenerative disc disease meets the
criteria of Listing 1.04A pertaining to spinal disorders, 20 C.F.R.
Part 404, Subpt. P, App’x 1, § 1.04A.
(Docket Entry 11 at 10.)
In
support of this argument, Plaintiff points to findings in the
medical record that he alleges demonstrate nerve root compression
7
(...continued)
failure to make function-by-function assessment under SSR 96-8p represented
harmless error where substantial evidence supported RFC determination).
21
(Tr. 550), neuroanatomic distribution of pain (Tr. 302, 398, 548),8
limitation of motion of the spine (Tr. 298, 344, 354-55, 547, 548),
motor loss (Tr. 323-24, 346, 354-55, 547, 548) accompanied by
sensory loss (Tr. 302, 549), and positive straight-leg raising
tests (Tr. 298, 302, 348)9 sufficient to meet the criteria of
Listing 1.04A (Docket Entry 11 at 11-12). Plaintiff faults the ALJ
for specifically analyzing the criteria of Listing 1.04C in her
decision rather than 1.04A.
Listing 1.04A requires proof that the spinal disorder has
“result[ed] in compromise of a nerve root (including the cauda
equina) or the spinal cord” and:
A.
Evidence of nerve root compression characterized by
neuronatomic distribution of pain, limitation of
motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there
is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
To show that his condition meets a listed impairment, Plaintiff
must establish that his impairment “meet[s] all of the specified
8
Page 398 is the first page of an RFC determination by a state agency
physician and does not reflect any physical findings of neuroanatomic
distribution of pain. (Tr. 398.) Page 298, however, reflects Plaintiff’s visit
to Moore Regional Hospital on April 22, 2003, and indicates that Plaintiff
reported “low back pain with radiation into the right leg.” (Tr. 298.)
9
Again, Plaintiff cites an incorrect page for evidence of positive
straight leg raising tests. Page 348 reflects Plaintiff’s visit to a physical
therapist on May 13, 2008, and does not contain any findings relating to a
straight leg raising test. (Tr. 348.) By contract, page 548 of the transcript
pertains to Plaintiff’s visit with a chiropractor on March 24, 2003, and reflects
a straight leg raising test positive on the right at 30 degrees. (Tr. 548.)
22
medical criteria” that relate to such listing. Sullivan v. Zebley,
493 U.S. 521, 530 (1990).
Here, after discussing the criteria of Listing 1.04A, 1.04B
and 1.04C, the ALJ found, in pertinent part, as follows:
Although the objective medical testing indicated
that [Plaintiff] has some dis degeneration, there
is no evidence of pseudoclaudication and there is
no indication of [Plaintiff’s] inability to
ambulate effectively.
There is nothing in the
medical evidence of record to indicate that
[Plaintiff] uses an assistive device. The medical
evidence of record and hearing testimony does not
indicate that [Plaintiff’s] limitations meet the
criteria of “inability to ambulate effectively.”
Accordingly, I find [Plaintiff’s impairments fail
to meet Listing 1.04, Disorders of the Spine.
(Tr. 76.)
Thus, while citing generically to the entire Listing
1.04, the ALJ did limit her specific analysis at step three to
Listing 1.04C pertaining to lumbar spinal stenosis.
Although the ALJ’s analysis should have contained a specific
analysis pursuant to Listing 1.04A due to Plaintiff’s diagnosis of
degenerative disc disease, any such failure on her part amounts to
harmless error where the record convincingly establishes, as here,
that Plaintiff’s impairment does not meet the criteria of the
listing in question. See Robertson v. Colvin, No. 12-cv-03217-MSK,
2014 WL 300997, at *8 (D. Colo. Jan. 28, 2014) (unpublished)
(finding
ALJ’s
failure
to
specifically
discuss
Listing
1.04
harmless error where record evidence provided “little support” that
impairment met listing’s criteria); see also Fisher v. Bowen, 869
23
F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]o principle of
administrative law or common sense requires us to remand a case in
quest of a perfect opinion unless there is reason to believe that
the remand might lead to a different result”).
Even assuming the
pages cited by Plaintiff contain the objective medical findings
required by Listing 1.04A,10 Plaintiff glosses over the fact that
these findings must have existed for a continuous period of 12
months
§
in
order
404.1525(c)(4).
to
qualify
Here,
as
disabling.
Plaintiff
cites
See
to
20
C.F.R.
findings
of
neuroanatomic distribution of pain, limitation of motion, sensory
and motor loss, and positive straight leg raising tests during
acute flares of back pain in 2003 (Tr. 298, 302, 547, 548) and 2008
(Tr.
344,
354-55)
which
contain
neither
any
showing
of
the
requisite nerve root compression nor any indication that such acute
incidents would remain at listing level severity for at least 12
months. Similarly, Plaintiff relies on an MRI in September 2009 to
demonstrate nerve root compression (Tr. 550), but fails to show
10
Several of the pages cited by Plaintiff do not, in fact, provide
evidence of the findings required by Listing 1.04A. For example, Plaintiff cites
pages 323 and 324 of the transcript as evidence of “motor loss.” (Docket Entry
11 at 11.) However, a review of that page reveals that his doctor found weakness
in his left shoulder and not in his lower extremities as would concern lumbar
degenerative disc disease. (Tr. 323-24.) Similarly, Plaintiff cites page 549
as evidence of “sensory loss” (Docket Entry 11 at 11), but that page reveals only
Plaintiff’s subjective report of numbness and tingling in his lower extremities
(Tr. 549). Indeed, on examination, the doctor noted that Plaintiff had “normal
sensation to light touch in bilateral upper and lower extremities.” (Tr. 550)
The regulations make clear that musculoskeletal listing criteria “must be
determined on the basis of objective observation during the examination and not
simply a report of the individual’s allegation: e.g., ‘He says that his leg is
weak, numb.’” 20 C.F.R. Part 404, Subpt. P, App’x 1, § 1.00D.
24
that, at that point in time, he experienced the other listing
criteria on a continuous basis for at least twelve months.
Under
such
ALJ’s
circumstances,
substantial
evidence
supports
the
implicit finding that Plaintiff’s degenerative disc disease failed
to meet the criteria of Listing 1.04A.
CONCLUSION
Plaintiff has established no grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment Reversing Judgment of the Commissioner or Remanding the
Cause for Rehearing (Docket Entry 10) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 12) be granted,
and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 20, 2014
25
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