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Miller v. Colvin

United States District Court, S.D. West Virginia, Huntington Division

January 6, 2017

SCOTT ANTHONY MILLER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION

          Cheryl A. Eifert United States Magistrate Judge

         This is an action seeking review of the decision of the Commissioner of the Social Security Administration (hereinafter the “Commissioner”) denying Plaintiff's application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. The case is presently before the court on the parties' motions for judgment on the pleadings as articulated in their briefs. (ECF Nos. 11, 12). Both parties have consented in writing to a decision by the United States Magistrate Judge. (ECF Nos. 7, 8). The court has fully considered the evidence and the arguments of counsel. For the reasons that follow, the court FINDS that the decision of the Commissioner is not supported by substantial evidence, and therefore should be REVERSED and REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this opinion.

         I. Procedural History

         In July 2012, Plaintiff Scott Anthony Miller (“Claimant”) completed applications for DIB and SSI alleging a disability onset date of July 1, 2010 due to “Problems with back, neck and shoulders, learning disability.” (Tr. at 188, 212). The Social Security Administration (“SSA”) denied the applications initially and upon reconsideration. (Tr. at 101-10, 114-27). Claimant filed a request for a hearing, which was held on April 7, 2014 before the Honorable Toby J. Buel, Sr., Administrative Law Judge (“ALJ”). (Tr. at 27-71). By written decision dated May 13, 2014, the ALJ determined that Claimant was not entitled to benefits. (Tr. at 11-21). The ALJ's decision became the final decision of the Commissioner on October 9, 2015 when the Appeals Council denied Claimant's request for review. (Tr. at 1-6).

         On November 24, 2015, Claimant filed the present civil action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The Commissioner filed an Answer and a Transcript of the Proceedings on January 27, 2016. (ECF Nos. 9, 10). Thereafter, the parties filed their briefs in support of judgment on the pleadings. (ECF Nos. 11, 12). The time period for the filing of a reply has expired. Accordingly, this matter is fully briefed and ready for disposition.

         II. Claimant's Background

         Claimant was 38 years old at the time of his alleged onset of disability and 43 years old at the time of the ALJ's decision. (Tr. at 20, 188). He completed the 12th grade in special education classes and communicates in English. (Tr. at 33, 212, 321). Claimant previously worked as a golf course landscaper. (Tr. at 34-35, 213).

         III. Summary of ALJ's Findings

         Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). A disability is defined 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).

         The Social Security Regulations establish a five step sequential evaluation process for the adjudication of disability claims. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). First, the ALJ determines whether a claimant is currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). Second, if the claimant is not gainfully employed, then the inquiry is whether the claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). Third, if the claimant suffers from a severe impairment, the ALJ determines whether this impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4 (the “Listing”). Id. §§ 404.1520(d), 416.920(d). If the impairment does meet or equal a listed impairment, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must determine the claimant's residual functional capacity (“RFC”), which is the measure of the claimant's ability to engage in substantial gainful activity despite the limitations of his or her impairments. Id. §§ 404.1520(e), 416.920(e). In the fourth step, the ALJ ascertains whether the claimant's impairments prevent the performance of past relevant work. Id. §§ 404.1520(f), 416.920(f). If the impairments do prevent the performance of past relevant work, then the claimant has established a prima facie case of disability and the burden shifts to the Commissioner to prove the final step. McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). Under the fifth and final inquiry, the Commissioner must demonstrate that the claimant is able to perform other forms of substantial gainful activity, while taking into account the claimant's remaining physical and mental capacities, age, education, and prior work experiences. 20 C.F.R. §§ 404.1520(g), 416.920(g); see also Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992). The Commissioner must establish two things: (1) that the claimant, considering his or her age, education, skills, work experience, and physical shortcomings has the capacity to perform an alternative job, and (2) that this specific job exists in significant numbers in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the ALJ “must follow a special technique” to assess disability. 20 C.F.R. §§ 404.1520a, 416.920a. First, the ALJ evaluates the claimant's pertinent signs, symptoms, and laboratory results to determine whether the claimant has a medically determinable mental impairment. Id. §§ 404.1520a(b), 416.920a(b). If such impairment exists, the ALJ documents the findings. Second, the ALJ rates and documents the degree of functional limitation resulting from the impairment according to criteria specified in the regulations. Id. §§ 404.1520a(c), 416.920a(c). Third, after rating the degree of functional limitation from the claimant's impairment(s), the ALJ determines the severity of the limitation. Id. §§ 404.1520a(d), 416.920a(d). A rating of “none” or “mild” in the first three functional areas (activities of daily living, social functioning, and concentration, persistence or pace) and “none” in the fourth (episodes of decompensation) will result in a finding that the impairment is not severe unless the evidence indicates that there is more than minimal limitation in the claimant's ability to do basic work activities. Id. §§ 404.1520a(d)(1), 416.920a(d)(1). Fourth, if the claimant's impairment is deemed severe, the ALJ compares the medical findings about the severe impairment and the degree of functional limitation against the criteria of the appropriate listed mental disorder to determine if the severe impairment meets or is equal to a listed mental disorder. Id. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if the ALJ finds that the claimant has a severe mental impairment that neither meets nor equals a listed mental disorder, then the ALJ assesses the claimant's residual functional capacity. 20 C.F.R. §§ 404.1520a(d)(3), 416.920a(d)(3).

         In this case, the ALJ determined as a preliminary matter that Claimant met the insured status requirements of the Social Security Act through December 31, 2015. (Tr. at 13, Finding No. 1). The ALJ acknowledged that Claimant satisfied the first inquiry because he had not engaged in substantial gainful activity since July 1, 2010, the alleged disability onset date. (Id., Finding No. 2). Under the second inquiry, the ALJ found that Claimant suffered from severe impairments of sprains/strains, all types, and borderline intellectual functioning. (Tr. at 13-14, Finding No. 3). Under the third inquiry, the ALJ concluded that Claimant's impairments, either individually or in combination, did not meet or medically equal any of the listed impairments. (Tr. at 14-15, Finding No. 4). Therefore, the ALJ determined that Claimant had the RFC to:

[P]erform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is limited to lifting and/or carrying 20 pounds occasionally and ten pounds frequently; standing and/or walking six hours out of an eight-hour workday; sitting six hours out of an eight-hour workday; and pushing/pulling to the weight limitations noted herein (Exhibit 5A). He should only lift with the right shoulder on an occasional basis. He should avoid concentrated exposure to extreme cold or heat, and hazards (moving machinery, unprotected heights, etc.). He can maintain concentration and attention for two-hours at a time.

(Tr. at 16-19, Finding No. 5). At the fourth step of the analysis, the ALJ determined that Claimant was unable to perform any past relevant work. (Tr. at 20, Finding No. 6). Consequently, the ALJ considered Claimant's past work experience, age, and education in combination with his RFC to determine if he would be able to engage in substantial gainful activity. (Tr. at 20-21, Finding Nos. 7-10). The ALJ considered that (1) Claimant was born in 1971 and was defined as a younger individual on the alleged disability onset date; (2) he had at least a high school education and could communicate in English; and (3) transferability of job skills was not material to the ALJ's disability determination because Claimant's past relevant work was unskilled. (Tr. at 20, Finding Nos. 7-9). Taking into account all of these factors, and Claimant's RFC, and relying upon the opinion testimony of a vocational expert (“VE”), the ALJ determined that Claimant could perform jobs that existed in significant numbers in the national economy. (Tr. at 20-21, Finding No. 10). At the light level, he could work as an edging machine feeder, bakery racker, or rover;[1] and at the sedentary level, Claimant could work as a grader/sorter, bench worker, and motor polarizer. (Tr. at 20-21). Therefore, the ALJ concluded that Claimant was not disabled as defined in the Social Security Act from July 1, 2010 through the date of the decision. (Tr. at 21, Finding No. 11).

         IV. Claimant's Challenge to the Commissioner's Decision

         Claimant presents several challenges to the Commissioner's decision. First, Claimant argues that the ALJ erred in finding that Claimant did not meet Listing 12.05C without first obtaining an additional psychological evaluation to resolve his inconsistent IQ scores. (ECF No. 11 at 5-6). Second, Claimant alleges that the ALJ erred in disregarding the VE's testimony that Claimant was incapable of substantial gainful activity if his impairments required him to take at least one extra break during the workday. (Id. at 6-7). Finally, Claimant argues that the ALJ improperly disregarded the consultative examiner's finding that he had markedly deficient persistence, as well as the VE's testimony that he would be incapable of substantial gainful activity if he had markedly deficient persistence. (Id. at 7).

         In response to Claimant's arguments, the Commissioner states that Claimant has not proven that he is disabled under the Act, has not produced evidence that he meets or equals the requirements of Listing 12.05C, and has not demonstrated that ...


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