BLUE v. BERRYHILL
Filing
14
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/09/2019, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 10 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be granted, and that judgment be entered dismissing this action. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DERRICK W. BLUE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social
Security,1
Defendant.
1:18CV477
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Derrick W. Blue, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying
(“DIB”).
Plaintiff’s
claim
for
(Docket Entry 1.)
Disability
Insurance
Benefits
Defendant has filed the certified
administrative record (Docket Entry 5 (cited herein as “Tr. __”)),
and both parties have moved for judgment (Docket Entries 10, 12;
see also Docket Entry 11 (Plaintiff’s Memorandum); Docket Entry 13
(Defendant’s Memorandum)).
For the reasons that follow, the Court
should enter judgment for Defendant.
1
The United States Senate confirmed Andrew M. Saul as the Commissioner of
Social Security on June 4, 2019, and he took the oath of office on June 17, 2019.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul
is substituted for Nancy A. Berryhill as the Defendant in this suit. Neither the
Court nor the parties need take any further action 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 initially applied for DIB on March 10, 2011, and,
after denials initially and on reconsideration, Plaintiff did not
pursue that application further.
(See Tr. 107.)
Plaintiff filed
a second application for DIB on December 12, 2011, and, after
denials at the initial and reconsideration stages of review (see
id.), an ALJ issued a decision on February 21, 2014, finding
Plaintiff “not disabled” under the Act (Tr. 79-95).2
On February 4, 2015, Plaintiff filed the instant application
for DIB, alleging a disability onset date of May 21, 2010.
234-35.)
(Tr.
Upon denial of that application initially (Tr. 106-16,
134-37) and on reconsideration (Tr. 117-28, 139-46), Plaintiff
requested a hearing de novo before an Administrative Law Judge
(“ALJ”) (Tr. 147-48).3
expert
(“VE”)
attended
Plaintiff, his attorney, and a vocational
the
hearing.
(Tr.
46-78.)
The
ALJ
subsequently ruled that Plaintiff did not qualify as disabled under
the Act.
(Tr. 5-17).
The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-4, 38-40), thereby making the
ALJ’s ruling the Commissioner’s final decision for purposes of
judicial review.
2
The Appeals Council denied review (Tr. 100-05), and Plaintiff did not
pursue any further appeal (see Tr. 107).
3
At the hearing, Plaintiff amended his onset date to February 22, 2014,
the day after the ALJ’s unfavorable decision on his second claim for DIB. (See
Tr. 8, 49-51.)
2
In
rendering
that
decision,
the
ALJ
made
the
following
findings:
1.
[Plaintiff] last met the insured status requirements
of the . . . Act on December 31, 2014.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from his amended alleged onset
date of February 22, 2014 through his date last insured
of December 31, 2014.
3.
Through the date last insured, [Plaintiff] had the
following severe impairment: ischemic heart disease.
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
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 light
work . . . except he can lift and carry 20 pounds
occasionally and 10 pounds frequently. [Plaintiff] can
sit, stand, and walk six hours in an eight-hour workday.
He can push and pull as much as he can lift and carry.
[Plaintiff] can never climb ladders, ropes, or scaffolds.
He can occasionally balance, stoop, kneel, crouch, and
crawl.
[Plaintiff] can never have exposure to
unprotected heights, occasional exposure to moving
mechanical parts, occasional exposure to vibration, and
moderate exposure to noise.
. . .
6.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.
was
. . .
10. Through the date[] last insured, considering
[Plaintiff’s] age, education, work experience, and
residual functional capacity, there were jobs that
3
existed in significant numbers in the national economy
that [Plaintiff] could have performed.
. . .
11. [Plaintiff] was not under a disability, as defined
in the . . . Act, at any time from February 22, 2014, the
amended alleged onset date, through December 31, 2014,
the date last insured.
(Tr. 10-17 (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 . . . review of [such a] decision . . . is extremely limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Even given
those limitations, the Court should remand this case for further
administrative proceedings.
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).
reviewing
court must
uphold
the
factual
findings
Instead, “a
of
the
ALJ
[underlying the denial of benefits] if they are supported by
substantial evidence and were reached through application of the
correct legal standard.” Hines, 453 F.3d at 561 (internal brackets
and quotation marks omitted).
4
“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, 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 brackets 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 Social Security 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 [Social Security 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).
5
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)).4
§
“To
regularize
the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . promulgated . . . detailed regulations incorporating
longstanding medical-vocational evaluation policies that take into
account
a
claimant’s
age,
education,
and
work
experience
addition to [the claimant’s] medical condition.”
Id.
regulations
process’
establish
a
‘sequential
evaluation
in
“These
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
4
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
‘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 Soc. Sec. Admin., 174 F.3d 473, 475 n.2
(4th Cir. 1999).5
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 179.6
Step four then requires the ALJ to assess
5
“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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
“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 workrelated 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
7
whether, based on that RFC, the claimant can “perform past relevant
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 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 567.7
B.
Assignment of Error
In Plaintiff’s first and only issue on review, he argues that
the ALJ “committed reversible error in failing to give substantial
weight to
the
finding
of
the
Department of
Veterans
Affairs
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
A claimant thus can qualify as disabled 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
[(‘VA’)] that [Plaintiff] had a combined 80[ percent] service[]connected disability and was unemployable.”
6
(bold
font,
capitalization,
(referencing Tr. 257-58).)8
and
(Docket Entry 11 at
single-spacing
omitted)
In particular, Plaintiff maintains
that “[t]he general rule in the Fourth Circuit is that ‘in making
a disability determination, the [ALJ] must give substantial weight
to a VA disability rating,’” but “‘may give less weight . . . when
the
record
deviation
before
is
the
ALJ
clearly
appropriate.’”
demonstrates
(Id.
at
7
that
(quoting
Commissioner, 699 F.3d 337, 343 (4th Cir. 2012)).)
such
Bird
a
v.
According to
Plaintiff, “the ALJ committed reversible error by only assigning
partial weight to the opinion of the VA regarding [Plaintiff’s]
medically disabling impairments rather than substantial weight”
(id.),
because
determination
“the
ALJ’s
consisted
of
reasons
for
legally
statements” (id. at 10 (citing Tr. 14)).
discrediting
insufficient
the
VA’s
conclusory
Plaintiff further argues
that “[t]he ALJ’s error [wa]s compounded by her decision that
[Plaintiff’s] migraines were not severe impairments, and therefore
did not result in any significant workplace impairments.”
(citing Tr. 10-11).)
(Id.
Plaintiff’s contentions fall short.
8
Pin citations to Plaintiff’s filings refer to the page numbers that
appear in the footer appended to those filings upon their docketing in the CM/ECF
system (not to the numbers originally used to paginate those filings).
9
The VA found Plaintiff 60 percent disabled effective on July
23, 2009, but “assigned a permanent 100[ percent] disability
evaluation for [his] service[-]connected []disabilities,” because
the VA found Plaintiff “unemployable.”
1,
2010,
the
VA
increased
(Tr. 258.)
Plaintiff’s
Effective July
combined
disability
percentage to 80 percent (see Tr. 257, 258) and, effective August
21, 2013, increased Plaintiff’s headaches from 30 percent disabling
to 50 percent disabling (see Tr. 258).
The record reflects that
Plaintiff’s service-connected disabling conditions included the
following:
C
arteriosclerotic heart disease - 60 percent
C
migraine headaches - 50 percent
C
hypertensive vascular disease - 10 percent
(Tr. 323.)
In Bird, the Fourth Circuit addressed for the first time the
“weight that the SSA must afford to a VA disability rating.”
699 F.3d at 343.
Bird,
The court observed the similarities between the
evaluation of disability by the VA and the SSA:
[B]oth the VA and Social Security programs serve the same
governmental purpose of providing benefits to persons
unable to work because of a serious disability. “Both
programs evaluate a claimant’s ability to perform fulltime work in the national economy on a sustained and
continuing basis; both focus on analyzing a claimant’s
functional limitations; and both require claimants to
present extensive medical documentation in support of
their claims.”
10
Id. (quoting McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.
2002)) (internal citation omitted).
After
reviewing
the
“varying
degrees
of
evidentiary
significance” other circuits afford VA disability ratings, the
Fourth Circuit held as follows:
The VA rating decision reached in [the plaintiff’s] case
resulted from an evaluation of the same condition and the
same underlying evidence that was relevant to the
decision facing the SSA.
Like the VA, the SSA was
required to undertake a comprehensive evaluation of [the
plaintiff’s] medical condition. Because the purpose and
evaluation methodology of both programs are closely
related, a disability rating by one of the two agencies
is highly relevant to the disability determination of the
other agency. Thus, we hold that, in making a disability
determination, the SSA must give substantial weight to a
VA disability rating. However, because the SSA employs
its own standards for evaluating a claimant’s alleged
disability, and because the effective date of coverage
for a claimant’s disability under the two programs likely
will vary, an ALJ may give less weight to a VA disability
rating when the record before the ALJ clearly
demonstrates that such a deviation is appropriate.
Bird, 699 F.3d at 343 (emphasis added). Following Bird, the Fourth
Circuit
further
demonstrate
the
clarified
“what
an
ALJ
appropriateness
of
a
must
do”
deviation
to
from
clearly
Bird’s
substantial weight standard:
We now conclude, consistent with our sister circuits,
that in order to demonstrate that it is “appropriate” to
accord less than “substantial weight” to a[ ] disability
decision, an ALJ must give “persuasive, specific, valid
reasons for doing so that are supported by the record.”
Woods v. Berryhill, 888 F.3d 686, 692 (4th Cir. 2018) (quoting
McCartey, 298 F.3d at 1076) (emphasis added).
11
In this case, in evaluating the VA’s disability rating, the
ALJ first stated as follows:
The record contains documentation of [Plaintiff’s]
disability rating offered by the [VA]. [Plaintiff] was
found 60 percent disabled by the VA as of July 23, 2009
and 80 percent disabled as of June 9, 2010. However, he
was considered 100 percent disabled because he was
considered unemployable. . . .
Partial weight is
accorded to the document.
However, the evidence and
testimony do not support a finding that [Plaintiff] is
precluded from all work activity or disabled.
Most
significantly, a finding of disability by the VA does not
equate to a finding of disability by the [SSA]. The VA
evaluates
[Plaintiff’s]
impairments
by
providing
percentages to each impairment.
However, the [SSA]
evaluates [Plaintiff] as a whole and determines whether
the severe impairments preclude the performance of his
past relevant work or any other work in the national
economy.
(Tr. 14-15 (emphasis added) (internal citations omitted).)
the
ALJ’s
consideration
of
Plaintiff’s
VA
disability
Here,
rating
ultimately complies with Bird and Woods.
The ALJ’s statement that, “[m]ost significantly, a finding of
disability by the VA does not equate to a finding of disability by
the [SSA],” because “[t]he VA . . . provid[es] percentages to each
impairment[ while ] the [SSA] evaluates [] claimant[s] as a whole”
(Tr. 14-15 (emphasis added)), disregards Bird’s holding to the
contrary that, “[b]ecause the purpose and evaluation methodology of
both programs are closely related, a disability rating by one of
the two agencies is highly relevant to the disability determination
of the other agency,” Bird, 699 F.3d at 343 (emphasis added).
Moreover, in Woods, the Fourth Circuit expressly rejected the ALJ’s
12
rationale
for
discounting
a
state
agency
Medicaid
disability
determination that the agency utilized different standards, noting
that such a “generic explanation, which could apply to every [state
agency Medicaid] decision, [wa]s neither persuasive nor specific.”
Woods, 888 F.3d at 693.
Thus, the difference in methodology
between the VA and the SSA, standing alone, does not permit the
assignment of less than substantial weight to the VA’s disability
rating.
The ALJ, however, also found that “the evidence and testimony
d[id] not support a finding that [Plaintiff] [wa]s precluded from
all work activity or disabled” (Tr. 14 (emphasis added)) and, in
the paragraph immediately following his analysis of the VA’s
disability rating, detailed the record evidence, as well as some of
Plaintiff’s own statements to his medical providers, that weighed
against a finding of disability (and thus contradicted the VA’s
finding of 100 percent disability):
[Plaintiff’s] assertions regarding his restrictions and
limitations are not mirrored in the evidence. The period
at issue addresses a small period, February 22, 2014 to
December 31, 2014.
During the relevant period,
[Plaintiff’s] heart was found to be normal, as evidenced
by numerous cardiac tests. A stress test, performed on
October 9, 2014, was normal, and his left ventricular
ejection fraction was 49 percent. [Plaintiff] repeatedly
denied no [sic] shortness of breath, chest pain,
palpitations, irregular heartbeat, syncope, and edema.
It was noted by [Plaintiff’s] doctor that [Plaintiff]
use[d] a treadmill and c[ould] walk on it for twenty to
thirty minutes per day. The medical evidence does not
establish that [Plaintiff’s] ischemic heart disease is of
a level and severity that would result in debilitating
13
limitations.
[Plaintiff’s] prescribed medication has
been discontinued, and he was considered stable from a
cardiac standpoint, which is strongly supported by
recommendations that he follow up in six to eight months.
Additionally, [Plaintiff] has not required recurrent
inpatient hospitalizations, recurrent emergency room
visits, or surgery. Based on the evidence of record and
the limited window of time, [Plaintiff] is not precluded
from performing any and all work activity.
(Tr. 15 (emphasis added).)
“persuasive,
specific,
That analysis by the ALJ provided
valid
reasons
.
.
.
supported
by
the
record,” Woods, 888 F.3d at 692, for declining to give substantial
weight to the VA’s disability rating.
Plaintiff
also
challenges
the
ALJ’s
“decision
that
[Plaintiff’s] migraines were not severe impairments, and therefore
did not result in any significant workplace impairments.”
Entry 11 at 10 (citing Tr. 10-11).)
VA’s
“50[
regulations
percent]
as
rating
migraines
for
Plaintiff points out that the
migraines
‘[w]ith
(Docket
very
is
defined
frequent
in
the
completely
prostrating and prolonged attacks [productive] of severe economic
inadaptability’” (id. at 11 (quoting 38 C.F.R. § 4.124a (Diagnostic
Code 8100 “Migraine”))), which “means that in the period of time
immediately prior to [Plaintiff’s] amended onset date of [February
22, 2014], the VA had just made a determination that [Plaintiff’s]
migraines had both become more severe and were having a severe
impact on his ability to work” (id.). Plaintiff additionally cites
to record evidence and portions of his testimony that he contends
14
demonstrate that his migraines qualified as a severe impairment.
(Id. at 11-12 (citing Tr. 62, 63, 64, 73, 259, 347, 349, 387).)
Plaintiff misinterprets the Court’s standard of review.
Court must
determine
whether
the
ALJ supported
her
The
step two
severity analysis with substantial evidence, defined as “more than
a mere scintilla of evidence but . . . somewhat less than a
preponderance,” Mastro, 270 F.3d at 176 (brackets and internal
quotation marks omitted), and not whether other record evidence
exists that weighs against the ALJ’s analysis, Lanier v. Colvin,
No. CV414–004, 2015 WL 3622619, at *1 (S.D. Ga. June 9, 2015)
(unpublished) (“The fact that [the p]laintiff disagrees with the
ALJ’s decision, or that there is other evidence in the record that
weighs against the ALJ’s decision, does not mean that the decision
is unsupported by substantial evidence.”).
Furthermore,
the
ALJ
provided
the
following
analysis
to
support her finding that Plaintiff’s migraine headaches failed to
qualify as severe:
[Plaintiff’s] . . . migraine[s] . . . are not [a] severe
impairment[]. . . .
During a neurology consult for
headaches on December 11, 2014, [Plaintiff] was noted to
be using Tylenol 3 for headaches, taking one tablet when
he had a headache. He was off Topamax and refused Botox
injections. Moreover, he indicated that he felt great
and did not have headaches very often. Months later, in
April of 2015, [Plaintiff] reported that his migraine
medication was not effective. However, his medication
was not changed, and he declined other forms of
treatment.
. . .
15
A review of the medical evidence reflects that
[Plaintiff] has not required frequent medication changes
or hospitalization for [his migraines]. [Plaintiff] has
not sought ongoing specialized treatment. Rather, the
medical record indicates that when treated, his . . .
migraine[s] . . . are controlled with use of his
prescribed
medications.
Most
significantly,
[Plaintiff’s] treatment records are devoid of evidence
that [his migraines] impose significant limitations on
his ability to perform work related activities; thus,
they are not [a] severe impairment[].
(Tr. 11 (internal citations omitted).)
Notably, Plaintiff has not
challenged the accuracy of any of the facts on which the ALJ relied
in making her non-severity finding.
12.)
That analysis suffices.
(See Docket Entry 11 at 10-
See 20 C.F.R. § 404.1522 (“An
impairment . . . is not severe if it does not significantly limit
your physical or mental ability to do basic work activities.”); see
also Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007) (“Severity
is not an onerous requirement for the claimant to meet, but it is
also
not
a
toothless
standard
.
.
the
erred
.
.”
(internal
citation
omitted)).
Finally,
even
if
ALJ
by
finding
Plaintiff’s
migraines non-severe, Plaintiff has failed to show how that error
prejudiced him. See generally Fisher v. Bowen, 869 F.2d 1055, 1057
(7th Cir. 1989) (observing that “[n]o principle of administrative
law or common sense requires us to remand a case in quest of a
perfect opinion unless there is reason to believe that the remand
might lead to a different result”).
The state agency medical
consultant at the reconsideration level of review expressly limited
16
Plaintiff to light work and included postural and environmental
restrictions in the RFC due (in part) to his migraines.
123-24.)
(See Tr.
The ALJ accorded “[g]reat weight” to the consultant’s
opinions (Tr. 14) and similarly limited Plaintiff to light work
with postural and environmental restrictions in the RFC (see Tr.
12).
In other words, the ALJ included restrictions in the RFC to
account for Plaintiff’s migraines, whether severe or not.
Lastly,
Plaintiff
points
out
that,
had
the
ALJ
limited
Plaintiff to sedentary work, Rule 201.14 of the Medical-Vocational
Guidelines (“Grids”) would have deemed him disabled.
(See Docket
Entry 11 at 13-14 (citing 20 C.F.R. Pt. 404, Subpt. P, App’x 2,
§ 201.14).)9
Plaintiff, however, provides no supporting argument
for why finding his migraine headaches severe would have compelled
the ALJ to restrict Plaintiff to sedentary work.
See Hughes v.
Astrue, No. 1:09CV459, 2011 WL 4459097, at *10 (W.D.N.C. Sept. 26,
2011) (unpublished) (holding that step two severity finding “is not
proof that the same limitations have the greater significant and
9
“The Grids 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 h[er] 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 [table or] 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).
17
specific
nature
required
to
gain
their
inclusion
in
an
RFC
assessment”).
In sum, the ALJ provided “persuasive, specific, valid reasons
for [declining to give substantial weight to the VA’s disability
rating] that are supported by the record,” Woods, 888 F.3d at 692,
and properly found Plaintiff’s migraines non-severe.
III. CONCLUSION
Plaintiff has not established grounds for relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on
the
Pleadings
(Docket
Entry
10)
be
denied,
that
Defendant’s Motion for Judgment on the Pleadings (Docket Entry 12)
be granted, and that judgment be entered dismissing this action.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 9, 2019
18
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