United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge.
action, plaintiff DeEtta Hobbs ("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. 17,
22. Each party filed a memorandum in support of its motion.
D.E. 18, 23. 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 19 Mar. 2018
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
protectively filed applications for DIB and SSI on 16 January
2014, alleging a disability onset date of 11 November 2013.
Transcript of Proceedings ("Tr.") 13. The
applications were denied initially and upon reconsideration,
and a request for a hearing was timely filed. Tr. 13. On 18
July 2016, a hearing was held before an ALJ, at which the
witnesses were plaintiff, who was represented by counsel, and
a vocational expert. Tr. 32-62. At the hearing, plaintiff
amended her alleged onset date to 2 August 2014. Tr. 13, 36,
518. The ALJ issued a decision denying plaintiff s claims on
31 August 2016. Tr. 13-26.
timely requested review by the Appeals Council and on 16 June
2017, the Appeals Council denied the request for review. Tr.
1. At that time, the decision of the ALJ became the final
decision of the Commissioner. 20 C.F.R. §§ 404.981,
416.1481. On 12 July 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 Mot. to Proceed In Forma
Pauperis ("IFP") (D.E. 3) (12 July 2017); Ord.
Allowing IFP Mot. (D.E 6) (17 July 2017); Comp. (D.E. 7) (17
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); see Id. § 1382c(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. § 1382c(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." Id.
§§ 423(d)(3), 1382c(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 [Regulations' severity and
duration requirements; at step three, whether the medical
impairments meet or equal an impairment listed in the
[Regulations; 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
[Regulations (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.
§§ 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 for benefits.
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir.
was 48 years old on the alleged onset date of disability and
50 years old on the date of the hearing. Tr. 63, 95.
Plaintiff testified that she works part time and attends
community college. Tr. 18 ¶ 4; 19 ¶ 5; 38-40. The
ALJ found that she has past relevant work as an executive
secretary, receptionist, cashier, and property manager. Tr.
25-26 ¶ 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 substantial gainful
activity since the amended alleged disability onset date. Tr.
15 ¶ 2. At step two, the ALJ found that plaintiff has
the severe impairments of multiple sclerosis, spine
disorders, and obesity. Tr. 15 ¶ 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. 17 ¶ 4.
next found that plaintiff has the RFC to perform a limited
range of sedentary work:
After careful consideration of the entire record, the
undersigned finds that the claimant has the [RFC] to perform
less than sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a). She can lift, carry, push and pull
10 pounds occasionally; stand and/or walk two hours in an
eight-hour workday; sit six hours in an eight-hour workday;
frequently climb ramps and stairs; never climb ladders,
ropes, or scaffolds; and frequently balance, stoop, kneel,
crouch, and crawl. She can never be exposed to unprotected
heights and can occasionally be exposed to moving mechanical
Tr. 18-19 ¶ 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 an executive secretary and receptionist. Tr.
25-26 ¶ 6. The ALJ accordingly concluded that plaintiff
was not disabled from the amended alleged disability onset
date, 2 August 2014, through the date of the decision, 31
August 2016. Tr. 26 ¶ 7.
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." DeLoat ...