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Pepper v. Berryhill

United States District Court, D. South Carolina

August 27, 2018

Adam Christopher Pepper, Plaintiff,
Nancy A. Berryhill, 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 (D.S.C.). The plaintiff, Adam Christopher Pepper, 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”). Following briefing, the court held oral argument in this matter on August 23, 2018, at which both parties were represented by counsel. Having carefully considered the parties' submissions and argument, as well as 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) and (d)(5), 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); see also Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1973). The regulations require the Administrative Law Judge (“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).[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); 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 December 2015, Pepper applied for DIB, alleging disability beginning April 3, 2010. Pepper's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on December 1, 2016, at which Pepper, who was represented by Carole M. Dennison, Esquire, appeared and testified. After hearing testimony from a vocational expert, the ALJ issued a decision on February 23, 2017, finding that Pepper was not disabled from the alleged onset date of April 3, 2010 through the date last insured of December 31, 2015. (Tr. 12-30.)

         Pepper was born in 1979 and was thirty-six years old on his date last insured. He has a high school education and has past relevant work experience as a non-commissioned officer in the United States army, a grocery store clerk, and a pizza deliveryman. (Tr. 335.) Pepper alleged disability due to posttraumatic stress disorder, a back injury, knee and elbow joint damage and pain, a wrist cyst, hearing loss and tinnitus, head trauma, sleeping disorders, anxiety, depression, social disorders, and side effects from medication. (Tr. 333.)

         In applying the five-step sequential process, the ALJ found that Pepper had not engaged in substantial gainful activity from his alleged onset date of April 3, 2010 through his date last insured of December 31, 2015. The ALJ determined that, through the date last insured, Pepper's degenerative disc disease, osteoarthritis of the right knee, mood disorder, anxiety disorder, posttraumatic stress disorder, and narcissistic personality disorder were severe impairments. However, ALJ found that, through the date last insured, Pepper had not had 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 found, after consideration of the entire record, that through the date last insured, Pepper retained the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) except he can stand and walk 3 hours and sit 6 hours in an 8-hour workday. He can frequently operate foot controls with his right lower extremity. He can never climb. He can frequently stoop. He can occasionally crouch, kneel, and crawl. He can have frequent exposure to extreme temperatures, wetness, humidity, and hazards. He is further limited to simple, routine tasks performed 2-hours at a time in a work environment free of fast paced production requirements; involving only simple, ...

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