United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
E. Gates, United States Magistrate Judge.
action, plaintiff Melvin Kimble ("plaintiff,"
"Kimble," or, in context, "claimant")
challenges the final decision of defendant Commissioner of
Social Security Andrew Saul ("Commissioner")
denying his applications for a period of disability and
disability insurance benefits ("DIB") and
Supplemental Security Income ("SSI") on the grounds
that he is not disabled. The case is before the court on the
parties' motions for judgment on the pleadings. D.E. 16,
18. Both filed memoranda in support of their respective
motions (D.E. 17, 19), and plaintiff filed a response (D.E.
21) to the Commissioner's motion. The motions were
referred to the undersigned magistrate judge for a memorandum
and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
See D.E. 20; 16 Jan. 2019 Text Ord. For the reasons
set forth below, it will be recommended that plaintiffs
motion be allowed, the Commissioner's motion be denied,
and this case be remanded for further administrative
filed an application for DIB and an application for SSI on 22
May 2014, alleging a disability onset date of 26 September
2012 in both. Transcript of Proceedings ("Tr.") 16.
The applications were denied initially and upon
reconsideration, and a request for a hearing was timely
filed. Tr. 16; 174-75. On 17 January 2017, a hearing was held
before an administrative law judge ("ALJ"), at
which plaintiff, represented by counsel, and a vocational
expert testified. Tr. 16; 32-72. The ALJ issued a decision
denying plaintiffs claims on 26 June 2017. Tr. 16-26.
timely requested review by the Appeals Council. Tr. 225. On
10 April 2018, the Appeals Council denied the request. Tr. 1.
At that time, the ALJ's decision became the final
decision of the Commissioner. 20 C.F.R. §§ 404.981,
416.1481. On 8 June 2018, plaintiff commenced this proceeding
for judicial review of the ALJ's decision, pursuant to 42
U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI).
See Compl. (D.E. 1).
Standards for Disability
Social Security Act ("Act") defines disability as
the "inability 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); see Id. § 1382c(a)(3)(A);
Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
"An individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy." 42 U.S.C. § 423(d)(2)(A); see
Id. § 1382c(a)(3)(B). The Act defines a physical or
mental impairment as "an impairment that results from
anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques." Id.
§§ 423(d)(3), 1382c(a)(3)(D).
disability regulations under the Act
("Regulations") provide a five-step analysis that
the ALJ must follow when determining whether a claimant is
To summarize, the ALJ asks at step one whether the claimant
has been working; at step two, whether the claimant's
medical impairments meet the [Regulations' severity and
duration requirements; at step three, whether the medical
impairments meet or equal an impairment listed in the
[Regulations; at step four, whether the claimant can perform
her past work given the limitations caused by her medical
impairments; and at step five, whether the claimant can
perform other work.
The first four steps create a series of hurdles for claimants
to meet. If the ALJ finds that the claimant has been working
(step one) or that the claimant's medical impairments do
not meet the severity and duration requirements of the
[Regulations (step two), the process ends with a finding of
"not disabled." At step three, the ALJ either finds
that the claimant is disabled because her impairments match a
listed impairment [i.e., a listing in 20 C.F.R. pt.
404, subpt. P, app. 1 ("the Listings")] or
continues the analysis. The ALJ cannot deny benefits at this
If the first three steps do not lead to a conclusive
determination, the ALJ then assesses the claimant's
residual functional capacity ["RFC"], which is
"the most" the claimant "can still do
despite" physical and mental limitations that affect her
ability to work. [20 C.F.R.] § 416.945(a)(1). To make
this assessment, the ALJ must "consider all of [the
claimant's] medically determinable impairments of which
[the ALJ is] aware," including those not labeled severe
at step two. Id. § 416.945(a)(2).
The ALJ then moves on to step four, where the ALJ can find
the claimant not disabled because she is able to perform her
past work. Or, if the exertion required for the
claimant's past work exceeds her [RFC], the ALJ goes on
to step five.
At step five, the burden shifts to the Commissioner 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.
§§ 416.920(a)(4)(v); 416.960(c)(2);
416.1429. The Commissioner typically offers
this evidence through the testimony of a vocational expert
responding to a hypothetical that incorporates the
claimant's limitations. If the Commissioner meets her
burden, the ALJ finds the claimant not disabled and denies
the application for benefits.
Mascio v. Colvin, 780 F.3d 632, 634-35 (4th Cir.
2015) (some bracketing original).
was 43 years old on the alleged disability onset date, and 47
years old on the date of the hearing and issuance of the
ALJ's decision. See, e.g., 37. Plaintiff
testified that he received a master's degree. Tr. 37. The
ALJ found that he has past relevant work as a warehouse
supervisor, computer programmer, counselor, and project
manager. Tr. 26 ¶ 6.
the five-step analysis of 20 C.F.R. §§
404.1520(a)(4) and 416.920(a)(4), the ALJ found at step one
that plaintiff had not engaged in substantial gainful
activity since the alleged disability onset date. Tr. 19
¶ 2. At step two, the ALJ found that plaintiff had the
following severe medically determinable impairments:
degenerative disc disease and osteoarthritis. Tr. 19 ¶
3. At step three, the ALJ found that plaintiff did not have
an impairment or combination of impairments that meets or
medically equals any of the Listings. Tr. 20-21 ¶ 4.
determined that plaintiff had the RFC to perform a limited
range of "light work":
After careful consideration of the entire record, the
undersigned finds the claimant has the [RFC] to perform light
work as defined in 20 CFR 404.1567(b) and 416.967(b),
except the claimant may stand for 30 minutes at a time, and
he may walk for 30 minutes at a time; he may stand and walk
for a total of 6 hours in an 8- hour day; the claimant may
sit for 1 hour at a time, for a total of 8 hours in an 8-hour
day; he must avoid concentrated exposure to hazards; the
claimant may occasionally reach overhead bilaterally; he may
frequently reach in all other directions bilaterally; the
claimant may frequently balance; he may frequently climb
stairs, and never climb ladders; and the claimant may lift
and carry 50 pounds occasionally and 25 pounds frequently.
Tr. 21 ¶ 5.
on his determination of plaintiff s RFC, the ALJ found at
step four that plaintiff was capable of performing his past
relevant work as a counselor, programmer, project manager,
and warehouse supervisor as generally performed. Tr. 25-26
¶ 6. The ALJ therefore concluded that plaintiff was not
disabled from the alleged disability onset date, 26 September
2012, through the date of his decision, 26 June 2017. Tr. 26
STANDARD OF REVIEW
42 U.S.C. §§ 405(g) and 1383(c)(3), judicial review
of the final decision of the Commissioner is limited to
considering whether the Commissioner's decision is
supported by substantial evidence in the record and whether
the appropriate legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971);
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Unless the court finds that the Commissioner's
decision is not supported by substantial evidence or that the
wrong legal standard was applied, the Commissioner's
decision must be upheld. See Smith v. Schweiker, 795
F.2d 343, 345 (4th Cir. 1986); Blalock v.
Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Perales, 402 U.S. at 401 (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). It is more than a scintilla of evidence, but
somewhat less than a preponderance. Id.
court may not substitute its judgment for that of the
Commissioner as long as the decision is supported by
substantial evidence. Hunter v. Sullivan, 993 F.2d
31, 34 (4th Cir. 1992) (per curiam). In addition, the court
may not make findings of fact, revisit inconsistent evidence,
or make determinations of credibility. See Craig v.
Chater,76 F.3d 585, 589 (4th Cir. 1996); King v.
Califano,599 F.2d 597, 599 (4th Cir. 1979). A
Commissioner's decision based on substantial ...