United States District Court, E.D. North Carolina, Western Division
STEVEN D. SMITH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
E. GATES, UNITED STATES MAGISTRATE JUDGE
action, plaintiff Steven D. Smith ("plaintiff or, in
context, "claimant") challenges the final decision
of defendant Acting Commissioner of Social Security Nancy A.
Berryhill ("Commissioner") denying his application
for a period of disability and disability insurance benefits
("DIB") on the grounds that he is not disabled. The
case is before the court on the parties' motions for
judgment on the pleadings. D.E. 13, 15. Both filed memoranda
in support of their respective motions. D.E. 14, 16. 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 22 Oct. 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 remanded.
filed an application for DIB on 7 September 2016, alleging a
disability onset date of 15 July 2016. Transcript of
Proceedings ("Tr.") 12. The application was denied
initially and upon reconsideration, and a request for a
hearing was timely filed. Tr. 12. On 3 October 2017, a
hearing was held before an administrative law judge
("ALJ") at which plaintiff, who was represented by
counsel, and a vocational expert testified. Tr. 12, 30-55. On
27 November 2017, the ALJ issued a decision denying
plaintiffs application. Tr. 12-24.
timely requested review by the Appeals Council. Tr. 165. On
18 January 2018, the Appeals Council denied the request for
review. Tr. 1. At that time, the ALJ's decision became
the final decision of the Commissioner. 20 C.F.R. §
404.981. On 19 February 2018, plaintiff commenced
this proceeding for judicial review of the ALJ's
decision, pursuant to 42 U.S.C. § 405(g). See
Compl. (D.E. 1).
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); 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). 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).
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
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.
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.
§§ 4l6.92O(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 55 years old on the alleged disability onset date and 56
years old on the date of the hearing and issuance of the
ALJ's decision. Tr. 23 ¶ 7; 35. The ALJ found that
he has at least a high school education (Tr. 23 ¶
and past relevant work as a quality control coordinator and
pharmaceutical operator (Tr. 22 ¶ 6).
the five-step analysis of 20 C.F.R. § 404.1520(a)(4),
the ALJ found at step one that plaintiff had not engaged in
substantial gainful activity since 15 July 2016, the alleged
disability onset date. Tr. 14 ¶ 2. At step two, the ALJ
found that plaintiff had the following medically determinable
impairments that were severe within the meaning of the
Regulations: diabetes mellitus, hypertension, obstructive
sleep apnea, headaches, lumbar degenerative disc disease,
obesity, posttraumatic stress disorder, and major depressive
disorder. Tr. 14 ¶ 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. 15 ¶ 4.
next determined that plaintiff had the RFC to perform a
limited range of work at the medium exertional level, as
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform medium work as defined in 20
CFR 404.1567(c) except the claimant can frequently reach
overhead, frequently stoop, crouch, kneel, and crawl, can
perform simple, routine, and repetitive tasks, defined as
being able to apply common sense understanding to carry out
instructions furnished in written, oral, or diagrammatic form
and deal with problems involving several concrete variables
in or from standardized situations, can concentrate for two
hour increments with normal rest breaks, can have occasional
contact with co-workers and supervisors but cannot deal with
the public, is limited to non-production work, and is unable
to work at jobs requiring complex decision making, constant
change, or dealing with crisis situations.
Tr. 16 ¶5.
on her determination of plaintiff s RFC, the ALJ found at
step four that plaintiff was unable to perform his past
relevant work. Tr. 22 ¶ 6. At step five, citing the
testimony of the vocational expert, the ALJ found that there
were jobs in the national economy existing in significant
numbers that plaintiff could perform, including jobs in the
occupations of counter laundry worker, sweeper/cleaner, and
polisher. Tr. 23-24 ¶ 10. The ALJ accordingly concluded
that plaintiff was not disabled from the alleged disability
onset date, 15 July 2016, through the date of the decision,
27 November 2017. Tr. 24 ¶ 11.
STANDARD OF REVIEW
42 U.S.C. § 405(g), 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); Blalockv. 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.
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). 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.
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 Radford v.
Colvin, 734 F.3d 288, 295 (4th Cir. 2013).
OVERVIEW OF ...