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Locklear v. Berryhill

United States District Court, E.D. North Carolina, Western Division

June 8, 2018

DEBRA Y. LOCKLEAR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          JAMES E. GATES UNITED STATES MAGISTRATE JUDGE

         In this action, plaintiff Debra Y. Locklear ("plaintiff or, in context, "claimant") challenges the final decision of defendant Acting Commissioner of Social Security Nancy A. Berryhill ("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.[1] The case is before the court on the parties' motions for judgment on the pleadings. D.E. 16, 18. Both filed memoranda in support of their respective motions. D.E. 17, 19. 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 27 Nov. 2017 Text Ord. For the reasons set forth below, it will be recommended that plaintiffs motion be allowed, the Commissioner's motion be denied, and this case be remanded.

         I. BACKGROUND

         A. Case History Plaintiff filed applications for DIB and SSI on 21 May 2014, alleging a disability onset date of 4 May 2014. Transcript of Proceedings ("Tr.") 20. The applications were denied initially and upon reconsideration, and a request for a hearing was timely filed. Tr. 20. On 26 September 2014, a hearing was held before an administrative law judge ("ALJ"), at which plaintiff, represented by counsel, and a vocational expert testified. Tr. 35-87. The ALJ issued a decision denying plaintiffs claims on 23 December 2016. Tr. 20-29. Plaintiff requested review by the Appeals Council. See Tr. 14. On 13 March 2017, it denied the request. Tr. 1-4.

         At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. On 11 May 2017, plaintiff commenced this proceeding for judicial review of the ALJ's decision, pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI). See In Forma Pauperis ("IFP") Mot. (D.E. 1); Order Allowing IFP Mot. (D.E. 5); Compl. (D.E. 6).

         B. Standards for Disability

         The Social Security Act ("Act") defines disability as the "inability to engage in any substantial gainful activity ["SGA"] 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. § l382c(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. § l382c(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." 42 U.S.C. §§ 423(d)(3), l382c(a)(3)(D).

         The disability regulations under the Act ("Regulations") provide a five-step analysis that the ALJ must follow when determining whether a claimant is disabled:

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).[2] 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). [3]
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. §§ 4l6.920(a)(4)(v); 416.960(c)(2); 416.1429J [4] 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. 2015).

         C. ALJ's Findings

         The birthdate of record for plaintiff shows that she was 52 years old on the alleged onset date of disability and 55 years old on the date of the hearing. See, e.g., Tr. 204. Plaintiff testified that the highest level of education she achieved was graduation from high school. Tr. 48. The ALJ found that plaintiff had past relevant work as a companion, cleaner, and painter. Tr. 28-29 ¶ 6.

         Applying 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 SGA since the date of alleged onset of disability, 4 May 2014. Tr. 22 ¶ 2. At step two, the ALJ found that plaintiff had the following medically determinable impairments that were severe within the meaning of the Regulations: chronic obstructive pulmonary disease, asthma, peripheral vascular disease with claudication, venous insufficiency/varicose veins, ischemic coronary artery disease (non-obstructive), and degenerative disc disease of the lumbar spine. Tr. 22-23 ¶ 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. 23¶4.

         The ALJ 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 light work as defined in 20 CFR 404.1567(b) and 416.967(b) [5] except the claimant can occasionally climb ramps, stairs, ladders, ropes, or scaffolds. She can occasionally balance, stop, kneel, crouch, and crawl. The claimant can have occasional exposure to unprotected heights; moving mechanical parts; dusts, odors, fumes, and pulmonary irritants; and extreme heat and cold.

Tr. 24-25 ¶ 5.

         Based on her determination of plaintiff s RFC, the ALJ found at step four that plaintiff was able to perform her past relevant work as a companion and cleaner. Tr. 28 ¶ 6. She therefore concluded that plaintiff was not disabled from the date of the alleged onset of disability, 4 May 2014, through the date of the decision, 23 December 2016. Tr. 29 ¶ 7.[6]

II. STANDARD OF REVIEW

         Under 42 U.S.C. §§ 405(g) and 1383(c)(3), 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 (4th Cir. 1972). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Perales, 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. Id.

         The 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) (per curiam). 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.

         Before 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 Radfordv. Colvin, 734 F.3d 288, 295 (4th Cir. 2013).

         III. DISCUSSION

         A. Overview of Plaintiffs Contentions

         Plaintiff contends that the ALJ's decision should be reversed and this case remanded for a new hearing on the grounds that the ALJ erred in failing to explain the omission from her RFC determination of the limitation that plaintiff must elevate her legs when nonambulatory and finding that her past relevant work included jobs as a cleaner and companion. Because the court finds that the ALJ's determination regarding the cleaner and companion jobs is dispositive of this appeal, its analysis will focus on this issue.[7]

         B. Applicable Law

         The Regulations define past relevant work as."work that you have done within the past 15 years, that was [SGA], and that lasted long enough for you to learn to do it." 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1); see generally Soc. Sec. Ruling 82-62, 1982 WL 31386 (1982). SGA is work activity that "involves doing significant physical or mental activities" (i.e., is substantial) and "is the kind of work usually done for pay or profit" (i.e., is gainful). 20 C.F.R. §§ 404.1572(a), (b); 416.972(a), (b). Work activity for which a claimant receives average monthly earnings that exceed an amount specified by the Social Security Administration pursuant to the Regulations will ordinarily be deemed SGA. See 20 C.F.R. §§ 404.1574(b)(1), (2)(ii)(B); 416.974(b)(1), (2)(ii)(B). Conversely, work activity for which a claimant does not receive earnings above that amount will ordinarily be deemed not to be SGA. See 20 C.F.R. §§ 404.1574(b)(3), 416.974(b)(3).

         "The claimant is the primary source for vocational documentation, and statements by the claimant regarding past work are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work." Soc. Sec. Ruling 82-62, 1982 WL 31386, at *3 (1982). The ALJ may also use the services of a vocational expert, among other sources. 20 C.F.R. §§ 404.1560(b)(2), 416.960(b)(2). "The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision." Soc. Sec. Ruling 82-62, 1982 WL 31386, at *3.

         C. ALJ's Findings on ...


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