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Rowe v. Berryhill

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

February 16, 2018

JEWELL ROWE, 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 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.[1] 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.

         I. BACKGROUND

         A. Case History

         Plaintiff 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.[2] 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.

         Plaintiff 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).

         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. § 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).

         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 [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 her 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 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.[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 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).

         The ALJ 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.[6] Tr. 77-79 ¶ 4.

         The ALJ 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.

         Based 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.

         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 ...


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