United States District Court, W.D. North Carolina, Asheville Division
RICHARD M. FENDER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
J. Conrad, Jr., United States District Judge
MATTER comes before the Court on Richard M.
Fender's (“Plaintiff”) Motion for Summary
Judgment, (Doc. No. 9), and Memorandum in Support, (Doc. No.
10), Nancy A. Berryhill's (“Defendant” or
“Commissioner”) Motion for Summary Judgment,
(Doc. No. 11), and Memorandum in Support, (Doc. No. 12).
seeks judicial review of Defendant's denial of his social
security claim. (Doc. No. 1). On September 16, 2013,
Plaintiff filed his application for a period of disability
(“DIB”) and for supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act, 42 U.S.C. § 405 et seq. (Doc.
Nos. 8 to 8-8: Administrative Record (“Tr.”) at
207, 209). Plaintiff's application was denied initially
and upon consideration. (Tr. 73-74, 103-04).
16, 2015, a hearing was held in front an Administrative Law
Judge (“ALJ”). (Tr. 45-67). On August 4, 2015,
the ALJ issued a decision finding Plaintiff not disabled.
(Tr. 23-44). The Appeals Council denied review of the
ALJ's decision on December 12, 2016, making the ALJ's
opinion the final decision of Defendant. (Tr. 1-7). Plaintiff
now appeals the ALJ's decision, requesting this Court to
issue a remand pursuant to 42 U.S.C. §405(g).
question before the ALJ was whether the claimant is disabled
under sections 216(i), 233(d), and 1614(a)(3)(A) of the
Social Security Act. (Tr. 26). To establish entitlement to
benefits, Plaintiff has the burden of proving that he was
disabled within the meaning of the Social Security Act.
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The
ALJ ultimately concluded that Plaintiff was not under a
disability from January 30, 2012, his alleged onset date,
through August 4, 2015, the date of the ALJ's decision.
Social Security Administration has established a five-step
sequential evaluation process for determining if a person is
disabled. 20 C.F.R. § 404.1520(a). The five steps are:
(1) whether claimant is engaged in substantial gainful
activity-if yes, not disabled;
(2) whether claimant has a severe medically determinable
physical or mental impairment, or combination of impairments
that meet the duration requirement in § 404.1509-if no,
(3) whether claimant has an impairment or combination of
impairments that meets or medically equals one of the
listings in appendix 1 and meets the duration requirement-if
(4) whether claimant has the residual functional capacity
(“RFC”) to perform his or her past relevant
work-if yes, not disabled; and
(5) whether considering claimant's RFC, age, education,
and work experience he or she can make an adjustment to other
work-if yes, not disabled.
See 20 C.F.R. § 404.1520(a)(4)(i-v). In this
case, the ALJ determined at the fifth step that Plaintiff was
not disabled. (Tr. at 37-38).
begin with, the ALJ concluded that Plaintiff had not engaged
in any substantial gainful activity since January 30, 2012,
Plaintiffs alleged onset date. (Tr. 28). At the second step,
the ALJ found that Plaintiff had the following severe
impairments: “osteoarthritis; panic disorder; and
attention deficit hyperactivity disorder.” (Tr. 28-29).
At the third step, the ALJ determined that Plaintiff did not
have an “impairment or combination of impairments that
meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. 404, Subpart P, Appendix 1.”
the ALJ assessed Plaintiffs RFC and found that he retained
the capacity to perform:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) that involves no climbing of ladders, ropes or
scaffolds; no more than occasional climbing of ramps or
stairs, balancing, stooping, kneeling, crouching or crawling;
cannot have any concentrated exposure to hazards, vibration
or loud noise; not perform any work that would require an
acute hearing ability; and the following non-exertional
limitations: can perform and maintain concentration and
persistence for simple, routine, repetitive tasks for at
least two hour segments; he could adapt to routine changes in
a work setting; and he would be limited to work that would
require no more than occasional interaction with the public,
co-workers or supervisors.
(Tr. 30). In making his finding, the ALJ specifically stated
that he “considered all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent
with the objective medical evidence and other
evidence.” (Id.). The ALJ further opined that
he “considered opinion evidence in accordance with the
requirements of 20 CFR 404.1527 and 416.927 and SSRs [Social
Security Rulings] 96-2p, 96-5p, 96-6p and 06-3p.”
fourth step, the ALJ found that Plaintiff could not perform
his past relevant work. (Tr. 36). Finally, at the fifth step,
the ALJ concluded that, after “[c]onsidering
[Plaintiff's] age, education, work experience, and
residual functional capacity, there are jobs that exist in
significant numbers in the national economy that [Plaintiff]