MCLENDON v. COLVIN, No. 1:2014cv00498 - Document 25 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 11/23/2015. Having reviewed the record, the transcripts and the briefs and filings of the parties, and for the reasons stated abo ve, it is RECOMMENDED that Defendant's motion for judgment on the pleadings (Docket Entry 22 ) be GRANTED. To the extent Plaintiffs response (Docket Entry 17 ) is construed as a motion to dismiss, it is RECOMMENDED that this motion be DENIED. Finally, it is RECOMMENDED that Defendant's motion to dismiss for failure to prosecute (Docket Entry 13 ) be DENIED as moot.(Taylor, Abby)
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MCLENDON v. COLVIN Doc. 25 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DENISE GADDY McCLENDON, Plaintiff, v CAROLYN W, COLVIN, Acting Commissionet of Social S ecurity Adminis tration, Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil,\ction No. 1,:14CY 0498 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE TUDGE Plaintiff, ptoceeding pto se, brought this action pursuant to Section 205(9) of the Social Secutity Act, as amended (42 U.S.C. S 405 (g)), to obtain judicial review ol a fir'al decision of Defendant, the Commissioner of Social Secutity, denying Plaintiffs claims for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act"). This mattet is before the Cout on Defendant's motion for judgment on the pleadings. Q)ocket F,nty 22.) Plaintiff has not filed a response and the period for filing a tesponse bdef has expired. Fot the reasons set fotth below, it is recommended that Defendant's motion be gtanted and that the case be dismissed. PROCEDURAL HISTORY On Octob et decision 17 , 201,4, Plaintiff filed this action fot judicial teview of the unfavorable of the Administtative Law Judge ("ALJ"). (Docket F;ntry 2.) Defendant filed an answer to the complaint on.z\ugust 12,2014. Q)ocket Entty 10.) Defendant fìled the sealed 1 Dockets.Justia.com administrative tecotd on the same day. (Docket Entty 11.) On,{.ugust1,2,201,4, this Court issued a scheduling order requiring Plaintiff to file her dispositive motion within foty-five of the date of the scheduling order; Defendant was required to file her dispositive days motion within sixty days aftet the fìling of Plaintiffs motion and bdef. (Docket Entty ìØhen Plaintiff did not îtle a dispositive motion within foty-five 1.2.) days, Defendant filed a motion to dismiss for lack of ptosecution. Qocket F,ntry 13.) By lettet dated January 7, 201,5, the Coutt notified Plaintiff of the motion to dismiss and advised Plaintiff that her action would be subject to dismissal date if she failed to respond within twenty-one days ftom the of service of Defendant's motion. (Docket Entry 15.) Having teceived no response ftom Plaintiff, on June 30, 201,5, this Court issued an order advising Plaintiff that if she did not file a motion or a response to Defendant's motion to dismiss wrthin foutteen days, the court would recommend dismissing het case with ptejudice. On July 1.4,201,5, Plaintiff filed a document entitled "Plaintifff's] Motion not to dismiss/Response." (Docket Entry 17.) By text order dated August 12, 201,5, this Coutt consftued PlaintifPs Complaint (Docket Etttty 2) and "Motion" (Docket E.ttty 17) as "a motion fot judgment on the pleadings contending that the decision of the ALJ is not supported by substantial evidence." (See Text otdet dated August 12, 201,5.) The Court futthet ditected Defendant to fìle tesponsive pleading within foutteen days. a (Itl.) Defendant filed a motion fot judgment on the pleadings on September 1.5,201,5. (Docket F;nty 22.) By lettet dated Septembet L6, 201.5, the Cout notified Plaintiff of the pending dispositive motion and of het tight to tespond. (Docket Entry 24.) To date, Plaintiff has not filed 2 a response. STANDARD OF REVIEST The Commissioner held that Plaintiff was not under a disability within the meaning of the Act. Under 42 U.S.C. $ a05(g), the scope of judrcial review of the Commissionet's final decision is specific and natrow. Smith u. Schweiker,795 F.2d 343,345 (4th Cir. 1986). This Coutt's teview of that decision is limited to determining whether thete is substantial evidence in the record to support the Commissioner's decision. 42U.5.C. $ a05G); Hanter Salliuan,993tr.2d31,,34 (4th Cit. 1992);Hay Substantial evidence adequate is "such u. Salliuan,907 F.2d1.453,1,456 (4th Cir. 1990). relevant evidence as a reasonable mind might accept to support a conclusion." Hanter, 993 tr.2ð at 34 (cittng U.S. 389, 401, (1,971)). "It consists u. as Nchardson u. Perales, 402 of mote than a mete scintilla of evidence but may be somewhat less than a prepondera'nce." Id. (quolng l-øwt u. Celebreqqe, 368 F.2d 640, 642 (4th Cn. 1,966)). The denial of benefits will be revetsed only if no reasonable mind the tecotd as adequate to suppott the detetmination. Nchardson u. Perales,402 could accept U.S. 389,401. (1,971). The issue befote the Coutt, thetefote, is not whether Plaintiff is disabled, but whethet the Commissionet's finding that Plaintiff is not disabled is suppotted by substantial evidence and was teached based upon a correct application Cofrnaru u. Bowen,829 of the televant law. See id.; F.2d 51.4, 51,7 (4th Cir. 1987). Thus, 'la] claimant for disability benefìts bears the butden of proving a disability," Hall u. Harrit,658 F.2d 260, 264 (4th Cir. 1981), and in this context, "disability" means the "'inability to engage in ^ny substantial gainful activity by reason of any detetminable physical or mental impairment which can be expected to tesult medically in death or which has lasted or c Ír be expected to last fot a continuous period of not less than J 12 months,"' id. (quottng42 U.S.C. S 423(dX1)(Ð). "To regularize the adjudicative process, the Social Secutity Administtation has . . promulgated . . . detailed tegulations incorporating longstanding medical-vocational evaluation policies that take into account a claimant's age, education, and work experience in addition to fthe claimant's] medical condition." Hall,658 F.2d at 364. "These regulations estabüsh a 'sequential evaluation process' to determine whethet a claimant is disabled." Id. (internal citations omitted). This sequential evaluation ptocess ("SEP") has up to fìve steps: "The claimant (1) must not be engaged in 'substantial gainful ac:dvity,' i.e., currently wotking; and Q) must have a 'severe' impairment that (3) meets or exceeds the 'listings' of specified impairments, or is othetwise incapacitalj;ng to the extent that the claima¡t does not possess the tesidual functional capacity to (4) petfotm fthe claimant's] past work or (5) any other work." Albright u. Comm'r of Soc. Sec. Admin., L74 F3d 473, 475 ¡. 2 (4th Cir. 1,999). The law concerning these five steps is well-established. See, e.!., Mastro u. Apfel,270tr.3d17'1,,177-180 (4th Cir. 2001);Ha//,658tr.2dat264-65;Hines u.&arwhart,453tr.3d559,567 (4th Cir. 2006). \X/hete, as hete, a clasrnant is proceedingpro re on judicial review, the claimant's court filings ate entitled to libetal consttuction. !ØDQ-13-7244, 201,4 Iül, See, e.!., R fr, u. L.ockheed Martin Corþ., Civ. No. 2069988, at *1. n.1.,3 (D. Md. May 15, 201,4) (citing Erickson Pardas,551 U.S. 89,94 Q007) ("-.\ document filedpro ¡eis to be liberally construed.. Such construction apptoptiately includes consideration of atguments u. ..')). germane to a motion by a claimant even if they ate set out in a filing by the claimant nominally addressed to another moion. Id. 4 DISCUSSION Fedetal Rule of Civil Procedure 41þ) provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court otdet, a defendant may move to dismiss the action," and that such a dismissal "operates Civ. P. 41þ); see also ^s arr adjudication on the merits." Fed. R. Link u. Il/abash Røilroad C0.,370 U.S. 626, 629-32 (1,962) (noting that federal courts have the inhetent power to dismiss an actton sþonte fot failute to ptosecute eithet søa or on the motion of a party). "The power to invoke this sanction is necessary in otdet to prevent undue delays in the disposition of pending calendats of the District Court." Unk, 370 U.S. cases and ^t to avoid congestion in the 629-30. In consideting whether to impose such a dismissal, the Coutt should considet "(1) the degree of personal responsibility of the plaintiff, Q) the amount of prejudice caused the defendant, (3) the existence of dtawn out history of deliberately proceeding in a dllatory fashion,' and (4) the existence of 'a a sanction less dtastic than dismissal." Chandler l-eaing Corþ. u. IuptZ 669 tr.2d 91,9,920 (4th Ck. 1.992); see also Ballard u. Carlson, 882 tr.2d 93,96 (4th Cit. 1989) (upholding dismissal of pro se plaintifPs claims, and nothing that pro se litigants, like othet litigants, "are subject to the time tequirements and respect fot court ordets without which effective judicial administration would be impossible"). Here, Plaintiff teceived notice of Defendant's motion to dismiss and initially fi.led no response. Following this court's ordet to file a motion and tesponse to Defendant's motion according to the scheduling order in this matter, Plaintiff fìled a document containing following language: Plaintiff Denise Mclendon teasonfs] not everyday. My day start[s] at3:30 a.m. 5 to dismiss het case. I wotk the 1. I wake up at 3:30. My son getfs] me up out of bed. I wake up in pain, my back, hips and legs, it's hard to get up and walk. I hurt so bad sometimes I do not sleep. It takefs] me to 4:45-5:00 to get dressfed] it hurtfs] so much to move when I do get out of bed. 2. \X/hen I get to work I have to walk up staitfs] that takefs] awhile. me 10-15 min. to walk to my work station. I hutt all day. It takefs] 3. I get off wotk to my car and sit thefte] fot about 15 min to get my bteath and stop huttfing] so I can drive home and on days my sugar is up it['s] hatd for me to see how to drive home. get home from wotk all I can do is try to get comfott most of the time my feet hurt so bad I cannot even walk on them. I spend most of my time at home when not at wotk. 4. \X/hen I [5]. The pain med., I cannot take them and work because they make me sick and I cannot function on them. [6]. I spend most of my time in pain. I don't know how much long[et] I will be able to wotk, but I also do not want to be homeless and cannot be able to affotd my med. to live. (Docket Entty 17.) þtackets added). Moreovet, the only substantive statement in PlaintifÎs complaint states: "I am disabled from all of my medical misdiagnosed and my issues and have unjustly case was decided without ptopetly seeking additional medical information. My illness has not imptoved and I feel I am entitled to disability." (Docket Entty 2 at 4.) Plaintiffs filings do not meet the tequitements for btiefs and motions in fedetal court. In üght of het pro se status, however, the undetsigned is reluctant to dismiss her case for failure to prosecute under Rule 41. Rathet, the Coutt will undertake a teview of the matter to determine if the decision of the ALJ is suppotted by substantial evidence. PlaintifPs complaint and "motion" do not identify any specifìc etrors committed by 6 the Commissionet. Het complaint, as set fotth above, seems to implicitly atgue that substantial evidence does not support the decision of the .,\LJ and that the AIJ should have considered othet medical evidence. Flowever, for the reasons put forth by the Govetnment, and after an independent review by this Court, applied the correct legal standatd in it is the opinion of this Court that the ALJ detetmining the Plaintiff was not disabled and substantial evidence supports this decision. A.t step one of the SEP, the ALJ found that Plainuff did not engage in substantial gainful activity from het alleged onset date thtough het date of last insuted of March 31,, 2009. (Decision, Tt.1,1, Finding 2.) At steps two and three, the ALJ found that Plaintiff had the sevete impairments of back pain, dght shouldet pain, pain in the hands/wtists, right knee pain, and diabetes (1d., F'inding 3), but that she did not have any impaitment ot combination of impaitments that met or medically equaled any of the impairments listed in 20 C.F.R. Appendix 1, Subpatt P of Reg. 404 (I-rstings). (Id. at 1,'1,-'1.2, Finding 4.) found that Plaintiffs impaitments did not meet or medically equal any listing, the on to assess Plaintiffs tesidual functional capacity. See Having A{ went 20 C.F.R. S 404.1520G)-G). The ALJ found that Plaintiff tetained the RF'C to perfotm medium work that avoided hazards, climbing, andhazatdous machinery. (1d. rt1,2, Finding 5.) Based on Plaintiffs RFC and othet vocational chatactetistics, the ALJ concluded that Plaintiff could return to het past televant light work 6.) as a fast food wotker. (Id. at 19, Finding Plaintiff ptovided no evidence substantiating het claim that she could not meet the demands of het past light wotk as a fast food wotker. The ALJ thus found that Plaintiff was not disabled at any time thtough the date of his decision. Qd., trinding 7.) 7 To the extent Plaintiff is arguing that the -,{IJ's RFC determination is not supported by substantial evidence in the record, this atgument must be rejected. The diagnostic imaging reports and physical examinations of tecotd AIJ cited vadous as well as Plaintiffls self- repotting of daily activities, in fotmulating the RF'C. As noted by the ALJ, Plaintiff has had only "intetmittent visits to the emergency room for her alleged complaints, with generally notmal wotk-ups and objective fìndings and conservative tteatment." pecision, Tr. 1,3.) The record shows that Plaintiff went to the emergency room ¡¡¡o times during the televant pedod. In her ftst ER visit, on March 29, 2006, Plaintiff ptesented with "modetate" cervical pain radiating to the dght shoulder and right elbow, but het symptoms imptoved with Petcocet and Flexeril. (It. 30a-05.) Although Plaintiff had some pain and tange of motion limitation in her neck, her back examination tevealed no spinal tendetness and full r^îge of motion. (Id.) Similatly, an exttemity examination revealed that Plaintiff neurovasculaÃy intact with a full tange was of motion and stength and a notmal gait. (Id. at 304.) Plaintiff was diagnosed with myofascial cervical strain and cervical tadiculopathy and discharged to home in satisfactory condition. (Id. at 305.) At a second ER visit in Match 2008, Plaintiff repotted that her pain had started the day before and was caused by moving furnitute. (Id. at 294.) Aftet teceiving an injection, Plaintiffls back pain improved and she was discharged in satisfactory condition with a back sprain. (Id. at 294-95.) She did not report any weakness, numbness or tingling. (Id. at 296.) As pointed out by the AIJ, PlaintifPs medical tecotds fot pdmary care show "fatÄy routine treatment for vadous complaints with little evidence of the symptoms reported by [Plaintiffl ,2 (Decision, Tr. 1,4.) In Match and May B 2006, Plaintiffs examinations were notmal except fot elevated blood pressure. Çl 21,8-220.) At a techeck in late l;/.ay 2006, Plaintiff repotted that she was "doing good," and she was exetcising, eating better, and babysitting her "active" two yeat old grandchild. (Id. ^t 21.6.) ,\t a September 2006 appointment, Plaintiff had no specific complaints and physical examination was normzl. (Id. ^t 21,4-15.) Indeed, other than elevated blood pressure, sinusitis and allergy ptoblems, Plaintiff had essentially notmai examinations through Octobet 2007 . (Id. at 237 - 42.) In Novembet 2007, Plaintiff repotted shouldet pain and was ditected to exercise and take Tramadol. Çr. 235.) In December 2007, Plaintiff was prescdbed ibuptofen for headache and tepotted that she was walking thtee times a week at the January 2008 Plaintiff tepotted back and should pain secondary a mall. (Id. at 234.) In to a fall. (Id. at 233.) A medical progress note dated March 1,1, 2008 indicates that Plaintiff repoted that she had pulled a muscle in her back and shoulder while putting a bed together but that she was "feeling better" by the time of the appointment and no longet needed pain medication. (Id. ^t 232.) By July 2008, Plaintiff was walking two miles thtee times a week and teported having mote energy. (Id. at229.) In his decision, the ALJ stated that he considered the entite medical evidence of record and even considered the treatment notes ftom aftet the relevant period which the AIJ found did not support Plaintiffs claim. (Decision, Tt. 15.) The ALJ's conclusion that Plaintiff could petfotm medium work subject to several exettional limitations is consistent with the medical evidence and is suppotted by evidence which "a te^soî ble mind might accept as adequate to suppott a conclusion." Johnson u. Barnhart,434F.3d 650, 653 (4th Cir. 2005) (quoting Craigu. Chater,76tr.3d 585,589 (4th Cir. 1996) 9 søperceded b1 regalation on other grzundr 20 C.F.R. S 41,6.927 (dX2) Therefore, tevetsal is not wartanted on this basis. A libetal teading of Plaintiffs complaint also could suggest that she contends that the ALJ etted in not seeking additional medical evidence. Plaintiffs conclusory statement fails to offet any specific exampie as to what additional evidence was not obtained or considered by the A{. Thete is nothing in the record to indicate that Plaintiff sought to have any additional medical evidence included tecord fully and fakly. In in her claim or that the AIJ failed to develop the fact, at the end of the hearing Plaintiff, who was reptesented by counsel at the headng, stated in tespons e to a question that everything had been covered in the headng. (Tt. 38-39.) Moreovet, the ALJ's decision indicates that he considered medical records ftom aftet the relevant period and found that these records did not support Plaintiff s claim of disabling impairments. (Decision, Tr. 15-16.) CONCLUSION Having reviewed the tecord, the ttansctipts and the briefs and fìlings of the parties, and fot the teasons stated above, it is RECOMMENDED that Defendant's motion for judgment on the pleadings (Docket Entry 22) be GRANTED. To the extent tesponse (Docket Etrtty 17) is construed as a motion to dismiss, that this motion be DENIED. PlaintifPs it is RECOMMENDED Finally, it is RECOMMENDED that Defendant's motion to dismiss fot failure to prosecute (Docket Enffy 13) be DENIED as moot. oe L. l7ebster United States Magisttate Judge NovemberÀ3 , rors 10
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