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Little v. Colvin

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

August 2, 2016

DAVID LITTLE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Robert S. Ballou United States Magistrate Judge

         Plaintiff David Little (“Little”) filed this action challenging the final decision of the Commissioner of Social Security (“Commissioner”) finding him not disabled and therefore ineligible for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social Security Act (“Act”). 42 U.S.C. §§ 401-433, 1381-1383f. Little alleges that the Administrative Law Judge (“ALJ”) erred by (1) improperly assessing Little's impairments at step two of the sequential evaluation; (2) failing to follow the five-step sequential evaluation process; (3) improperly rejecting the opinions of medical experts; (4) failing to properly determine whether Little's impairments met a Listing; (5) failing to make a finding at step four of the sequential evaluation; (6) failing to properly analyze Little's pain; and (7) failing to make a function-by-function assessment. I conclude that the ALJ improperly assessed Little's impairments at step two of the sequential evaluation and failed to properly follow the five-step evaluation process and that substantial evidence does not support the Commissioner's decision. Accordingly, I RECOMMEND GRANTING in part Little's Motion for Summary Judgment (Dkt. No.12) and DENYING the Commissioner's Motion for Summary Judgment (Dkt. No. 14), and reversing and remanding this case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Report and Recommendation.

         STANDARD OF REVIEW

         This court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Little failed to demonstrate that he was disabled under the Act.[1] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations and alterations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         CLAIM HISTORY

         Little protectively filed for DIB and SSI on June 20, 2011, claiming that his disability began on November 1, 2010, due to bipolar disorder, sleep apnea, and back and leg problems. R. 187, 194, 219-227. Little's date last insured was December 31, 2015. R. 15, 73.[2] The state agency denied Little's applications at the initial and reconsideration levels of administrative review. R. 73-92, 95-118. On May 1, 2013, ALJ Mark A. O'Hara held a hearing to consider Little's claims for DIB and SSI. R. 32-69. Counsel represented Little at the hearing, which included testimony from vocational expert Andrew V. Beale.

         On December 23, 2013, the ALJ entered his decision analyzing and denying Little's claim for benefits. R. 14-26. The five-step process used to evaluate a disability claim requires the Commissioner to ask, in sequence, whether the claimant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals the requirements of a listed impairment; (4) can return to his past relevant work; and if not, (5) whether he can perform other work. Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (per curiam) (citing 20 C.F.R. § 404.1520); Heckler v. Campbell, 461 U.S. 458, 460-62 (1983). If it is determined that the plaintiff is disabled or not disabled at a step, a decision is made and the evaluation will not go on to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the burden of proof at steps one through four to establish a prima facie case for disability. At the fifth step, the burden shifts to the Commissioner to establish that the claimant maintains the residual functional capacity (“RFC”), considering the claimant's age, education, work experience, and impairments, to perform available alternative work in the local and national economies. 42 U.S.C. § 423(d)(2)(A); Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir. 1975).

         The ALJ found that Little was insured at the time of the alleged disability onset, and that he suffered from the impairments of obesity, mood and personality disorders, mild obstructive sleep apnea, back and knee pain, hypertension, recent diabetes mellitus, cardiomyopathy, and chronic kidney disease, but that none of his impairments were severe. R. 17, 22. However, despite determining that Little did not have a severe medically determinable impairment at step two, the ALJ continued to step three.[3] See 20 C.F.R. § 404.1520(a)(4) (explaining that if the claimant has no severe impairments at the second step, the claimant is not disabled and “if we can find that you are . . . not disabled at a step, we make our determination or decision and we do not go on to the next step.”); see also Bowen v. Yuckert, 482 U.S. 137, 141-42 (1987) (“If the claimant does not have a severe impairment or combination of impairments, the disability claim is denied.”).

         At step three, the ALJ found that Little did not have “impairments that meet or equal the requirements of any section of Appendix 1” and that Little's chronic kidney disease did not meet Listing 6.02 or 6.06. R. 23. The ALJ never determined a residual functional capacity (“RFC”) for Little as step four would require. Nevertheless, the ALJ concluded that Little retained the RFC to perform a limited range of light work. R. 24. In fact, the ALJ found that the impairments affecting Little would erode the unskilled light occupational base. The ALJ then assigned without explanation or analysis an RFC for Little. The ALJ wrote:

[T]he undersigned asked the vocational expert whether jobs exist in the national economy for an individual with [Little's] age, education, work experience, and the RFC for lifting and carrying 20 pounds occasionally and 10 pounds frequently, standing/walking 4 hours and sitting for 6 hours in an 8 hour workday, occasional climbing of stairs/ramps, balancing, stooping, and crouching, but no climbing of ladders/ ropes/scaffolds, kneeling or crawling and must avoid concentrated exposure to workplace hazards (such as moving machine parts and unprotected heights) as suggested by the DDS physicians and the consultative examiner.

R. 24-25. At step five, the ALJ determined that Little could perform jobs that exist in significant numbers in the national economy, such as ticket taker, cashier, and lobby monitor.”[4] R. 25. The ALJ also determined that Little could perform a full range of sedentary unskilled work.[5] R. 25. Thus, the ALJ concluded, even if the claimant was considered to have severe impairments, a finding of ‘not disabled' was appropriate. R. 25. Little appealed the ALJ's decision and the Appeals Council denied his request for review on April 17, 2015. R. 1-3.

         ANALYSIS

         A. Medical History

         When Little protectively filed for DIB and SSI in June 2011 he was referred to Daniel Herman, M.D., Ph.D., for an examination related to his complaints of low back pain and knee pain. R. 356-62. Little saw Dr. Herman on August 25, 2011. On examination, Little was five feet and six inches tall and weighed 374 pounds, could ambulate without an assistive device and sit and stand independently. R. 358. Little had right lateral patellar pain and lateral facet pain with “some crepitus at the patellofemoral joint and pain with flexion.” R. 358. Little also had mildly limited range of motion in his right knee and limited range of motion in his hips “secondary to his impressive central girth.” R. 359. X-rays of Little's spine on August 22, 2011 showed partial sacralization of L5, multiple small osteophytes, and mild disc narrowing at L3- L5, as well as degenerative changes and spondylosis. R. 364. Dr. Herman diagnosed low back pain “likely secondary to facet joint arthropathy” and right knee pain “likely secondary to patellar chondromalacia versus patellofemoral pain syndrome.” R. 359. Dr. Herman recommended pain control measures and physical therapy. R. 359-60. Dr. Herman indicated in his ...


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