United States District Court, S.D. West Virginia, Beckley Division
DAVID N. MCDONALD, Plaintiff,
NANCY A. BERRYHILL ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
J. Aboulhosn, United States Magistrate Judge.
an action seeking review of the final decision of the Acting
Commissioner of Social Security denying the Plaintiff's
application for Disability Insurance Benefits (DIB) under
Title II of the Social Security Act, 42 U.S.C. §§
401-433. Presently pending before the Court are parties'
cross-motions for Judgment on the Pleadings. (Document Nos.
19 and 20.) Both parties have consented in writing to a
decision by the United States Magistrate Judge. (Document
Nos. 3 and 4.)
Plaintiff, David N. McDonald, hereinafter
“Claimant”, filed an application for DIB on
December 15, 2011 alleging disability since June 30,
2010, due to “prostate cancer, pain and
complications from car accident, right knee pain, both ankles
pain, right arm pain, and joint pain”.(Tr. at 213.)
Claimant's application was denied initially and upon
reconsideration. (Tr. at 76-86, 90-96.) On March 12, 2013,
Claimant requested a hearing before an Administrative Law
Judge (“ALJ”). (Tr. at 97-98.) A hearing was held
on September 22, 2014, before the Honorable Anne V. Sprague.
(Tr. at 29-55.) The ALJ denied his claim by decision dated
October 28, 2014. (Tr. at 17-28.) The ALJ's decision
became the final decision of the Commissioner on March 9,
2016 when the Appeals Council denied Claimant's request
for review. (Tr. at 1-6.) On May 6, 2016, Claimant brought
the present action seeking judicial review of the
administrative decision pursuant to 42 U.S.C. § 405(g).
(Document No. 2.)
fully considered the record and the arguments of the parties,
the Court hereby DENIES Plaintiff's request for judgment
on the pleadings (Document No. 19.); GRANTS Defendant's
request to affirm the decision of the Commissioner (Document
No. 20.); AFFIRMS the final decision of the Commissioner and
DISMISSES this action from the docket of the Court.
alleged onset date and DLI, Claimant was 54 years old,
defined as a person closely approaching advanced age. 20
C.F.R. § 404.1563(d). He stopped working April 1, 2005
due to his alleged disabling conditions. (Tr. at 213.)
Claimant completed was the 10th grade and did not
attend special education classes. (Tr. at 214.) His past
relevant work included moving furniture for 27 years and then
as a laborer in construction for about five years. (Tr. at
42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(I), a
claimant for disability benefits 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. §
Social Security Regulations establish a “sequential
evaluation” for the adjudication of disability claims.
20 C.F.R. § 404.1520. 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(f). 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(g). 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).
of ALJ's Decision
particular case, the ALJ determined that Claimant last met
the insured status requirements (“DLI”) on June
30, 2010. (Tr. at 22, Finding No. 1.) Claimant satisfied the
first inquiry because he had not engaged in substantial
gainful activity during the period from his alleged onset
date of June 30, 2010 through the DLI, June 30, 2010.
(Id., Finding No. 2.) Under the second inquiry, the
ALJ found that through the DLI, there were no medical signs
or laboratory findings to substantiate the existence of a
medically determinable impairment. (Id., Finding No.
3.) Accordingly, the ALJ concluded that Claimant was not
under a disability at any time from June 30, 2010, the
alleged onset date, through June 30, 2010, DLI. (Tr. at 24,
Finding No. 4.)
Challenges to the Commissioner's Decision
states that the ALJ's decision is not supported by
substantial evidence because evidence from Dr. Robert B.
Skalloff contradicts the ALJ's finding of no medically
determinable impairment on DLI. (Document No. 19 at 3.)
Furthermore, none of the evidence relating to Claimant's
impairments, severe or not, including the vocational
expert's testimony, were reflected in the ALJ's
decision, which is reversible error. (Id. at 3-4.)
Next, Claimant argues that the ALJ failed to employ the
“borderline age” rule where the vocational
expert's testimony “seems” to support a
finding that Claimant's RFC was at the light exertional
level, and therefore based on his age, he should have been
determined disabled. (Id. at 5.) Claimant requests
remand in order to correct these errors. (Id. at 6.)
response, the Commissioner points out that the relevant
period in this case is one day: June 30, 2010, and there is
no medical evidence in the record from this relevant period.
(Document No. 20 at 3-4.) Further, the Commissioner contends
that Claimant failed to show that he had any medically
determinable impairments during the relevant period from an
acceptable medical source, therefore the ALJ's finding
that he was not disabled is supported by substantial
evidence. (Id. at 7.) The Regulations and the
Supreme Court determined that Claimant bears this burden of
proof at step two of the sequential evaluation process, and
his allegations of symptoms are not sufficient by themselves.
(Id. at 8.) The Commissioner asserts that contrary
to Claimant's assertion that the vocational expert
testimony should have been included in the ALJ's
decision, his case was already determined at step two,
therefore, the ALJ was not required to proceed to the next
steps in the sequential evaluation process. (Id. at
10.) Finally, the Commissioner argues the “borderline
age” rule also does not apply for the same reason,
because at step two Claimant failed to prove he was disabled.
(Id. at 10-11.) The Commissioner requests that the
decision be affirmed. (Id. at 11.)
Relevant Evidence of Record