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Seek v. Colvin

United States District Court, D. South Carolina

November 24, 2014

Timothy Robert Seek, Jr., Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant



This social security matter is before the court for a Report and Recommendation pursuant to Local Civil Rule 83.VII.02 DSC. The plaintiff, Timothy Robert Seek, Jr., brought this action pursuant to 42 U.S.C. § § 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the defendant, Acting Commissioner of Social Security (" Commissioner"), denying his claims for Disability Insurance Benefits (" DIB") and Supplemental Security Income (" SSI"). Having carefully considered the parties' submissions and the applicable law, the court concludes that the Commissioner's decision should be remanded for further consideration as explained below.


Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an " inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. § § 404.1505(a), 416.905(a); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the ALJ to consider, in sequence:

(1) whether the claimant is engaged in substantial gainful activity;

(2) whether the claimant has a " severe" impairment;

(3) whether the claimant has an impairment that meets or equals the requirements of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (" the Listings"), and is thus presumptively disabled;

(4) whether the claimant can perform his past relevant work; and

(5) whether the claimant's impairments prevent him from doing any other kind of work.

20 C.F.R. § § 404.1520(a)(4), 416.920(a)(4).[1] If the ALJ can make a determination that a claimant is or is not disabled at any point in this process, review does not proceed to the next step. Id.

Under this analysis, a claimant has the initial burden of showing that he is unable to return to his past relevant work because of his impairments. Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner. To satisfy this burden, the Commissioner must establish that the claimant has the residual functional capacity, considering the claimant's age, education, work experience, and impairments, to perform alternative jobs that exist in the national economy. 42 U.S.C. § § 423(d)(2)(A), 1382c(a)(3)(A)-(B); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983).


In January 2010, Seek applied for DIB and SSI, alleging disability beginning July 1, 2008. Seek's applications were denied initially and upon reconsideration, and he requested a hearing before an administrative law judge (" ALJ"). A hearing was held on June 12, 2012, at which Seek, who was represented by Stacey E. Thompson, Esquire, appeared and testified. A supplemental hearing was held on July 16, 2012, at which time the ALJ heard testimony from a vocational expert. Seek's attorney was present at the supplemental hearing, but Seek elected to not appear. The ALJ issued a decision on August 3, 2012 concluding that Seek had not been disabled from July 1, 2008 through the date of her decision. (Tr. 26-29.)

Seek was born in 1974 and was thirty-four years old at the time of his alleged disability onset date. (Tr. 176.) He has a college education and past relevant work experience as a car salesman, a laborer, a clean-up worker for a hazardous materials company, and a worker in a package/shipping company. (Tr. 181-82.) Seek alleged disability due to compression of his vertebrae and a possible torn tendon in his right knee. (Tr. 180.)

In applying the five-step sequential process, the ALJ found that Seek had not engaged in substantial gainful activity since July 1, 2008-his alleged onset date. The ALJ also determined that Seek's degenerative disc disease of the lumbar spine, back pain, bilateral knee pain, status post left knee medial meniscus repair and shaving chondroplasty, with right knee iliotibial band syndrome, anxiety, depression, attention deficit hyperactivity disorder (" ADHD"), and impulse control disorder were severe impairments. However, the ALJ found that Seek did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (the " Listings"). The ALJ further found that Seek retained the residual functional capacity to

perform a range of light work as defined in 20 CFR 404.1567(b) and 416.967(b) in that he can lift and carry up to twenty pounds occasionally and ten pounds frequently; stand and walk for about six hours in a workday; and sit for about six hours in a workday. He requires an option to alternate sitting and standing at the workstation. He cannot operate pedal or other foot controls with either lower extremity. H[e] can frequently balance, occasionally stoop, crouch, and climb stairs and ramps, but never kneel, crawl, or climb ladders, ropes, and scaffolds. He is further restricted to work with simple instructions and/or simple repetitive tasks, involving no contact with the public.

(Tr. 20.) The ALJ found that Seek was unable to perform any past relevant work, but that there were jobs that existed in significant numbers in the national economy that Seek could perform. Therefore, the ALJ found that Seek was not disabled from July 1, 2008 through the date of her decision.

Seek submitted additional evidence to the Appeals Council, which denied his request for review on November 8, 2013 making the decision of the ALJ the final action of the ...

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