United States District Court, E.D. North Carolina, Southern Division
MARK B. NIPPER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
E. GATES, UNITED STATES MAGISTRATE JUDGE.
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.
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.
timely requested review by the Appeals Council. Tr. 21. On 28
July 2016, the Appeals Council denied the request for
review. 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).
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. §
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).
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
[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
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
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir.
Materiality of Drug Addiction or Alcoholism
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
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. § 4l6.935(b)(2)(i). ...