United States District Court, W.D. Virginia, Danville Division
REPORT AND RECOMMENDATION
C. Hoppe United States Magistrate Judge
Crystal Jennings asks this Court to review the Commissioner
of Social Security's (“Commissioner”) final
decision denying her applications for disability insurance
benefits (“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act (the “Act”), 42 U.S.C. §§
401-434, 1381-1383f. The case is before me by referral under
28 U.S.C. § 636(b)(1)(B). ECF No. 14. Having considered
the administrative record, the parties' briefs and oral
arguments, and the applicable law, I find that the
Commissioner's decision is not supported by substantial
evidence. Therefore, I recommend that the Court DENY the
Commissioner's Motion for Summary Judgment, ECF No. 18,
and REMAND the case for further administrative proceedings.
Standard of Review
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 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).
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 Universal Camera Corp. v. NLRB, 340 U.S.
474, 487-89 (1951); Gordon v. Schweiker, 725 F.2d
231, 236 (4th Cir. 1984). 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)). 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).
person is “disabled” if he or she is unable to
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), 416.905(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 Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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.
applied for DIB and SSI on September 9, 2011, alleging
disability caused by hernia repair, asthma, chronic
obstructive pulmonary disease (“COPD”), and
arthritis in the right knee. Administrative Record
(“R.”) 60, 70, ECF No. 11. She alleged onset of
her disability on September 14, 2010, at which time she was
thirty-nine years old. Id. Disability Determination
Services (“DDS”), the state agency, denied her
claims at the initial, R. 60-79, and reconsideration stages,
R. 96-119. On May 15, 2014, Jennings appeared with counsel at
an administrative hearing before ALJ Brian P. Kilbane, at
which time the ALJ heard testimony from Jennings and
Barristade Hensley, Ed.D., a vocational expert
(“VE”). R. 24-54.
Kilbane denied Jennings's claims in a written decision
issued on June 9, 2014. R. 11-23. He found that Jennings had
severe impairments of COPD, left leg arthropathy, obesity,
and status post adhesion and hernia repairs. R. 13.
Jennings's medically determinable impairments of
gastroesophageal reflux disease, mild hyperopic astigmatism,
deep vein thrombosis (“DVT”), hyperlipidemia,
migraine headaches, and affective disorder were found to be
nonsevere, and an alleged impairment of low back pain was not
supported by the record. R. 13-15. The ALJ next determined
that none of Jennings's impairments, alone or
combination, met or medically equaled the severity of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1-in particular Listings 1.00 (disorders of the
musculoskeletal system), 3.02 (chronic pulmonary
insufficiency), and 5.06 (inflammatory bowel disease). R.
Jennings's residual functional capacity
(“RFC”),  the ALJ found that she could perform
light work with no climbing of ladders, ropes, or
scaffolds; occasional kneeling, crouching, crawling, and
climbing of ramps or stairs; frequent stooping; and avoidance
of concentrated exposure to environmental hazards. R. 16-21.
Based on this RFC and the VE's testimony, the ALJ found
that Jennings could perform her past relevant work as a
customer service representative and cashier, or
alternatively, could perform other work existing in
significant numbers in the national and regional economies,
including non-postal mail clerk, order clerk, and hand
packer. R. 21-23. He therefore concluded that Jennings was
not disabled. R. 23.
sought review of the ALJ's opinion by the Appeals
Council. R. 6-7. She submitted additional evidence for
consideration, which the Appeal Council entered into the
record. R. 4. On October 22, 2015, the Appeals Council denied
Jennings's request for review without explanation. R.
1-3. This appeal followed.
has a long history of gastrointestinal (“GI”)
issues dating back to 2000, when a television fell onto her
chest, rupturing gastric contents into her mediastinum and
abdomen. R. 684. She underwent acute repair of a
perforation to her upper GI tract at that time and had
subsequent, similar repairs in 2001 and 2003. R. 304, 684.
Around the time of her alleged onset date, she was
hospitalized at Martinsville Regional Medical Center
following an episode in which she experienced difficult
defecation, sharp pain in the epigastrium, diffuse pain in
the lower abdominal quadrants, shortness of breath, and
vomiting blood. Id. A CT scan of her abdomen showed
free peritoneal air, and an exploratory laparotomy found
multiple adhesions, a viable incarcerated incisional hernia,
and peritonitis of unknown etiology, but a site of
perforation could not be identified. Id. Her hernia
was excised, and her abdomen was flushed and closed. R. 684.
She made slow progress over the next two weeks, experiencing
a constant low-grade fever and moderate leukocytosis, which
did not improve with antibiotic treatment. R. 684- 85.
Another CT scan revealed free fluid in the right upper
quadrant of the abdomen and in the pelvis. R. 685.
September 29, Jennings was transferred to Carilion Roanoke
Memorial Hospital (the “hospital”) for treatment
of her postoperative complications and abdominal abscesses.
Id. Her abscesses were drained, with fecal matter
present in the output of one drain, and a repeat CT scan
suggested perforation of the sigmoid colon. Id. On
October 3, Bruce A. Long, M.D., performed a sigmoid and left
colon resection with distal transverse colostomy.
Id. Jennings remained hospitalized for
about two weeks with some complications, including DVT in the
bilateral lower extremities and slow progress with physical
therapy. R. 685-86. She was discharged on October 19, at
which time she tolerated a regular diet, had regular bowel
movements, ambulated with a walker, and was in stable
condition with her pain well-controlled. R. 686. Following
her discharge, she received home nursing care for her
colostomy site and her surgical wound. R. 757. She continued
with home care until October 31, at times struggling because
of a limited ability to ambulate, weakness, and pain around
her surgical site, but at the time of her discharge she was
able to perform activities of daily living with assistance.
See generally R. 783-832.
record is then silent until March 15, 2011, at which time
Jennings returned to Dr. Long for a follow-up visit. R.
707-10. She showed gradual improvement, but complained of
some nausea and loss of appetite. R. 707. There was no
evidence of bowel obstruction or persistent sepsis, and a CT
scan showed that the abscess in her upper abdomen had
resolved. R. 677, 709. On April 11, Jennings visited David H.
Lewis, M.D., her primary care physician, with complaints of
difficulty sleeping and increased nervousness. R. 1055. Dr.
Lewis noted that her colostomy was functioning and that she
was tender around her incision ...