United States District Court, E.D. North Carolina, Eastern Division
DANNY R. KOONCE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
E. Gates United States Magistrate Judge
action, plaintiff Danny R. Koonce ("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") on the grounds that he is not disabled. The
case is before the court on the parties' motions for
judgment on the pleadings. D.E. 11, 14. Both filed memoranda
in support of their respective motions. D.E. 12, 15. 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 Nov. 2017 Text Ord. For the
reasons set forth below, it will be recommended that the
Commissioner's motion be allowed, plaintiffs motion be
denied, and the final decision of the Commissioner be
filed an application for DIB on 26 October 2012, alleging a
disability onset date of 5 February 2010. Transcript of
Proceedings ("Tr.") 10. The application was denied
initially and upon reconsideration, and a request for a
hearing was timely filed. Tr. 10. On 1 June 2015, a video
hearing was held before an administrative law judge
("ALJ") at which plaintiff, who was represented by
counsel, and a vocational expert testified. Tr. 28-67. On 28
January 2016, the ALJ issued a decision denying plaintiff s
application. Tr. 10-22.
timely requested review by the Appeals Council. Tr. 6. On 13
February 2017, the Appeals Council denied the request for
review. Tr. 1. At that time, the ALJ's decision became
the final decision of the Commissioner. 20 C.F.R. §
404.981. On 29 March 2017, plaintiff commenced this
proceeding for judicial review of the ALJ's decision,
pursuant to 42 U.S.C. § 405(g). See Compl. (D.E.I).
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); 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). 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).
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.
§§ 4l6.92O(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.
was 53 years old on the date he filed his application for DIB
and 58 years old on the date of the hearing. Tr. 19 ¶ 7;
33. The ALJ found that he had at least a high school
education (Tr. 20 ¶ 8) and past relevant work as a
tractor-trailer truck driver (Tr. 19 ¶ 6).
the five-step analysis of 20 C.F.R. § 404.1520(a)(4),
the ALJ found at step one that plaintiff had not engaged in
substantial gainful activity since 5 February 2010, the
alleged disability onset date. Tr. 13 ¶ 2. At step two,
the ALJ found that plaintiff had the following medically
determinable impairments that were severe within the meaning
of the Regulations: lumbar degenerative disc disease, right
knee degenerative joint disease, obesity, and chronic kidney
disease. Tr. 13 ¶ 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. Tr. 13 ¶ 4.
next determined that plaintiff had the RFC to perform a
reduced range of medium work:
After careful consideration of the entire record, the
undersigned finds that the claimant has the [RFC] to perform
work at the medium exertional level. He can occasionally
climb ramps, stairs; can never climb ladders, ropes, and
scaffolds; and can occasionally balance, stoop, kneel,
crouch, and crawl. He can have occasional exposure to extreme
cold, (as defined in the Selected Characteristics of
Occupations). He can perform work that does not require the
operation of a motor vehicle.
Tr. 15 ¶ 5. The ALJ explains in a footnote:
Work at the medium exertional level is defined as having the
capacity to lift, carry, push, or pull 50 pounds occasionally
and 25 pounds frequently; stand or walk 6 hours in an 8 hour
workday; and sit 6 hours in an 8 hour workday (20 CFR
404.1567(c)). "Occasional" and
"occasionally" mean occurring from very little up
to one-third of the time (SSR 83-10).
Tr. 15 n.l ¶ 5; see also Dictionary of Occupational
Titles (U.S. Dep't of Labor 4th ed. rev. 1991)
("DOT"), app. C § IV, def. of "M-Medium
Work," 1991 WL 688702; 20 C.F.R. § 404.1567
(providing that the terms for exertional level as used in the
Regulations have the same meaning as in the DOT).
on his determination of plaintiff s RFC, the ALJ found at
step four that plaintiff was unable to perform his past
relevant work. Tr. 19 ¶ 6. At step five, citing the
testimony of the vocational expert, the ALJ found that there
were jobs in the national economy existing in significant
numbers that he could perform at the medium exertional level,
including jobs in the occupations of hand packager, laundry
worker, and dining room attendant. Tr. 20 ¶ 10. Noting
that a claimant who can perform work at the medium exertional
level is deemed able to perform work at the light and
sedentary exertional levels, 20 C.F.R. § 404.1567(c),
the ALJ found that plaintiff could also perform at the light
exertional level jobs in the occupations of cashier II, small
part assembler, and inspector/hand packager. Tr. 20 ¶
10. The ALJ accordingly concluded that plaintiff was not
disabled from the alleged disability onset date, 2 February
2010, through the date of the decision, 28 January 2016. Tr.
21 ¶ 11.
STANDARD OF REVIEW
42 U.S.C. § 405(g), 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 (4thCir. 1972). Substantial evidence is "such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Per ales,
402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). It is more than a scintilla of
evidence, but somewhat less than a preponderance.
court may not substitute its judgment for that of the
Commissioner as long as the decision is supported by
substantial evidence. Hunter v. Sullivan, 993 F.2d
31, 34 (4th Cir. 1992). In addition, the court may not make
findings of fact, revisit inconsistent evidence, or make
determinations of credibility. See Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996); King v. Califano,
599 F.2d 597, 599 (4th Cir. 1979). A Commissioner's
decision based on substantial evidence must be affirmed, even
if the reviewing court would have reached a different
conclusion. Blalock, 483 F.2d at 775 .
a court can determine whether a decision is supported by
substantial evidence, it must ascertain whether the
Commissioner has considered all relevant evidence and
sufficiently explained the weight given to probative
evidence. See Sterling Smokeless Coal Co. v. Akers,
131 F.3d 438, 439-40 (4th Cir. 1997). "Judicial review
of an administrative decision is impossible without an
adequate explanation of that decision by the
administrator." DeLoatche v. Heckler, 715 F.2d
148, 150 (4th Cir. 1983); see also Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
OVERVIEW OF PLAINTIFF'S CONTENTIONS
contends that the ALJ's decision should be reversed or
modified, or in the alternative, the case should be remanded
for a new hearing on the grounds that the ALJ erred in
assessing plaintiffs RFC and evaluating the medical opinions
of treating physician Karen A. Thomas, M.D. The court finds
ALJ'S RFC DETERMINATION
noted, a claimant's RFC is the most a claimant can still
do despite his limitations. 20 C.F.R. § 404.1545(a)(1).
More specifically, "[o]rdinarily, RFC is the
individual's maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and
continuing basis," which "means 8 hours a day, for
5 days a week, or an equivalent work schedule." Soc.
Sec. Ruling 96-8p, 1996 WL 374184, at *2 (2 July 1996). The
assessment of a claimant's RFC must be based on all the
relevant medical and other evidence in the record. 20 C.F.R.
§ 404.1545(a)(3). An ALJ's decision must state the
claimant's RFC determination and provide the supporting
rationale for it. See Mascio, 780 F.3d at 636.
contends that the ALJ erred in assessing his RFC by ignoring
the purported incompatibility of the occasional stooping
limitation with medium work; improperly assessing plaintiffs
credibility; and not adequately accounting for evidence
substantiating plaintiffs allegations of disability. Each of
these grounds is examined in turn below.
contends that the ALJ erred by finding him able to perform
medium work because the ALJ limited him to occasional
stooping and, under Social Security Ruling 83-10, 1983 WL
31251, at *6 (1983), ...