Opinion
Civil Action 1:20-CV-00149-RJC-DSC
03-22-2022
DENISE DARBY, Plaintiff, v. ANDREW M. SAUL, Defendant.
MEMORANDUM AND RECOMMENDATION
David S. Cayer United States Magistrate Judge
THIS MATTER is before the Court on Plaintiff's “Motion for Summary Judgment” (document #13) and Defendant's “Motion for Summary Judgment” (document #15), as well as the parties' briefs and submissions.
This case has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and these Motions are now ripe for disposition.
Having fully considered the written arguments, administrative record, and applicable authority, the undersigned respectfully recommends that Plaintiff's Motion for Summary Judgment be denied; that Defendant's Motion for Summary Judgment be granted; and the Commissioner's decision be affirmed.
I. PROCEDURAL HISTORY
The Court adopts the procedural history as stated in the parties' briefs.
Plaintiff filed the present action on June 18, 2020. She assigns error to the Administrative Law Judge's formulation of her Residual Functional Capacity and his evaluation of her subjective complaints and symptoms. See Plaintiff's “Memorandum ...” at 8-27 (document #14); “Response …” at 1-4 (document #17). Plaintiff also alleges that a prior decision denying her benefits must be vacated because that ALJ was not legally appointed. See Plaintiff's “Memorandum ...” at 9, 27-30 (document #14); “Response …” at 4-6 (document #17).
The Social Security Regulations define “Residual Functional Capacity” as “what [a claimant] can still do despite his limitations.” 20 C.F.R. § 404.1545(a). The Commissioner is required to “first assess the nature and extent of [the claimant's] physical limitations and then determine [the claimant's] Residual Functional Capacity for work activity on a regular and continuing basis.” 20 C.F.R. § 404.1545(b).
II. STANDARD OF REVIEW
The Social Security Act, 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); see also Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). 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 Social Security Act 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, 782 F.2d 1176, 1179 (4th Cir. 1986), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), the Fourth Circuit defined “substantial evidence” thus:
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.”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, nor to substitute its judgment for that of the Commissioner, assuming the Commissioner's final decision is supported by substantial evidence. Hays v. Sullivan, 907 F.2d at 1456 (4th Cir. 1990); see also Smith v. Schweiker, 795 F.2d at 345; and Blalock v. Richardson, 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 OF CLAIM
The question before the ALJ was whether Plaintiff became disabled as that term is defined for Social Security purposes.
Under the Social Security Act, 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).
Plaintiff challenges the ALJ's determination of her RFC. The ALJ is solely responsible for assessing a claimant's RFC. 20 C.F.R. §§ 404.1546(c) & 416.946(c). In making that assessment, the ALJ must consider the functional limitations resulting from the claimant's medically determinable impairments. SSR96-8p, available at 1996 WL 374184, at *2. The ALJ must also “include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and non-medical evidence.” Id.
Plaintiff has the burden of establishing her RFC by showing how her impairments affect her functioning. See 20 C.F.R. §§404.1512(c) & 416.912(c); see also, e.g., Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“[t]he burden of persuasion . . . to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five”); Plummer v. Astrue, No. 5:11-cv-06-RLV-DSC, 2011 WL 7938431, at *5 (W.D. N.C. Sept. 26, 2011) (Memorandum and Recommendation) (“[t]he claimant bears the burden of providing evidence establishing the degree to which her impairments limit her RFC”) (citing Stormo), adopted, 2012 WL 1858844 (May 22, 2102), aff'd, 487 Fed.Appx. 795 (4th Cir. Nov. 6, 2012).
In Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit held that “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.” 780 F.3d at 636 (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). This explicit function-by-function analysis is not necessary when functions are irrelevant or uncontested. An ALJ may satisfy the “function-by-function” requirement by referencing a properly conducted analysis by State agency medical consultants. See Settlemyre v. Colvin, No. 5:14-CV-00199-MOC, 2015 WL 5457950, at *4 (W.D. N.C. Sept. 16, 2015); Linares v. Colvin, No. 5:14-CV-00120, 2015 WL 4389533, at *3 (W.D. N.C. July 17, 2015) (“Because the ALJ based his RFC finding, in part, on the function-by-function analysis of the State agency consultant, the ALJ's function-by-function analysis complied with SSR 96-8p.”) (citing Lemken v. Astrue, No. 5:07-CV-33-RLV-DCK, 2010 WL 5057130, at *8 (W.D. N.C. July 26, 2010); Onishea v. Barnhart, 2004 WL 1588294, at *1 (5th Cir. July 16, 2004)). The ALJ's RFC determination here is supported by substantial evidence including Plaintiff's testimony, medical records and treatment history. Applying Social Security Acquiescence Ruling 00-1 (4), the ALJ gave great weight to a previous decision which was affirmed by this Court. (Tr. 32-33; Darby v. Berryhill, No. 1:16-cv-00366-RJC, 2018 WL 310136 (WDNC, January 5, 2018)). The ALJ noted that the record shows Plaintiff's physical condition has remained fairly stable, with no worsening of her impairments since the prior decision. (Tr. 32-33).
Plaintiff refused to attend consultative evaluations. On April 20, 2017, agency disability evaluator Dawn Mathis called Plaintiff's representative to schedule those evaluations. The representative hung up on Ms. Mathis. (Tr. 119). The disability regulations provide that failure to keep a scheduled consultative examination without good reason may result in a denial of benefits. 20 C.F.R. § 404.1518(a). See Muhl v. Commissioner, No. SAG-11-967, 2012 WL 5986961 at *1 (D. Maryland, November 28, 2012) (failure to attend two scheduled consultative examinations constitutes a valid reason to uphold the Commissioner's denial of plaintiff's disability claim).
Plaintiff's assignment of error that the ALJ's use of “non-production pace” in the RFC frustrates meaningful review must be overruled. In Allen v. Berryhill, this Court held that Sizemore v. Berryhill, 878 F.3d 72 (4th Cir. 2017), and Jarek v. Colvin, 672 Fed.Appx. 332 (4th Cir. 2017), “convince this Court that non-production [Sizemore] or non-assembly line [Jarek] pace limitations sufficiently account for a claimant's moderate limitation in CPP.” No. 3:16-cv-00851-RJC, 2018 WL 1175231, at *5 (W.D. N.C. Mar. 6, 2018). See also Michaels v. Colvin, No. 3:15-cv-388-RJC-DSC, 2016 WL 8710975 (W.D. N.C. Mar. 25, 2016) (“Consistent with Mascio, the ALJ limited the RFC not only to simple routine repetitive tasks, but also to work in a nonproduction pace rates.”), memorandum and recommendation adopted, 2016 WL 5478014 (W.D. N.C. Sept. 26, 2016), aff'd, No. 16-2242, 2017 WL 4176228 (4th Cir. Sept. 21, 2017) (unpublished).
Substantial evidence also supports the ALJ's evaluation of Plaintiff's subjective complaints and symptoms. Determining whether a claimant is disabled by non-exertional pain or other symptoms is a two-step process. “First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged.” Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996), citing 20 C.F.R. § 416.929(b); and § 404.1529(b); 42 U.S.C. § 423(d)(5)(A). If there is such evidence, then the ALJ must evaluate “the intensity and persistence of the claimant's pain, and the extent to which it affects [his] ability to work.” Id. at 595, citing 20 C.F.R. § 416.929(c)(1); and § 404.1529(c)(1). The Regulations provide that this evaluation must take into account:
not only the claimant's statements about his or her pain, but also “all the available evidence, ” including the claimant's medical history, medical signs, and laboratory findings; any objective medical evidence of pain (such as evidence of reduced joint motion, muscle spasms, deteriorating tissues, redness, etc.); and any other evidence relevant to the severity of the impairment, such as evidence of the claimant's daily activities, specific descriptions of the pain, and any medical treatment taken to alleviate it.Craig, 76 F.3d at 595 (citations omitted).
The ALJ found that Plaintiff met the first prong of the test. The ALJ then determined that her subjective complaints were not consistent with the objective evidence in the record. 20 C.F.R. § 404.1529(a) (“In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.”) The ALJ is responsible for making credibility determinations and resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). The ALJ is accorded deference with respect to assessment of a claimant's credibility. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.1984). Indeed, “[b]ecause he had the opportunity to observe the demeanor and to determine the credibility of the claimant, the ALJ's observations concerning these questions are to be given great weight.” Id.
The ALJ thoroughly discussed the record. For the same reasons stated above, his conclusion that Plaintiff's subjective complaints were not as severe as she claimed is supported by substantial evidence. Accordingly, this assignment of error must be overruled as well.
Five months after this Court affirmed the Commissioner's decision denying Plaintiff's prior claim, the Supreme Court decided Lucia v. SEC, 138 S.Ct. 2044, 2055 (June 21, 2018) (SEC ALJs were “inferior officers” subject to the Appointments Clause and a party “who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to relief.”) Plaintiff challenges the appointment of the ALJ who decided her prior claim but cites no authority that Lucia can be applied retroactively. This assignment of error is overruled.
Although the medical records establish that Plaintiff experienced symptoms to some extent, as the Fourth Circuit has noted, it is the ALJ's responsibility, not the Court's, “to reconcile inconsistencies in the medical evidence.” Seacrist, 538 F.2d at 1056-57.
Simply put, “[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the Secretary (or the Secretary's designate, the ALJ).” Mickles v. Shalala, 29 F.3d 918, 923 (4th Cir. 1994) (citing Simmons v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). There is substantial evidence to support the ALJ's evaluation of the record and his ultimate determination that Plaintiff was not disabled.
IV. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that Plaintiffs “Motion for Summary Judgment” (document #13) be DENIED; that Defendant's “Motion for Summary Judgment” (document #15) be GRANTED; and the Commissioner's decision be AFFIRMED.
V. NOTICE OF APPEAL RIGHTS
The parties are hereby advised that, pursuant to 28 U.S.C. §636(b)(1)(c), written objections to the proposed findings of fact and conclusions of law and the recommendation contained in this Memorandum must be filed within fourteen days after service of same. Failure to file objections to this Memorandum with the District Court constitutes a waiver of the right to de novo review by the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour, 889 F.2d 1363, 1365 (4thCir. 1989). Moreover, failure to file timely objections will also preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147 (1985); Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells, 109 F.3d at 201; Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation to counsel for the parties and to the Honorable Robert J. Conrad, Jr.
SO RECOMMENDED AND ORDERED