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Richard v. Berryhill

United States District Court, W.D. North Carolina, Asheville Division

March 26, 2018

CHERYL A. RICHARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          David C. Keesler, United States Magistrate Judge

         THIS MATTER IS BEFORE THE COURT on Plaintiff's “Motion For Summary Judgment” (Document No. 11) and “Defendant's Motion For Summary Judgment” (Document No. 15). This case has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §636(b)(1)(B). After careful consideration of the written arguments, the administrative record, and applicable authority, the undersigned will respectfully recommend that Plaintiff's “Motion For Summary Judgment” (Document No. 11) be granted; that “Defendant's Motion For Summary Judgment” (Document No. 15) be denied; and that the Commissioner's decision be vacated.

         I. BACKGROUND

         Cheryl A. Richard (“Plaintiff”), through counsel, seeks judicial review of an unfavorable administrative decision on her application for disability benefits. (Document No. 1). On or about March 24, 2015, Plaintiff filed an application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 405, alleging an inability to work due to a disabling condition beginning October 8, 2014, which was later amended to January 1, 2015. (Transcript of the Record of Proceedings (“Tr.”) 26, 188, 318). The Commissioner of Social Security (the “Commissioner” or “Defendant”) denied Plaintiff's application initially on June 25, 2015, and again after reconsideration on October 23, 2015. (Tr. 26, 114, 125). In its “Notice of Reconsideration, ” the Social Security Administration (“SSA”) included the following explanation of its decision:

The medical evidence shows that your condition is not severe enough to be considered disabling. Medical evidence received in our office indicates that you have a history of the above conditions. Despite your pain and discomfort, you are able to sit, stand, walk, and move your arms without significant loss of control or muscle weakness. While your emotional condition may cause you some concern, you are able to think, reason, and act on your own behalf. The medical evidence does not indicate that you have a condition that can be considered totally disabling at this time.
We do not have sufficient vocational information to determine whether you can perform any of your past relevant work. However, based on the evidence in file, we have determined that you can adjust to other work.
It has been decided, therefore, that you are not disabled according to the Social Security Act.

(Tr. 125).

         Plaintiff filed a timely written request for a hearing on December 15, 2015. (Tr. 26, 134-136). On May 11, 2016, Plaintiff appeared and testified at a hearing before Administrative Law Judge Benjamin R. McMillion (the “ALJ”). (Tr. 26, 49-86). In addition, Karl S. Weldon, a vocational expert (“VE”), and David Childers, Plaintiff's attorney, appeared at the hearing. Id.

         The ALJ issued an unfavorable decision on June 9, 2016, denying Plaintiff's claim. (Tr. 23-41). On June 14, 2016, Plaintiff filed a request for review of the ALJ's decision, which was denied by the Appeals Council on August 5, 2016. (Tr. 1-5, 18). The ALJ decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's review request. (Tr. 1).

         Plaintiff's “Complaint” seeking a reversal of the ALJ's determination was filed in this Court on January 23, 2017. (Document No. 1). On February 1, 2017, the undersigned was assigned to this case as the referral Magistrate Judge.

         Plaintiff's “Motion For Summary Judgment” (Document No. 11) and “Plaintiff's Memorandum In Support Of Motion For Summary Judgment” (Document No. 12) were filed July 10, 2017; and “Defendant's Motion For Summary Judgment” (Document No. 15) and “Defendant's Memorandum In Support Of Motion For Summary Judgment” (Document No. 16) were filed October 5, 2017; and “Plaintiff's Response To Defendant's Motion For Summary Judgment” (Document No. 17) was filed on October 19, 2017.

         The pending motions are ripe for disposition, and therefore, a memorandum and recommendation to the Honorable Graham C. Mullen is now appropriate.

         II. STANDARD OF REVIEW

         The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's review of a final decision of the Commissioner to: (1) whether substantial evidence supports the Commissioner's decision; and (2) whether the Commissioner applied the correct legal standards. Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         The Fourth Circuit has made clear that it is not for a reviewing court to re-weigh the evidence or to substitute its judgment for that of the Commissioner - so long as that decision is supported by substantial evidence. Hays, 907 F.2d at 1456 (4th Cir. 1990); see also, Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). “Substantial evidence has been defined as ‘more than a scintilla and [it] must do more than create a suspicion of the existence of a fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).

         Ultimately, it is the duty of the Commissioner, not the courts, to make findings of fact and to resolve conflicts in the evidence. Hays, 907 F.2d at 1456; King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979) (“This court does not find facts or try the case de novo when reviewing disability determinations.”); Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistences in the medical evidence, and that it is the claimant who bears the risk of nonpersuasion.”). Indeed, so long as the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court disagrees with the final outcome. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).

         III. DISCUSSION

         The question before the ALJ was whether Plaintiff was under a “disability” as that term of art is defined for Social Security purposes, at any time between January 1, 2015, and the date of his decision.[1] (Tr. 26). To establish entitlement to benefits, Plaintiff has the burden of proving that she was disabled within the meaning of the Social Security Act. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

         The Social Security Administration has established a five-step sequential evaluation process for determining if a person is disabled. ...


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