MCLENDON v. COLVIN
Filing
25
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 11/23/2015. Having reviewed the record, the transcripts and the briefs and filings of the parties, and for the reasons stated abo ve, it is RECOMMENDED that Defendant's motion for judgment on the pleadings (Docket Entry 22 ) be GRANTED. To the extent Plaintiffs response (Docket Entry 17 ) is construed as a motion to dismiss, it is RECOMMENDED that this motion be DENIED. Finally, it is RECOMMENDED that Defendant's motion to dismiss for failure to prosecute (Docket Entry 13 ) be DENIED as moot.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DENISE GADDY McCLENDON,
Plaintiff,
v
CAROLYN W, COLVIN,
Acting Commissionet of Social
S ecurity Adminis tration,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Civil,\ction No. 1,:14CY 0498
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE TUDGE
Plaintiff, ptoceeding pto se, brought this action pursuant to Section 205(9) of the
Social Secutity Act, as amended (42 U.S.C. S 405 (g)),
to obtain judicial review ol a fir'al
decision of Defendant, the Commissioner of Social Secutity, denying Plaintiffs claims for
Disability Insurance Benefits ("DIB") under Title
II of the Social Security Act ("the Act").
This mattet is before the Cout on Defendant's motion for judgment on the pleadings.
Q)ocket F,nty
22.) Plaintiff
has not filed a response and the period
for filing a tesponse
bdef has expired. Fot the reasons set fotth below, it is recommended that Defendant's
motion be gtanted and that the
case be dismissed.
PROCEDURAL HISTORY
On Octob et
decision
17
,
201,4,
Plaintiff filed this action fot judicial teview of the unfavorable
of the Administtative Law Judge ("ALJ"). (Docket F;ntry 2.) Defendant filed
an
answer to the complaint on.z\ugust 12,2014. Q)ocket Entty 10.) Defendant fìled the sealed
1
administrative tecotd on the same day. (Docket Entty 11.) On,{.ugust1,2,201,4, this Court
issued a scheduling order requiring Plaintiff
to file her dispositive motion within foty-five
of the date of the scheduling order; Defendant was required to file her dispositive
days
motion within sixty days aftet the fìling of Plaintiffs motion and bdef. (Docket Entty
ìØhen Plaintiff did
not îtle a dispositive motion within foty-five
1.2.)
days, Defendant filed a
motion to dismiss for lack of ptosecution. Qocket F,ntry 13.) By lettet dated January 7,
201,5,
the Coutt notified Plaintiff of the motion to dismiss and advised Plaintiff that her
action would be subject to dismissal
date
if she failed to respond within
twenty-one days ftom the
of service of Defendant's motion. (Docket Entry 15.) Having teceived no
response
ftom Plaintiff, on June 30, 201,5, this Court issued an order advising Plaintiff that if she did
not file a motion or a response to Defendant's motion to dismiss wrthin foutteen days, the
court would recommend dismissing het case with ptejudice. On July 1.4,201,5, Plaintiff filed
a document entitled
"Plaintifff's] Motion not to dismiss/Response." (Docket Entry 17.)
By text order dated August 12, 201,5, this Coutt consftued PlaintifPs Complaint
(Docket Etttty
2) and "Motion" (Docket E.ttty 17) as "a motion fot judgment on
the
pleadings contending that the decision of the ALJ is not supported by substantial evidence."
(See
Text otdet dated August 12, 201,5.) The Court futthet ditected Defendant to fìle
tesponsive pleading within foutteen days.
a
(Itl.) Defendant filed a motion fot judgment on
the pleadings on September 1.5,201,5. (Docket F;nty 22.) By lettet dated Septembet L6,
201.5,
the Cout notified Plaintiff of the pending dispositive motion and of het tight to
tespond. (Docket Entry 24.) To date, Plaintiff has not filed
2
a response.
STANDARD OF REVIEST
The Commissioner held that Plaintiff was not under a disability within the meaning
of the Act. Under 42 U.S.C. $ a05(g), the scope of judrcial review of the Commissionet's
final decision is specific and natrow. Smith u. Schweiker,795 F.2d 343,345 (4th Cir. 1986).
This Coutt's teview of that decision is limited to determining whether thete is substantial
evidence in the record to support the Commissioner's decision. 42U.5.C. $ a05G); Hanter
Salliuan,993tr.2d31,,34 (4th Cit. 1992);Hay
Substantial evidence
adequate
is "such
u.
Salliuan,907 F.2d1.453,1,456 (4th Cir. 1990).
relevant evidence as a reasonable mind might accept
to support a conclusion." Hanter, 993 tr.2ð at 34 (cittng
U.S. 389, 401, (1,971)).
"It
consists
u.
as
Nchardson u. Perales, 402
of mote than a mete scintilla of evidence but may be
somewhat less than a prepondera'nce." Id. (quolng l-øwt u. Celebreqqe, 368 F.2d 640, 642 (4th
Cn. 1,966)). The denial of benefits will be revetsed only
if no reasonable mind
the tecotd as adequate to suppott the detetmination. Nchardson
u. Perales,402
could accept
U.S. 389,401.
(1,971). The issue befote the Coutt, thetefote, is not whether Plaintiff is disabled, but
whethet the Commissionet's finding that Plaintiff is not disabled is suppotted by substantial
evidence and was teached based upon a correct application
Cofrnaru u. Bowen,829
of the televant law.
See id.;
F.2d 51.4, 51,7 (4th Cir. 1987).
Thus, 'la] claimant for disability benefìts bears the butden of proving a disability,"
Hall
u.
Harrit,658 F.2d 260, 264 (4th Cir. 1981), and in this context, "disability" means the
"'inability
to
engage
in
^ny
substantial gainful activity
by reason of any
detetminable physical or mental impairment which can be expected to tesult
medically
in death or
which has lasted or c Ír be expected to last fot a continuous period of not less than
J
12
months,"' id. (quottng42 U.S.C.
S
423(dX1)(Ð). "To regularize the adjudicative process, the
Social Secutity Administtation has
.
. promulgated . . . detailed tegulations incorporating
longstanding medical-vocational evaluation policies that take into account a claimant's age,
education, and work experience in addition to fthe claimant's] medical condition." Hall,658
F.2d at
364. "These regulations
estabüsh a 'sequential evaluation process'
to
determine
whethet a claimant is disabled." Id. (internal citations omitted).
This sequential evaluation ptocess ("SEP") has up to fìve steps: "The claimant
(1)
must not be engaged in 'substantial gainful ac:dvity,' i.e., currently wotking; and Q) must have
a 'severe' impairment that (3) meets or exceeds the 'listings' of specified impairments, or is
othetwise incapacitalj;ng
to the extent that the claima¡t does not
possess the tesidual
functional capacity to (4) petfotm fthe claimant's] past work or (5) any other work." Albright
u. Comm'r of Soc. Sec. Admin., L74
F3d 473, 475 ¡. 2 (4th Cir. 1,999). The law concerning
these five steps is well-established. See, e.!., Mastro
u.
Apfel,270tr.3d17'1,,177-180 (4th Cir.
2001);Ha//,658tr.2dat264-65;Hines u.&arwhart,453tr.3d559,567 (4th Cir. 2006).
\X/hete, as hete, a clasrnant is proceedingpro re on judicial review, the claimant's court
filings ate entitled to libetal consttuction.
!ØDQ-13-7244, 201,4
Iül,
See, e.!., R
fr,
u. L.ockheed
Martin Corþ., Civ. No.
2069988, at *1. n.1.,3 (D. Md. May 15, 201,4) (citing Erickson
Pardas,551 U.S. 89,94 Q007) ("-.\ document filedpro ¡eis to be liberally construed..
Such construction apptoptiately includes consideration
of atguments
u.
..')).
germane to a motion
by a claimant even if they ate set out in a filing by the claimant nominally addressed to
another
moion.
Id.
4
DISCUSSION
Fedetal Rule
of Civil Procedure 41þ) provides that "[i]f the plaintiff fails to
prosecute or to comply with these rules or a court otdet, a defendant may move to dismiss
the action," and that such a dismissal "operates
Civ. P. 41þ);
see also
^s
arr
adjudication on the merits." Fed. R.
Link u. Il/abash Røilroad C0.,370 U.S. 626, 629-32 (1,962) (noting that
federal courts have the inhetent power to dismiss an actton
sþonte
fot failute to ptosecute eithet søa
or on the motion of a party). "The power to invoke this sanction is necessary in otdet
to prevent undue delays in the disposition of pending
calendats
of the District Court." Unk, 370 U.S.
cases and
^t
to avoid congestion in the
629-30. In consideting whether to
impose such a dismissal, the Coutt should considet "(1) the degree of personal responsibility
of the plaintiff, Q) the amount of prejudice
caused the defendant, (3) the existence
of
dtawn out history of deliberately proceeding in a dllatory fashion,' and (4) the existence of
'a
a
sanction less dtastic than dismissal." Chandler l-eaing Corþ. u. IuptZ 669 tr.2d 91,9,920 (4th
Ck. 1.992); see also Ballard u. Carlson, 882 tr.2d 93,96 (4th Cit. 1989) (upholding dismissal of
pro
se
plaintifPs claims, and nothing that pro se litigants, like othet litigants, "are subject to
the time tequirements and respect fot court ordets without which effective judicial
administration would be impossible").
Here, Plaintiff teceived notice of Defendant's motion to dismiss and initially fi.led no
response. Following this court's ordet to file a motion and tesponse to Defendant's motion
according to the scheduling order
in this matter, Plaintiff fìled a document containing
following language:
Plaintiff Denise Mclendon teasonfs] not
everyday. My day start[s] at3:30 a.m.
5
to
dismiss
het case. I wotk
the
1. I wake up at 3:30. My son getfs] me up out of bed. I wake up in pain, my
back, hips and legs, it's hard to get up and walk. I hurt so bad sometimes I do
not sleep. It takefs] me to 4:45-5:00 to get dressfed] it hurtfs] so much to
move when I do get out of bed.
2. \X/hen I get to work I have to walk up staitfs] that takefs] awhile.
me 10-15 min. to walk to my work station. I hutt all day.
It
takefs]
3. I get off wotk to my car and sit thefte] fot about 15 min to get my bteath
and stop huttfing] so I can drive home and on days my sugar is up it['s] hatd
for me to see how to drive home.
get home from wotk all I can do is try to get comfott most of the
time my feet hurt so bad I cannot even walk on them. I spend most of my
time at home when not at wotk.
4.
\X/hen
I
[5]. The pain med., I cannot take them and work because they make me sick
and I cannot function on them.
[6]. I spend most of my time in pain. I don't know how much long[et] I will
be able to wotk, but I also do not want to be homeless and cannot be able to
affotd my med. to live.
(Docket Entty 17.) þtackets added). Moreovet, the only substantive statement in PlaintifÎs
complaint states:
"I am disabled from all of my medical
misdiagnosed and
my
issues and have unjustly
case was decided without ptopetly seeking additional medical
information. My illness has not imptoved and
I
feel
I
am entitled to disability." (Docket
Entty 2 at 4.)
Plaintiffs filings do not meet the tequitements for btiefs and motions in fedetal
court. In üght of het pro
se
status, however, the undetsigned is reluctant to dismiss her case
for failure to prosecute under Rule 41. Rathet, the Coutt will undertake a teview of the
matter to determine
if the decision of the ALJ is suppotted by substantial
evidence.
PlaintifPs complaint and "motion" do not identify any specifìc etrors committed by
6
the Commissionet. Het complaint, as set fotth above, seems to implicitly atgue that
substantial evidence does not support the decision of the .,\LJ and that the
AIJ
should have
considered othet medical evidence. Flowever, for the reasons put forth by the Govetnment,
and after an independent review by this Court,
applied the correct legal standatd
in
it is the opinion of this Court that the ALJ
detetmining the Plaintiff was
not disabled and
substantial evidence supports this decision.
A.t step one of the SEP, the ALJ found that Plainuff did not engage
in
substantial
gainful activity from het alleged onset date thtough het date of last insuted of March
31,,
2009. (Decision, Tt.1,1, Finding 2.) At steps two and three, the ALJ found that Plaintiff had
the sevete impairments of back pain, dght shouldet pain, pain in the hands/wtists, right
knee pain, and diabetes (1d., F'inding 3), but that she did not have any impaitment ot
combination of impaitments that met or medically equaled any of the impairments listed in
20 C.F.R. Appendix 1, Subpatt P of Reg. 404 (I-rstings). (Id. at
1,'1,-'1.2,
Finding
4.)
found that Plaintiffs impaitments did not meet or medically equal any listing, the
on to assess Plaintiffs tesidual functional capacity.
See
Having
A{
went
20 C.F.R. S 404.1520G)-G). The ALJ
found that Plaintiff tetained the RF'C to perfotm medium work that avoided hazards,
climbing, andhazatdous machinery. (1d. rt1,2, Finding 5.)
Based on Plaintiffs RFC and othet vocational chatactetistics, the ALJ concluded that
Plaintiff could return to het past televant light work
6.)
as a fast
food wotker. (Id. at 19, Finding
Plaintiff ptovided no evidence substantiating het claim that she could not meet the
demands of het past light wotk as a fast food wotker. The ALJ thus found that Plaintiff was
not disabled at any time thtough the date of his decision. Qd., trinding 7.)
7
To the extent Plaintiff is arguing that the -,{IJ's RFC determination is not supported
by substantial evidence in the record, this atgument must be rejected. The
diagnostic imaging reports and physical examinations
of tecotd
AIJ
cited vadous
as well as Plaintiffls self-
repotting of daily activities, in fotmulating the RF'C. As noted by the ALJ, Plaintiff has had
only "intetmittent visits to the emergency room for her alleged complaints, with generally
notmal wotk-ups and objective fìndings and conservative tteatment." pecision, Tr.
1,3.)
The record shows that Plaintiff went to the emergency room ¡¡¡o times during the televant
pedod. In her ftst ER visit, on March 29, 2006, Plaintiff ptesented with "modetate"
cervical pain radiating to the dght shoulder and right elbow, but het symptoms imptoved
with Petcocet and Flexeril.
(It.
30a-05.) Although Plaintiff had some pain and tange of
motion limitation in her neck, her back examination tevealed no spinal tendetness and full
r^îge of motion. (Id.) Similatly, an exttemity examination revealed that Plaintiff
neurovasculaÃy intact with a full tange
was
of motion and stength and a notmal gait. (Id. at
304.) Plaintiff was diagnosed with myofascial cervical strain and cervical tadiculopathy and
discharged to home
in satisfactory condition. (Id. at 305.) At a second ER visit in Match
2008, Plaintiff repotted that her pain had started the day before and was caused by moving
furnitute. (Id. at 294.) Aftet teceiving an injection, Plaintiffls back pain improved and she
was discharged
in satisfactory condition with a back sprain. (Id. at 294-95.)
She did not
report any weakness, numbness or tingling. (Id. at 296.)
As pointed out by the AIJ, PlaintifPs medical tecotds fot pdmary care show "fatÄy
routine treatment for vadous complaints with little evidence of the symptoms reported by
[Plaintiffl
,2
(Decision,
Tr. 1,4.) In Match and May
B
2006, Plaintiffs examinations were
notmal except fot elevated blood pressure.
Çl
21,8-220.)
At a techeck in
late l;/.ay 2006,
Plaintiff repotted that she was "doing good," and she was exetcising, eating better, and
babysitting her "active" two yeat old grandchild. (Id.
^t
21.6.)
,\t a September 2006
appointment, Plaintiff had no specific complaints and physical examination was normzl. (Id.
^t
21,4-15.) Indeed, other than elevated blood pressure, sinusitis and allergy ptoblems,
Plaintiff had essentially notmai examinations through Octobet
2007
.
(Id. at 237 - 42.)
In Novembet 2007, Plaintiff repotted shouldet pain and was ditected to exercise and
take Tramadol.
Çr. 235.) In
December 2007, Plaintiff was prescdbed ibuptofen for
headache and tepotted that she was walking thtee times a week at the
January 2008 Plaintiff tepotted back and should pain secondary
a
mall. (Id. at 234.) In
to a fall. (Id. at 233.) A
medical progress note dated March 1,1, 2008 indicates that Plaintiff repoted that she had
pulled a muscle
in her back and shoulder while putting a bed together but that
she was
"feeling better" by the time of the appointment and no longet needed pain medication. (Id.
^t
232.) By July 2008, Plaintiff was walking two miles thtee times a week and teported
having mote energy. (Id. at229.)
In his decision, the ALJ
stated that he considered the entite medical evidence
of
record and even considered the treatment notes ftom aftet the relevant period which the
AIJ found did not support Plaintiffs claim.
(Decision,
Tt. 15.) The ALJ's conclusion that
Plaintiff could petfotm medium work subject to several exettional limitations is consistent
with the medical evidence and is suppotted by evidence which "a te^soî ble mind might
accept as adequate to suppott a conclusion." Johnson u. Barnhart,434F.3d 650, 653 (4th Cir.
2005) (quoting Craigu. Chater,76tr.3d 585,589 (4th Cir. 1996)
9
søperceded b1 regalation on other
grzundr 20 C.F.R. S 41,6.927
(dX2)
Therefore, tevetsal is not wartanted on this basis.
A libetal teading of Plaintiffs complaint also could
suggest that she contends that the
ALJ etted in not seeking additional medical evidence. Plaintiffs conclusory statement fails
to offet any specific exampie as to what additional evidence was not obtained or considered
by the
A{.
Thete is nothing in the record to indicate that Plaintiff sought to have any
additional medical evidence included
tecord fully and fakly.
In
in her claim or that the AIJ failed to
develop the
fact, at the end of the hearing Plaintiff, who was reptesented by
counsel at the headng, stated in tespons e to a question that everything had been covered in
the headng. (Tt. 38-39.) Moreovet, the ALJ's decision indicates that he considered medical
records ftom aftet the relevant period and found that these records did not support
Plaintiff s claim of disabling impairments. (Decision, Tr. 15-16.)
CONCLUSION
Having reviewed the tecord, the ttansctipts and the briefs and fìlings of the parties,
and fot the teasons stated above,
it is RECOMMENDED that Defendant's motion for
judgment on the pleadings (Docket Entry 22) be
GRANTED. To the extent
tesponse (Docket Etrtty 17) is construed as a motion to dismiss,
that this motion be
DENIED.
PlaintifPs
it is RECOMMENDED
Finally, it is RECOMMENDED that Defendant's motion
to dismiss fot failure to prosecute (Docket Enffy 13) be DENIED
as
moot.
oe L. l7ebster
United States Magisttate Judge
NovemberÀ3 , rors
10
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