United States District Court, E.D. North Carolina, Eastern Division
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
cause conies before the Court on cross-motions for judgment
on the pleadings. A hearing was held on these matters before
the undersigned on February 24, 2017, at Raleigh, North
Carolina. For the reasons discussed below, the decision of
the Commissioner is reversed.
brought this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for review of the final decision of the
Commissioner denying his claims for disability and disability
insurance benefits (DIB) and supplemental security income
(SSI) pursuant to Titles II and XVI of the Social Security
Act. Plaintiff protectively filed for SSI on April 13, 2009,
alleging disability since March 1, 2009. After initial
denials, a hearing was held before an Administrative Law
Judge (ALJ) who considered plaintiffs claim de novo.
The ALJ issued an unfavorable ruling, and the decision of the
ALJ became the final decision of the Commissioner when the
Appeals Council denied plaintiffs request for review.
sought review of that decision in this Court. Caraballo
v. Astrue, 4:12-CV-125-D (E.D.N.C). This Court vacated
the decision of the ALJ and remanded the matter for further
proceedings. While on appeal, plaintiff filed applications
for a period of DIB and SSI on October 4, 2010, alleging
disability since November 30, 2007. After a second hearing
before a different ALJ, plaintiff was again found not to be
disabled in a decision dated February 11, 2013. The appeals
council granted plaintiffs request for review and remanded
the matter back to the ALJ for further consideration.
5, 2015, the ALJ again denied plaintiffs claim for benefits.
The appeals council denied plaintiffs request for review and
plaintiff timely noticed an appeal of that decision to this
the Social Security Act, 42 U.S.C. §§ 405(g), and
1383(c)(3), this Court's review of the Commissioner's
decision is limited to determining whether the decision, as a
whole, is supported by substantial evidence and whether the
Commissioner employed the correct legal standard.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Johnson v. Barnhart, 434 F.3d 650,
653 (4th Cir. 2005) (per curiam) (internal quotation and
individual is considered disabled if he is unable "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). The
Act further provides that 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 line of substantial gainful work which exists in
the national economy." 42 U.S.C. § 1382c(a)(3)(B).
issued by the Commissioner establish a five-step sequential
evaluation process to be followed in a disability case. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four,
but the burden shifts to the Commissioner at step five.
See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
If a decision regarding disability can be made at any step of
the process the inquiry ceases. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
one, if the Social Security Administration determines that
the claimant is currently engaged in substantial gainful
activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination
of impairments. If the claimant has a severe impairment, it
is compared at step three to those in the Listing of
Impairments ("Listing") in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively
presumed. If not, at step four, the claimant's residual
functional capacity (RFC) is assessed to determine if the
claimant can perform his past relevant work. If so, the claim
is denied. If the claimant cannot perform past relevant work,
then the burden shifts to the Commissioner at step five to
show that the claimant, based on his age, education, work
experience, and RFC, can perform other substantial gainful
work. If the claimant cannot perform other work, then he is
found to be disabled. See 20 C.F.R. §
one, the ALJ determined that plaintiff met the insured status
requirements through September 30, 2010, and had not engaged
in substantial gainful activity since his alleged onset date.
Plaintiffs non-ischemic cardiomyopathy with history of AICD
implant, degenerative disc disease (DDD), diabetes mellitus
with neuropathy and gastroparesis, degenerative joint
disease, history of right shoulder separation, asthma,
obstructive sleep apnea, carpal tunnel syndrome, essential
hypertension, hypertriglyceridemia, fatty/enlarged liver,
Barrett's esophagus, gastroesophageal reflux disease
(GERD), morbid obesity, bipolar disorder, anxiety disorder,
and alcohol dependence were considered severe impairments at
step two but were not found alone or in combination to meet
or equal a Listing at step three. The ALJ concluded that
plaintiff had the residual functional capacity (RFC) to
perform a severely reduced range of sedentary work with
exertional and nonexertional limitations. The ALJ found that
plaintiff could not return to his past relevant work in sales
and fast food, but that, considering plaintiffs age,
education, work experience, and RFC, there were other jobs
that existed in significant numbers in the national economy
which plaintiff could perform, including ink printer, paper
[sic] printed circuit lay-out, and document preparer. Thus,
the ALJ determined that plaintiff was not disabled as of the
date of his decision, June 5, 2015.
decision below is not supported by substantial evidence.
First, in his RFC determination the ALJ limited plaintiff to
no overhead reaching with his right, dominant side. Tr. 872.
An ALJ relies on the Dictionary of Occupational
Titles (DOT) and its companion publication Selected
Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles (SCO), when
determining what occupations are available that a claimant
could perform at step five of the sequential evaluation. SSR
00-4p. The SCO defines "reaching" as extending a
hand or arm in any direction. SCO, C-3. Each job identified
by the vocational expert (VE) in this case requires frequent
reaching. SCO 314, 57, 341. Although the VE stated at the
hearing that her testimony had been generally consistent with
the DOT, because it is unclear whether any or all of the jobs
identified by the VE and relied upon by the ALJ require
frequent bilateral overhead reaching, and would thus
conflict with the ALJ's RFC finding, the ALJ's
reliance on such jobs to hold that the Commissioner had
satisfied her burden at step five is not supported by
substantial evidence. See Pearson v. Colvin, 810
F.3d 204, 208-211 (4th Cir. 2015) (ALJ must independently
identify and resolve conflicts between VE testimony and DOT,
and noting that DOT'S definition of "reaching"
may require bilateral overhead reaching).
and more importantly, the ALJ erred in relying on the
testimony of Dr. Savage. Dr. Savage was designated by the
Commissioner as a medical expert and proffered testimony
designed to clarify the nature and severity of plaintiff s
multiple impairments. Tr. 869. The ALJ assigned Dr.
Savage's opinion great weight, and although the ALJ noted
that Dr. Savage did not have the opportunity to review
additional medical evidence, the ALJ reasoned that ...