IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL ACTION NO. 3:21-CV-00478-DSC
CATHERINE NEWBERRY DAVIS, ) ) Plaintiff, ) ) MEMORANDUM AND ORDER OF ) REMAND v. ) ) COMMISSIONER OF SOCIAL ) SECURITY , ) ) Defendant. )
THIS MATTER is before the Court on Plaintiff’s “Motion for Summary Judgment” (document #9) and Defendant’s “Motion for Summary Judgment” (document #11), as well as the parties’ briefs and exhibits. The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and these Motions are ripe for disposition. Having considered the written arguments, administrative record, and applicable authority, the Court finds that Defendant’s decision to deny Plaintiff Social Security benefits is not supported by substantial evidence. Accordingly, the Court will grant Plaintiff’s Motion for Summary Judgment; deny Defendant’s Motion for Summary Judgment; reverse the Commissioner’s decision; and remand this matter for further proceedings consistent with this Memorandum and Order.
1 I. PROCEDURAL HISTORY
The Court adopts the procedural history as stated in the parties’ briefs. Plaintiff filed the present action on September 10, 2021. She assigns error to the Administrative Law Judge’s conclusion that she could perform her past relevant work as a pastor. See Plaintiff’s “Memorandum ...” at 1, 4-11 (document #10); “Reply ...” (document #13). The ALJ found that Plaintiff had severe impairments, including common variable immunodeficiency (CVID).1 He found that she had the Residual Functional Capacity2 for light work, but no close contact with the public without a mask. He found Plaintiff able to return to her past relevant work based upon a Vocational Expert’s testimony in response to “a hypothetical … with the restrictions described [in the RFC]” (Tr. 19). This statement is inaccurate. The ALJ did not question the VE about the use of a mask or include it in a hypothetical. (Tr. 63-77).
II. STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's review of a final decision of the Commissioner to: (1) whether substantial evidence supports the Commissioner’s decision, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); and (2) whether
1Common variable immunodeficiency (CVID) is an immune system disorder that causes the individual to have low levels of the proteins that help fight infections. CVID is characterized by repeated infections in the ears, sinuses and respiratory system, increased risk of digestive disorders, autoimmune disorders, blood disorders and cancer. CVID can be inherited or can be developed during one’s lifetime. https://www.mayoclinic.org/diseases- conditions/common-variable-immunodeficiency/symptoms-causes/syc-20355821 2The Social Security Regulations define “Residual Functional Capacity” as “what [a claimant] can still do despite his limitations.” 20 C.F.R. § 404.1545(a). The Commissioner is required to “first assess the nature and extent of [the claimant’s] physical limitations and then determine [the claimant’s] Residual Functional Capacity for work activity on a regular and continuing basis.” 20 C.F.R. § 404.1545(b).
2 the Commissioner applied the correct legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). The District Court does not review a final decision of the Commissioner de novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
As the Social Security Act provides, “[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). In Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), the Fourth Circuit defined “substantial evidence” thus: Substantial evidence has been defined as being “more than a scintilla and do[ing] more than creat[ing] a suspicion of the existence of a fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
See also Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistencies in the medical evidence”). The Fourth Circuit has long emphasized that it is not for a reviewing court to weigh the evidence again, nor to substitute its judgment for that of the Commissioner, assuming the Commissioner’s final decision is supported by substantial evidence. Hays v. Sullivan, 907 F.2d at 1456 (4th Cir. 1990); see also Smith v. Schweiker, 795 F.2d at 345; and Blalock v. Richardson, 483 F.2d at 775. Indeed, this is true even if the reviewing court disagrees with the outcome – so long as there is “substantial evidence” in the record to support the final decision below. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
3 III. DISCUSSION OF CLAIM
The question before the ALJ was whether Plaintiff became disabled at any time.3 Plaintiff challenges the ALJ’s determination of her RFC. The ALJ is solely responsible for assessing a claimant’s RFC. 20 C.F.R. §§ 404.1546(c) & 416.946(c). In making that assessment, the ALJ must consider the functional limitations resulting from the claimant’s medically determinable impairments. SSR96-8p, available at 1996 WL 374184, at *2. The ALJ must also “include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.” Id. Plaintiff has the burden of establishing her RFC by showing how her impairments affect her functioning. See 20 C.F.R. §§404.1512(c) & 416.912(c); see also, e.g., Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“[t]he burden of persuasion . . .
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION CIVIL ACTION NO. 3:21-CV-00478-DSC
CATHERINE NEWBERRY DAVIS, ) ) Plaintiff, ) ) MEMORANDUM AND ORDER OF ) REMAND v. ) ) COMMISSIONER OF SOCIAL ) SECURITY , ) ) Defendant. )
THIS MATTER is before the Court on Plaintiff’s “Motion for Summary Judgment” (document #9) and Defendant’s “Motion for Summary Judgment” (document #11), as well as the parties’ briefs and exhibits. The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and these Motions are ripe for disposition. Having considered the written arguments, administrative record, and applicable authority, the Court finds that Defendant’s decision to deny Plaintiff Social Security benefits is not supported by substantial evidence. Accordingly, the Court will grant Plaintiff’s Motion for Summary Judgment; deny Defendant’s Motion for Summary Judgment; reverse the Commissioner’s decision; and remand this matter for further proceedings consistent with this Memorandum and Order.
1 I. PROCEDURAL HISTORY
The Court adopts the procedural history as stated in the parties’ briefs. Plaintiff filed the present action on September 10, 2021. She assigns error to the Administrative Law Judge’s conclusion that she could perform her past relevant work as a pastor. See Plaintiff’s “Memorandum ...” at 1, 4-11 (document #10); “Reply ...” (document #13). The ALJ found that Plaintiff had severe impairments, including common variable immunodeficiency (CVID).1 He found that she had the Residual Functional Capacity2 for light work, but no close contact with the public without a mask. He found Plaintiff able to return to her past relevant work based upon a Vocational Expert’s testimony in response to “a hypothetical … with the restrictions described [in the RFC]” (Tr. 19). This statement is inaccurate. The ALJ did not question the VE about the use of a mask or include it in a hypothetical. (Tr. 63-77).
II. STANDARD OF REVIEW
The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court's review of a final decision of the Commissioner to: (1) whether substantial evidence supports the Commissioner’s decision, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); and (2) whether
1Common variable immunodeficiency (CVID) is an immune system disorder that causes the individual to have low levels of the proteins that help fight infections. CVID is characterized by repeated infections in the ears, sinuses and respiratory system, increased risk of digestive disorders, autoimmune disorders, blood disorders and cancer. CVID can be inherited or can be developed during one’s lifetime. https://www.mayoclinic.org/diseases- conditions/common-variable-immunodeficiency/symptoms-causes/syc-20355821 2The Social Security Regulations define “Residual Functional Capacity” as “what [a claimant] can still do despite his limitations.” 20 C.F.R. § 404.1545(a). The Commissioner is required to “first assess the nature and extent of [the claimant’s] physical limitations and then determine [the claimant’s] Residual Functional Capacity for work activity on a regular and continuing basis.” 20 C.F.R. § 404.1545(b).
2 the Commissioner applied the correct legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). The District Court does not review a final decision of the Commissioner de novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
As the Social Security Act provides, “[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). In Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971), the Fourth Circuit defined “substantial evidence” thus: Substantial evidence has been defined as being “more than a scintilla and do[ing] more than creat[ing] a suspicion of the existence of a fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
See also Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that it is the responsibility of the [Commissioner] and not the courts to reconcile inconsistencies in the medical evidence”). The Fourth Circuit has long emphasized that it is not for a reviewing court to weigh the evidence again, nor to substitute its judgment for that of the Commissioner, assuming the Commissioner’s final decision is supported by substantial evidence. Hays v. Sullivan, 907 F.2d at 1456 (4th Cir. 1990); see also Smith v. Schweiker, 795 F.2d at 345; and Blalock v. Richardson, 483 F.2d at 775. Indeed, this is true even if the reviewing court disagrees with the outcome – so long as there is “substantial evidence” in the record to support the final decision below. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).
3 III. DISCUSSION OF CLAIM
The question before the ALJ was whether Plaintiff became disabled at any time.3 Plaintiff challenges the ALJ’s determination of her RFC. The ALJ is solely responsible for assessing a claimant’s RFC. 20 C.F.R. §§ 404.1546(c) & 416.946(c). In making that assessment, the ALJ must consider the functional limitations resulting from the claimant’s medically determinable impairments. SSR96-8p, available at 1996 WL 374184, at *2. The ALJ must also “include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.” Id. Plaintiff has the burden of establishing her RFC by showing how her impairments affect her functioning. See 20 C.F.R. §§404.1512(c) & 416.912(c); see also, e.g., Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“[t]he burden of persuasion . . . to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five”); Plummer v. Astrue, No. 5:11-cv-06-RLV-DSC, 2011 WL 7938431, at *5 (W.D.N.C. Sept. 26,
2011) (Memorandum and Recommendation) (“[t]he claimant bears the burden of providing evidence establishing the degree to which her impairments limit her RFC”) (citing Stormo), adopted, 2012 WL 1858844 (May 22, 2102), aff’d, 487 F. App’x 795 (4th Cir. Nov. 6, 2012). In Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), the Fourth Circuit held that “remand may be appropriate . . . where an ALJ fails to assess a claimant's capacity to perform relevant
3Under the Social Security Act, 42 U.S.C. § 301, et seq., the term “disability” is defined as an:
inability 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… Pass v. Chater, 65 F. 3d 1200, 1203 (4th Cir. 1995).
4 functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.” 780 F.3d at 636 (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)). This explicit function-by-function analysis is not necessary when functions are irrelevant or uncontested. The Fourth Circuit has also explained that “the [factfinder] must build an accurate and
logical bridge from the evidence to [its] conclusion.” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016). Moreover, VE testimony based upon an inaccurate or as here, an incomplete hypothetical, cannot be substantial evidence supporting an ALJ’s denial of benefits. Pearson v. Colvin, 810 F.3d 204, 209 (4th Cir. 2015); Mascio, 780 F.3d at 635. Applying those legal principles to the record here, the Court concludes that this matter must be remanded for a new hearing. The ALJ posed two hypotheticals. The first limited Plaintiff to “no close contact with the general public and occasional close contact with coworkers and supervisors.” The second limited her to “no more than occasional close contact with coworkers, supervisors, or the general public.” Tr. 65-66; 67. Neither hypothetical conforms to the RFC the
ALJ ultimately found. In short, where the ALJ expressly based his disability determination on the VE’s testimony but did not pose a hypothetical including all RFC restrictions, his decision to rely on that testimony is not supported by substantial evidence. By ordering remand pursuant to sentence four of 42 U.S.C. § 405(g), the Court does not forecast a decision on the merits of Plaintiff’s application for disability benefits. See Patterson v. Comm'r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017). “Under § 405(g), ‘each final decision of the Secretary [is] reviewable by a separate piece of litigation,’ and a sentence-four remand order ‘terminate[s] the civil action’ seeking judicial review of the Secretary's final
5 decision.” Shalala v. Schaefer, 509 U.S. 292, 299, 113 S. Ct. 2625, 2630-31, 125 L.Ed. 2d 239 (1993) (quoting Sullivan v. Hudson, 490 U.S. 877, 892, 109 S.Ct. 2248, 2258, 104 L.Ed.2d 941 (1989)). IV. ORDER NOW THEREFORE IT IS ORDERED: 1. Plaintiffs “Motion for Summary Judgment” (document #9) is GRANTED; Defendant’s “Motion for Summary Judgment” (document #11) is DENIED; and the Commissioner’s decision is REVERSED. This matter is REMANDED for a new hearing pursuant to Sentence Four of 42 U.S.C. § 405(g).4 2. The Clerk is directed to send copies of this Memorandum and Order to counsel for the parties. SO ORDERED. Signed: April 22, 2022
fr AC ey David S. Cayer : United States Magistrate Judge ae
4Sentence Four authorizes “a judgment affirming, modifying, or reversing the decision ... with or without remanding the cause for a rehearing.” Sullivan v. Finkelstein, 496 U.S. 617, 625 (1990).