United States District Court, E.D. North Carolina, Eastern Division
MEMORANDUM AND RECOMMENDATION
E. Gates United States Magistrate Judge
action, plaintiff Tammy Williams Keith
(“plaintiff” or, in context, “the
claimant”) challenges the final decision on behalf of
defendant Commissioner of Social Security
(“Commissioner”) denying her applications for a
period of disability and disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) on the grounds that she is not
disabled. The case is before the court on the
respective parties' motions for judgment on the
pleadings. D.E. 22, 25. Each party filed a memorandum in
support of its motion. D.E. 23, 26. 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 D.E. 27; 19 Mar. 2018 Text Ord. For the reasons
set forth below, it will be recommended that plaintiff's
motion be allowed, the Commissioner's motion be denied,
and this case be remanded for further proceedings.
filed applications for DIB and SSI on 1 August 2011, alleging
a disability onset date of 17 May 2011. Transcript of
Proceedings (“Tr.”) 10. The applications were
denied initially and upon reconsideration, and plaintiff
timely requested a hearing before an administrative law judge
(“ALJ”). Tr. 10. An ALJ held the hearing on 18
June 2013. Tr. 20-43. On 24 July 2013, the ALJ issued a
decision (Tr. 10-19) denying the applications, and plaintiff
sought review by the Appeals Council (Tr. 6). It denied the
request for review. Tr. 1-5. On 16 October 2014, plaintiff
sought review by this court. See Tammy Williams Keith v.
Carolyn W. Colvin, No. 4:14-CV-199-BO (E.D. N.C. ). On
25 February 2016, this court remanded the decision for
further administrative proceedings. 25 Feb. 2016 Ord. (D.E.
33) 5, Keith, No. 4:14-CV-199-BO, 2016 WL 775759, at
*3 (copy at Tr. 860-64); see also J. (D.E. 34),
Keith (25 Feb. 2016) (copy at Tr. 859).
The court stated in relevant part:
Finally, because remand has already been found to be
appropriate, and because there is evidence in the record
which would suggest that some or all of the criteria for
Listing 1.04 addressing disorders of the spine might be
satisfied, see e.g. Tr. 450-51, the ALJ is further
directed to consider and conduct a thorough discussion of
whether plaintiff satisfies the Listing 1.04 criteria so
that, if necessary, meaningful review of the ALJ's
decision is possible. Radford v. Colvin, 734 F.3d
288, 295-296 (4th Cir. 2013).
24 Feb. 2016 Ord. 5, 2016 WL 775759, at *3.
on the court's ruling, the Appeals Council vacated the
Commissioner's 24 July 2013 decision and remanded this
case to an ALJ for further administrative proceedings. Tr.
857-58 (remand order); 855-56 (notice of remand). It also
ordered that the instant claims be consolidated with a claim
for SSI filed by plaintiff on 23 September 2014, which was
found to have been rendered duplicate by the instant claims.
to the remand, a hearing was held on 1 December 2016 before a
different ALJ than the one who presided at the initial ALJ
hearing. Tr. 745-80. Plaintiff and a vocational expert
testified at the hearing. On 27 February 2017, the ALJ issued
a decision denying plaintiff's claims. Tr. 713-33.
Plaintiff did not seek review of this decision by the Appeals
Council, and the Appeals Council did not assume jurisdiction,
making the ALJ's decision the final decision of the
Commissioner. See 20 C.F.R. §§ 404.984(d),
416.1484(d). On 12 June 2017, plaintiff sought judicial
review of the Commissioner's decision in this court,
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) (12 June 2017);
Ord. Allowing IFP Mot. (D.E 5) (20 June 2017); Comp. (D.E. 6)
(20 June 2017).
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. § 1382c(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. § 1382c(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), 1382c(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 [R]egulations' 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
residual functional capacity [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. §§ 416.920(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.
The ALJ's Findings
was 41 years old on the alleged onset date of disability and
46 years old on the date of the 2016 hearing. Tr. 731 ¶
7; 753. The ALJ found that she has a limited
education (Tr. 731 ¶ 8) and past relevant
work as an assembly line worker and cashier (Tr. 731 ¶
the five-step analysis of 20 C.F.R. §§
404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one
that plaintiff had not engaged in substantial gainful
activity since her alleged onset of disability. Tr. 715
¶ 2. At step two, the ALJ found that plaintiff had the
following medically determinable impairments that were severe
within the meaning of the Regulations: “degenerative
disc disease; obesity; carpal tunnel syndrome/lateral
epicondylitis/trigger finger, status-post releases;
degenerative joint disease; diabetes mellitus; aortic
aneurysm; hypertension; hyperlipidemia; adjustment disorder,
with mixed anxiety/depression; major depressive disorder;
anxiety disorder; borderline intellectual functioning.”
Tr. 716 ¶ 3. At ...