United States District Court, E.D. North Carolina, Southern Division
LUTHER H. MOORE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE
cause comes before the Court on cross-motions for judgment on
the pleadings. A hearing was held on these matters before the
undersigned on August 31, 2017, in Edenton, North Carolina.
For the reasons discussed below, this matter is remanded to
the Acting Commissioner for further proceedings.
brought this action under 42 U.S.C. §§ 405(g),
1383(c) for review of the final decision of the Commissioner
denying his claims for supplemental security income
("SSI") pursuant to Title XVI of the Social
Security Act and disability insurance benefits
("DIB") pursuant to Title II of the Social Security
Act. Plaintiff protectively filed his application for SSI on
January 29, 2010 and for DIB on August 6, 2010. Plaintiffs
amended alleged onset date for both is April 1, 2008. After
initial denial, a hearing was held before an Administrative
Law Judge (ALJ), who issued an unfavorable ruling on May 24,
2012. Upon review, the Appeals Council remanded the case, and
a new hearing was held on July 11, 2014. After the hearing,
the ALJ denied the claims. This decision became the final
decision when the Appeals Council denied plaintiffs
subsequent request for review. Plaintiff then timely sought
review of the decision in this Court.
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. § l382c(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. § l382c(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, however, 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. § 416.920(a)(4).
one, the ALJ determined that plaintiff met the insured status
requirements and had not engaged in substantial gainful
activity since his alleged onset date. Plaintiffs history of
coronary artery disease, diabetes, hypopituitarism, and
depression were considered severe impairments at step two,
but were not found to meet or medically equal a Listing at
concluded that Plaintiff had the RFC to perform medium work,
lift up to 50 pounds occasionally and 25 pounds frequently,
and stand, walk and sit for six hours at a time during an
eight-hour work day. The ALJ found that plaintiff was unable
to return to his past relevant work, but that, considering
plaintiffs age, education, work experience, RFC, and
testimony from the vocational expert (VE), there were other
jobs that existed in significant numbers in the national
economy that Plaintiff could perform. Thus, the ALJ found
that Plaintiff was not disabled within the meaning of the
ALJ's decision is not supported by substantial evidence.
In finding that Plaintiff was able to be physically active,
the ALJ relied on evidence that Plaintiff obtained his black
belt in martial arts and ran a youth ministry in 2011. Tr.
31. However, as the Administration acknowledges in its brief,
these were not current activities, but instead positive
visualizations he engaged in as a part of therapy. D. Br. at
21, Tr. 502-505. In this case, the ALJ committed error by
failing to analyze these activities as memories or
visualizations as opposed to current activities. This is
reversible error and is not harmless. In order for the error
to be harmless, the ALJ would need to further explain the
alternative reasoning that makes this mistake harmless. See
Patterson, 846 F.3d 656, 663 (4th Cir. 2017). The
evidence would need to be further explained in order for
there to be meaningful judicial review. Id. Since it
has not been, remand is appropriate.
the ALJ failed to appropriately consider Plaintiffs loss of
memory. The ALJ found Plaintiffs cognitive testing to be
invalid, finding that it was likely Plaintiff exaggerated his
symptoms. Tr. 32. Generally, the ALJ found Plaintiffs
credibility to be low. Tr. 31. However, part of the reason
the ALJ discounted Plaintiffs credibility was due to his
ability to "perform rigorous martial arts, obtain his
black belt in martial arts, [and] run outreach youth
ministries'\in 2011, which is erroneous. Id.
case, the ALJ committed error by relying on incorrect facts
both to evaluate Plaintiffs physical abilities and his
credibility. "If the reviewing court has no way of
evaluating the basis for the ALJ's decision, then
'the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or
explanation.'" Radford v. Colvin, 734 F.3d