United States District Court, S.D. West Virginia, Charleston
L. Tinsley United States Magistrate Judge.
an action seeking review of the final decision of the
Commissioner of Social Security denying the Plaintiff's
application for disability insurance benefits (DIB) under the
Social Security Act. The parties consented to the undersigned
United States Magistrate Judge ordering the entry of final
judgement. Presently pending before this Court are
Plaintiff's Brief in Support of Judgment on the Pleadings
(ECF No. 13) and Defendant's Brief in Support of
Defendant's Decision (ECF No. 14). Benita Kay Burdette
(hereinafter referred to as Claimant), applied for DIB on
September 6, 2012, alleging disability beginning June 1,
2009. The claim was denied initially on January 25, 2013, and
upon reconsideration on June 14, 2013. Thereafter, Claimant
filed a written request for a hearing before an
Administrative Law Judge (ALJ) on June 25, 2013. A hearing
was held on September 11, 2014, in Charleston, West Virginia,
before an ALJ. On October 9, 2014, the ALJ denied
October 9, 2014, Claimant filed a request for review of the
hearing decision by the Appeals Council (AC). On December 15,
2015, the AC denied Claimant's request for review (Tr. at
1-6). The AC stated “We found no reason under our rules
to review the Administrative Law Judge's decision”
(Tr. at 1) and “In looking at your case, we considered
the reasons you disagree with the decision and the additional
evidence listed on the enclosed Order of Appeals
Council” (Tr. at 2). On December 15, 2015, the AC made
additional evidence received from Claimant part of the record
(Tr. at 6). That evidence consists of the following exhibits:
Exhibit 19E Representative Brief - Hazel A. Straub dated
Dated December 1, 2014 (9 pages)
Exhibit 25F Medical Records - Capital Neurology dated
September 17, 2014 (2 pages)
Claimant filed a complaint with this Court pursuant to 42
U.S.C. § 405(g). Standard of Review Under 42
U.S.C. § 423(d)(5), a claimant for disability has the
burden of proving a disability. See Blalock v.
Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A
disability is defined as the "inability to engage in any
substantial gainful activity by reason of any medically
determinable impairment which 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 "sequential
evaluation" for the adjudication of disability claims.
20 C.F.R. ' 404.1520 (2016). If an individual is found
"not disabled" at any step, further inquiry is
unnecessary. Id. ' 404.1520(a). The first
inquiry under the sequence is whether a claimant is currently
engaged in substantial gainful employment. Id. '
404.1520(b). If the claimant is not, the second inquiry is
whether claimant suffers from a severe impairment.
Id. ' 404.1520(c). If a severe impairment is
present, the third inquiry is whether such impairment meets
or equals any of the impairments listed in Appendix 1 to
Subpart P of the Administrative Regulations No. 4.
Id. ' 404.1520(d). If it does, the claimant is
found disabled and awarded benefits. Id. If it does
not, the fourth inquiry is whether the claimant's
impairments prevent the performance of past relevant work.
Id. ' 404.1520(e). By satisfying inquiry four,
the claimant establishes a prima facie case of
disability. Hall v. Harris, 658 F.2d 260, 264 (4th
Cir. 1981). The burden then shifts to the Commissioner,
McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir.
1983), and leads to the fifth and final inquiry: whether the
claimant is able to perform other forms of substantial
gainful activity, considering claimant's remaining
physical and mental capacities and claimant's age,
education and prior work experience. 20 C.F.R. '
404.1520(f) (2016). The Commissioner must show two things:
(1) that the claimant, considering claimant's age,
education, work experience, skills and physical shortcomings,
has the capacity to perform an alternative job, and (2) that
this specific job exists in the national economy.
McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir.
case, the ALJ determined that Claimant satisfied the first
inquiry because she has not engaged in substantial gainful
activity since the amended alleged onset date of August 3, 2011
(Tr. at 40). The ALJ found that Claimant meets the insured
status requirements of the Social Security Act through
December 31, 2016. Under the second inquiry, the ALJ found
that Claimant suffers from the severe impairments of cervical
and lumbar degenerative disc disease, obesity, depression and
anxiety (Tr. at 41). At the third inquiry, the ALJ concluded
that Claimant did not have an impairment or combination of
impairments that met or medically equaled the level of
severity of any listing in Appendix 1. (Id.) The ALJ
then found that Claimant has a residual functional capacity
to perform work at the light exertional level (Tr. at
The ALJ held that Claimant is unable to perform any past
relevant work (Tr. at 46). The ALJ held that transferability
of job skills is not an issue in this case (Tr. at 47). The
ALJ held that Claimant could perform jobs such as: a hand
packer, mail room clerk and assembler (Tr. at 48). On this
basis, benefits were denied. (Id.)
sole issue before this court is whether the final decision of
the Commissioner denying the claim is supported by
substantial evidence. In Blalock v. Richardson,
substantial evidence was defined as:
Evidence which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
“substantial evidence.” Blalock v.
Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966)). Additionally, the Commissioner, not the court, is
charged with resolving conflicts in the evidence.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Nevertheless, the courts Amust not abdicate their
traditional functions; they cannot escape their duty to
scrutinize the record as a whole to determine whether the
conclusions reached are rational." Oppenheim v.
Finch, 495 F.2d 396, 397 (4th Cir. 1974).
careful review of the record reveals the decision of the
Commissioner in this case is not supported by substantial
was born on February 20, 1962 (Tr. at 59). Claimant obtained
a GED. (Id.) Claimant testified that she is
5'10” tall and weighed 240 pounds. (Id.)
Claimant lives with her husband (Tr. at 73). Claimant has her
medical record addressing Claimant's lower back pain,
left leg pain, left arm pain and lumbar degenerative disc
disease will be discussed below. The undersigned remands this
matter for reconsideration as a result of the new and
material evidence admitted by the AC. Therefore, medical
records pertaining to other impairments will not be discussed
at this time. Claimant's Challenges to the
Commissioner's Decision Claimant asserts that the
ALJ failed to accord adequate weight to the opinion of
Laberta Salamacha, M.A. (ECF No. 13). Claimant argues that
the ALJ's decision is not based on substantial evidence
because the ALJ failed to consider Claimant's lower
extremity radiculopathy and the resulting limitations in the
residual functional capacity (RFC) assessment. Defendant
asserts that substantial evidence supports the ALJ's
decision to give little weight to Dr. Salamacha's opinion
(ECF No. 14). Defendant avers that the ALJ captured all of
Claimant's credible physical limitations in the RFC.
Evidence submitted to ...