Roland v. Kijakazi

MARGARET LEONA ROLAND, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.

No. 1:21CV582

United States District Court, M.D. North Carolina

February 17, 2023

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Joe L Webster United States Magistrate Judge

Plaintiff Margaret Leona Roland brought this action to obtain review of a final decision of the Commissioner of Social Security denying her claims for supplemental security income - (“SSI”), disability insurance benefits (“DIB”), and a period of disability (“POD”). The Court has before it the administrative record and cross-motions for judgment.

I. PROCEDURAL HISTORY

Plaintiff filed applications for a POD, DIB, and SSI alleging a disability onset dated of June 1, 2012. (Tr. 284-91.)^[1]The applications were denied initially and again upon reconsideration. (Tr. 156-63, 168-85.) After an administrative hearing, the ALJ determined on April 3, 2019, that Plaintiff was not disabled under the Act. (Tr. 50-80, 135-151.) On May 29, 2019, Plaintiff filed a request for review with the Appeals Council. (Tr. 240-41.) She also filed a new application for DIB and a new application for SSI. (Tr. 309, 311.) The Appeals Council granted Plaintiffs request for review and issued an order remanding the case to the ALJ for a new hearing. (Tr. 152-54.) The order observed that the subsequent claims were duplicative and instructed the ALJ to associate the claim files from the original and subsequent claims and issue a new decision on the associated claims (Tr. 154.) After a second administrative hearing, the ALJ determined on January 4, 2021, that Plaintiff was not disabled under the Act. (Tr. 1014-53, 10-49.) On May 24, 2021, the Appeals Council denied Plaintiffs request for review making the ALJ's decision the final decision for purposes of review. (Tr. 1-6.)

II. STANDARD FOR REVIEW

The scope of judicial review of the Commissioner's final decision is specific and narrow. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Review is limited to determining if there is substantial evidence in the record to support the Commissioner's decision. 42 U.S.C. Ӥ 405(g); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992); Hays v. Sullivan, 907 F.2d 1453,1456 (4th Cir. 1990). In reviewing for substantial evidence, the Court does not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The issue before the Court is not whether Plaintiff is disabled but whether the finding that she is not disabled is supported by substantial evidence and based upon a correct application of the relevant law. Id.

III. THE ALJ'S DECISION

The ALJ followed the well-established sequential analysis to ascertain whether the claimant is disabled, which is set forth in 20 C.F.R. §§ 404.1520, 416.920. See Albright v. Comm'r of Soc. Sec. Admin., 174 F.3d 473, 475 n.2 (4th Cir. 1999). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since June 1, 2012, the alleged onset date. (Tr. 13.) The ALJ next found the following severe impairments at step two: obesity, chronic pulmonary insufficiency/bronchitis, and osteoarthritis of the lumbosacral spine. (Tr. 13.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, or medically equal to one listed in, Appendix 1. (Tr. 15.)

The ALJ next set forth Plaintiffs Residual Functional Capacity (“RFC”) and determined that she could perform a reduced range of medium work as follows: “She can occasionally climb ramps or stairs. She cannot climb ladders or scaffolds. She can occasionally stoop, kneel, or crouch. She cannot crawl. She is limited to occasional exposure to pulmonary irritants. She must avoid exposure to hazardous conditions.” (Tr. 15.) At the fourth step, the ALJ determined that Plaintiff could not perform her past relevant work. (Tr. 19.) At step five, the ALJ determined that there were other jobs in the national economy that Plaintiff could perform. (Tr. 19-20.)

IV. ISSUES AND ANALYSIS

Plaintiff first contends that, “[t]he ALJ committed a reversible error by failing to assess the impact of diabetes symptoms on [her] residual functional capacity, by discounting [her] testimony regarding uncontrolled diabetes and diabetic neuropathy symptoms in a manner not permitted by Social Security Ruling 16-3p, and by disregarding substantial evidence establishing that [she] has chronically uncontrolled diabetes and hyperglycemia[.]” (Docket Entry 15 at 3.) Plaintiff next contends that “[c]ontrolling Fourth Circuit caselaw establishes that the ALJ committed a reversible error by failing to include a key nonexertional functional restriction in the hypothetical posed to the vocational expert at hearing[.]” (Id. at 12.) Last, Plaintiff contends that “[c]ontroiling Fourth Circuit caselaw establishes that substantial evidence does not support the ALJ's conclusion that [Plaintiffs] activities are consistent with his residual functional capacity assessment because the ALJ disregarded [Plaintiffs] qualifying statements regarding the limited extent to which she can perform daily activities and failed to adequately explain how her limited ability to carry out daily activities supports his conclusion that she could sustain an eight-hour workday[.]” (Id. at 18.) As explained below, these contentions warrant no relief.

A. Step Two

As noted, Plaintiff first challenges the ALJ's evaluation of Plaintiffs diabetes and neuropathy. (Id. at 3.) As explained below, this objection has no merit.

At step two of the sequential evaluation process, the claimant bears the burden of demonstrating a severe, medically determinable impairment that has lasted or is expected to last for a continuous period of at least twelve months. 20 C.F.R. §§ 404.1509, 416.909; Shrecengost v. Colvin, No. 14CV506, 2015 WL 5126117, at *3 (W.D.N.Y. Sept. 1, 2015) (“[The plaintiff bears the burden of establishing a severe impairment at step two by furnishing medical and other evidence of the existence thereof as the Commissioner may require, and will not be considered disabled if such evidence is not provided.”). The Act describes “a physical or mental impairment” as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A physical or mental impairment must be established by objective medical evidence from an acceptable medical source.

20C.F.R. §§ 404.1521, 416.921. A statement of symptoms, diagnosis, or medical opinion is not sufficient to establish the existence of an impairment. Id. A “licensed physician” or “[l]icensed psychologist” is an “acceptable medical source.” 20 C.F.R. §§ 404.1502(a), 416.902(a).

An impairment is “severe” unless it “has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, or work experience.” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984); see also 20 C.F.R. §§ 404.1522(a), 416.922(a) (“An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.”); Brookover v. Saul, No. 2:20-CV-24-M, 2021 WL 4147075, at *4 (E.D. N.C. June 25, 2021). The “severity standard is a slight one.” Stemple v. Astrue, 475 F.Supp.2d 527, 536 (D. Md. 2007).

Additionally, “an error at step two in failing to properly consider whether an impairment is severe may be harmless where the ALJ considers that impairment in subsequent steps.” Jones v. Astrue, No. 5:07-CV-452-FL, 2009 WL 455414, at *2 (E.D. N.C. Feb. 23, 2009) (finding no reversible error where an ALJ does not consider whether an impairment is severe at step two of the sequential evaluation provided the ALJ considered that impairment in subsequent steps) (citations omitted); see also Shinseki v. Sanders, 556 U.S. 396, 407 (2009); Garner v. Astrue, 436 Fed. App'x 224, 225, n* (4th Cir. 2011). However, provided that the claimant has at least one severe impairment, the ALJ must consider the combined effect of all of the claimant's impairments, irrespective of whether they are severe, in determining the claimant's RFC. 20 C.F.R. §§ 404.1545(e), 416.945(e); Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989).

In this case, at step two, the ALJ assessed Plaintiff s diabetes as follows:

The claimant's diabetes is a non-severe impairment. She testified that her glucose level fluctuates, that it has improved, but that it is not at its recommended level on a sustained basis. She also testified that she becomes lightheaded when her glucose level is elevated, that she has to lie down when she feels that way, and that she feels that way every day. However, her medical history does not substantiate her testimony that she experiences frequent hyperglycemia that causes her to become lightheaded and fatigued. A medical note dated May 21, 2020 provides background information on her disease: Her diabetes medicines included Jardiance, insulin, and metformin. She generally adhered to her medication regimen, but sometimes she was not able to do so due to her low income. She was advised to call the family clinic if she was about to run out of her medicines. She reported that her glucose level had improved and that she had been feeling much better.¹ (Exhibit B23F/11, 13.) A medical note dated July 23, 2020 provides additional information: Her glucose level was not under control even though she had been taking her medications as prescribed. The dose of her insulin was increased, she was counseled on the “patho

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