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Barber v. Berryhill

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

February 14, 2018

JOHNATHAN P. BARBER, 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 Johnathan P. Barber (“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”) and Supplemental Security Income (“SSI”) on the grounds that he is not disabled.[1] The case is before the court on the parties' motions for judgment on the pleadings. D.E. 14, 16. Each party filed a memorandum in support of its motion (D.E. 15, 17), and plaintiff filed a response (D.E. 18) to the Commissioner's motion, to which she replied (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 2 Mar. 2017 Text Ord. For the reasons set forth below, it will be recommended that plaintiff's 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 4 and 5 March 2013, respectively, alleging a disability onset date of 15 December 2012. Transcript of Proceedings (“Tr.”) 13. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 13. On 28 January 2015, a hearing was held before an ALJ, at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 27-55. The ALJ issued a decision denying plaintiff's claims on 15 June 2015. Tr. 13-22.

         Plaintiff timely requested review by the Appeals Council. Tr. 8-9. On 14 September 2016, the Appeals Council admitted into the record (Tr. 2, 4, 5) additional evidence submitted by plaintiff, namely, a report dated 8 September 2015 by examining neuropsychologist Antonio E. Puente, Ph.D. on his evaluation of plaintiff (Tr. 368-71) (“Puente Rep.”).[2] 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 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 25 October 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.” 42 U.S.C. § 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 [R]egulations' 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 [his] past work given the limitations caused by [his] 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 [his] 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 [his] ability to work. [20 C.F.R.] § 416.945(a)(1). [3] 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). [4]
The ALJ then moves on to step four, where the ALJ can find the claimant not disabled because [he] is able to perform [his] past work. Or, if the exertion required for the claimant's past work exceeds [his 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. [5] 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 38 years old on the alleged onset date of disability and 40 years old on the date of the hearing. See Tr. 20 ¶ 7. The ALJ found that plaintiff has at least a high school education (Tr. 21 ¶ 8) and past relevant work as a delivery driver, retail salesperson, security guard, and stadium worker (Tr. 20 ¶ 6).

         The ALJ found that plaintiff met the requirements for insured status under the Act through 31 December 2016, his date last insured. Tr. 15 ¶ 1. Applying the five-step analysis of 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since the date of alleged onset of disability, 15 December 2012. Tr. 15 ¶ 2. At step two, the ALJ found that plaintiff has the severe impairment of “borderline intellectual functioning status post leukemia radiation therapy.” Tr. 15 ¶ 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. 15-16 ¶ 4.

         The ALJ next determined that plaintiff had the RFC to perform a limited range of light work:

After careful consideration of the entire record, I find that the claimant has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) [6]except the claimant can only perform postural activities occasionally; can perform simple, routine, repetitive tasks; can have no ongoing interaction with the public and no close coordination with co-workers; and can only occasionally perform handling.

Tr. 17 ¶ 5.

         Based on his determination of plaintiff's RFC, the ALJ found at step four that plaintiff was unable to perform his past relevant work. Tr. 20 ¶ 6. At step five, relying on the testimony of the vocational expert, the ALJ found that there were jobs in the national economy existing in significant numbers that plaintiff could perform, including jobs in the occupations of office aid, crossing guard, and janitor/cleaner. Tr. 21-22 ¶ 10. The ALJ accordingly concluded that plaintiff was not disabled from the alleged disability onset date, 15 December 2012, through the date of the decision, 15 June 2015. Tr. 22 ¶ 11.

         II. STANDARD OF REVIEW

         Under 42 U.S.C. §§ 405(g) and 1383(c)(3), 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. Id.

         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.

         Where, as here, the Appeals Council considers additional evidence before denying the claimant's request for review of the ALJ's decision, “the court must ‘review the record as a whole, including the [additional] evidence, in order to determine whether substantial evidence supports the Secretary's findings.'” Felts v. Astrue, No. 1:11CV00054, 2012 WL 1836280, at *1 (W.D. Va. 19 May 2012) (quoting Wilkins v. Sec'y Dep't of Health & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Remand is required if the court concludes that the Commissioner's decision is not supported by substantial evidence based on the record as supplemented by the evidence submitted at the Appeals Council level. Id. at *1-2.

         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); Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).

         III. OVERVIEW OF ...


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