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Cockman v. Berryhill

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

January 19, 2018

MAX A. COCKMAN, 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 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.

         BACKGROUND

         I. CASE HISTORY

         Plaintiff 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.

         At the 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).

         II. 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); 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).

         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 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).[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).[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); 416.1429.[3] 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).

         III. ALJ'S FINDINGS

         Plaintiff 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)[4] (Tr. 40 ¶ 6).

         Applying 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.

         The ALJ 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 to vibration.

Tr. 36¶5.[5]

         Based 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 ¶ 7.

         Alternatively, 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), [6] 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.

         IV. STANDARD OF REVIEW

         Under 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.

         The 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 775.

         Before 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).

         OVERVIEW OF PLAINTIFF'S CONTENTIONS

         Plaintiff 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 ...


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