COLE v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

Filing 24

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 08/14/2014 as set out herein. ORDERED that Cole's motion to reverse the Commissioner's decision (Doc. 16 ) and his motion for judgment on the pleadings (Doc. 21 ) are DENIED, the Commissioner's motion for judgment on the pleadings (Doc. 18 ) is GRANTED, and this action is DISMISSED.(Taylor, Abby)

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

MACK JEFFREY COLE,

)
)
)
)
)
)
)
)
)
)
)

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

1:13cv868

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Plaintiff Mack Jeffrey Cole brought this action pursuant to
Section 205(g) of the Social Security Act, as amended (42 U.S.C.
§ 405(g)) (“the Act”), to obtain judicial review of a final
decision

of

the

Commissioner

of

claim for disability benefits.

Social

Security

denying

his

The parties have filed cross-

motions for judgment, 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, Cole’s motions
will be denied, and this case will be dismissed.
I.

BACKGROUND
For

thirteen

Department

of

years,

Cole

Transportation

worked
as

a

for

general

the

North

Carolina

laborer,

erecting

(Tr. at 50, 53-54.)1

roadway signs.

In October 2005, as he was

at work in a vehicle on the side of the highway, his vehicle was
struck

by

an

oncoming

tractor-trailer.

(Tr.

at

50.)

The

injuries he sustained in that accident precipitated the current
disability claim.
He first applied for Disability Insurance Benefits (“DIB”)
on July 10, 2007, alleging a disability onset date of October
16, 2005, the date of the accident.
application

was

denied

initially

(Tr. at 204-05.)

(Tr.

at

136-39)

and

His
on

reconsideration (Tr. at 143-150), and Cole requested a hearing
de novo before an Administrative Law Judge (“ALJ”) (Tr. at 15152).

Present at the hearing, held on March 26, 2009, were Cole

and his attorney.

(Tr. at 90-117.)

On July 21, 2009, the ALJ

determined that Cole was not disabled within the meaning of the
Act.

(Tr. at 120-30.)

On March 23, 2011, the Appeals Council

granted Cole’s request for review and remanded the case to the
ALJ with specific instructions for further evaluation.

(Tr. at

131-35.)
The same ALJ reviewed the case a second time, holding a
hearing on January 24, 2012, at which Cole, his attorney, and a
vocational expert (“VE”) were present.

1

(Tr. at 43-89.)

On

Transcript citations refer to the Administrative Transcript of Record
(Doc. 13 and accompanying exhibits) filed with the Commissioner’s
Answer (Doc. 12).

2

March

20,

2012,

the

ALJ

again

determined

disabled within the meaning of the Act.

that

Cole

was

not

(Tr. at 23-42.)

On

April 22, 2013, the Appeals Council denied Cole’s request for
review,

thereby

making

the

ALJ’s

determination

the

Commissioner’s final decision for purposes of judicial review.
(Tr. at 8-13.)
In making the disability determination, the ALJ made the
following findings:
1.
[Cole] last met the insured status requirements
of the . . . Act through December 31, 2011.
2.
[Cole] did not engage in substantial gainful
activity during the period from his alleged onset date
of October 16, 2005 through his date last insured of
December 31, 2011 (20 CFR 404.1571 et seq.).
. . .
3.
Through the date last insured, [Cole] had the
following severe impairments: organic brain syndrome;
left shoulder dislocation status-post surgical repair;
and mild degenerative disc disease of the cervical
spine and thoracic spine (20 CFR 404.1520(c)).
. . .
4.
Through the date last insured, [Cole] 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
(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, [Cole] had the residual functional capacity
3

to perform light work as defined in 20 CFR 404.1567(b)
except [that] he was limited to simple, repetitive
work tasks in a low-stress setting with minimal social
demands.
(Tr. at 28-30.)
In

light

of

his

findings

regarding

residual

functional

capacity (“RFC”) and the testimony of the VE, the ALJ determined
that Cole would not be able to perform his past relevant work as
a

general

laborer

for

the

North

Carolina

Department

Transportation, which requires heavy physical labor.
35-36.)

of

(Tr. at

However, the ALJ found that other jobs available in

significant numbers existed in the national economy that Cole
could perform given his RFC and vocational abilities, including
a dining room attendant, a night business cleaner, and a mail
clerk.

(Tr. at 36-37.)

Accordingly, the ALJ determined that

Cole had not been “disabled,” as defined in the Act, at any time
from October 16, 2005, through the date of his decision, March
20, 2012.

(Tr. at 37.)

Cole filed the current action pro se, seeking to reverse
the

ALJ’s

(Doc. 2.)

decision,

which

was

adopted

by

the

Commissioner.

The Commissioner answered (Doc. 12) and filed the

administrative record (Doc. 13).
decision of the Commissioner.

Cole moved to reverse the

(Docs. 16, 17.)

The Commissioner

responded by moving for judgment on the pleadings.
19.)

(Docs. 18,

Cole then moved for judgment on the pleadings, which is in
4

substance a response to the Commissioner’s motion.
22.)
II.

The Commissioner responded.

(Docs. 21,

(Doc. 23.)

ANALYSIS
A.

Standard of Review

Federal
Security

law

“authorizes

Commissioner’s

judicial

denial

of

review

social

of

the

security

Social

benefits.”

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

However,

“the scope of . . . review of [such an administrative] decision
. . . 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) (quoting Johnson v. Barnhart, 434 F.3d 650, 653
(4th Cir. 2005)) (internal brackets omitted) (setting out the
standards for judicial review).
“Substantial evidence means ‘such relevant evidence as a
reasonable

mind

conclusion.’”

might

accept

as

adequate

to

support

a

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
5

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)) (internal brackets 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 (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].”

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, 434 F.3d at 653) (internal brackets
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

application of the relevant law.”

6

based

upon

a

Craig, 76 F.3d at 589.

correct

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
“The

Commissioner

disability claims.”
§§ 404.1520(a)(4),

uses

a

five-step

process

to

evaluate

Hancock, 667 F.3d at 472 (citing 20 C.F.R.
416.920(a)(4)).

“Under

this

process,

the

Commissioner asks, in sequence, whether the claimant: (1) worked
during

the

impairment;

alleged
(3)

had

period
an

of

disability;

impairment

that

(2)

met

had

or

a

severe

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.

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
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).

7

A finding adverse to the claimant at any of several points
in this five-step sequence forecloses a disability designation
and ends the inquiry.
whether

the

claimant

For example, “[t]he first step determines
is

engaged

in

‘substantial

gainful

activity.’

If the claimant is working, benefits are denied.

The

step

second

disabled.

determines

if

the

claimant

If not, benefits are denied.”

is

‘severely’

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 179.3

Step four

then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant work”; if so, the claimant
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” (emphasis
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.

8

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,

which

“requires

the

[Government] to prove that a significant number of jobs exist
which

the

claimant

impairments.”

could

Hines,

453

perform,
F.3d

despite

[the

563.

In

at

claimant’s]
making

this

determination, 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.”
at 264-65.

Hall, 658 F.2d

If, at this step, the Government cannot carry its

“evidentiary burden of proving that [the claimant] remains able
to work other jobs available in the community,” the claimant
qualifies as disabled.

Hines, 453 F.3d at 567.

In addressing this case, the court is mindful that it must
construe pro se litigants’ complaints liberally, thus permitting
a potentially meritorious case to develop if one is present.
Hill

v.

Braxton,

277

F.3d

701,

707

(4th

Cir.

2002)

(citing

Haines v. Kerner, 404 U.S. 519, 520 (1972)).

However, this does

not

advocate

require

that

unrepresented party.
387,

391

(4th

Cir.

the

court

become

an

for

the

Weller v. Dep’t of Soc. Servs., 901 F.2d
1990).

“Only

those

questions

which

squarely presented to a court may properly be addressed.”
9

are

Id.

B.

Merits

Cole proffers several reasons why the ALJ’s decision, as
adopted by the Commissioner, should be reversed.
First, he challenges the step five determination, arguing
that the VE gave the ALJ erroneous information regarding two of
the

three

economy.

jobs

he

could

perform

(Doc. 17 at 1-2.)

that

exist

in

the

national

He states that the VE did not

provide the ALJ with an exact Dictionary of Occupational Titles
(“DOT”)

code

clerk,

and

for
so

either
the

a

ALJ

night
may

business

have

cleaner

misunderstood

or

a

the

mail
jobs’

requirements and incorrectly determined that he could do those
jobs.
to

(Id.)

identify

The Commissioner responds that the ALJ needed only
one

job

that

Cole

could

perform

significant numbers in the national economy.

that

exists

in

(Doc. 19 at 9.)

Even crediting Cole’s objections, the Commissioner argues, the
ALJ identified the job of “dining room attendant,” with the
correct

DOT

Carolina.

code,

(Id.)

of

which

there

are

2500

jobs

in

North

Cole replies that he would not be hired as a

dining room attendant because he is overqualified and because he
has grip and control problems with his hands.

(Doc. 22 at 2.)

The Commissioner is correct in that the ALJ only needs to
identify

one

job

that

Cole

can

perform,

given

his

RFC

and

vocational capabilities, that exists in the national economy in
10

significant

numbers.

20

C.F.R.

§

404.1566(b).

The

ALJ

determined that Cole could perform the work of a dining room
attendant, of which there are 2500 jobs in North Carolina.
at 36.)

(Tr.

The Fourth Circuit has previously found that 110 jobs

is not an insignificant number,

Hicks v. Califano, 600 F.2d

1048, 1051 n.2 (4th Cir. 1979), so 2500 certainly meets the
required threshold.
291-92

(6th

claimant’s

Cir.
home

See also Harmon v. Apfel, 168 F.3d 289,
1999)

is

(700

jobs

significant

within

number).

75-mile
Even

radius

if,

as

of

Cole

contends, he is overqualified for the job and employers would
not hire him, that does not undermine the ALJ’s conclusion.

At

step five, the Commissioner does not have to prove that Cole
actually

could

get

hired

for

the

position

identified;

the

Commissioner may find a claimant not disabled even if employers’
hiring
hired.

practices

result

in

the

claimant

See 20 C.F.R. § 404.1566(c).

not

actually

being

Furthermore, the ALJ had

substantial evidence from which to conclude Cole did not have
difficulties with his hands that would prevent him from being
able to perform the job of dining room attendant.

(See Tr. at

31-32; Tr. at 329-30 (one neurologist found “no apparent . . .
motor

deficits”);

Tr.

at

463-64

(another

neurologist

found,

despite Cole’s reports of “dropping things,” that Cole had “good
5/5 motor strength bilaterally in arms and legs”).
11

The ALJ had

sufficient evidence to conclude that the Commissioner carried
her burden at step five.
Second, Cole asserts that the ALJ erred in disregarding the
VE’s

testimony

attorney.

in

response

(Doc. 17 at 2.)

to

hypotheticals

posed

by

Cole’s

Cole believes the evidence shows he

does have the limitations articulated by his attorney in those
hypotheticals, and therefore the ALJ was wrong to dismiss them.
(Id.)

The

Commissioner

supports

the

ALJ’s

findings

which

means

limitations,

testimony are irrelevant.
During

the

second

argues

that

that

the

substantial

Cole

does

hypotheticals

not

evidence

have

and

those

resulting

(Doc. 19 at 9-10.)
hearing,

Cole’s

attorney

limitations to hypotheticals posed to the VE.

added

three

(Tr. at 81-86.)

Those three additional limitations were “more than occasional
difficulty interacting appropriately with the general public,”
“more

than

occasional

difficulty

appropriately

accepting

instructions and responding to criticism,” and “a poor ability
to maintain focus and pace with tasks.”

(Id.)

Assuming those

hypothetical limitations, the VE testified that Cole would not
be able to perform one or all of three jobs she had previously
identified as possible for Cole to perform.

(Id.)

The ALJ

ultimately disregarded that testimony because he found that Cole
did not suffer from those three limitations.
12

(Tr. at 37.)

Any

testimony based on those hypotheticals, therefore, he found not
relevant.

(Id.)

The real issue is whether there was substantial evidence
from which the ALJ could conclude that Cole did not have those
three limitations.

The ALJ’s own questioning of Cole regarding

his daily routine and interactions with family and friends (Tr.
at

56-66),

the

reports

of

the

neurologist

Dr.

Christopher

Connelly (Tr. at 32-35, 461-88), and the reports of two State
psychological consultants (Tr. at 520-23, 556-59) all support
the ALJ’s conclusion that Cole does not suffer from the three
specified

limitations.

Specifically,

the

State

consultants

independently found that Cole was capable of “understanding and
remembering short and simple instructions” and “maintaining the
attention/concentration
repetitive tasks].”

required

for

(Tr. at 522, 558.)

[simple,

routine,

They also found that,

even though Cole “would likely have some social limitations” and
“some difficulty with frustration tolerance,” he could function
in a low-stress work environment with “minimal social demands.”
(Id.)

The ALJ adopted those findings specifically, determining

that Cole could perform light work as long as he was limited to
“simple,

repetitive

work

minimal social demands.”

tasks

in

a

low-stress

(Tr. at 30.)

setting

with

Cole’s own testimony

also supports the ALJ’s conclusion that he does not have the
13

three

additional

limitations:

he

repairs

antique

cars,

camps

occasionally, visits with family and friends, and does household
tasks, such as

buying groceries, driving, and riding a lawn

mower to cut the grass.

(Tr. at 56-66.)

All of these attest to

his ability to interact socially and maintain focus long enough
to complete tasks.
Cole relies on Mr. Patrick Clifford’s report for support
for his position.

(Doc. 17 at 2.)

Mr. Clifford, a vocational

consultant, states in that report that Cole has, among other
things,

depression,

difficulty

interacting

with

difficulty with attention span and concentration,

others,

difficulty

completing tasks, and frequent bouts of frustration and mood
swings.

(Tr. at 273.)

However, the court’s review is limited

and re-weighing the evidence or substituting its judgment for
that

of

the

ALJ

is

not

warranted.4

Given

that

there

was

substantial evidence from which the ALJ could conclude that Cole
did not have the hypothetical limitations posed to the VE, the
testimony

elicited

from

the

VE

on

those

hypotheticals

was

irrelevant, and the ALJ was correct to disregard it.

4

The court also notes that Mr. Clifford’s evaluation is not
necessarily at odds with the other doctors who noted that Cole had
“moderate” but not “marked” limitation in those areas.
Furthermore,
the ALJ had discretion to discount Mr. Clifford’s analysis, in part
because he is not a medical doctor and in part because he only
examined Cole by telephone rather than in person, as some of the other
doctors did.

14

Third,5 Cole argues that the ALJ did not follow the Appeals
Council’s instruction to further consider his mental limitations
according to the “special technique” in 20 C.F.R. § 404.1520a.
(Doc. 17 at 2.)

The Commissioner contends that the ALJ did

comply

special

with

the

technique

findings of the State consultants.

because

he

adopted

the

(Doc. 19 at 11-12.)

The ALJ did not mention section 404.1520a explicitly, but
he did not need to as long as he followed the steps outlined in
that

regulation.

Section

404.1520a

outlines

a

“special

technique” for evaluating the severity of mental impairments.
It requires rating the degree of functional limitation in four
areas6

using

a

four-

or

five-point

scale.7

If

the

mental

impairment is found to be severe, then the ALJ compares “the
medical findings about [the] impairment(s) and the rating of the
degree

of

impairments.
State

functional

limitation”

to

20 C.F.R. § 404.1520a(d)(2).

psychologists’

rating

of

Cole’s

criteria

of

listed

The ALJ adopted the
mental

impairments,

finding that he had “moderate” limitations in each of the first
5

This point is included in Cole’s “Issue 2” (Doc. 17),
analytically distinct, so the court has listed it separately.

but

is

6

The four areas are activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation.
20 C.F.R. § 404.1520a(c)(3).
7

The five-point scale is none, mild, moderate, marked, and extreme.
It applies to the first three functional areas. The fourth functional
area is rated on a four-point scale: none, one or two, three, four or
more. 20 C.F.R. § 404.1520a(c)(4).

15

three

functional

decompensation.

areas

and

that

(Tr. at 29.)

he

had

no

episodes

of

Because the ALJ found Cole’s

impairments to be severe, he then compared the medical findings
regarding his impairments and the ratings of Cole’s functional
limitations to listed impairments, specifically 12.02 (organic
mental disorders) and 12.04 (affective disorders).

(Id.)

As

the Appeals Council instructed, the ALJ followed the special
technique

in

section

404.1520a;

he

again

found

Cole’s

impairments did not meet or medically equal a listed impairment.
Cole proffers no basis for this court to disturb that finding.8
Fourth, Cole asserts that the ALJ may have been biased
against Mr. Clifford and that the other doctors may have been
biased because they were compensated for their reports.
17 at 2; Doc. 22 at 2.)
discounting

Mr.

(Doc.

He also asserts that the ALJ erred in

Clifford’s

opinion

interviewed Cole telephonically.

because

(Id.)

Mr.

Clifford

only

Because Cole presents

no evidence of bias and rests on naked assertions, his claims
regarding the ALJ and the other doctors do not provide grounds
8

Cole objects to the ALJ’s reliance on evidence of his daily living
activities, which is one of the four areas rated for functional
limitation. (Doc. 22 at 2.) Cole states that he lived a more active
life before his accident and that he has experienced “very little
improvement” since his most recent doctor’s visit.
(Id.)
The
question, however, is not whether Cole is less active than before his
visit, but to what degree his daily living activities are functionally
limited now.
Two State psychological consultants determined that he
had “moderate” limitations in that area (Tr. at 29), and Cole has
cited no record evidence rebutting that finding.

16

for altering the ALJ’s judgment.

Further, the ALJ was justified

in giving more weight to reports from doctors who had actually
seen and physically examined Cole over reports from doctors who
simply

interviewed

him

over

the

phone.

See

20

C.F.R.

§ 404.1527(c)(1).
Fifth, Cole argues that the ALJ wrongfully discounted his
subjective reports of pain and other limitations.
3.)

(Doc. 17 at

However, the ALJ conducted a comprehensive analysis of the

symptoms

Cole

reported

experiencing,

and

he

compared

subjective reports with objective medical evaluations.

Cole’s
The ALJ

considered the fact that, at the time of the hearing, Cole had
not sought regular medical treatment or pain medication for his
disability-related injuries for five years.

(Tr. at 30-35.)

The ALJ considered all the evidence and applied the correct
legal

standard.

(describing

the

(Tr.
two-step

pain or other symptoms).
reject

or

at

review

the

30);

process

Craig,
for

76

F.3d

evaluating

a

at

594-95

claimant’s

It is not the purview of this court to
ALJ’s

credibility

judgments

regarding

Cole’s reports of pain.9

9

Cole also disputes the status of his shoulder disability, noting that
Dr. Mark Jasmine gave him a 10% disability rating in his shoulder.
(Doc. 22 at 3.) While that information is correct (Tr. at 332), the
evaluation occurred in June 2006, soon after Cole had undergone
shoulder surgery, as the ALJ noted, and Dr. Jasmine specifically noted
that Cole should “discontinue physical therapy” for his shoulder and
could probably “return to work [at the end of June] with regular

17

Sixth, Cole contends that the information before the ALJ
was incomplete and inaccurate.

(Doc. 17 at 3-4.)

Specifically,

he questions the absence of (1) a questionnaire about his health
that his friend allegedly completed and (2) the dictation of
notes from his emergency room visit in October 2005.
also Doc. 22 at 4-5.)
dictated.

(Id.; see

The original was lost; it was then re-

Cole believes the original dictation is important

because there is a discrepancy in the medical reports as to how
many seizures Cole had in the emergency room.

(Doc. 17 at 3-4.)

The Commissioner contends that there is no evidence to suggest
that Cole’s friend ever returned or submitted the questionnaire.
(Doc. 19 at 19.)

As to the dictation, the Commissioner reports

that it was lost by the hospital, not by the Commissioner, and
that there is no evidence that the number of Cole’s seizures
immediately following the accident affected the evaluation of
his current disability claim.

(Id.)

Cole alleges but provides no evidence that his friend ever
completed

or

returned

to

the

Social

Security

(“SSA”) a questionnaire on Cole’s health.

Administration

His citation to the

administrative transcript merely establishes that the SSA was in
contact with “Junior Coley” about being the responsible party
duties.” (Tr. at 360.) The ALJ reviewed the subsequent evidence and
concluded it “did not show [Cole] has required any regular treatment
or pain medication for his left shoulder impairment.”
(Tr. at 32.)
That finding is supported by the evidence.

18

for Cole’s medical exam and that a questionnaire was sent to
Coley on June 1, 2007.

(Doc. 17 at 3-4 (citing Tr. at 526-27).)

Unsworn allegations and hearsay statements as to Coley’s actions
in

response

to

the

questionnaire

(Doc.

22

at

4)

are

sufficient grounds for disturbing the ALJ’s conclusions.

not

As to

the dictation, there is indeed a discrepancy in the medical
reports as to how many seizures Cole had immediately following
his accident.

(Compare Tr. at 279 with Tr. at 282.)

However,

the re-dictation Cole complains of is more favorable to him than
his hospital discharge summary.
2005

discharge

summary)

(See Tr. at 279 (October 18,

(noting

one

seizure);

Tr.

at

282

(November 3, 2005 re-dictation of notes from October 16, 2005)
(noting 2-3 seizures).)

And while the number of seizures might

be indicative of how severe the accident was, the ALJ was only
charged with determining whether Cole was disabled from October
16,

2005,

until

accident was.

December

31,

2011,

not

how

severe

Cole’s

In other words, the question is not how bad the

initial injury was, but rather how badly the injury affected
Cole’s abilities.

Cole’s objection is insufficient to disturb

the ALJ’s disability determination.
Seventh, and finally, Cole objects to the ALJ disregarding
Dr. Alexander Manning’s exam.

(Doc. 17 at 4.)

did rely on Dr. Manning’s report.
19

However, the ALJ

(Tr. at 33 (citing Exhibit

12F).)

To the extent that Cole is attempting to argue that Dr.

Manning’s report supports a finding of disability – an argument
that Cole does not make or develop – the court notes that the
relevant question at this stage of review is not whether Cole is
disabled, but rather whether the ALJ had substantial evidence to
conclude that Cole was not disabled.
address

the

fact

that

the

ALJ

Cole’s argument does not
had

substantial

evidence

supporting his findings.
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 Cole’s motion to reverse the
Commissioner’s decision (Doc. 16) and his motion for judgment on
the pleadings (Doc. 21) are DENIED, the Commissioner’s motion
for judgment on the pleadings (Doc. 18) is GRANTED, and this
action is DISMISSED.

/s/
Thomas D. Schroeder
United States District Judge
August 14, 2014

20