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Tatum v. Berryhill

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

December 28, 2017

CYNTHIA DIANNE TATUM, 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 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.[1] 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).[2] 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.

         I. BACKGROUND

         A. Case History

         Plaintiff 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[3] 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.

         Plaintiff 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.[4] 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.

         The 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.

Tr. 2.

         The 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).

         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. 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).

         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 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 step.
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). [5] 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). [6]
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); 416.1429. [7] 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 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).

         The ALJ 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, ...


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