Smith v. Astrue

• Decision Date: 02 July 2012
• Docket Number: CIVIL CASE NO. 2:11-CV-025-MR-DCK
• Court: U.S. District Court — Western District of North Carolina
• Parties: AMBER NICOLE SMITH, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

AMBER NICOLE SMITH, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

CIVIL CASE NO. 2:11-CV-025-MR-DCK

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA BRYSON CITY DIVISION

Signed: July 2, 2012

MEMORANDUM AND

RECOMMENDATION

THIS MATTER IS BEFORE THE COURT on Plaintiff's "Notice Of Motion And Motion For Judgment On The Pleadings" (Document No. 14) and Defendant's "Motion For Summary Judgment" (Document No. 18). This case has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b)(1)(B). After careful consideration of the written arguments, administrative record, and applicable authority, the undersigned will respectfully recommend that Plaintiff's "Notice Of Motion And Motion For Judgment On The Pleadings" be denied; that Defendant's "Motion For Summary Judgment" be granted; and that the Commissioner's decision be affirmed.

I. BACKGROUND

Plaintiff Amber Nicole Smith ("Plaintiff"), through counsel, seeks judicial review of an unfavorable administrative decision on her application for disability benefits. (Document No. 1). On October 3, 2007, Plaintiff filed an application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 405 et seq.. (Transcript of the Record of Proceedings ("Tr.") 12). On October 10, 2007, Plaintiff also filed an application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1383 et seq.Id. In both applications, Plaintiff alleged disability beginning on September 15, 2007. Id. The Commissioner of Social Security (the "Commissioner" or "Defendant") denied both claims initially on April 21, 2008, and again after reconsideration on November 17, 2008. Id. Plaintiff filed a timely written request for a hearing on January 6, 2009. Id.

On May 11, 2010, Plaintiff appeared and testified at a hearing before Administrative Law Judge Ann G. Paschall ("ALJ"). (Tr. 12, 29). In addition, Kathleen H. Robbins, Ph.D., an impartial vocational expert ("VE"), and Russell R. Bowling, Plaintiff's attorney, appeared at the hearing. (Tr. 12, 30). On June 17, 2010, the ALJ issued an unfavorable decision denying Plaintiff's claims. (Tr. 9-11, 29). The ALJ's decision became the final decision of the Commissioner on May 3, 2011, when the Appeals Council denied Plaintiff's request for review. (Tr. 1-4).

Plaintiff's "Complaint" seeking a reversal of the ALJ's determination was filed in this Court on July 7, 2011. (Document No. 1). Plaintiff's "Notice Of Motion And Motion For Judgment On The Pleadings" (Document No. 14) and "Plaintiff's Memorandum Of Law" (Document No. 14) were filed January 2, 2012; and Defendant's "Motion For Summary Judgment" (Document No. 18) and "Defendant's Memorandum Of Law In Support Of Motion For Summary Judgment" (Document No. 19), were filed April 2, 2012. On March 19, 2012, the undersigned was assigned to this case as the referral magistrate judge. The pending motions are ripe for disposition, and therefore, a memorandum and recommendation to the Honorable Martin Reidinger is appropriate.

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; and (2) whether the Commissioner applied the correct legal standards.Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the evidence or to substitute its judgment for that of the Commissioner - so long as that decision is supported by substantial evidence. Hays, 907 F.2d at 1456 (4th Cir. 1990); see also, Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). "Substantial evidence has been defined as 'more than a scintilla and [it] must do more than create 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.'" Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).

Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and to resolve conflicts in the evidence. Hays, 907 F.2d at 1456; King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979) ("This court does not find facts or try the case de novo when reviewing disability determinations."); 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 inconsistences in the medical evidence, and that it is the claimant who bears the risk of nonpersuasion."). Indeed, so long as the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court disagrees with the final outcome. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).

III. DISCUSSION

The question before the ALJ was whether Plaintiff was under a "disability" as that term of art is defined for Social Security purposes, at any time between September 15, 2007, and the dateof her decision.¹ (Tr. 12). To establish entitlement to benefits, Plaintiff has the burden of proving that she was disabled within the meaning of the Social Security Act. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The ALJ concluded that Plaintiff was not under a disability at any time from September 15, 2007, through the date of her decision, June 17, 2010. (Tr. 12).

The Social Security Administration has established a five-step sequential evaluation process for determining if a person is disabled. 20 C.F.R. § 404.1520(a). The five steps are:

(1) whether claimant is engaged in substantial gainful activity - if yes, not disabled;

(2) whether claimant has a severe medically determinable physical or mental impairment, or combination of impairments that meet the duration requirement in § 404.1509 - if no, not disabled;

(3) whether claimant has an impairment or combination of impairments that meets or medically equals one of the listings in appendix 1, and meets the duration requirement - if yes, disabled;

(4) whether claimant has the residual functional capacity ("RFC") to perform her/his past relevant work - if yes, not disabled; and

(5) whether considering claimant's RFC, age, education, and work experience he/she can make an adjustment to other work - if yes, not disabled.

20 C.F.R. § 404.1520(a)(4)(i-v). In this case, the ALJ determined at the fifth step that Plaintiff was not disabled. (Tr. 29).

Specifically, the ALJ first concluded that Plaintiff had not engaged in any substantial gainful activity since September 15, 2007, her alleged disability onset date. (Tr. 14). At the second step, the ALJ found that Plaintiff's asthma, levoscoliosis, bilateral congenital hearing loss, bipolar disorder, anxiety disorder, and borderline intellectual functioning were severe impairments. (Tr. 15).² At the third step, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. 404, Subpart P, Appendix 1. (Tr. 16).

Next, the ALJ assessed Plaintiff's RFC and found that she retained the capacity to perform medium work activity, with the following limitations:

lift/carry 50 pounds occasionally and 25 pounds frequently; sit/stand/walk for six hours each out of an eight hour day; avoid concentrated exposure to extreme heat, extreme cold, extreme humidity, dusts, and fumes; avoid all exposure to high noise environments, dangerous machinery and unprotective heights; limited to work involving unskilled, simple 1-2 step tasks and instructions; limited to work environments involving no more than occasional contact with the public; and cannot work in a high production, high stress work environment.

(Tr. 20). In making her finding, the ALJ considered all symptoms and the extent to which these symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence, as well as opinion evidence. (Tr. 20). The ALJ found that Plaintiff's "medicallydeterminable impairments could reasonably be expected to cause some of the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent that they are inconsistent with the above residual functional capacity assessment." (Tr. 21).

At the fourth step, taking into account Plaintiff's residual functional capacity, the ALJ found that Plaintiff could not perform her past relevant work as she actually performed such work or as such work is generally performed in the national economy. (Tr. 28). At the fifth and final step, the ALJ concluded, based on the testimony of a vocational expert and "considering the claimant's age, education, work experience, and residual functional capacity, [Plaintiff] is capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (Tr. 29). Specifically, the vocational expert testified that according to the factors given by the ALJ, Plaintiff "would be able to perform the requirements of representative unskilled occupations such as: housekeeping worker/maid" and "surveillance system monitor." (Tr. 28). The vocational expert "further stated that, in the absence of a Hepatitis C infection, additional jobs would also be available in the food service industry for an individual with [Plaintiff's] age, education, work experience, and residual functional capacity." (Tr. 29). Therefore, the ALJ concluded that Plaintiff was not under a "disability," as defined by the Social Security Act, at any time between September 15, 2007, and the date of her decision, June 17, 2010. (Tr. 29).

Plaintiff on appeal to this Court makes the...