MARSHALL v. ASTRUE

Filing 19

MEMORANDUM OPINION AND RECOMMENDATION signed by MAG/JUDGE L. PATRICK AULD on 6/10/2015. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, Defendant's motion for judgment on the pleadings (Docket Entry 16 ) be granted, Plaintiff's motion for judgment on the pleadings (Docket Entry 12 ) be denied, and this action be dismissed with prejudice. (Butler, Carol)

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

ALFRED L. MARSHALL, III,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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1:13CV130

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff,

Alfred

L.

Marshall,

III,

brought

this

action

pursuant to Sections 205(g) and 1631(c)(3) of the Social 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 Defendant, the
Commissioner of Social Security, denying Plaintiff’s claim for
Disability Insurance Benefits (“DIB”) under Title II of the Act.
(Docket

Entry

2.)

The

Court

has

before

it

the

certified

administrative record (cited herein as “Tr. __”), as well as the
parties’ cross-motions for judgment (Docket Entries 12, 16).

For

the reasons that follow, the Court should enter judgment for
Defendant.
I.

PROCEDURAL HISTORY

Plaintiff filed an application for DIB on June 11, 2009,
alleging a disability onset date of November 19, 2005.

(Tr. 171-

72.)

and

Upon

denial

of

the

application

initially

upon

reconsideration (Tr. 48, 49, 61-64, 68-75), Plaintiff requested and
received a hearing de novo before an Administrative Law Judge

(“ALJ”), at which Plaintiff and his attorney appeared.
47.)

(Tr. 26-

The ALJ then ruled Plaintiff not disabled under the Act.

(Tr. 9-20.)

The Appeals Council subsequently denied Plaintiff’s

request for review (Tr. 1-5), thereby making the ALJ’s ruling the
Commissioner’s final decision for purposes of judicial review.
In rendering this disability determination, the ALJ made the
following findings later adopted by Defendant:
1. [Plaintiff] last met the insured status requirements
of the . . . Act on June 30, 2010.
2. [Plaintiff] did not engage in substantial gainful
activity during the period from his alleged onset date of
November 19, 2005 through his date last insured of June
30, 2010.
3. Through the date last insured, [Plaintiff] had the
following severe impairments: chronic back pain due to
degenerative disc disease of the lumbar spine, lumbar
spinal stenosis (status post surgery), degenerative disc
disease of the cervical spine, and cervical spondylosis.
. . .
4. Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5. . . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform light
work . . . except that [Plaintiff] would be limited to
occasional climbing of stairs, balancing, stooping,
bending, crouching, and squatting. [Plaintiff] has the
ability to lift and carry up to 20 pounds occasionally
and 10 pounds frequently, as well as sit, stand and walk
6 hours in an 8-hour workday. Additionally, [Plaintiff]
can use his hands for frequent reaching and handling.
. . .
6. Through the date last insured, [Plaintiff] was unable
to perform any past relevant work.
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. . .
10.
Through
the
date
last
insured,
considering
[Plaintiff’s] age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
11. [Plaintiff] was not under a disability, as defined in
the . . . Act, at any time from November 19, 2005, the
alleged onset, through June 30, 2010, the date last
insured.
(Tr. 14-20 (internal citations to regulations omitted).)
II.

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 our review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
reviewing
[resulting

court must
in

uphold

denial

of

the

factual

benefits]

if

findings

they

are

Instead, “a
of

the

supported

ALJ
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

-3-

(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 [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
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).
When confronting that issue, 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
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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)).1

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
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
‘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. Comm’r of the Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).2

A finding adverse to the claimant at any of

1

“The Social Security Act comprises two disability benefits programs.
[DIB] . . . provides benefits to disabled persons who have contributed to the
program while employed. Supplemental Security Income . . . 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).
2

“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
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

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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.

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 Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other

-6-

jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.3
B.

Assignments of Error

1. Mental Consultative Examination
In his first assignment of error, Plaintiff asserts that the
ALJ erred by not ordering a mental consultative examination.
(Docket Entry 12 at 2.)

Plaintiff contends that “he might be

mentally depress[ed]” and questions how the ALJ could “make a
decision without [such] things being address[ed].”

(Id. at 2-3.)

However, Plaintiff’s own statements regarding his impairments belie
his argument.
An

ALJ

has

discretion

consultative examination.

in

deciding

whether

consultative

examination

order

a

See 20 C.F.R. § 404.1519a; Bishop v.

Barnhart, 78 F. App'x 265, 268 (4th Cir. 2003).
a

to

“when

the

The ALJ must order

evidence

as

a

whole is

insufficient to allow [the ALJ] to make a determination or decision
on [the] claim,” 20 C.F.R. § 404.1519a(b).

Moreover, “[the ALJ]

will consider not only existing medical reports, but also the
disability interview form containing your allegations as well as
other pertinent evidence in your file,” 20 C.F.R. § 404.1519a(a)
(emphasis added).

3

A claimant thus can establish disability 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.”).

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Here, the record contained sufficient information for the ALJ
to determine that Plaintiff’s depression constituted a non-severe
impairment.

(Tr. 14.)

No treating physician of record diagnosed

Plaintiff with any mental impairment and the record contains no
evidence that Plaintiff ever took medication or sought counseling
for any mental problems.

(Tr. 26-47, 191-98, 209-18, 313-509.)

Moreover, on Plaintiff’s Disability Report, he claimed disability
as a result of a “pinched nerve in [his] back” and “sciatica,” and
made no mention of any mental problems.

(Tr. 192.)

Notably, in

completing the Psychiatric Review Technique Form, both state agency
consultants agreed that Plaintiff’s depression constituted a nonsevere

impairment

and

did

“[i]nsufficient [e]vidence.”

not

check

the

box

indicating

(Tr. 260, 274.)

The only evidence in the record that supports Plaintiff’s
position appears in a physical consultative examination performed
by Dr. Cheryl A. Vernon on September 23, 2009, in which Dr. Vernon
noted Plaintiff’s “flat affect” and “depressed mood” (Tr. 396),
assessed Plaintiff with “[d]epression without suicidal ideation”
(Tr. 397), and opined that Plaintiff “need[ed] a psychiatric
evaluation”

(id.).

However,

as

a

result

of

Dr.

Vernon’s

recommendation regarding a psychiatric evaluation, an individual
with the North Carolina Disability Determination Services contacted
Plaintiff just two weeks later on October 6, 2009, to address
whether he suffered from any mental impairments.

(Tr. 311.)

According to the Report of Contact, Plaintiff indicated that he was
“not getting any [treatment] for depression currently and ha[d]
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never received mental [treatment].”

(Id.)

Further, Plaintiff

advised that he was “not taking any med[ication]s for depression”
and did not “feel depressed.”

(Id.)

Plaintiff additionally

reported that he was “able to get out of the house and interact
with others,” did not “have any problems with crowds,” did not
“isolate himself,” and suffered no “crying spells.”

(Id.)

Those

statements find consistency with answers Plaintiff provided on a
Function Report, on which he claimed to have “no problem” getting
along with others, paying attention, and following instructions,
had no “unusual behaviors or fears,” and handled stress and changes
in routine “pretty good.”
Most

(Tr. 216-17.)

significantly,

notwithstanding

Dr.

Vernon’s

recommendation that Plaintiff obtain a psychiatric evaluation,
neither

Plaintiff

nor

his

counsel

ever

discussed

any

mental

impairments at the hearing before the ALJ, much less requested the
ALJ to

continue

examination.

the

hearing

(Tr. 26-47.)

and order

a

mental

consultative

Under these circumstances, the ALJ did

not err (and certainly did not abuse her discretion) by opting
against ordering a mental consultative examination.

See Matthews

v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989) (holding no error where
ALJ failed to order consultative examination before concluding
claimant had no mental impairment where claimant did not allege
disability due to mental impairment and presented only minimal
evidence on

issue);

Cosom

v.

Astrue,

No.

11–CV–294,

2012

WL

1898921, at * 7 (W.D.N.C. Feb. 23, 2012) (unpublished) (finding
“there was no need to arrange for a consultative examination
-9-

because the ALJ had all the information he needed to reach a
decision.”).
2. New Evidence Before the Appeals Council
In his second assignment of error, Plaintiff argues that new
evidence submitted to the Appeals Council warrants remand for
further consideration of his claim.

(Docket Entry 12 at 1, 2.)

Specifically, Plaintiff claims that Dr. Max W. Cohen, who performed
an independent medical examination (“IME”) of Plaintiff on November
12, 2010, opined that Plaintiff’s orthopedic surgeon should not
have performed decompression surgery on Plaintiff’s lumbar spine
and that Plaintiff’s back impairment continued to require surgery.
(Id.; see also Tr. 504-509.)

Plaintiff maintains that those

findings and conclusions demonstrate that he cannot perform light
work as the ALJ found.
“[T]he

Appeals

(Id.)

Council

Plaintiff’s argument lacks merit.
is

required

to

consider

new

and

material evidence relating to the period on or before the date of
the ALJ decision in deciding whether to grant review.”

Wilkins v.

Secretary, Dep't of Health & Human Servs., 953 F.2d 93, 95 (4th
Cir. 1991) (emphasis added).

“Evidence is new within the meaning

of [the Commissioner’s regulations] if it is not duplicative or
cumulative.”

Id. at 95–96; see generally Associate Comm’r of

Hearings and Appeals, Soc. Sec. Admin., Pub. No. 70–074, Hearings,
Appeals,

Litig.,

and

Law

(LEX)

Manual,

§

I–3–306(A)

(1990).

“Evidence is material if there is a reasonable possibility that the
new evidence would have changed the outcome.”

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Wilkins, 953 F.2d

at 96 (citing Borders v. Heckler, 777 F.2d 954, 956 (4th Cir.
1985)).
Here, the IME in question qualifies as “new,” as Dr. Cohen
offered opinions about Plaintiff’s lumbar spine impairment that
differed from Plaintiff’s treating orthopedic surgeon, Dr. Jeffrey
Beane (compare Tr. 498 (setting forth Dr. Beane’s opinion that no
“surgical intervention . . . would . . . benefit” Plaintiff and
that he instead should pursue eight weeks of “pain management”),
with Tr. 506 (documenting Dr. Cohen’s opinion that Plaintiff “may
be a candidate for further treatment” and that “[p]ain [m]anagement
would be contraindicated”.)

However, the report lacks materiality

because it presents no reasonable possibility of a different
outcome.

Dr. Cohen ultimately concluded that Plaintiff “could

return to work . . . within the restrictions outlined in his
[Functional Capacity Evaluation (“FCE”)].”

(Tr. 506.)

The FCE

limited Plaintiff to 45 pounds of maximum lifting, 40 pounds of
carrying,

30

pounds

of

frequent

lifting,

frequent

sitting,

standing, walking, stair-climbing, crouching, and squatting, and
occasional
reaching.

ladder-climbing,
(Tr. 385.)

bending,

stooping,

and

overhead

Thus, Dr. Cohen’s IME could not possibly

produce a different outcome in Plaintiff’s claim, where Dr. Cohen
offered less restrictive limitations than the ALJ’s RFC.

Notably,

Plaintiff neither argues that Dr. Cohen’s findings establish that
he meets or medically equals any of the Commissioner’s listings nor
explains how those findings should alter the RFC (let alone how
such alteration would impact the ALJ’s step five conclusion that
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Plaintiff can perform other jobs existing in significant numbers in
the national economy).

(See Docket Entry 12 at 1-5.)

Accordingly, Plaintiff’s new evidence provides no basis for
this Court to order further administrative proceedings.
3. RFC Determination
Finally, Plaintiff alleges that the ALJ erred by finding
Plaintiff retained the RFC to perform a limited range of light
work, because employers will not hire him due to his medical
restrictions.

(Docket Entry 12 at 4.)

That argument provides no

basis for relief.
The applicable regulation makes clear that the Commissioner
need not demonstrate that a particular claimant could actually
obtain the jobs identified at step five:
[The Commissioner] will determine that [a claimant is]
not disabled if [his/her] residual functional capacity
and vocational abilities make it possible for [him/her]
to do work which exists in the national economy, but
[he/she remains] unemployed because of(1) [His/Her] inability to get work;
(2) Lack of work in [his/her] local area;
(3) The hiring practices of employers;
(4) Technological changes in the industry in which
[he/she has] worked;
(5) Cyclical economic conditions;
(6) No job openings for [him/her];
(7) [He/She] would not actually be hired to do work
[he/she] could otherwise do; or
(8) [He/She does] not wish to do a particular type
of work.

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20 C.F.R. § 404.1566(c) (emphasis added); see also Cole v. Colvin,
No. 13CV868, 2014 WL 4060145, at *4 (M.D.N.C. August 14, 2014)
(unpublished) (Schroeder, J.) (“At step five, the Commissioner does
not have to prove that [the claimant] actually could get hired for
the position identified; the Commissioner may find a claimant not
disabled even if employers’ hiring practices result in the claimant
not actually being hired.” (citing 20 C.F.R. § 404.1566(c))).4
III.
The

record

does

not

CONCLUSION

reveal

a

basis sufficient

to grant

Plaintiff’s request for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, Defendant’s motion for judgment
on the pleadings (Docket Entry 16) be granted, Plaintiff’s motion

4

To the extent that Plaintiff challenges the ALJ’s determination of nondisability on the grounds that the Commissioner granted DIB to another passenger
in the motor vehicle accident that injured Plaintiff’s back (see Docket Entry 12
at 4, 6), such circumstance is immaterial to the Court’s duty on judicial review.
See 42 U.S.C. § 405(g) (limiting a federal district court’s review of a final
decision of the Commissioner to (1) whether substantial evidence supports the
Commissioner’s decision; and (2) whether the Commissioner applied the correct
legal standards). Further, Plaintiff’s attempt to argue that his lifelong work
history warrants his receipt of benefits misses the mark. (See Docket Entry 12
at 1-2, 3, 4-5.)
The Commissioner credited Plaintiff for his years of
employment, as reflected by the fact that he remained insured for DIB purposes
through June 30, 2010. (See Tr. 14.) However, being insured for DIB is but one
component of a claim – Plaintiff still must meet his burden of establishing that
he is disabled under the regulations. See 20 C.F.R. § 404.1520 (describing the
SEP). Finally, Plaintiff requests that a jury review his case. (See Docket
Entry 12 at 2, 3.) However, the Act does not entitle Plaintiff to a jury trial.
See 42 U.S.C. § 405(g) (“The court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner . . ., with or without remanding the cause for a
rehearing.” (emphasis added), § 405(h) (“No findings of fact or decision of the
Commissioner . . . shall be reviewed by any person, tribunal, or governmental
agency except as herein provided.”).

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for judgment on the pleadings (Docket Entry 12) be denied, and this
action be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 10, 2015

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