Dishmond v. Colvin

Filing 23

ORDER denying Plaintiff's 16 Motion for Summary Judgment and granting the Commissioner's 21 Motion for Summary Judgment. The decision of the Commissioner is affirmed. Signed by District Judge Max O. Cogburn, Jr on 8/21/2017. (nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
DOCKET NO. 5:16-cv-00187-MOC

RICKEY DISHMOND

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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 (#16 and #21). 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 supplemental security income benefits in November 2012, alleging

that she became disabled on April 30, 2013. (Tr. 16). Her 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”). A hearing was held before Richard E. Guida, an ALJ, on
October 14, 2015, at which plaintiff had an attorney representative present. (Tr. 16, 29). In a
November 23, 2015 written decision, the ALJ denied the plaintiff’s claim. (Tr. 16-23). Plaintiff
requested review of the ALJ’s decision. (Tr. 11-12). The request for review was denied by the
Appeals Council on March 10, 2016 (Tr. 1-6), rendering the ALJ’s decision the final decision of

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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 November 14, 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: arthritis, chronic obstructive
sleep apnea (“COPD”), fibromyalgia, hypertension, and obesity. (Tr. 18). 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. 18-19).
The ALJ concluded that the plaintiff had the residual functional capacity (RFC) to perform
light work, with limitations related to avoiding concentrated exposure to temperature extremes,
wetness, humidity, fumes, odors, dusts, gases, poor ventilation, dangerous machinery, and
unprotected heights (Tr. 19).

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At step four, the ALJ found that plaintiff Dishmond had no 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 her age, education, work experience, and RFC.
(Tr. 22-23). 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 the application date
of November 14, 2012. (Tr. 23).
V.

Discussion
The court has closely read plaintiff’s Memorandum of Law (#17) supporting her Motion for

Summary Judgment. Plaintiff has made the following assignment of error, alleging that the ALJ’s
RFC determination that the plaintiff could perform light work was not based on substantial
evidence. Specifically, plaintiff points to the hearing testimony and argues that the ALJ failed to
resolve discrepancies between the RFC finding and the evidence presented at the hearing. (#17) at
4-8.
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. Inter alia,
plaintiff here argues that the ALJ did not adequately take into account her hearing testimony. See
(#17) at 4-7.
The ALJ spent a lengthy portion of his determination discussing plaintiff’s hearing testimony.
(Tr. 19-20). Moreover, the ALJ noted that the plaintiff’s statements about the limiting effects and
severity of her symptoms were “not entirely credible” and provided adequate reasons for such a
finding by evaluating the plaintiff’s statements against the available medical record. (Tr. 20-22).
For example, the ALJ cited to numerous different exhibits from the record in discussing his reasons
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for finding that the extent of the plaintiff’s limitations related to COPD were “not as severe as
alleged.” (Tr. 21, citing Exhibits 4F, 11F, 12F, 21F, 22F, and 23F).
The ALJ did not leave discrepancies unresolved related to the testimony. Instead, it is clear
that the testimony was reviewed by the ALJ. (Tr. 19-20). After taking the testimony and plaintiff’s
allegations into account, the ALJ gave appropriate reasons, using evidentiary support, for his
finding that these allegations were “not entirely credible.”
Here, the ALJ adequately reviewed and explained the available record, especially the hearing
testimony, consultative expert reports, and medical records. 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).
VI.

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
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;

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(2) plaintiff's Motion for Summary Judgment (#16) is DENIED;
(3) the Commissioner's Motion for Summary Judgment (#21) is GRANTED; and
(4) this action is DISMISSED.

Signed: August 21, 2017

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