United States District Court, E.D. North Carolina, Western Division
Marci G. Pampuch, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge
Marci G. Pampuch instituted this action on January 6, 2017,
to challenge the denial of her application for social
security income. Pampuch claims that the Administrative Law
Judge ("ALJ") Joseph L. Brinkley erred in (1)
failing to evaluate her psychological impairments under the
special technique prescribed by the Regulations, and (2)
failing to resolve conflicts between the testimony from the
Vocational Expert ("VE") and the Dictionary of
Occupational Titles ("DOT"). Both Pampuch and
Defendant Nancy A. Berryhill, the Acting Commissioner of
Social Security, have filed motions seeking a judgment on the
pleadings in their favor. D.E. 20, 22.
reviewing the parties' arguments, the court has
determined that ALJ Brinkley erred in his determination.
Although he found Pampuch's mental impairments were
non-severe, he failed to evaluate them under the special
technique described in the Regulations. However, as to the
step five finding, the VE sufficiently explained why an
apparent conflict between her testimony and the DOT was
inapplicable to the jobs identified. Therefore, the
undersigned recommends that the court grant Pampuch's
motion, deny Berryhill's motion, and remand the matter to
the Commissioner for further consideration.
18, 2015, Pampuch protectively filed an application for
disability benefits, alleging a disability that began on
February 1, 2014. After her claim was denied at the initial
level and upon reconsideration, Pampuch appeared before ALJ
Brinkley for a hearing to determine whether she was entitled
to benefits. ALJ Brinkley determined Pampuch was not entitled
to benefits because she was not disabled. Tr. at 11-21.
Brinkley found that Pampuch had several severe impairments:
obesity, diabetes mellitus, intestinal problems, a neck
injury (status post fall and surgery), back problems,
scoliosis, and carpal tunnel syndrome ("CTS") of
the right hand. Tr. at 12. ALJ Brinkley found that
Pampuch's impairments, either alone or in combination,
did not meet or equal a Listing impairment. Id.
Brinkley then determined that Pampuch had the residual
functional capacity ("RFC") to perform a light work
with additional limitations. Tr. at 14. Pampuch is limited to
occasional, as opposed to constant, vertical and lateral
rotation of the neck. Id. She is also limited to
occasional use of her upper extremities for overhead lifting,
reaching, pulling, and pushing bilaterally. Id.
However, Pampuch can frequently use her dominant, right upper
extremity to handle, finger, feel, and grasp. Id.
Pampuch can occasionally crawl, kneel, bend, and climb stairs
and ramps, and she can occasionally use her lower extremities
to operate leg and foot controls. Id. Pampuch should
avoid climbing ladders. Id.
should have only occasional exposure to extreme hot and cold
temperatures, vibrations, and work hazards such as work
around dangerous, moving mechanical parts, and unprotected
heights. Id. Pampuch requires a sit/stand option
allowing her to alternate between sitting, standing, and
walking every 30 minutes and cannot leave her workstation
except for regularly scheduled breaks. Id. She is
able to sit for six hours in an eight-hour workday with
interruptions and regularly scheduled breaks. Id.
Pampuch can also stand for six hours in an eight-hour workday
with interruptions and regularly scheduled breaks.
Brinkley concluded that Pampuch was incapable of performing
any of her past relevant work. Tr. at 19. But ALJ Brinkley
determined that, considering Pampuch's age, education,
work experience, and RFC, there were other jobs that existed
in significant numbers in the national economy that Pampuch
was capable of performing. Tr. at 23. These include: office
helper and cashier II. Tr. at 20. Thus, ALJ Brinkley found
that Pampuch was not disabled. Tr. at 21.
unsuccessfully seeking review by the Appeals Council, Pampuch
commenced this action in January 2017. D.E. 7.
Analysis A. Standard for Review of the
Acting Commissioner's Final Decision
social security claimant appeals a final decision of the
Commissioner, the district court's review is limited to
determining whether, based on the entire administrative
record, there is substantial evidence to support the
Commissioner's findings. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is defined as "evidence which a
reasoning mind would accept as sufficient to support a
particular conclusion." Shively v. Heckler, 739
F.2d 987, 989 (4th Cir. 1984) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The
court must affirm the Commissioner's decision if it is
supported by substantial evidence. Smith v. Chater,
99 F.3d 635, 638 (4th Cir. 1996).
Standard for Evaluating Disability
making a disability determination, the ALJ engages in a
five-step evaluation process. 20 C.F.R. § 404.1520;
see Johnson v. Barnhart, 434 F.3d 650 (4th Cir.
2005). The ALJ must consider the factors in order. At step
one, if the claimant is engaged in substantial gainful
activity, the claim is denied. At step two, the claim is
denied if the claimant does not have a severe impairment or
combination of impairments significantly limiting him or her
from performing basic work activities. At step three, the
claimant's impairment is compared to those in the Listing
of Impairments. See 20 C.F.R. Part 404, Subpart P,
App. 1. If the impairment is listed in the Listing of
Impairments or if it is equivalent to a listed impairment,
disability is conclusively presumed. However, if the
claimant's impairment does not meet or equal a listed
impairment, the ALJ assesses the claimant's RFC to
determine, at step four, whether he can perform his past work
despite his impairments. If the claimant cannot perform past
relevant work, the analysis moves on to step five:
establishing whether the claimant, based on his age, work
experience, and RFC can perform other substantial gainful
work. The burden of proof is on the claimant for the first
four steps of this inquiry, but shifts to the Commissioner at
the fifth step. Pass v. Chater, 65 F.3d 1200, 1203
(4th Cir. 1995).
has a history of neck and back problems. Pampuch reported
that she began experiencing neck issues in 2001. Tr. at 15.
She had a pinched nerve and underwent surgery. Id.
Although she experienced initial improvement, by 2006 Pampuch
she began experiencing problems again with her neck.
Id. In 2007, she fell at work, injuring her lower
back. Id. She reported that her back condition never
stated that by 2008, her pain had worsened and she had
difficulty lifting and driving. Id. She also
reported that she had a curve in her back since she was a
teenager, and that it had worsened over the years.
Id. Despite treatment with medication, physical
therapy, and visits to a chiropractor, Pampuch had
limitations in pushing, pulling, and lifting, as well as with
sitting, standing, and walking. Id. Pampuch reported
that she constantly shifted her body to alleviate pain.
stated that she was able to perform her activities of daily
living, including cleaning, washing dishes, doing laundry,
and looking after her grandchildren. Tr. at 16. Although she
read and sewed, she could not hold her neck or ...