LAWRENCE v. COLVIN
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION, signed by MAG/JUDGE L. PATRICK AULD on 5/29/2015. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiffs Motion for Judgment on the Pleadings (Docket Entry 9 ) 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
KEVIN T. LAWRENCE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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1:13CV70
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Kevin Lawrence, 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
Defendant, the Acting Commissioner of Social Security, denying
Plaintiff’s
claim
for
a
period
of
disability
and
Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act (the “Act”).
(See Docket Entry 2.)
The Court has before it
the certified administrative record (cited herein as “Tr. __”) and
the parties have filed cross-motions for judgment (Docket Entries
9, 12).
For the reasons that follow, the Court should enter
judgment for Defendant.
PROCEDURAL HISTORY
Plaintiff applied for DIB and a period of disability, alleging
a disability onset date of August 18, 2000.
(Tr. 151-52.)
After
denial
of
the
application,
both
initially
(Tr.
82)
and
on
reconsideration (Tr. 90), Plaintiff requested a hearing de novo
before an Administrative Law Judge (“ALJ”) (Tr. 107).
Plaintiff,
his attorney, and a vocational expert (“VE”) appeared at the
hearing.
(Tr.
40-69.)
The
ALJ
thereafter
determined
that
Plaintiff did not qualify as disabled within the meaning of the
Act.
(Tr.
25-36.)
Plaintiff’s
request
The
for
Appeals
Council
review,
thereby
subsequently
making
denied
the
ALJ’s
determination the Commissioner’s final decision for purposes of
judicial review.
In
rendering
(Tr. 1-3.)
that
disability
ruling,
the
ALJ
made
following findings later adopted by the Commissioner:
1.
[Plaintiff] last met the insured status requirements
of the Social Security Act on June 30, 2007.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from his alleged onset date of
August 18, 2000[,] through his date last insured of June
30, 2007 (20 CFR 404.1571 et seq.).
. . .
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: bipolar disorder, general
anxiety disorder, posttraumatic stress disorder, and
history of alcohol dependence. (20 CFR 404.1520(c)).
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled one of the listed impairments in 20
2
the
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, through the date last
insured, [Plaintiff] had the residual functional capacity
to perform a full range of work at all exertional levels
but with the following nonexertional limitations: as of
the claimant’s date last insured, his mental disorders
reduced his capacity to the performance of only unskilled
work consisting of simple, routine, repetitive tasks, and
jobs with only occasional contact with the public.
(Tr. 27-29.)
In
light
of
the
foregoing
findings
regarding
residual
functional capacity, the ALJ determined that Plaintiff could not
perform his past relevant work.
(Tr. 34.)
However, the ALJ found
that other jobs existed with significant numbers in the national
economy
that
Accordingly,
Plaintiff
the
ALJ
could
ruled
have
that
performed.
Plaintiff
did
(Tr.
not
35.)
have
a
disability, as defined in the Act, at any time from the alleged
onset date through the date last insured.
(Tr. 36.)
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).
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.”
3
“The courts
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.”
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 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,
the
responsibility
for
that
decision falls on the [Social Security Commissioner] (or the ALJ).”
Id. at 179 (internal quotation marks omitted).
4
“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 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)).
“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]
medical
condition.”
Id.
“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
5
‘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).1
A finding adverse to a claimant at any of
several points in the SEP forecloses an 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
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.2
Step four then requires the ALJ to assess
1
“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).
2
“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
6
whether, based on that RFC, the claimant can perform “past relevant
work” (“PRW”); 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, 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 567.3
Assignments of Error
Plaintiff argues the ALJ erred by: (1) failing to obtain a
standard mental RFC assessment, (2) deciding the RFC on his own
without medical opinion, and (3) failing to conduct the “more
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.
3
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
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.”).
7
detailed assessment” as required by Social Security Regulation
(“SSR”) 96-8p.
1.
(Docket Entry 10 at 2.)
Mental RFC Assessment
Plaintiff argues that the ALJ erred by failing to obtain a
mental RFC assessment pursuant to 42 U.S.C. § 421(h) and 20 C.F.R.
§ 404.1520a(e).
provides
Defendant
that,
will
(Docket Entry 10 at 4-5.)
when
evidence
attempt
to
exists
have
a
of
a
Section § 421(h)
mental
qualified
impairment,
psychiatrist
or
psychologist complete any applicable RFC assessment before the
ultimate determination on disability.
Here, Defendant complied
with the statute and referred the case to qualified mental health
providers for such evaluations.
(See Tr. 76-81, 83-89.)
Both
providers completed the applicable RFC assessment prior to the
ultimate determination of not disabled.
(Tr. 80, 88.)4
Thus,
Defendant complied with Section 421(h).
Section 20 C.F.R. § 404.1520a(e) only requires that Defendant
document the use of a prescribed method for determining whether a
party
§
matches
404.1520a(a).
documentation.
a
mental
In
disability
this
case,
listing,
the
record
(See Tr. 28-29, 79, 86-87.)
see
20
reflects
C.F.R.
such
Thus, Defendant
complied with Section 404.1520a(e).
4
Although the providers did not propose an RFC because of insufficient
evidence, that fact does not establish a violation of Section 421(h).
8
In sum, the Court should reject Plaintiff’s first assignment
of error.
2.
RFC Determination
Plaintiff next argues that the ALJ erred by deciding the RFC
without any medical input.
Plaintiff and Defendant cite dueling
decisions from the United States Court of Appeals for the First
Circuit addressing how ALJs may make RFC determinations.
(Docket
Entry 10 at 3 n.1 (citing Manso-Pizarro v. Secretary of Health &
Human Servs., 76 F.3d 15, 17 (1st Cir. 1996)); Docket Entry 13 at
4 (citing Evangelista v. Secretary of Health & Human Servs., 826
F.2d
136,
144
(1st
constitutes
binding
undersigned
finds
Cir.
1987)).)
precedent
the
case
on
of
Of
this
course,
Felton-Miller
v.
case
Instead,
Court.
neither
the
Astrue,
459
F. App’x. 226 (4th Cir. 2011), instructive.5
In Felton-Miller, a claimant appealed the district court’s
affirmation of the ALJ’s denial of her application for DIB and
supplemental security income.
Id.
On appeal, the claimant argued
that substantial evidence did not support the ALJ’s RFC finding
because the ALJ did not obtain an expert medical opinion.
230.
The court found the argument without merit.
Id.
Id. at
In doing
so, the court noted that the RFC determination fell within the
5
Although Felton-Miller does not constitute binding authority because of
its unpublished status, see 4th Cir. R. 32.1, it represents the best available
predictor of what the United States Court of Appeals for the Fourth Circuit would
do, if faced with this issue.
9
Commissioner’s province and stated: “[t]he ALJ was not required to
obtain an expert medical opinion as to [the claimant’s] RFC.”
Id.
at 230-31; see also Broussard v. Colvin, No. 5:12-CV-398-FL, 2013
WL 5370592, at *3 (E.D.N.C. Sept. 24, 2013) (citing, in case
involving mental impairment, Felton-Miller for proposition that “an
ALJ is not required to obtain an expert medical opinion as to . . .
RFC” (internal quotation marks omitted)).
The reasoning of Felton-Miller matches the obligations of the
parties in evaluating the RFC.
produce
evidence
to
The claimant bears the burden to
establish
his
RFC.
See
20
C.F.R.
§ 404.1512(c); see also Pass v. Chater, 65 F.3d 1200, 1203 (4th
Cir. 1995) (“The [claimant] bears the burden of production and
proof during the first four steps of the inquiry.”).
Based on the
information provided by the claimant, the ALJ bears the burden of
ultimately
determining
the
appropriate
RFC.
See
20
C.F.R.
§ 404.1546(c); see also Stormo v. Barnhart, 377 F.3d 801, 807 (8th
Cir. 2004) (“The ALJ is responsible for determining a claimant’s
RFC . . . .”).
Accordingly, the ALJ did not have an obligation to
obtain a medical opinion in determining the RFC.
remained the
ALJ’s
obligation
to
determine the
Rather, it
RFC
based on
Plaintiff’s testimony, “the objective medical evidence, and the
opinions of treating, examining, and non-examining physicians,”
Felton-Miller, 459 F. App’x at 231.
Thus, the ALJ did not err, and
Plaintiff’s second assignment of error should be overruled.
10
3.
The More Detailed Assessment
Plaintiff baldly asserts that Defendant failed to conduct the
more detailed assessment required by SSR 96-8p.
at 5.)
(Docket Entry 10
SSR 96-8p requires an ALJ to provide a “more detailed
assessment by itemizing various functions contained in the broad
categories
found
in
paragraphs
B
and
C
of
the
adult
mental
disorders listings in 12.00 of the Listing of Impairments . . . .”
In
this case,
the
ALJ conducted
evidenced by the resulting RFC.
Plaintiff’s
RFC
limitations
the
requisite
assessment as
The ALJ specifically included in
to
“unskilled
work
consisting
of
simple, routine, repetitive tasks, and jobs with only occasional
contact with the public.”
(Tr. 29.)
analysis
medical
of
Plaintiff’s
appropriate RFC.
(See Tr. 28-34.)
The ALJ conducted a thorough
history
in
determining
the
Thus, the ALJ performed the
necessary, more detailed assessment as required by SSR 96-8p and
Plaintiff’s third assignment of error lacks merit.
4.
Harmless Error
As a final note, even if the Court found that the ALJ erred in
a manner argued by Plaintiff, Plaintiff has failed to explain and
address how such error affected the resulting RFC.
In order to
prevail upon review, Plaintiff must demonstrate that the errors
prevented a more restrictive RFC or a different outcome in the
case.
See Turner v. Colvin, No. 1:13cv761, 2015 WL 502082, at *11
11
(M.D.N.C. Feb. 5, 2015), recommendation adopted, slip op. (M.D.N.C.
Mar. 6, 2015).
In this instance, Plaintiff has repeatedly claimed
and argued that Defendant erred in determining the RFC (see Docket
Entry 10 at 2-5; Docket Entry 15); however, Plaintiff has not
identified any effect of those alleged errors (see Docket Entry 10;
Docket
Entry
15).
Absent
such
demonstration,
Plaintiff
suffered only harmless error that does not merit remand.
has
See
Turner, 2015 WL 50282, at *11.
CONCLUSION
Because Plaintiff has failed to demonstrate that the ALJ
erred, the Court should uphold the denial of benefits.
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)
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 29, 2015
12
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