United States District Court, W.D. North Carolina, Asheville Division
CHERYL A. RICHARD, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
C. Keesler, United States Magistrate Judge
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.
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.
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.
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).
“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.
“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.
pending motions are ripe for disposition, and therefore, a
memorandum and recommendation to the Honorable Graham C.
Mullen is now appropriate.
STANDARD OF REVIEW
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.
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).
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).
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. (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
Social Security Administration has established a five-step
sequential evaluation process for determining if a person is