United States District Court, E.D. North Carolina, Western Division
DEBRA Y. LOCKLEAR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
E. GATES UNITED STATES MAGISTRATE JUDGE
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. 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.
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.
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).
Standards for Disability
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).
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
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.
§§ 4l6.920(a)(4)(v); 416.960(c)(2); 416.1429J
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.
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.
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.
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)  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.
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
II. STANDARD OF REVIEW
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.
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
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).
Overview of Plaintiffs Contentions
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.
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. §§
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.
ALJ's Findings on ...