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Mikell v. Berryhill

United States District Court, D. South Carolina

June 18, 2019

Benjamin Stiles Mikell, Jr., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE.

         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, Benjamin Stiles Mikell, 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”). 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.

         SOCIAL SECURITY DISABILITY GENERALLY

         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).

         ADMINISTRATIVE PROCEEDINGS

         In July 2012, Mikell applied for DIB, and later amended his disability onset date to September 1, 2009. Mikell's application was denied initially and upon reconsideration, and he requested a hearing before an ALJ. A hearing was held on June 24, 2014, at which Mikell appeared and testified, and was represented by James D. Callahan, Esquire. After hearing testimony from a vocational expert, the ALJ issued a decision on July 21, 2014 finding that Mikell was not disabled from September 1, 2009 through the date last insured of March 31, 2010. (Tr. 157-65.) The Appeals Council granted Mikell's request for review and issued an order on December 5, 2015 vacating the hearing decision and remanding the case for further proceedings. (Tr. 173-74.) The Appeals Council instructed the ALJ to resolve the following issue:

• The hearing decision does not contain an evaluation of the nontreating source opinion in Exhibit 14F at page 2 (March 17, 2010). In Exhibit 14F at page 2, consulting examiner Norman Bettle, M.D., opines, among other things, that the claimant can only work for 4 to 5 hours a day and can only sit for 4 hours in a day. It is necessary to evaluate Dr. Bettle's opinion in Exhibit 14F at page 2. The Appeals Council also notes that Dr. Bettle's opinion contains some unclear lifting restrictions. It is necessary to obtain clarification of these restrictions from Dr. Bettle. The Appeals Council also notes that the hearing decision (Decision at page 6/paragraph 5) reports that, in a different examination report, Dr. Bettle reported that the claimant's symptoms may be aggravated by carrying 20 pounds (Exhibit 14F at pages 3 to 4-December 16, 2009). Dr. Bettle, however, actually reported that the claimant's symptoms may be aggravated by carrying items of 10 to 20 pounds. It is necessary to evaluate further Dr. Bettle's opinion in Exhibit 14F at pages 3 to 4.

(Tr. 173.) The Appeals Council also directed the ALJ as follows:

• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). In so doing, (1) obtain clarification from Dr. Bettle regarding the lifting limitations indicated in his opinion in Exhibit 14F at page 2, evaluate Dr. Bettle's opinion in Exhibit 14F at page 2 pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p, ...

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