United States District Court, S.D. West Virginia, Huntington Division
JOHN A. RICE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
PROPOSED FINDINGS AND RECOMMENDATIONS
A. Eifert United States Magistrate Judge
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 Robert C.
Chambers, 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. 10, 13).
fully considered the record and the arguments of the parties,
the undersigned United States Magistrate Judge respectfully
RECOMMENDS that Plaintiff's request for
judgment on the pleadings be DENIED; the
Commissioner's request for judgment on the pleadings be
GRANTED; the Commissioner's decision be
AFFIRMED; and that this case be
DISMISSED and removed from the docket of the
March 12, 2013 and January 30, 2015, respectively, Plaintiff
John A. Rice (“Claimant”), completed applications
for DIB and SSI, alleging a disability onset date of December
1, 2012, (Tr. at 285, 321), due to “loss of eyesight,
heart murmor [sic], depression [and] heart issues.”
(Tr. at 333). The Social Security Administration
(“SSA”) denied Claimant's applications
initially and upon reconsideration. (Tr. at 161, 167).
Claimant filed a request for an administrative hearing, which
was initially held on November 25, 2014, before the Honorable
Robert M. Butler, Administrative Law Judge (the
“ALJ”). (Tr. at 106-134). During the hearing, the
ALJ determined that a review of additional medical records
concerning Claimant's alleged impairments of chest pain,
migraine headaches, depression, and vision issues was
required prior to rendering a decision. (Tr. at 130-34).
Consequently, a supplemental hearing was held on June 4,
2015. (Tr. at 29-94). By written decision dated August 17,
2015, the ALJ found that Claimant was not disabled as defined
in the Social Security Act. (Tr. at 11-22). The ALJ's
decision became the final decision of the Commissioner on
January 27, 2017 when the Appeals Council denied
Claimant's request for review. (Tr. at 1-3).
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. 7, 9). Thereafter, Claimant filed a Brief in
Support of Judgment on the Pleadings, (ECF No. 10) and the
Commissioner filed a Brief in Support of Defendant's
Decision. (ECF No. 13). Therefore, the matter is fully
briefed and ready for resolution.
was 41 years old at the time that he filed the application
for DIB benefits and 43 years old at the time he filed the
application for SSI benefits and on the date of the ALJ's
decision. (Tr. at 11, 285, 321). He did not complete high
school, but does communicate in English. (Tr. at 332, 334).
Claimant previously worked as a laborer, grocery stock clerk,
and blacktop sealer. (Tr. at 118-20, 334).
Summary of ALJ's Decision
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).
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.
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).
the ALJ determined as a preliminary matter that Claimant met
the insured status for disability insurance benefits through
December 31, 2012. (Tr. at 13, Finding No. 1). At the first
step of the sequential evaluation, the ALJ found that
Claimant had not engaged in substantial gainful activity
since December 1, 2012, the alleged disability onset date.
(Tr. at 13, Finding No. 2). At the second step of the
evaluation, the ALJ found that Claimant had the following
severe impairments: “chronic obstructive pulmonary
disease, metabolic syndrome, hyperlipidemia, migraines,
obesity, coronary artery disease, osteoarthritis of the
bilateral shoulders, loss of visual acuity, anxiety disorder,
and depressive disorder.” (Tr. at 13-14, Finding No.
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 14-16, Finding No. 4). Accordingly, the ALJ
determined that Claimant possessed:
[T]he residual functional capacity to perform a range of
light work as defined in 20 CFR 404.1567(b) and 416.967(b)
consisting of lifting up to 20 pounds occasionally and 10
pounds frequently, standing and walking for about 6 hours and
sitting for up to 6 hours, with an 8-hour workday, with
normal breaks. The claimant is able to perform work that does
not involve concentrated exposure to extreme heat, chemicals,
poorly ventilated areas, and environmental irritants such as
fumes, odors, dusts and gases. The claimant is able to
perform work that does not involve even moderate exposure to
unprotected heights or use of moving machinery. The claimant
is limited to occupations, which do not require more than
frequent near and far acuity. The claimant is able to
understand, remember and carry out simple instructions, make
judgments on simple work related decisions, interact
appropriately with supervisors and coworkers in a routine
work setting, and respond to usual work situations and no
changes in a routine work setting.
(Tr. at 16-20, Finding No. 5). At the fourth step, the ALJ
determined that Claimant was unable to perform any past
relevant work. (Tr. at 21, Finding No. 6). Under the fifth
and final inquiry, the ALJ reviewed Claimant's past work
experience, age, and education in combination with his RFC to
determine his ability to engage in substantial gainful
activity. (Tr. at 21-22, Finding Nos. 7-10). The ALJ
considered that (1) Claimant was born in 1971, and was
defined as a younger individual age 18-44 on the alleged
disability onset date; (2) he had a limited education and
could communicate in English; and (3) transferability of job
skills was not material to the disability determination
because Claimant's past relevant work was unskilled. (Tr.
at 21, Finding Nos. 7-9). Given these factors, Claimant's
RFC, and the testimony of a vocational expert, the ALJ
determined that Claimant could perform jobs that existed in
significant numbers in the national economy, including work
as a cashier, fast food worker, and merchandise marker at the
unskilled, light exertional level. (Tr. at 21-22, Finding No.
10). Therefore, the ALJ found that Claimant was not disabled
as defined in the Social Security Act, and was not entitled
to benefits. (Tr. at 22, Finding No. 11).
Claimant's Challenges to the Commissioner's
raises one challenge to the Commissioner's decision.
Claimant contends that the ALJ erred when disregarding
testimony by the vocational expert in which she opined that
an individual would not be employable if he needed to miss
more than one day of work per month and was off task more
than 15% of a work day. According to Claimant, his frequent
chest pain and migraine headaches would invariably cause him
to exceed those parameters. (ECF No. 10 at 5-6).
response, the Commissioner argues that there is no medical
support for Claimant's allegation that he would miss more
than one day of work per month and would be off task in
excess of 15% each work day. (ECF No. 13 at 10-15). Moreover,
the Commissioner points out that the vocational expert's
testimony was not specific to Claimant; rather it was offered
as a generality. The Commissioner adds that the testimony was
not in response to a hypothetical question that accurately
reflected Claimant's RFC; accordingly, the ALJ had no
obligation to give the testimony any evidentiary weight.
undersigned has reviewed all of the evidence before the
Court. The following evidence is most ...