United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
E. Gates United States Magistrate Judge
action, plaintiff Talya Janese Williams ("plaintiff or,
in context, "claimant") challenges the final
decision of defendant Acting Commissioner of Social Security
Nancy A. Berryhill ("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. The case is before the court on the
parties' motions for judgment on the pleadings. D.E. 16,
20. Both filed memoranda in support of their respective
motions. D.E. 17, 21. 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 18 July 2016 Text Ord. For the reasons set forth
below, it will be recommended that plaintiffs motion be
allowed, the Commissioner's motion be denied, and this
case be remanded.
filed applications for DIB and SSI on 19 March 2012, alleging
a disability onset date of 28 November 2009. Transcript of
Proceedings ("Tr.") 9. The applications were denied
initially and upon reconsideration, and a request for a
hearing was timely filed. Tr. 9. On 8 January 2014, plaintiff
amended her onset date to 19 March 2012. Tr. 221. On 28
February 2014, a hearing was held before an administrative
law judge ("ALJ"), at which plaintiff, represented
by counsel, and a vocational expert testified. Tr. 43-72. The
ALJ issued a decision denying plaintiffs claims on 3 April
2014. Tr. 9-23. Plaintiff timely requested review by the
Appeals Council (Tr. 38) and subsequently submitted
additional medical records to the Appeals Council for the
first time spanning the period from 9 April 2014 to 21 May
2014 (732-48). On 3 August 2015, the Appeals Council admitted
the additional medical records. See Tr. 2, 4.
Notwithstanding admission of the additional evidence, the
Appeals Council denied the request for review. Tr. 1.
time, the decision of the ALJ became the final decision of
the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.
On 28 September 2015, plaintiff commenced this proceeding for
judicial review of the ALJ's decision, pursuant to 42
U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI).
See In Forma Pauperis ("IFP") Mot. (D.E.
1); Order Allowing IFP Mot. (D.E. 4); Compl. (D.E. 5).
Standards for Disability
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).
disability regulations under the Act
("Regulations") provide a five-step analysis that
the ALJ must follow when determining whether a claimant is
To summarize, the ALJ asks at step one whether the claimant
has been working; at step two, whether the claimant's
medical impairments meet the [Regulations' severity and
duration requirements; at step three, whether the medical
impairments meet or equal an impairment listed in the
[R]egulations; at step four, whether the claimant can perform
her past work given the limitations caused by her medical
impairments; and at step five, whether the claimant can
perform other work.
The first four steps create a series of hurdles for claimants
to meet. If the ALJ finds that the claimant has been working
(step one) or that the claimant's medical impairments do
not meet the severity and duration requirements of the
[R]egulations (step two), the process ends with a finding of
"not disabled." At step three, the ALJ either finds
that the claimant is disabled because her impairments match a
listed impairment [i.e., a listing in 20 C.F.R. pt.
404, subpt. P, app. 1 ("the Listings")] or
continues the analysis. The ALJ cannot deny benefits at this
If the first three steps do not lead to a conclusive
determination, the ALJ then assesses the claimant's
residual functional capacity ["RFC"], which is
"the most" the claimant "can still do
despite" physical and mental limitations that affect her
ability to work. [20 C.F.R.] §
416.945(a)(1). To make this assessment, the ALJ must
"consider all of [the claimant's] medically
determinable impairments of which [the ALJ is] aware, "
including those not labeled severe at step two. Id.
The ALJ then moves on to step four, where the ALJ can find
the claimant not disabled because she is able to perform her
past work. Or, if the exertion required for the
claimant's past work exceeds her [RFC], the ALJ goes on
to step five.
At step five, the burden shifts to the Commissioner to prove,
by a preponderance of the evidence, that the claimant can
perform other work that "exists in significant numbers
in the national economy, " considering the
claimant's [RFC], age, education, and work experience.
Id. §§ 416.920(a)(4)(v); 416.960(c)(2);
416.1429. The Commissioner typically offers this
evidence through the testimony of a vocational expert
responding to a hypothetical that incorporates the
claimant's limitations. If the Commissioner meets her
burden, the ALJ finds the claimant not disabled and denies
the application for benefits.
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir.
found that plaintiff was 35 years old on the amended alleged
onset date of disability,  and plaintiff testified that she was 36
years old on the date of the hearing. See, e.g., Tr.
21 ¶ 7; 47. The ALJ found that plaintiff has at least a
high school education (Tr. 21 ¶ 8) and past relevant
work as a cafeteria food server, fast food worker, waitress,
and tray worker (Tr. 21 ¶ 6).
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 the amended date of alleged onset of
disability. Tr. 11 ¶ 2. At step two, the ALJ found that
plaintiff had the following medically determinable
impairments that were severe within the meaning of the
Regulations: human immunodeficiency virus ("HIV"),
scoliosis, vision impairment, anxiety disorder, and affective
disorder. Tr. 11 ¶ 3. At step three, the ALJ found that
plaintiff did not have an impairment or combination of
impairments that meets or medically equals any of the
Listings. Tr. 12-14 ¶ 4.
next determined that plaintiff had the RFC to perform a
limited range of sedentary work:
[T]he claimant has the [RFC] to perform sedentary work as
defined in 20 CFR 404.1567(a) and 416.967(a) except that
she cannot . . . climb ladders, ropes, or scaffolds. The
claimant can occasionally kneel, crouch, stoop, and crawl.
She must avoid exposure to work hazards. The claimant can
frequently perform fine and gross manipulation with her right
upper extremity. She can perform no work requiring good depth
perception or good right-sided peripheral vision. The
claimant can tolerate occasional changes in the work
settings/procedure, but she cannot work in a fast-paced
Tr. 14-15 ¶ 5.
on his determination of plaintiff s RFC, the ALJ found at
step four that plaintiff was unable to perform her past
relevant work. Tr. 21 ¶ 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 weight tester, dispatcher, and
telephone information clerk. Tr. 22 ¶ 10. The ALJ
accordingly concluded that plaintiff was not disabled from
the amended date of the alleged onset of disability, 19 March
2012, through the date of the decision, 3 April 2014. Tr. 23
STANDARD OF REVIEW
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 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.
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.
Chafer, 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 evidence
must be affirmed, even if the reviewing court would have
reached a different conclusion. Blalock, 483 F.2d at
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.'" 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 *l-2.
a court can determine whether a decision is supported by
substantial evidence, it must ascertain whether the
Commissioner has considered all relevant evidence and
sufficiently explained the weight given to probative
evidence. See Sterling Smokeless Coal Co. v. Akers,
131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review
of an administrative decision is impossible without an
adequate explanation of that decision by the
administrator." DeLoatche v. Heckler, 715 F.2d
148, 150 (4th Cir. 1983).
OVERVIEW OF ...