United States District Court, E.D. North Carolina, Southern Division
JOHNATHAN P. BARBER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
E. GATES UNITED STATES MAGISTRATE JUDGE.
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. 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
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.
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.”). 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.
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).
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); 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).
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 [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).  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 [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.  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 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).
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.
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) 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.
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.
STANDARD OF REVIEW
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.
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
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.
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).
OVERVIEW OF ...