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Pemberton v. Berryhill

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

May 13, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          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-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 proceedings.


         Claimant 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.


         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 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).


         The 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 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). 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." Id. §404.1520a(e)(3).

         In this 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.


         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 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).

         Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work[1] 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).

         At step 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).

         V. DISCUSSION

         A. The RFC is supported by substantial evidence.

         Claimant 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 ...

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