CURRY v. COLVIN et al

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE, signed by MAG/JUDGE L. PATRICK AULD on 04/14/2016. Plaintiff has not established an error warranting remand. RECOMMENDED that the Commissioner's decision f inding no disability be affirmed, that Plaintiff's Motion for Judgement (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that judgment be entered for Defendant.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BARBARA L. CURRY,

)
)
)
)
)
)
)
)
)
)
)

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

1:15CV00698

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Barbara L. Curry, brought this action pro se
pursuant to the Social Security Act (the “Act”) to obtain judicial
review of a final decision of Defendant, the Acting Commissioner of
Social Security, denying Plaintiff’s claim for Disability Insurance
Benefits (“DIB”).

(Docket Entry 2.)

Defendant has filed the

certified administrative record (Docket Entry 8 (cited herein as
“Tr. __”)), and both parties have moved for judgment (Docket
Entries 11, 13; see also Docket Entry 14 (Defendant’s Memorandum)).
For the reasons that follow, the Court should enter judgment for
Defendant.
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date of
April 8, 2008.

(Tr. 248-50.)

Upon denial of that application

initially (Tr. 124-35, 155-63) and on reconsideration (Tr. 136-51,
165-72),

Plaintiff

requested

a

hearing

de

novo

before

an

Administrative Law Judge (“ALJ”) (Tr. 173-74).

Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 76-116.)

The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act.

(Tr. 57-70.)

The Appeals

Council thereafter granted Plaintiff’s request for review for the
limited purpose of amending the ALJ’s decision to reflect a date
last insured of December 31, 2015, rather than December 31, 2013,
but otherwise affirmed the ALJ’s denial of benefits (Tr. 1-8, 22630), thus 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:
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her alleged onset date of
April 8, 2008 through her date last insured . . . .
[Plaintiff] worked after the alleged disability onset
date but this work activity did not rise to the level of
substantial gainful activity. [Plaintiff] testified at
the hearing that she worked from September 30, 2013,
through March 13, 2014. This work could be considered an
unsuccessful work attempt, although the average monthly
earnings during the work period were above the statutory
limits for substantial gainful activity.
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: Bilateral Carpal Tunnel
Syndrome; Degenerative Disk Disease of the Cervical
Spine, with Severe and Chronic Lower Back Pain, with
Radiculopathy; and Obesity.
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met

2

or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5.
[T]hrough the date last insured, [Plaintiff] had the
residual functional capacity to perform less than the
full range of sedentary work . . . .
[Plaintiff] can stand for 2 hours in an 8-hour workday,
at will; she can walk for 2 hours, at will; she can sit
for 6 hours in an 8-hour workday, at will; and
[Plaintiff] can lift 10 pounds occasionally and 5 pounds
frequently; she can carry 10 pounds occasionally and 5
pounds frequently; she can use foot controls frequently
with her right lower extremity, and occasionally with her
left lower extremity; and she can use hand controls
occasionally with her right upper extremity, and
frequently with her left upper extremity.
[Plaintiff] can reach overhead and reach in all
directions occasionally with her bilateral upper
extremities; and she can feel, finger, and handle
occasionally with her right upper extremity, and
frequently with the left upper extremity. [Plaintiff] can
occasionally climb ramps and stairs, stoop, kneel,
crouch, and crawl; and [Plaintiff] can never climb
ladders, ropes, or scaffolds.
Further, [Plaintiff] can work in proximity to unprotected
heights and moving mechanical parts occasionally; she can
operate a motor vehicle frequently in the course of
employment; she can occasionally work in proximity to
humidity and wetness, and vibration; and she can never
work in proximity to extremes of cold and heat.
. . .
6.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.

was

. . .
9.
[Plaintiff]
relevant work.

has

acquired

. . .

3

work

skills

from

past

10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, [Plaintiff]
had acquired work skills from past relevant work that
were transferable to other occupations with jobs existing
in significant numbers in the national economy.
. . .
11. [Plaintiff] was not under a disability, as defined
in the [] Act, at any time from . . . the alleged onset
date, through . . . the date last insured.
(Tr.

62-70

(bold

font

and

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).

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).

Plaintiff has not established entitlement to relief under the
extremely limited review standard.
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 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

4

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 Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving

5

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)).1

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id. (internal citations omitted).

This sequential evaluation process (“SEP”) has up to five
steps:

“The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity

1

The Act “comprises two disability benefits programs. [DIB] . . . 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).

6

to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).2

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.3

Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can perform past relevant
2

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

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”
(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.

7

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

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.4

disabled.

B.

Assignment of Error

In Plaintiff’s pro se Motion for Judgement, she alleges that,
although

she

companies,

has

[the]

“applied

for

gove[r]nment

several

and

job[s]

temp[orary]

with

100’s

of

agenc[ies],”

no

employer will hire her because of her medical conditions.
Entry 11 at 1-2.)

(Docket

According to Plaintiff, “[c]ompanies need [her]

to be able to lift and stand for long periods of time.”

(Id.)

Plaintiff further contends that her disabling conditions include
chronic neck and back pain, left shoulder pain, nerve damage and

4

A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).

8

swelling in her legs, residuals from hernia surgery, elevated blood
pressure, and bilateral carpal tunnel syndrome.

(Id. at 2.)

Plaintiff does not, however, raise any particular challenge to the
ALJ’s underlying findings or conclusions.

(See id. at 1-3.)

Although the Court must construe pro se filings liberally, see
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam), the Court
need not “craft arguments or conduct legal research on behalf of a
litigant,” Jarvis v. Colvin, No. 15-2796, 2016 WL 1077887, at *1
(7th Cir. Mar. 18, 2016) (unpublished); see also Rigsbay v. Colvin,
No. 2:14-CV-2813-EFB, 2016 WL 1268006, at *3 (E.D. Cal. Mar. 30,
2016) (unpublished) (noting that “a pro se litigant is still
required to establish her right to relief on the claims asserted”).
The

Court

should

construe

Plaintiff’s

Motion

to

allege

that

substantial evidence fails to support the ALJ’s RFC finding and his
conclusion that Plaintiff can perform jobs existing in significant
numbers in the national economy.

See generally Dawson v. Astrue,

No. 8:11-CV-01759-MBS, 2012 WL 6915249, at *8 (D.S.C. Oct. 31,
2012) (unpublished) (“[T]he Court construes Plaintiff’s [pro se]
briefs

as

challenging

whether

the

ALJ’s

conclusion[s]

that

Plaintiff retains the capacity to perform a range of light work and
is capable of performing past relevant work . . . are supported by
substantial evidence.”), recommendation adopted, 2013 WL 239130
(D.S.C. Jan. 22, 2013) (unpublished).

9

1. RFC
Substantial evidence supports the ALJ’s RFC assessment for
less

than

a

full

range

of

manipulative limitations.”

sedentary

(Tr. 68.)

work

with

“significant

As part of the ALJ’s RFC

determination, he discussed in a fair degree of detail Plaintiff’s
medical treatment for (1) her neck and back impairments with her
treating neurologist, Dr. William Spillane (see Tr. 64-65, 66); (2)
her hypertension and chronic venous insufficiency with her primary
care physician, Dr. Arlene Ramos (see Tr. 65-66); and (3) her
carpal tunnel syndrome with treating neurosurgeon, Dr. Michaux
Kilpatrick (see Tr. 66).

In addition, the ALJ discussed and

weighed the opinion evidence of record and, in particular, afforded
“great weight to the medical findings and opinions of [Plaintiff’s]
treating physicians, Doctors Kilpatrick and Spillane,” noting that
“[t]he totality of their findings and opinions, from 2012 through
2014, essentially confirm that [Plaintiff] remains capable of
performing sedentary work activity.”

(Tr. 68; see also Tr. 429,

480-88, 734-36.)
The ALJ also evaluated Plaintiff’s credibility as part of the
RFC assessment pursuant to the two-part test set forth by Craig, 76
F.3d at 594-95 and 20 C.F.R. § 404.1529.

At part one, the ALJ

found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms.”
(Tr.

67.)

Proceeding

to

part

10

two,

the

ALJ

concluded

that

Plaintiff’s “statements concerning the intensity, persistence, and
limiting effects of [her] symptoms are not entirely credible
. . . .”

(Id.)

expressly

In conjunction with that part two finding, the ALJ

considered

Plaintiff’s

testimony

regarding

her

impairments, her symptoms, her functional limitations, and her
activities of daily living.

(Tr. 66-67.)

Additionally, the ALJ

discussed the objective medical evidence, including the results of
diagnostic testing such as magnetic resonance imaging (“MRI”) and
electromyography (“EMG”), the findings of consultative examiner Dr.
Alan Rosenbloom indicating that Plaintiff maintained a “normal
gait” and “could perform some manipulative tasks,” and a Third
Party Function Report completed by Plaintiff’s mother reflecting
that

Plaintiff

“could

activities adequately.”
further reference

to

perform

a

(Tr. 67.)

wide

range

of

usual

daily

Lastly, the ALJ noted, “[w]ith

[Plaintiff’s]

overall

credibility,” that

Plaintiff “worked after her alleged onset date, earning wages in
excess of the statutory amounts for substantial gainful activity,”
which “could reasonably show an ability to perform some types of
work.”

(Tr. 68.)5

5

Although Plaintiff’s post-onset wages qualified, in terms of amount, as
substantial gainful activity, (see Tr. 267 (reflecting that Plaintiff earned
$7,390 at Thomas Built Buses Inc. in the fourth quarter of 2013, and $7,438 in
the first quarter of 2014)); see also 20 C.F.R. § 404.1574(b)(2)(ii) (setting
presumptive level of monthly earnings for substantial gainful activity);
https://www.socialsecurity.gov/oact/cola/sga.html
(indicating
presumptive
substantial gainful activity level as $1,040 in 2013 and $1,070 in 2014) (last
visited Apr. 11, 2016), the ALJ found that Plaintiff’s post-onset work
constituted an “unsuccessful work attempt” (Tr. 62). The ALJ did not explain his
reasoning for finding Plaintiff’s post-onset work an unsuccessful work attempt
(continued...)

11

In sum, the ALJ supported his RFC with substantial evidence of
record.
2. Step Five
After determining that Plaintiff’s RFC did not permit her to
return to any of her past relevant work (see Tr. 69), the ALJ
proceeded to the fifth step of the SEP to determine whether other
jobs existed in significant numbers in the national economy that
Plaintiff

could

perform,

see

20

C.F.R.

§

404.1560(c).

Commissioner bears the burden of production at step five.
C.F.R. § 404.1560(c)(2).

The
See 20

To meet that burden, the ALJ posed a

hypothetical question to the VE which contained the same exertional
and non-exertional limitations as the RFC.

(Compare Tr. 63, with

Tr. 111-12.) In response, the VE testified that an individual with
Plaintiff’s limitations could perform the jobs of receptionist,
information clerk/greeter, and telephone solicitor, provided the
corresponding occupation numbers in the Dictionary of Occupational
Titles (“DOT”), and the estimated numbers of such jobs in the
national economy.

(See Tr. 113.)

The VE indicated, in compliance

with Social Security Ruling 00-4p, Policy Interpretation Ruling:
Titles

II

and

XVI:

Use

of

Vocational

5

Expert

and

Vocational

(...continued)
(see Tr. 62); however, under the regulations, work qualifies as an “unsuccessful
work attempt” if it “lasted longer than 3 months . . . and ended, or was reduced
below substantial gainful activity earnings level, within 6 months because of
[the claimant’s] impairment,” 20 C.F.R. § 404.1574(c)(4).
Here, Plaintiff
testified that she worked at Thomas Built Buses from September 30, 2013, to March
13, 2014, when she resigned due to re-aggravation of her carpal tunnel syndrome
symptoms. (See Tr. 80, 88-89.)

12

Specialist Evidence, and Other Reliable Occupational Information in
Disability Decisions, 2000 WL 1898704, at *2 (Dec. 4, 2000), that
his testimony harmonized with information in the DOT, with the
exception of reaching, handling, and fingering, for which he
utilized his own knowledge and experience.

(Id.)

Relying on the

VE’s testimony, and using Rules 201.29 and 201.22 of the MedicalVocational

Guidelines

as

a

framework

for

decision,

the

ALJ

concluded that jobs existed in significant numbers in the national
economy that Plaintiff could perform, and that Plaintiff thus did
not qualify as disabled.

(See Tr. 69-70.)6

Plaintiff nevertheless alleges disability because employers
will not hire her due to her medical conditions.
at 1-2.)

(Docket Entry 11

That argument provides no basis for relief.

The

applicable regulation makes clear that the Commissioner need not
demonstrate that a particular claimant could actually obtain the
jobs identified at step five:
[The Commissioner] will determine that [a claimant is]
not disabled if [his/her] [RFC] and vocational abilities
make it possible for [him/her] to do work which exists in
the national economy, but [he/she remains] unemployed
because of-

6

The Medical-Vocational Guidelines “categorize jobs by their physical-exertion
requirements, namely, sedentary, light, medium, heavy, and very heavy. There are
numbered tables for the sedentary, light, and medium level (tables 1, 2, and 3,
respectively), and a specific rule for the heavy and very heavy levels. Based
on the claimant’s RFC, the ALJ must first determine which table to apply, i.e.,
if the claimant’s RFC limits him to a sedentary exertional level, then Table No.
1 is the appropriate table. Next, based on the claimant’s age, education, and
previous work experience, the rule directs a finding of ‘disabled’ or ‘not
disabled.’” Black v. Astrue, No. 3:09CV599, 2010 WL 2306130, at *4 (E.D. Va.
Apr. 26, 2010) (unpublished) (internal citations and footnotes omitted),
recommendation adopted, 2010 WL 2306136 (E.D. Va. June 3, 2010) (unpublished).

13

(1) [His/Her] inability to get work;
(2) Lack of work in [his/her] local area;
(3) The hiring practices of employers;
(4) Technological changes in the industry in
which [he/she has] worked;
(5) Cyclical economic conditions;
(6) No job openings for [him/her];
(7) [He/She] would not actually be hired to do
work [he/she] could otherwise do; or
(8) [He/She does] not wish to do a particular
type of work.
20 C.F.R. § 404.1566(c) (emphasis added); see also Cole v. Colvin,
No. 13CV868, 2014 WL 4060145, at *4 (M.D.N.C. Aug. 14, 2014)
(unpublished)

(Schroeder,

J.)

(“Even

if,

as

[the

claimant]

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 [the claimant]
actually

could

get

hired

for

the

position

identified;

the

Commissioner may find a claimant not disabled even if employers’
hiring practices result in the claimant not actually being hired.”
(citing 20 C.F.R. § 404.1566(c))).
In conclusion, the ALJ supported his step five finding with
substantial evidence.
III.

CONCLUSION

Plaintiff has not established an error warranting remand.

14

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgement (Docket Entry 11) be denied, that Defendant’s Motion for
Judgment on the Pleadings (Docket Entry 13) be granted, and that
judgment be entered for Defendant.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 14, 2016

15