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Nipper v. Berryhill

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

December 4, 2017

MARK B. NIPPER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          JAMES E. GATES, UNITED STATES MAGISTRATE JUDGE.

         In this action, plaintiff Mark B. Nipper ("plaintiff or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("Commissioner") denying his application for supplemental security income ("SSI") on the grounds that he is not disabled. The case is before the court on the parties' motions for judgment on the pleadings. D.E. 20, 23. Both filed memoranda in support of their respective motions. D.E. 21, 24. 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 30 Aug. 2017 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.

         I. BACKGROUND

         A. Case History

         Plaintiff filed an application for SSI on 2 May 2012, alleging a disability onset date of 23 April 2012. Transcript of Proceedings ("Tr.") 617. The application was denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 617. On 3 March 2015, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff (represented by a non- attorney representative), plaintiffs fiance, and a vocational expert testified. Tr. 22-56. The ALJ issued a decision denying plaintiffs claim on 31 March 2015. Tr. 617-29.

         Plaintiff timely requested review by the Appeals Council. Tr. 21. On 28 July 2016, the Appeals Council denied the request for review.[1] Tr. 5. At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. § 416.1481. On 23 September 2016, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. § 1383(c)(3). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 4); Compl. (D.E. 5).

         B. Standards for Disability

         1.Five-Step Analysis

         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. § l382c(a)(3)(A); Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). "[A]n 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. § l382c(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." Id. § l382c(a)(3)(D).

         The disability regulations under the Act ("Regulations")[2] 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 [Regulations; 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 [Regulations (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). 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).
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. §§ 4l6.92O(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. 2015).

         2. Materiality of Drug Addiction or Alcoholism

         If under this analysis a claimant is found to be disabled and there is medical evidence that the claimant has drug addiction or alcoholism, an additional determination is required-namely, whether such substance abuse is a contributing factor material to the determination of disability. 20 C.F.R. § 416.935(a). If the substance abuse is found to be material, the claimant cannot be considered disabled under the Act. See 42 U.S.C. § l382c(a)(3)(J) (providing that a claimant "shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would... be a contributing factor material to the Commissioner's determination that the individual is disabled"). The burden of proving that the drug addiction or alcoholism is not material falls on the claimant. Soc. Sec. Ruling 13-2p, 2013 WL 621536, at *4 (20 Feb. 2013) ("The claimant has the burden of proving disability throughout to sequential evaluation process."); see also McCray v. Colvin, C/A No. 1:13-173-SVH, 2014 WL 3798835, at *13 (D.S.C. 31 July 2014) ("If the medical evidence contains indications of drug addiction or alcoholism, '[t]he claimant bears the burden of proving that drug or alcohol addiction was not a contributing factor material to the disability determination.'" (alteration in original) (quoting Newsome v. Astrue, 817 F.Supp.2d 111, 126 (E.D.N.Y. 2011))).

         The key factor examined in making the materiality determination on drug addiction or alcoholism is whether the claimant would still be disabled if he stopped using drugs or alcohol. 20 C.F.R. § 416.935(b)(1). To make this determination, an evaluation is made regarding which of the physical and mental limitations that the claimant has when using drugs or alcohol would remain if he stopped such use and then whether any of the remaining limitations would be disabling. Id. § 416.935(b)(2). If the remaining limitations are found not disabling, the claimant's substance abuse is deemed a contributing factor material to the determination of disability, and the claimant is determined to be not disabled. Id. ยง 4l6.935(b)(2)(i). ...


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