United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
E. GATES, UNITED STATES MAGISTRATE JUDGE.
action, plaintiff Jewell Rowe, Jr. ("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. 19,
21. Each party filed a memorandum in support of its motion
(D.E. 20, 22), and plaintiff filed a "reply" in the
Commissioner's motion (D.E. 23). 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 Oct. 2017 Text Ord. 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.
protectively filed applications for DIB and SSI on 5 February
2013, alleging a disability onset date of 1 June 2011.
Transcript of Proceedings ("Tr.") 73. The
applications were denied initially and upon reconsideration,
and a request for a hearing was timely filed. Tr. 73. On 19
August 2015, a hearing was held before an ALJ, at which
plaintiff, represented by counsel, and a vocational expert
testified. Tr. 100-134. At the hearing, plaintiff
amended his onset disability date to 1 October 2012. Tr. 73,
105. The ALJ issued a decision denying plaintiffs claims on
15 October 2015. Tr. 73-86.
timely requested review by the Appeals Council. Tr. 64-69. On
11 January 2017, the Appeals Council admitted into the record
additional evidence submitted by plaintiff (Tr. 1001-1761).
Tr. 2, 5, 6. The additional evidence included the report on a
psychological evaluation of plaintiff conducted on 11
September 2015 by licensed psychological associate Roy J.
Haddock, Jr., M.A. Tr. 1001-06. Notwithstanding admission of
the additional evidence, the Appeals Council denied the
request for review. Tr. 1, 2. At that time, the decision of
the ALJ became the final decision of the Commissioner. 20
C.F.R. §§ 404.981, 416.1481. On 16 March 2017,
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. § l382c(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. § l382c(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), l382c(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 [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 [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
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 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.
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. §§ 4l6.920(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 51 years old on the amended alleged onset date of
disability and 54 years old on the date of the hearing. Tr.
84 ¶ 7. The ALJ found that plaintiff has a limited
education (Tr. 84 ¶ 8) and past relevant work as a
tractor trailer/moving van driver helper, delivery route
truck driver, and mechanic helper (Tr. 84 ¶ 6).
found that plaintiff met the insured status requirements of
the Act through 30 September 2017. Tr. 75 ¶ 1. Applying
the five-step analysis of 20 C.F.R. §§
404.1520(a)(4) and 416.920(a)(4), the ALJ then found at step
one that plaintiff had not engaged in substantial gainful
activity since the date of amended alleged onset of
disability, 1 October 2012. Tr. 75 ¶ 2. At step two, the
ALJ found that plaintiff has the severe impairments of
cannabis abuse, with a history of cocaine and alcohol
dependence. Tr. 76 ¶ 3. She determined specifically that
plaintiff does not have borderline intellectual functioning
and that it is therefore not a severe impairment he has. Tr.
77 ¶ 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, including
specifically Listing 12.05C for intellectual
disability. Tr. 77-79 ¶ 4.
next determined that plaintiff had the RFC to perform work at
all exertional levels, but with the following nonexertional
limitations: he is limited to simple, routine tasks in a
low-stress job, defined as having no fast-paced,
production-rate work. Tr. 79 ¶ 5.
on her determination of plaintiff s RFC, the ALJ found at
step four that plaintiff was unable to perform his past
relevant work. Tr. 84 ¶ 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 hand packager, laundry worker, and remnant
sorter. Tr. 85 ¶ 10. The ALJ accordingly concluded that
plaintiff was not disabled from the amended alleged
disability onset date, 1 October 2012, through the date of
the decision, 15 October 2015. Tr. 86 ¶ 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 ...