Griffey v. Colvin

Filing 9

ORDER affirming the decision of the Commissioner, denying the relief sought by plaintiff; denying 6 plaintiff's Motion for Summary Judgment; granting 7 the Commissioner's Motion for Summary Judgment; and this action is DISMISSED. Signed by District Judge Max O. Cogburn, Jr on 5/10/2017. (khm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:16-cv-00257-MOC

BRADLEY ALAN GRIFFEY

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Plaintiff,
v.

NANCY BERRYHILL,
Acting Commissioner of Social Security
Defendant.

ORDER

THIS MATTER is before the court on the parties’ opposing Motions for Summary
Judgment (#6 and #7). The matter is ripe for review. Having carefully considered such motions
and reviewed the pleadings, the court enters the following findings, conclusions, and Order.
FINDINGS AND CONCLUSIONS
I.

Administrative History

Plaintiff applied for Title II disability and disability insurance benefits in October 2013,
alleging that he became disabled on April 30, 2013. (Tr. 16). His claim was denied at the initial
and reconsideration levels of review. (Tr. 16). Plaintiff filed a timely request for a hearing before
an Administrative Law Judge (“ALJ”). (Tr. 96-97). A hearing was held before Michael Davenport,
an ALJ, on October 15, 2015, at which plaintiff had an attorney representative present. (Tr. 16,
31). In a December 9, 2015 written decision, the ALJ denied the plaintiff’s claim. (Tr. 16-30).
Plaintiff requested review of the ALJ’s decision. (Tr. 9-10). The request for review was denied by
the Appeals Council on March 10, 2016 (Tr. 1-3), rendering the ALJ’s decision the final decision

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of the Commissioner. See 20 C.F.R. § 404.981. Plaintiff has exhausted his available administrative
remedies and the case is now ripe for judicial review under Section 205(g) of the Social Security
Act. See 42 U.S.C. § 405(g).
II.

Factual Background
It appearing that the ALJ's findings of fact are supported by substantial evidence, the court

adopts and incorporates such findings herein as if fully set forth. Such findings are referenced in
the substantive discussion which follows.
III.

Standard of Review
The only issues on review are whether the Commissioner applied the correct legal

standards and whether the Commissioner's decision is supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Review by a federal court is not de novo, Smith v. Schwieker, 795 F.2d 343, 345 (4th Cir.
1986); rather, inquiry is limited to whether there was “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Perales, 402 U.S. at 401 (internal citations
omitted). Even if the undersigned were to find that a preponderance of the evidence weighed
against the Commissioner's decision, the Commissioner's decision would have to be affirmed if it
was supported by substantial evidence. Hays, 907 F.2d at 1456. The Fourth Circuit has explained
substantial evidence review as follows:
the district court reviews the record to ensure that the ALJ's factual findings are
supported by substantial evidence and that its legal findings are free of error. If the
reviewing court decides that the ALJ's decision is not supported by substantial
evidence, it may affirm, modify, or reverse the ALJ's ruling with or without
remanding the cause for a rehearing. A necessary predicate to engaging in
substantial evidence review is a record of the basis for the ALJ's ruling. The record
should include a discussion of which evidence the ALJ found credible and why,
and specific application of the pertinent legal requirements to the record evidence.
If the reviewing court has no way of evaluating the basis for the ALJ's decision,

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then the proper course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation.
Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (internal citations and quotations omitted).
IV.

Substantial Evidence
A. Introduction
The court has read the transcript of plaintiff's administrative hearing, closely read the

decision of the ALJ, and reviewed the relevant exhibits contained in the extensive administrative
record. The issue is not whether a court might have reached a different conclusion had it been
presented with the same testimony and evidentiary materials, but whether the decision of the
administrative law judge is supported by substantial evidence. The court finds that the ALJ’s
decision was supported by substantial evidence.
B. Sequential Evaluation
A five-step process, known as “sequential” review, is used by the Commissioner in
determining whether a Social Security claimant is disabled. The Commissioner evaluates a
disability claim under Title XVI pursuant to the following five-step analysis:
a. An individual who is working and engaging in substantial gainful activity will not be
found to be “disabled” regardless of medical findings;
b.

An individual who does not have a “severe impairment” will not be found to be
disabled;

c. If an individual is not working and is suffering from a severe impairment that meets
the durational requirement and that “meets or equals a listed impairment in Appendix
1” of Subpart P of Regulations No. 4, a finding of “disabled” will be made without
consideration of vocational factors;

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d. If, upon determining residual functional capacity, the Commissioner finds that an
individual is capable of performing work he or she has done in the past, a finding of
“not disabled” must be made;
e. If an individual's residual functional capacity precludes the performance of past work,
other factors including age, education, and past work experience, must be considered
to determine if other work can be performed.
20 C.F.R. § 416.920(a)-(f). The burden of proof and production during the first four steps of the
inquiry rests on the claimant. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). At the fifth step,
the burden shifts to the Commissioner to show that other work exists in the national economy that
the claimant can perform. Id.
C. The Administrative Decision
At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity
since April 30, 2013, which was the claimant’s alleged onset date. (Tr. 18). At step two, the ALJ
found that the plaintiff had the following severe impairments: obesity, osteoarthritis of the knees,
and degenerative disc disease . (Tr. 18-19). At step three, the ALJ determined that the 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 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 19).
The ALJ concluded that the plaintiff had the residual functional capacity (RFC) to perform
light work, with a sit/stand option (as frequent as every half-hour) with no overhead reaching or
lifting (Tr. 19).
At step four, the ALJ found that plaintiff Griffey could not perform his past relevant work.
(Tr. 25). At step five, the ALJ concluded that there were jobs that exist in significant numbers in
the national economy that the plaintiff could perform, given his age, education, work experience,

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and RFC. (Tr. 25-26). Accordingly, the ALJ determined that the plaintiff had not been under a
disability within the meaning of the Social Security Act, 20 C.F.R. 404.1520(g), from July 27,
2012. (Tr. 26).
D. Discussion
The court has closely read plaintiff’s Memorandum of Law (#6-1) supporting his Motion for
Summary Judgment. Plaintiff has made the following assignments of error,1 both about the
misapplication of SSR 02-1p:
I.

The ALJ erred in applying SSR 02-1p in considering the claimant’s obesity; and

II.

The ALJ erred in applying SSR 02-1p in evaluating the claimant’s Residual Functional
Capacity (“RFC”)

(#6-1) at 3. Plaintiff's assignment of error will be discussed below.
1. Claimant’s Obesity
Plaintiff argues that the ALJ erred in failing to find that Mr. Griffey’s obesity met or
exceeded the Listings. The court reviews this allegation of error not for the ultimate conclusion—
whether Mr. Griffey’s impairment met or exceeded a listing—but instead whether the ALJ had
substantial evidence upon which to make this determination. The court finds that the ALJ had
substantial evidence to make such an assessment.
According to the plaintiff, the medical records in the case provide “little dispute as to the
claimant’s obesity being severe and medically determinable.” (#6-1) at 4. Indeed, the ALJ found
this at Step Two, noting that the claimant’s obesity was a “severe” impairment. The allegation of

The Memorandum notes that the plaintiff “disagrees” with the ALJ’s assessment. (#6-1) at 3. Simple disagreement
would not generally give rise to error, especially under the applicable standard of substantial evidence. Even so, the
court will analyze the issues presented by the plaintiff as allegations of error rather than disagreements with the
ALJ’s determination.
1

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error concerns SSR 02-1p, and the plaintiff disagrees with the ALJ in how it was applied here. (#61) at 5. It is not the court’s role to re-weigh the evidence and decide whether alleged impairments
meet or exceed the Listings; instead, the court is asked whether the ALJ had substantial evidence
for making such a determination. SSR 02-1p does not mandate that ALJ’s make a particular
determination regarding Step Three, the Listings. As SSR 02-1p is central to claimant’s
alllegations of error, the court will review it at length.
Plaintiff argues that the ALJ erred in failing to find that he should have been limited to
nonproduction work. The court reviews this allegation of error not for the ultimate conclusion—
whether plaintiff should be limited to nonproduction work—but instead whether the ALJ had
substantial evidence upon which to make this determination. The court finds that the ALJ had
substantial evidence to make such an assessment.
If an individual has the medically determinable impairment obesity that is “severe”
as described in question 6, we may find that the obesity medically equals a listing.
(In the case of a child seeking benefits under title XVI, we may also find that it
functionally equals the listings.) We may also find in a title II claim, or an adult
claim under title XVI, that the obesity results in a finding that the individual is
disabled based on his or her residual functional capacity (RFC), age, education, and
past work experience. However, we will also consider the possibility of coexisting
or related conditions, especially as the level of obesity increases. We provide an
example of when we may find obesity to medically equal a listing in question 7.
***
Because there is no listing for obesity, we will find that an individual with obesity
“meets” the requirements of a listing if he or she has another impairment that, by
itself, meets the requirements of a listing. We will also find that a listing is met if
there is an impairment that, in combination with obesity, meets the requirements of
a listing. For example, obesity may increase the severity of coexisting or related
impairments to the extent that the combination of impairments meets the
requirements of a listing. This is especially true of musculoskeletal, respiratory, and
cardiovascular impairments.
***
We may also find that obesity, by itself, is medically equivalent to a listed
impairment (or, in the case of a child applying under title XVI, also functionally
equivalent to the listings). For example, if the obesity is of such a level that it results
in an inability to ambulate effectively, as defined in sections 1.00B2b or 101.00B2b
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of the listings, it may substitute for the major dysfunction of a joint(s) due to any
cause (and its associated criteria), with the involvement of one major peripheral
weight-bearing joint in listings 1.02A or 101.02A, and we will then make a finding
of medical equivalence. (See question 8 for further discussion of evaluating the
functional effects of obesity, including functional equivalence determinations for
children applying for benefits under title XVI.)
Titles II & Xvi: Evaluation of Obesity, SSR 02-1P (S.S.A. Sept. 12, 2002), at *4-5 (emphasis
added). As noted with emphasis above, SSR 02-1p does not mandate an ALJ to make a finding
that obesity meets or exceeds a Listing. Indeed, SSR 02-1p notes that there is not a specific
Listing for obesity. Instead, an ALJ may make a determination that obesity, by itself or in
conjunction with other impairments, meets or exceeds a Listing.
In this case, the ALJ adequately reviewed the extant medical evidence in Step Three,
specifically discussing Listings 1.02 and 1.04. (Tr. 19). The court notes that at Step Three, the
claimant has the burden to show a Listing was met or exceeded. Pass v. Chater, 65 F.3d 1200,
1203 (4th Cir. 1995) (noting that the burden of proof and production during the first four steps of
the inquiry rests on the claimant). The ALJ discussed the plaintiff’s ability to ambulate
effectively, based on the medical records presented. As he was able to do so, he did not meet all
of the specified medical criteria for these Listings. See Sullivan v. Zebley, 493 U.S. 421, 530-31
(1990) (noting that claimants must show that an impairment meets all specified criteria to meet
or exceed a Listing). Accordingly, the court finds no error and concludes that the ALJ’s finding
was based on substantial evidence.
2. Claimant’s RFC
Plaintiff’s second allegation of error argues that the ALJ failed to correctly apply SSR 02-1p
in evaluating the RFC. Specifically, the plaintiff alleges that the ALJ inadequately assessed the
effect of plaintiff’s obesity on his ability to sustain work activities, both exertional and nonexertional. (#6-1) at 6.
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SSR 02-1p discusses the evaluation of obesity within the context of the RFC in ¶ 8:
Obesity can cause limitation of function. The functions likely to be limited depend
on many factors, including where the excess weight is carried. An individual may
have limitations in any of the exertional functions such as sitting, standing, walking,
lifting, carrying, pushing, and pulling. It may also affect ability to do postural
functions, such as climbing, balance, stooping, and crouching. The ability to
manipulate may be affected by the presence of adipose (fatty) tissue in the hands
and fingers. The ability to tolerate extreme heat, humidity, or hazards may also be
affected.
The effects of obesity may not be obvious. For example, some people with obesity
also have sleep apnea. This can lead to drowsiness and lack of mental clarity during
the day. Obesity may also affect an individual's social functioning.
An assessment should also be made of the effect obesity has upon the individual's
ability to perform routine movement and necessary physical activity within the
work environment. Individuals with obesity may have problems with the ability to
sustain a function over time. As explained in SSR 96-8p (“Titles II and XVI:
Assessing Residual Functional Capacity in Initial Claims”), our RFC assessments
must consider an individual's maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis. A “regular
and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent
work schedule. In cases involving obesity, fatigue may affect the individual's
physical and mental ability to sustain work activity. This may be particularly true
in cases involving sleep apnea.
The combined effects of obesity with other impairments may be greater than might
be expected without obesity. For example, someone with obesity and arthritis
affecting a weight-bearing joint may have more pain and limitation than might be
expected from the arthritis alone.
Titles II & Xvi: Evaluation of Obesity, SSR 02-1P (S.S.A. Sept. 12, 2002) at *6 (footnote
omitted). SSR 02-1p goes on to explain in ¶9 that functional limitations arising from obesity will
be considered when the obesity is found to be medically determinable.
When we identify obesity as a medically determinable impairment …, we will
consider any functional limitations resulting from the obesity in the RFC
assessment, in addition to any limitations resulting from any other physical or
mental impairments that we identify.
Titles II & Xvi: Evaluation of Obesity, SSR 02-1P , at *7 (S.S.A. Sept. 12, 2002).

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In the instant case, plaintiff argues that the ALJ failed to discuss and assess “what effect the
established severe impairment of obesity had upon Mr. Griffey’s ability to perform routine
movements in the work environment.” (#6-1) at 7. The ALJ, however, specifically discussed the
plaintiff’s obesity at numerous points in his written decision. (Tr. 20, 22, 23-24). With regard to
routine movements, the ALJ noted that the plaintiff was walking one-half to a mile per day, had
a normal gait, and was able to sit, stand, walk, and move about in “satisfactory manner.” (Tr. 23).
The ALJ also noted that the plaintiff was able to hunt, camp, and race as well as prepare simple
meals, perform household chores, drive, and visit relatives. (Tr. 24). The ALJ also specifically
details the weight given to medical findings, specifically that the plaintiff’s back and knee pain
came from his obesity. (Tr. 24). The ALJ noted that subsequent to bariatric surgery, plaintiff lost
considerable weight, and this weight loss was expected to continue, which the ALJ noted will
likely improve his back and knee issues. (Tr. 24) Further, the ALJ detailed the limitations upon
which the medical professionals opined, and the ALJ concluded that the claimant was more
restricted than the state agency medical consultant had indicated. (Tr. 24) (noting that the state
agency consultative expert indicated that plaintiff could perform medium work, but the ALJ
concluded that the claimant’s limitations were “certainly” such that he could perform only light
work). Specifically, the ALJ noted limitations in the claimant’s ability to sit and stand, which
were incorporated into the eventual RFC finding. (Tr. 19, 24). With regard to the duration of
these limitations, the ALJ’s RFC finding included the further limitation that the plaintiff be given
the option to sit or stand as frequently as every half hour. (Tr. 19).
As noted above, SSR 02-1p mandates that RFC assessments “consider an individual's
maximum remaining ability to do sustained work activities in an ordinary work setting on a regular
and continuing basis.” In this case, the ALJ specifically discussed the plaintiff’s obesity and the

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aspects of work that may be affected by this condition, such as sitting, standing, carrying, walking,
and manipulating the hands and fingers. (Tr. 24). In addition, the ALJ noted that the plaintiff may
have difficulty in working overhead for long periods of time and included that limitation in his
RFC finding. (Tr. 19, 23-24).
The court is asked whether the ALJ had substantial evidence upon which to base his
determination. Put another way, a court must ask whether the ALJ has sufficiently explained his
decision-making process with regard to his obesity in assessing the plaintiff’s RFC. Here, the
court is not “left to guess” at how the ALJ arrived at his determinations of the plaintiff’s RFC. See
Mascio v. Colvin, 780 F.3d 632, 637 (4th Cir. 2015). Underlying his concern, plaintiff argues that
the ALJ should have included further limitations because of his severe and medically determinable
obesity. (#6-1) at 7-8. The ALJ specifically addressed these concerns, and he went on to note that
that plaintiff’s statements concerning the “intensity, persistence, and limiting effects” of his
impairments were “not entirely credible.” (Tr. 23). In his opinion, the ALJ reviewed medical
evidence and assessed functional limitations in light of the overall record, assigning weight to each
and explaining his rationale for doing so. (Tr. 19-25).
The ALJ in this case made a determination based on substantial evidence and provided a
sufficient explanation of how and why he determined plaintiff’s RFC. The extensive discussion
here was far more than the comparable boilerplate assessment in Mascio and was more than
enough for this reviewing court to assess whether substantial evidence existed for the ALJ’s
decision.
E. Conclusion
The undersigned has carefully reviewed the decision of the ALJ, the transcript of
proceedings, plaintiff's motion and brief, the Commissioner's responsive pleading, and plaintiff's
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assignment of error. Review of the entire record reveals that the decision of the ALJ is supported
by substantial evidence. See Richardson v. Perales, supra; Hays v. Sullivan, supra. Finding that
there was “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, supra at 401, plaintiff's Motion for Summary Judgment will
be denied, the Commissioner's Motion for Summary Judgment will be granted, and the decision
of the Commissioner will be affirmed.

ORDER
IT IS, THEREFORE, ORDERED that:
(1) the decision of the Commissioner, denying the relief sought by plaintiff, is AFFIRMED;
(2) plaintiff's Motion for Summary Judgment (#6) is DENIED;
(3) the Commissioner's Motion for Summary Judgment (#7) is GRANTED; and
(4) this action is DISMISSED.

Signed: May 10, 2017

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