Hasselwander v. Colvin

Filing 22

ORDER denying 12 Motion for Summary Judgment; granting 16 Motion for Summary Judgment. The Commissioners determination is AFFIRMED. Signed by Magistrate Judge David Keesler on 3/8/18. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:17-CV-025-DCK
ROBERT JOHN HASSELWANDER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on Plaintiff’s “Motion For Judgment On
The Pleadings Rule 12(c), F.R.Civ.P.” (Document No. 12) and the “Commissioner’s Motion For
Summary Judgment” (Document No. 16). The parties have consented to Magistrate Judge
jurisdiction pursuant to 28 U.S.C. § 636(c), and these motions are ripe for disposition. After
careful consideration of the written arguments, the administrative record, applicable authority, and
oral arguments, the undersigned will direct that Plaintiff’s “Motion For Judgment On The
Pleadings Rule 12(c), F.R.Civ.P.” (Document No. 12) be denied; that “Commissioner’s Motion
For Summary Judgment” (Document No. 16) be granted; and that the Commissioner’s decision
be affirmed.
I.

BACKGROUND

Plaintiff, Robert John Hasselwander (“Plaintiff”), through counsel, seeks judicial review
of an unfavorable administrative decision on his application for disability benefits. (Document
No. 1). On or about November 6, 2013, Plaintiff filed an application for a period of disability and
disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 405,
alleging an inability to work due to a disabling condition beginning January 1, 2008. (Transcript

of the Record of Proceedings (“Tr.”) 10, 194). The Commissioner of Social Security (the
“Commissioner” or “Defendant”) denied Plaintiff’s application initially on May 20, 2014, and
again after reconsideration on or about July 30, 2014. (Tr. 10, 128, 137). In its “Notice of
Reconsideration,” the Social Security Administration (“SSA”) included the following explanation
of its decision:
We did not obtain any additional information because this evidence
permits us to fully evaluate the condition. On your application you
stated that you were disabled because of PTSD, anxiety, delusional
disorder, hypermania. In order to get benefits, disability had to
be established on or before 12/31/2013 because insurance
coverage ended on that date. The medical evidence shows that your
condition is not severe enough prior to the end of your insured
period to be considered disabling.
Your mental condition was not severe enough prior to the end of
your insured period to be considered disabling.
You were able to think, act in your own interest, communicate,
handle your own affairs, and adjust to ordinary emotional stresses
without significant difficulties.
The evidence does not show a condition that would prevent most
work-related activities. Therefore, based on all of the medical and
non-medical evidence, we have decided that you were not disabled
on or before coverage ended according to the Social Security Act.
(Tr. 137) (emphasis added).
Plaintiff filed a timely written request for a hearing on August 13, 2014. (Tr. 10, 145). On
May 26, 2016, Plaintiff appeared and testified at a hearing before Administrative Law Judge
Valorie Stefanelli (the “ALJ”). (Tr. 10, 42-79). In addition, Melissa Brinson, a vocational expert
(“VE”), and Debra Hasselwander, Plaintiff’s wife, appeared at the hearing, as well as David Lund,
Plaintiff’s attorney. (Tr. 10, 42, 44). The ALJ noted that Plaintiff sought to amend his alleged
onset date to November 11, 2009, but the ALJ determined that changing the date would not affect
the outcome of the decision. (Tr. 10); see also (Tr. 46).

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The ALJ issued an unfavorable decision on August 30, 2016, denying Plaintiff’s claim.
(Tr. 7-9, 10-36). On October 18, 2016, Plaintiff filed a request for review of the ALJ’s decision,
which was denied by the Appeals Council on December 6, 2016. (Tr. 1-3, 6). The ALJ decision
became the final decision of the Commissioner when the Appeals Council denied Plaintiff’s review
request. (Tr. 1).
Plaintiff’s “Complaint” seeking reversal or remand of the ALJ’s determination was filed
in this Court on January 18, 2017. (Document No. 1). On May 2, 2017, the parties consented to
Magistrate Judge jurisdiction in this matter. (Document No. 11).
Plaintiff’s “Motion For Judgment On The Pleadings Rule 12(c), F.R.Civ.P.” (Document
No. 12) and “Memorandum Of Law In Support Of Plaintiff’s Motion For Judgment On The
Pleadings Rule 12(c), F.R.Civ.P.” (Document No. 13) were filed June 8, 2017; and the
“Commissioner’s Motion For Summary Judgment” (Document No. 16) and “Memorandum In
Support Of The Commissioner’s Motion For Summary Judgment” (Document No. 17) were filed
August 22, 2017.1 Plaintiff declined to file a reply brief, and the time to do so has lapsed. See
Local Rule 7.2 (e).
On February 7, 2018, the undersigned scheduled this matter for a hearing on March 8,
2018, and directed the parties to make a good faith attempt to resolve or narrow the issues.
(Document No. 18). The parties filed a “Joint Notice” (Document No. 20) on March 1, 2018, that
their attempt to resolve or narrow the issues had failed.
The undersigned held a hearing in this matter on March 8, 2018, allowing the parties one
more opportunity to present their arguments. The pending motions are now ripe for disposition.

1

Plaintiff’s “Memorandum Of Law…” is not organized as directed by Local Rule 7.2 (b).

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II.

STANDARD OF REVIEW

The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court’s review
of a final decision of the Commissioner to: (1) whether substantial evidence supports the
Commissioner’s decision; and (2) whether the Commissioner applied the correct legal standards.
Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990).
The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the
evidence or to substitute its judgment for that of the Commissioner – so long as that decision is
supported by substantial evidence. Hays, 907 F.2d at 1456 (4th Cir. 1990); see also, Smith v.
Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir.
2012). “Substantial evidence has been defined as ‘more than a scintilla and [it] must do more than
create a suspicion of the existence of a fact to be established. It means such relevant evidence as
a reasonable mind might 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).
Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and
to resolve conflicts in the evidence. Hays, 907 F.2d at 1456; King v. Califano, 599 F.2d 597, 599
(4th Cir. 1979) (“This court does not find facts or try the case de novo when reviewing disability
determinations.”); Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that
it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistences in the
medical evidence, and that it is the claimant who bears the risk of nonpersuasion.”). Indeed, so
long as the Commissioner’s decision is supported by substantial evidence, it must be affirmed even
if the reviewing court disagrees with the final outcome. Lester v. Schweiker, 683 F.2d 838, 841
(4th Cir. 1982).

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III.

DISCUSSION

The question before the ALJ was whether Plaintiff was under a “disability” as that term of
art is defined for Social Security purposes, at any time between January 1, 2008, and the date last
insured of December 31, 2013.2 (Tr. 10). To establish entitlement to benefits, Plaintiff has the
burden of proving that he was disabled within the meaning of the Social Security Act. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987).
The Social Security Administration has established a five-step sequential evaluation
process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:
(1)

whether claimant is engaged in substantial gainful activity if yes, not disabled;

(2)

whether claimant has a severe medically determinable
physical or mental impairment, or combination of
impairments that meet the duration requirement in §
404.1509 - if no, not disabled;

(3)

whether claimant has an impairment or combination of
impairments that meets or medically equals one of the
listings in appendix 1, and meets the duration requirement if yes, disabled;

(4)

whether claimant has the residual functional capacity
(“RFC”) to perform her/his past relevant work - if yes, not
disabled; and

(5)

whether considering claimant’s RFC, age, education, and
work experience he/she can make an adjustment to other
work - if yes, not disabled.

20 C.F.R. § 404.1520(a)(4)(i-v).

Under the Social Security Act, 42 U.S.C. § 301, the term “disability” is defined as an: 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. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (quoting 42 U.S.C.
§ 423(d)(1)(A)).
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The burden of production and proof rests with the claimant during the first four steps; if
claimant is able to carry this burden, then the burden shifts to the Commissioner at the fifth step to
show that work the claimant could perform is available in the national economy. Pass, 65 F.3d at
1203. In this case, the ALJ determined at the fifth step that Plaintiff was not disabled. (Tr. 3536).
First, the ALJ determined that Plaintiff had not engaged in any substantial gainful activity
between January 1, 2008 and his date last insured. (Tr. 12). At the second step, the ALJ found
that “hypertension, diabetes, degenerative disk disease of the cervical spine and status post fusion,
obesity, mood disorder, and post-traumatic stress disorder” were severe impairments.3 Id. At the
third step, the ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the impairments listed in 20 C.F.R. 404, Subpart
P, Appendix 1. (Tr. 15-18).
Next, the ALJ assessed Plaintiff’s RFC and found that he retained the capacity to perform
medium work activity, with the following limitations:
he is restricted from any exposure to crowds, and any requirement
to interact with the public in his job duties; he is restricted to only
casual, non-intense interactions with others on the job; and he is
restricted from any concentrated exposure to hazards such as
unprotected heights or dangerous equipment.
(Tr. 18). In making this finding, the ALJ stated that she “considered all symptoms and the extent
to which these symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence, based on the requirements of 20 CFR 404.1529 and SSRs 96-4p and
96-7p.” Id.

The determination at the second step as to whether an impairment is “severe” under the regulations is a
de minimis test, intended to weed out clearly unmeritorious claims at an early stage. See Bowen v. Yuckert,
482 U.S. 137 (1987).
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At the fourth step, the ALJ held that Plaintiff could not perform his past relevant work as
a long haul truck driver and a protective officer. (Tr. 34). At the fifth and final step, the ALJ
concluded based on the testimony of the VE and “considering the claimant’s age, education, work
experience, and residual functional capacity” that jobs existed in significant numbers in the
national economy that Plaintiff could perform. (Tr. 35). Specifically, the VE testified that
according to the factors given by the ALJ, occupations claimant could perform included industrial
cleaner, partition installer, and hand packager. (Tr. 35, 76-78). Therefore, the ALJ concluded that
Plaintiff was not under a “disability,” as defined by the Social Security Act, at any time between
January 1, 2008, and the date last insured, December 31, 2013. (Tr. 36).
Plaintiff on appeal to this Court alleges that: (1) the ALJ erred in finding a residual
functional capacity to perform a reduced range of medium work; and 2) the ALJ erred by failing
to give adequate weight to Plaintiff’s VA disability rating. (Document No. 13, p.3). The
undersigned will discuss each of these contentions in turn.
A.

RFC
In the first assignment of error, Plaintiff argues that the ALJ erred in finding that he has the

RFC to perform a reduced range of medium work. (Document No. 13, pp.5-9). Plaintiff’s primary
arguments are that he is “unable to work due to chronic severe psychiatric symptoms” and that the
ALJ failed to “sufficiently account for the limitations expressed in the non-examining physician
opinions.” (Document No. 13, pp.6, 9). At the hearing, Plaintiff’s counsel again stressed that
PTSD was Plaintiff’s primary impairment and suggested that the RFC did not adequately account
for Plaintiff’s difficulties.
In response, Defendant first notes that Plaintiff does not make an argument related to the
physical demands of medium work, but focuses on mental impairments. (Document No. 17, pp.5-

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6). Regarding Plaintiff’s mental impairments, Defendant contends that the “ALJ explained these
limitations in a very extensive and detailed analysis of the record.” (Document No. 17, p.6).
Defendant goes on to describe the ALJ’s analysis and observes the following:
In summation (Tr. 32), the ALJ noted that she was confident that
as long as Mr. Hasselwander remains medically compliant and
continues with consistent and professional mental health treatment,
he could work in an environment that kept him from, as indicated in
the ALJ’s RFC finding: any exposure to crowds, and any
requirement to interact with the public in his job duties; to only
casual, non-intense interactions with others on the job; and from
any concentrated exposure to hazards such as unprotected heights or
dangerous equipment.
Under the law, if “a symptom can be reasonably controlled by
medication or treatment, it is not disabling.” Gross v. Heckler, 785
F.2d 1163, 1166 (4th Cir. 1986); see also 20 C.F.R. § 404.1530 (“In
order to get benefits, you must follow treatment prescribed by your
physician if this treatment can restore your ability to work.”). Thus,
a finding based on substantial evidence that suggests Mr.
Hasselwander was able to work if he remains compliant with
medication, is a finding that is legally supported. Here, Mr.
Hasselwander showed immediate improvement with medication
each time he was compliant. Almost immediately after he started
treatment and medication on May 1, 2012, he had significant
improvement as indicated by the May 24, 2012 consultative
examination and subsequent examination records. Follow-up
treatment records also indicated significant improvement as long as
he stayed on his medication, and as the record continues - on Mr.
Hasselwander became more compliant with medication - he seemed
quite “work ready,” even if he still had PTSD symptoms. Mr.
Hasselwander cites to considerable evidence of paranoia, anxiety,
etc. (Pl. Memorandum at 7), but that ignores the change he had when
compliant with medication. Furthermore, the ALJ did not suggest
that Mr. Hasselwander’s PTSD just went away, but only indicated
that, under the conditions of the RFC, the record supports that he
could maintain work.
(Document No. 17, pp.9-10). Defendant also notes that the ALJ did address Plaintiff’s ability to
concentrate and determined he only had a mild impairment – which does not create a presumption

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of a limitation that needs to be addressed by the RFC. (Document No. 17, p.10). See also (Tr. 17,
34).
Defendant notes that although Plaintiff has a significant impairments, including particular
difficulty in social situation, there was also evidence that he regularly attended church, went to a
bar, and was playing in a band. See (Tr. 31). Moreover, when Plaintiff is compliant with his
medication, he is better. Defendant persuasively concludes that the ALJ included appropriate
limitations in the RFC to address Plaintiff’s mental impairments.
The undersigned agrees that the ALJ provided “a very extensive and detailed analysis of
the record,” and that substantial evidence supports the ALJ’s RFC determination.
B.

VA Disability
Next, Plaintiff challenges that the ALJ failed to accord adequate weight to Plaintiff’s

Veterans’ Administration (“VA”) disability rating of 100%. (Document No. 13, p.10) (citing Bird
v. Commissioner of SSA, 669 F.3d 337, 345 (4th Cir. 2012)). Plaintiff notes that the ALJ may
only give less than substantial weight to a VA disability determination if the record “clearly
demonstrates that such a deviation is appropriate.” Id. Plaintiff contends that ALJ Stefanelli erred
by only according “some” weight to the VA disability rating and failing to show that the record
clearly demonstrates that a deviation from substantial weight is appropriate, as required by Bird.
(Document No. 13, p.11).
In response, Defendant argues that the ALJ fully complied with Bird, and offered pages of
reasons for not according more weight to the VA’s determination. (Document No. 17, p.12).
Defendant notes that most of the decision was based on the VA’s records. (Document No. 17,
p.13). Moreover, Defendant notes that those VA records fail to mention how Plaintiff’s condition
improved with treatment. Id. Defendant concludes that

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In short, the ALJ gave significant rationale for the weight [s]he
gave the VA rating. The ALJ relied extensively on the same medical
records the VA used, including those VA physician statements about
Mr. Hasselwander’s condition. It just appears the VA was only
interested in the very severe diagnosis, but the ALJ, as required by
law, was interested in Mr. Hasselwander’s condition with treatment.
(Document No. 17, p.14).
The undersigned finds Defendant’s argument persuasive. In addition, excerpts from the
ALJ’s decision offer further illustration of the thoroughness of the ALJ’s work, including citing
Bird.
As discussed previously, the VA treatment notes clearly
demonstrate that since the claimant has been receiving appropriate
treatment, his mental functioning has improved. Not [only] did his
GAF scores continued to rise prior to his date last insured, but the
range and variety of activities he is engaging in have increased, even
without his participation in recommended individual psychotherapy
and group therapy. However, as noted previously, the VA disability
rating reflects that agency’s application of its own rules, and these
rules differ significantly from SSA standards. Because the effective
date of coverage for a claimant’s disability under the two programs
likely will vary, the Administrative Law Judge may give less weight
to a VA disability rating when the record before the Administrative
Law Judge clearly demonstrates that such a deviation is appropriate.
Bird v. Commissioner of SSA (Fourth Cir. 2012 No. 11-1645).
Finally, as noted previously, a VA disability rating is not a medical
opinion that SSA adjudicators must evaluate under 20 CPR
404.1527 and 416.927. Disability decisions by any other
governmental agency, such as the VA, are not binding on SSA. . . .
In this particular case, the Administrative Law Judge does not find
the VA’s finding that the claimant is “disabled” to be wholly
supported by the record, when evaluated in light of the requirements
of SSA regulations.
In reaching this decision, the Administrative Law Judge has given
the greatest weight to the objective medical evidence in the record,
which demonstrates that although the claimant faces some
significant difficulties as a result of his impairment, he remains
capable of performing work-related activities in a competitive
employment environment on a sustained basis, with the appropriate
limitations to allow for his difficulties, as outlined in the above RFC.
(Tr. 33-34).
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Finally, the undersigned notes that this Court recently found for the Commissioner under
similar circumstances where the VA had determined that a claimant was 100% disabled, but an
ALJ conducted a thorough analysis of the medical record and substantial evidence supported the
ALJ’s decision to give the VA’s determination less than substantial weight and find that the
claimant was not disabled. Harrold v. Berryhill, 5:16-CV-221-FDW-DCK (Document No. 13,
pp.7-9 (W.D.N.C. Feb. 13, 2018) adopted by Harrold v. Berryhill, 5:16-CV-221-FDW-DCK 2018
WL 1161395 (W.D.N.C. Mar. 5, 2018).
Based on the foregoing, the undersigned finds that the ALJ gave appropriate weight to the
VA’s disability determination.
IV.

CONCLUSION

The Court sincerely appreciates the hearing preparation and oral advocacy of counsel for
both parties. The arguments on March 8, 2018, helped narrow the issues and assisted the
undersigned’s determination.

After reviewing the parties’ papers and considering the oral

arguments at the motions hearing, the undersigned is persuaded that the ALJ’s decision is
supported by substantial evidence and applied the correct legal standards. Contrary to Plaintiff’s
arguments, the undersigned finds that the ALJ’s twenty-six (26) page decision provides a thorough
analysis of Plaintiff’s conditions and limitations, and explains why she found Plaintiff was not
disabled.
In short, the undersigned finds that there is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” and thus substantial evidence supports the
Commissioner’s decision. Richardson v. Perales, 402 U.S. 389, 401 (1971); Johnson v. Barnhart,
434 F.3d 650, 653 (4th Cir. 2005).

As such, the undersigned will recommend that the

Commissioner’s decision be affirmed.

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IT IS, THEREFORE, ORDERED that: Plaintiff’s “Motion For Judgment On The
Pleadings Rule 12(c), F.R.Civ.P.” (Document No. 12) is DENIED; the “Commissioner’s Motion
For Summary Judgment” (Document No. 16) is GRANTED;
determination is AFFIRMED.
SO ORDERED.
Signed: March 8, 2018

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and the Commissioner’s