McLeod v. Commissioner of Social Security Administration

Filing 33

ORDER affirming the decision of the Commissioner. Signed by Magistrate Judge Paige J. Gossett on 08/29/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Beverly L. McLeod,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin, Acting Commissioner )
of Social Security,1
)
)
Defendant.
)
____________________________________)

C/A No. 0:13-1703-PJG

ORDER

This social security matter is before the court pursuant to Local Civil Rule 83.VII.02 DSC
and 28 U.S.C. § 636(c) for final adjudication, with the consent of the parties, of the plaintiff’s
petition for judicial review. The plaintiff, Beverly L. McLeod (“McLeod”), who is self-represented,
brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a
final decision of the defendant, Acting Commissioner of Social Security (“Commissioner”), denying
her claims for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
Having carefully considered the parties’ submissions and the applicable law, the court concludes that
the Commissioner’s decision should be affirmed.
SOCIAL SECURITY DISABILITY GENERALLY
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the
regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which
is defined as an “inability to do any substantial gainful activity by reason of any medically

1

Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin is substituted for
Michael J. Astrue as the named defendant because she became the Acting Commissioner of Social
Security on February 14, 2013.
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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.” 20 C.F.R.
§§ 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The
regulations require the ALJ to consider, in sequence:
(1)

whether the claimant is engaged in substantial gainful activity;

(2)

whether the claimant has a “severe” impairment;

(3)

whether the claimant has an impairment that meets or equals the requirements of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”), and
is thus presumptively disabled;

(4)

whether the claimant can perform her past relevant work; and

(5)

whether the claimant’s impairments prevent her from doing any other kind
of work.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).2 If the ALJ can make a determination that a claimant
is or is not disabled at any point in this process, review does not proceed to the next step. Id.
Under this analysis, a claimant has the initial burden of showing that she is unable to return
to her past relevant work because of her impairments. Once the claimant establishes a prima facie
case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner
must establish that the claimant has the residual functional capacity, considering the claimant’s age,
education, work experience, and impairments, to perform alternative jobs that exist in the national
economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d
866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v.

2

The court observes that effective August 24, 2012, ALJs may engage in an expedited
process which permits the ALJs to bypass the fourth step of the sequential process under certain
circumstances. 20 C.F.R. §§ 404.1520(h), 416.920(h).
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Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by
obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.
1983).
ADMINISTRATIVE PROCEEDINGS
In November 2010, McLeod applied for DIB and SSI, alleging disability beginning
September 21, 2010. McLeod’s applications were denied initially and upon reconsideration, and she
requested a hearing before an administrative law judge (“ALJ”). A hearing was held on December
3, 2012, at which McLeod, who was represented by William Hatfield, Esquire, appeared and
testified. After hearing testimony from a vocational expert, the ALJ issued a decision on December
13, 2012 denying benefits and concluding that McLeod was not disabled. (Tr. 16-24.)
McLeod was born in 1964 and was forty-five years old at the time of her amended alleged
disability onset date. (Tr. 156.) She has a high school education and past relevant work experience
as a dietary aide at a nursing home. (Tr. 187, 188.) McLeod alleged disability since September 21,
2010 due to a pinched nerve in her back, and pain in her back and legs. (Tr. 187.)
In applying the five-step sequential process, the ALJ found that McLeod had not engaged in
substantial gainful activity since her alleged onset date. The ALJ also determined that McLeod’s
degenerative disc disease was a severe impairment. However, the ALJ found that McLeod did not
have an impairment or combination of impairments that met or medically equaled the severity of one
of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the “Listings”). The ALJ
further found that McLeod retained the residual functional capacity to perform medium work, and
therefore, remained capable of performing past relevant work as a kitchen worker, dietary aide, pie
maker and general dessert maker. Alternately, the ALJ found that McLeod’s impairments did not
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prevent her from doing any other kind of work. Therefore, the ALJ found that McLeod had not been
under a disability from September 21, 2010 through the date of his decision. (Tr. 18-23.)
McLeod, now proceeding without counsel, submitted additional evidence to the Appeals
Council, which denied her request for review on June 14, 2013, making the decision of the ALJ the
final action of the Commissioner. (Tr. 1-4.) This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner’s denial of benefits.
However, this review is limited to considering whether the Commissioner’s findings “are supported
by substantial evidence and were reached through application of the correct legal standard.” Craig
v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also 42 U.S.C. § 405(g); Coffman v. Bowen, 829
F.2d 514, 517 (4th Cir. 1987). Thus, the court may review only whether the Commissioner’s
decision is supported by substantial evidence and whether the correct law was applied. See Myers
v. Califano, 611 F.2d 980, 982 (4th Cir. 1980). “Substantial evidence” means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more
than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig, 76 F.3d
at 589. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence,
make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id.
Accordingly, even if the court disagrees with the Commissioner’s decision, the court must uphold
it if it is supported by substantial evidence. Blalock, 483 F.2d at 775.
DISCUSSION
McLeod generally argues that she is unable to work because of her pain and suffering from
2010 through 2013. Upon review of the entire record and the ALJ’s decision, McLeod cannot
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demonstrate that the ALJ’s decision is unsupported by substantial evidence or controlled by an error
of law.
In reviewing the ALJ’s application of the five-step sequential process, the first step appears
to be undisputed. McLeod has not engaged in substantial gainful activity since her alleged onset
date.
At Step Two, the ALJ found that McLeod had at least one severe impairment, degenerative
disc disease. The claimant bears the burden at this step to show that she has a severe impairment.
See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). A severe impairment is one that “significantly
limits [a claimant’s] physical or mental ability to do basic work activities.”

20 C.F.R.

§§ 404.1520(c), 416.920(c). If an impairment is only “a slight abnormality” which causes only
“minimal effect on the individual” and does not interfere with the individual’s ability to work, the
impairment is not considered to be severe. Evan v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1981).
The ALJ found that McLeod’s high blood pressure, asthma, and depression were non-severe
impairments. Specifically, the ALJ found that her high blood pressure was controlled with
medication. He also found that McLeod was on prescribed medication for her asthma and that the
evidence did not reveal any hospitalizations or emergency room visits secondary to any asthma
symptoms or asthma exacerbations. The ALJ found that McLeod had not been hospitalized for any
mental condition and that she had no restrictions in activities of daily living, mild difficulties in
social functioning and in concentration, persistence, and pace, and no episodes of decompensation
of an extended duration. Moreover, the ALJ found that there have been no significant limitations
or restrictions as a result of these impairments.

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McLeod cannot demonstrate any prejudicial error by the ALJ with regard to Step Two.
McLeod’s documentation submitted with her application for disability did not identify the
impairments that the ALJ found to be non-severe. Further, McLeod’s testimony fails to indicate that
these impairments have more than minimal effect on her or otherwise interfere with her ability to
work. The focus of McLeod’s allegations of disability appear to surround her pain; moreover,
McLeod’s argument to the court generally references her pain and suffering. Finally, the ALJ did
acknowledge these alleged impairments in analyzing McLeod’s residual functional capacity,
discussing McLeod’s testimony with regard to her asthma and high blood pressure as well as the
medical records documenting her depression.
Even if the ALJ erred in failing to find any of these impairments were severe, the court finds
that any error is harmless, as the ALJ continued with the sequential process and considered the
effects of all of McLeod’s impairments in formulating her residual functional capacity. See
Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (“[A]ny error here became harmless when
the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at
step two and proceeded to the next step of the evaluation sequence.”); Washington v. Astrue, 698
F. Supp. 2d 562, 580 (D.S.C. 2010) (adopting Report and Recommendation that included a
collection of cases and finding “no reversible error where the ALJ does not find an impairment
severe at step two provided that he or she considers that impairment in subsequent steps”).
At Step Three, it appears to be undisputed that McLeod’s impairments do not meet or equal
the requirements of the Listings; therefore, the court next examines whether the ALJ erred at Step
Four of the sequential process in determining that McLeod could perform her past relevant work.
In evaluating this step, the court first examines the ALJ’s residual functional capacity analysis.
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A claimant’s residual functional capacity is the most [a claimant] can still do despite [her]
limitations” and is determined by assessing all of the relevant evidence in the case record. 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). In assessing RFC, an ALJ should scrutinize “all of the relevant
medical and other evidence.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). Social Security Ruling
96-8p further requires an ALJ to reference the evidence supporting his conclusions with respect to
a claimant’s RFC. As stated above, the ALJ found that McLeod had the residual functional capacity
to perform medium work.
In support of this finding, the ALJ explicitly discussed the medical evidence of record, which
included medical records from McLeod Family Medicine Center, Three Rivers Therapy Associates,
Pee Dee Orthopaedic Associates, and Hope Health, as well as a radiology report from Image Care.
The ALJ stated that records from August and September 2010 revealed complaints of thigh pain,
tenderness and spasm in the right lumbosacral area into the right hip and leg, and complaints of back
pain with radiation into the right hip and leg. However, the ALJ observed that McLeod’s physical
examination in September 2010 “was essentially within normal limits except for dome forward
flexion and extension reproduced low back pain.” (Tr. 20.) The ALJ found that the MRI findings
from October 2010 revealed mild chronic L4-5 radiculopathy. The ALJ indicated that McLeod’s
subsequent treatment included epidural steroid injections, and in February 2011, a prescription for
Celebrex and physical therapy for her lumbar spine symptoms as well as hot and cold modalities.
The ALJ stated that, also in February 2001, McLeod continued to report low back pain with no
improvement with treatment; however, her “[p]hysical examination was essentially within normal
limits except for some tenderness and spasm in the right lumbosacral area into the right hip and leg.”
(Id.) Although McLeod reported right foot pain and leg pain in March 2011, her examination was
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essentially normal with only some mild edema. The ALJ observed that McLeod was seen in August
2011 secondary to depression and weakness. The ALJ stated that her “[p]hysical examination
showed no significant abnormalities. There was muscle spasm noted in the lumbar spine; however,
there was full range of motion noted otherwise. There was no neurological or sensory deficit and
deep tendon reflexes were preserved and symmetric. Clinical assessment was atypical depressive
disorder with muscle weakness and menopausal disorder.” (Id.)
The ALJ stated that in September 2011, McLeod complained of ongoing back pain with
radiation that was stable and occurred intermittently. McLeod “indicated that her symptoms were
aggravated by bending, changing positions, daily activities, rolling over in the bed, sitting, twisting
and walking. However, her symptoms were relieved by heat, lying down and physical therapy.” (Tr.
21.) The ALJ observed that in February 2012, when McLeod complained of joint stiffness and
anxiety and indicated that her pain was due to the rainy weather and radiated down her right leg,
McLeod’s “[m]usculoskeletal examination was positive for back and joint pain but negative for any
joint swelling, muscle weakness and neck pain. Physical examination revealed her gait was normal
[and McLeod] was counseled on the importance of weight loss.” (Id.) In March 2012, McLeod
reported symptoms related to depression, and examination revealed that she was alert and oriented
and demonstrated appropriate mood and affect. McLeod was diagnosed with atypical depressive
disorder. The ALJ observed that additional treatment notes reflected depression with a global
assessment functioning score of 55 and indicated that McLeod’s depression was associated with
chronic pain and irritability. In May 2012, McLeod reported that her depression was better on
medication.

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The ALJ further summarized McLeod’s hearing testimony as follows:
The claimant testified she started having problems with mental condition, back and
leg in 2010. She indicated her pain is severe at times and she has to lie down. She
then indicated her pain was severe all the time. She testified that she has depression
from her pain and that she is on medication. In addition, she stated that her blood
pressure was controlled on medication and she was on medication for asthma. The
claimant testified that she was able to walk from the parking lot into the hearing
office and that she could walk to the parking lot and come back into the building.
She testified to a little problem with sitting and stated that her legs get numb and that
she could sit 10-15 minutes. She also testified that she could lift 10-15 pounds with
both hands.
(Id.) However, the ALJ found that McLeod’s “allegations concerning impairments/disability and
the inability to work are not substantiated by the total evidence of record and are not credible.” (Id.)
In reaching this conclusion, the ALJ stated that (1) the evidence confirms diagnostic findings
consistent with mild chronic L4-5 radiculopathy; (2) the evidence has shown that McLeod underwent
lumbar steroid injections and physical therapy; (3) McLeod’s physical examinations have been
essentially normal despite reports of no improvement with her treatment; and (4) McLeod has no
neurological or sensory deficits and deep tendon reflexes have been preserved and symmetric. The
ALJ further found that McLeod was on medication for her depression, which the evidence reflects
was associated with her pain and irritability. The ALJ indicated that McLeod is able to watch
television, attend church, and perform various activities around the home, and that despite her
testimony that she could only sit for ten to fifteen minutes, McLeod sat for at least thirty-five minutes
at the hearing before the discussion of any limitations pertaining to her sitting occurred.
The ALJ also found that no treating or examining physician has indicated that McLeod is
totally disabled or even more limited than determined in his decision.

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In summary the ALJ stated that
[a]fter careful review of the entire record, the undersigned finds that the evidence as
to the claimant’s condition, activities, capabilities and other subjective symptoms is
not consistent with the degree of disabling impairments she alleged. Although the
claimant has impairments that impose some limitations upon her ability to work, the
evidence fails to substantiate that her impairments, either singly or in combination,
are of the severity as to preclude the performance of all work-related activities. Upon
review of the total evidence of record, and in consideration of the combined effect
of the claimant’s impairments, including all severe impairments, nonsevere
impairments, and subjective complaints, the undersigned finds claimant’s
degenerative disc disease could reasonably be expected to restrict the claimant to the
performance of medium work.
(Tr. 22.)
Upon review the record as a whole, the court finds that McLeod has not demonstrated that
the ALJ’s residual functional capacity analysis is unsupported by substantial evidence of controlled
by an error of law. In compliance with SSR 96-8p, the ALJ provided an extensive narrative
discussion, which included a full discussion of the medical and nonmedical evidence. The ALJ’s
discussion explained his resolution of inconsistencies or ambiguities of the evidence in the case
record, such as his evaluation of McLeod’s subjective complaints as well as the medical evidence.
To the extent that McLeod’s own testimony and self-reports indicate additional limitations,
the ALJ found McLeod to be not entirely credible, and the court finds that McLeod cannot
demonstrate that this determination is unsupported or controlled by an error of law. It is the ALJ’s
duty to weigh credibility, and the court finds the ALJ’s conclusion comfortably within the bounds
of substantial evidence. See Craig v. Chater, 76 F.3d 585, 594-95 (4th Cir. 1996) (discussing the
two-step process in evaluating subjective complaints to determine whether a person is disabled by
pain or other symptoms); id. at 589 (stating that the court may not “undertake to re-weigh conflicting
evidence, make credibility determinations, or substitute [its] judgment for that of the
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[Commissioner]”). Moreover, the ALJ’s decision clearly reflects that he considered the relevant
factors in weighing McLeod’s credibility. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (listing
the relevant factors for consideration by the Commissioner in evaluating subjective complaints).
Although McLeod’s subjective complaints “may not be disregarded solely because they are not
substantiated by objective medical evidence,” SSR 96-7p, the ALJ properly considered the objective
medical evidence and other objective evidence in evaluating McLeod’s complaints and the extent
to which they impair her ability to work. See Craig, 76 F.3d at 595. Therefore, the court finds that
McLeod cannot demonstrate that the ALJ’s credibility analysis as a whole is unsupported by
substantial evidence or controlled by an error of law. See Hines v. Barnhart, 453 F.3d 559, 565 n.3
(4th Cir. 2006) (noting that a claimant’s allegations “need not be accepted to the extent that they are
inconsistent with available evidence”); Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993) (per
curiam) (finding that the ALJ may properly consider inconsistencies between a plaintiff’s testimony
and the other evidence of record in evaluating the credibility of the plaintiff’s subjective complaints);
Blalock, 483 F.2d at 775 (indicating that even if the court disagrees with the Commissioner’s
decision, the court must uphold it if it is supported by substantial evidence).
As pointed out by the Commissioner, the only other evidence of record that may indicate
additional limitations is an opinion from a state agency record reviewer, Dr. Mary Lang, dated April
2011. Dr. Lang found that McLeod had functional limitations consistent with light work with no
more than frequent pushing and pulling with her lower right extremity; only occasional stooping,
crouching, and crawling; and frequent climbing, balancing, kneeling, and overhead lifting. (Tr. 56673.) Even if the ALJ erred in failing to adequately explain his evaluation of this opinion and erred
in failing to reduce McLeod’s residual functional capacity to include these limitations, the court finds
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any such error to be harmless as the ALJ found that McLeod could perform her past relevant work
as a pie maker. As argued by the Commissioner, “this job requires light exertion, no more than
frequent reaching, and no climbing, balancing, stooping, kneeling, crouching, or crawling.” (Def.’s
Br. at 6 n.8, ECF No. 28 at 6 n.8) (citing Dictionary of Occupational Titles (“DOT”) # 313.361-038).
McLeod cannot show that the ALJ’s determination that she could perform her past relevant
work is unsupported by substantial evidence or controlled by an error of law. As stated above, a
claimant has the initial burden of showing that she is unable to return to her past relevant work
because of her impairments. “Past relevant work” is defined by the regulations as “work that you
have done within the past 15 years, that was substantial gainful activity, and that lasted long enough
for you to learn to do it.” 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1); see also 20 C.F.R.
§§ 404.1574, 416.974 (discussing substantial gainful activity). In determining whether a claimant
can perform her past relevant work, the Commissioner “will ask [the claimant] for information about
work you have done in the past” and “may also ask other people who know about your work” and
“may use the services of vocational experts or vocational specialists, or other resources, such as the
‘Dictionary of Occupational Titles’ and its companion volumes and supplements, published by the
Department of Labor, to obtain evidence [he] need[s] to help [him] determine whether [a claimant]
can do [her] past relevant work, given [her] residual functional capacity.”

20 C.F.R.

§§ 404.1560(b)(2), 416.960(b)(2). Further, a claimant is generally not disabled if she can return to
her past relevant work as she performed it or as it is customarily performed throughout the economy.
Id.; SSR 82-61. In this case, the vocational expert testified that an individual with McLeod’s
residual functional capacity could perform her past relevant work, which the vocational expert
described as a dietary aide (DOT # 319.677-04, medium unskilled work with an SVP of 2), kitchen
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helper (DOT # 318.687-010, medium unskilled work with an SVP of 2), pie maker (DOT # 313.361038, light semi-skilled work with an SVP of 6), and general dessert maker including pastry maker
(DOT # 313.381-026, medium semi-skilled work with an SVP of 7). Relying on this testimony, the
ALJ found that McLeod retained the residual functional to perform this work. Once the ALJ
determined that McLeod retained the residual functional capacity to return to her past relevant work,
the ALJ could determine that McLeod was not disabled and review did not need to proceed any
further. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
ORDER
Based on the foregoing, McLeod is unable to demonstrate that the Commissioner’s decision
that she is not disabled is unsupported by substantial evidence or reached through application of an
incorrect legal standard. See Craig, 76 F.3d at 589; see also 42 U.S.C. § 405(g); Coffman, 829 F.2d
at 517. Therefore, it is hereby
ORDERED the Commissioner’s decision is affirmed.
IT IS SO ORDERED.
____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
August 29, 2014
Columbia, South Carolina

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