Harris v. Commissioner of Social Security

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION: It is the opinion of the Court that the magistrate judges Report and Recommendation 18 be ADOPTED. The plaintiffs Objections 19 are OVERRULED. ORDERED that the defendants Motion for Summary Judgment [1 6] is GRANTED and the plaintiffs Motion for Summary Judgment 13 is DENIED and the Court DENIES and DISMISSES the plaintiffs Complaint 2 and ORDERS that this matter be STRICKEN from the active docket of this Court. The Clerk is directed to enter a separate judgment in favor of the defendant. Signed by Chief Judge John Preston Bailey on 3/21/13. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
THOMAS C. HARRIS,
Plaintiff,
v.

Civil Action No. 2:12-CV-45
(BAILEY)

MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation (“R&R”) of United States Magistrate Judge James E. Seibert
[Doc. 18] and the plaintiff’s Objections thereto [Doc. 19].

Pursuant to 28 U.S.C. §

636(b)(1)(C), this Court is required to make a de novo review of those portions of the
magistrate judge’s findings to which objection is made. However, failure to file objections
permits the district court to review the R&R under the standards that the district court
believes are appropriate, and under these circumstances, the parties’ right to de novo
review is waived. See Webb v. Califano, 468 F.Supp. 825 (E.D. Cal. 1979). Accordingly,
this Court will conduct a de novo review only as to those portions of the R&R to which the
plaintiff objected. The remaining portions of the R&R will be reviewed for clear error. As
a result, it is the opinion of this Court that the R&R should be ADOPTED.
I. Background
On September 27, 2004, the plaintiff filed a disability claim and his first supplemental

1

security income (“SSI”), alleging that he became disabled on or about December 2, 2002
[R. 126; see also R. 18]. This initial claim was denied on February 2, 2005, and again upon
reconsideration on September 21, 2005 [R. 126]. On October 6, 2005, the plaintiff
requested a hearing [Id.]. A hearing was held on October 25, 2006, and January 18, 2007,
before Administrative Law Judge (“ALJ”) Karl Alexander [Id.; see also R. 39 and R.137].
On April 5, 2007, ALJ Alexander rendered an unfavorable ruling [R. 123-137]. The ALJ
determined that the plaintiff had the following severe combination of impairments: (1)
degenerative disc disease/degenerative arthritis of the lumbar spine, with left radiculopathy
causing intermittent left leg pain and weakness; (2) facet joint arthropathy; (3) decreased
strength of the non-dominant left hand of undetermined etiology; and (4) obesity [R. 12829]. However ALJ Alexander found that these impairments or combination of impairments
do not “meet[ ] or medically equal[ ] one of the listed impairments in 20 CFR Part 404,
Subpart A, Appendix 1 . . .” [R. 129]. Although he found that the plaintiff could no longer
perform his past work, which was classified as “medium work” [R. 135-36], ALJ Alexander
determined that the plaintiff had the residual functional capacity to perform a range of light
work activity with certain limitations [R. 129-35].1 Accordingly, the ALJ ruled that the
plaintiff was not disabled [R. 137]. The plaintiff filed a request for review of the ALJ’s
decision with the Appeals Council on April 21, 2007 [R. 18]. The Appeals Council denied
the request for review on April 21, 2009 [R. 140-45]. The plaintiff did not appeal this initial

1

In particular, the ALJ found that the plaintiff “is able to perform a range of light work;
requires a sit/stand option; can perform postural movements occasionally[,] except [he]
cannot climb ladders, ropes or scaffolds; should not be exposed to temperature extremes
or hazards; and is limited to unskilled work involving only routine and repetitive instructions
and tasks” [R. 129].
2

unfavorable ruling to a federal district court [R. 89].
On April 30, 2007, the plaintiff filed his second SSI claim, alleging that he became
disabled on or about December 2, 2002, due to carpal tunnel syndrome, back and leg pain,
circulation problems, and eye problems [R. 18]. This second claim was denied on August
1, 2007, and again upon reconsideration on November 1, 2007 [Id.]. On January 3, 2008,
the plaintiff requested a hearing [R. 156-58; see also R. 159-64]. A hearing was held
before ALJ Alexander on July 1, 2009, [R. 79-90; see also R. 168-87] and February 4, 2010
[R. 45-76; see also R. 192-214].

On April 22, 2010, ALJ Alexander rendered an

unfavorable ruling [R. 15-38]. The ALJ determined that the plaintiff has the following severe
impairments: (1) degenerative disc disease of the lumbar spine with grade I
spondylolisthesis and left radiculopathy causing intermittent leg pain and weakness; (2)
facet joint arthropathy; (3) bilateral carpal tunnel syndrome, status post bilateral surgical
releases; (4) obesity; (5) dysthymic disorder/major depressive disorder; (6) generalized
anxiety disorder; and (7) borderline intellectual functioning [R. 20-21]. However ALJ
Alexander found that these impairments or combination of impairments do not “meet[ ] or
medically equal[ ] one of the listed impairments in 20 CFR Part 404, Subpart A, Appendix
1 . . .” [R. 21; see also R. 21-34]. Although he found that the plaintiff could no longer
perform his past work as an automotive mechanic [R. 37], ALJ Alexander determined that
the plaintiff has the residual functional capacity to perform light work with certain limitations
[R. 34-36].2 Accordingly, the ALJ ruled that the plaintiff is not disabled [R. 38]. The plaintiff
2

In particular, the ALJ found that the plaintiff is able “to perform light work . . . with
an option to sit or stand; performing all posturals occasionally, except no climbing of
ladders, ropes or scaffolds; no exposure to temperature extremes, wet/humid conditions,
or hazards; no overhead reaching or lifting; limited to low stress work with no
3

filed a request for review of the ALJ’s decision with the Appeals Council on June 8, 2010
[R. 13-14]. The Appeals Council denied the request for review on May 8, 2012 [R. 1-6].
On June 25, 2012, the plaintiff filed a complaint [Doc. 2] seeking judicial review of
the April 22, 2010, adverse decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to the Local Rules, this case was referred to Magistrate Judge Seibert for a
recommended disposition. On October 5, 2012, and November 5, 2012, the plaintiff and
the defendant filed their respective motions for summary judgment [Docs. 13 & 16]. In the
complaint and memorandum of law in support of his motion for summary judgment, the
plaintiff states that the ALJ’s decision should be reversed because it is not supported by
substantial evidence and the ALJ committed multiple errors of law and fact [Doc. 2 at 2].
First, the plaintiff asserts that his due process rights were violated when the case
was assigned to ALJ Alexander out of rotation [Doc. 13-1 at 7-11]. Second, the plaintiff
alleges that the vocational expert testimony was inconsistent with the relevant manuals and
the Commissioner failed to meet its burden of proof regarding jobs for which the plaintiff
qualified [Id. at 11-12]. Third, the plaintiff claims that the ALJ’s decision lacks substantial
support because the carpal tunnel syndrome finding did not include any manipulative
limitations in the plaintiff’s residual functional capacity assessment and, despite the
inclusion of overhead reaching limitations in the RFC assessment, the ALJ did not find any
severe shoulder impairment [Id. at 12-13]. Fourth, the plaintiff asserts that the ALJ’s
decision to not reopen the prior claim is not supported by substantial evidence [Id. at 13-

production/assembly line pace; no independent decision making responsibilities; work
should be unskilled involving routine, repetitive instructions and tasks; no interaction with
the general public; and no more than occasional interaction with coworkers and supervisors
[R. 34].
4

14]. Finally, the plaintiff argues that the ALJ failed to consider the April 5, 2007, decision
as evidence in accordance with Social Security Acquiescence Ruling 00-1(4) [Id. at 14-15].
In the brief in support of its motion for summary judgment, the defendant responds
to each claim and argues that the ALJ’s decision is supported by substantial evidence [Doc.
17]. In addition, the defendant argues that (1) the plaintiff was deprived of neither due
process nor a fair administrative hearing [Id. at 9-11], (2) the ALJ did not err at Step Two
of the sequential evaluation process [Id. at 11-12], (3) the ALJ’s ruling does not violate
Acquiescence Ruling 00-1(4) [Id. at 12-14], (4) the ALJ did not abuse his discretion in
declining to reopen plaintiff’s first application [Id. at 14-15], (5) the ALJ’s RFC finding
accommodated the plaintiff’s credibly established limitations [Id. at 15-16], and (6) the
vocational expert’s testimony constitutes substantial evidence supporting the ALJ’s decision
[Id. at 16-19].
On November 30, 2012, Magistrate Judge Seibert entered his R&R in which he
concludes that the ALJ’s decision denying the plaintiff’s applications for disability and
supplemental security income is supported by substantial evidence [Doc. 18 at 16]. As
such, the magistrate judge recommends that the plaintiff’s motion for summary judgment
be denied and the defendant’s motion for summary judgment be granted [Id.].

On

December 13, 2012, the plaintiff filed timely objections [Doc. 19] to these conclusions in the
magistrate judge’s report and recommendation. The defendant filed a response thereto on
December 27, 2012 [Doc. 20].
II. Applicable Legal Standards
A. Judicial Review of an ALJ Decision
Judicial review of a final decision regarding disability benefits is limited to
5

determining whether the findings are supported by substantial evidence and whether the
correct law was applied. See 42 U.S.C. § 405(g). “The findings . . . as to any fact, if
supported by substantial evidence, shall be conclusive.” Richardson v. Perales, 402 U.S.
389, 390 (1971); and Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). The phrase
“‘supported by substantial evidence’” means “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” See Perales, 402 U.S. at 401 (citing
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “consists
of more than a mere scintilla of evidence[,] but may be somewhat less than a
preponderance . . ..” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Thus, “[i]t
is not within the province of a reviewing court to determine the weight of the evidence; nor
is it [the court’s] function to substitute [its] judgment . . . if [the] decision is supported by
substantial evidence.” Id. (citing Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962)).
Ultimately, it is the duty of the ALJ reviewing a case, and not the responsibility of the courts,
to make findings of fact and to resolve conflicts in the evidence. 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.” Id.; see also Seacrist v. Weinberger, 538 F.2d 1054,
1056-57 (4th Cir. 1976); and Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
B. Five-Step Evaluation Process
To determine whether a claimant is disabled, the ALJ considers the following fivestep evaluation process:
Step One:

Determine whether the claimant is engaging in substantial
gainful activity;

Step Two:

Determine whether the claimant has a severe impairment;
6

Step Three: Determine whether the claimant has a listed impairment (20
C.F.R. Part 404, Subpart P, Appendix 1) and conduct a
Residual Functional Capacity (“RFC”) assessment;
Step Four:

Consider the RFC assessment to determine whether the
claimant can perform past relevant work; and

Step Five:

Consider the RFC assessment, age, education, and work
experience to determine whether the claimant can perform any
other work.

See 20 C.F.R. § 404.1520(a)(4) (2011).
Once the claimant satisfies Steps One and Two, he/she will automatically be found
disabled if he/she suffers from a listed impairment and meets the duration requirement.
Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984); 20 C.F.R. § 404.1509. If the
claimant does not have listed impairments but cannot perform his/her past work, the burden
shifts to the Commissioner to show that the claimant can perform some other job.
Rhoderick, 737 F.2d at 715.
III. Discussion
At Step One, the ALJ determined that the plaintiff had not engaged in substantial
gainful activity since April 30, 2007 [R. 20]. At Step Two, the ALJ held that the plaintiff had
the following severe impairments: (1) degenerative disc disease of the lumbar spine with
grade I spondylolisthesis and left radiculopathy causing intermittent leg pain and weakness;
(2) facet joint arthropathy; (3) bilateral carpal tunnel syndrome, status post bilateral surgical
releases; (4) obesity; (5) dysthymic disorder/major depressive disorder; (6) generalized
anxiety disorder; and (7) borderline intellectual functioning [R. 20-21]. At Step Three, the
ALJ found that the plaintiff did not meet a listing impairment [R. 21-34] and has the RFC
to perform light work with certain limitations [R. 34-36]. At Step Four, the ALJ determined
7

that the plaintiff is unable to perform past relevant work [R. 37]. At Step Five, the ALJ ruled
that the “there are jobs that exist in significant numbers in the national economy that the
[plaintiff] can perform . . .” [R. 37].
In his R&R, the magistrate judge recommends that this Court affirm the ALJ’s
decision [Doc. 18]. On December 13, 2012, the plaintiff filed timely objections [Doc. 19],
taking issue with the conclusions of the magistrate judge; the defendant filed a response
to the plaintiff’s objections [Doc. 20] on December 27, 2012. This Court will address the
objections as they relate to each of the plaintiff’s claims of error discussed above. In so
doing, the Court will determine, de novo, whether any claim of error necessitates a finding
that the ALJ’s decision is not supported by substantial evidence.
A. Failure to Assign a Different ALJ
The plaintiff argues in his Motion for Summary Judgment that the failure to assign
a different ALJ violated the policy expressed in the Hearings, Appeals and Litigation Law
Manual (“HALLEX”) as well as his constitutional right of due process of law based upon “the
Administrative Procedures [sic] Act requiring rotational assignment of ALJs” [Doc. 13-1 at
3, citing R. 612-621; see also id. at 7-11]. The magistrate judge concludes in his R&R that
HALLEX is merely an internal policy manual that does not impose judicially enforceable
duties on the ALJ [Doc. 18 at 10-11];3 in addition, the ALJ concludes that the plaintiff failed
3

HALLEX is a “manual in which the Associate Commissioner of Hearings and
Appeals conveys guiding principles, procedural guidance and information to the Office of
Hearings and Appeals (OHA) staff.” Melvin v. Astrue, 602 F.Supp.2d 694, 699 (E.D. N.C.
2009). HALLEX I-2-1-55 states that, when the OHA receives a request for hearing, the
Hearing Office Chief ALJ (“HOCALJ”) shall assign the case to an ALJ. These assignments
are generally done on a rotational basis, “with the earliest (i.e., oldest) [request for hearing]
receiving priority, unless there is a special situation which requires a change in the order
in which a case is assigned.” HALLEX I-2-1-55A. However, as noted by the magistrate
8

to demonstrate that either any bias resulted from ALJ Alexander hearing the plaintiff’s case
or ALJ Alexander was not competent to hear the plaintiff’s case [Id. at 11-12]. In his
objections, the plaintiff states that he agrees with the magistrate judge’s conclusion that this
Court “could not force the Commissioner to follow [HALLEX] or provide a remedy to a
claimant who avers that the Commissioner did not follow it” [Doc. 19 at 1]. However, the
plaintiff states that he objects to the magistrate judge’s conclusion because “the
constitutional issue was not addressed” [Id.]. In particular, the plaintiff argues that (1) no
justification for the assignment out of rotation was provided when the issue was raised and
(2) “there would appear to be some potential personal interest in ‘sticking to his guns’ so
to speak with a plaintiff whose credibility he emphatically found lacking in the prior decision”
[Id. at 2]. The defendant responds that the R&R specifically addressed the plaintiff’s
constitutional arguments and concluded that the plaintiff’s due process of law rights were
not violated [Doc. 20 at 2, citing Doc. 18 at 11-12].
Pursuant to section 3105 of the Administrative Procedure Act (“APA”), “[ALJs] shall
be assigned to cases in rotation so far as practicable . . ..” 5 U.S.C. § 3105. In his R&R,
Magistrate Judge Seibert analyzes the plaintiff’s APA argument and notes that “[t]he
Supreme Court [of the United States] has held that the ‘so far as practicable’ language in
the APA ‘allows assignments to be determined by more than just the mere mechanical
judge, HALLEX is “an internal Social Security Administration policy manual . . . [that] does
not impose judicially enforceable duties on either the ALJ or [the] court.” Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1072 (9th Cir. 2010); see also Allen v. Astrue,
2010 WL 2196530, *7 (N.D.W.Va. May 28, 2010) (in which the Honorable District Judge
Frederick P. Stamp, Jr., stated that “HALLEX, as an internal guidance tool, ‘lacks the force
of law’”) (internal citations omitted). Furthermore, even if HALLEX were binding and a
source of a remedy, the plaintiff must establish that the failure to comply with HALLEX
resulted in prejudice. See Melvin, 602 F.Supp.2d at 704.
9

rotation of giving the next case on the docket to the top name on the list of available
examiners.’ Sykes v. Bowen, 854 F.2d 284, 288 (8th Cir. 1988) (citing Ramspeck v.
Federal Trial Examiners Conference, 345 U.S. 128, 139 (1953))” [Doc. 18 at 11]. In
addition, the magistrate judge notes that certain factors are considered “in determining any
impropriety in going outside the rotation:” (1) complexity of the case, (2) the ability of the
ALJ, and (3) any bias that would prevent a fair hearing. Id. (citing AAACON Auto
Transport, Inc., v. I.C.C., 792 F.2d 1156, 1163 (D.C. Cir. 1986), cert. denied, 481 U.S.
1048 (1987))].
The plaintiff makes no argument regarding the complexity of the case or ALJ
Alexander’s ability requiring a different ALJ. See Docs. 13 and 19. Instead the plaintiff
argues that there was an appearance of bias because of the “potential personal interest in
[the ALJ] ‘sticking to his guns’ so to speak with a plaintiff whose credibility he emphatically
found lacking in [an earlier] decision” [Doc. 19 at 2]. The plaintiff further argues that he
believes that he was not provided “a fair and impartial tribunal,” stating that the tone of the
decision bolsters this belief [Doc. 19 at 2]. However, the plaintiff’s statements that there
was a potential for bias or that he feels that he was not provided with a fair hearing are not
sufficient to establish that an actual bias existed. Furthermore, ALJ Alexander specifically
stated that he had no problem reaching a different conclusion on the plaintiff’s second
application if the evidence supported a finding of disability.4 Accordingly, this Court hereby
4

The record demonstrates that counsel for the plaintiff reiterated the plaintiff’s
objection to ALJ Alexander conducting the July 1, 2009, hearing during his opening
statement [R. 82; 83-84]. Counsel for the plaintiff noted on the record that he did not
receive anything in writing from the ALJ; however, he stated that he did receive a message
from the ALJ’s staff that the ALJ would proceed with the hearing [R. 83]. In response, ALJ
Alexander said that “[he] turned that matter over to [Hearing Office Chief] Judge [George
10

OVERRULES the plaintiff’s objections on this issue. For these reasons and those more
fully stated in the magistrate judge’s R&R, this Court finds that there was no reversible error
when ALJ Alexander heard the plaintiff’s second claim.
B. Testimony by the Vocational Expert
The vocational expert testified at the February 4, 2010, hearing that an individual
with the claimant’s RFC could perform the job duties of an office assistant or a laundry
folder at the light level and the job duties of a machine tender or a general sorter at the
sedentary level [R. 68-69]. In his R&R, the magistrate judge concludes that the plaintiff
could not perform the duties for a laundry folder position [Doc. 18 at 12]; however, the
magistrate judge notes that the inclusion of laundry folder as a potential occupation was
a harmless error because the plaintiff could perform the duties of other jobs identified by
the vocational expert (e.g., office assistant) [Id.]. The plaintiff objects to the magistrate
judge’s conclusion that the vocational expert’s testimony was consistent with the relevant
manuals [Doc. 19 at 2-3]. In particular, the plaintiff argues that the identified job of office
assistant requires frequent reaching in all directions, which is inconsistent with the plaintiff’s
restriction from overhead reaching [Id.].5

A.] Mills,” who determined that ALJ Alexander should proceed with the hearing [Id.]. In
addition, ALJ Alexander stated the following on the record: “I feel that I can be fair. If I
think that Mr. Harris is disabled, I’ll pay the case. I don’t have any problem with that. So
I don’t have any real personal interest in the outcome of the case” [R. 88]. At the February
4, 2010, hearing, counsel for the plaintiff again noted the objection to ALJ Alexander
holding the hearing [R. 50]. Counsel for the plaintiff stated that he never received any
ruling detailing why the laws to which he cited in his objection are not applicable [R. 51].
After noting the objection, counsel for the plaintiff said that he was ready to proceed with
the hearing [Id.].
5

The plaintiff also reiterates his argument that the identified job of laundry folder is
inconsistent with his restriction from overhead reaching and restriction against exposure
11

The plaintiff argues that the vocational expert’s testimony conflicted with the
Dictionary of Occupational Titles and Selected Characteristics of Occupations Defined in
the Revised Dictionary of Occupational Titles [Doc. 19 at 2-4]. In particular, the plaintiff
states that this Court should assume that overhead reaching is a required task in an office
assistant job because “[a]ny office with standard four drawer file cabinets and wall shelving
for packages would potentially involve overhead reaching” [Id. at 3]. However, the United
States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) has found that a vocational
expert’s testimony that overhead reaching is usually not involved in a certain job does not
conflict with the Dictionary of Occupational Titles where the job description requires nonspecific reaching and does not specifically state that overhead reaching is required. Byrd
v. Apfel, 1998 WL 911718, *6 (4th Cir. Dec. 31, 1998). In fact, the vocational expert in this
case testified at the February 4, 2010, hearing that, even if the plaintiff were restricted to
no more than occasional reaching with either shoulder, he could still perform the duties of
office assistant [R. 71]. Accordingly, the ALJ met his burden to establish that a significant
number of jobs in one or more occupations exist in the national economy that the plaintiff
can perform. See 20 C.F.R. § 404.1520(a)(4) (2011); see also Rhoderick v. Heckler, 737
F.2d 714, 715 (7th Cir. 1984). As such, this Court OVERRULES the plaintiff’s objection on
this issue.
C. Inconsistency Between the ALJ’s Step Two Findings
and RFC Conclusion
At Step Two, the ALJ found that the plaintiff had a severe impairment of carpal

to temperature extremes or wet/humid conditions [Doc. 19 at 2-3].
12

tunnel syndrome; the ALJ did not include any limitations related to carpal tunnel syndrome
in the RFC assessment [R. 34].6 The plaintiff objects to the magistrate judge’s conclusion
that there was no inconsistency between the ALJ’s findings at Step Two and the RFC
conclusion [Doc. 19 at 3-4]. The plaintiff states that “[t]he R&R was not responsive to the
real issue” [Id. at 3]. The plaintiff argues that the ALJ failed to include his severe shoulder
impairment at Step Two; however, the plaintiff states that this was not prejudicial because
the ALJ included a limitation in the RFC restricting the plaintiff from overhead reaching [Id.
at 4].7 In addition, the plaintiff argues that the ALJ erred by not including a significant
limitation in the RFC conclusion based upon his severe carpal tunnel impairment found at
Step Two [Id.]. The plaintiff states that this omission was prejudicial because “[a]dditional
restrictions in the ALJ’s RFC related to manipulation in handling and/or fingering and/or
repetitive stress of the sort to cause or aggravate a carpal tunnel condition would probably
in combination with the other limitations have ended the inquiry regarding jobs that the
claimant could still perform” [Id.].
In the R&R, the magistrate judge found that “the existence of limitations found at
[S]tep [T]wo does not necessarily equate to a finding of a disabling RFC because [S]tep

6

In particular, the ALJ found that the plaintiff “has the [RFC] to perform light work as
defined in 20 CFR 416.967(b) with an option to sit or stand; performing all posturals
occasionally, except no climbing of ladders, ropes or scaffolds; no exposure to temperature
extremes, wet/humid conditions, or hazards; no overhead reaching or lifting; limited to low
stress work with no production/assembly line pace; no independent decision making
responsibilities; work should be unskilled involving routine, repetitive instructions and tasks;
no interaction with the general public; and no more than occasional interaction with
coworkers and supervisors [R. 34].
7

Because the plaintiff states that this was a harmless error, this Court will not
address this argument in this Order.
13

[T]wo and [S]teps [F]our and [F]ive require different levels of severity of limitations” [Doc.
18 at 14 (citing Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007); Farrill v. Astrue,
2012 U.S. App. LEXIS 13222 (10th Cir. June 28, 2012) (unpublished); Hancock v. Astrue,
2012 U.S. Dist. LEXIS 52697, *17 n.8 (M.D.N.C. July 9, 2012))]. At Step Two of the fivestep sequential evaluation process, the ALJ “consider[s] the medical severity of [the
claimant’s] impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). At Steps Four and Five, the ALJ
assesses what the plaintiff is able to do despite any impairments or limitations based upon
the RFC conclusion. Id. at 404.1520(a)(4)(iv)-(v); 20 C.F.R. § 404.1545(a)(1).
In reaching his RFC conclusion, the ALJ found the claimant to not be entirely
credible and cited to medical evidence demonstrating instances where the claimant
exaggerated symptoms and limitations [R. 34-36]. As such, the ALJ gave less weight to
medical evidence based purely upon the claimant’s subjective statements concerning his
symptoms and limitations [R. 36]. In deciding to not include functional limitations regarding
the carpal tunnel syndrome, the ALJ cited to substantial objective evidence that
contradicted the plaintiff’s subjective complaints [R.34-36].8 Because the ALJ’s RFC
conclusion is supported by substantial evidence, this Court hereby OVERRULES the
plaintiff’s objection on this issue.
D. ALJ’s Decision Not to Reopen the Prior File
The plaintiff objects to the magistrate judge’s conclusion that this Court lacks
8

“In contrast to the claimant’s complaints regarding his carpal tunnel syndrome, at
[a] follow up in March 2008, Dr. Snead reported that the claimant’s numbness had
‘markedly’ improved. He stated that the claimant’s fingers were still a ‘little bit’ stiff, but
noted that it would go away with time and recommended that the claimant . . . work on it.
Dr Snead advised the claimant to return as needed. The evidence of record indicates that
the claimant did not return with any complaints regarding his carpal tunnel . . .” [R. 35].
14

jurisdiction to review the ALJ’s decision not to reopen the prior file [Doc. 19 at 4-5]. The
plaintiff argues that this Court can review the ALJ’s decision “to determine whether the ALJ
properly applied correct legal standards and procedures in making his determinations
regarding the prior decision” [Id. at 4]. The plaintiff argues that the ALJ should have found
certain EMG evidence regarding carpal tunnel syndrome to be new and material to the prior
decision [Id. at 4-5].
Pursuant to 20 C.F.R. § 416.1488(b), “[a] determination . . . may be reopened . . .
within two years of the date of the notice of the initial determination [for] good cause . . . to
reopen the case.” 20 C.F.R. § 416.1488(b). Such good cause includes the submission of
new and material evidence. See id.; see also 20 C.F.R. § 416.1489. At the July 1, 2009,
hearing, the plaintiff made a request to reopen the April 5, 2007, determination [R. 84-85].
This Court first notes that this request exceeds the two year statutory time limit. However,
more importantly, the determination to not reopen a prior determination is not a final
decision that is subject to judicial review by this Court because the plaintiff has not brought
a constitutional claim with regard to this issue and the prior claim/application was not
constructively reopened. Califano v. Sanders, 430 U.S. 99,107-09 (1977) (judicial review
of the denial of a petition to reopen a previous claim is limited to those rare circumstances
when that decision is challenged on constitutional grounds); Holloway v. Schweiker, 724
F.2d 1102, 1105 (4th Cir. 1984) (the mere allegation of the denial of due process is not
sufficient to establish subject-matter jurisdiction for judicial review of the denial of a petition
to reopen a previous claim where such an allegation is insubstantial or frivolous); Kasey
v. Sullivan, 3 F.3d 75, 78-79 (4th Cir. 1993) (an exception to the general rule that federal

15

courts lack jurisdiction to review the decision to not reopen a previous claim exists where
there has been a “constructive” reopening of the prior claim). As such, this Court finds that
it does not have jurisdiction to review the ALJ’s determination to not reopen the plaintiff’s
prior file. Accordingly, this Court hereby OVERRULES the plaintiff’s objection on this issue.
E. Acquiescence Ruling 00-1(4)
The plaintiff objects to the magistrate judge’s conclusion that the ALJ performed the
required analysis pursuant to Acquiescence Ruling 00-1(4) [Doc. 19 at 5]. The Social
Security Administration, issued Acquiescence Ruling (“AR”) 00-1(4) in response to a ruling
by the Fourth Circuit. See AR 00-1(4) (referring to Albright v. Comm’r of the Soc. Sec.
Admin., 174 F.3d 473 (4th Cir. 1999)). Pursuant to AR 00-1(4),9 an ALJ “must consider a
finding . . . made in a final decision by an [ALJ] or Appeals Council on a prior . . . claim.”
AR 00-1(4). Specifically, an ALJ “must consider such finding as evidence and give it
appropriate weight in light of all the relevant facts and circumstances when adjudicating a
subsequent disability claim.” Id. “In determining the weight to be given such a prior finding,
an adjudicator will consider such factors as: (1) whether the fact on which the prior finding
was based is subject to change with the passage of time, such as a fact relating to the
severity of a claimant's medical condition; (2) the likelihood of such a change, considering

9

AR 00-1(4) “applies only to disability findings in cases involving claimants who
reside in Maryland, North Carolina, South Carolina, Virginia or West Virginia at the time of
the determination or decision on the subsequent claim at the initial, reconsideration, ALJ
hearing or Appeals Council level. It applies only to a finding of a claimant's residual
functional capacity or other finding required at a step in the sequential evaluation process
for determining disability provided under 20 CFR 404.1520, 416.920 or 416.924, as
appropriate, which was made in a final decision by an ALJ or the Appeals Council on a prior
disability claim.” Id.
16

the length of time that has elapsed between the period previously adjudicated and the
period being adjudicated in the subsequent claim; and (3) the extent that evidence not
considered in the final decision on the prior claim provides a basis for making a different
finding with respect to the period being adjudicated in the subsequent claim.” Id. However,
less weight should be given to a prior finding when that claim becomes more remote (“e.g.,
where the relevant time period exceeds three years as in Albright”). Id.
The plaintiff argues that the ALJ did not perform the required Albright and AR 001(4) analysis because the ALJ did not explicitly state the weight applied to the April 5, 2007,
decision in his April 22, 2010, ruling [Doc. 19 at 5]. The plaintiff argues that “[c]onclusory
remarks without proper findings do not satisfy the requirements of the ruling” [Id.]. The
plaintiff further argues that this was prejudicial to him because there was “new evidence of
carpal tunnel syndrome, which would potentially have justified a change in the prior RFC
by adding manipulative limitations to the current RFC” [Id.].
Because more than three years passed between the two decisions, the prior April
5, 2007, ruling was not entitled to great weight. See AR 00-1(4). Even though the prior
ruling was not entitled to great weight, the ALJ was still required to consider the prior ruling
as evidence. Id. Although the ALJ did not specifically cite to AR 00-1(4) or his prior ruling
in his April 2010 decision, the List of Exhibits attached to the April 22, 2010, decision
reflects that the ALJ received the prior (April 5, 2007) decision [R. 39]. In addition, the ALJ
considered the prior ruling and findings as demonstrated by the consistent and more
favorable listings of impairments at Step Two10 and RFC conclusion at Step Three.11 The
10

In addition to nearly all of the impairments included in the April 5, 2007, ruling
(degenerative disc disease/degenerative arthritis of the lumbar spine, with left radiculopathy
17

plaintiff argues that, even if the ALJ did consider the prior ruling and findings, he did not
explicitly state the weight assigned to this evidence [Doc. 13-1 at 14-15; Doc. 19 at 5].
However, AR 00-1(4) does not impose such a burden upon the ALJ; AR 00-1(4) merely
states that the ALJ shall consider and weigh the prior ruling as evidence in reaching his
decision in the second claim.
Furthermore, even if the ALJ had erred by not explicitly stating the weight assigned
to the prior ruling and findings, the plaintiff was not prejudiced by such an error. The
plaintiff alleges that he was harmed because there was “new evidence of carpal tunnel
syndrome, which would potentially have justified a change in the prior RFC by adding
manipulative limitations to the current RFC” [Doc. 19 at 5]. However, in his April 22, 2010,
ruling, the ALJ considered the new evidence regarding carpal tunnel syndrome and
determined that this evidence did not support an RFC with manipulative limitations [R. 21,
30-31, and 35]. As such, the plaintiff has not demonstrated any harm. In addition, the

causing intermittent left leg pain and weakness; facet joint arthropathy; and obesity), ALJ
Alexander added the following impairments in his April 22, 2010, ruling: bilateral carpal
tunnel syndrome, status post bilateral surgical releases; dysthymic disorder/amjor
depressive disorder; generalized anxiety disorder; and borderline intellectual functioning
[R. 128; R.20]. The only impairment from the April 2007 decision that was not included in
the April 2010 ruling was “decreased strength of the non-dominant left hand of
undetermined etiology” [Id.].
11

In addition to all of the limitations included in the April 5, 2007, ruling (a range of
light work; requires a sit/stand option; can perform postural movements occasionally except
cannot climb ladders, ropes or scaffolds; should not be exposed to temperature extremes
or hazards; and is limited to unskilled work involving only routine and repetitive instructions
and tasks), ALJ Alexander added the following limitations in his RFC conclusion in the April
22, 2010, ruling: no exposure to wet/humid conditions; no overhead reaching or lifting;
limited to low stress work with no production/assembly line pace; no independent decision
making responsibilities; no interaction with the general public; and no more than occasional
interaction with coworkers and supervisors [R.129; R. 34].
18

plaintiff has not alleged that the outcome would have been different if another ALJ had
heard his case. As such, for these reasons and those more fully stated in the magistrate
judge’s R&R, this Court finds that the ALJ did not commit a reversible error and hereby
OVERRULES the plaintiff’s objection on this issue.
IV. Conclusion
Upon careful consideration, it is the opinion of this Court that the magistrate judge’s
Report and Recommendation [Doc. 18] should be, and hereby is, ADOPTED. Further, the
plaintiff’s Objections [Doc. 19] are OVERRULED. Therefore, this Court ORDERS that the
defendant’s Motion for Summary Judgment [Doc. 16] is hereby GRANTED and the
plaintiff’s Motion for Summary Judgment [Doc. 13] is hereby DENIED. Accordingly, this
Court hereby DENIES and DISMISSES the plaintiff’s Complaint [Doc. 2] and ORDERS that
this matter be STRICKEN from the active docket of this Court. The Clerk is directed to
enter a separate judgment in favor of the defendant.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record.
DATED: March 21, 2013.

19