United States District Court, E.D. North Carolina, Southern Division
B. Jones, Jr., United States Magistrate Judge
matter is before the court on the parties' cross-motions
for judgment on the pleadings [DE-35, -39] pursuant to
Fed.R.Civ.P. 12(c). Claimant Linda Bowman Pemberton
("Claimant") filed this action pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial
review of the denial of her application for a period of
disability and Disability Insurance Benefits
("DIB"). The time for filing responsive briefs has
expired, and 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,
pursuant to sentence four of § 405(g), for further
STATEMENT OF THE CASE
protectively filed an application for a period of disability
and DIB on April 25, 2014, alleging disability beginning May
1, 2013. (R. 17, 212-13). Her claim was denied initially and
upon reconsideration. (R. 17, 108-36). A hearing before the
Administrative Law Judge ("ALJ") was held on
November 10, 2016, at which Claimant, represented by counsel,
appeared and testified. (R. 17, 33-53). On April 19, 2017,
the ALJ issued a decision denying Claimant's request for
benefits. (R. 14-32). Claimant then requested a review of the
ALJ's decision by the Appeals Council (R. 210-11), and
she submitted additional evidence as part of her request (R.
54-105). The Appeals Council found that the new evidence did
not show a reasonable probability that it would change the
outcome of the decision, so it did not consider and exhibit
the evidence. (R. 2). The Appeals Council denied
Claimant's request for review on March 22, 2018. (R.
1-6). Claimant then filed a complaint in this court seeking
review of the now-final administrative decision.
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 Coffinan 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 Craig v.
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
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
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). This
regulatory scheme identifies four broad functional areas in
which the ALJ rates the degree of functional limitation
resulting from a claimant's mental impairments):
understanding, remembering, or applying information;
interacting with others; concentrating, persisting, or
maintaining pace; and adapting or managing oneself.
Id. § 404.1520a(c)(3). The ALJ is required to
incorporate into his written decision pertinent findings and
conclusions based on the "special technique."
case, Claimant alleges the following errors: (1) the RFC does
not adequately account for Claimant's migraines because
the ALJ erroneously discounted Claimant's testimony and i
improperly weighed the opinions of Dr. Ayman Gebrail and Dr.
Dewey Bridger, and (2) the ALJ erred in failing to consult a
vocational expert ("VE") at Step Five of the
sequential evaluation process. Pl's Mem. [DE-36] at 9-20.
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 May 1, 2013, the alleged
onset date. (R. 19). Next, the ALJ determined Claimant had
the following severe impairments: lupus and migraines.
Id. The ALJ also found Claimant had nonsevere
impairments of a thyroid disorder, hypertension, vertigo,
fibromyalgia, probable conversion disorder manifested as
bilateral upper extremity paresthesias and variable weakness,
major depressive disorder, and generalized anxiety disorder.
(R. 19-20). 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. (R.
21). Applying the technique prescribed by the regulations,
the ALJ found that Claimant's mental impairments have
resulted in a mild limitation in understanding, remembering,
or applying information; interacting with others;
concentrating, persisting, or maintaining pace; and adapting
or managing herself. (R. 20).
to proceeding to step four, the ALJ assessed Claimant's
RFC, finding Claimant had the ability to perform light
and that she could frequently climb ramps, stairs, ladders,
ropes, and scaffolds; frequently balance, stoop, kneel,
crouch, and crawl; and frequently reach overhead with the
bilateral upper extremities. The ALJ also limited Claimant to
understanding, remembering, and carrying out simple
instructions. In making this assessment, the ALJ found
Claimant's statements about the intensity, persistence,
and limiting effects of her symptoms not entirely consistent
with the medical and other evidence. (R. 24).
four, the ALJ concluded Claimant did not have the RFC to
perform the requirements of her past relevant work as an
office assistant and bookkeeper. (R. 27). Nonetheless, at
step five, upon considering Claimant's age, education,
work experience, and RFC, the ALJ determined Claimant is
capable of adjusting to the demands of other employment
opportunities that exist in significant numbers in the
national economy. (R. 27-28).
The RFC is supported by substantial evidence.
contends the ALJ failed to sufficiently account for her
migraines in the RFC. Pl's Mem. [DE-36] at 9-19. Claimant
argues that the RFC is not supported by substantial evidence
because Claimant's testimony, Dr. Bridger's opinion,
and Dr. Gebrail's opinion regarding ...