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Sorrell v. Berryhill

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

December 5, 2017



          Omar J. Aboulhosn United States Magistrate Judge

         This is an action seeking review of the final decision of the Acting Commissioner of Social Security which denied the Plaintiff's application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. By Order entered July 24, 2017 (Document No. 4.), this case was referred to the undersigned United States Magistrate Judge to consider the pleadings and evidence, and to submit proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are the parties' cross-briefs in support of judgment on the pleadings. (Document Nos. 13 and 14.)

         Having fully considered the record and the arguments of the parties, the undersigned respectfully RECOMMENDS that the United States District Judge DENY Plaintiff's request for judgment on the pleadings (Document No. 13.), GRANT Defendant's request to affirm the decision of the Commissioner (Document No. 14.); AFFIRM the final decision of the Commissioner; and DISMISS this matter from the Court's docket for the reasons stated infra. Procedural History The Plaintiff, John Wayne Sorrell (hereinafter referred to as “Claimant”), protectively filed his application for Title XVI benefits on August 8, 2013, alleging disability since July 16, 2013 due to his “back and lungs.”[1] (Tr. at 187-195, 207, 222.) His claim was initially denied on December 19, 2013 (Tr. at 77-87.) and again upon reconsideration on February 21, 2014. (Tr. at 91-97.) Thereafter, Claimant filed a written request for hearing on April 21, 2014. (Tr. at 98-100.)

         The first administrative hearing was held on August 13, 2015 before the Honorable Valeria A. Bawolek, Administrative Law Judge (“ALJ”); because the medical record needed to be augmented, another hearing was scheduled afterwards. (Tr. at 27-35.) A supplemental administrative hearing was held on January 4, 2016. (Tr. at 36-52.) On February 22, 2016, the ALJ entered an unfavorable decision. (Tr. at 8-26.) On March 21, 2016, Claimant sought review by the Appeals Council of the ALJ's decision. (Tr. at 184-186.) The ALJ's decision became the final decision of the Commissioner on May 25, 2017 when the Appeals Council denied Claimant's Request for Review. (Tr. at 1-7.)

         On July 23, 2017, Claimant timely brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (Document No. 2.) The Commissioner filed an Answer and a Transcript of the Administrative Proceedings. (Document Nos. 10 and 11.) Subsequently, Claimant filed a Memorandum in Support of Judgment on the Pleadings (Document No. 13.), and in response, the Commissioner filed a Brief in Support of Defendant's Decision. (Document No. 14.) Consequently, this matter is fully briefed and ready for resolution.

         Claimant's Background

         Claimant was born on June 29, 1968, and considered a “younger person” throughout these proceedings. See 20 C.F.R. § 416.963(c). (Tr. at 19.) Claimant graduated high school. (Tr. at 19, 223.) Claimant was last employed at Wal-Mart for a couple of months as a janitor. (Tr. at 49.)


          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. § 416.920. If an individual is found “not disabled” at any step, further inquiry is unnecessary. Id. § 416.920(a). The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. § 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from a severe impairment. Id. § 416.920(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. § 416.920(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. § 416.920(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. Id. § 416.920(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

          The ALJ determined that Claimant satisfied the first inquiry because he had not engaged in substantial gainful activity since August 8, 2013, the application filing date. (Tr. at 13, Finding No. 1.) Under the second inquiry, the ALJ found that Claimant suffered from the following severe impairments: degenerative disc disease; degenerative joint disease; and chronic obstructive pulmonary disease (COPD). (Id., Finding No. 2.) At the third inquiry, the ALJ concluded that the severity of Claimant's impairments did not meet or equal the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 14, Finding No. 3.) The ALJ then found that Claimant had the residual functional capacity (“RFC”) to perform sedentary work except

he cannot climb ladders, ropes, or scaffolds and cannot kneel or crawl as part of a job. He can only occasionally balance, stoop, crouch, and climb ramps and stairs. He can tolerate only occasional exposure to heat, cold, vibration, and pulmonary irritants. He must avoid all hazards including unprotected heights and dangerous machinery.

(Id., Finding No. 4.)

         At step four, the ALJ found that Claimant was incapable of performing his past relevant work. (Tr. at 19, Finding No. 5.) At the final step, the ALJ found that in addition to the immateriality of the transferability of job skills, Claimant's age, education, work experience, and RFC indicated that there were jobs that exist in significant numbers in the national economy that Claimant could perform. (Id., Finding Nos. 6-9.) Finally, the ALJ determined Claimant had not been under a disability from August 8, 2013 through the date of the decision. (Tr. at 21, Finding No. 10.)

         Claimant's Challenges to the Commissioner's Decision

         Claimant asserts one main ground in support of his appeal: the ALJ failed to perform an adequate step three analysis regarding Claimant's lumbar spine degenerative disc disease to see if it met or equaled Listing 1.04A criteria, in contravention to the holding in Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). (Document No. 13 at 10-11.) Claimant states that the ALJ contradicted her own third step finding with her summary of the probative evidence that showed Claimant had lumbar spinal stenosis though she failed to compare this with Listing 1.04 criteria. (Id. at 12.) Because the ALJ failed to abide by Fourth Circuit jurisprudence to explain how she found Claimant did not medically equal or meet the Listing, this Court is unable to determine the ALJ's analysis process or what evidence the ALJ considered in making her step three finding. (Id. at 12-13.)

         Claimant asks this Court to reverse the final decision for an award of benefits, or to remand in order that the Commissioner may correct this error. (Id. at 13.)

         In response, the Commissioner argues that Claimant did not prove he met the criteria of Listing 1.04A at step three of the sequential evaluation process because the evidence of record did not indicate he met all criteria, which is required under law, the Radford decision notwithstanding. (Document No. 14 at 5-6.) The Commissioner further argues that numerous districts in the Fourth Circuit, including this one, have found that if an ALJ discusses the evidence elsewhere in the decision that supported the conclusion that a claimant's impairment does not meet Listing criteria requirements, then there is no need to remand the case. (Id. at 7-8, 9.) In this case, the ALJ discussed the relevant evidence supporting her finding, and correctly found that the evidence did not support a determination that Claimant's impairment met or equaled Listing 1.04A. (Id. at 8-12.) Finally, the Commissioner argues that the ALJ did not contradict her step three analysis, and her decision is supported by substantial evidence. (Id. at 12.)

         The Commissioner asks this Court to affirm her final decision that Claimant was not disabled. (Id. at 13.)

         The Relevant Evidence of Record[2]

         The undersigned has considered all evidence of record, including the medical evidence, pertaining to Claimant's arguments and discusses it below.

         Medical Records Related to Listing 1.04A Criteria:

         The administrative record documents Claimant's back and leg complaints to a certified physician's assistant in the office of his primary care physician, Whitney Boggs, M.D., beginning in March 2014. (Tr. at 405.) At that time, Claimant complained of chronic low back pain and indicated he had been involved in an ATV accident many years ago resulting in broken ribs and a punctured lung. (Id.) He additionally complained of “Charlie horses” in his hands and feet. (Id.) Subsequently, on June 17, 2014, Claimant returned with complaints of constant low back pain and stated that his right leg was tingling. (Tr. at 445.) He explained that when crossing his right leg over his left, he experienced a burning sensation. (Id.) Dr. Boggs observed Claimant to have positive straight leg raise ...

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