United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM AND RECOMMENDATION
B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
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.
STATEMENT OF THE CASE
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.
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.
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 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).
DISABILITY EVALUATION PROCESS
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
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).
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.