Powell v. Colvin

Filing 13

MEMORANDUM OF DECISION AND ORDER denying Pltf's 9 Motion for Summary Judgment; granting Deft's 11 Motion for Summary Judgment; affirming the decision of the Commissioner; and dismissing this case. Signed by District Judge Martin Reidinger on 9/29/2017. (ejb)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00268-MR

JOHN E. POWELL,

)
)
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. 9] and the Defendant’s Motion for Summary
Judgment [Doc. 11].
I.

PROCEDURAL HISTORY
The Plaintiff John E. Powell filed an application for a period of disability

and disability insurance benefits on August 2, 2012, alleging an onset date
of April 1, 2011. [Transcript (“T.”) 16]. The Plaintiff later amended his alleged
onset date to July 1, 2012. [T. 16, 18, 44-45]. The Plaintiff’s claim was denied
initially and on reconsideration.

[T. 16, 123, 130]. Upon the Plaintiff’s

request, a hearing was held on October 22, 2014, before Administrative Law
Judge Thaddeus J. Hess (“ALJ Hess”). [T. 16, 40-80]. The Plaintiff testified

at this hearing, as did a vocational expert (“VE”). [Id.]. On January 7, 2015,
ALJ Hess issued a decision denying the Plaintiff benefits. [T. 16-34]. The
Appeals Council denied the Plaintiff’s request for review, thereby making the
ALJ’s decision the final decision of the Commissioner. [T. 1-5]. 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 June 30,
2015, and that he has not engaged in substantial gainful activity since the
amended alleged onset date of July 1, 2011. [T. 18]. The ALJ then found
that the medical evidence established that the Plaintiff has the following
severe impairments: diabetes mellitus, asthma, hypertension, obesity,
anxiety and major depressive disorder. [Id.]. The ALJ specifically found that
the Plaintiff’s other claimed conditions, including migraine headaches,
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traumatic arthritis of right ankle, allergic rhinitis, chest pain, MRSA infection,
gastroesophageal reflux disease (“GERD”), headaches, dizziness, vertigo,
left flank pain, back pain, and attention deficit disorder, did not result in any
significant functional limitations or were not medically determinable from the
record, and were therefore not severe impairments. [T. 18-19]. The ALJ
determined that none of Plaintiff’s impairments, either singly or in
combination, met or equaled a listing. [T. 19]. The ALJ then assessed the
Plaintiff’s residual functional capacity (RFC) [T. 22-33], finding as follows:
[T]he [Plaintiff] has the RFC to perform light work as
defined in 20 CFR 404.1567(b) except that he can
never climb ladders/ropes/scaffolds; can only
occasionally climb ramp/stairs, balance, stoop,
kneel, crouch and crawl; and must avoid
concentrated exposure to workplace hazards such
as unprotected heights and moving machinery,
extreme cold/hear and dust fumes, gases, etc.; [h]e
is limited to simple, routine, repetitive tasks with no
more than occasional decision making with no more
than occasional changes in the work setting and no
more than occasional interaction with the general
public.
[T. 22]. Based on this RFC, the ALJ then determined that the Plaintiff could
not perform any of his past relevant work as a retail sales clerk, cashier or
stocker. [T. 33]. 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.
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[Id.]. 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. 34].
V.

DISCUSSION1
The Plaintiff asserts two assignments of error. First, the Plaintiff argues

that the ALJ “failed to properly assess the non-exertional impairments of the
[Plaintiff].” [Doc. 10 at 8]. Second, the Plaintiff argues that the ALJ
“committed error to the prejudice to [sic] the Plaintiff in his evaluation of the
Vocational Expert’s testimony.” [Id.].
After asserting these two assignments of error, the Plaintiff does not
proceed to articulate any analysis or meaningful legal arguments in support
thereof. Instead, the Plaintiff makes numerous conclusory assertions of error
that do not appear to relate directly to the assignments of error identified.
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.

1

Rather than set forth the relevant facts in a separate section, the Court has incorporated
the relevant facts into its legal analysis.

6

July 19, 2017); Mason v. Berryhill, No. 1:16cv148, 2017 WL 2664211, at *4
(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.). Once again, this Court instructs counsel to separately set forth
each alleged error, cite relevant legal authority, and include a discussion as
to how the cited authority supports his arguments.2

2

The Court has had issues in the past with members of the Social Security bar using the
brief-writing services of a particular paralegal, who is also a disbarred attorney. Many of
the cases in which the Court had to admonish counsel regarding the failure to set out
separate assignments of error with proper citations to the record and to relevant legal
authority were the result of this brief writer’s work. The present brief is similar in its
deficiencies to the briefs prepared by this particular brief writer. If Plaintiff’s counsel
chooses to engage the services of a brief writer to assist him, counsel is strongly advised
to review the briefs prior to submission and ensure that they comply with the requirements
of this Court.

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A.

The ALJ’S Assessment of Non-Exertional Impairments

In his first assignment of error, the Plaintiff asserts that the ALJ erred
by failing to “properly assess the non-exertional impairments of the
[Plaintiff].” [Id.]. The Plaintiff, however, does not identify any non-exertional
impairments that the ALJ failed to assess.

The thrust of the Plaintiff’s

argument appears to be that the ALJ failed to give sufficient weight to the
conclusions of Dr. Roy P. Gallinger, MD, who was the Plaintiff’s treating
psychiatrist during his admission at the behavioral health unit of Haywood
Regional Medical Center in October 2010. The Plaintiff argues that this
opinion should have been given “great weight”, [Doc. 10 at 12], but rather
was given “little weight” [id.] or no weight [id. at 11].
Dr. Gallinger noted the Plaintiff harboring suicidal ideation and
diagnosed him with a major depressive disorder in October 2010. [T. 312,
314]. Even though the Plaintiff’s argument is far from clear, it appears that
he asserts that the ALJ disregarded this evidence without adequately
explaining why he did so. [Doc. 10 at 12-13 (“these types of conclusory
findings by an ALJ make meaningful review by this Court impossible) (citing
Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015) and Fox v. Colvin, 632 F.
App’x 750 (4th Cir. Dec. 17, 2015)]. Dr. Gallinger’s opinion, however,
preceded the Plaintiff’s alleged onset date by nearly two years. Moreover,
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as the ALJ noted, the Plaintiff himself recounted in later examinations that
“[h]e denied having had active suicidal thoughts, intent or plan for suicide
since 2010.” [T. 25]. Even at the Plaintiff’s discharge by Dr. Gallinger in
2010, he assessed the Plaintiff as “in stable condition, not depressed, anxiety
adequately controlled.” [T. 314]. As such, the ALJ adequately explained
why the earlier Gallinger opinion would be entitled to little weight, as it did
not concern the Plaintiff’s condition during the relevant period under
consideration.3
The Plaintiff argues that the ALJ compounded his error by also giving
little weight to the opinion of Veronica McKay, LCSW, who noted the
Plaintiff’s suicidal and depressive condition. The Plaintiff acknowledges that
as a LCSW, McKay may not be considered an “acceptable medical source
able to establish the existence of a mental impairment.” [Doc. 10 at 13 (citing
20 C.F.R. § 404.1513(a)]. Moreover, McKay’s testimony predates even Dr.
Gallinger’s assessment, which was long before the Plaintiff’s onset date.4

The ALJ specifically acknowledged Dr. Gallinger’s October 2010 opinion and cites
where it fits in the chronology of the Plaintiff’s treatment. Moreover, the ALJ found that
Plaintiff has severe impairments including major depressive disorder. [T. 18].
3

4

The Plaintiff obliquely implies that the ALJ further erred by adopting the opinion of state
SDM Alicia Madden in lieu of Dr. Gallinger’s opinion. [Id. at 11]. This is a tortured reading
of the ALJ’s decision. The reference to the SDM opinion pertains to whether the Plaintiff’s
impairments meet or equal a listing [T. 19], and not any issue addressed by Dr. Gallinger.

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As such, the ALJ adequately demonstrated the weight given to the
Gallinger and McKay opinions were given little weight. For these reasons,
this assignment of error is overruled.
B.

Evaluation of Vocational Expert Testimony

The Plaintiff asserts as his second assignment of error that the ALJ
“committed error to the prejudice to [sic] the Plaintiff in his evaluation of the
Vocational Expert’s testimony.” [Doc. 10 at 8]. The Plaintiff cites to
unadorned excerpts of the ALJ’s hypotheticals and the VE’s testimony before
arguing, without 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 14-17]. The Plaintiff does not provide any articulation or legal analysis
as to how the ALJ’s decisions is allegedly inconsistent with Mascio. Instead,
the Plaintiff makes conclusory assertion and cites legal authority with no
analysis or explanation. [Id. at 17-18].

In lieu of identifying any specific

limitations not considered by the ALJ, citing to any evidence in the record, or
providing any legal analysis, the Plaintiff ends his brief as follows:
The errors in evaluating the mental health conditions
of the Plaintiff, described in Section 1 above in this
argument are also pertinent to the evaluation of the
errors in examining the vocational expert.5
5

“Section 1” appears to refer to the multiple arguments made by Plaintiff in support of his

10

[Id. at 18]. The Plaintiff, however, provides no clarity as to what arguments
he has previously made or how they are pertinent to his second assignment
of error.
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 a younger individual with at least a high
school education, claimant has more than that, but at
least a high school education. Work experience as
we just discussed and for hypothetical question
number one, exertionally, our starting point is light
with never climbing a ladder, rope, or scaffold.
Occasional for climbing a ramp or stairs. As well as
occasional for balancing, stooping, kneeling,
crouching, and crawling. All of those are occasional.
Avoid concentrated exposure for workplace hazards
such as unprotected heights and moving machinery.
Avoid concentrated exposure to extreme cold and
extreme heat. Avoid concentrated exposure to dust,
fumes, gases, et[c.] I call them the respiratory
irritants, but dust, fumes, gases. Simple, routine,
repetitive tasks with occasional decision making.
Occasional changes in the work setting. And
occasional interaction with the general public. That's
hypothetical question number one. Could such an
individual perform any of the past jobs we've talked
about?”
first assignment of error.

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[T. 76-77]. The VE responded in the negative. [T. 77]. The ALJ then asked
if there were other jobs available with those limitations. [Id.] The VE
responded in the affirmative, indicating that the following jobs would be
available: office helper (15,500 jobs in North Carolina and at least 185,000
jobs in the United States economy); box sealer inspector (6,500 jobs in North
Carolina and at least 400,000 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). [Id.].
The ALJ then posed a hypothetical with the same limitations but at the
sedentary exertional level. [Id.] The VE again responded in the affirmative,
indicating that the following jobs would be available: order clerk for food and
beverage (3,300 jobs in North Carolina and at least 160,000 jobs in the
United States economy); weaver/defect clerk (2,300 jobs in North Carolina
and at least 125,000 jobs in the United States economy); and charge account
clerk (2,600 jobs in North Carolina and at least 125,000 jobs in the United
States economy). [T. 78].
The second 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
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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
Accordingly, IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion
for Summary Judgment [Doc. 9] is DENIED; the Defendant’s Motion for
Summary Judgment [Doc. 11] 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 29, 2017

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A