United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
JAMES E. GATES, Magistrate Judge.
In this action, plaintiff Ervin Sherwood Sanders, Jr. ("plaintiff or, in context, "the claimant") challenges the final decision of defendant Acting Commissioner of Social Security Carolyn W. Colvin ("Commissioner") denying his application for supplemental security income ("SSI") on the grounds that he is not disabled. The case is before the court on plaintiff's motion for summary judgment (D.E. 31) and the Commissioner's motion for judgment on the pleadings (D.E. 35). 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 D.E. 37). 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. CASE HISTORY
Plaintiff filed an application for SSI on 23 October 2008, alleging a disability onset date of 1 July 2008. Transcript of Proceedings ("Tr.") 139. On 4 August 2010, an Administrative Law Judge ("ALJ") issued a decision (Tr. 139-46) denying the application. On 10 July 2012, the Appeals Council remanded the case based on the inaudibility of a portion of the recording of the hearing and directed that the files on the 23 October 2008 application be associated with those on another SSI application plaintiff filed in September 2010. Tr. 153-54.
On 13 December 2012, a hearing was held before an ALJ, at which plaintiff, his mother, and a vocational expert testified. Tr. 38-125. In a written decision dated 20 March 2013, the ALJ found that plaintiff was not disabled and therefore not entitled to SSI. Tr. 20-32. Plaintiff timely requested review by the Appeals Council. Tr. 14-16. On 13 August 2013, the Appeals Council admitted additional exhibits (Tr. 435-588), but denied the request for review. Tr. 8-13. On 11 September 2013, the Appeals Council vacated its 13 August 2013 order for the purpose of reviewing vision testing results for plaintiff dated 7 August 2013 he submitted ("August 2013 testing results") (Tr. 1481-83); rejected admission of the August 2013 testing results into the record on the grounds that they related to a period later than that at issue; admitted the same additional exhibits as in its prior order; and denied the request for review. Tr. 1-7. At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. § 416.1481. Plaintiff commenced this proceeding for judicial review on 12 November 2013, pursuant to 42 U.S.C. § 1383(c)(3). (See In Forma Pauperis Mot. (D.E. 1); Order Allowing Mot. (D.E. 4); Compl. (D.E. 5)).
Subsequently, on 6 January 2014, plaintiff filed another application for SSI. (See, e.g., 2014 Notice of Award (D.E. 48-1) 1). On 23 July 2014, at the initial review level, the SSA found plaintiff to be blind as of the date of the application, approved the application, and awarded him benefits ("2014 award"). (See Notice of 2014 Award 1).
The motions before the court have been fully briefed. Plaintiff filed a memorandum in support of his motion (D.E. 32) with exhibits, defendant a memorandum in support of her motion (D.E. 36), and plaintiff a reply memorandum (D.E. 38) with exhibits. The court held a telephone conference with counsel on 22 January 2015 regarding the impairments and evidence underlying the July 2014 award. (See Minute Entry dated 23 Jan. 2015). As a result of the conference, the court directed plaintiff to file the evidence he submitted to the SSA in support of the application approved in the 2014 award and citations to related authorities (see Text Order dated 22 Jan. 2015), which he did (see D.E. 39 (authorities); D.E. 40 to 45 (evidence)). On 27 January 2015, the court ordered the parties to file additional documents relating to the 2014 award. (See D.E. 46). In response, the Commissioner filed, among other documents, the notice of award (D.E. 48-1), the disability determination explanation (D.E. 48-3), and the 30 May 2014 evaluation of plaintiff by ophthalmologist Albert R. Munn, III of the Capital Eye Center that was apparently the principal basis for the 2014 award (D.E. 48-4). Plaintiff also filed several documents. (See D.E. 47; D.E. 47-1 to 47-4).
II. 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "[A]n 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. § 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. § 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 § 416.909, 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 in [20 C.F.R. pt. 404, subpt. P, app. 1] ["Listings"]... 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.F.R. § 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. § 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.
III. FINDINGS OF THE ALJ
Plaintiff was 42 years old on the date when the 23 October 2008 application was filed and 47 years old on the date of the administrative hearing. Tr. 31 ¶ 6. The ALJ found that he has at least a high school education and past relevant work as a clean-up worker at construction sites and a dump truck driver. Tr. 30 ¶¶ 5, 7.
Applying the five-step analysis of 20 C.F.R. § 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the 23 October 2008 application date. Tr. 22 ¶ 1. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: "degenerative disc disease of the lumbar spine; residuals in the right shoulder from a remote burn injury in 1978; left rotator cuff tendinopathy with a partial thickness tear; panuveitis with CME [i.e., cystoid macular edema] of the left eye; and depression." Tr. 22 ¶ 2. At step three, the ALJ found that plaintiff's impairments did not meet or medically equal any of the Listings. Tr. 23 ¶ 3.
The ALJ next determined that plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 416.967(b)-that is, lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds-with limitations. Tr. 24 ¶ 4; see 20 C.F.R. § 416.967(b). The limitations are as follows:
The claimant should never climb ladders, ropes, or scaffolds (due to shoulder pain). He can occasionally climb stairs/ramps, balance, stoop, crouch, kneel, and crawl (due to his lumbar degenerative disc disease). He should never lift overhead with both arms (due to shoulder pain and accounting for his non-severe cervical disc disease). As a vision precaution, the claimant should avoid all exposure to driving and workplace hazards of unprotected heights, and is limited to jobs requiring only occasional depth perception and peripheral vision. The claimant should avoid concentrated exposure to pulmonary irritants such as dust/odors/gases (due to his non-severe sinusitis). He is able to perform simple, routine, repetitive tasks.
Tr. 24 ¶ 4.
Based on her determination of plaintiff's RFC, the ALJ found at step four that plaintiff was not capable of performing his past relevant work. Tr. 30 ¶ 5. 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 housekeeper, folder, and sales attendant. Tr. 31 ¶ 9. The ALJ accordingly concluded that plaintiff was not disabled. Tr. 32 ¶ 10.
IV. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), 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 finds 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.'" Per ales, 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.
Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, "the court must review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'" See, e.g., Felts v. Astrue, No. 1:11CV00054, 2012 WL 1836280, at *1 (W.D. Va. 19 May 2012) (quoting Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.
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 ...