ELWOOD v. COLVIN
Filing
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MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/22/2015 as set out herein. RECOMMENDED that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the Pleadings [Doc. # 11 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 13 ] be GRANTED, and that this action be DISMISSED with prejudice.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEBORAH ELWOOD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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1:14CV507
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Deborah Elwood (“Plaintiff”) 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 the Commissioner of Social
Security denying her claims for Disability Insurance Benefits and Supplemental Security
Income under, respectively, Titles II and XVI of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for
review.
I.
PROCEDURAL HISTORY
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security
Income Benefits on December 14, 2010, alleging a disability onset date of November 9,
2010. (Tr. at 264-76.) 1 Her applications were denied initially (Tr. at 107-40) and upon
reconsideration (Tr. at 141-74). Thereafter, Plaintiff requested an administrative hearing de
1
Transcript citations refer to the Sealed Administrative Record [Doc. #9].
novo before an Administrative Law Judge (“ALJ”). (Tr. at 212-14.) On December 4, 2012,
Plaintiff attended the subsequent hearing, along with her attorney and an impartial
vocational expert, who testified by telephone. (Tr. at 23.)
Following the hearing, the ALJ concluded that Plaintiff was not disabled within the
meaning of the Act. (Tr. at 36.) The Appeals Council granted Plaintiff’s request for review
of the decision, and made various findings modifying the ALJ’s decision. However, in a
decision dated April 21, 2014, the Appeals Council ultimately determined that Plaintiff was
not disabled within the meaning of the Act. (Tr. at 1-9.)
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial
of social security 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.” Frady
v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). “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) (internal brackets 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.
1993) (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).
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“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 court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of
the [ALJ].” 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 ALJ.” Hancock, 667 F.3d at 472
(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 based upon a correct
application of the relevant law.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). 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 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).
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“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or 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.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 two
steps, and establishes at step three that the impairment “equals or exceeds in severity one or
more of the impairments listed in Appendix I of the regulations,” then “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 function[al] capacity
(‘RFC’).” Id. at 179.3 Step four then requires the ALJ to assess whether, based on that RFC,
“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d at 562
(noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’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.
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the claimant can “perform past relevant work”; if so, the claimant does not qualify as
disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the Commissioner to prove
that a significant number of jobs exist which the claimant could perform, despite [the
claimant’s] impairments.” Hines, 453 F.3d at 563. In 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.”
Hall, 658 F.2d at 264-65.
If, at this step, the
Government cannot carry its “evidentiary burden of proving that [the claimant] remains able
to work other jobs available in the community,” the claimant qualifies as disabled. Hines,
453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial
gainful activity” since her alleged onset date. Plaintiff therefore met her burden at step one
of the sequential evaluation process. At step two, the ALJ further determined that Plaintiff
suffered from the following severe impairments: hashimoto thyroiditis with history of
diffuse goiter, degenerative disc disease of the lumbar spine with annular tear and radiculitis
of the lower extremities, cervicalgia, obesity, hypertension, depression, and somatization.
(Tr. at 4, 6, 25.) The ALJ found at step three that none of these impairments met or equaled
a disability listing. (Tr. at 4, 6, 26.) On review, the Appeals Council adopted these findings.
The ALJ assessed Plaintiff’s RFC and determined that she could perform sedentary work
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with myriad mental, postural, environmental limitations. In pertinent part, the ALJ found
that Plaintiff could “stand and/or walk no more than 2 hours in an 8-hour workday; or sit
no more than 2 hours in an 8-hour workday, except she can stand no more than 30 minutes
at one time and she can sit no more than 60 minutes at a time.” (Tr. at 29.) The Appeals
Council disagreed with this portion of the ALJ’s finding, as it “account[ed] for less than 8
hours total in an 8-hour workday.” (Tr. at 5.) After a review of the entire record, the
Council instead found that Plaintiff could “stand and/or walk no more than 2 hours in an 8hour workday; and sit no more than 6 hours in an 8-hour workday, except that [she] can
stand no more than 30 minutes at a time and sit no more than 60 minutes at a time.” (Tr. at
5, 6.)
The Appeals Council further determined that the revised RFC determination failed to
alter the ALJ’s previous findings at steps four and five of the sequential analysis.
In
particular, the Council found at step four that Plaintiff could not return to any of her past
relevant work. (Tr. at 5-6, 34.) Based on the vocational expert’s testimony, the Council then
determined at step five, that, given Plaintiff’s age, education, work experience, and RFC, she
could perform other jobs available in the national economy. (Tr. at 5, 7, 35-36.) Therefore,
the Appeals Council concurred with the ALJ’s ultimate conclusion that Plaintiff was not
disabled under the Act. (Tr. at 7, 36.)
Plaintiff now argues that the ALJ and/or the Appeals Council erred in two respects.
First, she contends that, at step three, neither decision-maker properly evaluated her back
impairment under 20 C.F.R., Part 404, Subpt. P, Appx. 1, § 1.04A (hereinafter “Listing
1.04A”). Second, she challenges the Appeals Council’s modification of the RFC.
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A.
Listing 1.04A
Plaintiff first claims that the ALJ did not properly evaluate her back impairment
against Listing 1.04(A).
A plaintiff meets Listing 1.04(A) only if she meets three
requirements. She must first show that she suffers from a spinal disorder, such as “herniated
nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, [or] vertebral fracture.” 20 C.F.R. Part 404, Subpt. P, Appendix I,
§ 1.04.
Second, she must demonstrate that the above spinal condition results in
“compromise of a nerve root (including the cauda equina) or the spinal cord.” Id. Lastly,
she must show:
A.
Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine);
Id.
In the present case, Plaintiff’s documented degenerative disc disease clearly met the
first of these requirements. However, the ALJ further determined that this condition
has not resulted in compromise of a nerve root (including cauda equin[a]) or
the spinal cord. In addition, there is not sufficient evidence of nerve root
compression characterized by neuro-anatomic distribution of pain, limitations
of range of motion of the spine, or motor loss (atrophy associated muscle
weakness, or muscle weakness) accompanied by sensory or reflex loss.
Furthermore, a review of the claimant’s medical imaging studies and treatment
notes clearly reflects that the criteria of Listing 1.04 are unmet.
(Tr. at 27.)
Plaintiff now argues that, contrary to the ALJ’s assertion, she met Listing 1.04A’s
requirements. Specifically, she recounts medical evidence to establish that, at various times,
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she exhibited some of the symptoms required by Part A of the listing (Pl.’s Br. [Doc. #12] at
6-8). However, to meet a listing, a claimant’s impairment “must meet all of the specified
medical criteria. An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Here, as Defendant correctly notes, Plaintiff provides no evidence that she met all of
Listing 1.04A’s requirements. Her treatment records fail to identify the existence of any
nerve root compression or compromise of a nerve root or the spinal cord, let alone
“establish a connection between Plaintiff’s degenerative disc disease and any compromise of
the spinal cord or nerve roots.” (Def.’s Br. [Doc. #14] at 6-7.) In fact, in reading Plaintiff’s
March 2011 MRI, the radiologist specifically noted that Plaintiff’s annular tear and
protrusion did “not appear to significantly encroach upon the spinal canal or nerve roots.”
(Tr. at 570.)
The sole mention of nerve root or spinal cord damage in Plaintiff’s treatment records
is a reference to a 2008 electromyography, or EMG, study which demonstrated findings
“consistent with a lesion of the S1 nerve root on the left.” (Tr. at 591.) The ALJ specifically
recounted this finding. (Tr. at 30.) However, in accordance with Acquiescence Ruling
(“AR”) 00-1(4) and Albright v. Comm’r of Soc. Sec., 174 F.3d 473 (4th Cir. 1999), he also
gave great weight to the ALJ’s findings from Plaintiff’s previous hearing, held November 9,
2010, which took the 2008 EMG into account, yet concluded that Plaintiff failed to meet
Listing 1.04A. (See Tr. at 94.) Significantly, Plaintiff did not challenge that finding on the
appeal of that prior determination. See Elwood v. Colvin, No. 5:12-CV-544-D, 2014 WL
580246 (E.D.N.C. Feb. 12, 2014) (unpublished). Moreover, the 2008 EMG results predate
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Plaintiff’s alleged onset date in the present case by three years, and Plaintiff provides no
evidence that her suspected lesion still existed during the relevant time period, let alone met
the nerve root compromise requirements of Listing 1.04A.
In light of the above evidence, the Appeals Council declined to alter the ALJ’s step
three findings upon review (Tr. at 6), and Plaintiff’s present reliance on Radford v. Colvin,
734 F.3d 288 (4th Cir. 2013) does nothing to alter the supportability of this result. In
Radford, the ALJ “appeared to totally – and without explanation – reject the opinions of [the
claimant’s] treating physicians in favor of the state medical examiners,” rendering a step
three finding unsupported by substantial evidence and incapable of meaningful judicial
review. 734 F.3d at 295-96. Here, as set out above, the ALJ examined the record as a whole
and clearly set out the objective reasons that Plaintiff’s back impairment failed to meet the
requirements of Listing 1.04A. (Tr. at 27.) Accordingly, substantial evidence supports the
ALJ’s step three determination.
B.
RFC Modification
Plaintiff next presents a twofold challenge to the Appeals Council’s modification of
the sitting limits in her RFC from two hours to six hours. First, she contends that, because
the ALJ’s RFC did not account for a full, 8-hour workday, the ALJ should have determined
that Plaintiff was disabled. Second, Plaintiff argues that the Appeals Council’s modification
of the RFC was not based on a preponderance of the evidence, as required by 20 C.F.R.
§ 404.979. Instead, she claims, the Council’s “change in the RFC added 4 hours to her work
day with absolutely no supporting evidence to justify the change.” (Pl.’s Br. at 11.)
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Defendant, in turn, provides the following three arguments as evidence that the
Appeals Council’s change “simply corrected a scrivener’s error in the ALJ’s opinion”: (1)
“the ALJ would have found Plaintiff disabled if he made a purposeful finding that Plaintiff
could only work four hours a day;” (2) none of the RFCs presented to the vocational expert
in hypothetical questions included a 2-hour sitting limitation; and (3) substantial evidence
does not support a 4-hour workday RFC. (Def.’s Br. at 10-11.)
In considering these contentions, the Court notes that under the applicable regulatory
scheme, the Appeals Council is permitted to review the evidence and “affirm, modify or
reverse” an ALJ’s decision based on the preponderance of the evidence. See 20 C.F.R.
§ 404.979, 416.1479. To the extent that the Appeals Council grants review and modifies the
ALJ’s decision, this Court reviews the Appeals Council’s decision as the final decision of the
Commissioner. See Sims v. Apfel, 530 U.S. 103, 106–07 (2000). In the present case, having
reviewed the ALJ’s and Appeals Council’s decisions, along with the record as a whole, the
Court finds that the Appeals Council’s modification of the ALJ’s RFC finding is based on
the preponderance of the evidence in the record, and is supported by substantial evidence in
the record. 4
Plaintiff’s allegation of error on the part of the Appeals Council is unpersuasive.
Chiefly, Plaintiff contends that the Council improperly relied upon “the fact that the ALJ
To the extent Plaintiff contends that the ALJ should have found her disabled once he concluded that she
could only sit or stand for 4 hours, the Court notes that the Appeals Council has authority to modify or
reverse an ALJ’s determination, even if it is favorable to a claimant, and this Court reviews only the final
decision of the Commissioner. Moreover, and in any event, it does not appear that the ALJ purposefully
decided that Plaintiff could sit for no more than two hours a day, therefore preventing her performance of
any full-time employment, given that the ALJ nevertheless took the time to include myriad additional
postural, mental, and environmental limitations in Plaintiff’s RFC, explain his basis for those limitations at
length, and then author three more pages carefully explaining the basis for his finding that Plaintiff could
perform several carefully identified full-time jobs.
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asked a hypothetical question contemplating sitting up to 6 hours in a work day” in making
the “assumption” that the ALJ meant to say six hours instead of two. (Pl.’s Br. at 11.)
Because “[h]ypotheticals are meant to contemplate various scenarios[,] and an ALJ is not
required to make the final RFC determination from any hypothetical,” Plaintiff argues that
this finding alone cannot form a basis for the Council’s change in sitting limitations. (Id.)
However, as Defendant correctly points out, none of the hypothetical questions to the
vocational expert included a limitation to sitting for a total of two hours or less in an 8-hour
day, as would have been the case if the ALJ was contemplating such a scenario. (Tr. at 3179.) Moreover, as explained in both administrative decisions, the ALJ clearly relied on the
expert’s answer to a hypothetical question including a limitation to “sit no more than 6 hours
in an 8-hour workday” in rendering his findings at steps four and five of the sequential
analysis. (Tr. at 5, 34-36.) The ALJ also explained in the body of his decision, after
discussing the medical evidence at great length, “that this evidence confirms the claimant is
capable of performing sedentary work as long as provided the sit/stand restrictions noted in
Finding #5,” i.e., the RFC assessment in question. (Tr. at 31.) Had the ALJ meant to say
two hours of sitting rather than six, such work would be precluded.
In short, the
preponderance of the evidence supports the Appeals Council’s interpretation and
modification of the two-hour sitting limitation in the RFC, and substantial evidence supports
the RFC as ultimately formulated by the Appeals Council. See also Smalls v. Colvin, No.
9:12-CV-01784-RBH, 2013 WL 5410236 (D.S.C. Sept. 26, 2013) (“[T]he Appeals Council’s
modification of the ALJ'’s finding that Plaintiff can stand and walk for six hours in an eighthour workday is supported by substantial evidence. . . .
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[T]he Appeals Council’s
modification is more consistent with the evidence in the record than the ALJ’s initial finding.
Thus, it is the Court’s opinion that the modification is supported by substantial evidence.”).
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Judgment on the Pleadings [Doc.
#11] be DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #13] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 22nd day of July, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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