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Bess v. Colvin

United States District Court, W.D. Virginia, Harrisonburg Division

January 30, 2015

JEANNETTE L. BESS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

JOEL C. HOPPE, Magistrate Judge.

Plaintiff Jeannette L. Bess seeks review of the Commissioner of Social Security's ("Commissioner") final decision denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g), and this case is before the undersigned magistrate judge by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 6. After considering the administrative record, the parties' briefs, and the applicable law, I find that remand for consideration of new evidence is appropriate. Therefore, I recommend that the Court remand this case to the Commissioner under sentence six of 42 U.S.C. § 405(g).

I. Standard of Review

The Social Security Act authorizes this Court to review the Commissioner's final determination 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 Administrative Law Judge ("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); 20 C.F.R. § 404.1505(a). 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)(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

Bess was born on September 5, 1961, Administrative Record ("R.") 265, and at the time of the ALJ's decision was "closely approaching advanced age" under 20 C.F.R. § 404.1563(d). She completed high school and has work experience as a cashier, hostess, and laundry attendant. R. 316. Bess protectively filed for DIB on November 8, 2010. R. 265-66. She alleged a disability onset date of December 3, 2009, R. 265, amended to September 20, 2010, at her administrative hearing on January 10, 2012, R. 38; see also R. 59. She alleged disability based on the following conditions: deteriorating cervical discs, upper and lower back problems, high cholesterol and blood pressure, low thyroid, spinal stenosis, and erratic heartbeat. R. 315.

The Commissioner rejected Bess's application initially and on reconsideration. R. 18. On January 10, 2012, the ALJ held an administrative hearing at which Bess was represented by counsel. R. 32-53. In an opinion dated February 17, 2012, the ALJ found that Bess was not disabled under the Act. R. 108-16. Bess requested review of the ALJ's decision by the Appeals Council, which granted her request. R. 121-25. By an order dated April 11, 2013, the Appeals Council remanded her case to the ALJ for further evaluation of the effects of Bess's obesity, her advancement into the "closely approaching advanced age" category, and additional evidence submitted to the Appeals Council. R. 122-24. The ALJ held a second administrative hearing on August 21, 2013. R. 54-83. Bess was represented by counsel, and the ALJ heard testimony from a medical expert and a vocational expert ("VE"). Id.

In an opinion dated August 30, 2013, the ALJ found that Bess had severe impairments of cervical and lumbar degenerative disc disease and obesity. R. 14-15. The ALJ determined that none of these impairments met or equaled the severity of an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. R. 15-16. The ALJ found that Bess had the residual functional capacity ("RFC") to perform light work, [1] except that she can only occasionally perform postural activities, like balancing and stooping, and she must be able to alternate between sitting and standing at will. R. 16. Based upon this RFC, the ALJ found that Bess was unable to perform any of her past occupations, as they did not allow her the option to sit or stand at will. R. 21. Relying on the VE's testimony, the ALJ concluded that jobs exist in significant numbers in the national and local economy that Bess can perform. R. 21-22. Accordingly, the ALJ determined that Bess was not disabled under the Act. R. 22. The Appeals Council denied Bess's request for review, R. 1-4, and this appeal followed.

III. Discussion

Bess's appeal primarily concerns a degenerative spinal condition. The ALJ found in his second opinion that Bess suffered from the severe impairments of "cervical and lumbar degenerative disc disease and obesity." R. 14. Bess has had three surgeries to address her back issues: a cervical diskectomy, decompression, and fusion on October 13, 2010, R. 562-65; a cervical foraminotomy on September 14, 2011, R. 839-47; and a lumbar facetoctomy and foraminotomy on September 27, 2012, R. 1023-24.

On appeal, Bess argues that the ALJ erred by failing to consider the effects of her obesity, find that her impairment met or equal a listing, and properly evaluate her RFC. Bess also contends that additional evidence she submitted to this Court requires remand under sentence six of 42 U.S.C. § 405(g).

Considering the record before the ALJ, Bess's appeal does not present a clear case that this Court should award benefits as she requests, Pl. Br. 14. The ALJ's determination that Bess's impairments do not meet or equal a listing is well supported by the lack of relevant objective findings; specifically, there was no indication that Bess suffered from compromise of a nerve root or the spinal cord, findings necessary to meet the first prong of Listing 1.04, which concerns disorders of the spine. See 20 C.F.R. pt. 404, subpt. P, app. 1 § 1.04A. The record that was before the ALJ also fails to establish the equivalent of this listing. If I agreed with Bess's other arguments concerning the ALJ's evaluation of her obesity and RFC, I would order remand rather than an award of benefits. See Gray v. Colvin, ___ F.Supp.2d ___, 2014 WL 4272767, at *3 (E.D. N.C. Aug. 29, 2014). When remand is warranted under sentence six, a court does not rule on the correctness of the administrative decision below. See Riley v. Apfel, 88 F.Supp.2d 572, 576 (W.D. Va. 2000) ...


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