United States District Court, E.D. North Carolina, Southern Division
MAX A. COCKMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge
action, plaintiff Max A. Cockman ("plaintiff or, in
context, "claimant") challenges the final decision
of defendant Acting Commissioner of Social Security Nancy A.
Berryhill ("Commissioner") denying his application
for a period of disability and disability insurance benefits
("DIB") 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. 15, 19. Both filed memoranda
in support of their respective motions. D.E. 16, 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 Text Ord. dated 28 Mar. 2017. 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 DIB on 23 April 2013, alleging a
disability onset date of 26 April 2012. Transcript of
Proceedings ("Tr.") 33. The application was denied
initially and upon reconsideration, and a request for hearing
was timely filed. Tr. 33. On 24 March 2015, a hearing was
held before an administrative law judge ("ALJ"), at
which plaintiff (appearing with a non-attorney
representative) and a vocational expert testified. Tr. 48-66.
The ALJ issued a decision denying plaintiffs claim on 28
April 2015. Tr. 33-42. Plaintiff timely requested review by
the Appeals Council. See Tr. 27. On 2 September
2016, the Appeals Council denied the request for review. Tr.
1. The Appeals Council found specifically that two documents
generated after the hearing and submitted for the first time
to it-a functional capacity evaluation by physical therapist
LeNeve Duncan dated 22 June 2015 ("Duncan FCE")
(Tr. 13-25) and a vocational evaluation report by certified
disability management specialist J. Adger Brown, Jr. dated 3
August 2015 ("Brown report") (Tr. 7-12)-were not
relevant to the time period at issue in the ALJ's
decision and therefore did not affect that decision. Tr. 2.
The Appeals Council did not admit these documents into the
record, although, as the citations to them indicate, they are
included in the administrative transcript before the court.
time of the Appeals Council's denial of review, the
decision of the ALJ became the final decision of the
Commissioner. See 20 C.F.R. § 404.981.
Plaintiff commenced this proceeding for judicial review on 29
September 2016, pursuant to 42 U.S.C. § 405(g). 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. §
423(d)(1)(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). 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).
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 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);
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 45 years old on the alleged onset date of disability, 26
April 2012, and 48 years old on the date of the hearing, 24
March 2015. See, e.g., Tr. 40 ¶ 6; 50-51. The
ALJ found that plaintiff has at least a high school
education. Tr. 40 ¶ 6; see also Tr. 51
(plaintiffs testimony that he graduated from college with a
bachelor's degree). Adopting the testimony of the
vocational expert (Tr. 63-64), the ALJ also found that
plaintiffs past work included employment as a public
relations representative, code # 165.167-014 in the
Dictionary of Occupational Titles ("DOT")
(U.S. Dep't of Labor 4th ed. rev. 1991) (Tr. 40
the five-step analysis of 20 C.F.R. § 404.1520(a)(4),
the ALJ found at step one that plaintiff had not engaged in
substantial gainful activity since the alleged onset date of
disability. Tr. 35 ¶ 2. At step two, the ALJ found that
plaintiff had the following medically determinable impairment
that was severe within the meaning of the Regulations: back
disorder with post-laminectomy syndrome. Tr. 35 ¶ 3. At
step three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that meets or
medically equals any of the Listings. Tr. 35 ¶ 4.
next determined that plaintiff had the RFC to perform a
limited range of sedentary work:
After careful consideration of the entire record, I find that
the claimant has the [RFC] to perform sedentary
work as defined in 20 CFR 404.1567(a) except
that he cannot climb ladders, ropes, or scaffolds. The
claimant can occasionally climb ramps and stairs, stoop,
kneel, crouch, and crawl. He can perform overhead reaching
occasionally. The claimant must avoid concentrated exposure
on this RFC, the ALJ found at step four that plaintiff had
the ability to perform his past work as a public relations
representative as actually and generally performed. Tr. 40
¶ 6. The ALJ accordingly concluded that plaintiff was
not disabled from the alleged disability onset date, 26 April
2012, through the date of his decision, 28 April 2015. Tr. 41
the ALJ found at step five that there were other jobs in
significant numbers in the national economy that plaintiff
could perform. Tr. 40-41 ¶ 6. Again adopting the
testimony of the vocational expert, he found plaintiff able
to perform jobs in the occupations of order clerk for food
and beverages (DOT # 209.567-014), sales representative for
cable services (DOT # 259.357-022),  and document
preparer (DOT # 249.587-018). Tr. 41 ¶ 6; see
also Tr. 64-65 (vocational expert's testimony). The
ALJ concluded alternatively that on this ground as well
plaintiff was not disabled from the alleged onset date
through the date of his decision. Tr. 41 ¶ 7.
STANDARD OF REVIEW
42 U.S.C. §405(g), judicial review of the final decision
of the Commissioner is limited to considering whether the
Commissioner's decision is supported by substantial
evidence in the record and whether the appropriate legal
standards were applied. See Richardson v. Perales,
402 U.S. 389, 390, 401 (1971); Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990). Unless the court finds that
the Commissioner's decision is not supported by
substantial evidence or that the wrong legal standard was
applied, the Commissioner's decision must be upheld.
See Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.
1986); Blalock v. Richardson, 483 F.2d 773, 775 (4th
Cir. 1972). Substantial evidence is '"such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Perales, 402 U.S.
at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). It is more than a scintilla of evidence,
but somewhat less than a preponderance. Mat401.
court may not substitute its judgment for that of the
Commissioner as long as the decision is supported by
substantial evidence. Hunter v. Sullivan, 993 F.2d
31, 34 (4th Cir. 1992) (per curiam). In addition, the court
may not make findings of fact, revisit inconsistent evidence,
or make determinations of credibility. See Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996); King v.
Califano, 599 F.2d 597, 599 (4th Cir. 1979). A
Commissioner's decision based on substantial evidence
must be affirmed, even if the reviewing court would have
reached a different conclusion. Blalock, 483 F.2d at
a court can determine whether a decision is supported by
substantial evidence, it must ascertain whether the
Commissioner has considered all relevant evidence and
sufficiently explained the weight given to probative
evidence. See Sterling Smokeless Coal Co. v. Akers,
131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review
of an administrative decision is impossible without an
adequate explanation of that decision by the
administrator." DeLoatche v. Heckler, 715 F.2d
148, 150 (4th Cir. 1983); see also Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
OF PLAINTIFF'S CONTENTIONS
contends that the ALJ's decision should be reversed and
benefits awarded, or the case be remanded for a new hearing
on the principal grounds that the ALJ erred in assessing
plaintiffs credibility and, for this and other reasons,
plaintiffs RFC, and in relying on the vocational expert's
testimony. In addition, plaintiff contends the case should be
remanded for consideration of the Duncan FCE and Badger
report. Because the court finds that the ALJ's assessment
of plaintiffs ...