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Dozier v. Colvin

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

May 26, 2015

BRENDA F. DOZIER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND RECOMMENDATION

JAMES E. GATES, Magistrate Judge.

In this action, plaintiff Brenda F. Dozier ("plaintiff" or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") on the grounds that she is not disabled. The case is before the court on the parties' motions for judgment on the pleadings (D.E. 18, 24). Both filed memoranda in support of their respective motions (D.E. 19, 25), and plaintiff filed a reply (D.E. 27). 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 1st unnumbered public D.E. after D.E. 25). 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 an application for DIB on 9 June 2011 alleging the onset of disability on 23 December 2008. Transcript of Proceedings ("Tr.") 14. The application was denied initially and upon reconsideration, and a request for hearing was timely filed. Tr. 14. On 29 November 2012, a hearing was held before an Administrative Law Judge ("ALJ"), at which plaintiff, who was represented by counsel, and a vocational expert ("VE") testified. Tr. 27-70. The ALJ issued a decision denying plaintiff's claim on 25 January 2013. Tr. 14-22. Plaintiff timely requested review by the Appeals Council. Tr. 7. The Appeals Council denied the request on 21 March 2014. Tr. 1-3. At that time, the decision of the ALJ became the final decision of the Commissioner. See 20 C.F.R. § 404.981. Plaintiff commenced this proceeding for judicial review on 22 May 2014, pursuant to 42 U.S.C. § 405(g). ( See In Forma Pauperis ("IFP") Mot. (D.E. 3); Order Allowing IFP Mot. (D.E. 5); Compl. (D.E. 6)).

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); 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). 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." Id. § 423(d)(3).

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 [20 C.F.R. § 404.1509], 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. § 404.1520(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. If a medically severe combination of impairments is found, the combined impact of those impairments will be considered throughout the disability determination process. Id.

C. Findings of the ALJ

Plaintiff was 46 years old on the alleged onset date of disability and 50 years old on the date of the hearing. See Tr. 20 ¶ 7. The ALJ found that she had at least a high school education (Tr. 20 ¶ 8), and she testified that she had a two-year Associate's degree in service and technology (Tr. 30-31). She had past relevant work as a correctional officer and certified nurse's assistant. Tr. 20 ¶ 6. The record indicates that plaintiff reported injuring her back on the alleged date of onset of disability, 23 December 2008, while working as a correctional officer by lifting a heavy ice cooler. See Tr. 18 ¶ 5; 41. She had back surgery in October 2009. Tr. 18 ¶ 5.

Applying the five-step analysis of 20 C.F.R. § 404.1520(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the alleged onset of disability. Tr. 16 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairment that was severe within the meaning of the Regulations: degenerative disc disease. Tr. 16 ¶ 3. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the Listings. Tr. 16 ¶ 4.

The ALJ next determined that plaintiff had the RFC to perform a limited range of work at the light exertional level.[1] Tr. 17 ¶ 5; see 20 C.F.R. § 404.1567(b). The ALJ imposed the exertional limitation that plaintiff "should alternate between sitting and standing every 30 minutes." Tr. 17 ¶ 5; see 20 C.F.R. § 404.1569a(a) (defining exertional limitation as those that "affect [a claimant's] ability to meet the strength demands of jobs"). She also imposed the following nonexertional limitations: "She can occasionally engage in postural activities. She should avoid concentrated exposure to vibration and work place hazards." Tr. 17 ¶ 5; see 20 C.F.R. § 404.1569a(a) and (b) (defining nonexertional limitations as those that "affect ...


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