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Kersey v. Berryhill

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

June 3, 2019

JULRJS ALEXANDER KERSEY, Plaintiff/Claimant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Plaintiffs motion for judgment reversing or modifying the Commissioner's decision [DE-13] pursuant to 42 U.S.C. § 405(g) and Defendant's motion for judgment on the pleadings [DE-15] pursuant to Fed.R.Civ.P. 12(c). Claimant Julius Alexander Kersey ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for Supplemental Security Income ("SSI") payments. Claimant responded to Defendant's motion [DE-18], 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, it is recommended that Claimant's motion for judgment reversing or modifying the Commissioner's decision be allowed, Defendant's motion for judgment on the pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.

         I. STATEMENT OF THE CASE

         Claimant protectively filed an application for SSI on August 31, 2011, alleging disability beginning August 31, 2011. (R. 291, 431-39). His claim was denied initially and upon reconsideration. (R. 252-87). A hearing before the Administrative Law Judge ("ALJ") was held on August 5, 2013, at which Claimant, represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 175-226, 291). On October 16, 2013, the ALJ issued a decision denying Claimant's request for benefits. (R. 288-304). On March 30, 2015, the Appeals Council remanded the claim to the ALJ for further administrative proceedings. (R. 305-09).

         A second administrative hearing before a different ALJ was held on February 6, 2017, at which Claimant, represented by counsel; Dr. Ronald Devere, M.D., an impartial neurological medical expert; and a vocational expert ("VE") appeared and testified. (R. 21, 47-115). On July 5, 2017, the ALJ issued a decision denying Claimant's claim. (R. 18-43). Claimant then requested a review of the ALJ's decision by the Appeals Council (R. 428-30), and he submitted additional evidence as part of his request (R. 116-74). The Appeals Council found that the additional 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. 8). The Appeals Council denied Claimant's request for review on May 14, 2018. (R. 7-12). Claimant then filed a complaint in this court seeking 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 Coffinan v. Bowen, 829 E2d 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, 16 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. § 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. § 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 impairments): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 416.920a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 416.920a(e)(3).

         In this case, Claimant alleges the ALJ: (1) failed to consider the results of electromyography ("EMG") testing; (2) improperly weighed the medical opinions; and (3) failed to order a consultative medical examination. Pl.'s Mem. [DE-14] at 5-13.

         IV. ...


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