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Gammons v. Colvin

United States District Court, E.D. North Carolina, Southern Division

December 24, 2014

PAMELA ALLEN GAMMONS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM AND RECOMMENDATION

In this action, plaintiff Pamela Allen Gammons (" plaintiff' or, in context, " claimant") challenges the final decision of defendant Acting Commissioner of Social Security Carolyn W. Colvin (" Commissioner") denying her application for a period of disability and disability insurance benefits (" DIB") and supplemental security income (" SSI") on the grounds that she is not disabled.[1] The case is before the court on the respective parties' motions for judgment on the pleadings. (D.E. 22, 30). The motions were referred to the undersigned Magistrate Judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (See Public D.E. dated 22 October 2014). The motions have been fully briefed.[2] For the reasons set forth below, it will be recommended that plaintiff's motion be allowed, the Commissioner's motion be denied, and this case be remanded.

I. BACKGROUND

A. Case History

Plaintiff filed applications for DIB and SSI on 22 July 2010 and 27 August 2010, respectively, alleging a disability onset date of 30 November 2008. Transcript of Proceedings (" Tr.") 155. The applications were denied initially and upon reconsideration, and a request for hearing was timely filed. Tr. 155. On 19 June 2012, a hearing was held before an Administrative Law Judge (" ALJ"), at which plaintiff and a vocational expert testified. Tr. 155, 179-217. The ALJ issued a decision denying plaintiffs claim on 27 July 2012. Tr. 155-65. Plaintiff timely requested review by the Appeals Council. Tr. 150-51. The Appeals Council admitted additional evidence (Tr. 915-940)[3] but on 9 October 2013 denied the request for review (Tr. 1-6). At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. § § 404.981, 416.1481. Plaintiff commenced this proceeding for judicial review on 5 December 2013, pursuant to 42 U.S.C. § § 405(g) (DIB) and 1383(c)(3) (SSI). (See Compl. (D.E. 1)).

B. Standards for Disability

The Social Security Act (" 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); see 42 U.S.C. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). " An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A); see 42 U.S.C. § 1382c(a)(3)(B). The Act defines 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), 1382c(a)(3)(D).

The disability regulations under the Act (" Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:

(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled ....

(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in [§ 404.1509 for DIB and § 416.909 for SSI], or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled ....

(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings [" Listings" ] in [20 C.P.R. pt. 404, subpt. P, app. 1] ... and meets the duration requirement, we will find that you are disabled ....

(iv) At the fourth step, we consider our assessment of your residual functional capacity [" RFC" ] and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled ....

(v) At the fifth and last step, we consider our assessment of your [RFC] and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. . ...

20 C.P.R.§ § 404.1520(a)(4), 416.920(a)(4).

The burden of proof and production rests with the claimant during the first four steps of the analysis. Pass, 65 F.3d at 1203. The burden shifts to the Commissioner at the fifth step to show that alternative work is available for the claimant in the national economy. Id. In the case of multiple impairments, the Regulations require that the ALJ " consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § § 404.1523, 416.923. If a medically severe combination of impairments is found, the combined impact of those impairments will be considered throughout the disability determination process. Id. § § 404.1523, 416.923.

C. Findings of the ALJ

Plaintiff was 32 years old on the alleged onset date of disability and 39 years old on the date of the hearing. Tr. 163 ¶ 7. She has a G.E.D. and past relevant work as a corrections officer, vinyl siding business owner, truck driver, and home care attendant. Tr. 163 ¶¶ 6, 8. Applying the five-step analysis of 20 C.F.R. § § 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since her alleged onset of disability. Tr. 157 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: depression[4] and a stomach disorder. Tr. 157 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or equals one of the Listings. Tr. 158 ¶ 4.

The ALJ next determined that plaintiff had the RFC to perform light work-that is, to lift and carry up to 20 pounds occasionally and 10 pounds frequently, and to stand, walk, and sit for 6 hours in an 8-hour day. [5] Tr. 16 ¶ 5; see 20 C.F.R. § § 404.1567(b), 416.967(b). He further found that plaintiff was subject to the following limitations:

The claimant cannot climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs, and can occasionally crawl. She must avoid dangerous, moving machinery, and unprotected heights. The claimant should be given the option to sit or stand at will. She is limited to simple, routine, repetitive tasks with no more than occasional changes in her tasks, and no more than occasional interaction with coworkers.

Tr. 159 ¶ 5.

At step four, the ALJ found that plaintiff was unable to perform her past relevant work. Tr. 163 ¶ 6. At step five, the ALJ accepted the testimony of the vocational expert and found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of hand packer, produce inspector, and garment folder. Tr. 163-64 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled. Tr. 164 ¶ 11.

D. Standard of Review

Under 42 U.S.C. § § 405(g) and 1383(c)(3), judicial review of the final decision of the Commissioner is limited to considering whether the Commissioner's decision is supported by substantial evidence in the record and whether the appropriate legal standards were applied. See Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Unless the court fmds that the Commissioner's decision is not supported by substantial evidence or that the wrong legal standard was applied, the Commissioner's decision must be upheld. See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). Substantial evidence is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. " ' Perales, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is more than a scintilla of evidence, but somewhat less than a preponderance. Perales, 402 U.S. at 401.

The court may not substitute its judgment for that of the Commissioner as long as the decision is supported by substantial evidence. Hunter v. Sullivan, 993 F .2d 31, 34 (4th Cir. 1992) (per curiam). In addition, the court may not make findings of fact, revisit inconsistent evidence, or make determinations of credibility. See Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's decision based on substantial ...


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