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McDonald v. Berryhill

United States District Court, S.D. West Virginia, Beckley Division

April 3, 2017

DAVID N. MCDONALD, Plaintiff,
v.
NANCY A. BERRYHILL ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION

          Omar J. Aboulhosn, United States Magistrate Judge.

         This is 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.)

         The Plaintiff, David N. McDonald, hereinafter “Claimant”, filed an application for DIB on December 15, 2011 alleging disability since June 30, 2010[1], due to “prostate cancer, pain and complications from car accident, right knee pain, both ankles pain, right arm pain, and joint pain”.[2](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.)

         Having 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.

         Claimant's Background

         On the 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 204.)

         Standard

         Under 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. § 423(d)(1)(A).

         The 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).

         Summary of ALJ's Decision

         In this 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.)

         Claimant's Challenges to the Commissioner's Decision

         Claimant 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.[3] (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.)

         In 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.)

         The Relevant Evidence of Record[4]

         Medical Evidence ...


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