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Forney v. Berryhill

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

March 25, 2019

MERLE CLINTON FORNEY, JR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION

          Mary Gordon Baker United States Magistrate Judge

         Plaintiff Merle Clinton Forney, Jr. (“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.

         RELEVANT FACTS AND ADMINISTRATIVE PROCEEDINGS

         Plaintiff was born October 19, 1974, and was 32 years old on his alleged onset of disability date, November 6, 2006. (R. 12, 27.) Plaintiff claims disability due to, inter alia, bipolar disorder, anxiety, depression, somatoform (conversion) disorder, seizure disorder, lumbar degenerative disc disease, mild thoracic scoliosis, status post inguinal hernia repair with residual nerve pain and bilateral carpal tunnel syndrome. (R. at 14.) Plaintiff has a limited education and does not have past relevant work. (R. at 27.) Plaintiff filed for DIB on November 6, 2014, and for SSI on January 26, 2015. (R. at 12.) His applications were denied initially and on reconsideration. (R. at 12.) Following a hearing on January 30, 2017, Administrative Law Judge (ALJ) Ann G. Paschall denied Plaintiff's claim on May 11, 2017. (R. 12-29.) 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.

         In making the determination that Plaintiff is not entitled to benefits, the Commissioner adopted the following findings of the ALJ:

(1) The claimant meets the insured status requirements of the Social Security Act through September 30, 2010.
(2) The claimant has not engaged in substantial gainful activity since November 6, 2006, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: bipolar disorder, anxiety, depression, somatoform (conversion) disorder, seizure disorder, lumbar degenerative disc disease, mild thoracic scoliosis, status post inguinal hernia repair with residual nerve pain and bilateral carpal tunnel syndrome (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 sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he can never climb ladders. He can frequently engage in bilateral handling and fingering. He can have no exposure to dangerous machinery or unprotected heights. He can perform simple, routine, tasks and instructions. He can have contact with the public 10% of the time or less. He can concentrate on, focus and attend to work tasks for at least two hours at a time before needing a normal break of 15 minutes, or once per day, a 30 minute meal break.
(6) The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
(7) The claimant was born on October 19, 1974 and was 32 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
(8) The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
(9) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
(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 November 6, 2006, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(R. at 12-28.)

         APPLICABLE LAW

         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 denovo 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. ...


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