Forbes v. Colvin
Filing
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ORDER denying 12 Plaintiff's Motion for Summary Judgment; granting 14 Defendant's Motion for Summary Judgment. The final decision of the Commissioner is AFFIRMED. Signed by District Judge Richard Voorhees on 03/03/17. (emw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL ACTION NO. 1:15-CV-280
REBECCA S. FORBES,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,1
Defendant.
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ORDER
THIS MATTER IS BEFORE THE COURT on Plaintiff’s Motion for Summary
Judgment [Doc. 12] and Defendant’s Motion for Summary Judgment [Doc. 14]. Because the
parties’ filings have been fully briefed and are currently pending, this matter is now ripe for
disposition.
For the reasons that follow, the Plaintiff’s Motion for Summary Judgment is DENIED, the
Defendant’s Motion for Summary Judgment is GRANTED, and the decision of the Commissioner
is AFFIRMED.
I.
BACKGROUND
On December 2, 2011, Plaintiff filed an application for disability insurance benefits
(“DIB”) [Tr. 216–218] and Supplemental Security Income (“SSI”) [Tr. 191–197] under Titles II
and XVI of the Social Security Act, 42 U.S.C. § 405, et seq., alleging an onset date of disability
of January 15, 2011. The Commissioner of Social Security (the “Commissioner” or “Defendant”)
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Nancy A. Berryhill became Acting Commissioner of Social Security on January 23, 2017. The Clerk is directed to
substitute Nancy A. Berryhill for Carolyn W. Colvin as the Defendant in this matter. See Fed. R. Civ. P. 25(d); see
also 42 U.S.C. § 405(g) (“Any action instituted in accordance with this subsection shall survive notwithstanding any
change in the person occupying the office of Commissioner of Social Security or any vacancy in such office.”).
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first denied Plaintiff’s application on June 26, 2012 [Tr. 154–162], and upon reconsideration on
October 9, 2012 [Tr. 168–185]. On November 8, 2012, Plaintiff timely filed a written request for
a hearing. [Tr. 186–187].
On January 15, 2014, Plaintiff appeared in Hendersonville, North Carolina and testified at
a video hearing before Administrative Law Judge John S. Lamb (“ALJ”), who presided over the
hearing from Greenville, South Carolina. [Tr. 19–30; 188]. On March 14, 2014, the ALJ issued a
decision denying Plaintiff’s claim. [Tr. 16–30]. On April 1, 2014, Plaintiff filed a request for
review of the ALJ’s decision [Tr. 14–15], which was denied by the Appeals Council on June 18,
2015 [Tr. 8–10]. On December 14, 2015, Plaintiff’s Complaint seeking a reversal of the ALJ’s
determination was filed in this Court. [Doc. 1]. Plaintiff’s Motion for Summary Judgment
(“Plaintiff’s Motion”) and accompanying brief in support of Plaintiff’s Motion were filed on May
31, 2016. [Doc. 12]. Defendant’s Motion for Summary Judgment (“Defendant’s Motion) [Doc.
14] and accompanying brief in support of Defendant’s Motion [Doc. 15] were filed on August 29,
2015.
II.
DISCUSSION
A.
Standard of Review
Pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g) and § 1383(c)(3), this
Court’s review of a final decision of the Commissioner is limited to determining: (1) whether
substantial evidence supports the Commissioner’s decision, Richardson v. Perales, 402 U.S. 389,
390, 401 (1971), and (2) whether the Commissioner applied the correct legal standards. 42 U.S.C.
§ 405(g); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “The findings of the
Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . .”
42 U.S.C. § 405(g). Thus, if this Court finds that the Commissioner applied the correct legal
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standards and that her decision is supported by substantial evidence, the Commissioner’s
determination may not be overturned.
While substantial evidence is not a “large or considerable amount of evidence,” Pierce v.
Underwood, 487 U.S. 552, 565 (1988), it is “more than a scintilla and must do more than create a
suspicion of the existence of a fact to be established.” Smith v. Heckler, 782 F.2d 1176, 1179 (4th
Cir. 1986) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Indeed, “[i]t means such
relevant evidence that a reasonable mind would accept as adequate to support a conclusion.” Smith,
782 F.2d at 1179; Rhyne, 2010 U.S. Dist. LEXIS 142595, at *7-9. Critically, “the substantial
evidence standard ‘presupposes . . . a zone of choice within which the decisionmakers can go either
way, without interference by the courts. An administrative decision is not subject to reversal
merely because substantial evidence would have supported an opposite decision.’” Dunn v. Colvin,
607 F. App’x 264, 266 (4th Cir. 2015). The standard is met by “less than a preponderance” of the
evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
“In reviewing for substantial evidence, [a court must not] undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute [its] judgment for that of the
[Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). Consequently, as long as
the judgment is explained and supported by substantial evidence, this Court must accept the
Commissioner’s decision, even if this Court would reach an opposite conclusion or weigh the
evidence differently if it were conducting a de novo review of the record. See Hays, supra, at 1456;
Rhyne, 2010 U.S. Dist. LEXIS 142595, *9.
Therefore, the issue before this Court is not whether Plaintiff is disabled, but whether the
Commissioner’s finding that he is not disabled is explained and supported by substantial evidence,
and that such decision was reached based upon a correct application of the relevant law.
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B.
Five-Step Sequential Analysis
The Social Security Administration (the “SSA”) has defined disability as “the inability to
do any substantial gainful activity by reason of any medically determinable physical or mental
impairment” which is expected to last for a period of at least 12 months. See 20 C.F.R. §
404.1505(a). To facilitate uniform and efficient processing of disability claims, federal regulations
have reduced the statutory definition of disability to a series of five sequential questions. See, e.g.,
Heckler v. Campbell, 461 U.S. 458, 461 n.2 (1983) (noting a “need for efficiency” in considering
disability claims). If at any step in the sequential evaluation the ALJ can find an individual is
disabled or not disabled, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a);
Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
To that end, federal law requires that an ALJ evaluate a claimant’s application for disability
benefits by considering whether (1) the claimant is engaged in substantial gainful activity; (2) the
claimant has a severe impairment; (3) the impairment meets or equals an impairment included in
the Administration’s Official Listings of Impairments found at 20 C.F.R. Part 404, Subpart P,
Appendix 1 (the “Listings”); (4) the impairment prevents the claimant from performing past
relevant work; and (5) the impairment prevents the claimant from having substantial gainful
employment (i.e., from performing “other work”). 20 C.F.R. §§ 404.1520, 416.920. Through the
fourth step, the burden of production and proof is on the claimant. Grant v. Schweiker, 699 F.2d
189, 191 (4th Cir. 1983). The claimant must prove disability on or before the last day of his insured
status to receive disability benefits. Everett v. Sec’y of Health, Educ. & Welfare, 412 F.2d 842,
843 (4th Cir. 1969). If the inquiry reaches step-five, the burden of production shifts to the
Commissioner to produce evidence that other jobs exist in the national economy that the claimant
can perform, considering the claimant's age, education, work experience, and residual functional
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capacity. Grant, 699 F.2d at 191. Here, the ALJ determined at the fifth step that Plaintiff was not
disabled. [Tr. 42–43]. At the fifth step, the ALJ found that, based on the testimony of the vocational
expert and “considering the claimant’s age, education, work experience, and residual functional
capacity,” jobs exist in significant numbers in the national economy that Plaintiff could perform.
[Tr. 29].
C.
Weight Assigned to Treating Physicians’ Evidence
“A necessary predicate to engaging in substantial evidence review is a record of the basis
for the ALJ’s ruling.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Social Security
regulations require an ALJ to “evaluate every medical opinion” regardless of its source. 20 C.F.R.
§§ 404.1527(c), 416.927(c). If a treating physician’s opinion on the nature and severity of a
claimant’s impairments is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence” in the record, the
ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Mastro, 270
F.3d at 178. The ALJ may discount a treating physician’s opinion if it is unsupported or
inconsistent with other evidence, Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996), but the ALJ
must nevertheless assign a weight to the medical opinion. See 20 C.F.R. §§ 404.1527(c),
416.927(c).
In discounting the opinions of a treating source, the ALJ must give “good reasons” for
doing so. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The ALJ’s explanation of these “good
reasons” “must contain specific reasons for the weight given to the treating source’s medical
opinion, supported by the evidence in the case record, and must be sufficiently specific to make
clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.” S.S.R. 96-2P, 1996 WL 374188, at *5 (July 2, 1996).
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However, where a treating physician has merely made conclusory statements, the ALJ may afford
the opinion such weight as is supported by clinical or laboratory findings and other consistent
evidence of a claimant’s impairments. See Craig, 76 F.3d at 590 (holding there was sufficient
evidence for the ALJ to reject the treating physician’s conclusory opinion where the record
contained contradictory evidence). Further, a treating source’s opinion that rests predominately
upon a claimant’s subjective complaints is of discounted probative value. See S.S.R. 96-7p, 1996
SSR LEXIS 4; accord Morris v. Barnhart, 78 F. App’x 820, 824-25 (3d Cir. 2003) (“[T]he mere
memorialization of a claimant’s subjective statements in a medical report does not elevate those
statements to a medical opinion.” (citing Craig, 76 F.3d at 590 n.2)).
D.
Analysis
1.
ALJ’s Step Three finding
In her brief, Plaintiff first argues that the ALJ erred in his step three finding that Plaintiff’s
condition does not meeting all of the criteria in Listing 1.04A. [Doc. 12-1] at 4. Plaintiff argues
that the record includes evidence of a “moderate disc bulge at L4-5,” “positive straight leg raising,”
“radiculopathy,” “lower limb pain, weakness, tingling, numbness and falls,” “narrow based gait,”
and “limited motion (‘hip flexion limitation’).” [Doc. 12-1] at 4 (citing Tr. 365-366 and 545).
Plaintiff also asserts that the record includes evidence of “reflex loss and reduced strength . . . in
[her] ankle” and “motor loss . . . in her gait instability.” Id. at 4–5 (citing Tr. 362, 368, and 370).
Plaintiff further asserts that “the ALJ omitted consideration of the Plaintiff’s facet arthropathy and
congenital spine disorder at Steps two and three,” and failed to appropriately evaluate Plaintiff’s
obesity at step three. Id. at 5. Defendant argues that the “record supports the ALJ’s finding that
Ms. Forbes did not prove she has the motor loss necessary to meet the Listing requirement.” [Doc.
15] at 5. Defendant then asserts that “even if [Defendant] had made that showing, she still does
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not meet the Listing because she cannot show, as she must, that spinal stenosis in her lower back
resulted in impingement of the spinal cord or of a nerve root.” Id. Additionally, Defendant argues
that it was not necessary for the ALJ to specifically include “facet arthropathy and congenital spine
disorders” among Plaintiff’s severe impairments because “neither impairment caused symptoms
or limitations other than those the ALJ already identified.” [Doc. 15] at 8. Defendant asserts that
even if the ALJ should have specifically identified “facet arthropathy and congenital spine
disorders,” any error was harmless because “ALJ discussed limitations arising from those
impairments when he analyzed [Plaintiff’s] residual functional capacity.” Id. at 9.
In step three, the ALJ must determine whether “the claimant’s impairment matches or is
‘equal’ to one of the listed impairments.” Sullivan v. Zebley, 593 U.S. 521, 525 (1990) (quoting
20 C.F.R. § 416.920(a)(4)(iii)). “Each impairment is defined in terms of several specific medical
signs, symptoms, or laboratory test results. For a claimant to show that his impairment matches a
listing, it must meet all of the specified medical criteria. An impairment that manifests only some
of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530
(1990). Listing 1.04 states the following:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower back, positive straight-leg raising test
(sitting and supine)[.]
The ALJ cites evidence that multiple medical evaluations in the record indicate that
Plaintiff has “normal neurological examinations,” “full muscle strength,” “equal reflexes,”
“normal abilities to squat and rise,” “normal range of motion of the back,” “normal gait,”
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and “normal extremities.” [Tr. 23] (citing Tr. 540–545; 637–663). In his step three
analysis, the ALJ states, “[t]he medical evidence of record did not indicate the presence of
motor loss accompanied by sensory or reflex loss or of positive straight leg raising, spinal
arachnoiditis or pseudoclaudication and inability to ambulate effectively as required to
meet Listing 1.04.” [Tr. 24].
Additionally, remand is not required for Defendant’s alleged failure to consider
Plaintiff’s “facet arthropathy and congenital spine disorders” at steps two and three. “[A]n
ALJ’s failure to find a particular impairment ‘severe,’ is harmless if he or she finds other
impairment(s) severe, and considers the omitted impairment(s) at subsequent steps.”
Roberts v. Colvin, No. 1:13CV63, 2014 WL 3529780, at *2 (W.D.N.C. July 15, 2014)
(citing Keever v. Astrue, No. 11-148, 2012 WL 2458376 at *7 (W.D.N.C. June 1, 2012)).
Here, the ALJ discussed Plaintiff’s limitations arising from her back impairments at later
steps. See [Tr. 26–28]. The Court finds that the ALJ’s determination was explained and
supported by substantial evidence in the record.
2.
ALJ’s analysis of obesity
Plaintiff argues that the ALJ failed to properly evaluate her obesity in combination
with other severe impairments. Plaintiff asserts that the “ALJ did not provide an
individualized assessment, but merely provided boilerplate reference to the impact that
obesity ‘may’ have, and then he made reference to a few mentions of obesity in the record.”
[Doc. 12-1] at 5 (citing [Tr. 24]). Defendant argues that the plain language of the ALJ’s
decision indicates that the “ALJ identified several factors relating to obesity that he
considered in evaluating Ms. Forbes’ impairments under the Listings.” [Doc. 15] at 10; see
also [Tr. 24].
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The Court finds that the ALJ’s explicit reference to his evaluation of Plaintiff’s
obesity, “even though no treating or examining medical source has specifically attributed
additional or cumulative limitations to [Plaintiff’s] obesity,” sufficiently satisfies the step
three evaluation requirements. [Tr. 24]. Additionally, the ALJ’s reference to Plaintiff’s
obesity and her difficulty losing weight in his RFC analysis indicates that obesity was
sufficiently considered. [Tr. 26]. This finding is supported in the record, where medical
opinion evidence referenced Plaintiff’s obesity, but did not attribute specific limitations to
it. [Tr. 116 and 545]. Also, evidence in the record does not support Plaintiff’s subjective
statements regarding her symptoms, and the ALJ properly refused to adopt her statements.
The Court finds that the ALJ’s determination was sufficiently explained and supported by
substantial evidence in the record.
3.
ALJ analysis of Plaintiff’s subjective symptoms
Plaintiff argues that the ALJ found her subjective allegations “not fully credible
because they were ‘not supported by the objective medical evidence of record.’” [Doc. 121] at 8 (quoting [T. 27]). Plaintiff asserts that “[w]hile the ALJ must consider objective
evidence, he cannot require that the Plaintiff be ‘fully credible’ based on it alone,” and that
“[s]ubjective complaints must be addressed under the pain standard.” Id. (citing Hines v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002)). Defendant argues that the “ALJ evaluated
[Plaintiff’s] subjective allegations in accordance with the applicable law and substantial
evidence supports his conclusions,” and that “the plain language of the ALJ’s decision
makes clear that the decision was based not on any single fact, but on the record as a
whole.” [Doc. 15] at 13–14.
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The Court finds that the ALJ appropriately analyzed Plaintiff’s subjective
symptoms. “[S]ubjective claims of pain must be supported by objective medical evidence
showing the existence of a medical impairment which could reasonably be expected to
produce the actual pain, in the amount and degree, alleged by the claimant.” Craig v.
Chater, 76 F.3d 585, 591 (4th Cir. 1996). The ALJ states that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible.” [Tr. 27]. The ALJ provides several examples of inconsistencies between
Plaintiff’s subjective symptoms and objective medical evidence. For example, the ALJ
explains that Plaintiff “alleges that she experiences constant back and right leg pain that is
a 7–9 on a 10-point pain scale and prevents her from working. However, the medical
evidence of record reveals that treatment for [Plaintiff’s] back pain has been relatively
sparse and has consisted of primarily conservative medication management . . .” Id. The
ALJ further explains that “[t]hough these inconsistencies reflect negatively on [Plaintiff’s]
credibility, the undersigned has given the claimant’s assertions all due consideration and
has addressed her limitations in [Plaintiff’s RFC].” Id. Given the substantial evidence
supporting the ALJ’s determination, remand is not required.
4.
ALJ’s analysis of Plaintiff’s functional limitations
Plaintiff argues that the ALJ failed to account for a moderate limitation in
concentration, persistence, or pace, the need for a hand-held assistive device, and a limit to
working around moving machinery. [Doc. 12-1] at 10–12. Specifically, Plaintiff argues
that “the ALJ’s RFC finding did not account for [limitations related to concentration,
persistence, or pace] or indicate how [ ] Plaintiff would be able to stay on task.” Id. at 11.
Plaintiff also argues that the ALJ did not explain his reason for excluding some of Dr.
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Annie Jackson’s limitations related to moving machinery and need for a cane “to get up
and down on an intermittent basis on ‘bad days.’” Id. at 11–12 (citing Tr. 543). Defendant
argues that “[t]he record does not support any additional limitation to accommodate
[Plaintiff’s] ability to stay on task—as the ALJ pointed out in his decision, [Plaintiff’s]
concentration was consistently and grossly normal on examination,” and refutes Plaintiff’s
other allegations. [Doc. 15] at 19 (citing Tr. 27).
The record supports Defendant’s assertion that Plaintiff’s “concentration was
consistently and grossly normal on examination.” See [Tr. 526–527, 535, 537, 580, 584–
585, 589–590, 594–595]. As explained in Mascio v. Colvin, “the ALJ may find that the
concentration, persistence, or pace limitation does not affect [claimaint’s] ability to work,
in which case it would have been appropriate to exclude it from the hypothetical tendered
to the vocational expert.” 780 F.3d 632, 638 (4th Cir. 2015). The Court finds that the ALJ
sufficiently cited evidence of Plaintiff’s “good concentration, [ ] normal mood and affect,
and good insight and judgment.” [Tr. 21] (citing [Tr. 540–545, 296–360, 574–636]).
Additionally, the ALJ cites the State agency physicians’ findings that “[w]hile [Plaintiff]
will likely have difficulty concentrating and completing a workday without interruptions
from psychologically based symptoms at times, she does appear capable of maintaining
concentration, persistence and pace while performing simple tasks.” [Tr. 27, 134]
(emphasis added).
The Court rejects Plaintiff’s allegation that the ALJ excluded Dr. Jackson’s
limitation for work involving moving machinery. As Defendant points out, the RFC finding
includes a statement that Plaintiff cannot tolerate any job requiring “concentrated exposure
to hazards.” [Tr. 26]. In this context, “hazard” includes, among other things, “moving
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mechanical parts of equipment, tools, or machinery.” SSR 96-9p, 1996 WL 374185, at *9
(1996). As a result, the ALJ did not exclude Dr. Jackson’s limitations. Lastly, the Court
does not find merit in Plaintiff’s allegation that the ALJ improperly excluded Dr. Jackson’s
statement that Plaintiff needs a cane “only to get up and down . . . on an intermittent basis
on ‘bad days.’” [Tr. 543]. Despite this finding, Dr. Jackson found no limitation in Plaintiff’s
ability to sit, stand, or walk. Id. “[R]emand would prove futile in cases where the ALJ does
not discuss functions that are ‘irrelevant or uncontested.’” Mascio, 780 F.3d at 636. Here,
Dr. Jackson’s report states that Plaintiff needs a cane only intermittently on “bad days” to
get up and down, appears to be irrelevant given Dr. Jackson’s other findings. Ultimately,
the Court finds that the ALJ’s determination was sufficiently explained and supported by
substantial evidence in the record.
IT IS, THEREFORE, ORDERED THAT
(1) The Plaintiff’s Motion for Summary Judgment [Doc. 12] is DENIED;
(2) The Defendant’s Motion for Summary Judgment [Doc. 14] is GRANTED;
(3) The final decision of the Commissioner is AFFIRMED; and
(4) Judgment shall be entered by the Clerk accordingly and this case shall be administratively
terminated.
Signed: March 3, 2017
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