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Perdue v. Colvin

United States District Court, W.D. Virginia, Roanoke Division

January 27, 2014

CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.


ROBERT S. BALLOU, Magistrate Judge.

Plaintiff Michael Thomas Perdue ("Perdue") filed this action challenging the final decision of the Commissioner of Social Security ("Commissioner") determining that he was not disabled and therefore not eligible for supplemental security income ("SSI"), and disability insurance benefits ("DIB") under the Social Security Act ("Act"). 42 U.S.C. §§ 401-433, 1381-1383f. Specifically, Perdue alleges that the Administrative Law Judge ("ALJ") in his case improperly weighed the medical opinion of her treating physician, Dr. Nicholas Zeltvay, and that additional evidence submitted to the Appeals Council warrants remand.

This court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). This case is before me by referral pursuant to 28 U.S.C. § 636(b)(1)(B). The parties have fully briefed and argued all issues, and the case is ripe for decision. I have carefully reviewed the administrative record, the legal memoranda, the arguments of counsel, and the applicable law. I conclude that substantial evidence supports the ALJ's decision and that the additional evidence submitted to the Appeals Council does not warrant remand. Accordingly, I RECOMMEND DENYING Perdue's Motion for Summary Judgment (Dkt. No. 13), and GRANTING the Commissioner's Motion for Summary Judgment. Dkt. No. 16.


Section 405(g) of Title 42 of the United States Code authorizes judicial review of the Commissioner's denial of social security benefits. Mastro v. Apfel , 270 F.3d 171, 176 (4th Cir. 2001). This court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Perdue failed to demonstrate that he was disabled under the Act. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996) (internal citations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990).

Perdue bears the burden of proving that he is disabled within the meaning of the Act. English v. Shalala , 10 F.3d 1080, 1082 (4th Cir. 1993) (citing 42 U.S.C. § 423(d)(5)). The Act defines "disability" as the "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." 42 U.S.C. § 423(d)(1)(A). Disability under the Act requires showing more than the fact that the claimant suffers from an impairment which affects his ability to perform daily activities or certain forms of work. Rather, a claimant must show that his impairments prevent engaging in any and all forms of substantial gainful employment given the claimant's age, education, and work experience. See 42 U.S.C. § 423(d)(2). The Commissioner uses a five-step process to evaluate a disability claim. Walls v. Barnhart , 296 F.3d 287, 290 (4th Cir. 2002). The Commissioner asks, in sequence, whether the claimant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of a listed impairment;[2] (4) can return to his past relevant work; and if not, (5) whether he can perform other work. Johnson v. Barnhart , 434 F.3d 650, 654 n.1 (4th Cir. 2005) (per curiam) (citing 20 C.F.R. § 404.1520); Heckler v. Campbell , 461 U.S. 458, 460-62 (1983). The inquiry ceases if the Commissioner finds the claimant disabled at any step of the process. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at steps one through four to establish a prima facie case for disability. The burden shifts to the Commissioner at the fifth step to establish that the claimant maintains the residual functional capacity ("RFC"), considering the claimant's age, education, work experience, and impairments, to perform available alternative work in the local and national economies. 42 U.S.C. § 423(d)(2)(A); Taylor v. Weinberger , 512 F.2d 664, 666 (4th Cir. 1975).

In cases such as this, where the claimant has submitted additional evidence to the Appeals Council, and the Appeals Council considered that evidence, this court must review the record as a whole, including the new evidence, to determine whether substantial evidence supports the Commissioner's findings. Wilkins v. Secretary, Dep't of Health and Human Servs. , 953 F.2d 93, 95-96 (4th Cir. 1991).


Social and Vocational History

Perdue was born on February 18, 1969 (Administrative Record, hereinafter "R." at 156), and was a younger person on his alleged onset date. R. 17; 20 C.F.R. § 404.1563. Perdue's last insured date is December 31, 2012. R. 12. He must show that his disability began before that date and existed for twelve continuous months to receive DIB. 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B), (d)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a). Perdue completed 8th grade and attended special education classes throughout his schooling. R. 256. Between 1986 and 2001 Perdue worked as a veneer call and edge bander for Lane Company, classified as unskilled, medium level work. Perdue then worked as a window assembler for MW Windows between 2002 and 2007, classified as medium, semi-skilled work. R. 34-37, 179. Perdue reported that during the relevant period, he had the capacity to walk his dog, go shopping, take his son to the bus stop, run errands for his mother-in-law, go to the movie theater, eat out with his family, go to church every Sunday, talk on the phone, make meals for himself, mow the lawn with a riding mower, do yard work. R. 40, 45, 188, 190-91.

Claim History

Perdue protectively filed for SSI and DIB on November 10, 2008, claiming that his disability began on May 5, 2008. R. 156. The Commissioner denied the application at the initial and reconsideration levels of administrative review. R. 79-97. On November 23, 2010, Administrative Law Judge ("ALJ") Joseph T. Scruton held a hearing to consider Perdue's disability claim. R. 27-53. Perdue was represented by an attorney, Carolyn Furrow, at the hearing, which included testimony from Perdue and vocational expert Mark Hileman. R. 27.

On December 7, 2010, the ALJ entered his decision denying Perdue's claims. R. 10-18. The ALJ found that Perdue suffered from the severe impairments of psychotic disorder, bipolar disorder, and borderline intellectual functioning. R. 12. The ALJ found that these impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 13. The ALJ further found that Perdue retained the RFC to perform a full range of work at all exertional levels that consist of non-production oriented work activity and which requires following only short, simple instructions that are primarily verbal in nature, involve very few written instructions, and work not requiring a significant amount of writing. R. 14-16. The ALJ determined that Perdue could not return to his past relevant work as a production window assembler and edge bander (R. 16), but that Perdue could work at jobs that exist in significant numbers in ...

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