LONG, III v. COLVIN
Filing
16
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAGISTRATE JUDGE L. PATRICK AULD on 03/24/2015. IT IS RECOMMENDED that the Commissioner's decision finding no disability be affirmed and that Plaintiff 039;s Motion for a Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for Rehearing 12 be DENIED, that Defendant's Motion for Judgment on the Pleadings 14 be GRANTED, and that this action be DISMISSED with prejudice. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOHN C. LONG III,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
1:13CV0659
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, John C. Long III, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying
(“DIB”).
Plaintiff’s
claim
(Docket Entry 1.)
for
Disability
Insurance
Benefits
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, 14).
For
the reasons that follow, the Court should enter judgment for
Defendant.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on July 14, 2009
(protective filing date), alleging a disability onset date of
December 12, 2007.
1
(Tr. 184-85.)1
He subsequently amended the
Plaintiff also apparently applied for Supplemental Security Income (“SSI”), but
did not qualify due to his financial resources. (See Tr. 66-67.)
alleged onset date to January 29, 2008. (Tr. 186-87.)
of
Plaintiff’s
application
initially
(Tr.
Upon denial
68-69)
and
on
reconsideration (Tr. 70), he requested a hearing de novo before an
Administrative Law Judge (“ALJ”).2
Plaintiff, his attorney, and a
vocational expert (“VE”) attended the hearing.
(Tr. 33-65.)
By
decision dated March 23, 2012, the ALJ determined that Plaintiff
was not disabled under the Act.
(Tr. 20-32.)
On June 10, 2013,
the Appeals Council denied Plaintiff’s request for review (Tr. 14), making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since January 29, 2008, the amended alleged
onset date.
. . . .
2.
[Plaintiff] has the following severe impairments:
neurosis; myofascial syndrome; degenerative disc disease
and radiculopathy of the lumbar spine; inguinal pain
secondary to inguinal hernia, status post right inguinal
repair; and cervicalgia secondary to right foraminal disc
extrusion at C5-6.
. . . .
2
The index to the administrative record lists Plaintiff’s Request for Hearing
at pages 95 and 96 of the record (see Docket Entry 8-2 at 1); however, neither
the electronically-filed record nor the Court’s paper copy contains pages 71
through 183 of the record. According to the index, the missing pages consist of
procedural/jurisdictional
documents
such
as
Plaintiff’s
request
for
reconsideration and request for hearing, as well as the resume of the VE. (Id.)
The parties neither have objected to the missing pages nor have raised an issue
on judicial review that would rely in any material way on the contents of these
missing documents. (See generally Docket Entries 13, 15.)
2
3.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform light work . . . except he requires
the ability to alternate between sitting and standing at
will. He is limited to occasional climbing, balancing,
stooping, bending, crouching, crawling, and overhead
reaching, but should avoid hazards.
Mentally, he is
capable of working at a non-production pace with no
complex decision-making, no constant changes in work
setting, and no dealing with crises.
He can have no
contact with the public, but can have contact with coworkers and supervisors.
. . . .
5.
[Plaintiff] is unable to perform any past relevant
work.
. . . .
9.
. . . [T]here are jobs that exist in significant
numbers in the national economy that [Plaintiff] can
perform.
. . . .
10. [Plaintiff] has not been under a disability, as
defined in the [] Act, from January 29, 2008, through the
date of this decision.
(Tr. 25-32 (internal parenthetical citations 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).
3
Hines v.
However, “the scope
of [the Court’s] 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).
Instead,
the 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 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 Social Security Commissioner].” Mastro, 270 F.3d at
4
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).
“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).
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
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)).3
“To
regularize
the
adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
3
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
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).4
A finding adverse to the 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,
4
“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).
6
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 179.5
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
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.6
5
“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 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.
6
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
7
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) the ALJ failed to properly evaluate Plaintiff’s subjective
complaints of pain (Docket Entry 13 at 3-6);
(2) the ALJ erred at step three of the SEP by failing to
discuss
whether
Plaintiff’s
impairments
met
or
equaled
all
applicable listings (id. at 6-8); and
(3) in formulating Plaintiff’s RFC, the ALJ erred by failing
to discuss the third party function report completed by Plaintiff’s
mother (id. at 8-10).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
1.
(Docket Entry 15 at 6-19.)
Subjective Complaints of Pain
Plaintiff first contends that the ALJ erred in evaluating his
subjective complaints of pain.
(Id. at 3-6.)
Specifically,
Plaintiff claims that the ALJ “completely disregard[ed] [his]
statements as to the effects of his chronic pain” in violation of
Fourth Circuit precedent. (Docket Entry 13 at 3 (citing Hines, 453
F.3d at 563).)
In particular, Plaintiff contends that because the
ALJ found that Plaintiff had impairments that could cause his
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.”).
8
alleged pain, the ALJ must have “ignored” Plaintiff’s testimony
regarding the intensity of his pain and “pluck[ed] out portions of
medical records to support her conclusion” that his pain did not
qualify as disabling.
As
an
initial
(Id. at 5.)
matter,
This argument lacks merit.
Plaintiff
“bears
the
burden
of
establishing [his] impairments and the resulting limitations on
[his] ability to perform work.”
Donnell v. Astrue, No. 1:09CV308,
2010 WL 3911425, at *3 (M.D.N.C. Oct. 5, 2010) (unpublished)
(Dixon, M.J.), recommendation adopted, slip op. (M.D.N.C. Nov. 5,
2010) (Schroeder, J.).
ALJ’s
analysis
of
In order to successfully challenge the
Plaintiff’s
subjective
complaints
of
pain,
Plaintiff must show how a proper credibility analysis would have
resulted in additional functional limitations in the RFC and how
that RFC would impact the ALJ’s ultimate conclusion regarding
Plaintiff’s ability to perform the jobs cited by the VE.
See
McAnally v. Astrue, 241 F. App’x. 515, 518 (10th Cir. 2007) (“[W]e
agree
with
the
magistrate
that,
‘[w]ith
regard
to
[her]
hypertension, loss of vision or skin problems, the claimant has
shown no error by the ALJ because she does not identify any
functional limitations that should have been included in the RFC
[assessment]
or
discuss
any
evidence
that
would
support
the
inclusion of any limitation.’”); Miles v. Astrue, No. 8:07-3164RBH, 2009 WL 890651, at *14 (D.S.C. Mar. 30, 2009) (unpublished)
(“[T]he plaintiff details various pieces of evidence which she
9
contends the ALJ misconstrued . . . . The plaintiff, however, has
not explained how such evidence, if fully considered, would have
proven
additional
limitations
sufficient
to
eliminate
the
possibility that [the] plaintiff could perform the sedentary work
required of her past relevant work. Accordingly, error, if any, in
either failing to consider such evidence or in misconstruing it,
would be harmless.”).
such showing.
Nor
does
Plaintiff has made no effort to make any
(See Docket Entry 13 at 3-6.)
Plaintiff’s
generalized
credibility analysis withstand scrutiny.
attack
on
the
ALJ’s
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”), as applied by the Fourth
Circuit in Craig, 76 F.3d at 594-95, provides a two-part test for
evaluating a claimant’s statement 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
expected to produce the pain or other symptoms alleged.’”
be
Id. at
594 (quoting 20 C.F.R. § 404.1529(b)).
If a claimant meets that threshold obligation, the fact finder
must proceed to part two and evaluate the intensity and persistence
of the claimant’s pain, as well as the extent to which it affects
10
her ability to work.
Id. at 595.
In making this evaluation, the
fact finder:
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).
At the outset, Plaintiff overstates the reach of Hines.
That
case holds only that, at part two of the credibility assessment,
“subjective evidence of the pain, its intensity or degree can, by
itself, support a finding of disability.”
(emphasis
added).
circumstances,
an
In
ALJ
other
may
words,
choose
to
Hines, 453 F.3d at 563
under
rely
the
appropriate
exclusively
on
a
claimant’s subjective complaints to find disabling pain at part two
of the credibility assessment. However, Hines does not compel ALJs
to consider only subjective evidence at part two of the credibility
assessment, as such a requirement conflicts with the regulations,
which plainly require ALJs to consider a variety of factors in
evaluating the intensity, persistence, and limiting effects of
pain.
See 20 C.F.R. § 404.1529(c) (directing ALJs to assess a
claimant’s medical history, medical signs and laboratory findings,
daily activities, testimony about the nature and location of pain,
11
medication and other treatment used to alleviate pain, along with
medical opinions from examining and non-examining sources).
Here, the ALJ’s analysis of Plaintiff’s subjective complaints
of pain complies with the applicable regulations. The ALJ found at
part
one
of
the
credibility
assessment
that
Plaintiff
had
impairments that could reasonably be expected to cause his alleged
symptoms.
(Tr. 28.)7
Proceeding to part two of the credibility
assessment, the ALJ found, however, that “[Plaintiff’s] statements
concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with
the . . . [RFC] assessment.”
(Id.)8
In making that part two finding, the ALJ discussed the medical
history and medical signs relevant to each type of pain Plaintiff
alleged, i.e., inguinal hernia pain, neck and back pain, and
numbness
and
tingling
of
the
hands
7
and
arms.
(Tr.
28-29.)
Plaintiff has not alleged any error with respect to this part
credibility inquiry. (See Docket Entry 13 at 3-6.)
8
of
the
The Fourth Circuit recently issued a published decision, Mascio v. Colvin, No.
13-2088,
F.3d
, 2015 WL 1219530 (4th Cir. 2015), which found that the ALJ
erred by using, at part two of the credibility assessment, “boilerplate” language
that “the claimant’s statements concerning the intensity, persistence and
limiting effects of [his pain] are not credible to the extent they are
inconsistent with the above residual functional capacity assessment.” Mascio,
2015 WL 1219530, at *5. The court joined the Seventh Circuit in holding that
this language “‘gets things backwards’ by implying ‘that ability to work is
determined first and is then used to determine the claimant’s credibility.’” Id.
(quoting Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012)). However, the
court concluded that the ALJ’s use of such language would constitute harmless
error if the ALJ had “properly analyzed credibility elsewhere.” Id. at *6.
Although in Mascio, the court did not find that the ALJ had elsewhere properly
analyzed the claimant’s credibility, id., in this case, the ALJ did otherwise
properly analyze Plaintiff’s subjective complaints of pain.
12
Further, the ALJ reviewed observations from five of Plaintiff’s
treating providers, Dr. Victor Owusu-Yaw, Dr. Steven Gross, Dr.
Shawn Dalton-Bethea, Dr. Daniel Tesfaye, and Dr. Allston Stubbs,
which indicate that those providers could not find a satisfactory
medical explanation for Plaintiff’s pain. (Tr. 29 (citing Tr. 392,
437, 680, 687, 729).)
The ALJ next evaluated Plaintiff’s own
statements in the medical record and at the hearing which tended to
show
that
his
pain
did
not
qualify
as
disabling,
including
Plaintiff’s statement in November 2009 that his pain ranged from
one to three out of ten, his self-assessment of “good” health in
September 2011, and his expressed improvement following treatments
such as physical therapy and injections.
(Tr. 29-30 (citing Tr.
50, 55, 553, 705, 714).)
The ALJ rounded out her credibility analysis with discussion
of the medical opinion evidence.
ALJ
properly
psychologist
assigned
Dr.
“little
Christopher
(Tr. 30.)9
weight”
Edwards
9
that
In that regard, the
to
the
opinion
Plaintiff
of
warranted
Although the ALJ did not discuss Plaintiff’s daily activities as part of the
credibility analysis, she did note, during her discussion of the severity of
Plaintiff’s impairments at step two of the SEP, that Plaintiff could bathe, dress
himself, prepare meals, live alone, clean, do laundry, make minor repairs, do
yard work, haul trash, assist his paralyzed uncle, read, watch television, attend
church, visit friends, take care of his finances, shop by telephone and at the
store, and use the internet and email. (Tr. 26-27.) Where the ALJ has discussed
particular evidence in one area of her decision, she need not rehash such
evidence at a later point. 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 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).
13
benefits due to his “inability to work” (Tr. 743), because “the
file contain[ed] no medical record from Dr. Edwards” and the
Commissioner reserves the authority to decide whether a claimant
can work (Tr. 30).
The ALJ further found the opinions of the state
agency consultants that Plaintiff could perform a limited range of
light work “generally consistent with the overall evidence of
record.” (Id.)10 The ALJ’s credibility analysis thus complies with
the regulations and Fourth Circuit law.
Finally,
although
Plaintiff
lists
a
string
citation
of
transcript pages that contain his statements about pain and accuses
the ALJ of “ignor[ing]” such statements (Docket Entry 13 at 5), the
ALJ indicated in her decision that she had considered the entire
record (see Tr. 23, 25, 27, 28), and ALJs need not recount each
piece of evidence in assessing Plaintiff’s credibility, Carlson v.
Shalala, 999 F.2d 180, 181 (7th Cir. 1993).
Further, the ALJ’s RFC
formulation included limitations to account for Plaintiff’s pain,
such as a restriction to no more than 20 pounds of lifting (light
work), the ability to sit or stand at will, and multiple postural
10
The ALJ incorrectly stated that the state agency consultants had assessed
Plaintiff’s RFC at the medium level of exertion, and that the ALJ gave Plaintiff
“all reasonable benefit of the doubt . . . when establishing [an RFC] in the
light exertional range.” (Tr. 30.) In actuality, both state agency consultants
limited Plaintiff’s RFC to the light level of exertion, see 20 C.F.R.
§ 404.1567(b) (defining light exertion as work involving “lifting no more than
20 pounds at a time with frequent lifting or carrying of objects weighing up to
10 pounds”). (Tr. 500, 670.) Plaintiff did not raise this misstatement as an
issue on judicial review. (See Docket Entry 13.) Moreover, any error remains
harmless because the ALJ’s RFC contains more restrictions than the RFCs assessed
by the state agency consultants, including a sit/stand option and mental
limitations. (Compare Tr. 27-28, with Tr. 499-506, 669-76.)
14
limitations.
(Tr. 27-28.)
More significantly, Plaintiff has
failed to meet his burden to show how the ALJ’s failure to discuss
certain of Plaintiff’s statements about pain would impact the RFC
or the ALJ’s step five finding that Plaintiff retained the ability
to perform the jobs cited by the VE (which finding Plaintiff did
not challenge, see Docket Entry 13).
See Miles, 2009 WL 890651, at
*14.
In short, Plaintiff’s challenge to the ALJ’s analysis of his
subjective complaints of pain lacks merit.
2.
Listings
Plaintiff next faults the ALJ for restricting her step three
analysis to Listing 1.04 (Disorders of the Spine) and for failing
to consider whether Plaintiff’s impairments met or equaled all
other applicable listings, “[i]ncluding, but not limited to, 11.08
for the scarring/irritation of his nerves causing pain and 12.02,
12.04, and 12.06 for his neurosis.”
(Docket Entry 13 at 8.)
Plaintiff asserts that “the medical record includes significant
evidence supportive of [his] claim” that “he may meet or equal one
or more of these [l]istings.”
(Id. (citing Tr. 395, 440, 475, 555,
561, 569, 570, 584, 589, 590, 592, 593, 608, 615, 618, 654, 743,
745).)11
Where such evidence exists, Plaintiff contends that the
11
Notably, Plaintiff did not provide any explanation as to which specific
diagnoses, medical signs, or other objective findings on the cited transcript
pages constitute “evidence” relevant to the applicable listings. (Docket Entry
13 at 8.) That fact also undermines this assignment of error. See Hughes v. B/E
Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n. 1 (M.D.N.C. Mar. 7,
2014) (unpublished) (“A party should not expect a court to do the work that it
15
ALJ must provide sufficient explanation of whether Plaintiff’s
impairments meet or equal those listings to allow this Court
“meaningful review” of the ALJ’s step three findings, citing
Radford v. Colvin, 734 F.3d 288, 296 (4th Cir. 2013).
Entry 13 at 7-8.)
(Docket
Those arguments fall short.
“In evaluating a claimant’s impairment, an ALJ must fully
analyze whether a claimant’s impairment meets or equals a ‘Listing’
where there is factual support that a listing could be met.”
Cook
v.
More
Heckler,
783
F.2d
1168,
1172
(4th
Cir.
1986).
specifically, when an ALJ finds that a claimant has a severe
impairment and the record contains evidence of related “symptoms
[that] appear to correspond to some or all of the requirements of
[a listing] . . . [the ALJ must] explain the reasons for the
determination that [the claimant’s severe impairment] did not meet
or equal a listed impairment.”
Id.; see also Russell v. Chater,
No. 94-2371, 1995 WL 417576, at *3 (4th Cir. 1995) (unpublished)
(observing
that
Cook
“does
not
establish
an
inflexible
rule
requiring an exhaustive point-by-point discussion [of listings] in
all cases”).
To meet the requirements of Listing 11.08, Plaintiff must
demonstrate that he has “[s]pinal cord or nerve root lesions, due
to any cause with disorganization of motor function as described in
elected not to do.”); see also Northwest Nat’l Ins. Co. v. Baltes, 15 F.3d 660,
662–63 (7th Cir. 1994) (observing that judges “need not excavate masses of paper
in search of revealing tidbits”).
16
Listing 11.04B.”
20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 11.08
(italics omitted). In turn, Listing 11.04B requires “[s]ignificant
and
persistent
extremities,
disorganization
resulting
in
of
sustained
motor
function
disturbance
dexterous movements, or gait and station . . . .”
of
in
gross
two
and
20 C.F.R. Pt.
404, Subpt. P, App’x 1, § 11.04B.
Plaintiff here failed to provide sufficient evidence of spinal
cord or nerve root lesions to trigger the ALJ’s obligation to
analyze Listing 11.08.
Although several MRIs of Plaintiff’s
cervical and lumbar spine did show a “slight mass effect on the
anterior
thecal
sac”
(Tr.
308),
“encroachment
on
the
neural
foramina” (Tr. 309), “moderate foraminal stenosis” (Tr. 524), and
“mild central canal narrowing” (Tr. 766), none of the reports noted
spinal cord or nerve root compression, impingement or compromise
(Tr. 308-09, 524, 727, 766, 768).
Moreover, Plaintiff’s treatment
providers who reviewed the MRIs agreed that the reports showed no
spinal cord or nerve encroachment (Tr. 579, 729) and did not
explain Plaintiff’s radicular symptoms (Tr. 483, 729).
although
nerve
conduction
studies
on
July
24,
Similarly,
2008,
showed
abnormalities at L5-S1, the report recommended “imaging correlation
for radiculopathy.” (Tr. 401.)
A lumbar spine MRI performed just
one week later identified “no abnormality” at L5-S1.
(Tr. 402.)
Nerve conduction studies of Plaintiff’s upper extremities performed
on March 10, 2011, produced normal results.
17
(Tr. 678-79)
Similarly, Plaintiff has not shown significant and persistent
disorganization of motor function in two extremities.
Although
Plaintiff claims “[t]he medical evidence of record documents” his
“limp” (Docket Entry 13 at 8), the pages cited by Plaintiff contain
no reference to a “limp” or other gait disturbance or abnormality
(see Tr. 395, 440, 475, 561, 570, 584, 592, 593, 608, 618, 654).
Indeed, as noted by the Commissioner, the record includes repeated
findings of normal gait, motor strength, reflexes, and sensation
(see Docket Entry 15 at 14 (citing Tr. 392, 395, 412, 552, 593,
732, 763, 764, 776, 805, 842).)
Accordingly, the ALJ did not err
by failing to discuss whether Plaintiff’s impairments met or
equaled Listing 11.08.
With regard to Plaintiff’s neurosis, although he asserts the
applicability of Listings 12.02 (Organic Mental Disorders), 12.04
(Affective Disorders), and 12.06 (Anxiety-Related Disorders), he
again provides the Court with no explanation as to how his neurosis
even applies to (let alone meets or equals) those listings, beyond
another
string
cite
of
allegedly
relevant
transcript
pages.
(Docket Entry 13 at 8 (citing Tr. 555, 569, 570, 589, 590, 615,
743, 745.) However, those pages do not provide sufficient evidence
relevant to the requirements of Listings 12.02, 12.04, and 12.06 to
have triggered the ALJ’s obligation to specifically analyze whether
Plaintiff’s neurosis met or equaled those listings.
18
In sum, the ALJ did not err by failing to analyze Listings
11.08, 12.02, 12.04, and 12.06 at step three of the SEP.
3.
Third Party Function Report
In Plaintiff’s third and final issue on review, he argues that
the ALJ erred by failing to discuss the third party function report
completed by his mother. (Docket Entry 13 at 8-10 (citing Tr. 226234).) In particular, Plaintiff emphasizes the significance of his
mother’s statements that Plaintiff had experienced pain “most of
the time” since his hernia surgery in December 2007 (Tr. 234), that
his pain affects his ability to lift (Tr. 231, 232) and get along
with others (Tr. 232), and that he does not handle stress or
changes in routine well (Tr. 233).
(Id. at 9.)
According to
Plaintiff, the ALJ’s oversight does not constitute harmless error,
because “the ALJ found [Plaintiff’s] testimony . . . not credible
and
[his
mother’s]
testimony.”
(Id.)
statement
supports
and
corroborates
[his]
Plaintiff’s contentions provide no basis for
relief.
In addition to evidence from “acceptable medical sources,” 20
C.F.R. § 404.1513(a) (licensed medical or osteopathic physicians,
licensed
or
certified
psychologists,
licensed
optometrists,
licensed podiatrists, and qualified speech-language pathologists),
the ALJ may consider evidence from other non-medical sources, such
as statements from spouses, parents, caregivers, siblings, other
relatives,
friends,
neighbors,
19
and
clergy,
to
determine
the
severity of a claimant’s impairments and his or her residual
ability to work.
20 C.F.R. § 404.1513(d)(4); Social Security
Ruling 06–03p, Titles II and XVI: Considering Opinions and Other
Evidence from Sources Who Are Not “Acceptable Medical Sources” in
Disability Claims; Considering Decisions on Disability by Other
Governmental and Nongovernmental Agencies, 2006 WL 2329939, at *2
(2006) (“SSR 06-03p”).
“[I]nformation from [non-medical sources]
may be based on special knowledge of the individual and may provide
insight into the severity of the impairment(s) and how it affects
the individual’s ability to function[;]” however, in considering
evidence from these sources, “it would be appropriate to consider
such factors as the nature and extent of the relationship, whether
the evidence is consistent with other evidence, and any other
factors that tend to support or refute the evidence.”
SSR 06–03p,
2006 WL 2329939, at *2, *6.
Here, the ALJ failed to discuss the third party function
report submitted by Plaintiff’s mother.
(Tr. 20-32.)
However,
such an omission by the ALJ constitutes harmless error, where, as
here,
the
third
party
function
report
“does
not
materially
contradict” the evidence supporting the ALJ’s RFC determination.
Morgan v. Barnhart, 142 F. App’x 716, 723 (4th Cir. 2005).
The
United States District Court for the Western District of North
Carolina recently discussed this issue in some detail:
Generally, failure by the Commissioner to consider an
entire line of evidence falls well below the minimal
20
level of articulation required by the Social Security
Act. Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995).
However, an ALJ is not tasked with the “impossible burden
of mentioning every piece of evidence” that may be placed
into the Administrative Record. Parks v. Sullivan, 766
F. Supp. 627, 635 (N.D. Ill. 1991). The issue of whether
it is reversible error for an ALJ to fail to mention
corroborative lay witness opinions has been squarely
addressed by a number of circuits, as discussed by the
district court in Orcutt v. Barnhart, 2005 WL 2387702,
*8–9 (C.D. Cal. 2005):
As long as substantial evidence supports the
ALJ’s conclusion and the ALJ explains why
“significant probative evidence has been
rejected,” an ALJ’s failure to discuss lay
witness testimony constitutes harmless error.
Vincent v. Heckler, 739 F.2d 1393, 1395 (9th
Cir. 1984). In Vincent, although the ALJ did
not discuss the plaintiff’s son’s testimony in
his hearing decision, the court held that such
an omission did not require reversal because
the medical evidence supported the ALJ’s
decision that the plaintiff was not disabled.
Id.
The view that an ALJ need not discuss every
piece of evidence, even when that evidence is
from a lay witness, has found support in the
Seventh and Eighth Circuits, especially when
lay witness testimony does little more than
corroborate a plaintiff’s own testimony. In
Books v. Chater, a Seventh Circuit decision,
the court held that “[a]ll we require is that
the ALJ sufficiently articulate his assessment
of the evidence to ‘assure us that [he]
considered the important evidence . . . [and
to enable] us to trace the path of the ALJ’s
reasoning.’”
Books v. Chater, 91 F.3d 972,
980 (7th Cir. 1996) (quoting Carlson v.
Shalala, 999 F.2d 180, 181 (7th Cir. 1993)
(quoting Stephens v. Heckler, 766 F.2d 284,
287 (7th Cir. 1985))).
Since plaintiff’s
brother’s
testimony
in
Books
“did
not
constitute a separate ‘line of evidence,’” but
“served strictly to reiterate, and thereby
corroborate,
[plaintiff’s]
own
testimony
concerning his activities and limitations” 21
and the plaintiff’s testimony was found by the
ALJ to be “untenable” when contrasted with his
daily activities and the medical evidence the court held that the ALJ’s failure to
specifically discuss the plaintiff’s brother’s
testimony was not error.
Books, 91 F.3d at
980. Similarly, in Young v. Apfel, the Eighth
Circuit
held
that
“[a]lthough
specific
articulation
of
credibility
findings
is
preferable, we consider the lack thereof to
constitute a deficiency in opinion-writing
that does not require reversal” as long as the
ALJ’s “ultimate finding is supported by
substantial evidence in the record.” Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
In Young, since the same evidence the ALJ used
to discount the plaintiff’s testimony “also
support[ed] discounting the testimony of [the
plaintiff’s] husband,” the court held that
“the ALJ’s failure to give specific reasons
for disregarding [the husband’s] testimony
[was] inconsequential.” Id.
Id. at 8–9. While an opinion of a district court in the
Ninth Circuit is not controlling in the Fourth Circuit,
the court finds the reasoning of the Orcutt court to be
highly persuasive.
. . .
As in Orcutt, the issue is not whether the ALJ failed to
mention a particular piece of evidence in his decision,
but whether the ALJ’s final decision denying benefits is
supported by substantial evidence contained in the
Administrative Record. Here, the ALJ’s ultimate findings
concerning plaintiff’s deficits concerning concentration
and memory find support in substantial evidence of
record.
Blackwell v. Colvin, No. 1:14–cv–00085–MOC, 2014 WL 7339132, at *78 (W.D.N.C. Dec. 23, 2014) (unpublished).
As recognized by the Commissioner (see Docket Entry 15 at 1819), the report submitted by Plaintiff’s mother does not materially
contradict the ALJ’s RFC determination.
22
Plaintiff’s mother stated
that Plaintiff has experienced pain “most of the time” since his
December 2007 surgery (Tr. 234), but she did not describe the
degree of his pain.
She indicated Plaintiff’s pain limits his
ability to lift (Tr. 232), but also indicated that Plaintiff
remained able to prepare his own meals, assist his disabled uncle,
listen to his favorite talk shows, mow the lawn for two homes using
a ride-on mower, perform simple car repairs, wash laundry, use a
computer and grocery shop (Tr. 226).
The ALJ’s limitation of
Plaintiff to light work with the ability to sit or stand at will,
along
with
numerous
postural
limitations,
amply
accommodates
Plaintiff’s mother’s statements about pain and limits on lifting.
The
ALJ’s
RFC
determination
also
adequately
encompasses
Plaintiff’s mother’s statements regarding Plaintiff’s difficulty
getting along with others (Tr. 232)12 and tolerating stress and
changes in routine (Tr. 233): the ALJ limited Plaintiff to work
that involved no contact with the public, at a non-production pace,
and with no complex decision-making, constant changes, or dealing
with crises (Tr. 28).
In conclusion, the ALJ’s failure to discuss the third party
function report submitted by Plaintiff’s mother constitutes at most
12
Plaintiff’s mother stated that Plaintiff’s condition impacted his ability to
get along with others, but additionally noted that Plaintiff had “not had many
close friends since high school” and that she was “not sure” Plaintiff’s
condition had impacted his ability to socialize. (Tr. 232.) She also remarked
that Plaintiff’s social activities had not changed since the onset of his illness
(id.), that he gets along “very well” with authority figures and had never been
fired from a job (Tr. 233).
23
harmless error, because that report does not materially contradict
the ALJ’s RFC determination.
III. 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
a
Judgment Reversing or Modifying the Decision of the Commissioner of
Social Security, or Remanding the Cause for Rehearing (Docket
Entry 12) be denied, that Defendant’s Motion for Judgment on the
Pleadings (Docket Entry 14) be granted, and that this action be
dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 24, 2015
24
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