BLUE v. COLVIN, No. 1:2014cv00946 - Document 18 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 12/21/2015; that the Commissioner's decisionfinding no disability be AFFIRMED, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 14 ) be DENIED, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be GRANTED, and that this action be DISMISSED with prejudice. (Garland, Leah)
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BLUE v. COLVIN Doc. 18 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA BRENDA LEE BLUE, ) ) ) ) ) ) ) ) ) ) ) Plaintiff, V CAROLYN W. COLVIN, Acting Commissioner of Social S ecudty Adminis tration, Defendant. Civil Action No. 1,:1,4CY946 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Btenda Lee Blue, btought this action pursuant to Sections 205(9) and 1,631 (c)(3) of the Social Security Act (the "Act"), codified as amended (42 U.S.C. $$ a05@)and 1383(c)(3)), to obtain judicial review of a ftr'al decision of the Commissioner of Secutity denying her claims for disability Security Income ("SSD under Titles II and insurance benefits Social ("DIB") and Supplemental XVI of the Act.1 The Cout has before it the cenified administtative tecotd and cross-motions for judgment. For the reasons set forth below, the Coutt recofiunends that Defendant's motion (Docket Ent"y 16) be granted and Plaintiffs motion pocket E.rtty 14) be denied. t "The Social Security Act comprises two disability benefits programs. The Soci¿l Security Disability Insurance Ptogram . . . provides benefits to disabled persons who have contributed to the program while employed. The Supplemental Security Income Program . . . provides benefits to indigent disabled persons. The statutory definitions and the regulations for determining disability governing these two programs are, in all aspects relevant here, substantively identical." Craigu. Chater,76F.3d 585, 589 n. 1 (4th C1r.1996) (internal citations omitted). Dockets.Justia.com I. P PROCEDURA,L HISTORY AND FACTUAL BACKGROUND kintif s Preuio a s App li ca tio n for B en ef ts s On Match "1.9, 2009, Plaintiff filed applications for DIB and SSI alleging disability beginning September 30, 2008. Qr.93.)2 Plaintiffs claims were denied initially onJuly 26, 2009, and upon teconsidetation on Novembet 20,2009. (Id.) Administrative LawJudge A hearing was held befote 1"4{") on December 1,4,201,0. Plaintiff as did a vocational expett an testified at the hearing, ("VE"). (Id.) On January 28, 201,1, ALJ Daniel S. Pang determined that Plaintiff had the residual functional capacíty ßFC) to perform light work that tequired no more than occasional operation of foot conttols; occasional climbing of ladders, ropes, scaffolds, ramp and stairs; occasional stooping, kneeling, ctouching and ctawling; avoided concentrated exposure to extreme cold, heat, wetness, and humidity; only occasional work with ot assembling of objects smaller than a qùaLttet; and allowed for ar at- will stand option. Gt. 96.) The ALJ determined that Plaintiff could not perform her past relevant work, but that, based on the testimony of the VE, she could perform representative jobs of ticket seller, gate attendant, and conveyor line bakery worker, thetefore the ALJ found that Plaintiff was not disabled under the Act. (Ir. 99.) the and This decision became the final administtative decision after. the Appeals Council declined teview. Qr. 25,49.) Plaintiff did not appeal ALJ Pang's decision to fedetal court, thereby tendering that decision to be final as of Januaty 28,2071,. 2 (ft. 49.) Ttanscript citations refet to the administtative tecotd which was filed with Defendant's Answet (Docket Entry 9.) 2 P laintff s C are n t App li catio n s þr B enef ts Plaintiff agun fìled applications for DIB and SSDI on September 26,20'1,1,, alleging that she became disabled on September 30, 2008. Qr. 225;235.) The applications were denied initially and agasn upon reconsideration. (Id. at 1,02; '1,72:' 1,24; 1,37 .) A headng was held befote ALJ Mason Hogan on Match 20,201,3. Plaintiff and het attorney were present at the hearing, a¡d a VE testified by telephone. Çr 20; 25.) At the hearing Plaintiff amended the alleged onset date in her current application for benefits to January 29,201,7, one day after AI-J Pang's decision. Gt. 50.) In a decision dated June 5, 201-,3, the ALJ determined that Plaintiff was not disabled under the Act. (d. at 25-38.) ,{IJ's determination the for purposes of review. (Id. at 7-9.) The Plaintiff has Appeals Council denied Plaintiffs request for review, making the Commissionet's final decision exhausted all available administtative temedies, and this case is now to 42 U.S.C. S On July 3,201,4, the tþe for teview pursuant 405@. il. STANDARD OF REVIEW The Commissioner held that Plaintiff was not undet a disability within the meaning of the Act. Under 42U.S.C. $ a05(g), the scope of judicial teview of the Commissioner's final decision is specific and natrow. Snith u. Scltweiker,795F.2d343,345 (4th Cir. 1986). This Court's teview of that decision is limited to determining whether there is substantial evidence in the record to support the Commissioner's decision. 42U.5.C. $ a05(g); Hanter Salliuan,993 F.2d 3'1,, a. 34 (4th Cit. 1,992) þer rurian), superseded in non¡elevant part by 20 C.F.R. S 404.1517(dXZ); Hals u. Salliuan,907 F.2d7453, 1456 (4th Cir. 1990). Substantial evidence is "such televant evidence as a reasonable mind might accept as adequate to a J support a conclusion." Hanter,993 tr.2d at 34 (crnngNchardson (1,971)). u. Perales,402 U.S. 389, 401 "It consists of mote than a mere scintilla of evidence but may be somewhat less than a ptepondet^îce." Id. (qtottng L^aws u. Celebreq7e, 368 F.2d 640, 642 (4th Cir. 1966)). The denial of benefits will be tevetsed only if no reasonable mind could accept the tecotd adequate as to support the determination. Nchardson,402U.S. at 401,. The issue before the Court, therefore, is not whethet Plaintiff is disabled, but whethet the Commissionet's finding that Plaintiff is not disabled is suppotted by substantial evidence and was reached based upon a coffect application of the relevant law. See id.; Cofnan u. Bowen, 829 tr.2d 51,4, 517 (4th Cir. 1987). Thus, 'fa] claimant for disability benefits bears the burden of proving a disability," Hall a. Han'is,658 F.2d 260,264 (4th Cir. 1981), and in this context, "disabiJity" means the "'inability to engage detetminable physical in ^îy substantial gainful activity by reason of any medically ot mental impairment which can be expected to tesult in death ot which has lasted or c n be expected to last for a continuous pedod of not less than months,"' id. (quottne 42 U.S.C. S 12 423(dX1XÐ). "To tegulaÅze rhe adjudicative ptocess, the Social Security Administration has . . . promulgated . . . detailed regulations incorporating longstanding medical-vocational evaluation policies that take into account a claimant's age, education, and wotk experience in addition to [the claimant's] medical condition." Hall,658 tr.2d at 364. "These regulations establish a 'sequential evahatton process' to determine whether a claknart is disabled." Id. (internal citations omitted). This sequential evaluation process ("SEP') has up to five steps: "The claimant (1) must not be engaged in 'substantial gainful tcluvity,' i.e., cttently wotking; and Q) must have 4 a 'severe'impairment that (3) meets or exceeds the 'listings' otherwise incapacitattng of specified impairments, ot to the extent that the claimant does not is possess the residual functional capacíty to (4) perform fthe claimant's] past work or (5) any other work." Albright a. Comm'r of Soe Sec. Adnin., 174 tr.3d 473, 475 n. 2 (4th Ctt. 1999) (citing 20 C.F.R. S 404.1,520). The law concerning these five steps is well-established. Jaø, e.g., Mastro,270 F.3d ^t 177 -1,80; Ha//, 658 F.2d at 264-65; Hine¡ u. Baruhart, 453 F .3d 559 , 567 (4th III. Cir. 2006). THE ALJ's DECISION In hisJune 5,2013 decision, ALJ Hogan found thatPlaintiff was not disabled under Sections 216(i) and 223(d) detetmination, the Social Secwity Acl CIt. 38.) In making this disability AIJ found that Plaintiff has not engaged in "substanial gainful actvity" since het alleged onset ,{t of the date. Qr. 27 .) Plaintiff thus met her burden at step one of the SEP. step two, the ALJ determined that Plaintiff suffeted from the following impairments thtough her date last degenetative disc disease inswed: degenerative joint disease severe of the knees; of the lumbat spine; diabetes mellitus; diabetic neuropathy and mild obesity. Qd.) The ALJ found at step three that these impairments did not meet or medically equal a disability listing. (d. at29.) The AfJ next assessed Plaintiffs RFC3 and determined that Plaintiff could perform sedentary work as defined in 20 CFR SS 404.1.567(a) and 41,6.967(a) except never climb ' "RFC is a measurement of the most claimant can do despite [the claimant's] limitations." Hines, 453 F.3d at 562 (citation omitted). The RFC includes both a "physical exertional or strength limitation" that assesses the claimant's "ability to do sedentary,hght, medium, heavy orvery heavy work," as well as "nonexertional limitations (mental, sensory, or skin impairments)." Ha/1,658 F.2d at 265. "RFC is to be determined by the ALJ only aftet [the ALJ] considets all relevant evidence of a claimant's impairments and any telated symptoms (e.g., patn)J' Hines,453 F.3d at 562-63. 5 laddets, scaffolds, or ropes; occasionally climb ramps and staits; occasionally balance, stoop, kneel, and ctouch, but never crawl; avoid concentrated exposute to hazards such as unprotected heights and dangerous machinery. Furthet, the ALJ found that Plaintiff would requite the flexibility to use a handheld assistive device such as ^ cane while standing and walking. (It.30.) In light of his RFC findings, the ,\LJ determined at step four that Plaintiff could petform het past televant work ("PRW") as a receptionist (citing 20 C.F.R. SS 404.1565 and .,{,ccotdingly, the ALJ decided that Plaintiff was not under a "disability," 41,6.965). Qr.37.) as defined in the Act, at any time fromJanu^ry 29,2011 through the date of his decision, June 5, 201,3 (cittng 20 C.F.R. SS 404.1520(f) and 41,6.920(Ð). IV. (Ir. 38.). DISCUSSION Plaintiffs sole argument in this appeal is that the ALJ erred at step fout of the SEP by failing "to fulfill his duty, under Social Security Ruling (SSR) 82-62, to fully question fPlaintiffl and develop the tecord tegatding the physical and mental demands of het past relevant the work." AIJ (Pl.'s Mem. in Supp. of J. at 6, Docket Entry 15.) Plaintiff contends mischatactenzed het testimony tegatding het duties, and failed that to give proper weight to a thitd-party statement from her former employet.4 Prior to proceeding to step four, the AIJ Plaintiff had the ability to perform a limited 4 assessed rz,nge of Plaintiffs RFC and found that sedentary wotk. CIt. 30.) At the This Court notes that Plaintiff has made only a cursory legal argument, unsupported by any relevant legal authority. The Local Rules of this district require that legal arguments made in bdefs "shall tefer to all statutes, rules and ¿uthorities relied upon." M.D.N.C. L.R.7.2(a)@. The failute of counsel to include legal analysis that is supported by citations to relevant legal authority is troubling to this Cout. This Court is aware of at least ofle court that has imposed monetary sancdons against attomeys fot filing frivolous and unsuppoted legal briefs in social secudty cases. See Stines u. Coluin, No. 1:12cv121 (W.D.N.C. Oct. '1,,201,3) (Howell, M"g.J). 6 headng, the ALJ questioned Plaintiff about het past wotk, and Plaintiff testifìed that she had worked as a receptionist for a tax service. (It. 55.) Plaintiff also testified that she "did a little filing" "some of the figuring," answeted phones and gteeted customers. (Ir. 55-57.) Plaintiff testified that she did not do any cleaning, lifting or carrying in this position. (Tt. 56.) Plaintiff testified that she worked in a small office, and that she would be seated for thtee to fout houts during the day. (Id.) In response to the ALJ's question, Plaintiff stated that she could no longer do the iob "because going up and down those stairs[,] it took a toll on my knees." Cfr. 58.) After receiving this testimony, the A{ asked Janette Clifford, a VE, whether, in light of Plaintiffs RFC and her testimony, she could petfotm het past televant work as a receptionist. job of receptionist as (Ir. 87.) The VE testified that Plaintiff could perfotm the it was actually and genetally performed. (Id.) At the foutth step of the SEP, the regulations ptovide that a claknant's møst preuent [herJ frorz doing "impairvtent past releaant work . . . v/e will compare our IRtrC] assessment . with the physical and mental demands of your past relevant work . . . . If you can srill do this kind of wotk, we will find that you are not disabled." 20 C.F.R. (emphasis SS 404.1520(Ð, 41,6.920(Ð in original). A plaintiff is not disabled within the meaning of the -Act if she can retutn to her past televant wotk as it is customarily petformed in the economy ot as the clamant acrnlly perfotmed the bears the burden wotk. .1¿¿ SSR 82-62, 1,982 WL 31.386, at x3. The claimant of establishing her inability to work within the meaning of the -¿{ct. 42 U.S.C. S 423(dX5). She must make a þrima faùe showtng unable to return to het past televant wotk. of disability by showing she is Grant u. Schwieþ.er,699 F.2d 1.89,191 (4th Cir. 1e83). 7 After assessing mental demands the claimant's RFC, the AIJ must compare it with the physical and of the claimant's PRIø and then determine if the claimant's impairments ptevent her performance of PR\X/. Sæ 20 C.F.R. S 404.1520(f). .,{.ccotding to SSR 82-62: The claimant is the primary soutce fot vocational documentation [d]etermination of the claimant's abiJity to do PRìØ tequires a carcful appraisal of (1) the individual's statements as to which past work tequirements can no longer be met and the reason(s) for his or her inability to meet those requirements; Q) medical evidence establishing how the impairment limits ability to meet the physical and mental tequirements of the wotk; and (3) in some cases, supplementany or corroborative information ftom othet sources, such as employets, the Dictionary of Occupattonal Titles, etc., on the requirements of the work as generally peformed in the economy. SSR 82-62. In making this determination, the ,{LJ must make the following specific findings of îact: L. ,{. finding of fact as to the individual's RFC. 2. A finding of fact as to the physical and mental demands of the past job/occupation. 3. ,{. fìnding of factthat the individual's RFC would permit a returrl to his ot het past job or occupation. rd. Plaintiff contends that because het testimony showed that she customadly sat fot three to fout hours and stood fot fout houts during an eight hout shift, the ALJ erred by finding that Plaintiff could perfotm her PRW as she actually performed it in light of het limitations. The Dictionary of Occupatonal Titles (DOÐ chanctenzes the iob of "receptionist" as sedentary wotk that involves lifting no more than 10 pounds at a trne; catrying lightweight items; tequites only "occasional" standing or walking; does not involve climbing, balancing, stooping, kneeling, ctouching ot ctawlingi and does not tequire neat 8 ac,ity, fat actity, ot ^ny 038, 1991 WT, 672192. level of depth perception. Dictionary of Occupational Titles, In this case, the hypothetical assume that the individual could sit presented 237 .367 - to the VE asked het to for six hours out of an eight-hout day and could stand and ot walk fot two houts out of an eight-hour day. (It. 87.) This description is consistent with the characterization of the job of teceptionist in the DOT. See DOT ^t 237.367-038. Plaintiff seems to be arguing that because she also performed other duties such as filing and talþing customer's paytolls het job was riot that of metely a teceptionist. However, het description of her job in the tax pteparation office cettainly encompasses the job of "teceptionist" as it is generally perfotmed, and, more impotandy, as Plaintiff petformed it. Plaintiff has not established that she could not meet the demands of het past iob as teceptionist. Substantial evidence supports the AIJ's step fout detetmination that Plaintiff could petform her past relevant work as it was genetally petformed, as thete was evidence that she could perform the functional demands and job duties of a receptionist as the job is performed in the national economy. Plaintiff also contends that the IJ failed to give proper weight to the statement of Plaintiffs former employet about Plaintiffs job duties and limitations. In this statement, Barban McMillan stated that Plaintiff wotked fot her tax service firm ftom Jantary February 2008 as a receptionist and that Plaintiff also performed office McMillan werit ori to 2001, filirg. (Ir. 337.) Ms. say: I frequendy observed that fPlaintiff] was having ptoblems with het knees because I observed het limping when she tried to walk. I also observed that het knees would become stiff after sitting and it was diffìcult fot her to stand and move atound the office due to pain she obviously was experiencing with her knees. The pain and stiffness in het knees progressed such that her 9 to limping became more frequent and on some days she had to leave wotk earþ as a tesult. fPlaintiffl also expedenced problems with het eye sight. She ftequently complained that her eyes were giving het ptoblems, and I observed het rubbing her eyes and staining as she attempted to read documents and enter information into client files. As a result, I had to redo work she was pedorming because of the errors that she made because of het inabiJity to see numbets and wotds cortecdy. (rd.) In his decision, the AIJ noted that he had consideted Ms. McMillan's statement but that he gave it little weight for several reasons. The acceptable medical source Moteover, according ,{IJ noted that Ms. McMillan was riot an not did she have any type of treating relationship with Plaintiff. to the ALJ, Ms. McMillan's diagnostic in nature and adds litde value to the statement decision ." "is neithet functional nor ^tad is less ptobative because Ms. McMillan had not observed Plaintiffs daily activities since 2008, only addressing Plaintiffs knee ptoblems prior to her knee replacement surgelT. (Ir. 35.) An ALJ may consider testimony from non-medical sources such as employets, family membets and friends to determine the severity of a claimant's impairments and his ot het residual abiJity to 2006 wotk. See 20 C.F.R. $S 404.1513(dX4) ard 41,6.91,3(d)(a); SSR 06-03p. WL 2329939 (SSA) ("the adjudicatot genetally should explain the weight given to opinions ftom these 'othet sources,' or otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant ot subsequent reviewer to follow the of the adjudicators' reasoning when such opinions may have an effect on the outcome case." SSR 06-03p, 2006 WT, 2329939. It is clear ftom his decision that the ALJ consideted the testimony of Ms. McMillan and that he followed the tegulations in determining what 10 weight to give the statement. The statement was entided AIJ explained in detail why he detetmined that the to little weight, including as mentioned above, the soutce of the statement, the fact that Ms. McMillan was not a medical providet and had not observed Plaintiff since 2008, befote Plaintiff had knee teplacement surgery, and that het observations were inconsistent with the medical evidence in the tecord concerning PlaintifPs vision. ìØhile the ALJ noted Ms. McMillan's telationship with Plaintiff and that het testimony would "natualTy tend to be colored by affection," he also provided evidence-based reasons fot assigning little weight to the statement. See Marsball u. Coluin, No. '1.:"1,4cv542, 201,5 WL 5970435 atxS OI.D.N.C. Oct.1.4,201,5) (unpublished) (citing Dodrillu. Shalala,12F.2d9l,5, 919 (9th Ck., 1993) ('If the -,{IJ wishes to discount the testimony of the lay witnesses, he must give reasons that are germane to each witness) and Cooper u. Aslrae, No. 2:08-CV-18- FL,2009 \Xl,928548, at *5-6 (E.D.N.C. pt. 3, 2009 (unpublished) ('If the AIJ decides to reject lay testimony concerning a [c]laimant's pain or other symptoms, the ALJ must do so explicitly and with sufficient specificity to enable the coutt to decide whethet there ate legitimate reasons for the ALJ's disbelief and whether the ALJ's detetmination is supported by substantial evidence." (citing Hatcher u. Sec)t Dtp't (4th Cir 1989). Plaintiffs of Health dv Haman Seras.,898 tr.2d 2L conclusory argument that the ALJ failed to give proper weight to the evidence about Plaintiffs job duties as supplied by het formet employet is without medt. The ALJ did not err in assigning little weight to the statement of Plaintiffs former employet. Plaintiff also atgues that the AIJ ered in his assessment of ALJ Pang's Jantary 201,1, decision on PlaintifPs prior claim for benefits in which ALJ Pang characterized Plaintiffs past relevant work as "office helpet" and that her RFC 1,1, fot light work with additional exertional resttictions ptecluded all past relevant makes only a conclusory argument, citing work. no case Agatn, the Coutt notes that Plaintiff law or tegulations to support her afgument. Flere, the ,AIJ found at step fout that Plaintiff could perform her past televant work and therefore was not disabled. However, as previously noted, in the pdot adjudication the 20"1.1. claim, A{ of Pang found at step fout that Plaintiff could not perform het past relevant work, which he charactenzed as light work. The Fourth Circuit has established that the Commissionet must consider prior disability benefits decisions for the same claimant in determining if that clurrrant is disabled. Albright u. CommT of Social Secariry, 174 F.3d 473, 477-78 (4th Cir. 1999). In this Circuit, when adjudicating a subsequent disabiJity claim, an ALJ should considet such factots as (1) whether the facts on which the prior findings were based is subject to change with the passage of time, such as facts telating to the severity of a claimant's medical condition; Q) the likelihood of such change, considering the length of time elapsed between the previously adjudicated period and the pedod being adjudicated in the subsequent claim; and (3) the extent that the evidence not consideted in the final decision in the pdot claim ptovides a basis fot making a different finding with tespect to the period being adjudicated in the subsequent claims. 2000 WL 43774 (S.S.A. Jan.'1,2,2000). The AfJ Jee cquiescence Ruling ("R'') 00-1(4), here followed the directions set out 00-1(4), noting that although ALJ Pang's decision was less than two years old, in,\R it was based on medical evidence which is diffetent from the evidence in the present case, including evidence of some impairments that wete not ptesent at the time of the prior decision. The A{ ptopetly crafted a new RFC, considering all of Plaintiffs functional impairments at the 1,2 time of the headng and setting out his reasons fot adopting the RFC descdbed above. In doing so, the ALJ complied with the requfuements of Albright and the govetning tegulations of the SSA. Finally, Plaintiff appears to argue that the ALJ erred by giving no weight to the State Agency's characteÅzation of Plaintiffs past televant work as art Administative Cletk, considered a light exertional job. (Pl.'s Bt. at 9, Docket Entry 15.) Again, Plaintiff has not cited any case law or SSA regulation requiring an ALJ to assessment assþ any weight to a State Agency of an individual's ability to perform past relevant u¡ork. The ALJ noted in his decision that he was giving no weight to the State ,A.gency's vocational assessment because he was teþing on the testimony of the VE, who had more than twenty years of experience in the field and who teviewed the entire record and heard Plaintiffs testimony at the headng, including her own characterization of her previous job as a receptionist. As such, substantial evidence supports the receptionist as A{'s finding that Plaintiff could petform her past work as a it was generally pedormed. V. CONCLUSION Having reviewed the tecotd and the arguments of the parties, this Court concludes that the A{'s determination is supported by substantial evidence. Having so concluded, the Court recofiunends that the Commissioner's decision be affìrmed IT IS THEREFORE RECOMMENDED that the Commissionet's decision finding no disability be AFFIRMED, that PlaintifPs Motion forJudgment on the Pleadings 1.3 pocket Entty 14) be DENIED, that Defendant's Motion fot Judgment on the Pleadings (Docket Ent y 16) be GRANTED, and that this action be DISMISSED with prejudice. U Dutham, North Carohna December ,20L5 74 Joe L.'VØebster States Magistrate Judge
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