United States District Court, W.D. Virginia, Danville Division
LAWRENCE G. BASS, JR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
JOEL C. HOPPE, Magistrate Judge.
Plaintiff Lawrence G. Bass, Jr. asks this Court to review the Commissioner of Social Security's ("Commissioner") final decision denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-422, 1381-1383f. This Court has authority to decide Bass's case under 42 U.S.C. §§ 405(g) and 1383(c)(3), and his case is before me by referral under 28 U.S.C. § 636(b)(1)(B). Having considered the administrative record, the parties' briefs and oral arguments, and the applicable law, I find that substantial evidence in the current record does not support the Commissioner's final decision that Bass is not disabled. Therefore, I recommend that the Court reverse the Commissioner's decision and remand the cause for rehearing under the fourth sentence of 42 U.S.C. § 405(g).
I. Standard of Review
The Social Security Act authorizes this Court to review the Commissioner's final decision that a person is not entitled to disability benefits. See 42 U.S.C. § 405(g); Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). The Court's role, however, is limited-it may not "reweigh conflicting evidence, make credibility determinations, or substitute [its] judgment" for that of agency officials. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012). Instead, the Court asks only whether the ALJ applied the correct legal standards and whether substantial evidence supports the ALJ's factual findings. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011).
"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" of evidence, id., but not necessarily "a large or considerable amount of evidence, " Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence review takes into account the entire record, and not just the evidence cited by the ALJ. See Gordon v. Schweiker, 725 F.2d 231, 236 (4th Cir. 1984); Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-89 (1951). Ultimately, this Court must affirm the ALJ's factual findings if "conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled.'" Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal quotation marks omitted)). 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).
A person is "disabled" if he or she is unable 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 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a) (governing claims for DIB), 416.905(a) (governing adult claims for SSI). Social Security ALJs follow a five-step process to determine whether an applicant is disabled. The ALJ asks, in sequence, whether the applicant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals an impairment listed in the Act's regulations; (4) can return to his or her past relevant work based on his or her residual functional capacity; and, if not (5) whether he or she can perform other work. See 20 C.F.R. §§ 404.1520(a), 416.920(a)(4); Heckler v. Campbell, 461 U.S. 458, 460-62 (1983). The applicant bears the burden of proof at steps one through four. Hancock, 667 F.3d at 472. At step five, the burden shifts to the agency to prove that the applicant is not disabled. See id.
II. Procedural History
Bass protectively filed for DIB and SSI on December 29, 2010. See Administrative Record ("R.") 72, 81. He was 50 years old, id., and had worked most recently in the construction industry, R. 36, 87. Bass said that he stopped working on December 30, 2008, because of back pain, diabetes, headaches, depression, difficulty sleeping, and blurred vision. See R. 72, 81. The state agency denied his applications initially in March 2011, R. 80, 89, and upon reconsideration in May 2011, R. 100-01, 110-11.
Bass appeared pro se at a hearing before Administrative Law Judge Brian Kilbane ("the ALJ" or "ALJ Kilbane") on September 5, 2012. R. 33-34. He testified about many of his alleged impairments and to the limitations those impairments caused in his functional activities. R. 39-42. A vocational expert ("VE") also testified as to Bass's ability to return to his past relevant work or to perform other work existing in the national and regional economies. R. 44-46.
In a written decision dated September 27, 2012, ALJ Kilbane concluded that Bass was not entitled to disability benefits. R. 30. He found that Bass suffered from a severe spine disorder, but that the impairment was not presumptively disabling. See R. 24-25. The ALJ next determined that Bass had the residual functional capacity ("RFC") to perform a full range of light work. See R. 18, 29. Relying on the VE's testimony, ALJ Kilbane concluded that Bass was not disabled because he could return to his past relevant work as a security guard. R. 28.
ALJ Kilbane also gave two alternative reasons for denying Bass's claim. See R. 29. First, he found that the regulations directed a finding of "not disabled" based on Bass's age, education, work history, and ability to perform a full range of unskilled light work. See R. 28-29. Second, again relying on the VE's testimony, ALJ Kilbane found that Bass could perform certain light occupations existing in the national and regional economies. See R. 29, 45-46.
Bass's current attorney submitted additional medical records with his request for the Appeals Council to review ALJ Kilbane's decision. See R. 2, 3, 285-86, 387-409. The Appeals Council considered this evidence, but "found that th[e] information [did] not provide a basis for changing" ALJ Kilbane's decision. R. 2. The Appeals Council declined to review that decision, R. 1, and this appeal followed.
A. Evidence in the Record before ALJ Kilbane Medical evidence in the record before ALJ Kilbane shows that Bass has a history of chronic lower back pain and muscle spasms, cervical disc disease, and pain and weakness in his legs. See R. 291-92 (Apr. 2009); R. 312, 355-58 (Jan. 2010); R. 308, 336-37, 338, 340-42, 348, 349-50, (Feb. 2010); R. 330-33 (Mar. 2010); R. 369-70 (Mar. 2011); R. 381 (Apr. 2011). Diagnostic images taken in early 2010 showed "degenerative changes" in the thoracic spine, "mild anterior spurring" at L3, L4, L5, and possible spondylolysis at L5. See R. 312, 304, 308. Emergency department physicians regularly treated Bass's symptoms with prescription-strength medications including Vicodin, Percocet, Naproxen, Lortab, Ultram, and Flexeril. See, e.g., R. 292, 308, 333, 336-37, 348, 357.
The original record contains very little medical evidence of Bass's physical condition after December 15, 2010, however. See R. 27, 361, 369-70, 381. A "Physician's Ready Report" from Danville-Pittsylvania Community Services documented without explanation that Bass was diagnosed ...