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Burdette v. Berryhill

United States District Court, S.D. West Virginia, Charleston

March 31, 2017

BENITA KAY BURDETTE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          Dwane L. Tinsley United States Magistrate Judge.

         This is 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 Claimant's application.

         On 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)

         Thereafter, 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).

         The 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. 1976).

         In this case, the ALJ determined that Claimant satisfied the first inquiry because she has not engaged in substantial gainful activity since the amended[1] 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 44).[2] 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.)

         Scope of Review

         The 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).

         A careful review of the record reveals the decision of the Commissioner in this case is not supported by substantial evidence.

         Claimant's Background

         Claimant 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 driver's license.

         The Medical Record

         The 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.

         Additional Evidence submitted to ...


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