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Bolyard v. Berryhill

United States District Court, N.D. West Virginia

March 17, 2017

MICHAEL K. BOLYARD Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT U.S. MAGISTRATE JUDGE.

         I. SUMMARY

         The Plaintiff advances two arguments and the Court is persuaded by both. Therefore, the Court recommends that the Plaintiff's [ECF No. 9] Motion for Summary Judgment be granted and the Commissioner's [ECF No. 11] Motion for Summary Judgment be denied.

         First, the Plaintiff argues that the administrative law judge (ALJ) inadequately compared the Plaintiff's impairments to the agency's listed impairments. Indeed, the ALJ merely restated the elements of the listed impairments and concluded that the Plaintiff did not meet these elements. Precedent makes clear that this is an inadequate analysis.

         Second, the Plaintiff argues that the ALJ did not account for his limitations in concentration, persistence, and pace. The ALJ discussed contrary evidence, however, ultimately concluded that the Plaintiff had some limitations in concentration, persistence, and pace. Yet, the ALJ did not account for these limitations in the Plaintiff's residual functional capacity (RFC), in the hypothetical question posed to the vocational expert (VE), nor explained why these limitations were not included.

         II. PROCEDURAL HISTORY

         In 2010, the Plaintiff, Michael K. Bolyard, filed an application for disability insurance benefits (DIB). R. 13. It appears that the Plaintiff's claim was denied because the Plaintiff subsequently filed a second application which is at issue here. The Plaintiff's second application was filed on May 8, 2012, alleging a disability beginning September 6, 2007. R. 13. The Plaintiff's second application was initially denied on January 24, 2013 and again upon reconsideration on June 28, 2013. R. 13. Thereafter, the Plaintiff filed a request for a hearing. R. 13. The Plaintiff, represented by counsel, appeared and testified at the hearing held on September 9, 2014, as did his wife and an impartial VE. R. 13. On October 10, 2014, the ALJ issued an unfavorable decision. R. 13. The Appeals Council denied. R. 1.

         On April 5, 2016, the Plaintiff filed a complaint in this Court to obtain judicial review of the decision of the Commissioner of Social Security denying his second application. ECF No. 1.

         III. THE ALJ'S FINDINGS

         In determining whether the Plaintiff was disabled, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. §§ 404.1520; 416.920. The first step in the process is determining whether a claimant is currently engaged in substantial gainful activity. Id. §§ 404.1520(b); 416.920(b). If the claimant is not engaging in substantial gainful activity, then the second step requires the ALJ to determine whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. Id. §§ 404.1520(c); 416.920(c). If the claimant has a severe impairment or combination of impairments, then the analysis moves to the third step in the sequence, which requires the ALJ to determine whether the claimant's impairments or combination of impairments meets or equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listings). Id. §§ 404.1520(d); 416.920(d). If an impairment meets or equals a listed impairment, the claimant is disabled. Id. §§ 404.1520(d); 416.920(d). However, if the impairment does not meet or equal a listed impairment, the ALJ must determine the claimant's RFC, which is the claimant's ability to do physical and mental work activities on a sustained basis despite the limitations of her impairments. Id. §§ 404.1520(e); 416.920(e).

         After determining the claimant's RFC, the ALJ must determine, at step four, whether the claimant has the RFC to perform the requirements of her past relevant work. Id. §§ 404.1520(f); 416.920(f). If the claimant does not have the RFC to do her past relevant work, then she has established a prima facie case of disability, and the burden shifts to the Commissioner to demonstrate, at the final step in the process, that other work exists in significant numbers in the national economy that the claimant can do, given the claimant's RFC, age, education, and work experiences. Id. §§ 404.1520(g); 416.920(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983).

         At step one of the sequential process, the ALJ found that the Plaintiff had not engaged in substantial gainful activity since September 6, 2007, the alleged onset date. R. 16. At step two, the ALJ found that the Plaintiff had the following severe impairments: degenerative disc disease status-post three surgeries, degenerative disc disease of the cervical spine status-post fusion and discectomy, and depression. R. 16. At the third step, the ALJ found that none of the Plaintiff's impairments met or medically equaled the severity of one of the listed impairments contained in the Listings. R. 17. The ALJ then determined that the Plaintiff had the following RFC:

[T]o perform sedentary work as defined in 20 CFR 404.1567(a) except he can stand up to 30 to 40 minutes, stand and walk for five minutes, maintain periodicity throughout the workday. He can push and pull frequently, but cannot climb ladders, ropes or scaffolds. He could perform bending, stooping, kneeling, crouching, crawling, and climbing of ramps and stairs occasionally, and could frequently reach in all directions with the bilateral upper extremities. He could frequently use a forceful grip, twist, finger and handle, but should avoid direct exposure to vibrations, and have no concentrated exposure to extremes of cold. He must avoid unprotected heights and mobile machinery. He could participate in uninvolved three to four step tasks only.

R. 18. At step four, the ALJ determined that the Plaintiff was unable to perform any past relevant work. R. 24. At step five, the ALJ determined that, “considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant ...


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