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Krawcheck v. Saul

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

July 16, 2019

Kenneth Krawcheck, Plaintiff,
v.
Andrew Saul, Commissioner of Social Security, Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge.

         Plaintiff Kenneth Krawcheck instituted this action in August 2018 to challenge the denial of his application for social security income. Krawcheck claims that Administrative Law Judge (“ALJ”) Tammy Georgian erred in evaluating the medical opinion evidence. Krawcheck also challenges ALJ Georgian's authority to issue a decision under the Appointments Clause. Both Krawcheck and Defendant Andrew Saul, Commissioner of Social Security, have filed motions seeking a judgment on the pleadings in their favor. D.E. 11, 17.

         After reviewing the parties' arguments, the court has determined that ALJ Georgian erred in her determination. Substantial evidence does not support ALJ Georgian's decision to assign no weight to the opinion of Krawcheck's treating provider. And Krawcheck's Appointments Clause argument establishes a basis for remand. The undersigned magistrate judge therefore recommends that the court grant Krawcheck's motion, deny the Commissioner's motion, and remand the matter to the Commissioner's for further consideration.[1]

         I. Background

         In July 2014, Krawcheck applied for disability benefits alleging a disability that began in July 2012. After his claim was denied at the initial level and upon reconsideration, Krawcheck appeared at a hearing before ALJ Georgian to determine whether he was entitled to benefits. ALJ Georgian determined that Krawcheck was not entitled to benefits because he was not disabled. Tr. at 17-28.

         ALJ Georgian found that Krawcheck had severe impairments of lumbar degenerative disc disease and chronic narcotic use. Tr. at 19. ALJ Georgian concluded that Krawcheck's impairments, alone or in combination, did not meet or equal a Listing impairment. Tr. at 21.

         ALJ Georgian determined that Krawcheck had the residual functional capacity (“RFC”) to perform a reduced range of light work. Id. He can frequently sit, stand, and walk. Id. Krawcheck can frequently climb ramps and stairs but he can never climb ladders, ropes, or scaffolds. Id. And he can frequently stoop, kneel, crouch, and crawl. Id. Finally, Krawcheck must avoid workplace hazards such as unprotected heights and moving machinery. Id.

         ALJ Georgian concluded that Krawcheck could perform his past relevant work as an attorney. Tr. at 26-27. Alternatively, considering his age, education, work experience, and RFC, ALJ Georgian found that other jobs existed in significant numbers in the national economy that Krawcheck could perform. Tr. at 27. These include questioned document examiner and title searcher at the semi-skilled, light level; hand packer/inspector, counter clerk, and furniture rental consultant at the unskilled, light level; and order clerk, telephone information clerk, and call out operator at the unskilled, sedentary level. Tr. at 28. Thus, ALJ Georgian found that Krawcheck was not disabled. Id.

         After unsuccessfully seeking review by the Appeals Council, Krawcheck began this action in August 2018. D.E. 1.

         II. Analysis

         A. Standard for Review of the Acting Commissioner's Final Decision

         When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). If the Commissioner's decision is supported by such evidence, it must be affirmed. Krawcheck v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).

         B. Standard for Evaluating Disability

         In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The analysis requires the ALJ to consider the following enumerated factors sequentially. At step one, if the claimant is currently engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is conclusively presumed. However, if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).

         C. Medical Background

         Krawcheck has a history of back pain. A March 2009 MRI of his lumbar spine showed degenerative disc disease with disc bulging and moderate facet degenerative joint disease contributing ...


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