Bullock v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

. SOUTHERN DIVISION

No. 7:18-CV-174-RJ

CAROL JOANN BULLOCK, .

Plaintiff/Claimant,

ORDER

ANDREW SAUL, □

Commissioner of Social Security,

Defendant.

This matter is before the court on the parties” cross-motions for judgment on the pleadings

[DE-24, -31] pursuant to Fed. R. Civ. P. 12(c). Claimant Carol Joann Bullock (“Claimant”) filed

this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of

her application for a period of disability and Disability Insurance Benefits (“DIB”). The time for

filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having

carefully reviewed the administrative record and the motions and memoranda submitted by the

parties, Claimant’s Motion for Judgment on the Pleadings is denied, Defendant’s Motion for

Judgment on the Pleadings is allowed, and the final decision of the Commissioner is upheld.

I. STATEMENT OF THE CASE

Claimant protectively filed an application for a period of disability and DIB on June 12,

2014, alleging disability beginning January 31, 2013. (R. 17, 158-61). Her claim was dented

initially and upon reconsideration. (R. 17, 54-83). hearing before the Administrative Law Judge

(“ALJ”) was held on March 14, 2017, at which Claimant, represented by counsel, and a vocational

expert (“VE”) appeared and testified. (R. 17, 33-50). On August 8, 2017, the ALJ issued a

decision denying Claimant’s request for benefits. (R. 14-32). On August 8, 2018, the Appeals

Council denied Claimant’s request for review. (R. 3-8). Claimant then filed a complaint in this

court seeking review of the now-final administrative decision.

II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under

the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether

substantial evidence supports the Commissioner’s factual findings and whether the decision was

reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d

514, 517 (4th Cir. 1987). “The findings of the Commissioner . . . as to any fact, if supported by

substantial evidence, shall be conclusive ... .” 42 US.C. § 405(g). Substantial evidence is

“evidence which a reasoning mind would accept as sufficient to support a particular conclusion.”

Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large

or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more

than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In □

_ reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting

evidence, make credibility determinations, or substitute [its] judgment for that of the

[Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76

585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R.

§ 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court’s review is

limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her

findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d

438, 439-40 (4th Cir. 1997).

Ill. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set

forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:

The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently

working; and (2) must have a “severe” impairment that (3) meets or exceeds [in

severity] the “listings” of specified impairments, or is otherwise incapacitating to

the extent that the claimant does not possess the residual functional capacity to (4)

_ perform . .. past work or (5) any other work.

Albright v. Comm’r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). “If an applicant’s claim fails

at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65

F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the

first four steps of the inquiry rests on the claimant. Jd. At the fifth step, the burden shifts to the

ALJ to show that other work exists in the national economy which the claimant can perform. Id.

When assessing the severity of mental impairments, the ALJ must do so in accordance with

the “special technique” described in 20 C.F.R. § 404.1520a(b)(c). This regulatory scheme

identifies four broad functional areas in which the ALJ rates the degree of functional limitation

resulting from a claimant’s mental impairment(s): understanding, remembering, or applying □

information; interacting with others; concentrating, persisting, or maintaining pace; and adapting .

or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written

decision pertinent findings and conclusions based on the “special technique.” □□□

§ 404.1520a(e)(3).

In this case, Claimant alleges the following errors: (1) the ALJ failed to include a limitation

for alternating between sitting and standing in the RFC, in accordance with a medical opinion from

Dr. Robert Pyle, M.D.; and (2) the VE lacked necessary credentials, and the ALJ therefore

improperly relied on her testimony. Pl.’s Mem. [DE-25] at 6-9.

□

IV. ALJ’S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Claimant “not

disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial

gainful employment since January 31, 2013, the alleged onset date. (R. 19). Next, the ALJ

determined Claimant had the following severe impairments: degenerative disc disease, lumbar

spine; arthritis in the left knee; obesity; hernia; hypothyroidism; and depression. Jd. The ALJ also |

found Claimant had nonsevere impairments of gastroesophageal reflux disease and hypertension. □□

(R. 20). However, at step three, the ALJ concluded these impairments were not severe enough,

either individually or in combination, to meet or medically equal one of the listed impairments in

20 C.FR. Part 404, Subpart P, Appendix 1. (R. 20-22). Applying the technique prescribed by the

regulations, the ALJ found that Claimant’s mental impairments have resulted in moderate

limitations in understanding, remembering, or applying information; interacting with others;

concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 21).

Prior to proceeding to step four, the ALJ assessed Claimant’s RFC, finding Claimant had

the ability to perform sedentary work! except that she cannot climb ladders, ropes, or scaffolds;

she can occasionally climb ramps and stairs; she can occasionally kneel, crouch, and crawl; she

must avoid working at unprotected heights; she is limited to simple, routine, repetitive tasks in an

environment where changes are infrequent and are introduced gradually and where there is no

interaction with the general public; and she can work in proximity to co-workers but should work

1 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like

docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain

amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

‘standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996

-WL'374185, at *3 (July 2, 1996). “Occasionally” generally totals no more than about 2 hours of an 8-hour workday.

“Sitting” generally totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of

sedentary work includes al! or substantially all of the approximately 200 unskilled sedentary occupations

administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id.

on tasks alone. (R. 22—26). In making this assessment, the ALJ found Claimant’s statements about

her limitations not fully consistent with the medical and other evidence. (R. 23). At step four, the

ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant

work as a preschool teacher. (R. 26). Nonetheless, at step five, upon considering Claimant’s age,

education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the □

demands of other employment opportunities that exist in significant numbers in the national

economy. (R. 27-28).

V. DISCUSSION

A. The ALJ did not err in formulating the RFC.

Claimant contends that the ALJ erred in failing to include a limitation in the RFC for

alternating between sitting and standing. Pl.’s Mem. [DE-25] at 6-8. An individual’s RFC is the

_ capacity she possesses despite the limitations caused by physical or mental impairments. 20 C.F.R.

§ 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996); see Brown v.

Comm’r Soc. Sec. Admin., 873 F.3d 251, 254 (4th Cir. 2017) (defining the RFC as “the most [the

claimant] can still do despite [his] physical and mental limitations”). “[T]he residual functional

capacity “assessment must first identify the individual’s functional limitations or restrictions and

assess his or her work-related abilities on a function-by-function basis, including the functions’

listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96—

The RFC is based on all relevant medical and other evidence in the record and may include .

a claimant’s own description of limitations arising from alleged symptoms. 20 C.FR.

404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5.

Where a claimant has numerous impairments, including non-severe impairments, the ALJ

must consider their cumulative effect in making a disability determination. 42 U.S.C.

§ 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) (“[I]n determining whether an

individual’s impairments are of sufficient severity to prohibit basic work-related activities, an ALJ

must coneicer the combined effect of a claimant’s impairments.”) (citations omitted). The ALJ

-has sufficiently considered the combined effects of a claimant’s impairments when each is

separately discussed along with a claimant’s complaints and activities. Baldwin v. Barnhart, 444

F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The RFC assessment “must include a

discussion of why reported symptom-related functional limitations and restrictions can or cannot

reasonably be accepted as consistent with the medical and other evidence,” as well as a “narrative

discussion describing how the evidence supports each conclusion, citing specific medical facts

(e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Jd.; see

also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an

accurate and logical bridge from the evidence to his conclusion”).

In January 2015, Dr. Pyle, a state agency consultative examiner, issued an opinion at the

reconsideration level. (R. 69-83). Dr. Pyle wrote that Claimant “[ml]ust periodically alternate

sitting and standing to relieve pain and discomfort.” (R. 77). The ALJ gave great weight to Dr.

Pyle’s assessment. (R. 26). Claimant contends that because the ALJ gave great weight to the

opinion, and pecans the opinion includes a limitation for alternating between sitting and standing,

the ALJ erred in failing to include that limitation in the RFC or the hypothetical posed to the VE.

Pl.’s Mem. [DE-25] at 6-8.

However, the ALJ was not required to adopt Dr. Pyle’s opinion in whole. “It is well-settled

that in according significant weight to a medical opinion, an ALJ is not bound to accept or adopt

all the limitations set forth therein.” Morgan v. Colvin, No. 5:15-CV-266-D, 2016 WL 4217822,

at *5 (E.D.N.C. July 21, 2016) (collecting cases), adopted by 2016 WL 4218333 (E.D.N.C. Aug.

. .

9,201 6); see also Eddie v. Berryhill, No. 5:16-CV-801-D, 2017 WL 4002147, at *4 (E.D.N.C. Aug.

24, 2017) (“the ALJ was not required to adopt fully the limitations suggested by Dr. Wilson’s

opinion Deconselie assigned it great weight’), adopted by 2017 WL 3995813 (E.D.N.C. Sept. 11,

2017); Gallion v. Berryhill, No. 5:16-CV-00312-FL, 2017 WL 3431915, at *5 (E.D.N.C. July 26,

2017); Bundy v. Colvin, No. 5:14-CV-55-FL, 2015 WL 450915, at *5 (E.D.N.C. Feb. 3, 2015).

The ALJ adequately discussed Claimant’s ability to sit and stand. The ALJ summarized

Claimant’s testimony that she cannot walk, stand, and sit for prolonged periods. (R. 22). The ALJ

discussed Claimant’s August 2014 consultative examination where she was diagnosed with

chronic back pain and had difficulty performing postural movements, a steady gait, and no

musculoskeletal deformities. (R. 23, 367-68). The ALJ noted Claimant’s March 2015 x-ray that

showed degenerative changes. (R. 23, 399). He also discussed Claimant’s knee pain and arthritis,

noting her March 2015 x-ray that showed moderate to severe degenerative changes and her records

from her primary care doctor that reflect evidence of knee pain. (R. 24, 395, 402-96). The ALJ

discussed Claimant’s obesity and noted that it may relate to her difficulty with walking, sitting, or

standing: the ALJ wrote that Claimant would be restricted from performing work that required

sustained standing and walking for extended periods. (R. 24). Ultimately, the ALJ limited

Claimant to sedentary work with no climbing of ladders, ropes, or scaffolds; occasional climbing

of ae and stairs; occasional kneeling, crouching, and crawling; and no working at unprotected

heights. (R. 22). The ALJ has built and accurate and logical bridge from the evidence to his

conclusions. See Clifford, 227 F.3d at 872. Accordingly, the ALJ did not err in formulating the

RFC, despite his decision not to adopt Dr. Pyle’s opinion in whole.

B. The ALJ appropriately relied on the testimony of the VE.

Claimant contends that the ALJ could not rely on the testimony of the VE because the VE

is identified in the decision as Vargas Vocational Consulting, an organization, and the person who

appeared at the hearing has no resume or credentials in the record. Pl.’s Mem. [DE-25] at 8-11.

It is true that the decision states: “Vargas Vocational Consulting, an impartial vocational expert,

also appeared at the hearing.” (R. 17). However, the person who testified at the hearing as a VE,

Dawn Berens does have a resume in the record. (R. 226). Ms. Bergren’s resume states that she

has worked at Vargas Vocational Consulting as a vocational consultant from May 2013 to the □

_ present, and she “perform[s] assessments for clients including the Social Security Administration.”

Id. Claimant’s contention that “[t]here is no resume setting out qualifications of a ‘Dawn Bergren’

in the disability file” is without merit, as is her argument that “[t]here is no evidence that Dawn

Bergren is associated with Vargas Vocational .:. Consulting.” Pl.’s Mem. [DE-25] at9.

record clearly contains a resume identifying Ms. Bergren as an employee of Vargas Vocational

Consulting and listing her professional experience and education. (R. 226). Moreover, Claimant’s

attorney at the hearing specifically stated that he had no objections to Ms. Bergren’s qualifications.

(R. 45). Accordingly, the ALJ did not err in relying on Ms. Bergren’s qualifications and testimony.

VI. CONCLUSION

For the reasons stated above, Claimant’s Motion for Judgment on the Pleadings [DE-24] is

_ DENIED, Defendant’s Motion for Judgment on the Pleadings [DE-31] is ALLOWED, and

Defendant’s final decision is affirmed.

. So ordered, this the 23rd day of September, 2019.

United States Magistrate Judge