United States District Court, E.D. North Carolina, Western Division
TINA M. CONDON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
E. Gates United States Magistrate Judge
action, plaintiff Tina M. Condon ("plaintiff or, in
context, "the claimant") challenges the final
decision of defendant Acting Commissioner of Social Security
Nancy A. Berryhill ("Commissioner") denying her
applications for disabled widow's benefits
("DWB") under Title II of the Social Security Act
("Act"), which title relates to disability
insurance benefits ("DIB") generally, and
supplemental security income ("SSI") under Title
XVI of the Act on the grounds that she is not
case is before the court on the parties' motions for
judgment on the pleadings. D.E. 15, 17. Each party filed a
memorandum in support of its motion. D.E. 16, 18. 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 20 June 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 applications for DWB and SSI on 5 October 2012,
alleging a disability onset date of 1 July 1998. Transcript
of Proceedings ("Tr.") 11. The claims were denied
initially and upon reconsideration, and plaintiff requested a
hearing before an administrative law judge ("ALT").
Tr. 11. In a statement dated 11 May 2015 (Tr. 188), plaintiff
amended her alleged onset date to 5 October 2012. On 12 June
2015, an ALJ held a hearing at which plaintiff alone
testified, although a vocational expert was present. Tr.
23-42. On 6 July 2015, the ALJ issued a decision finding that
plaintiff was not disabled and therefore not entitled to DWB
or SSI. Tr. 11-18. Plaintiff timely requested review by the
Appeals Council (Tr. 7), but it denied review on 21 November
2016 (Tr. 1). Plaintiff commenced this proceeding for
judicial review on 21 December 2016, pursuant to 42 U.S.C.
§§ 405(g) (DWB) and 1383(c)(3) (SSI). See In
Forma Pauperis Mot. (D.E. 1); Ord. Allowing Mot. (D.E.
4); Compl. (D.E. 5).
Standards for Disability
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 42
U.S.C. § 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." 42 U.S.C. § 423(d)(2)(A);
see 42 U.S.C. § 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." 42
U.S.C. §§ 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
regulations ["the listings"]; 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
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 her impairments match a
listed impairment 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 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);
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.