United States District Court, E.D. North Carolina, Western Division
B. Jones, Jr. United States Magistrate Judge
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.
STATEMENT OF THE CASE
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
STANDARD OF REVIEW
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).
DISABILITY EVALUATION PROCESS
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
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
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. §§
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.
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).
to proceeding to step four, the ALJ assessed Claimant's
RFC, finding Claimant had the ability to perform a reduced
range of sedentary work. (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.
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