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Gordon v. Berryhill

United States District Court, D. South Carolina, Charleston Division

January 28, 2019

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff Walter Corey Gordon (“Plaintiff'), through counsel, brought this action pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security Administration regarding his claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). This matter was referred to the Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). For the reasons set forth herein, the undersigned recommends reversing the decision of the Commissioner and remanding for further consideration.


         Plaintiff was born June 19, 1981, and was 31 years old on his amended alleged onset of disability date, February 10, 2013. (R. 720, 735.) Plaintiff claims disability due to, inter alia, costochondritis, asthma, fibromyalgia, lumbar degenerative disc disease, depression, and anxiety. (R. at 722.) Plaintiff has past relevant work as a certified nurse assistant and crane operator. (R. at 735.)

         Plaintiff filed for DIB and SSI on October 4, 2013. (R. 194, 196.) His application was denied initially and on reconsideration. (R. 136-40, 142-49.) Following a hearing, Administrative Law Judge (ALJ) Edward T. Morriss denied Plaintiff's claim on January 12, 2015. (R. 21-31.) The Appeals Council denied Plaintiff's request for review, (R. at 1-4), making the ALJ's decision the Commissioner's final decision for purposes of judicial review.

         Thereafter, Plaintiff filed an action in the United States District Court for the District of South Carolina. Gordon v. Comm'r of Soc. Sec., D.S.C. Civil Action No. 2:15-2814-MGL. On January 26, 2017, the District Court remanded the action for further proceedings consistent with its Order (R. at 850-62); Gordon, No. 2:15-cv-2814-MGL. Following the District Court's Order, the Appeals Council vacated the ALJ's June 10, 2010 decision and remanded the matter to the ALJ. (R. at 672-75.)

         On May 10, 2017, ALJ Morriss held a second hearing. (R. at 720.) On August 23, 2017, ALJ Morriss issued a decision finding Plaintiff was not disabled under the Act from February 10, 2013 through the date of his decision. (R. at 720-36.) It appears that Plaintiff did not file exceptions with the Appeals Council and instead filed this action on August 25, 2017. In making the determination that the Plaintiff is not entitled to benefits, the Commissioner adopted the following findings of the ALJ's January 12, 2015 decision (R. 720-36):

(1) The claimant meets the insured status requirements of the Social Security Act through December 31, 2015
(2) The claimant has not engaged in substantial gainful activity February 10, 2013, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: costochondritis, asthma, fibromyalgia, lumbar degenerative disc disease, depression, and anxiety (20 CFR 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the claimant can lift, carry, push and/or pull 20 pounds occasionally and 10 pounds frequently. He can sit for 6 hours in an 8-hour day, and stand and/or walk for 6 hours in an 8-hour day, with normal breaks. He can frequently climb ramps and stairs, stoop, kneel, and crouch. He can occasionally climb ladders, ropes and scaffolds and occasionally crawl. The claimant can frequently perform fine and gross manipulations. He must avoid concentrated exposure to extreme cold, extreme heat, humidity, and hazards. Additionally, he must avoid concentrated exposure to pulmonary irritants, such as fumes, odors, dusts, gases, and poor ventilation. The claimant is limited to understanding, remembering and carrying out simple instructions.
(6) The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on June 19, 1981 and was 26 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date.[1] (20 CFR 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not material to the determination of disability because the Medical-Vocational Rules support a finding that the claimant is “not disabled, ” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from February 10, 2013, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(R. at 720-36.)


         The Act provides that disability benefits shall be available to those persons insured for benefits, who are not of retirement age, who properly apply, and who are under a “disability.” 42 U.S.C. § 423(a). “Disability” is defined in the Act as the inability to “engage in 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” twelve months. See 42 U.S.C. § 423(d)(1)(A).

         To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) has an impairment which prevents past relevant work, and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 404.1520 (DIB context); 20 C.F.R. § 416.920 (SSI context). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 404.1520(a)(4); see also Hall v. Harris, 658 F.2d 260 (4th Cir. 1981).

         A plaintiff is not disabled within the meaning of the Act if he can return to past relevant work as it is customarily performed in the economy or as the claimant actually performed the work. See SSR 82-62, 1982 WL 31386, at *3. The plaintiff bears the burden of establishing his inability to work within the meaning of the Act. 42 U.S.C. § 423(d)(5); He must make a prima facie showing of disability by showing that he is unable to return to his past relevant work. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983); see also Monroe v. Colvin, 826 F.3d 176, 180 (4th Cir. 2016).

         Once an individual has established an inability to return to his past relevant work, the burden is on the Commissioner to come forward with evidence that the plaintiff can perform alternative work and that such work exists in the national economy. See Monroe, 826 F.3d at 180. The Commissioner may carry the burden of demonstrating the existence of jobs available in the national economy which the plaintiff can perform despite the existence of impairments which prevent the return to past relevant work by obtaining testimony from a vocational expert. Id.

         The scope of judicial review by the federal courts in disability cases is narrowly tailored to determine whether the findings of the Commissioner “are supported by substantial evidence and whether the correct law was applied.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Woods v. Berryhill, 888 F.3d 686, 691 (4th Cir. 2018); Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015); 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Mascio, 780 F.3d at 640; Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).

         Substantial evidence is “more than a mere scintilla of evidence but may be less than a preponderance.” Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015) (citing Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)). “In reviewing for substantial evidence, [the court does] not undertake to reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ].” Hancock, 667 F.3d at 472. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [ALJ], ” not on the reviewing court. Id. However, “[a] factual finding by the ALJ is not binding if it was reached by means of an improper standard or misapplication of the law.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).


         Plaintiff contends that the ALJ erred in his assessment that Plaintiff's fibromyalgia does not render him disabled. More specifically, Plaintiff alleges that the ALJ failed to comply with the provisions of SSR 12-2p and failed to properly assess the medical opinions relating to his fibromyalgia. (Dkt. No. 15 at 22-30.) Plaintiff further argues that the ALJ failed to include substantial evidence in his RFC. (Id. at 32-35.) Finally, Plaintiff argues that the ALJ should have obtained Vocational Expert (“VE”) testimony to determine if jobs exist in the national economy for Plaintiff, instead of relying on the Medical Vocational Guidelines. (Id. at 30-32.)

         As discussed further below, the undersigned finds that the ALJ appropriately considered Plaintiff's fibromyalgia in assessing Plaintiff's RFC. However, because the ALJ found Plaintiff suffered from nonexertional limitations, the undersigned finds he erred by failing to obtain VE testimony to determine if jobs exist in the national economy that Plaintiff can perform. Accordingly, the case should be remanded so that a VE may be called to identify any jobs which Plaintiff could perform with his non-exertional limitations.

         A. ...

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