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Raymond P. v. Berryhill

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

August 29, 2018

RAYMOND P., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT & RECOMMENDATION

          JOEL C. HOPPE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Raymond P. asks this Court to review the Acting Commissioner of Social Security's (“Commissioner”) final decision denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434. The case is before me by referral under 28 U.S.C. § 636(b)(1)(B). ECF No. 13. Having considered the administrative record, the parties' briefs, and the applicable law, I cannot find that substantial evidence supports the Commissioner's final decision. Accordingly, I recommend that the presiding District Judge reverse the decision and remand the case 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. 42 U.S.C. § 405(g); see also 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, a court reviewing the merits of the Commissioner's final decision 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); see Riley v. Apfel, 88 F.Supp.2d 572, 576 (W.D. Va. 2000) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98-100 (1991)).

         “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 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, 594 (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).

         A person is “disabled” within the meaning of the Act 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); accord 20 C.F.R. § 404.1505(a). Social Security ALJs follow a five-step process to determine whether a claimant is disabled. The ALJ asks, in sequence, whether the claimant (1) is working; (2) has a severe impairment that satisfies the Act's duration requirement; (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); Lewis v. Berryhill, 858 F.3d 858, 861 (4th Cir. 2017); 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof through step four. Lewis, 858 F.3d at 861. At step five, the burden shifts to the agency to prove that the claimant is not disabled. See id.

         II. Procedural History

         Raymond P. filed for DIB on April 9, 2014, alleging disability because of post-traumatic stress disorder, depression, migraine headaches, problems with his right knee and shoulder, and “osteomyelitis resulting in a lumbar corpectomy.” Administrative Record (“R.”) 90, ECF No. 10-1. Disability Determination Services (“DDS”), the state agency, denied his application initially in July 2014, R. 104, and again in October of the same year, R. 121. On April 25, 2016, Raymond P. appeared with counsel and testified at an administrative hearing before ALJ Brian Rippel. See R. 35-88. Raymond P.'s wife, Sharon, and a vocational expert (“VE”) also testified at this hearing. R. 69-76, 77-88.

         ALJ Rippel issued an unfavorable decision on May 12, 2016. R. 17-30. He first found that Raymond P. had not worked since July 23, 2013, the alleged disability onset date, and that he met the Act's insured-status requirements through March 31, 2016.[1] R. 19. At steps two and three, he found that Raymond P.'s “spine disorder status-post surgery; obesity; migraine headaches; right shoulder disorder; anxiety; post-traumatic stress disorder; bilateral knee degenerative joint disease; MRSA [infection]; and osteomyelitis” were severe medical impairments, but that they did not meet or medically equal any of the relevant Listings. R. 19-22 (punctuation corrected). ALJ Rippel then evaluated Raymond P.'s residual functional capacity (“RFC”) as it existed through March 31, 2016. R. 22-28. He found that Raymond P. could have done “sedentary work”[2] as defined in the regulations, but with additional limitations:

he could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; could never climb ladders, ropes, or scaffolds; could occasionally reach overhead with the right upper extremity; and could have no exposure to hazards, such as unprotected heights and hazardous machinery. In addition, the claimant needed the flexibility to use a cane when walking. He was limited to simple, routine tasks involving entry-level, unskilled work, occasional changes in the work setting, and no interaction with the public. The claimant could have occasional interactions with coworkers and supervisors, to include tandem tasks. When interaction would have taken place, they needed to be brief and superficial.

R. 22. Finally, based on this RFC finding and the VE's testimony, ALJ Rippel concluded that Raymond P. was not disabled through March 31, 2016, because he still could have performed certain widely available unskilled sedentary occupations, such as assembler, machine inspector, or semi-conductor production worker. R. 30; see R. 78-86. The Appeals Council denied his request for review, R. 1-3, and this appeal followed.

         III. Discussion

         Raymond P. asks the Court to reverse the Commissioner's final decision because ALJ Rippel “failed to give proper controlling weight” to a treating psychiatrist's opinion that Raymond P.'s medical conditions would not have allowed him to maintain employment during the relevant time, Pl.'s Br. 3 (citing R. 506), and “neglectfully failed to consider the combined effects of all of [Raymond P.'s] impairments, combined with the effects from [his] medicine regimen, ” id. at 5, when evaluating his RFC. He also takes issue with ALJ Rippel's finding that two of Raymond P.'s “admitted” recreational activities during the relevant time-namely learning to waltz and firing a handgun-were “inconsistent with” Raymond P.'s “complaints of disabling symptoms and limitations” and supported the conclusion that he was not disabled. R. 26; see Pl.'s Br. 3-5. Raymond P.'s first objection is meritless, but his second and third objections are persuasive and warrant reversal and remand to give the Commissioner another opportunity to explain her ruling.

         A. Treating ...


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