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Walker v. Berryhill

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

June 2, 2017

BRIAN WALKER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          JAMES E. GRATES UNITED STATES MAGISTRATE JUDGE

         In this action, plaintiff Brian Walker ("plaintiff or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying his applications for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on the grounds that he is not disabled.[1] The case is before the court on the parties' motions for judgment on the pleadings. D.E. 19, 22. Both filed memoranda in support of their respective motions. D.E. 20, 23. 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 8 Mar. 2017 Text Ord.

         By his motion, plaintiff seeks remand of this case for a new hearing on the ground that the decision denying his claims errs in the evaluation of the opinions of his primary care physician, Linda Greenspan, D.O. The court agrees. Therefore, 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.

         I. BACKGROUND

         A. Case History

         Plaintiff filed an application for DIB and an application for SSI on 8 October 2012, both alleging a disability onset date of 1 September 2010, subsequently amended to 29 August 2012. Transcript of Proceedings ("Tr.") 37 (recitation by the administrative law judge O'ALJ") in his decision of the amended alleged disability onset date), 68-69 (ALJ's allowance of amendment of alleged disability onset date at hearing), 199 (original alleged disability onset date in SSI application), 206 (same for DIB application). The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 37. On 25 September 2014, a video hearing was held before the ALJ, at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 52-71. The ALJ issued a decision denying plaintiffs claims on 30 October 2014. Tr. 37-46. Plaintiff timely requested review by the Appeals Council (Tr. 28-29), but on 22 February 2016, it denied the request (Tr. 1), finding that additional medical evidence submitted by plaintiff (Tr. 6-7, 15-27) was not relevant on the grounds that it related to a period postdating the ALJ's decision (Tr. 2). At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 14 April 2016, 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 Mot. for Leave to Proceed In Forma Pauperis ("IFP") (D.E. 1); Ord. Granting IFP Mot. (D.E. 4); Compl. (D.E. 5).

         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 Id. § 1382c(a)(3)(A); Pass v. Chafer, 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 Id. § 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:

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 [his] past work given the limitations caused by [his] 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 [his] 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 step.
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 [his] ability to work. [20 C.F.R.] § 416.945(a)(1).[2] 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. § 416.945(a)(2).[3]
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because [he] is able to perform [his] past work. Or, if the exertion required for the claimant's past work exceeds [his] [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.[4] 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. 2015).

         C. ALJ's Findings

         Plaintiff was 32 years old on the alleged onset date of disability and 34 years old on the date of the hearing. See, e.g., Tr. 44 ¶ 7; 55. The ALJ found that plaintiff has a limited education[5] (Tr. 44 ¶ 8) and past relevant work as a forklift operator (Tr. 44 ¶ 6).

         The ALJ found that plaintiff met the insured requirements under the Act through 30 September 2014. Tr. 39 ¶ 1. Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ then found at step one that plaintiff had not engaged in substantial gainful activity since the alleged disability onset date, 29 August 2012. Tr. 39 ¶ 2. At step two, the ALJ found that plaintiff has the following severe impairments that are severe within the meaning of the Regulations: diabetes mellitus, hypertension, obesity, and osteoarthritis of the knee. Tr. 39 ¶ 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. 40 ¶ 4.

         The ALJ next determined that plaintiff had the RFC to perform a limited range of light work:

After careful consideration of the entire record, I find that the claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)[6]except he can never climb ladders/ropes/scaffolds and only occasionally climb ramps/stairs. He can occasionally balance, crouch, kneel, and crawl. Furthermore, he can frequently stoop and must avoid concentrated exposure to unprotected heights. He is limited to simple, routine, repetitive tasks. Lastly, the claimant is limited to jobs that do not require any complex written communication.

Tr. 41 ΒΆ 5. "[T]he full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." Soc. Sec. Ruling 83-10, 1983 WL 31251, at *6 (1983). By not limiting plaintiffs standing or walking time, the ALJ thus found him able ...


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