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Peck v. Berryhill

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

May 29, 2018

JESSICA PECK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          DENNIS L. HOWELL UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the parties' cross motions for summary judgment (# 11, 17). Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying her claim for disability benefits. The issues have been fully briefed, and the matter is now ripe for ruling. For the reasons set forth below, the Court recommends that Plaintiff's motion for summary judgment be denied and the Commissioner's motion for summary judgment be granted.

         I. Procedural History

         On September 13, 2012, Plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits. (Transcript of Administrative Record (“T.”) 19.) On September 20, 2012, Plaintiff also filed a Title XVI application for supplemental security income. (T. 19.) In both applications, Plaintiff alleged a disability onset date of March 1, 2008. (T. 19.)

         The Social Security Administration denied Plaintiff's claim initially on March 20, 2013. (T. 19.) The claims were denied upon reconsideration on August 5, 2013. (T. 19.) On September 12, 2013, Plaintiff filed a written request for a hearing. (T. 19.)

         On August 3, 2015 and May 13, 2016, video disability hearings were held before an Administrative Law Judge (“ALJ”).[1] (T. 19.) Dr. Jewel Euto and Daniel Turner appeared at the hearings, respectively, and served as the vocational expert (“VE”) at each hearing. (T. 19.) Plaintiff was informed of her right to representation, yet she chose to appear and testify without the assistance of an attorney or other representative. (T. 19.)

         On August 24, 2016, the ALJ issued a decision finding that Plaintiff was not disabled from March 1, 2008, through the date of her decision. (T. 19-34.) Plaintiff requested review of the ALJ's decision. (T. 9.) The Appeals Council denied Plaintiff's request for review. (T. 9-11.) On September 11, 2017, Plaintiff filed the instant action seeking review of the Commissioner's final decision. See Compl. (# 1)

         II. Standard for Determining Disability

         An individual is disabled for purposes of receiving disability payments if he or she is unable 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); accord Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). The Commissioner undertakes a five-step inquiry to determine whether a claimant is disabled. Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam). Under the five-step sequential evaluation, the Commissioner must consider each of the following, in order: (1) whether the claimant has engaged in substantial gainful employment; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment is sufficiently severe to meet or equal the severity of one or more of the listing of impairments contained in Appendix I of 20 C.F.R. Part 404, subpart P; (4) whether the claimant can perform his or her past relevant work; and (5) whether the claimant is able to perform any other work considering his or her age, education, and residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520, 416.920; Mastro, 270 F.3d at 177; Johnson, 434 F.3d at 653 n.1.

         At the first two steps of the sequential evaluation, the burden is on the claimant to make the requisite showing. Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016). If a claimant fails to satisfy his or her burden at either of these first two steps, the ALJ will determine that the claimant is not disabled and the process comes to an end. Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015). The burden remains on the claimant at step three to demonstrate that the claimant's impairments satisfy a listed impairment and, thereby, establish disability. Monroe, 826 F.3d at 179.

         If the claimant fails to satisfy his or her burden at step three, however, then the ALJ must still determine the claimant's RFC. Mascio, 780 F.3d at 635. After determining the claimant's RFC, the ALJ proceeds to step four in order to determine whether the claimant can perform his or her past relevant work. Id. The burden is on the claimant to demonstrate that he or she is unable to perform past work. Monroe, 826 F.3d at 180. If the ALJ determines that a claimant is not cable of performing past work, then the ALJ proceeds to step five. Mascio, 780 F.3d at 635.

         At step five, the ALJ must determine whether the claimant can perform other work. Id. The burden rests with the Commissioner at step five to prove by a preponderance of the evidence that the claimant is capable of performing other work that exists in significant numbers in the national economy, taking into account the claimant's RFC, age, education, and work experience. Id.; Monroe, 826 F.3d at 180. Typically, the Commissioner satisfies her burden at step five through the use of the testimony of a vocational expert (“VE”), who offers testimony in response to a hypothetical question from the ALJ that incorporates the claimant's limitations. Mascio, 780 F.3d at 635; Monroe, 826 F.3d at 180. If the Commissioner satisfies her burden at step five, then the ALJ will find that the claimant is not disabled and deny the application for disability benefits. Mascio, 780 F.3d at 635; Monroe, 826 F.3d at 180.

         III. The ALJ's Decision

         In her August 24, 2016, decision, the ALJ ultimately found that Plaintiff was not disabled under sections 216(i), 233(d), and 1614(a)(3)(A) of the Social Security Act. (T. 33-34.) In support of this conclusion, the ALJ made the following specific findings:

(1) The claimant meets the insured status requirements of the Social Security Act through March 31, 2012.
(2) The claimant has not engaged in substantial gainful activity since March 1, 2008, the alleged onset date (20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b), and 416.971 et seq.).
(3) The claimant has the following severe impairments: a history of polysubstance abuse; a bipolar affective disorder, not otherwise specified; a borderline personality disorder; a history of migraine headaches; obesity (220 pounds); generalized anxiety disorder; hypertension; a history of bicuspid aortic valve Wolf-Parkinson-White Syndrome; and degenerative disc disease of the lumbar spine with a history of disc herniation at ¶ 5-S1 (20 C.F.R. §§ 404.1520(c), 416.920(c)).
(4) Through January 1, 2016, the claimant's impairments, including the substance abuse disorder, met Medical Listing 12.09 for substance abuse disorders of 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 416.920(d)).
(5) If the claimant stopped the substance abuse, the remaining limitations would cause more than a minimal impact on her ability to perform basic work activities; thus, the claimant would continue to have a severe impairment or combination of impairments.
(6) If the claimant stopped the substance use/abuse, she would not have an impairment or combination of impairments that meets or medially equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 416.920(d)).[2]
(7) If the claimant stopped the substance use during the period from the alleged onset date of disability through January 1, 2016, and during the period after the claimant stopped substance abuse as of January 1, 2016, the claimant would have (before January 1, 2016) and has (as of January 1, 2016), the RFC to perform a range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), except she can occasionally lift and/or carry ten pounds and frequently lift and/or carry less than ten pounds. She can stand and/or walk in combination, with normal breaks, for at least two hours during an eight-hour workday and she can sit, with normal breaks, for up to eight hours during an eight-hour workday. The claimant can occasionally climb ramps and stairs and should never climb ladders, ropes, or scaffolds. The claimant can frequently balance and occasionally stoop, kneel, crouch and/or crawl. She can frequently perform fine and gross manipulation with her hands bilaterally. She should avoid concentrated exposure to extreme hot and cold and working in areas of vibration. The claimant should avoid exposure to industrial hazards including working at unprotected heights, working in close proximity to moving dangerous machinery, and the operation of motorized vehicles and equipment. She can perform simple routine tasks requiring no more than short simple instructions and simple work-related decision-making with few workplace changes. She can have occasional interactions with co-workers and supervisors and no interactions with members of the general public.
(8) Even if the claimant stopped the substance use, she would not be able to perform her past relevant work (20 C.F.R. §§ 404.1565, 416.965).[3]
(9) The claimant was born on May 16, 1979, and she was 28 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 ...

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