MELVIN, JR. v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHARLES EDWARD MELVIN, JR., )

Plaintiff,

v. 1:18CV1051

ANDREW SAUL,

Commissioner of Social Security, )

Defendant. □

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Chatles Edward Melvin, Jr. (Plaintif? *) brought this action pursuant to □

Sections 205(g) and 1631(c)(3) of the Social Security Act (the “Act’’), as amended (42 U.S.C.

§§ 405(g) and 1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of

Social Security denying his claims for Disability Insurance Benefits (“DIB”) and Supplemental

Security Income (“SSI”) undet, respectively, Titles IT and XVI of the Act. The parties have

filed cross-motions for judgment, and the administrative record has been certified to the Court

for review.

IL. PROCEDURAL HISTORY

Plaintiff protectively filed applications for DIB and SSI on December 8, 2014, alleging

a disability onset date of June 30, 2014 in both applications. (Ir. at 10, 189-98.)! His

applications were denied initially (Ir. at 61-80, 107-12) and upon reconsideration (Tr. at 81-

Transcript citations refer to the Sealed Administrative Recotd [Doc. #9].

120-131). Thereafter, Plaintiff requested an administrative hearing de novo before an

Administrative Law Judge (‘ALJ’). (Tr. at 132-36) On May 1, 2017, Plaintiff, along with his

attorney, attended the subsequent heating, at which an impartial vocational expert testified via

telephone. (Tr. at 10, 28-60.) The AL] ultimately concluded that Plaintiff was not disabled

within the meaning of the Act (Tr. at 17), and, on November 5, 2018, the Appeals Council

denied Plaintiff's request for review of the decision, thereby making the AL]’s conclusion the

Commissionet’s final decision for purposes of judicial review (I't. at 1-6).

I. LEGALSTANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s denial of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of teview of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts ate not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

ALJ if they ate supported by substantial evidence and were reached through application of the

cottect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) Gnternal

quotation omitted).

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 4th Cir. 2001) Gnternal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a juty, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to re-weigh

conflicting evidence, make credibility determinations, or substitute its yudgment for that of the

[ALJ].” Mastto, 270 F.3d at 176 (internal brackets and quotation matks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

AL)’s finding that [the claimant] is not disabled is supported by substantial evidence and was

reached based upon a cortect application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits beats the burden of proving a disability.” Hall v. Hartis, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “‘nability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impaitment which can be

expected to result in death or which has lasted or can be expected to last for a continuous

petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).?

2 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Progtam (SSDI), established by ‘Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. ‘The Supplemental Security Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C-F.R. pt. 404 (SSDD; 20 C.F.R. pt. 416 (SSI), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

3 .

“The Commissionet uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C-F.R. §§ 404.1520(a)(4); 416.920(@)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged petiod

of disability; (2) had a sevete impairment; (3) had an impairment that met or equaled the

requitements of a listed impaitment; (4) could return to her past relevant work; and (5) if □□□□

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

fotecloses a disability designation and ends the inquiry. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits ate denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant catries his or her butden at the first two steps, and if

the claimant’s impairment meets or equals a “listed impairment” at step three, the claimant is

disabled. Mastto, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two, but

falters at step thtee, ie., “[i]f a claimant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.3 Step four then requires the AL] to assess whether, based on

3 “REC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8

houts a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations

(mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (4g, pain).”

Hines, 453 F.3d at 562-63.

. 4 .

that RFC, the claimant can “perform past relevant work”; if so, the claimant does not quality

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide

“whether the claimant is able to perform other work considering both [the claimant’s RFC]

and [the claimant’s| vocational capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carty its

“evidentiary burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

Ill. DISCUSSION

In the present case, the AL] found that Plaintiff had not engaged in “substantial gainful

activity” since his alleged onset date. The ALJ therefore concluded that Plaintiff met his

burden at step one of the sequential evaluation process. (It. at 12.) At step two, the ALJ

further determined that Plaintiff suffered from the following severe impairments:

left hip pain, status-post total hip replacement and redo surgeries; bilateral

shoulder pain, status-post surgery; and cervical degenerative disc disease[.]

dd.) The ALJ found at step three that none of these impairments, individually or in

combination, met or equaled a disability listing. (Tr. at 13.) Therefore, the ALJ assessed

Plaintiffs REC and detetmined that he could perform light work with the following, further

limitations:

[HJe can lift/catry and push/ pull less than 10 pounds occasionally and

frequently with the right upper extremity, sit for six hours, stand for two houts,

and walk for two hours with the occasional use of an assistive device. He can

frequently balance, stoop, and handle/finger with his right hand. He can

occasionally work in vibration, at unprotected heights, around moving.

mechanical parts, and in extreme cold. He can never crawl, or climb ladders,

ropes ot scaffolds.

Based on this determination, the AL] found at step four of the analysis that Plaintiff

could not perform any of his past relevant work. (Tr. at 16.) However, the ALJ concluded at

step five that, given Plaintiffs age, education, work experience, and RFC, along with the

téstimony of the vocational expert regarding those factors, Plaintiff could perform other jobs

available in the national economy and therefore was not disabled. (Tr. at 16-17.)

Plaintiff now contends that substantial evidence fails to support the RFC in the present

case. In particular, Plaintiff argues that the RFC only described the lifting and carrying

restrictions of his right upper extremity and failed to describe his maximum lifting and carrying

abilities using his upper extremities combined. (Pl.’s Br. [Doc. #14] at 3-6.) Plaintiff further

contends that the RFC materially differs from the hypotheticals to the vocational expert at

five of the analysis, in which the AL] “specified an RFC that would allow maximum

overall lifting and carrying capacity of 20 pounds occasionally and 10 pounds frequently with

tight arm lifting and carrying limited to less than 10 pounds.” (Id. at 5.)

A plain reading of the RFC belies Plaintiffs assertion. In the RFC, as written, the AL

clearly found that that Plaintif£ could perform “light work as defined in 20 CFR 404.1567(b)

and 415.967(b)” with further additional restrictions including to accommodate more limited

use of his right arm. (Tr. at 13.) “Light work” is specifically defined in the Social Security

tegulations to mean work that “involve(s) lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b),

416.967(b). Therefore, the RFC finding for “light work” necessarily includes the lifting

restrictions contained in the regulations, with Plaintiffs further restrictions then specifically

noted, and the RFC does not differ from the hypotheticals provided to the vocational expert.

Plaintiff argues that the AL]’s reference to “light work” does not cure the alleged

deficiency, as the RFC included further limitations which are incompatible with light work,

patticularly the inability to stand or walk for up to 6 hours per day. (PL’s Br. at 6-7.) In this

regatd, it is undisputed that “the full range of light work requires standing or walking, off and

on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10, Titles I And

XVI: Determining Capability To Do Other Work--The Medical-Vocational Rules Of

Appendix 2, 1983 WL 31251, at *5. However, the REC is again cleat on its face that Plaintiff

was not able to perform the full range of light work; that is why the testimony of a vocational

expert was tequited. See SSR 83-12, Titles I] And XVI: Capability "To Do Other Work--The

Medical-Vocational Rules As A Framework For Evaluating Exertional Limitations Within A

Range Of Work Or Between Ranges Of Work, 1983 WL 31253, at *4. Here, the RFC provides

that Plaintiff remains capable of performing light work “except” to the extent he is further

limited by additional restrictions. (Tr. at 13.) The inclusion of additional limitations do not

negate Plaintiffs ability to perform the lifting and carrying requirements of light work, as

Plaintiff suggests. See Putnam v. Astrue, No. 10-cv-371, 2011 WL 3320518, at *4 (D. N.H.

Aug. 1, 2011) (“[C]laimant’s inability to perform the full range of light work[, including

limitations on standing and walking, did] not compel the conclusion that he is only capable of

less physically demanding (.e., sedentary) work, nor [did] it compel the conclusion that he is

disabled.’’). Instead, where a claimant’s RFC includes significant additional exertional or non-

exettional limitations, the AL] is required to consult a vocational expert to determine the

extent to which the claimant’s restrictions impact his ability to work. See Heggarty v. Sullivan,

947 F.2d 990, 995-96 (1st Cir. 1991); Buckner v. Colvin, 2014 WL 3962463 (M.D.N.C. Aug.

13, 2014) (finding that where “the AL] finds that a claimant must alternate between sitting and

standing and thus can perform less than a full range of light work, the AL] is permitted to rely

on the testimony of a vocational expert regarding the effect of that restriction on the

occupational base.”).

In the present case, the ALJ did just that. He found that overall, Plaintiff could meet

the lifting and carrying requirements of light work, but that he was additionally limited to

lifting, carrying, pushing, and pulling less than 10 pounds occasionally with his right upper

extremity, walking and standing for two hours, and myriad other limitations as set out above.

(Tr. at 13.) When presented with these limitations at step five of the sequential analysis, the

vocational expert testified that, although Plaintiffs reduced ability to stand and walk further

etoded his ability to perform light work, he could perform several sedentaty jobs available in

the national economy. (Ir. at 56-57.) The ALJ adopted this testimony. (Tr. at 17.) At no

point did either the ALJ or the vocational expert suggest that the identification of sedentary

jobs somehow precluded Plaintiff from performing the light lifting previously included in the

RFC. In fact, as acknowledged by Plaintiff himself, in communicating hypotheticals to the

vocational expert, the ALJ specified an individual who can lift and catry 20 pounds

occasionally and 10 pounds frequently. (Tr. at 55; Pl.’s Br. at 5.)4

* Plaintiff may be contending that the ALJ should have classified Plaintiff's physical RFC as “sedentary” rather

“light”, given the standing and walking restrictions included in the RFC and the vocational expett’s testimony

identifying only sedentary jobs. However, even if there were an ettot in this regard, it is harmless. Notably,

this is not a case where the Medical-Vocational Guidelines (“the Grids”) would have directed a finding of

“disabled” if Plaintiff were limited to sedentary work. Indeed, the State Medical Reviewer Dr. Singh, like the

ALJ, found Plaintiff capable of lifting 20 pounds occasionally and 10 pounds frequently and standing and

Finally, to the extent Plaintiff contends that there is an unreconciled inconsistency

between Plaintiffs ability to perform lifting and carrying consistent with light work and the

gteatet testrictions regarding his right arm, a claimant “does not need two fully functioning

uppet extremities to perform light work.” Campbell v. Comm’r of Soc. Sec., No. 4:13-CV-

00050, 2014 WL 7011116, at *8 (WW.D. Va. Dec. 11, 2014); Carey v. Apfel, 230 F.3d 131, 146

(5th Cir. 2000) (substantial evidence supported ALJ’s finding that amputee could perform

specific light jobs with remaining atm and hand); ‘Thomas v. Comm’r, Soc. Sec. Admin., Civil

No. SAG—11-3683, 2013 WL 66538, at *1 (D. Md. Jan. 2, 2013) (same)). In the present case,

the ALJ found that overall, Plaintiff could meet the lifting and carrying requirements of light

work, but that he was additionally limited to lifting, carrying, pushing, and pulling less than 10

pounds occasionally with his right upper extremity and only frequently handling and fingering

with his tight hand. (Tr. at 13.)° Although Plaintiff now argues that the AL]’s failure to

identify the exact weight Plaintiff could lift with his right arm (Le., between 0 and slightly less

than 10 pounds) is reversible error, as “an inability to lift or carry more than 1 or 2 pounds

walking up to 2 hours, but Dr. Singh used the applicable “sedentary” Grid at 201.21 as a framework, which

nevertheless directed a finding of “not disabled.” The AL] used the “light” Grid at 202.20 as a framework, but

found that Plaintiff was not capable of the full range of light work based on the additional limitations included

in the RFC, and then consulted the vocational expert, who identified other work that Plaintiff could perform,

specifically identifying multiple sedentary occupations, taking into account all of the restrictions provided in the

hypotheticals and included in the RFC. In the circumstances, it is not clear that thete would be any error, see

Foxworth v. Colvin, 249 F. Supp. 3d 585 (2017) (finding no error in the ALJ’s RFC determination of light, even

though the vocational expert identified sedentary positions at step five), and in any event any alleged error in

failing to reduce Plaintiffs RFC to sedentary based on the standing and walking restriction is harmless. See

Galloway v. Astrue, 2011 WL 6339782 (M.D.N.C. Dec. 19, 2011) (finding any error as to Grids is harmless

where the Grids direct a finding of “not disabled” whether sedentary or light).

° This is consistent with Plaintiffs testimony at the hearing that only his right shoulder was bothering him, not

both (Tr. at 42), and that he had to pick his grandchildren up with his left arm rather than his right arm □□□□ at

48, 53). Moreover, Plaintiff does not challenge the substance of the ALJ’s findings, and the ALJ supported his

conclusions in detail in the decision, which is supported by substantial evidence in the record.

would erode the unskilled sedentaty occupational base significantly” (see Pl.’s Br. at 8) (quoting

SSR96-9p), such a finding under SSR 96-9p must be premised on a claimant’s overall ability to

lift ot carry, not his ability to do so with his most impaired extremity alone. As explained

previously, the AL] found Plaintiff able to perform the lifting and carrying requirements of

light work, meaning that, overall, Plaintiff could lift and carry 20 pounds occasionally and 10

pounds frequently. (Tr. at 13.) Plaintiff points to no evidence challenging this finding.

Moteover, the vocational expert specifically addressed the limitation on Plaintiffs right upper

extremity, noting that the Dictionary of Occupational Titles does not address “right versus

left upper extremity” but that the additional limitations on Plaintiffs right upper extremity

would not preclude the sedentary occupations she identified, based on het experience in job

placement, het analysis, and her professional esearch. (I't. at 56-57.) Plaintiff has failed to

- point to reversible error, and the Court finds no basis for remand.

IT IS THEREFORE RECOMMENDED that the Commissionet’s decision finding

no disability be AFFIRMED, that Plaintiffs Motion to Reverse the Decision of the

Commissioner [Doc. #13] be DENIED, that Defendant’s Motion for Judgment on the

Pleadings [Doc. #15] be GRANTED, and that this action be DISMISSED with prejudice.

This, the 13% day of February, 2020.

/s/ Joi Elizabeth Peake

United States Magistrate Judge

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