United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
E. GATES, UNITED STATES MAGISTRATE JUDGE.
action, plaintiff Lauren Marie Griffin
(“plaintiff” or, in context,
“claimant”) challenges the final decision of
defendant Acting Commissioner of Social Security Nancy A.
Berryhill (“Commissioner”) denying her
application for Supplemental Security Income
(“SSI”) on the grounds that she is not disabled.
The case is before the court on the parties' motions for
judgment on the pleadings. D.E. 22, 24. Both filed memoranda
in support of their respective motions. D.E. 23, 25. 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 26 Jan. 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
filed an application for SSI on 10 October 2008, alleging a
disability onset date of 15 September 2008. Transcript of
Proceedings (“Tr.”) 504. The application was
denied initially and upon reconsideration, and a request for
hearing was timely filed. Tr. 504. On 4 August 2010, a video
hearing (“2010 hearing”) was held before an
administrative law judge (“ALJ”), at which
plaintiff, who was represented by counsel, and a vocational
expert testified. Tr. 43-72, 504. The ALJ issued a decision
denying plaintiff's claim on 9 September 2010
(“2010 decision”). Tr. 28-37.
requested review by the Appeals Council, but it issued an
order denying review on 3 July 2012 (Tr. 1-6, 596-601
(duplicate)). Tr. 504. The ALJ's decision thereby became
the final decision of the Commissioner. See 20
C.F.R. § 416.1481. On 6 September 2012, plaintiff
appealed this decision to this court. See Griffin v.
Colvin, 7:12-CV-259-D (E.D. N.C. ). On 24 February 2014,
the court entered an order (Tr. 645-46) and judgment (Tr.
644) adopting the memorandum and recommendation (Tr. 647-56)
on the 2010 decision and remanding the case for proper
explanation of the weight accorded the various medical source
opinions in the case. Tr. 504.
meantime, on 8 August 2012, plaintiff filed an additional
application for SSI, alleging a disability onset date of 7
August 2012. Tr. 504. This claim was denied initially and
upon reconsideration. Tr. 504.
March 2015, pursuant to this court's decision, the
Appeals Council issued an order (Tr. 661-62) vacating the
2010 decision and remanding this case to an ALJ for further
proceedings consistent with the court's ruling. Tr. 504.
The Appeals Council's order also directed the ALJ to
consolidate the claims files and issue a new decision on the
consolidated claims. Tr. 504, 661.
to this remand, an ALJ different from the one who held the
2010 hearing conducted a video hearing on 7 April 2016. Tr.
504, 541-77. Plaintiff, who was again represented by counsel,
and a vocational expert testified. Tr. 504. On 22 December
2016, the ALJ issued a decision denying plaintiff's
claim. Tr. 504-29.
did not seek review by the Appeals Council, it did not
otherwise assume jurisdiction, and the ALJ's decision
thereby became the final decision of the Commissioner.
See 20 C.F.R. § 416.1484(d). Plaintiff
commenced this proceeding for judicial review of that
decision on 21 April 2017, pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3). See Mot. to Proceed In
Forma Pauperis (D.E. 1); Ord. Allowing Mot. (D.E. 4);
Compl. (D.E. 5).
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 twelve months.” 42 U.S.C.
§ 1382c(a)(3)(A); see Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995). 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.” 42 U.S.C. §
1382c(a)(3)(D). “[A]n 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 . . . .” Id. (a)(3)(B).
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 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. § 416.945(a)(2).
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
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir.
was 23 years old on the date she filed her application for
SSI, 10 October 2008, and 30 years old on the date of the
hearing on 7 April 2016. See Tr. 528 ¶ 6. The
ALJ found that plaintiff has a marginal
education (Tr. 528 ¶ 7) and no past
relevant work (Tr. 528 ¶ 8).
the five-step analysis of 20 C.F.R. § 416.920(a)(4), the
ALJ found at step one that plaintiff had not engaged in
substantial gainful activity since the application date. Tr.
507 ¶ 1. At step two, the ALJ found that plaintiff had
the following medically determinable impairments that were
severe within the meaning of the Regulations:
history of alcohol abuse; bipolar disorder; attention deficit
hyperactivity disorder (ADHD); generalized anxiety disorder;
oppositional defiant disorder (ODD); borderline personality
disorder; degenerative disc disease; scoliosis; asthma;
migraines; and right ear hearing loss . . . .
Tr. 507 ¶ 2. 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, including
specifically Listing 12.04 for affective disorders. Tr.
507-11 ¶ 3.
next determined that plaintiff had the RFC to perform a
limited range of light work:
After careful consideration of the entire record, I find that
the claimant has the [RFC] to perform a range of light work
as defined in 20 CFR 416.967(b). The claimant is capable of
lifting and/or carrying 20 pounds occasionally and 10 pounds
frequently. She is capable of standing and/or walking at
least 6 hours in an 8-hour workday and sitting about 6 hours
in an 8-hour workday. She can never climb ladders, ropes and
scaffolds; frequently climb ramps and/or stairs, balance,
kneel and crawl, and occasionally stoop and crouch. She must
avoid concentrated exposure to noise, fumes, odors, dusts,
gases and other respiratory irritants, and workplace hazards.
She is limited to unskilled work defined as performing
simple, routine and/or repetitive tasks. She is further
limited to no production pace work (e.g., assembly line) but
can perform goal oriented work (e.g. cleaner). She can have
no ongoing interaction with the public and no team-type
interaction with coworkers but incidental contact is allowed.
Tr. 511-12 ¶ 4.
found at step four that plaintiff has no past relevant work.
Tr. 528 ¶ 5. At step five, the ALJ accepted the
testimony of the vocational expert and found that there were
jobs in the national economy existing in significant numbers
that plaintiff could perform, including jobs in the
occupations of laundry garment bagger and garment sorter. Tr.
528-29 ¶ 9. The ALJ accordingly concluded that ...