United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge.
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,
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.
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.
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.
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
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.
unsuccessfully seeking review by the Appeals Council,
Krawcheck began this action in August 2018. D.E. 1.
Standard for Review of the Acting Commissioner's Final
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).
Standard for Evaluating Disability
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).
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 ...