United States District Court, S.D. West Virginia, Huntington Division
A. Eifert United States Magistrate Judge
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
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).
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.
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).
Summary of ALJ's Findings
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).
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.
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.
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).
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; 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).
Claimant's Challenge to the Commissioner's
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).
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