HUNT MCCLAIN v. ASTRUE

Filing 16

MEMORANDUM OPINION AND ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 5/23/2014, that McClain's motion for judgment on the pleadings (Doc. 9 ) is DENIED, the Commissioner's motion for judgment on the pleadings (Doc. 14 ) is GRANTED, and this action is DISMISSED WITH PREJUDICE. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SHAWN Y. HUNT McCLAIN,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.

1:12CV1374

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff
pursuant

to

Shawn

Y.

Sections

Hunt

205(g)

McClain
and

brought

1631(c)(3)

this

action

the

Social

of

Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of
the

Commissioner

of

Social

Security

denying

her

claim

Disability Insurance Benefits under Title II of the Act.
2.)

for

(Doc.

The parties have filed cross-motions for judgment (Docs. 9,

14), and the administrative record has been certified to the
court

for

review.

For

the

reasons

set

forth

below,

the

Commissioner’s motion will be granted, McClain’s motion will be
denied, and this case will be dismissed.
I.

BACKGROUND
McClain

filed

her

initial

application

for

Disability

Insurance Benefits (“DIB”) on September 30, 2009, alleging a

(Tr. at 147-51.) 1

disability onset date of October 13, 2003.

Her application was denied initially (id. at 59-65) and upon
reconsideration (id. at 66-73).
hearing

de

novo

(Id. at 100.)

before

an

Thereafter, McClain requested a

Administrative

Law

Judge

(“ALJ”).

McClain, along with her attorney and a vocational

expert (“VE”), attended the subsequent hearing on December 16,
2011.

(Id. at 26.)

The ALJ ultimately determined that McClain

was not disabled within the meaning of the Act (id. at 21) and,
on

October

23,

2012,

the

Appeals

Council

denied

McClain’s

request for review of the decision, thereby making the ALJ’s
conclusion

the

Commissioner’s

final

decision

for

purposes

of

judicial review (id. at 1-5).
In rendering her 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 through
December 31, 2008.

2.

The claimant did not engage in substantial
gainful activity during the period from her
alleged onset date of October 13, 2003 through
her date last insured of December 31, 2008 (20
CFR 404.1571 et seq.).

3.

The
claimant
has
the
following
severe
impairments: hypertension, asthma and cardiac
abnormalities
including
mitral
regurgitation,
mitral
stenosis
and
tachycardia
(20
CFR
404.1520(c)).

1

Transcript citations refer to the Administrative Transcript of Record
filed manually with the Commissioner’s Answer. (Doc. 6.)

2

. . . .
4.

Through the date last insured, the claimant did
not
have
an
impairment
or
combination
of
impairments that met or medically equaled one of
the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526).

. . . .
5.

After careful consideration of the entire record,
the undersigned finds that, through the date last
insured, the claimant has the residual functional
capacity to perform light work as defined in 20
CFR 404.1567(b) sitting, and standing and walking
up to six hours each in an eight-hour workday,
lifting and carrying up to 20 pounds occasionally
and ten pounds frequently, with an additional
limitation of avoidance of concentrated pulmonary
irritants.

. . . .
6.

Through the date last insured, the claimant was
capable of performing past relevant work as a
fast food worker.
This work did not require
performance of work-related activities precluded
by the claimant’s residual functional capacity
(20 CFR 404.1565 and 416.965).

(Id. at 16-17, 20.)

Because McClain was capable of performing

past relevant work, the ALJ determined that she was not disabled
under the meaning of the Act.
II.

(Id. at 21.)

ANALYSIS
Federal

Security

law

“authorizes

Commissioner’s

judicial

denial

of

review

social

of

the

security

Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Social

benefits.”
However,

“the scope of . . . review of [such an administrative] decision
3

. . . is extremely limited.”
(4th Cir. 1981).

Frady v. Harris, 646 F.2d 143, 144

“The courts are not to try the case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

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.”

Hancock v. Astrue, 667 F.3d 470, 472

(4th Cir. 2012) (citations omitted) (internal brackets omitted)
(setting out the standards for judicial review).
evidence

means

‘such

relevant

evidence

as

a

“Substantial

reasonable

might accept as adequate to support a conclusion.’”

mind

Hunter v.

Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v.
Perales, 402 U.S. 389, 390 (1971)).

“[I]t 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) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966)).

“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 (quoting Laws, 368 F.2d at

642) (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].”
4

Mastro, 270

F.3d at 176 (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
1996)) (internal brackets omitted).

“Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

[Social Security Commissioner or the ALJ].”

falls

on

the

Hancock, 667 F.3d

at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005)).

The issue before this 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, 76 F.3d at 589.

In undertaking this limited review, the court notes that in
administrative

proceedings,

“[a]

claimant

for

disability

benefits bears the burden of proving a disability.”
Harris, 658 F.2d 260, 264 (4th Cir. 1981).

Hall v.

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

2

“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

5

“The

Commissioner

disability claims.”

uses

a

five-step

process

to

evaluate

Hancock, 667 F.3d at 472 (citing 20 C.F.R.

§§ 404.1520(a)(4); 416.920(a)(4)).
Under
this
process,
the
Commissioner
asks,
in
sequence, whether the claimant: (1) worked during the
alleged period of disability; (2) had a severe
impairment; (3) had an impairment that met or equaled
the requirements of a listed impairment; (4) could
return to her past relevant work; and (5) if not,
could perform any other work in the national economy.
Id.

The claimant bears the burden as to the first four steps,

but the Commissioner bears the burden as to the fifth step.

Id.

at 472-73.
In undertaking this sequential evaluation process, the five
steps are considered in turn, although a finding adverse to the
claimant

at

either

of

the

first

two

steps

disability designation and ends the inquiry.

forecloses

a

In this regard,

“[t]he first step determines whether the claimant is engaged in
‘substantial gainful activity.’
benefits are denied.

If the claimant is working,

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).
If a claimant carries her burden at each of the first two
steps and also meets her burden at step three of establishing an

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).

6

impairment

that

meets

of

equals

an

impairment

listed

in

the

regulations, the claimant is disabled, and there is no need to
proceed to step four or five.
Alternatively,

if

a

claimant

See Mastro, 270 F.3d at 177.
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,”
then

the

analysis

continues

and

the

ALJ

must

claimant’s residual functional capacity (“RFC”).

assess

the

Id. at 179. 3

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.

Id. at 179-80.

However,

if the claimant establishes an inability to return to prior work
based on that RFC, the analysis proceeds to the fifth step,
which shifts the burden of proof and “requires the Commissioner
to

prove

that

a

significant

number

of

jobs

exist

which

the

claimant could perform, despite [the claimant’s] impairments.”
3

“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 work-related 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 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.

7

Hines, 453 F.3d at 563.

In making this determination, the ALJ

must decide “whether the claimant is able to perform other work
considering

both

[the

claimant’s

vocational

capabilities

(age,

RFC]

and

education,

experience) to adjust to a new job.”

[the

claimant’s]

and

past

work

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner 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.

In the present case, the ALJ found that McClain had not
engaged

in

“substantial

alleged onset date.

gainful

activity”

(Tr. at 16.)

since

ALJ

further

determined

that

amended

She therefore met her burden

at step one of the sequential evaluation process.
the

her

McClain

At step two,

suffered

from

the

following severe impairments: hypertension, asthma and cardiac
abnormalities including mitral regurgitation, mitral stenosis,
and tachycardia.

(Id.)

impairments

not

listing.

did

(Id. at 17.)

The ALJ found at step three that these

meet

or

medically

equal

a

disability

Accordingly, the ALJ assessed McClain’s

RFC and determined that she could perform light work.

(Id.)

At

step four, the ALJ found McClain was not precluded by a lightwork RFC from performing her past relevant work as a fast-food
worker.

(Id. at 20.)

Thus, the ALJ concluded that McClain was

not disabled under the Act.

(Id. at 21.)
8

McClain lists only two assignments of error.

She first

contends the ALJ erred by failing to list her obesity or obesity
hypoventilation syndrome as severe impairments at step two of
the

five-step

assuming

inquiry.

these

impairments

necessitate remand.
claimant

has

(Doc.

at

were

10

at

2-3.)

severe,

such

However,
error

even

does

not

As long as the ALJ determines that the

least

one

severe

impairment

and

proceeds

to

discuss all of the medical evidence, any error regarding failure
to list a specific impairment as severe at step two is harmless.
See Beitzel v. Comm’r, Soc. Sec. Admin., Civ. No. SAG-12-2669,
2013 WL 3155443, at *2 (D. Md. June 18, 2013); Wake v. Astrue,
No. 2:11CV35, 2012 WL 6851168, at *4 (W.D.N.C. Dec. 4, 2012),
adopted by 2013 WL 145764 (W.D.N.C. Jan. 14, 2013).

McClain

does not argue, nor does the record reflect, that the ALJ failed
to consider relevant evidence in her calculation of the RFC.
Thus, this argument must fail.
Second, McClain argues that the ALJ erred by failing to
include

McClain’s

shortness

of

breath

in

hypothetical question she posed to the VE.

the

RFC

or

in

the

(Doc. 10 at 4-6.)

With respect to the hypothetical question, the Commissioner is
correct that the ALJ is not supposed to present the VE with
evidence of medical impairments.

See Fisher v. Barnhart, 181 F.

App’x 359, 365 (4th Cir. 2006) (“[I]n arguing that an ALJ must
include

a

list

of

the

claimant's
9

medical

impairments

in

his

hypothetical question to the vocational expert, [the claimant]
fundamentally
experts'

misunderstands

expertise.

psychology

who

claimant's

Vocational

ailments

rather,

they

are

are

the

scope

of

the

experts

are

not

qualified

to

might

reflected

be

employment

render

experts

who

opinions
in

his

know

vocational
experts
on

how

in
the

capabilities;

the

physical demands of different types of work.”). 4

mental

and

Thus, the ALJ

acted properly by not presenting the VE with such evidence.

As

for the RFC, the ALJ did not fully credit McClain’s testimony
about her shortness of breath, finding it to be contrary to the
record evidence.
for

the

Colvin,

(Tr. 19-20.)

limitation
No.

in

She thus did not have to account

calculating

5:13-CV-00124,

2014

WL

the

RFC.

1713832,

See
at

Pruitt

*3-4

v.

(citing

Hatcher v. Sec’y, Dep’t of Health and Human Servs., 898 F.2d 21,
23 (4th Cir. 1989)).
finding;

substantial

This court will not disturb the ALJ’s
evidence

supports

her

decision

not

to

credit McClain’s breathing limitations and thus not to include
them in the RFC.

(See, e.g., id. at 429-32, 212-35.) 5

4

Unpublished opinions of the Fourth Circuit are not precedential but
are cited for their persuasive reasoning.
See Collins v. Pond Creek
Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (recognizing that “we
ordinarily do not accord precedential value to our unpublished
decisions” and that such decisions “are entitled only to the weight
they generate by the persuasiveness of their reasoning” (citation
omitted)).
5

Although McClain mentions her obesity in the heading and first
paragraph of this section of her brief, she fails to make any argument
that her obesity was not properly accounted for in her RFC.

10

III. CONCLUSION
For the reasons stated, the court finds that the factual
findings of the ALJ, which were adopted by the Commissioner, are
supported

by

substantial

evidence

and

were

reached

through

application of the correct legal standard.
IT IS THEREFORE ORDERED that McClain’s motion for judgment
on the pleadings (Doc. 9) is DENIED, the Commissioner’s motion
for judgment on the pleadings (Doc. 14) is GRANTED, and this
action is DISMISSED WITH PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
May 23, 2014

11