United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge.
action, plaintiff Cynthia Dianne Tatum ("plaintiff or,
in context, "claimant") challenges the final
decision of defendant Acting Commissioner of Social Security
Nancy A. Berryhill ("Commissioner") denying her
application for a period of disability and disability
insurance benefits ("DIB") and Supplemental
Security Income ("SSI") on the grounds that she is
not disabled. The case is before the court on the
parties' motions for judgment on the pleadings. D.E. 15,
19. Plaintiff filed a memorandum (D.E. 16) in support of her
motion and subsequently filed an amended memorandum (D.E.
17). The Commissioner also filed a
memorandum supporting her motion. D.E. 20. 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 15 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.
protectively filed applications for DIB and SSI on 27 June
2013, alleging a disability onset date of 1 January 2011.
Transcript of Proceedings ("Tr.") 24. The
applications were denied initially and upon reconsideration,
and a request for a hearing was timely filed. Tr. 24. On 7
April 2015, a hearing was held before an ALJ, at which
plaintiff, represented by counsel, and a vocational expert
testified. Tr. 40-70. The ALJ issued a decision denying
plaintiffs claim on 26 May 2015. Tr. 24-35.
timely requested review by the Appeals Council. Tr. 19. On 16
September 2016, the Appeals Council admitted into the record
(Tr. 2, 5) additional evidence submitted by plaintiff,
namely, a form entitled "Physical Residual Functional
Capacity ["RFC"] Questionnaire" signed by
Pamela Harris, M.D. ("Questionnaire") (Tr. 303-08).
Dr. Harris's signature is dated 22 September 2015, but
the form states that "the earliest date that the
description of symptoms and limitations in this questionnaire
applies" is 5 November 2014, when it states plaintiff
was first seen. Tr. 308 no. 18. Without providing an
explanation, the Appeals Council stated that it
"considered whether the [ALJ's] action, findings, or
conclusion is contrary to the weight of the evidence
currently of record" and that the additional evidence
"does not provide a basis for changing the [ALJ's]
decision." Tr. 2.
Appeals Council refused to admit into the record other
evidence presented by plaintiff, stating:
We also looked at neurosurgery treatment notes from Paul R.
Bragg, Jr., P.A. dated June 10, 2015 (4 pages); a functional
capacity evaluation from Industrial, Orthopedic and Sports
Therapy of CHVFS dated September 16, 2015 (1 page);
laboratory findings from Cape Fear Valley Medical Center
dated June 24, 2015 (7 pages); and treatment notes from Cape
Fear Valley Bladen Medical Associates dated August 26, 2015
(3 pages). The [ALJ] decided your case through May 26, 2015.
This new information is about a later time. Therefore, it
does not affect the decision about whether you were disabled
beginning on or before May 26, 2015.
Appeals Council therefore denied the request for review. Tr.
1. At that time, the decision of the ALJ became the final
decision of the Commissioner. 20 C.F.R. §§ 404.981,
416.1481. On 21 November 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. to Proceed In Forma
Pauperis ("IFP") (D.E. 1); Ord. 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. §
423(d)(1)(A); see Id. § 1382c(a)(3)(A);
Pass v. Chater, 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." Id. § 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." Id.
§§ 423(d)(3), 1382c(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
[R]egulations; at step four, whether the claimant can perform
her past work given the limitations caused by her 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 her 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
[RFC], which is "the most" the claimant "can
still do despite" physical and mental limitations that
affect her 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 she is able to perform her
past work. Or, if the exertion required for the
claimant's past work exceeds her [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);
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.
was 48 years old on the alleged onset date of disability (Tr.
33 ¶ 7) and 52 years old on the date of the hearing (Tr.
43). The ALJ found that plaintiff has at least a high school
education (Tr. 34 ¶ 8) and past relevant work as a home
aide/assistant and fire tower lookout (Tr. 33 ¶ 6).
found that plaintiff met the requirements for insured status
under the Act through 30 June 2012, her date last insured
("DLI"). Tr. 26 ¶ 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
date of alleged onset of disability, 1 January 2011. Tr. 26
¶ 2. At step two, the ALJ found that plaintiff has the
severe impairments of back disorder/disc desiccation,
incontinence, depression, and anxiety. Tr. 26 ¶ 3. At
step three, ...