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Moore v. Berryhill

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

January 24, 2018

TAMMI JO MOORE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          CHERYL A. EIFERT UNITED STATES MAGISTRATE JUDGE

         This action seeks a review of the decision of the Commissioner of the Social Security Administration (hereinafter “Commissioner”) denying Plaintiff's applications for a period of disability and disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. The matter is assigned to the Honorable Joseph R. Goodwin, United States District Judge, and was referred to the undersigned United States Magistrate Judge by standing order for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are Plaintiff's Brief in Support of Judgment on the Pleadings and the Commissioner's Brief in Support of Defendant's Decision, requesting judgment in her favor. (ECF Nos. 16, 17).

         For the following reasons, the undersigned RECOMMENDS that Plaintiff's motion for judgment on the pleadings be GRANTED, to the extent that it requests remand of the Commissioner's decision; that the Commissioner's motion for judgment on the pleadings be DENIED; that the decision of the Commissioner be REVERSED; that this matter be REMANDED pursuant to sentence four of 42 U.S.C. § 405(g); and that this case be DISMISSED, with prejudice, and removed from the docket of the Court.

         I. Procedural History

         On July 19, 2013, Plaintiff Tammi Jo Moore (“Claimant”), completed applications for DIB and SSI, alleging a disability onset date of May 1, 2000, (Tr. at 348-60), due to “back problems, dizzy spells, depression, and shingles, ” (Tr. at 390). The Social Security Administration (“SSA”) denied Claimant's applications initially and upon reconsideration. (Tr. at 196, 204). Claimant filed a request for an administrative hearing, which was held on October 30, 2015, before the Honorable Sabrina M. Tilley, Administrative Law Judge (the “ALJ”). (Tr. at 117-45). During the hearing, Claimant amended her alleged onset date to June 30, 2013. (Tr. at 120). By written decision dated December 14, 2015, the ALJ found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 96-109). The ALJ's decision became the final decision of the Commissioner on January 4, 2017 when the Appeals Council denied Claimant's request for review. (Tr. at 1-7).

         Claimant timely filed the present civil action seeking judicial review pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The Commissioner subsequently filed an Answer opposing Claimant's complaint and a Transcript of Proceedings. (ECF Nos. 8, 9). Thereafter, Claimant filed a Brief in Support of Judgment on the Pleadings, (ECF No. 16), the Commissioner filed a Brief in Support of Defendant's Decision, (ECF No. 17), and Claimant filed a reply, (ECF No. 22). Consequently, the matter is fully briefed and ready for resolution.

         II. Claimant's Background

         Claimant was 40 years old at the time that she filed the instant applications for benefits, and 43 years old on the date of the ALJ's decision. (Tr. at 376). She completed high school and communicates in English. (Tr. at 389, 391). Claimant previously worked as a grocery clerk, home health aide, and teacher's aide. (Tr. at 140-41).

         III. Summary of ALJ's Decision

         Under 42 U.S.C. § 423(d)(5), a claimant seeking disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 775 (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 has lasted or 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 five-step sequential evaluation process for the adjudication of disability claims. If an individual is found “not disabled” at any step of the process, further inquiry is unnecessary and benefits are denied. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first step in the sequence is determining whether a claimant is currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If the claimant is not, then the second step requires a determination of whether the claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” Id. If severe impairment is present, the third inquiry is whether this impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4 (the “Listing”). Id. §§ 404.1520(d), 416.920(d). If so, then the claimant is found disabled and awarded benefits.

         However, if the impairment does not meet or equal a listed impairment, the adjudicator must assess the claimant's residual functional capacity (“RFC”), which is the measure of the claimant's ability to engage in substantial gainful activity despite the limitations of his or her impairments. Id. §§ 404.1520(e), 416.920(e). After making this determination, the fourth step is to ascertain whether the claimant's impairments prevent the performance of past relevant work. Id. §§ 404.1520(f), 416.920(f). If the impairments do prevent the performance of past relevant work, then the claimant has established a prima facie case of disability, and the burden shifts to the Commissioner to demonstrate, in the fifth and final step of the process, that the claimant is able to perform other forms of substantial gainful activity, given the claimant's remaining physical and mental capacities, age, education, and prior work experiences. 20 C.F.R. §§ 404.1520(g), 416.920(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983). The Commissioner must establish two things: (1) that the claimant, considering his or her age, education, skills, work experience, and physical shortcomings has the capacity to perform an alternative job, and (2) that this specific job exists in significant numbers in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         Here, the ALJ determined as a preliminary matter that Claimant met the insured status for disability insurance benefits through December 31, 2017. (Tr. at 98, Finding No. 1). At the first step of the sequential evaluation, the ALJ found that Claimant had not engaged in substantial gainful activity since June 30, 2013, the amended alleged onset date. (Tr. at 98, Finding No. 2). At the second step of the evaluation, the ALJ found that Claimant had the following severe impairments: degenerative disc disease of the cervical and lumbar spine, obesity, plantar fasciitis, heel spur, and obstructive sleep apnea. (Tr. at 98-99, Finding No. 3). The ALJ also considered Claimant's median neuropathy in her wrists, type II herpes, thyroid problems, dizziness and vertigo, and mental impairments, but concluded that such impairments were non-severe. (Tr. at 99-102).

         Under the third inquiry, the ALJ found that Claimant did not have an impairment or combination of impairments that met or medically equaled any of the impairments contained in the Listing. (Tr. at 102, Finding No. 4). Accordingly, the ALJ determined that Claimant possessed:

[T]he residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with occasional lifting/carrying of 10 pounds, frequent lifting/carrying of less than 10 pounds, standing and/or walking of two hours in an eight-hour workday; and sitting six hours in an eight-hour workday. She can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. She can occasionally balance and stoop, but never kneel, crouch, and crawl. She can perform occasionally overhead reaching and frequently, but not continuous handle finger and feel bilaterally. She can tolerate occasional exposure to extreme temperatures, vibrations, fumes, odors, dusts, gases, poor ventilation, and hazards. She retains the capacity to understand, remember, and carry out instructions for the completion of simple, unskilled tasks. She can respond appropriately to interactions with co-workers, supervisors, and the general public. She can make adjustment to changes in the work routine.

(Tr. at 103-107, Finding No. 5).

         At the fourth step, the ALJ found that Claimant was unable to perform any past relevant work. (Tr. at 107, Finding No. 6). Under the fifth and final inquiry, the ALJ reviewed Claimant's past work experience, age, and education in combination with her RFC to determine her ability to engage in substantial gainful activity. (Tr. at 107, Finding Nos. 7-10). The ALJ considered that (1) Claimant was defined as a younger individual aged 18-44 on the alleged disability onset date, (2) she had at least a high school education and could communicate in English; and (3) transferability of job skills was not material to the disability determination. (Tr. at 107, Finding Nos. 7-9). Given these factors and Claimant's RFC, with the assistance of a vocational expert, the ALJ concluded that Claimant could perform jobs that existed in significant numbers in the national economy, including a document preparer, product inspector, and surveillance system monitor. (Tr. at 107-08, Finding No. 10). Therefore, the ALJ found that Claimant was not disabled as defined in the Social Security Act. (Tr. at 108, Finding No. 11).

         IV. Claimant's Challenge to the Commissioner's Decision

         Claimant contends that the ALJ's RFC determination that Claimant could occasionally balance and did not require a sit/stand option is not supported by substantial evidence, thus rendering the ALJ's step five denial of benefits without support. (ECF No. 16 at 8). Claimant states that there is not sufficient evidentiary support for the ALJ's RFC determination because the ALJ did not state why she did not adopt the opinion of the consultative examiner, Miraflor G. Khorshad, M.D., that Claimant needed to alternate sitting and standing and could not balance. (Id. at 11). Claimant notes that such functions are of critical importance because the ...


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