Gouge v. Colvin

Filing 16

MEMORANDUM OF DECISION AND ORDER denying Pltf's 11 Motion for Summary Judgment; granting Deft's 13 Motion for Summary Judgment; affirming decision of the Commissioner; and dismissing this case. Signed by District Judge Martin Reidinger on 9/11/2017. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00076-MR

KEVIN GERALD GOUGE,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Plaintiff’s Motion for
Summary Judgment [Doc. 11] and the Defendant’s Motion for Summary
Judgment [Doc. 13].
I.

PROCEDURAL HISTORY
The Plaintiff Kevin Gerald Gouge filed an application for a period of

disability and disability insurance benefits on March 2, 2013, alleging an
onset date of August 21, 2012. [Transcript (“T.”) 121-23]. The Plaintiff’s
claim was denied initially and on reconsideration. [T. 44-71, 72-75]. Upon
the Plaintiff’s request, a hearing was held on July 2, 2014, before
Administrative Law Judge Sherman D. Schwartzberg (“ALJ Schwartzberg”).
[T. 24-43, 76-77]. The Plaintiff testified at this hearing, as did a vocational

expert (“VE”). On September 3, 2014, ALJ Schwartzberg issued a decision
denying the Plaintiff benefits. [T. 7-19]. The Appeals Council denied the
Plaintiff’s request for review, thereby making the ALJ’s decision the final
decision of the Commissioner. [T. 1-4]. The Plaintiff has exhausted all
available administrative remedies, and this case is now ripe for review
pursuant to 42 U.S.C. § 405(g).
II.

STANDARD OF REVIEW
The Court’s review of a final decision of the Commissioner is limited to

(1) whether substantial evidence supports the Commissioner’s decision, see
Richardson v. Perales, 402 U.S. 389, 401 (1971), and (2) whether the
Commissioner applied the correct legal standards, Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). The Court does not review a final decision
of the Commissioner de novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th
Cir. 1986).
The Social Security Act provides that “[t]he findings of the
Commissioner of any Social Security as to any fact, if supported by
substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). The
Fourth Circuit has defined “substantial evidence” as “more than a scintilla
and [doing] more than creat[ing] a suspicion of the existence of a fact to be
established. It means such relevant evidence as a reasonable mind might
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accept as adequate to support a conclusion.” Smith v. Heckler, 782 F.2d
1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).
The Court may not re-weigh the evidence or substitute its own
judgment for that of the Commissioner, even if it disagrees with the
Commissioner’s decision, so long as there is substantial evidence in the
record to support the final decision below. Hays, 907 F.2d at 1456; Lester v.
Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
III.

THE SEQUENTIAL EVALUATION PROCESS
In determining whether or not a claimant is disabled, the ALJ follows a

five-step sequential process.

20 C.F.R. §§ 404.1520, 416.920.

If the

claimant’s case fails at any step, the ALJ does not go any further and benefits
are denied. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
First, if the claimant is engaged in substantial gainful activity, the
application is denied regardless of the medical condition, age, education, or
work experience of the applicant. 20 C.F.R. §§ 404.1520, 416.920. Second,
the claimant must show a severe impairment. If the claimant does not show
any impairment or combination thereof which significantly limits the
claimant’s physical or mental ability to perform work activities, then no severe
impairment is shown and the claimant is not disabled. Id. Third, if the
impairment meets or equals one of the listed impairments of Appendix 1,
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Subpart P, Regulation 4, the claimant is disabled regardless of age,
education or work experience. Id. Fourth, if the impairment does not meet
the criteria above but is still a severe impairment, then the ALJ reviews the
claimant’s residual functional capacity (RFC) and the physical and mental
demands of work done in the past. If the claimant can still perform that work,
then a finding of not disabled is mandated. Id. Fifth, if the claimant has a
severe impairment but cannot perform past relevant work, then the ALJ will
consider whether the applicant’s residual functional capacity, age, education,
and past work experience enable the performance of other work. If so, then
the claimant is not disabled. Id. In this case, the ALJ’s determination was
made at the fifth step.
IV.

THE ALJ’S DECISION
In denying the Plaintiff’s claim, the ALJ found that the Plaintiff meets

the insured status requirements of the Social Security Act through December
31, 2016, and that he has not engaged in substantial gainful activity since
the alleged onset date of August 21, 2012. [T. 12]. The ALJ then found that
the medical evidence established that the Plaintiff has the following severe
impairments: fibromyalgia, degenerative disc disease, degenerative joint
disease of the left wrist, and obesity. [T. 12-13]. The ALJ specifically found
that the Plaintiff’s other claimed conditions, including rheumatoid arthritis,
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anxiety, and depression, did not result in any significant functional limitations
and were therefore not severe impairments. [Id.]. The ALJ determined that
none of Plaintiff’s impairments, either singly or in combination, met or
equaled a listing. [T. 13]. The ALJ then assessed the Plaintiff’s residual
functional capacity (RFC) [T. 13-17], finding as follows:
[T]he [Plaintiff] has the residual functional capacity to
perform simple, routine, repetitive work at the light
level of exertion . . . which includes occasional
postural limitations, no climbing ladders, ropes, or
scaffolds, occasional overhead reaching with the left
upper extremity, avoid concentrated exposure to
hazards and vibrations, and allows for a sit/stand
option at will.
[T. 13]. Based on this RFC, the ALJ then determined that the Plaintiff could
not perform any of his past relevant work as a machine fixer or as a worker
in the carpet industry. [T. 17]. Considering the Plaintiff’s age, education,
work experience, and RFC, the ALJ further concluded that there are jobs that
exist in significant numbers in the national economy that the Plaintiff can
perform. [T. 17-18]. The ALJ therefore concluded that the Plaintiff was not
“disabled” as defined by the Social Security Act from the alleged onset date
through the date of the ALJ’s decision. [T. 18].

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V.

DISCUSSION1
The Plaintiff asserts as his sole assignment of error that the ALJ

“committed error to the prejudice of the Plaintiff in his evaluation of the
vocational expert’s testimony.” [Doc. 12 at 7].
After asserting this sole assignment of error, the Plaintiff then goes on
to argue, without any meaningful explanation, that the ALJ’s “evaluation of
the vocational expert’s testimony is in the heartland of the errors described
by the U.S. Court of Appeals in Mascio v. Colvin, 780 F.3d 632 (4th Cir.
2015).” [Id. at 10]. The Plaintiff then appears to argue that the ALJ erred in
failing to incorporate into the RFC both mental and physical limitations
resulting from the Plaintiff’s fibromyalgia, anxiety, and depression. [Id. at 1213].
Members of the Social Security bar, including the Plaintiff’s counsel,
have been warned repeatedly that this Court will consider only those legal
arguments properly set forth in a separate assignment of error. See, e.g.,
Sanders v. Berryhill, No. 1:16cv236, 2017 WL 3083730, at *3 (W.D.N.C.
June 12, 2017) (Howell, Mag. J.), adopted by, 2017 WL 3083261 (W.D.N.C.
July 19, 2017); Mason v. Berryhill, No. 1:16cv148, 2017 WL 2664211, at *4

1

Rather than set forth the relevant facts in a separate section, the Court has incorporated
the relevant facts into its legal analysis.
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(W.D.N.C. May 30, 2017) (Howell, Mag. J.), adopted by, 2017 WL 2662987
(W.D.N.C. June 20, 2017); Demag v. Berryhill, No. 1:15-CV-00229-MR,
2017 WL 927258, at *5 n.5 (W.D.N.C. Mar. 8, 2017) (Reidinger, J.); Woods
v. Colvin, No. 1:16cv58, 2017 WL 1196467, at *4 n.2 (W.D.N.C. Feb. 8,
2017) (Howell, Mag. J.) (collecting cases), adopted by, 2017 WL 1190920
(W.D.N.C. Mar. 29, 2017); Armstrong v. Colvin, No. 5:15cv110, 2016 WL
7200058, at *3 n.2 (W.D.N.C. Sept. 2, 2016) (Howell, Mag. J.), adopted by,
2016 WL 6652455 (W.D.N.C. Nov. 9, 2016); McClellan v. Astrue, No. 1:12CV-00255-MR-DLH, 2013 WL 5786839, at *3 n.2 (W.D.N.C. Oct. 28, 2013)
(Reidinger, J.) (adopting Memorandum and Recommendation of Howell,
Mag. J.). Accordingly, to the extent that the Plaintiff attempts to weave any
other legal arguments or errors into his sole assignment of error, the Court
disregards those arguments.2

2

Even if the Plaintiff had properly presented these arguments as separate assignments
of error, the Court would still conclude that remand is not warranted. First, the Court finds
upon review of the record that there is substantial evidence to support the ALJ’s
determination at step two of the sequential evaluation that the Plaintiff’s depression and
anxiety did not result in any significant functional limitations and therefore were not severe
impairments. Second, there is substantial evidence in the record to the support the ALJ’s
determination that the physical limitations resulting from the Plaintiff’s fibromyalgia were
adequately addressed by the limitations set forth in the RFC.
Further, the Plaintiff’s argument based on Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015),
is completely off the mark. In Mascio, the Fourth Circuit held that “an ALJ does not
account for a claimant’s limitations in concentration, persistence, and pace by restricting
the hypothetical question to simple, routine tasks or unskilled work.” Id. at 638 (citation
and internal quotation marks omitted). Here, however, the ALJ included a limitation to
simple, routine, repetitive work based on the Plaintiff’s complaint of pain, not because of
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In questioning a VE, an ALJ must pose hypothetical questions that are
based upon a consideration of all relevant evidence of record regarding the
claimant’s impairment. See Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir.
2005); English v. Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993).
Here, the ALJ presented the following hypothetical to the VE:
Let’s assume for the sake of this first hypothetical
that we have basically the same person, same age,
same education level, same work experience. Let’s
assume this person could do light work, occasional
posturals, no ropes, ladders, scaffolds, overhead
reaching occasional with the left upper extremity,
avoid concentrated exposure to hazards, and
concentrated exposure to vibrations, limited to
simple, routine, repetitive work. Would there be jobs?
[T. 40]. The VE responded in the affirmative, indicating that the following
jobs would be available: office mail clerk (3,800 jobs in North Carolina and
at least 137,000 jobs in the United States economy); information clerk (7,300
jobs in North Carolina and at least 500,000 jobs in the United States
economy); and cloth folder (2,900 jobs in North Carolina and at least 250,000
jobs in the United States economy). [T. 40-41].
The ALJ then posed a hypothetical with the same limitations but at the
sedentary exertional level.

The VE again responded in the affirmative,

any limitations in concentration, persistence or pace. [T. 16]. In fact, the ALJ found that
the Plaintiff had no severe mental impairments [T. 13], a finding which is supported by
substantial evidence in the record. As such, Mascio is simply not applicable to this case.
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indicating that the following jobs would be available: telephone information
clerk (4,300 jobs in North Carolina and at least 150,000 jobs in the United
States economy); order clerk (3,300 jobs in North Carolina and at least
160,000 jobs in the United States economy); and weaver/defect clerk (2,300
jobs in North Carolina and at least 125,000 jobs in the United States
economy).

[T. 41].

In his third hypothetical, the ALJ posed the same

hypothetical as the first, with the additional limitation of requiring a sit/stand
option at will. The ALJ replied that there would be the same type and number
of jobs as identified in response to the first hypothetical. [T. 41-42].
The third hypothetical posed by the ALJ properly sets forth each of the
limitations identified by the ALJ in the RFC. The VE in turn responded that
there were still jobs in substantial numbers both in the regional and national
economy that a person with those limitations could perform. The Plaintiff has
not identified any specific limitation that is supported by the record but that
was not addressed in the RFC. Further, the Plaintiff does not contend that
the VE’s testimony in response to the ALJ’s hypothetical was in any way
erroneous. For these reasons, the Court concludes that the ALJ did not err
in his evaluation of the VE’s testimony.
ORDER

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Accordingly, IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion
for Summary Judgment [Doc. 11] is DENIED; the Defendant’s Motion for
Summary Judgment [Doc. 13] is GRANTED; the decision of the
Commissioner is AFFIRMED; and this case is hereby DISMISSED.
judgment shall be entered contemporaneously herewith.
IT IS SO ORDERED.

Signed: September 11, 2017

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A