United States District Court, W.D. North Carolina, Charlotte Division
ROGER D. ARNOLD, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND RECOMMENDATION
CARLETON METCALF UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the parties' cross motions
for summary judgment (Docs. 11, 13). The Motions have been
referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B). The issues have been fully briefed, and the
matter is now ripe for ruling. Following a review of the
record, the parties' filings, and relevant legal
authority, the undersigned recommends that Plaintiff's
motion for summary judgment be granted and that the
Commissioner's motion for summary judgment be denied.
November 21, 2013, Plaintiff filed an application for
supplemental security income. (Transcript of Administrative
Record (“T.”) 20.) Plaintiff alleged disability
since January 1, 2012 but later amended his alleged onset
date to December 18, 2014. (T. 20.)
claim was denied initially on April 24, 2014, and upon
reconsideration on April 21, 2015. (T. 20.)
18, 2015, Plaintiff filed a written request for a hearing.
hearing was conducted on May 11, 2017. (T. 20.) Plaintiff
appeared in Charlotte, North Carolina, and Administrative Law
Judge (“ALJ”) John M. Dowling presided over the
hearing from St. Louis, Missouri. (T. 20.) Vocational Expert
(“VE”) Barry J. Brown also appeared at the
hearing. (T. 20.) At the time, Plaintiff was represented by
Lynne Sizemore, a non-attorney representative. (T. 20.)
16, 2017, the ALJ issued an unfavorable decision. (T. 20-32.)
On the same day, Plaintiff requested review of the ALJ's
decision. See (T. 1). Plaintiff's request was
denied on May 18, 2018. (T. 1-3.)
17, 2018, Plaintiff filed the instant action seeking review
of the Commissioner's final decision. See (Doc.
Standard for Determining Disability
individual is disabled for purposes of receiving disability
payments if he or she is unable to “engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A); accord
Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). The
Commissioner undertakes a five-step inquiry to determine
whether a claimant is disabled. Johnson v. Barnhart,
434 F.3d 650, 653 (4th Cir. 2005) (per curiam). Under the
five-step sequential evaluation, the Commissioner must
consider each of the following, in sequence: (1) whether the
claimant has engaged in substantial gainful employment; (2)
whether the claimant has a severe impairment; (3) whether the
claimant's impairment is sufficiently severe to meet or
exceed the severity of one or more of the listing of
impairments contained in Appendix I of 20 C.F.R. Part 404,
Subpart P; (4) whether the claimant can perform his or her
past relevant work; and (5) whether the claimant is able to
perform any other work considering his or her age, education,
and residual functional capacity (“RFC”). 20
C.F.R. § 416.920; Mastro, 270 F.3d at 177;
Johnson, 434 F.3d at 653 n.1.
first two steps of the sequential evaluation, the burden is
on the claimant to make the requisite showing. Monroe v.
Colvin, 826 F.3d 176, 179 (4th Cir. 2016). If a claimant
fails to satisfy his or her burden at either of these first
two steps, the ALJ will determine that the claimant is not
disabled, and the process comes to an end. Mascio v.
Colvin, 780 F.3d 632, 634-35 (4th Cir. 2015). The burden
remains on the claimant at step three to demonstrate that the
claimant's impairments satisfy a listed impairment and,
thereby, establish disability. Monroe, 826 F.3d at
claimant fails to satisfy his or her burden at step three,
however, then the ALJ must still determine the claimant's
RFC. Mascio, 780 F.3d at 635. After determining the
claimant's RFC, the ALJ proceeds to step four in order to
determine whether the claimant can perform his or her past
relevant work. Id. The burden is on the claimant to
demonstrate that he or she is unable to perform past work.
Monroe, 826 F.3d at 180. If the ALJ determines that
a claimant is not capable of performing past work, then the
ALJ proceeds to step five. Mascio, 780 F.3d at 635.
five, the ALJ must determine whether the claimant can perform
other work. Id. The burden rests with the
Commissioner at step five to prove by a preponderance of the
evidence that the claimant can perform other work that exists
in significant numbers in the national economy, considering
the claimant's RFC, age, education, and work experience.
Id.; Monroe, 826 F.3d at 180. Typically,
the Commissioner satisfies her burden at step five with the
testimony of a VE, who offers testimony in response to a
hypothetical question from the ALJ that incorporates the
claimant's limitations. Mascio, 780 F.3d at 635;
Monroe, 826 F.3d at 180. If the Commissioner
satisfies her burden at step five, then the ALJ will find
that the claimant is not disabled and deny the application
for disability benefits. Mascio, 780 F.3d at 635;
Monroe, 826 F.3d at 180.
The ALJ's Decision
June 16, 2017 decision, the ALJ found that Plaintiff was not
disabled under section 1614(a)(3)(A) of the Social Security
Act. (T. 20-32.) In support of this conclusion, the ALJ made
the following specific findings:
(1) The claimant has not engaged in substantial gainful
activity since November 21, 2013, the application date (20
C.F.R. § 416.971 et seq.).
(2) The claimant has the following severe impairments:
diabetes mellitus, hypertension, obesity, a learning
disorder, depression and anxiety (20 C.F.R. §
(3) The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925,
(4) The claimant has the RFC to perform medium work as
defined in 20 C.F.R. § 416.967(c), except he can
frequently climb ramps and stairs, but can only occasionally
climb ladders, ropes, and scaffolds. The claimant can perform
simple, routine tasks with only occasional interaction with
co-workers and the public.
(5) The claimant is capable of performing past relevant work
as a doffer. This work does not require the performance of
work-related activities precluded by the claimant's RFC
(20 C.F.R. § 416.965).
(6) In the alternative, considering the claimant's age,
education, work experience, and RFC, there are other jobs
that exist in significant numbers in the national economy
that the claimant can perform (20 C.F.R. §§
(7) The claimant has not been under a disability, as defined
in the Social Security Act, since November 21, 2013, the date
the application was filed (20 C.F.R. § 416.920(f)).
Standard of Review
42, United States Code, Section 405(g) provides that a
plaintiff may file an action in federal court seeking
judicial review of the Commissioner's denial of social
security benefits. Hines v. Barnhart, 453 F.3d 559,
561 (4th Cir. 2006). The scope of judicial review is limited
in that the district court “must uphold the factual
findings of the Secretary if they are supported by
substantial evidence and were reached through application of
the correct legal standard.” Craig v. Chater,
76 F.3d 585, 589 (4th Cir. 1996); accord Monroe, 826
F.3d at 186. “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Craig, 76 F.3d at 589
(internal quotation marks omitted). It is more than a
scintilla but less than a preponderance of evidence.
federal district court reviews the Commissioner's
decision, it does not “re-weigh conflicting evidence,
make credibility determinations, or substitute [its] judgment
for that of the Secretary.” Id. Accordingly,
the issue before the Court is not whether Plaintiff is
disabled but, rather, whether the Commissioner's decision
that he is not disabled is supported by substantial evidence
in the record, and whether the ALJ reached his decision based
on the correct application of the law. Id.
The ALJ evaluated Plaintiff's symptoms properly.
argues that the ALJ's reasons for finding that his
symptoms were less severe than alleged are not supported by
substantial evidence. Pl.'s Mem. (Doc. 12) at 19-20.
the regulations, “the determination of whether a person
is disabled by pain or other symptoms is a two-step
process.” Craig, 76 F.3d at 594; accord
Lewis v. Berryhill, 858 F.3d 858, 865-66 (4th Cir. 2017)
(citing 20 C.F.R. § 416.929(b)-(c)). In the first
step, the ALJ must determine that objective medical evidence
is present to demonstrate that a claimant has a medical
impairment that could reasonably be expected to produce the
symptoms alleged. 20 C.F.R. § 416.929(b).
the second step, the ALJ must evaluate the intensity and
persistence of the claimant's symptoms in order to
determine the extent to which they affect his ability to
work. Id. § 416.929(c). In doing so, the ALJ
must evaluate the claimant's statements regarding his
symptoms and their effects on his ability to perform work
activities. Id. § 416.929(c)(4). When the ALJ
finds the claimant's statements to be less than fully
credible, he must support this conclusion by identifying
those statements and explaining “how he decided which .
. . to believe and which to discredit.”
Mascio, 780 F.3d at 640.
Security Ruling (“SSR”) 16-3p eliminated the term
“credibility” because the regulations do not use
that term. 2016 WL 1119029, at * 1. The intent of
this change was to clarify that a subjective symptoms
evaluation is not meant to be an examination of a
claimant's character. Id. Consistent with the
regulations, ALJs are directed to consider all the evidence
found in an individual's record when evaluating the
intensity and persistence of symptoms. Id. at *2.
following factors from 20 C.F.R. § 416.929(c)(3) are
considered when evaluating intensity, persistence, and
limiting effects of an individual's symptoms:
(1) Daily activities;
(2) The location, duration, frequency, and intensity of pain
or other symptoms;
(3) Factors that precipitate and aggravate the symptoms;
(4) The type dosage, effectiveness, and side effects of any
medication an individual takes or has taken to alleviate pain
or other symptoms;
(5) Treatment, other than medication, an individual receives
or has received for relief of pain or other symptoms;
(6) Any measures other than treatment used to relieve pain or
other symptoms; and
(7) Any other factors concerning an individual's
functional limitations and restrictions caused by pain ...