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Kinker v. Colvin

United States District Court, E.D. Virginia

January 11, 2016

JONATHAN KINKER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

DAVID J. NOVAK, Magistrate Judge.

On January 11, 2012, Jonathan Lawrence Kinker ("Plaintiff") applied for Social Security Disability Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"). The Social Security Administration ("SSA") denied Plaintiff's claims initially and upon reconsideration. On January 16, 2014, Plaintiff (represented by an attorney) appeared before an Administrative Law Judge ("ALJ") for a hearing. On February 11, 2014, the ALJ denied Plaintiff's claims in a written decision. On December 11, 2014, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner.

Plaintiff now appeals the ALJ's decision pursuant to 42 U.S.C. § 405(g), arguing that new and material evidence warrants a remand, and that the ALJ erred in finding that Plaintiff could perform work requiring a reasoning level of three; in failing to incorporate Plaintiff's moderate limitations in concentration, persistence and pace in hypothetical questions posed to a vocational expert ("VE"); in finding Plaintiff's seizure disorder not severe; and, in denying controlling weight to the opinion of one of Plaintiff's treating physicians. (Pl.'s Mem. of P. & A. in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s Mem.") (ECF No. 14) at 6-7.) This matter now comes before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) on the parties' cross-motions for summary judgment, making the matter now ripe for review.[1] For the reasons that follow, the Court recommends that Plaintiff's Motion for Summary Judgment or in the Alternative, Motion for Remand (ECF Nos. 12 and 13) be GRANTED, that Defendant's Motion for Summary Judgment (ECF No. 15) be DENIED and that the final decision of the Commissioner be VACATED and REMANDED.

I. PROCEDURAL HISTORY

On January 24, 2012, Plaintiff applied for DIB and SSI, claiming disability due to a back and knee injury, depression, suicidal ideation, deteriorating discs, being a danger to others, internal damage to his left knee, memory loss, difficulty with comprehension of everyday tasks, being temporarily bedridden and sleep apnea, with an alleged onset date of August 11, 2011. (R. at 235.) The SSA denied Plaintiff's claims initially on March 20, 2012, and again upon reconsideration on June 29, 2012. (R. at 106-07, 176.) Plaintiff filed a written request for a hearing on August 16, 2012, and the ALJ held a hearing on January 16, 2014. (R. at 27-62, 183-85.) On February 11, 2014, the ALJ issued a written opinion, denying Plaintiff's claim and concluding that Plaintiff did not qualify as disabled under the Act, because Plaintiff could perform jobs existing in significant numbers in the national economy. (R. at 9-26.) On December 11, 2014, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner subject to judicial review by this Court. (R. at 1-4.)

II. STANDARD OF REVIEW

In reviewing the Commissioner's decision to deny benefits, the Court "will affirm the Social Security Administration's disability determination when an ALJ has applied correct legal standards and the ALJ's factual findings are supported by substantial evidence.'" Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015) (quoting Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial evidence requires more than a scintilla but less than a preponderance, and includes the kind of relevant evidence that a reasonable mind could accept as adequate to support a conclusion. Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). To determine whether substantial evidence exists, the Court must examine the record as a whole, but may not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [ALJ]." Hancock, 667 F.3d at 472 (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005)). In considering the decision of the Commissioner based on the record as a whole, the Court must "take into account whatever in the record fairly detracts from its weight." Breeden v. Weinberger, 493 F.2d 1002, 1007 (4th Cir. 1974) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951)). The Commissioner's findings as to any fact, if substantial evidence in the record supports the findings, bind the reviewing court to affirm regardless of whether the court disagrees with such findings. Hancock, 667 F.3d at 477. If substantial evidence in the record does not support the ALJ's determination or if the ALJ has made an error of law, the Court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

The Social Security Administration regulations set forth a five-step process that the agency employs to determine whether disability exists. 20 C.F.R. § 416.920(a)(4); see Mascio, 780 F.3d at 634-35 (summarizing the ALJ's five step sequential evaluation). To summarize, at step one, the ALJ looks at the claimant's current work activity. 20 C.F.R. § 416.920(a)(4)(i). At step two, the ALJ asks whether the claimant's medical impairments meet the regulations' severity and duration requirements. 20 C.F.R. § 416.920(a)(4)(ii). Step three requires the ALJ to determine whether the medical impairments meet or equal an impairment listed in the regulations. 20 C.F.R. § 416.920(a)(4)(iii). Between steps three and four, the ALJ must assess the claimant's residual functional capacity ("RFC"), accounting for the most that the claimant can do despite his physical and mental limitations. 20 C.F.R. § 416.945(a). At step four, the ALJ assesses whether the claimant can perform his past work given his RFC. 20 C.F.R. § 416.920(a)(4)(iv). Finally, at step five, the ALJ determines whether the claimant can perform any work existing in the national economy. 20 C.F.R. § 416.920(a)(4)(v).

III. THE ALJ'S DECISION

On January 16, 2014, the ALJ held a hearing during which Plaintiff (represented by counsel) and a VE testified. (R. at 29-62.) On February 11, 2014, the ALJ rendered her decision in a written opinion, finding that Plaintiff did not qualify as disabled under the Act. (R. at 9-26.)

The ALJ followed the five-step sequential evaluation process in analyzing whether Plaintiff was disabled. (R. at 10-12.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. (R. at 12.) At step two, the ALJ found that Plaintiff suffered from the severe impairments of degenerative disc disease of the lumbar spine, osteoarthritis of the left knee, sleep apnea, obesity and major depression. (R. at 12.) At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 12-15.)

The ALJ next determined that Plaintiff had the RFC to perform a range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with certain limitations. (R. at 15.) Plaintiff could only occasionally climb stairs and ramps, stoop and crouch. (R. at 15.) Plaintiff could never kneel, crawl or use ladders, ropes or scaffolds. (R. at 15). He could frequently balance and needed a cane to ambulate. (R. at 15.) Plaintiff could perform unskilled work with no contact with the general public and occasional contact with co-workers, with no tandem work assignments. (R. at 15.)

At step four, the ALJ determined that Plaintiff could not perform his past relevant work as a truck driver because of the levels of exertion required in this position. (R. at 24.) At step five, after considering Plaintiff's age, education, work experience and RFC, and consulting a VE, the ALJ found that other occupations exist in significant numbers in the national economy that Plaintiff could perform. (R. at 24-25.) Specifically, the ALJ found that Plaintiff, regardless of his limitations, could work as a document preparer. (R. at 25.) Accordingly, the ALJ concluded that Plaintiff did not qualify as disabled under the Act. (R. at 25-26.)

On March 20, 2014, Plaintiff submitted to the Appeals Council a psychological assessment by Franklin E. Russell, Ph.D., dated February 6, 2014. (R. at 369-71, 689-94.) The Appeals Council accepted Dr. Russell's report into the record but did not assess its credibility. (R. at 4.)

IV. ANALYSIS

Plaintiff, forty-five years old at the time of this Report and Recommendation, previously worked as a truck driver, a picker for a textiles business and as a cook in a fast food restaurant. (R. at 284.) He applied for DIB and SSI, alleging disability from a back and knee injury, depression, suicidal ideation, deteriorating discs, creating a risk of danger to others, internal damage to his left knee, memory loss, difficulty with comprehension of everyday tasks, being temporarily bedridden and sleep apnea, with an alleged onset date of August 11, 2011. (R. at 235.)

Plaintiff presents five issues in favor of remanding the case to the agency. (Pl.'s Mem. at 6-7.) First, new evidence presented to the Appeals Council warrants remand. (Pl.'s Mem. at 6.) Second, the ALJ committed reversible error in finding that Plaintiff could perform work that required a Reasoning Level of 3. (Pl.'s Mem. at 6.) Third, the hypothetical posed to the VE failed to include all of Plaintiff's mental limitations. (Pl.'s Mem. at 6.) Fourth, the ALJ erred in finding Plaintiff's seizure disorder non-severe at step two. (Pl.'s Mem. at 6-7.) Finally, the ALJ erred by not giving controlling weight to Dr. Moore's opinion. (Pl.'s Mem. at 7.)

For the reasons set forth below, the Court finds that this ...


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