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Stewart v. Berryhill

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

February 20, 2019

RANDY STEWART, Plaintiff/Claimant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Robert B. Jones, Jr. United States Magistrate Judge

         This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-26, -30] pursuant to Fed.R.Civ.P. 12(c). Claimant Randy Stewart ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his applications for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") payments. Claimant responded to Defendant's motion, [DE-32], and the time for filing a reply has expired. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, Claimant's Motion for Judgment on the Pleadings is allowed, Defendant's Motion for Judgment on the Pleadings is denied, and the case is remanded to the Commissioner for further proceedings.

         I. STATEMENT OF THE CASE

         Claimant protectively filed ah application for a period of disability, DIB, and SSI on December 3, 2008, alleging disability beginning September 3, 2008. (R. 11, 116-28). Both claims were denied initially and upon reconsideration. (R. 48-58). A hearing before Administrative Law Judge ("ALJ") Richard Perlowski was held on December 20, 2010, at which Claimant, represented by counsel; a witness; and a vocational expert ("VE") appeared and testified. (R. 21-47, 1951-77). On January 26, 2011, ALJ Perlowski issued a decision denying Claimant's request for benefits. (R. 8-20, 1910-22). The Appeals Council denied Claimant's request for review on July 10, 2012. (R. 1-6, 1978-83). Claimant appealed to the United States District Court for the Eastern District of North Carolina, and on August 22, 2013, United States Magistrate Judge Webb authored a Memorandum and Recommendation finding error in ALJ Perlowski's discussion of Claimant's depression and his credibility. (R. 1872-1902). On September 6, 2013, the United States District Court adopted Judge Webb's Memorandum and Recommendation and remanded the case to the Commissioner. (R. 1866-67). On January 10, 2014, the Appeals Council remanded the case to ALJ Perlowski, noting that in a subsequent application, Claimant was found disabled with an onset date of February 1, 2013. (R. 1905-09). The remaining issue was whether Claimant was disabled from September 3, 2008 to February 1, 2013. Id. A second hearing before ALJ Perlowski was held on May 12, 2014. (R. 1844-65). ALJ Perlowski issued a decision again denying Claimant's request for benefits on September 5, 2014. (R. 1923-44). OnApril 22, 2016, the Appeals Council remanded the claim to a different ALJ. (R. 1945-50). A hearing before ALJ Larry Miller was held on October 18, 2016. (R. 1816-43). On December 9, 2016, ALJ Miller issued a decision denying Claimant's request for benefits. (R. 1789-1815). On January 10, 2018, the Appeals Council denied Claimant's request for review of ALJ Miller's administrative decision. Pl.'s Mem. [DE-27] at 2-3; Def's Mem. [DE-31] at 2. Claimant then commenced the instant action, seeking judicial review of the now-final administrative decision.

         II. STANDARD OF REVIEW

         The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craigv. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).

         III. DISABILITY EVALUATION PROCESS

         The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. §§ 404.1520 and 416.920 under which the ALJ is to evaluate a claim:

The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.

Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.

         When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. §§ 404.1520a(b)-(c) and 416.920a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): activities of daily living; social functioning; concentration, persistence or pace; and episodes of decompensation. Id. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. §§ 404.1520a(e)(3), 416.920a(e)(3).

         In this case, Claimant alleges the following errors: (1) the ALJ failed to perform a function-by-function assessment of Claimant's ability to use his left upper extremity, (2) the ALJ failed to consider a medical opinion, (3) the ALJ improperly weighed a medical opinion, and (4) the ALJ's appointment did not comply with the Appointments Clause. PI. 's Mem. [DE-27] at 9-19.

         IV. ALJ'S FINDINGS

         Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since September 3, 2008. (R. 1795). Next, the ALJ determined Claimant had the following severe impairments during the period in question: history of an abdominal aortic aneurysm, chronic kidney disease, hypertension, major depressive disorder, generalized anxiety disorder, cognitive disorder, degenerative disc disease, and left carpal tunnel syndrome. Id. However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in a mild restriction in activities of daily living; moderate difficulties in social functioning; moderate difficulties with regard to maintaining concentration, persistence, or pace; and no episodes of decompensation. (R. 1796).

         Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform a reduced range of sedentary work.[1] (R. 1797-1806). He could frequently perform tasks requiring fingering and handling with the left upper extremity; he could occasionally balance on narrow, slippery, or moving surfaces; he could occasionally climb ramps and stairs, stoop, crouch, kneel, and crawl; he could never climb ladders, ropes, or scaffolds; he could not work at heights or around dangerous machinery; he could only do simple, routine, and repetitive tasks; he could concentrate for two-hour increments with normal rest breaks; he could occasionally deal with coworkers, supervisors, and the public; he was unable to work at a production rate; and he was unable to work at jobs requiring complex decision making, constant change, or dealing with crisis situations. Id. In making this assessment, the ALJ found Claimant's statements concerning the intensity, persistence, and limiting effects of his symptoms not entirely consistent with the medical and other evidence. (R. 1799).

         At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work as an auto car wash attendant and hand packager. (R. 1806). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant was capable of adjusting to the demands of other employment ...


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