LAMONDS v. COLVIN
Filing
17
MEMORANDUM OPINION AND RECOMMENDATION, signed by MAG/JUDGE L. PATRICK AULD on 5/9/2017. RECOMMENDED that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment Reversing or Modifying the Decision of the Commissioner of Social Security (Docket Entry 12 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 14 ) be granted, and that this action be dismissed with prejudice. (Butler, Carol)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RICHARD WAYNE LAMONDS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,1
Defendant.
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1:16CV1145
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Richard Wayne Lamonds, brought this action 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
claims
for
Disability
Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)
Defendant has filed the certified administrative record
(Docket Entry 10 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 12, 14; see also Docket Entry 13
(Plaintiff’s Brief); Docket Entry 15 (Defendant’s Memorandum);
Docket Entry 16 (Plaintiff’s Reply)). For the reasons that follow,
the Court should enter judgment for Defendant.
1
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).
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging an onset date of
August 1, 2008.
(Tr. 211-20.)
Upon denial of those applications
initially (Tr. 80-98, 121-28) and on reconsideration (Tr. 99-120,
134-51),
Plaintiff
requested
a
hearing
de
Administrative Law Judge (“ALJ”) (Tr. 152-53).
novo
before
an
Plaintiff, his
attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 41-69.)
The ALJ subsequently ruled that Plaintiff did not
qualify as disabled under the Act.
(Tr. 25-36.)
The Appeals
Council thereafter denied Plaintiff’s request for review (Tr. 1-6,
17-24, 315-18), thereby 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:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through December 31, 2011.
2.
[Plaintiff] has not engaged in substantial gainful
activity since August 1, 2008, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
hypertension status post myocardial infarction, a history
of seizures, and history of a heel injury.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
2
5.
. . . [Plaintiff] has the residual functional
capacity to perform medium work . . . . [Plaintiff’s]
restrictions precluded lifting and carrying or pushing
and pulling more than 50 pounds occasionally or 25 pounds
frequently; standing and walking or sitting 6 hours in a
work day; and no more than occasional stooping and
climbing ramps and stairs.
He was precluded from
climbing ladders, ropes, or scaffolds and all exposure to
moving machinery and unprotected heights.
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from August 1, 2008, through the
date of this decision.
(Tr.
30-35
(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.
3
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
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, 401 (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) (brackets and internal
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
4
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
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)).2
“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
2
regulations
establish
a
The Act “comprises two disability benefits programs. [DIB] provides benefits
to disabled persons who have contributed to the program while employed. [SSI]
. . . 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).
5
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
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
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).3
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,
3
“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).
6
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
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.
179-80.
See 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
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
4
“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.
5
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.”).
7
B.
Assignments of Error
Plaintiff contends that the Court should overturn the ALJ’s
finding of no disability on these grounds:
(1)
assessment
“the
ALJ
required
Interpretation
did
by
Ruling
not
perform
[Social
Titles
II
the
Security
and
function-by-function
Ruling
XVI:
96-8p,
Assessing
Policy
Residual
Functional Capacity in Initial Claims, 1996 WL 374184, at *6 (July
2,
1996)
(“SSR
96-8p”)]
in
making
his
determination
as
to
[Plaintiff’s] [RFC]” (Docket Entry 13 at 3 (bold font omitted));
(2) “[t]he ALJ relied on testimony of a [VE] that conflicts
with
the
[Dictionary
of
Occupational
Titles]
without
first
obtaining an explanation and resolving the apparent conflict in his
written decision, which failed to comply with the requirements set
forth in [Social Security Ruling 00-4p, Titles II and XVI: Use of
Vocational Expert and Vocational Specialist Evidence, and Other
Reliable Occupational Information in Disability Decisions, 2000 WL
1898704 (Dec. 4, 2000) (“SSR 00-4p”)] (Docket Entry 13 at 9 (bold
font omitted));
(3)
“[a]fter
finding
and
concluding
that
[Plaintiff’s]
restrictions and limitations included ‘standing and walking or
sitting 6 hours in a workday,’ the ALJ failed to include these
restrictions and limitations in his hypothetical questions to the
[VE], and the limitations would have resulted in the elimination of
8
all competitive
work
for
[Plaintiff]”
(id. at
12
(bold
font
omitted); see also Docket Entry 16 at 2-3); and
(4) “[t]he entire record before the ALJ is completely void of
any evidence to support a finding that [Plaintiff] is capable of
lifting and carrying anything other than light objects, which is
contrary to the ALJ’s finding that [Plaintiff] has an RFC to
perform
a
range
of
medium
work
that
would
require
him
to
occasionally lift and carry objects weighing up to 50 pounds.
As
of June 25, 2010, [Plaintiff] was 55-years-old, which is considered
‘advanced
age.’
Therefore,
in
the
alternative,
and
in
consideration of [Plaintiff’s] age, work history, and an RFC to
perform a range of light work that is supported by the evidentiary
record, [Plaintiff] should be found to have been under a disability
. . . from and after June 25, 2010 in accordance with . . .
Medical-Vocational Rule 202.06” (Docket Entry 13 at 13 (bold font
omitted)).
Defendant disputes Plaintiff’s assignments of error, and urges
that substantial evidence supports the finding of no disability.
(See Docket Entry 15 at 5-18.)
1. Function-by-Function Assessment
In Plaintiff’s first assignment of error, he contends that the
ALJ failed to “perform the function-by-function assessment required
by SSR 96-8p . . . in making his determination as to [Plaintiff’s]
[RFC].”
(Docket Entry 13 at 3 (bold font omitted).)
9
Plaintiff
urges that, “[p]rior to making [the] RFC determination, it was
incumbent on the ALJ, based on . . . [SSR] 96-8p, to perform a
function-by-function
assessment
of
how
[Plaintiff’s]
severe
impairments, including his heel injury, limit or restrict his
ability to
functions.”
stand,
walk,
(Id. at 4.)
lift,
carry,
and
perform
other
work
According to Plaintiff, “the ALJ never
performed an assessment of how [Plaintiff’s] heel injury limits or
restricts [Plaintiff’s] ability to stand . . . in an ordinary work
setting on a regular and continuing basis.”
(Id.)
Further,
Plaintiff asserts that the ALJ failed to support his findings
concerning Plaintiff’s ability to lift with substantial evidence.
(See id. at 5 (citing Tr. 31-33); see also Docket Entry 16 at 3-4.)
With regard to Plaintiff’s ability to walk, he contends that “the
ALJ selected various portions of [Plaintiff’s] medical records that
arguably support[ed] his conclusions as to [Plaintiff’s] RFC, and
[the ALJ] ignored inconsistent portions of the same medical records
without providing an explanation for how these inconsistencies were
considered and resolved.”
(Docket Entry 13 at 6.)
Moreover, Plaintiff points out that the ALJ found in the RFC
“that [Plaintiff’s] restrictions precluded him from ‘standing and
walking or sitting 6 hours in a work day’” (id. at 7 (quoting Tr.
31 (emphasis added))), which Plaintiff posits “has only four
interpretations”:
(1)
“that
[]
Plaintiff
is
precluded
from
performing any of the functions of standing and walking or sitting
10
for six hours in an eight-hour workday[,] . . . which would clearly
support a finding that [] Plaintiff is disabled because he would
remain off-task for 75% of an eight-hour workday” (Docket Entry 16
at 1 (emphasis in original)); (2) “that [] Plaintiff is able to
stand and walk or sit combined for only six hours in an eight-hour
workday,” which would result in Plaintiff “remain[ing] off-task for
25% of the eight-hour workday” (id. at 1-2 (emphasis in original));
(3) that [] Plaintiff is able to stand and walk for six hours of an
eight-hour workday or sit for six hours of an eight-hour workday”
(id. at 2 (emphasis in original)); or (4) that Plaintiff can stand
and walk for six hours in an eight-hour workday and sit for six
hours in an eight-hour workday (see id. (emphasis added)); see also
Docket Entry 13 at 7).
Plaintiff challenges the third interpretation on the ground
that, “if [] Plaintiff is limited to sitting at least two hours
during the workday, then he could not meet the standing/walking
requirements of . . . medium work.”
(Docket Entry 16 at 2.)
Plaintiff refutes the fourth interpretation (the one espoused by
Defendant, see Docket Entry 15 at 12-13), on the basis of the ALJ’s
alleged failure to “address [] Plaintiff’s ability to sit for
certain periods of time.”
(Docket Entry 16 at 2.) Thus, Plaintiff
maintains that, even under “the most liberal interpretation of the
ALJ’s [RFC] finding[]” with regard to standing, walking, and
sitting, Plaintiff “still would be unable to perform the functional
11
requirements of medium work on a regular and continuing basis.”
(Docket Entry 13 at 7.)6
Although, as Plaintiff concedes, the United States Court of
Appeals for the Fourth Circuit “refuse[d] to adopt a per se rule
requiring remand when the AL[J] fails to conduct the required
function-by-function analysis[,] . . . ‘[r]emand may be appropriate
. . . where an ALJ fails to assess a claimant’s capacity to perform
relevant functions, despite contradictory evidence in the record,
or
where
other
inadequacies
in
the
ALJ’s
analysis
frustrate
meaningful review.’” (Id. at 8 (quoting Mascio v. Colvin, 780 F.3d
632, 636 (4th Cir. 2015)).)
According to Plaintiff, the ALJ here
did not perform “the requisite analysis that would allow this Court
to conduct a meaningful review of [his] conclusions.”
(Id.)
Plaintiff’s arguments miss the mark.
RFC measures the most a claimant can do despite any physical
and
mental
limitations.
Hines,
§§ 404.1545(a), 416.945(a).
453
F.3d
at
562;
20
C.F.R.
An ALJ must determine a claimant’s
exertional and non-exertional capacity only after considering all
of a claimant’s impairments, as well as any related symptoms,
including
pain.
See
Hines,
453
F.3d
at
562–63;
20
C.F.R.
§§ 404.1545(b), 416.945(b). The ALJ then must match the claimant’s
exertional
abilities
to
an
appropriate
6
level
of
work
(i.e.,
Curiously, in an earlier portion of Plaintiff’s brief, he argued that the ALJ
found Plaintiff capable of standing and walking “eight hours per day.” (Docket
Entry 13 at 6 (emphasis added).)
12
sedentary, light, medium, heavy, or very heavy).
§§ 404.1567, 416.967.
See 20 C.F.R.
Any non-exertional limitations may further
restrict a claimant’s ability to perform jobs within an exertional
level.
See 20 C.F.R. §§ 404.1569a(c), 416.9691(c).
An ALJ need not discuss every piece of evidence in making an
RFC determination. See Reid v. Commissioner of Soc. Sec., 769 F.3d
861, 865 (4th Cir. 2014) (citing Dyer v. Barnhart, 395 F.3d 1206,
1211 (11th Cir. 2005)).
and
logical
bridge
However, the ALJ “must build an accurate
from
the
evidence
to
[the]
conclusion.”
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
As to the
role of the function-by-function analysis in that determination,
the relevant administrative ruling states: “The RFC assessment must
first
identify
the
individual’s
functional
limitations
or
restrictions and assess his or her work-related abilities on a
function-by-function basis . . . .
Only after that may RFC be
expressed in terms of the exertional levels of work, sedentary,
light, medium, heavy, and very heavy.”
SSR 96-8p, 1996 WL 374184,
at *1.
The Fourth Circuit recently addressed this administrative
ruling and the issue of whether an ALJ’s failure to articulate a
function-by-function analysis necessitates remand.
F.3d at 636–37.
Mascio, 780
Specifically, the Fourth Circuit stated “that a
per se rule is inappropriate given that remand would prove futile
in
cases
where
the
ALJ
does
not
13
discuss
functions
that
are
irrelevant or uncontested,” id. at 636, but that “‘remand may be
appropriate where an ALJ fails to assess a claimant’s capacity to
perform relevant functions, despite contradictory evidence in the
record, or where other inadequacies in the ALJ’s analysis frustrate
meaningful review,’” id. (internal brackets and ellipsis omitted)
(quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
Here, contrary to Plaintiff’s argument (see Docket Entry 13 at 38), the ALJ sufficiently addressed the exertional components of the
RFC to permit meaningful review by the Court.7
With regard to Plaintiff’s heel impairment and ability to
stand, the ALJ noted that, despite a heel replacement in 2003,
Plaintiff
“returned
to
work
in
2005”
and
“received
no
recommendations for more invasive care and managed symptoms with
medication.”
(Tr. 32.)
Following that finding, the ALJ observed
that “few treatment notes [existed] between 2009 and 2012” and
concluded that “[t]he lack of ongoing care for . . . his heel,
suggested th[at] condition[] required no intervention and otherwise
only limitedly impacted [Plaintiff].”
(Tr. 32-33.)
The ALJ also
discussed the opinion evidence as it related to Plaintiff’s heel
impairment and ability to stand.
(See Tr. 33-34.)
In that regard,
the ALJ remarked that consultative examiner Dr. James Nelson found
only mild arthritic changes in Plaintiff’s heel, found no issues
7
Plaintiff makes no argument that the ALJ erred by failing to specifically
address postural, visual, communicative, manipulative, or environmental
limitations. (See Docket Entry 13 at 3-8; Docket Entry 16.)
14
with
Plaintiff’s
“muscle
strength
and
tone,”
and
noted
that
Plaintiff rose from a seated position “without difficulties.” (Tr.
33; see also Tr. 426-29.)
The ALJ concluded that Dr. Nelson’s
examination “address[ed] mild presentation of symptoms consistent
with no more than restricting [Plaintiff] to medium exertion.”
(Tr. 33.)
consultants’
Furthermore, the ALJ agreed with the state agency
determination
that
Plaintiff
remained
capable
medium work with regard to Plaintiff’s SSI application.
34; see also Tr. 93, 106.)8
of
(See Tr.
The ALJ’s discussion of Plaintiff’s
heel impairment and ability to stand permits meaningful judicial
review.
Plaintiff asserts that the ALJ failed to support his findings
concerning Plaintiff’s ability to lift with substantial evidence.
(See Docket Entry 13 at 5 (citing Tr. 31-33); see also Docket Entry
16 at 3-4.)
According to Plaintiff, the ALJ relied on “three
evidentiary items relating to [Plaintiff’s] lifting ability:” (1)
a Third Party Function Report completed by Plaintiff’s daughter
reflecting that Plaintiff had difficulty lifting more than 20
pounds (see Tr. 32 (referencing Tr. 275)); (2) Dr. Nelson’s opinion
that Plaintiff’s impairments did not affect his ability to lift,
carry, and handle light objects (see Tr. 33 (referencing Tr. 427));
and (3) an observation that Plaintiff “notably lifted and carried
8
Concerning Plaintiff’s DIB application, the state agency consultants found
insufficient evidence of any medically determinable impairments prior to
Plaintiff’s date last insured of December 31, 2011. (See Tr. 84, 115, 116.)
15
light objects” (Tr. 33 (emphasis added)).
(Docket Entry 13 at 5.)9
Plaintiff maintains that “the evidence that was cited by the ALJ as
to [Plaintiff’s] apparent ability to lift light . . . objects does
not
logically
support
the
ALJ’s
finding
and
[Plaintiff] can lift 50 pounds occasionally.”
conclusion
that
(Id. (emphasis in
original).)
Plaintiff’s argument overlooks two key facts.
First, the ALJ
agreed with the state agency consultants’ findings, with regard to
Plaintiff’s SSI application, that Plaintiff remained capable of
performing medium work.
Second, Dr.
Nelson
did
(See Tr. 34; see also Tr. 93, 106.)
not
state
that
lifting
light objects
constitutes the most Plaintiff could do; rather, Dr. Nelson merely
noted that Plaintiff’s impairments did not affect his ability to
lift, carry, and handle light objects.
these
considerations,
the
ALJ
(See Tr. 427.)10
adequately
supported
Given
his
determination that Plaintiff can perform the lifting and carrying
required by medium work.
Respecting walking ability, Plaintiff faults the ALJ for
selecting portions of Plaintiff’s medical records that support the
9
Plaintiff also challenges Defendant’s recitation of additional evidence
purportedly supporting the ALJ’s determination as to Plaintiff’s ability to lift,
including “Plaintiff’s testimony that he was able to rake and mow the lawn . .
. [and] that he ‘does a lot of stuff’ to help people, such as driving people to
the store.” (Docket Entry 16 at 3 (citing Docket Entry 15 at 8, Tr. 48-49;
quoting Tr. 50).) Plaintiff contends that such evidence “has nothing at all to
do with an individual’s lifting ability.” (Id. at 3-4.)
10
Dr. Nelson’s report did not indicate how many pounds the referenced “light
objects” weighed. (Tr. 427.)
16
RFC while ignoring inconsistent portions of the same medical
records.
ALJ’s
(See Docket Entry 13 at 6.)
observation
that
consultative
Plaintiff challenges the
examiner
“‘Dr.
Nelson
identified no specific limitations during his evaluation’” (id.
(quoting Tr. 33)), because Dr. Nelson found Plaintiff experienced
mild difficulty walking on his heels and toes, displayed reduced
ability to tandem walk on the left, and could hop only on the right
foot (id. (citing Tr. 428)).
Plaintiff conflates the concepts of “limitations” and findings
on examination.
The ALJ noted that Dr. Nelson made findings on
examination consistent with mild arthritis, but pointed out that
the evaluation “lacked quantitative restrictions.”
(Tr. 33.)
Indeed, Dr. Nelson neither provided any specific limitations on
Plaintiff’s ability to sit, stand, walk, lift, carry, push, or
pull, nor opined as to any non-exertional limitations, such as
postural, manipulative, or environmental restrictions.
426-29.)
In
fact,
Dr.
Nelson
stated
only
that
(See Tr.
Plaintiff
“exhibit[ed] mild physical limit[a]tion[] due to left foot pain”
and
expressly
concluded
that
environmental restrictions.
Plaintiff
did
not
require
any
(Tr. 429 (emphasis added).)
Plaintiff additionally challenges the ALJ’s statement that a
May 28, 2014, office visit with treating physician Dr. Harvey Wolf
“indicated [that Plaintiff possessed] a capacity to walk a halfmile.”
(Docket Entry 13 at 6 (citing Tr. 33).)
17
According to
Plaintiff, that treatment note actually reflects that Plaintiff
experienced
chest
pain
when
he
walked
a
half-mile,
and also
contained references to Plaintiff’s painful left foot arthritis and
“trouble getting around.”
(Id.)
Plaintiff also points to an
August 13, 2014, office visit with Dr. Wolf in which Plaintiff
complained of shortness of breath and vein pain in his arms and
hands
when
he
walked
to
the
mailbox
Plaintiff’s limited ability to walk.
Plaintiff
contends
that
the
as
further
support
of
(Id. (citing Tr. 530).)
above-cited
medical
records
lack
consistency “with the ALJ’s RFC assessment that [Plaintiff] is able
to perform medium work that would require him to stand and walk
eight hours per day.”
(Id.)
Plaintiff’s contentions fail for several reasons.
First, the
ALJ did not err in his interpretation of the May 28, 2014,
treatment
note,
as
that
note
reflects
that
Plaintiff
could
physically walk a half mile, albeit with subjective reports of
chest pain.
(Compare Tr. 33, with Tr. 527.)
Second, the ALJ did
not selectively discuss only medical records that supported his
ultimate RFC, as he also noted Plaintiff’s report of “a walking
capacity of a quarter mile before shortness of breath.”
(emphasis
added);
see
also
Tr.
496.)
In
addition,
(Tr. 33
the
ALJ
specifically addressed Plaintiff’s subjective complaint of vein
pain in his arms and hands, but remarked that such a complaint
remained “new and undiagnosed” and noted uncertainty as to whether
18
the condition would “persist or if it was related to one of his
other conditions.”
(Tr. 33; see also Tr. 530.)
The ALJ further
observed that follow up appointments did not contain any complaints
of vein pain (see Tr. 33; see also Tr. 532, 543), and that an
exercise stress test showed Plaintiff’s left ventricular ejection
fraction at 49% with no ischemia (see Tr. 33; see also Tr. 538).11
The ALJ concluded that, “given his clinical picture and his lack of
persistent
ongoing
findings
related
to
his
restrictions to medium are noted in the [RFC].”
cardiac
(Tr. 33.)
issues,
Thus,
the Court can meaningfully review the ALJ’s analysis of Plaintiff’s
ability to walk.
Plaintiff also maintains that, even under “the most liberal
interpretation
of
the
ALJ’s
[RFC]
finding[]”
with
regard
to
standing, walking, and sitting, Plaintiff “still would be unable to
perform the functional requirements of medium work on a regular and
continuing basis.”
at
1-2.)
(Docket Entry 13 at 7; see also Docket Entry 16
Although,
if
read
out
of
context,
the
ALJ’s
RFC
assessment grammatically suggests that he “precluded” Plaintiff
from standing and walking or sitting six hours in a workday (Tr.
31), the ALJ’s repeated references to “medium” work (see Tr. 31,
33, 34), and
his
crediting
of
the
state
agency
consultants’
opinions (see Tr. 34), which found that Plaintiff could “[s]tand
11
The ALJ did not find Plaintiff’s subjective complaints fully credible (see Tr.
32), and Plaintiff does not challenge the ALJ’s finding in that regard (see
Docket Entry 13).
19
and/or walk (with normal breaks) for a total of[] [a]bout 6 hours
in an 8-hour workday” and “[s]it (with normal breaks) for a total
of[] [a]bout 6 hours in an 8-hour workday” (Tr. 93, 106 (emphasis
added)), make clear that the ALJ found that Plaintiff could stand
and/or walk for up to six hours and sit for up to six hours in an
eight-hour workday.
In sum, Plaintiff’s first claim on review fails to entitle him
to relief.
2. Conflict Between VE and DOT
In Plaintiff’s second issue on review, he alleges that “[t]he
ALJ relied on testimony of a [VE] that conflicts with the [DOT]
without first obtaining an explanation and resolving the apparent
conflict in his written decision, which failed to comply with the
requirements set forth in SSR 00-4p” (Docket Entry 13 at 9 (bold
font omitted)), and Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015)
(id. at 10-11).
three
jobs
In particular, Plaintiff argues that one of the
that
the
VE
identified
in
response
to
the
ALJ’s
dispositive hypothetical question, Dry-Cleaner Helper, DOT No.
362.686-010, 1991 WL 673006 (4th ed. rev. 1991), requires frequent
stooping,
stooping.
whereas
(See
Additionally,
the
ALJ
Docket
Plaintiff
restricted
Entry
contends
13
Plaintiff
at
9;
that
the
see
to
also
“Working
occasional
Tr.
31.)
Conditions
Information” for another of the three jobs cited by the VE, Prizer
(also known as Packer), DOT No. 920.687-142, 1991 WL 687996,
20
provides that “‘[w]orkers may . . . work at great heights . . . and
. . . generally work 8-hour shifts, though longer shifts are not
uncommon.’”
(Docket Entry 13 at 11 (emphasis in original).)
According to Plaintiff, “[g]iven the AlJ’s finding that [Plaintiff]
is restricted to standing and walking or sitting only six hours in
a day with no exposure to unprotected heights, it would appear that
a [DOT] Code encompassing jobs in which workers generally work
eight-hours days, with longer shifts not being uncommon, with some
working at great heights, would not properly exemplify jobs that
exist
in
significant
numbers
in
the
national
economy
that
[Plaintiff] has the ability to perform in a work setting on a
regular
and
continuing
basis.”
(Id.)
Plaintiff’s
argument
ultimately fails as a matter of law.
SSR 00-4p places an affirmative duty on an ALJ to elicit an
explanation from the VE as to any “apparent unresolved conflict”
between the VE’s testimony and the DOT:
Occupational evidence provided by a VE . . . generally
should be consistent with the occupational information
supplied by the [DOT].
When there is an apparent
unresolved conflict between VE . . . evidence and the
[DOT], the [ALJ] must elicit a reasonable explanation for
the conflict before relying on the VE . . . evidence to
support a determination or decision about whether the
claimant is disabled. . . . [A]s part of the [ALJ’s]
duty to fully develop the record, the [ALJ] will inquire,
on the record, as to whether or not there is such
consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added); see also Fisher
v. Barnhart, 181 F. App’x 359, 366 (4th Cir. 2006).
21
However, “an
ALJ has not fulfilled his affirmative duty merely because the [VE]
responds ‘yes’ when asked if her testimony is consistent with the
[DOT],”
Pearson,
810
F.3d
at
208
(internal
quotation
marks
omitted); thus, “[t]he ALJ independently must identify . . . where
the [VE’s] testimony seems to, but does not necessarily, conflict
with
the
[DOT],”
id.
at
209
(emphasis
added);
see
also
id.
(rejecting the Commissioner’s argument that an “apparent” conflict
meant an “obvious” one).
Here, the ALJ queried the VE whether an individual with
Plaintiff’s age, education, work experience, and RFC could perform
any jobs existing in significant numbers in the national economy.
(See
Tr.
65-66.)
In
response,
the
VE
opined
that
such
an
individual would remain capable of performing the medium-exertion
jobs of dry cleaner helper, laundry attendant, and hand packer, and
provided the corresponding DOT codes for those jobs, as well as the
jobs’s incidence in the national economy.
(See Tr. 66.)12
The ALJ
then asked the VE: “Has your entire testimony been consistent with
the [DOT]?”
(Tr. 67.)
In response, the VE stated: “The [DOT]
doesn’t address absenteeism or time off-task, but other than that,
yes, your honor.”
(Id.)
At this point, the ALJ asked Plaintiff’s
12
The ALJ asked two additional hypothetical questions of the VE, both assuming
the same limitations as the first hypothetical, but adding that “the individual
would consistently remain off-task more than 15 percent of the workday in
addition to regularly scheduled breaks” (hypothetical number two), or that “the
individual would consistently miss at least three days of work per month on an
unexcused or unscheduled basis” (hypothetical number three). (Tr. 67.) The VE
testified that each new restriction eliminated all competitive work.
(Id.)
However, the ALJ ultimately adopted neither the off-task nor the absence
restriction in his RFC determination. (See Tr. 31.)
22
counsel if he had any questions for the VE, to which Plaintiff’s
counsel
responded:
Thereafter,
the
ALJ
“No,
your
issued
honor,
a
I
decision
do
not.”
finding
(Tr.
68.)
Plaintiff
not
disabled (see Tr. 25-36), which adopted the VE’s testimony as to
available jobs:
To determine the extent to which [the RFC’s nonexertional limitations] erode the unskilled medium
occupational base, the [ALJ] asked the [VE] whether jobs
exist in the national economy for an individual with
[Plaintiff’s] age, education, work experience, and [RFC].
The [VE] testified that given all of these factors the
individual would be able to perform the requirements of
representative occupations such as . . . [:]
[c]leaner custodian[,] . . . [t]icket taker laundry[,]
[and] [h]and packer[.]”
. . .
Pursuant to SSR 00-4p, the [ALJ] has determined that the
[VE’s] testimony is consistent with the information
contained in the [DOT].
(Tr. 35 (emphasis added).)
Here, the ALJ did not fully discharge his duty under SSR 004p.
Although the ALJ inquired of the VE whether any conflicts
existed between her testimony and the DOT, and the VE acknowledged
that the DOT did not address absenteeism or time off-task, but that
no
other
conflicts
existed
(see
Tr.
67),
the
ALJ
failed
to
independently identify “where the [VE’s] testimony seem[ed] to, but
d[id] not necessarily, conflict with the [DOT],” Pearson, 810 F.3d
at 209.
As Plaintiff argues, one of the three jobs that the VE
identified
in
response
to
the
23
ALJ’s
dispositive
hypothetical
question, Dry-Cleaner Helper, DOT No. 362.686-010, 1991 WL 673006,
requires frequent stooping, whereas the ALJ restricted Plaintiff to
occasional stooping.
(See Docket Entry 13 at 9; see also Tr. 31.)
However, the ALJ’s error in that regard remains harmless for two
reasons.
See generally Fisher v. Bowen, 869 F.2d 1055, 1057 (7th
Cir. 1989) (“No principle of administrative law or common sense
requires us to remand a [Social Security] case in quest of a
perfect opinion unless there is reason to believe that the remand
might lead to a different result.”).
First,
although
Plaintiff
contends
that
the
“Working
Conditions Information” for another job identified by the VE,
Packer, DOT No. 920.687-142, 1991 WL 687996, suggests that job may
require Plaintiff to work at great heights and possibly for longer
than eight-hour shifts, Plaintiff fails to provide a citation to
such “Working Conditions Information.”
11.)
(See Docket Entry 13 at
Moreover, the actual DOT listing for the specific packer job
the VE cited (as opposed to a more general description of the
working
conditions
of
packaging
and
material
handling
jobs),
provides that working in “[h]igh [e]xposed [p]laces . . . does not
exist” for that job, and makes no mention of working longer than
eight-hour shifts.
DOT No. 920.687-142, 1991 WL 687996.
Plaintiff
shown
has
not
that,
for
the
packer
testimony apparently conflicted with the DOT.
24
job,
the
Thus,
VE’s
Second, even if the VE’s testimony as to the packer job
conflicted with the DOT, as Defendant argues (see Docket Entry 15
at 15), Plaintiff does not challenge the VE’s testimony as to the
ticket taker/laundry attendant position (see Docket Entry 13 at 912).
The VE estimated that 71,000 such positions existed in the
national economy and 1,800 such positions existed in North Carolina
(see Tr. 66), numbers which certainly qualify as “significant,”
see, e.g., Weiler v. Apfel, 179 F.3d 1107, 1110-11 (8th Cir. 1999)
(“The [VE’s] testi[mony] that there are 32,000 surveillance monitor
positions nationwide . . . is substantial evidence supporting the
ALJ’s conclusion that there are a significant number of jobs in the
economy which [the plaintiff] can perform.”); Lee v. Sullivan, 988
F.2d 789, 794 (7th Cir. 1993) (documenting cases establishing that
state or local job totals as low as 174 supported “significant
number” finding at step five); Craige v. Bowen, 835 F.3d 56, 58 (3d
Cir. 1987) (“[The VE] indicated there were about 200 jobs in the
light exertional category within [the plaintiff’s] capabilities in
his region.
national
This is a clear indication that there exists in the
economy
other
substantial
gainful
work
which
[the
plaintiff] can perform.”); Hicks v. Califano, 600 F.2d 1048, 1051
(4th Cir. 1979) (“Claimant contends that the light and sedentary
jobs described by the [VE] . . . do not exist in significant
numbers within the region.
We do not think that the approximately
110 jobs testified to by the [VE] constitute an insignificant
25
number.”); Patterson v. Astrue, Civ. Action No. 8:07-1602-HFF-BHH,
2008 WL 294461, at *5 (D.S.C. July 31, 2008) (unpublished) (“[T]he
VE testified that 28,000 surveillance jobs appeared in the national
economy.
This testimony was substantial evidence for the ALJ to
conclude
that
the
surveillance
job
appeared
in
significant
numbers.” (internal citation omitted)).
Accordingly, Plaintiff has not shown reversible error with
respect to the ALJ’s reliance on (and adoption of) the VE’s
testimony as to available jobs.
3. Hypothetical Questions
Next, Plaintiff contends that, “[a]lthough the ALJ found and
concluded that [Plaintiff’s] restrictions and limitations included
‘standing and walking or sitting 6 hours in a workday,’ the ALJ
failed
to
include
these
restrictions
hypothetical questions to the [VE].”
and
limitations
in
his
(Docket Entry 13 at 12; see
also Docket Entry 16 at 2-3.) More specifically, Plaintiff asserts
that the ALJ’s finding that Plaintiff can “stand and walk or sit
for only six hours in an eight-hour workday . . . forc[es] him to
remain off-task for at least 25% of the entire workday.”
Plaintiff
points out
that,
in
one
of the
(Id.)
ALJ’s hypothetical
questions to the VE, the ALJ asked the VE if an individual
“consistently remain[ing] off-task for more than 15 percent of the
workday in addition to regularly scheduled breaks” would eliminate
all competitive work, to which the VE responded: “Yes, your honor.”
26
(Tr. 67.)
Thus, Plaintiff argues that “the [VE’s] own testimony
supports a finding that all competitive work that she identified
would be eliminated in light of these additional restrictions that
the ALJ failed to include in his hypothetical question.”
Entry
13
at
13.)
Plaintiff
additionally
faults
(Docket
the
ALJ’s
dispositive hypothetical question for “fail[ing] to contain any
mention at all of an assumption that the hypothetical individual
would be restricted to sitting for a portion of the workday, nor
did it mention how long or how often the hypothetical individual
would
be
required
to
sit,
nor
did
it
mention
whether
the
hypothetical individual would have to be able to sit at his or her
own
option.”
(Docket
Entry
16
at
2-3
(citing
Tr.
65-66).)
Plaintiff’s contentions fall short.
As discussed in a preceding subsection, despite the ALJ’s
grammatical errors in formulating the RFC, his repeated references
to “medium” work (see Tr. 31, 33, 34), and his crediting of the
state agency consultants’ opinions (see Tr. 34), which found that
Plaintiff could “[s]tand and/or walk (with normal breaks) for a
total of[] [a]bout 6 hours in an 8-hour workday” and “[s]it (with
normal breaks) for a total of[] [a]bout 6 hours in an 8-hour
workday” (Tr. 93, 106 (emphasis added)), make clear that the ALJ
found that Plaintiff could stand and/or walk for up to six hours
and sit for up to six hours in an eight-hour workday.
Thus, no
basis exists for Plaintiff to assert that the ALJ somehow limited
27
Plaintiff to less than an eight-hour workday or found that he would
remain off-task for 25 percent of the workday in addition to
regularly scheduled breaks.
Moreover, to the extent Plaintiff faults the ALJ for failing
to
include
in
the
dispositive
hypothetical
question
specific
details regarding how long and how often Plaintiff could sit and
whether he would need a sit/stand option, Plaintiff’s argument
fails.
By crediting the state agency consultants’ opinions that
Plaintiff could sit (with normal breaks) for up to six hours in an
eight-hour work day (see Tr. 34), the ALJ signaled that he found
Plaintiff capable of performing jobs that require him to sit for
any length of time up to and including six hours.
Furthermore, the
ALJ’s omission of a sit/stand option from the RFC and hypothetical
question(s) does not constitute error, because no medical source of
record opined that Plaintiff required a sit/stand option.13
4. RFC
Lastly, Plaintiff alleges that the ALJ erred in finding that
Plaintiff maintains the “RFC to perform a range of medium work.”
13
In addition, at the hearing before the ALJ, Plaintiff failed to question the
VE about whether the cited jobs would accommodate a sit/stand option, despite the
fact that he had the opportunity (through his attorney) to cross-examine the VE,
including by posing additional hypothetical questions encompassing a sit/stand
option. (See Tr. 68.) As a result, Plaintiff has likely waived, in this Court,
any challenge to the ALJ’s omission of a sit/stand option. See Howard v. Astrue,
330 F. App’x 128, 130 (9th Cir. 2009) (“The only limitation that substantial
evidence arguably supports and that the ALJ failed to include in his hypothetical
questions is depression. However, as noted above, [the plaintiff] waived any
claim he may have had on this issue.
[The plaintiff’s] attorney had two
opportunities to pose his own hypothetical questions to the VE, and he never
mentioned depression as a limitation.”).
28
(Docket Entry 13 at 13 (bold font omitted).)
More particularly,
Plaintiff reiterates his earlier argument in connection with his
first issue on review, that the ALJ did not cite to substantial
evidence to support his determination as to Plaintiff’s lifting
ability.
(Compare id. at 5, with id. at 13-14.)
According to
Plaintiff, the ALJ should have limited Plaintiff to light work,
which
would
have
resulted
in
Medical-Vocational
directing a conclusion of “disabled.”
allegation
warrants
no
relief.
As
(Id. at 14.)
discussed
Rule
202.06
Plaintiff’s
above,
the
ALJ
supported his finding as to Plaintiff’s ability to lift and carry
objects at the medium level of exertion with substantial evidence
and thus Medical-Vocational Rule 202.06 does not apply.
III.
CONCLUSION
Plaintiff has not established an error warranting reversal or
remand.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment Reversing or Modifying the Decision of the Commissioner of
Social Security (Docket Entry 12) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 14) be granted,
and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 9, 2017
29
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