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Plemmons v. Berryhill

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

February 5, 2019

Robert D. Plemmons. Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II, United States Magistrate Judge.

         Plaintiff Robert D. Plemmons instituted this action in February 2018 to challenge the denial of his application for social security income. Plemmons claims that Administrative Law Judge (“ALJ”) Michael Hazel erred in (1) accepting the Vocational Expert's (“VE”) testimony because it conflicted with the Dictionary of Occupational Titles (“DOT”), (2) determining Plemmons's residual functional capacity (“RFC”), and (3) considering the opinion of his treating counselor. Both Plemmons and Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 12, 15.

         After reviewing the parties' arguments, the court has determined that ALJ Hazel erred in his determination. Although substantial evidence supports both his RFC determination and his consideration of the medical opinion evidence, ALJ Hazel's step five finding failed to resolve a conflict between the DOT and the VE's testimony. This issue warrants more consideration upon remand. Therefore, the undersigned magistrate judge recommends that the court grant Plemmons's motion, deny Berryhill's motion, and remand the matter to the Commissioner for further action.[1]

         I. Background

         In August 2014, Plemmons protectively applied for disability benefits alleging a disability that began in February 2010. After his claim was denied at the initial level and upon reconsideration, Plemmons appeared before ALJ Hazel for a hearing to determine whether he was entitled to benefits. ALJ Hazel determined Plemmons was not entitled to benefits because he was not disabled. Tr. at 25-37.

         ALJ Hazel found that Plemmons had many severe impairments: degenerative disc disease of the cervical spine with radiculopathy and spinal stenosis, cervical cord syrinx, osteoarthritis of the right knee, a post-concussive syndrome, with possible traumatic brain injury, cervicogenic and occipital headaches, a depressive disorder, an anxiety disorder, and possible personality disorder. Tr. at 27. ALJ Hazel found that Plemmons's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 28.

         ALJ Hazel then determined that Plemmons had the residual functional capacity to perform a range of sedentary work with limitations. Tr. at 31. Plemmons can lift and carry 20 pounds occasionally and ten pounds frequently. Id. He can stand or walk two hours and sit six hours in an eight-hour workday. Id. Plemmons can stand for 30 minutes at one time. Id. He can push and pull consistent with his lifting limitations. Id.

         Plemmons should never climb ladders or scaffolds but he can occasionally climb ramps or stairs. Id. He can occasionally stoop, kneel, crouch, or crawl. Id. Plemmons can occasionally rotate his neck to the left and right, he can occasionally look up and down, and he should only hold his head in one position for five minutes at one time. Id.

         Plemmons should also avoid exposure to operational control of moving machinery, unprotected heights, and hazardous machinery. Id. He is limited to simple, routine, repetitive tasks consistent with unskilled work. Id. Plemmons requires a work environment involving only occasional decision-making, occasional changes in the workplace setting, and no strict quota requirements. Id. Finally, Plemmons can occasionally interact with the public, coworkers, and supervisors. Id.

         ALJ Hazel concluded that Plemmons could not perform his past relevant work as a baggage checker or ticketing clerk. Tr. at 35. But ALJ Hazel determined that, considering his age, education, work experience, and RFC, there were other jobs existing in significant numbers in the national economy that Plemmons could perform. Tr. at 35-36. These include order clerk, surveillance system monitor, and document preparer. Tr. at 36. Thus, ALJ Hazel found that Plemmons was not disabled. Tr. at 37.

         After unsuccessfully seeking review by the Appeals Council, Plemmons started this action in February 2018. D.E. 5.

         II. Analysis

         A. Standard for Review of the Acting Commissioner's Final Decision

         When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).

         B. Standard for Evaluating Disability

         In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).

         C. Medical Background

         Plemmons was involved in a vehicle accident in 2013. Tr. at 56. Providers determined he suffered a concussion. Id. Plemmons also has a syrinx[2] in his neck which causes stiffness, pain, and difficulty in maintaining his neck in one position. Tr. at 53.

         In May and June 2013, Plemmons sought emergency department care for headaches and tinnitus. Tr. at 324. In August 2013, Dr. Sudhir Batchu examined Plemmons. Tr. at 394. Dr. Batchu noted that an MRI showed evidence of an external capsule/insular cortex cystic malacia. Id. A cervical MRI performed later that moth showed degenerative disc disease with a mild bulge and a syrinx of unknown etiology at ¶ 5 to C7. Tr. at 338. Dr. Batchu assessed syringomyelia and headaches. Tr. at 393.

         Plemons continued to experience headaches, neck pain, and back spasms. Tr. at 392. In September 2013, Dr. Batchu remarked that Plemmons was mildly depressed and adjusted his medications. Id. The next month, Plemmons was involved in another motor vehicle accident. Tr. at 391. He returned to Dr. Batchu in March 2014. Id. Dr. Batchu's examination showed depression as well as diminished reflexes in Plemmons's extremities. Id. Dr. Batchu assessed Plemmons with syringomyelia versus myelomalacia of the cord. Id. A repeat MRI showed cervical cord syrinx with no mass or abnormal enhancement. Tr. at 341. Dr. Batchu opined there was no significant change to the syrinx. Tr. at 389.

         Four months later, Dr. Prityi Rani performed a neurological evaluation of Plemmons. Tr. at 351. Aside from impaired sensation from T4-C4 up the mid-axillary line, Plemmons's neurological examination was normal. Tr. at 354.

         Later that month, Thomas Martin, Psy.D., conducted a neuropsychological evaluation of Plemmons. Tr. at 342. Dr. Martin assessed a cognitive disorder, a depressive disorder, and had to rule out an affective disorder and a personality disorder. Tr. at 346. He opined that testing suggested a decline in Plemmons's cognitive abilities inconsistent with a possible mild to moderate traumatic brain injury. Id. Dr. Martin also opined that Plemmons's cognitive and behavioral functioning may be sensitive to distress and he should avoid strenuous activities when in pain or fatigued. Tr. at 347. Dr. Martin also remarked that Plemmons should be provided support as needed, work at a comfortable pace, focus on one task at a ...


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