United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge
Pending are the objections to the magistrate judge's
Proposed Findings and Recommendation
(“PF&R”), filed by defendant Nancy A.
Berryhill (the “Commissioner”) on January 19,
plaintiff, Delana Lynn Turley (“Claimant”),
instituted this action in this court on March 17, 2017,
pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) (2016).
Claimant seeks judicial review of the Commissioner's
final determination denying her two applications for
disability insurance benefits and supplemental security
accordance with 28 U.S.C. § 613(b)(1)(B) and the
standing order in this district, this action was referred to
United States Magistrate Judge Dwane L. Tinsley for findings
of fact and recommendations for disposition. Claimant and the
Commissioner have filed cross motions for judgment on the
January 16, 2018, the magistrate judge filed his PF&R,
finding that “[t]he ALJ's step three evaluation is
lacking the information necessary to inform a reviewing court
of the specific impairments the [administrative law judge
(“ALJ”)] considered and the criteria for those
impairments.” (PF&R 10.)
three, which is part of a mandatory five-step analysis
conducted by the Commissioner, involves comparing a
claimant's impairments to listed impairments in the
social security regulations. See 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) (2017).
Thus, the magistrate judge recommends that the court
grant [Claimant's] Memorandum in Support of Judgment on
the Pleadings to the extent [Claimant] seeks remand, deny the
[Commissioner's] Brief in Support of [the
Commissioner's] decision, reverse the final decision of
the Commissioner, and remand this case for further
proceedings pursuant to the fourth sentence of 42 U.S.C.
§ 405(g) and dismiss this matter from the court's
(PF&R 11 (emphases and citations omitted).)
Commissioner filed objections to the PF&R on January 19,
2018. The Commissioner argues that the ALJ's step three
conclusion is amply supported by record evidence and that
remand is thus unwarranted. (See Obj. 7.) Claimant
responded on January 30, 2018, urging the court to adopt the
magistrate judge's analysis. (See Resp. 1.)
Standard of Review
court reviews de novo those portions of the magistrate
judge's PF&R to which objections are timely filed. 28
U.S.C. § 636(b)(1)(B); see Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982); see also 20 C.F.R.
§ 416.927(e)(1) (ultimate decision regarding disability
determinations rests with the Commissioner). On the other
hand, the standard for review of the Commissioner's
decision is rather deferential to the Commissioner, for
“a reviewing court must ‘uphold the determination
when an ALJ has applied correct legal standards and the
ALJ's factual findings are supported by substantial
evidence.'” Brown Comm'r Soc. Sec.
Admin., 873 F.3d 251, 267 (4th Cir. 2017) (quoting
Preston v. Heckler, 769 F.2d 988, 990 (4th Cir.
1985)); Oppenheim v. Finch, 495 F.2d 396, 397 (4th
Cir. 1974) (court must scrutinize the record as a whole to
determine whether the conclusions reached are supported by
substantial evidence); see also 42 U.S.C. §
405(g). Substantial evidence is that which “a
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citations omitted); accord
Brown, 873 F.3d at 267.
reviewing for substantial evidence, [a district court does]
not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the ALJ.” Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005) (per curiam). Substantial
evidence is by definition more than “a mere scintilla,
” Smith v. Chater, 99 F.3d 635, 638 (4th Cir.
1996), but “may be somewhat less than a preponderance,
” Blalock v. Richardson, 483 F.2d 773, 776
(4th Cir. 1972) (quoting Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1996)).
C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4) set
forth “[t]he five-step sequential evaluation
process” that the Commissioner applies when deciding
whether a claimant is disabled. As explained by the United
States Court of Appeals for the Fourth Circuit,
[t]he Commissioner asks whether the claimant: (1) worked
during the purported period of disability; (2) has an
impairment that is appropriately severe and meets the
duration requirement; (3) has an impairment that meets or
equals the requirements of a “listed” impairment
and meets the duration requirement; (4) can return to her
past relevant work; and (5) if not, can perform any other
work in the national economy. Hancock v. Astrue, 667
F.3d 470, 472-73 (4th Cir. 2012). The claimant has the burden
of production and proof at Steps 1-4. Id.
Radford v. Colvin, 734 F.3d 288, 290-91 (4th Cir.
2013) (full citation added). At issue in the present action
is step three.
“step three, the ALJ decides whether the claimant has
an impairment that meets or equals an impairment listed in
the regulations for being severe enough to preclude a person
from doing any gainful activity.” Brown, 873
F.3d at 254. The listings of specific impairments are found
in Appendix 1 to Subpart P of the regulations. See
20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). To meet a listing, a claimant “must
meet all of the specified medical criteria. An impairment
that manifests only some of those criteria, no matter how
severely, does not qualify.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990). To equal a listing, a
claimant “must present medical findings equal in
severity to all the criteria for the one most similar listed
impairment.” Id. at 531. A claimant who meets
or equals a step three listing is conclusively disabled. 20
C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii);
accord Radford, 734 F.3d at 291 (citing Bowen v.
City of New York, 476 U.S. 467, 471 (1986) and
McNunis v. Califano, 605 F.2d 743, 744 (4th Cir.
determined that Claimant suffered from the following severe
impairments: “chronic lumbosacral strain, with left
radicular symptoms; fibromyalgia[;] and
hyperlipidemia.” (Tr. 23.) At step three of the
five-step sequential analysis, the ALJ concluded that
“[C]laimant does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in” the regulations.
25.) The entirety of the ALJ's step three ...