KARRIKER v. COLVIN
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 2/23/2017; that the Commissioner's decision finding no disability be AFFIRMED, that Plaintiff's Motion for Summary Judgment [Doc. # 7 ] be DENIED, that Defendant's Motion for Judgment on the Pleadings [Doc. # 10 ] be GRANTED, and that this action be DISMISSED with prejudice. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DIANE A. KARRIKER,
Plaintiff,
v.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.
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1:16CV21
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Diane Karriker (“Plaintiff”) brought this action pursuant to Section 205(g) of
the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial review
of a final decision of the Commissioner of Social Security denying her claim for Disability
Insurance Benefits under Title II of the Act. The parties have filed cross-motions for
judgment, and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed her application for Disability Insurance Benefits (“DIB”) on
June 15, 2010 (Tr. 255-61), alleging a disability onset date of August 1, 1981 (Tr. 255).
Plaintiff’s date last insured was December 31, 1985. (Tr. 271, 315.) Therefore, the only
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Carolyn W.
Colvin as the Defendant in this suit. No further action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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relevant period in this case is the period from August 1, 1981 through December 31, 1985.
Plaintiff’s application was denied initially (Tr, 127-31) and upon reconsideration (Tr. 137-39).
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) (Tr. 145-46), which
was held on July 17, 2012 (Tr. 37-59). On August 3, 2012, the ALJ issued a finding that
Plaintiff was not under a disability as defined in the Act at any time from August 1, 1981,
through December 31, 1985. (Tr. 103-111.) The Appeals Council granted Plaintiff’s request
for review, and remanded the case to the ALJ for further consideration of Plaintiff’s maximum
residual functional capacity and evidence from a vocational expert. (Tr. 116-18.) The ALJ
heard the case on remand on June 17, 2014 (Tr. 60-81), and ultimately issued a decision again
denying Plaintiff’s claim for DIB after finding that Plaintiff was not “disabled” under the
meaning of the Act between her alleged disability onset date of August 1, 1981, and her date
of last insured of December 31, 1985 (Tr. 21-32). On November 25, 2015, the Appeals
Council denied Plaintiff’s request for review, thereby making the ALJ’s 2014 conclusion the
Commissioner’s final decision for purposes of judicial review. (Tr. 1-5.)
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 [the] 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
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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). “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. “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
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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 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
“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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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, 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, Plaintiff was diagnosed with growth hormone deficiency in 1974
at age 18, and a CT scan in 1981 showed a possible pituitary tumor. She underwent a
“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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craniotomy in August 1981 followed by radiation therapy. She was thereafter managed on
medications to balance her hormone and chemical levels, including cortisone. Plaintiff now
contends that she suffered from low energy, fatigue, and headaches which precluded her from
working.
In a summary included in the record, counsel for Plaintiff noted that Plaintiff worked
full time from 1973-1979, and left her job voluntarily in 1979 after she married. (Tr. at 331.)
In 2010, Plaintiff filed applications for disability benefits. Her claim for SSI was dismissed
because her resources exceeded eligibility levels, and she does not contest that determination.
(Tr. 274-75.) Therefore, only the claim for Title II Disability Insurance Benefits proceeded.
However, based on her work history, her date last insured is December 31, 1985. Therefore,
her claim in this case is focused on whether she suffered from a disability after the alleged
onset date of August 1, 1981, and before the date last insured of December 31, 1985.
With respect to that claim, the ALJ found that Plaintiff had not engaged in “substantial
gainful activity” during the period from her alleged onset date of August 1, 1981, through her
date last insured of December 31, 1985. (Tr. 24.) Therefore, Plaintiff met her burden at step
one of the sequential analysis. At step two, the ALJ determined that Plaintiff suffered from
the severe impairments of idiopathic growth hormone deficiency, panhypopituitary,
hyperprolactinemia, dysgerminoma, s/p frontal craniotomy, and diabetes insipidus. (Tr. 24.)
The ALJ found at step three that none of these impairments met or equaled a disability listing.
(Tr. 24.) The ALJ then assessed Plaintiff’s RFC and determined that Plaintiff:
had the residual functional capacity to perform sedentary work (lift and carry 10
pounds occasionally and stand and/or walk 2 hours, as defined in 20 CFR
404.1567(a)), except that she was able to sustain attention and concentration for
2 hours at a time. She could follow short, simple (not detailed) instructions and
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perform routine tasks, but she was unable to work at a production rate or
demand pace.
(Id.). The ALJ found that Plaintiff had no past relevant work for purposes of step four. (Tr.
at 30.) At step five, the ALJ considered the testimony of the Vocational Expert and
determined that there were multiple jobs in substantial numbers that a hypothetical claimant
of Plaintiff’s RFC and vocational capabilities could have performed during the relevant period.
(Tr. 30-31.) The ALJ therefore concluded that Plaintiff was not “disabled” during the relevant
period from August 1, 1981 to December 31, 1985. (Tr. 25, 31.)
Plaintiff now argues that the ALJ erred by (1) disregarding parts of a treating physician’s
opinion; (2) failing to include in the RFC a requirement for “two to three additional 5-minute
rest breaks” during the workday; and (3) relying on the existence of jobs beyond the
parameters of Plaintiff’s RFC. For the reasons set out below, the Court finds that the ALJ’s
conclusions were supported by substantial evidence, and none of Plaintiff’s contentions merit
remand.
A.
The ALJ Did Not Err by Discounting Part of a Treating Physician’s Letter
Plaintiff first contends that the ALJ erred at step three of the sequential evaluation
process by not giving controlling weight to all parts of an opinion by Dr. Charles Hammond
that was provided to Plaintiff’s counsel in a letter dated June 20, 2011. Dr. Hammond was
Plaintiff’s treating physician during the relevant time period in the early 1980s. In considering
Plaintiff’s claim, the ALJ reviewed Dr. Hammon0d’s treatment records at length. As set out
by the ALJ and reflected in the records, in August 1981, Plaintiff underwent surgery followed
by radiotherapy, and at a follow-up appointment with Dr. Herbert Wiebe, M.D. on November
18, 1981, Plaintiff indicated that she “fe[lt] well except for complaints of weight gain, lower
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abdominal bloating and facial puffiness,” and Dr. Wiebe reported only minimal side effects
from Plaintiff’s surgery and radiation treatment, with no complaints of fatigue or headaches.
(Tr. 382, 26.) On January 22, 1982, Plaintiff saw Dr. Hammond for the first time and indicated
that she felt “well, healthy, and without complaint.” (Tr. 390, 26.) Dr. Hammond further
noted that Plaintiff’s “strength, energy and thyroid symptoms [were] unremarkable.” (Tr. 390,
26.) Plaintiff again saw Dr. Hammond on February 23, 1982, and indicated that she “[was]
without complaint, fe[lt] well, healthy and stable.” (Tr. 394, 26.) In March 1982, Dr.
Hammond twice attempted to taper Plaintiff off cortisone medications as part of additional
testing, but this resulted in nausea, vomiting, and weakness, and Plaintiff resumed the
medication. (Tr. 396, 26.) During a visit with Dr. Hammond on May 4, 1982, Plaintiff
indicated that she had “done well” and had “no problems or complaints” regarding the
previous five weeks, with the exception of one episode of hypoadrenocorticism symptoms
(including fatigue) that Dr. Hammond suspected was caused by “impure cortisone.” (Tr. 405,
26). Plaintiff similarly had no complaints in subsequent appointments with Dr. Hammond in
November 1982 (Tr. 408, 26) and March 1983 (Tr. 411, 26-27).
Plaintiff returned to Dr. Hammond on June 7, 1983, reporting that she had reduced
her dose of cortisone without complications. (Tr. 415, 27.) A follow-up appointment on
April 10, 1984, indicated that Plaintiff was doing “exceedingly well” and had no symptoms of
headaches. (Tr. 416, 27.) Notes from a follow-up appointment on December 14, 1984, reflect
that Plaintiff again reduced her cortisone dosage, and indicated “no specific complaints” to
Dr. Hammond. (Tr. 421, 27.) A subsequent appointment with Dr. Hammond on June 17,
1985, indicated that Plaintiff was still “tolerating [her cortisone treatment] well,” had no
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symptoms and generally had “no complaints.” (Tr. 425, 27.) She returned for a follow-up in
April 1986, with no symptoms reported, and she was directed to continue her present
medication regimen and return in one year. (Tr. 429, 27.)
In June 2011, at the request of Plaintiff’s attorney, Dr. Hammond provided a letter
setting out Plaintiff’s treatment history with him. (Tr. 640-42). The ALJ considered Dr.
Hammond’s letter in three parts. First, the ALJ considered Dr. Hammond’s review of
Plaintiff’s treatment history. Dr. Hammond noted in the letter that he “began [Plaintiff’s]
management on January 22, 1982,” that post-surgery and radiation, Plaintiff was “started on
thyroid and cortisone” and “on these various medications she was stable” with no major
complications, that her follow-up was “benign,” and that he “continued to follow [Plaintiff]
yearly, occasionally more often, with no real change in her status.” (Tr. 641.) The ALJ gave
“significant weight to this portion of Dr. Hammond’s letter, because it is consistent with the
treatment notes previously discussed.” (Tr. 27.)
Second, the ALJ considered Dr. Hammond’s response to Plaintiff’s current claims. Dr.
Hammond stated in the letter, “I note from your letter that [Plaintiff] dates her termination of
working from August 1981 as a result of headaches, fatigue, and a lack of endurance. I suspect
all of these were likely present in her, although she did not make any specific complaints about
them.” (Tr. 641). As to this portion of the letter, the ALJ found as follows:
As the records show, and as Dr. Hammond pointed out, the claimant never
reported these symptoms when she was taking correct dosages of cortisone
acetate. The fact Dr. Hammond stated that it was likely these symptoms were
present is not enough to establish that she had these symptoms more than 30
years ago. More importantly, Dr. Hammond’s speculation alone is not enough
to find that these unreported symptoms resulted in her inability to perform
work activity at all levels. In resolving a conflict between the objective medical
evidence and medical opinion, which present a longitudinal history of the
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claimant’s complaints and limitations, and the claimant’s later subjective
testimony that presents a current recollection of these complaints and
limitations, I am persuaded that the contemporaneous recordation of those
complaints and limitations provided by the objective medical evidence and
medical opinion is the more persuasive evidence.
(Tr. 27.) The ALJ therefore gave “very little weight to Dr. Hammond’s approximately 30-year
retrospective self-admitted ‘suspicion’ that the claimant’s current recall of her symptoms 30
years ago to include ‘headaches, fatigue, and lack of endurance’ were ‘likely’ present in her.”
(Tr. 28.)
Third, the ALJ considered Dr. Hammond’s assessment of Plaintiff’s ability to work.
Dr. Hammond’s letter indicated that Plaintiff’s conditions would have had “a direct negative
impact on her ability to perform full-time work;” however, Dr. Hammond further stated that
he believed that Plaintiff would have been able to “perform sedentary work which required
minimal lifting and occasional walking and standing without significant interruption.” (Tr.
642.) Dr. Hammond noted that “[t]his would vary with the acuteness of her symptoms at
that time and the regulation and control of her medications.” (Id.) In considering this portion
of the letter, the ALJ noted that “Dr. Hammond never stated he felt the claimant was unable
to perform any work activity.” (Tr. 27.) The ALJ further concluded that “Dr. Hammond’s
generalized opinion regarding the claimant’s ability to perform sedentary work supports the
residual functional capacity assessed herein, and I have given it controlling weight.” (Tr. 28.)
On appeal before this Court, Plaintiff argues that the ALJ failed to analyze Dr.
Hammond’s July 2011 letter in accordance with Social Security Ruling (“SSR”) 96-2p and 20
C.F.R. § 404.1527(c), better known as the “treating physician rule.” The treating physician
rule generally requires an ALJ to give controlling weight to the well-supported opinion of a
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treating source as to the nature and severity of a claimant’s impairment, based on the ability
of treating sources to
provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s)
[which] may bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.
20 C.F.R. § 404.1527(c)(2). However, controlling weight may not be given to a treating
source’s opinion unless it is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and is “not inconsistent with other substantial evidence in the case
record.” See Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *2; 20 C.F.R. §§
404.1527(c)(2); see also Craig, 76 F.3d at 590; Mastro, 270 F.3d at 178. Instead, the opinion
must be evaluated and weighed using all of the factors provided in 20 C.F.R.
§ 404.1527(c)(2)(i)-(c)(6), including (1) the length of the treatment relationship, (2) the
frequency of examination, (3) the nature and extent of the treatment relationship, (4) the
supportability of the opinion, (5) the consistency of the opinion with the record, (6) whether
the source is a specialist, and (7) any other factors that may support or contradict the opinion.
As Social Security Ruling 96-2p further explains, “[i]t is not unusual for a single treating
source to provide medical opinions about several issues; for example at least one diagnosis, a
prognosis, and an opinion about what the individual can still do. Although it is not necessary
in every case to evaluate each treating source medical opinion separately, adjudicators must
always be aware that one or more of the opinions may be controlling while others may not.
Adjudicators must use judgment based on the facts of each case in determining whether, and
the extent to which, it is necessary to address separately each medical opinion from a single
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source.” SSR 96-2p, 1996 WL 374188, at *2; see also Prentice v. Astrue, No. CA-06-385-M,
2008 WL 910058, at *6 (D.R.I. Mar. 31, 2008) (referencing SSR 96-2p and noting that “an ALJ
is not required to accept a medical source opinion in its entirety”). When an ALJ declines to
assign controlling weight to a medical opinion, she must “‘explain in the decision the weight
given’ thereto and ‘give good reasons in [her] . . . decision for the weight.’” Chirico v. Astrue,
No. 3:10CV689, 2011 WL 6371315, at *5 (E.D. Va. Nov. 21, 2011) (unpublished) (quoting 20
C.F.R. § 404.1527(c)(2); 416.927(c)(2)).
“This requires the ALJ to provide sufficient
explanation for ‘meaningful review’ by the courts.” Thomas v. Comm’r of Soc. Sec., No. Civ.
WDQ-10-3070, 2012 WL 670522, at *7 (D. Md. Feb. 27, 2012) (unpublished) (citing Blakely
v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009); Chandler v. Comm’r of Soc. Sec.,
667 F.3d 356, 362 (3d Cir. 2011)).
In this case, as described above, the ALJ went through Dr. Hammond’s letter in
considerable detail, and made clear that she assigned differing weight to various portions of
Dr. Hammond’s letter. As set out above, the ALJ gave “significant weight” to the portion of
Dr. Hammond’s letter that described Plaintiff’s treatment, as reflected in the medical records.
(Tr. 27). The ALJ then gave “very little weight” to Dr. Hammond’s “30-year retrospective
self-admitted ‘suspicion’” that Plaintiff “likely” suffered from headaches, fatigue, and a lack of
endurance during the relevant period of impairment. (Tr. 28.) The ALJ pointed out that Dr.
Hammond’s suspicion was directly contradicted by Plaintiff’s medical records (see, e.g., Tr.
390 (noting that, at Plaintiff’s January 22, 1982 appointment, Plaintiff’s “strength, energy and
thyroid symptoms [were] unremarkable”; Tr. 396 (specifically noting that Plaintiff was
suffering from “few if any headaches”); Tr. 416 (specifically noting that Plaintiff made no
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complaints of headaches at her April 10, 1984 appointment)). The ALJ resolved this conflict
in favor of the contemporaneous medical records. See Kasey v. Sullivan, 3 F.3d 75, 79 (4th
Cir. 1993) (noting that it is the province of the ALJ to resolve conflicts in the evidence).
Finally, the ALJ gave controlling weight only to Dr. Hammond’s “generalized opinion”
regarding Plaintiff’s ability to perform sedentary work. (Tr. 28.) The ALJ noted that this
opinion, going to the nature and severity of Plaintiff’s impairment, was supported by objective
medical evidence and was consistent with other medical evidence in the record. (Tr. 28.)
Thus, the ALJ analyzed the opinion evidence at length, specified the weight given to various
portions of the letter, and explained the reasons for that determination in light of the medical
evidence of record. Substantial evidence supports the ALJ’s determination. 4
B.
Substantial Evidence Supports the ALJ’s RFC Determination
Plaintiff next contends that the ALJ erred in formulating Plaintiff’s RFC by not
including a limitation that allowed Plaintiff two to three additional 5-minute breaks. In both
the 2012 and 2014 hearings, the ALJ asked a Vocational Expert what jobs existed in the
national economy during the relevant time for a hypothetical claimant with the following
limitations based on Plaintiff’s physical and mental limitations: the ability to only perform
sedentary work, with the ability to sustain attention and concentration for two hours at a time,
the ability to follow short and simple instructions, and the ability to perform routine tasks with
no production rates or demand pace. (Tr. 55-56, 79-80.) These limitations were applied to a
Plaintiff’s brief also cites to Plaintiff’s testimony regarding her symptoms, and Plaintiff contends that her
testimony must be credited in light of Dr. Hammond’s letter. However, the ALJ addressed the credibility issue
at length, relying on a detailed consideration of the medical evidence including Plaintiff’s own statements
reflected in the medical records. (Tr. 28-29.) Plaintiff does not raise a separate challenge to that credibility
determination, and the Court finds that the ALJ’s credibility determination is also supported by substantial
evidence.
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hypothetical claimant of Plaintiff’s age at the relevant time (age 26-30), education (high school
graduate), and with no past relevant work. At each hearing, a different Vocational Expert
identified jobs that existed in substantial numbers that a hypothetical claimant with the above
limitations and vocational characteristics could perform. In response to further questioning,
each Vocational Expert similarly noted that these jobs would likely not be available for a
claimant who required an additional two or three 5-minute breaks per day. (Tr. 56-57, 79.) In
her 2012 decision, the ALJ included the limitation requiring two or three additional 5-minute
breaks per day in determining Plaintiff’s RFC (Tr. 106-09). However, that decision was
vacated on appeal by the Appeals Council and was remanded for further consideration. 5 (Tr.
116.) Following the 2014 hearing, although the same hypothetical limitation was posed to the
Vocational Expert, the ALJ ultimately decided not to include that limitation when determining
Plaintiff’s RFC (Tr. 28-29).
In the 2014 decision, the ALJ went into detail as to why, upon reconsideration of the
record, she did not find a need for Plaintiff to have two to three additional rest breaks per day.
As such, the ALJ’s decision was not inconsistent with Acquiescence Ruling 00–1(4) and Albright v. Comm’r
of Soc. Sec. Admin., 174 F.3d 473 (4th Cir. 1999). Under Acquiescence Ruling 00–1(4), “where a final decision
of SSA after a hearing on a prior disability claim contains a finding required at a step in the sequential evaluation
process for determining disability, SSA must consider such finding as evidence and give it appropriate weight
in light of all relevant facts and circumstances when adjudicating a subsequent disability claim involving an
unadjudicated period.” AR 00–1(4) (S.S.A. Jan. 12, 2000); see also Lively v. Sec. of Health & Human Servs.,
820 F.2d 1391, 1392 (4th Cir. 1987) (noting that res judicata applies to Social Security disability cases and
“prevents reappraisal of both the Secretary’s findings and his decision in Social Security cases that have become
final”); Albright, 174 F.3d at 477–78 (“To have held otherwise would have thwarted the legitimate expectations
of claimants—and, indeed, society at large—that final agency adjudications should carry considerable weight.”).
However, in this case, as noted above, the prior ALJ determination was vacated by the Appeals Council, and
the ALJ’s decision, “having been vacated, never became final, and thus the doctrine of res judicata did not
apply.” Monroe v. Colvin, 826 F.3d 176, 187 (4th Cir. 2016); see also Batson v. Colvin, No. 7:14–CV–48–D,
2015 WL 1000791, at *7 (E.D.N.C. Mar. 5, 2015) (“Here, Albright and AR 00–1(4) did not require the second
ALJ to consider the first ALJ’s decision because that decision had been vacated, and thus no finding remained
to be considered in the subsequent determination.”); Sanford v. Colvin, No. 1:14CV885, 2016 WL 951539, at
*3 (M.D.N.C. Mar. 9, 2016) (“[T]he ALJ’s prior decision had no preclusive effect on the decision at issue here,
as the 2011 decision was vacated and a new hearing was conducted.”).
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(Tr. 28-29.) In considering this issue, the ALJ noted that she gave very little weight to Dr.
Hammond’s “suspicion” regarding the effect of Plaintiff’s ailments during the relevant period
of impairment, and that the medical record evidence cut against the credibility of Plaintiff’s
testimony as to the extent that her medical condition limited her ability to work. (Tr. 29.)
Additionally, the ALJ noted that Plaintiff’s medical records from 1981 to the present indicate
that Plaintiff’s few episodes of excessive fatigue were linked to occasions in which she had not
taken her proper dose of cortisone. (Tr. 29.) A disorder which is controllable with medication
is not “disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986). Thus, on remand,
the ALJ’s determination that Plaintiff would not need two or three additional 5-minute breaks
during a workday was supported by substantial evidence.
C.
Substantial Evidence Supports the ALJ’s Determination at Step Five
Finally, Plaintiff challenges the ALJ’s conclusion at step five that Plaintiff could
perform other work in the national economy. Specifically, Plaintiff contends that the jobs
cited by the Vocational Expert are outside of the parameters of the hypothetical posed by the
ALJ, and thus do not provide substantial evidence of other work available to Plaintiff during
the relevant time.
At the 2014 Hearing, the ALJ asked the Vocational Expert to identify sedentary jobs
available for a hypothetical claimant similarly situated to Plaintiff limited to “short, simple
instructions, not detailed” and “routine tasks,” and that did not require work at a production
rate or demand pace (Tr. 77). In response, the Vocational Expert identified the positions of
order clerk (DOT 209.567-014), table worker (DOT 739.687-182), and hand sorter (DOT
734.687-082) as jobs which existed in substantial numbers and which a hypothetical claimant
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similarly situated to Plaintiff could perform. (Tr. 78-79.) Plaintiff now argues that under the
Dictionary of Occupational Titles, the order clerk position requires a General Education
Development Reasoning Level 3, requiring an employee to apply “commonsense
understanding to carry out instructions furnished in written, oral, or diagrammatic form” and
to deal with “problems involving several concrete variables in or from standardized
situations.” Plaintiff contends that this requirement is inconsistent with the limitation to
“short, simple (not detailed) instructions” and “routine tasks,” and that the Vocational Expert
failed to explain the apparent conflict.
Having considered this contention, the Court notes that this apparent conflict would
potentially require remand if the order clerk position were the only position identified. See
Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015); Mullis v. Colvin, No. 1:11CV22, 2014 WL
2257188 (M.D.N.C. May 29, 2014). However, in this case the Vocational Expert identified
two other positions, table worker (1,400 jobs in North Carolina) and hand sorter (1,500 jobs
in North Carolina). 6 Plaintiff contends, without citation to any legal authority, that the table
worker and hand sorter positions, by nature, require a worker to maintain a production pace.
(Pl. Br. at 14-15.) However, the Vocational Expert identified these positions as not requiring
work at a production or demand pace. In addition, the Dictionary of Occupational Titles
provides that:
Even though the weight lifted may be only a negligible amount, a job should be
rated Light Work: . . . when the job requires working at a production rate pace
entailing the constant pushing and/or pulling of materials even though the
weight of those materials is negligible. NOTE: The constant stress and strain of
maintaining a production rate pace, especially in an industrial setting, can be and
At the first hearing, a different Vocational Expert also identified the positions of assembler (DOT 725.687022) and inspector (DOT 669.687-014).
6
16
is physically demanding of a worker even though the amount of force exerted
is negligible.
Dictionary of Occupational Titles Appendix C. The table worker and hand sorter positions
are classified by the DOT as sedentary, not light, positions, so there is no apparent conflict
between the Vocational Expert testimony and the guidance set out in DOT Appendix C.
Finally, the Court notes that these positions have been identified and accepted in multiple
other court decisions as sedentary positions for individuals limited to a nonproduction pace,
and no conflict with the DOT has been noted. See, e.g., Lowery v. Comm’r, Soc. Sec. Admin.,
No. SAG-13-1181, 2014 WL 936848, at *3 (D. Md. Mar. 7, 2014) (noting that the position of
Table Worker (DOT §739.687-182) is “not performed at production rate pace”); Moore v.
Colvin, No. 4:15CV62D, 2016 WL 3211470, at *3 (E.D.N.C. May 4, 2016) (finding available
positions as a bench hand/inspector/sorter and table worker for an individual with an RFC
limited to “no production-pace or quota-based work”); McKinney v. Colvin, 2016 WL
6127737 (N.D.W. Va. Sept. 19, 2016) (finding available positions as a hand sorter for a
claimant with an RFC that included “no strict production quotas”); Pearson v. Colvin, No.
2:14CV26, 2015 WL 3757122, at *24 (N.D.W. Va. June 16, 2015) (identifying positions as a
table worker in response to a hypothetical limiting a claimant to “no assembly line and no fastpaced production”). Plaintiff cites nothing to the contrary. Therefore, substantial evidence
supports the ultimate step five determination in this case.
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IV.
CONCLUSION
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be AFFIRMED, that Plaintiff’s Motion for Summary Judgment [Doc. #7] be
DENIED, that Defendant’s Motion for Judgment on the Pleadings [Doc. #10] be
GRANTED, and that this action be DISMISSED with prejudice.
This, the 23rd day of February, 2017.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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