Bailey v. Berryhill

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

STATESVILLE DIVISION

Civil No. 5:18-cv-00040-RJC

EBONY NICHOLE BAILEY, )

)

Plaintiff, )

)

v. )

) ORDER

NANCY A. BERRYHILL, )

Acting Commissioner of Social )

Security, )

)

Defendant. )

THIS MATTER comes before the Court on Plaintiff’s Motion for Summary

Judgment, (Doc. No. 10), and Defendant’s Motion for Judgment on the Pleadings,

(Doc. No. 12). The motions are ripe for adjudication.

I. BACKGROUND

A. Procedural Background

Ebony Nichole Bailey (“Plaintiff”) seeks judicial review of Nancy A. Berryhill’s

(“Defendant” or “Commissioner”) denial of her social security claim. Plaintiff filed an

application for Disability Insurance under Title II and Supplemental Security Income

under Title XVI of the Social Security Act (“SSA”) on July 17, 2012. (Doc. Nos. 9 to

9-1: Administrative Record (“Tr.”) at 154.) Her applications were denied first on

September 10, 2012, (Tr. 173), and upon reconsideration on February 11, 2013, (Tr.

184, 188). Plaintiff timely filed a request for a hearing on April 9, 2015, (Tr. 154),

and an administrative hearing was held by an administrative law judge (“ALJ”) on

August 19, 2014, (Tr. 207). Following this hearing, the ALJ found that Plaintiff was

not disabled under the SSA. (Tr. 151–68.) Plaintiff requested a review of the ALJ’s

decision, and on May 5, 2016, the Appeals Council granted Plaintiff’s request for

review, vacated the hearing decision, and remanded the case for further proceedings.

(Tr. 169–72.)

After remand, an administrative hearing was held by the ALJ on May 2, 2017.

(Tr. 265.) Following this hearing, the ALJ found that Plaintiff was not disabled under

the SSA. (Tr. 7–20.) Plaintiff requested a review of the ALJ’s decision, but on

January 11, 2018, the Appeals Council denied Plaintiff’s request for review. (Tr. 1.)

Having exhausted her administrative remedies, Plaintiff now seeks judicial review of

Defendant’s denial of her social security claim in this Court.

B. Factual Background

The question before the ALJ was whether Plaintiff was disabled under Sections

216(i), 223(d), and 1614(a)(3)(A) of the SSA. (Tr. 10.) To establish entitlement to

benefits, Plaintiff has the burden of proving that she was disabled within the meaning

of the SSA.1 Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). Plaintiff alleges that

her disability began on July 2, 2012 due to physical impairments.

1 Under the SSA, 42 U.S.C. § 301, et seq., the term “disability” is defined as an

“inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period of not less than

12 months.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (quoting 42 U.S.C.

§ 423(d)(1)(A)).

After reviewing Plaintiff’s record and conducting a hearing, the ALJ found that

Plaintiff did not suffer from a disability as defined in the SSA. (Tr. 19.) In reaching

his conclusion, the ALJ used the five-step sequential evaluation process established

by the Social Security Administration for determining if a person is disabled. The

Fourth Circuit has described the five-steps as follows:

[The ALJ] asks whether the claimant: (1) worked during the purported

period of disability; (2) has an impairment that is appropriately severe

and meets the duration requirement; (3) has an impairment that meets

or equals the requirements of a listed impairment and meets the

duration requirement; (4) can return to her past relevant work; and (5)

if not, can perform any other work in the national economy.

Radford v. Colvin, 734 F.3d 288, 290–91 (4th Cir. 2013) (paraphrasing 20 C.F.R.

§§ 404.1520(a)(4), 416.920(a)(4)). The claimant has the burden of production and

proof in the first four steps. Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015).

However, at the fifth step, the Commissioner must prove that the claimant is able to

perform other work in the national economy despite her limitations. See id.; see also

20 C.F.R. § 416.960(c)(2) (explaining that the Commissioner has the burden to prove

at the fifth step “that other work exists in significant numbers in the national

economy that [the claimant] can do”).

In this case, the ALJ determined at the fifth step that Plaintiff was not

disabled. (Tr. 18–19.) In reaching his decision, the ALJ first concluded at steps one

through three that Plaintiff was not employed, that she suffered from severe physical

impairments,2 and that her impairments did not meet or equal any of the

impairments listed in the Administration’s regulations. (Tr. 12–13.) Therefore, the

ALJ examined the evidence of Plaintiff’s impairments and made a finding as to

Plaintiff’s Residual Functional Capacity (“RFC”). In pertinent part, the ALJ found

that Plaintiff “has the [RFC] to perform sedentary work . . . except she needs a

sit/stand option wherein she can change positions every hour without going off task

more than 10%. She can occasionally perform posturals.” (Tr. 14.) Having

established Plaintiff’s RFC, the ALJ concluded that Plaintiff could not perform the

work in which she had previously been employed. (Tr. 18.) Therefore, the ALJ

proceeded to the fifth and final step of the process: determining whether, given the

limitations embodied in her RFC, Plaintiff could perform any work that existed in

significant numbers in the national economy. (Tr. 18–19.) To make that

determination, the ALJ relied on the testimony of a Vocational Expert (“VE”). The

VE testified that Plaintiff could perform three jobs that existed in significant

numbers in the national economy: “call out operator,”3 “charge account clerk,”4 and

“addresser.”5 (Tr. 19.) According to the DOT, all of these jobs involve “sedentary

work.” The ALJ accepted the VE’s testimony and concluded that Plaintiff’s

2 The severe impairments the ALJ determined Plaintiff suffered from were cauda

equine syndrome (CES) s/p discectomy, constipation, bladder disorder, and obesity.

(Tr. 13.)

3 DOT 237.367-014, 1991 WL 672186.

4 DOT 205.367-014, 1991 WL 671715.

5 DOT 209.587-010, 1991 WL 671797.

impairments did not prevent her from working; consequently, Plaintiff’s applications

for Title II and Title XVI benefits were denied. (Tr. 18–19.)

II. STANDARD OF REVIEW

The Court must decide whether substantial evidence supports the final

decision of the Commissioner and whether the Commissioner fulfilled her lawful duty

in her determination that Plaintiff was not disabled under the Social Security Act.

See 42 U.S.C. §§ 405(g), 1382(c).

The SSA, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court’s review of a

final decision of the Commissioner to (1) whether substantial evidence supports the

Commissioner’s decision, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); and

(2) whether the Commissioner applied the correct legal standards, Hays v. Sullivan,

907 F.2d 1453, 1456 (4th Cir. 1990). The district court does not review a final decision

of the Commissioner de novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986);

King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v. Richardson, 483 F.2d

773, 775 (4th Cir. 1972). As the SSA provides, “[t]he findings of the [Commissioner]

as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §

405(g). In Smith v. Heckler, the Fourth Circuit noted that “substantial evidence” has

been defined as being “more than a scintilla and [do]ing more than creat[ing] a

suspicion of the existence of a fact to be established. It means such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” 782 F.2d

1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401); see also Seacrist v.

Weinberger, 538 F.2d 1054, 1056–57 (4th Cir. 1976) (“We note that it is the

responsibility of the [Commissioner] and not the courts to reconcile inconsistencies in

the medical evidence . . . .”).

The Fourth Circuit has long emphasized that it is not for a reviewing court to

weigh the evidence again or substitute its judgment for that of the Commissioner,

assuming the Commissioner’s final decision is supported by substantial evidence.

Hays, 907 F.2d at 1456; see also Smith, 795 F.2d at 345; Blalock, 483 F.2d at 775.

Indeed, this is true even if the reviewing court disagrees with the outcome—so long

as there is “substantial evidence” in the record to support the final decision below.

Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).

III. DISCUSSION

Plaintiff alleges that that the ALJ made two errors: (1) the ALJ failed to

perform a function-by-function assessment of Plaintiff’s impairments and provide a

logical bridge between the evidence and the ALJ’s conclusions regarding Plaintiff’s

RFC; and (2) the ALJ failed to properly account for the limiting effects of Plaintiff’s

bladder and bowel issues in Plaintiff’s RFC. The Court disagrees with both of

Plaintiff’s allegations of error and addresses each in turn.

A. The alleged failure of the ALJ to conduct a function-by-function analysis

does not require remand, and the ALJ built a logical bridge from the

evidence to her conclusions.

According to Social Security Ruling 96-8p, the ALJ must assess a claimant’s

work-related abilities on a function-by-function basis and include a narrative

discussion explaining how the evidence supports each conclusion, citing specific

medical facts and nonmedical evidence. SSR 96-8p, 1996 WL 374184, at *1, *7. When

a narrative discussion is missing, and a meaningful factual development is lacking,

district courts may not mine facts from the record to later construct a logical bridge.

Marshall v. Colvin, No. 3:14-cv-00608, 2016 WL 1089698, at *2 (W.D.N.C. Mar. 21,

2016) (citing Brown v. Colvin, No. 14-2106, 2016 WL 502918, at *2 (4th Cir. Feb. 9,

2016)). There is no per se rule requiring remand for failure to perform an explicit

function-by-function analysis; rather, “remand may be appropriate . . . where an ALJ

fails to assess a claimant’s capacity to perform relevant functions, despite

contradictory evidence in the record, or where other inadequacies in the ALJ’s

analysis frustrate meaningful review.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir.

2015).

As an initial matter, the basis for Plaintiff’s contention that the ALJ failed to

perform a function-by-function analysis is not clear. Plaintiff merely inserts this

contention into her first argument heading without further elaboration in the text

thereunder. (Doc. No. 11, at 6–12.) Plaintiff does not indicate any relevant function

that she contends the ALJ failed to assess; instead, Plaintiff makes the conclusory

statement that the ALJ’s failure to perform a function-by-function analysis prevents

meaningful review. (Id. at 15–16.) The Court disagrees.

The ALJ made implicit findings as to Plaintiff’s ability to stand, walk, sit, lift,

and carry by restricting Plaintiff to “sedentary work,” which sets limits on each of

these functions:

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). The ALJ’s implicit findings are further demonstrated by the

incorporation into Plaintiff’s RFC of “a sit/stand option wherein she can change

positions every hour without going off task more than 10%.” (Tr. 14) See Reiser v.

Colvin, No. 5:14-cv-850, 2016 WL 11430718, at *9–10 (E.D.N.C. Jan. 26, 2016)

(concluding that the ALJ made implicit findings as to plaintiff’s ability to stand, walk,

sit, lift, and carry by restricting plaintiff to light work and, thus, performed an

adequate function-by-function analysis), adopted by 2016 WL 1183092 (E.D.N.C.

Mar. 28, 2016).

Further, contrary to Plaintiff’s contention, the ALJ built a logical bridge from

the evidence to her conclusions. The ALJ set forth Plaintiff’s testimony regarding her

impairments, pain, and other symptoms. (Tr. 14–15.) The ALJ then explained in

detail why she found Plaintiff’s statements to be not credible, as well as the evidence

on which she based her RFC conclusions. With respect to Plaintiff’s back pain and

her difficulty with standing and walking, the ALJ pointed to, among other evidence,

medical records by Plaintiff’s treating physician documenting Plaintiff was able to

ambulate well, had no difficulty with sit to stand, and was able to stand without any

difficulty. (Id. at 15.) The ALJ cited to additional medical records documenting

Plaintiff was “quite satisfied” with her pain medication, did not want a change in

dosage, and although pain could radiate to her right buttocks, Plaintiff felt this was

“satisfactorily controlled.” (Id.) The ALJ then explained:

[Plaintiff]’s limited use of pain medication, failure to sustain any

consistent regimen for treatment of pain, and lack of hospitalizations or

emergency room visits for pain demonstrates that [Plaintiff]’s

allegations are not fully substantiated by the documentary evidence.

Any lingering back discomfort is addressed by a limitation to sedentary

work with only occasional performance of postural activities.

(Id. at 16.)

With respect to Plaintiff’s bladder issues, the ALJ cited to evidence that

Plaintiff’s bladder issues were “not significant” in November 2012, Plaintiff’s bladder

issues were not “affecting her in a negative way” in July 2013, Plaintiff “denied any

specific bladder symptoms in April 2015,” and Plaintiff was “in and out” with

catheterizations without any urinary tract infections in August 2015. (Id.) The ALJ

then explained: “Overall, the record shows [Plaintiff] has had some bladder problems,

but that she has been able to go about her daily activities without reporting much

interference by them.” (Id.)

With respect to Plaintiff’s bowel issues, the ALJ cited to evidence

demonstrating how the intensity, persistence, and limiting effects of these issues

changed over time. (Id.) For example, “Plaintiff reported having bowels every 2

weeks in October 2012, but then two months later, she stated she went about every

3 days or so and used an enema once a week.” (Id.) The ALJ then explained: “Overall,

the record shows that her difficulty has waxed and waned, but there were not

significant reports of discomfort causing interference in her activities of daily

living . . . .” (Id. at 17.)

With respect to Plaintiff’s obesity, the ALJ found that it “could limit her ability

to perform strenuous activities, such as heavy lifting, which [was] addressed in the

[RFC].” (Id.)

In addition, the ALJ adequately explained why she gave no weight to two

statements by Dr. Thomas, M.D. On July 3, 2014, Dr. Thomas stated “[w]ith

[Plaintiff’s] abdominal bloating and significant constipation as [sic] also the need for

catheterization frequently, I do not see how she can get gainful employment.” (Id. at

590.) On July 23, 2014, Dr. Thomas similarly stated Plaintiff “is unable to return to

work and is permanently disabled related to her primary diagnosis.” (Id. at 586.)

The ALJ explained that the issues of whether Plaintiff is disabled and unable to work

are reserved to the Commissioner and, thus, the ALJ gave these statements no

weight. (Id. at 17); 20 C.F.R. §§ 404.1527(d), 416.927(d); Pascoe v. Astrue, No. 1:11-

cv-226, 2012 WL 3528054, at *3 (W.D.N.C. July 23, 2012) (“Statements by medical

sources that a patient is disabled, unable to work, or meets the listing requirements

are not medical issues, but are administrative findings reserved for the

Commissioner.”).

Thus, the Court concludes that the ALJ adequately identified the evidence

supporting her conclusions and built a logical bridge from that evidence to her

conclusions. Although Plaintiff argues that the evidence directs a different

conclusion, “it is not our province to reweigh conflicting evidence, make credibility

determinations, or substitute our judgment for that of the [ALJ.]” Radford, 734 F.3d

at 296 (quotation marks omitted) (alteration in original).

B. Substantial evidence supports the ALJ’s decision.

Plaintiff argues that the ALJ’s decision is not supported by substantial

evidence because the ALJ failed to properly account for the limiting effects of

Plaintiff’s bladder issues, bowel issues, and pain medications. (Doc. No. 11, at 12–

16.) The Court disagrees.

As discussed above, the ALJ set forth in detail the evidence on which she relied

in concluding that Plaintiff’s bladder and bowel issues did not significantly interfere

with Plaintiff’s activities of daily living, and the evidence adequately supports her

conclusions. Moreover, “the finding at step two that Plaintiff has a severe

impairment . . . does not require the ALJ to include any limitations from such

impairment when stating the Plaintiff’s RFC.” Carver v. Colvin, No. 1:13-cv-13, 2015

WL 4077466, at *4 (M.D.N.C. July 6, 2015). “The determination of a ‘severe’

impairment at step two of the sequential evaluation process is a test,

designed to weed out unmeritorious claims. A finding of limitations is not

proof that the same limitations have the greater significant and specific nature

required to gain their inclusion in an RFC assessment at step four.” Hughes v.

Astrue, No. 1:09-cv-459, 2011 WL 4459097, at *10 (W.D.N.C. Sept. 26, 2011) (citation

omitted).

Plaintiff’s argument that the ALJ’s decision is not supported by substantial

evidence because the ALJ failed to account for side effects from Plaintiff’s pain

medications is without merit. The only supporting evidence Plaintiff cites to is

Plaintiff’s testimony that the medication “makes [her] sleepy.” (Doc. No. 11, at 15

(citing Tr. 63).) “[Tlhere is no rigid requirement that the ALJ specifically refer to

every piece of evidence in [her] decisionI[,]” and Plaintiff fails to demonstrate that the

record supports inclusion of a limitation for medication side effects. Reid v. Comm’r

of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014).

IV. CONCLUSION

In sum, the Court finds that substantial evidence supports the ALJ’s decision,

and the ALJ adequately identified the evidence supporting her conclusions and built

a logical bridge from that evidence to her conclusions.

IT IS THEREFORE ORDERED THAT:

1. Plaintiffs Motion for Summary Judgment, (Doc. No. 10), is DENIED;

2. Defendant’s Motion for Judgment on the Pleadings, (Doc. No. 12), is

GRANTED; and

3. The Clerk of Court is directed to close this case.

Signed: September 4, 2019

Bate Cr Of

Robert J. Conrad, Jr. ‘ey

United States District Judge “ee

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