Moore v. Colvin

Filing 26

ORDER granting 17 Motion for Judgment on the Pleadings and denying 20 Motion for Judgment on the Pleadings. Signed by US District Judge Terrence W. Boyle on 9/18/2017. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
7:16-CV-68-BO
LUTHER H. MOORE,
Plaintiff,
V.

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This cause comes before the Court on cross-motions for judgment on the pleadings. A
hearing was held on these matters before the undersigned on August 31, 2017, in Edenton, North
Carolina. For the reasons discussed below, this matter is remanded to the Acting Commissioner
for further proceedings.
BACKGROUND
Plaintiff brought this action under 42 U.S.C. §§ 405(g), 1383(c) for review of the final
decision of the Commissioner denying his claims for supplemental security income ("SSI")
pursuant to Title XVI of the Social Security Act and disability insurance benefits ("DIB")
pursuant to Title II of the Social Security Act. Plaintiff protectively filed his application for SSI
on January 29, 2010 and for DIB on August 6, 2010. Plaintiffs amended alleged onset date for
both is April 1, 2008. After initial denial, a hearing was held before an Administrative Law
Judge (ALJ), who issued an unfavorable ruling on May 24, 2012. Upon review, the Appeals
Council remanded the case, and a new hearing was held on July 11, 2014. After the hearing, the
ALJ denied the claims. This decision became the final decision when the Appeals Council

denied plaintiffs subsequent request for review. Plaintiff then timely sought review of the
decision in this Court.
DISCUSSION
Under the Social Security Act, 42 U.S.C. §§ 405(g), and 1383(c)(3), this Court's review
of the Commissioner's decision is limited to determining whether the decision, as a whole, is
supported by substantial evidence and whether the Commissioner employed the correct legal .
standard. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is "such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and
citation omitted).

An individual is considered disabled if he 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 [twelve] months." 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual "shall be determined to be under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other line of substantial
gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation
process to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The
claimant bears the burden of proof at steps one through four, but the burden shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 1.46 n.5 (1987). If a decision

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regarding disability can be made at any step of the process, however, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
At step one, if the Social Security Administration determines that the claimant is
currently engaged in substantial gainful activity, the claim is denied. If not, then step two asks
whether the claimant has a severe impairment or combination of impairments. If the claimant has
a severe impairment, it is compared at step three to those in the Listing of Impairments
("Listing") in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the claimant's impairment meets or
medically equals a Listing, disability is conclusively presumed. If not, at step four, the claimant's
residual functional capacity ("RFC") is assessed to determine if the claimant can perform his past
relevant work. If so, the claim is denied. If the claimant cannot perform past relevant work, then
the burden shifts to the Commissioner at step five to show that the claimant, based on his age,
education, work experience, and RFC, can perform other substantial gainful work. If the
claimant cannot perform other work, then he is found to be disabled. See 20 C.F.R.
§ 416.920(a)(4).
At step one, the ALJ determined that plaintiff met the insured status requirements and
had not engaged in substantial gainful activity since his alleged onset date. Plaintiffs history of
coronary artery disease, diabetes, hypopituitarism, and depression were considered severe
impairments at step two, but were not found to meet or medically equal a Listing at step three.
The ALJ concluded that Plaintiff had the RFC to perform medium work, lift up to 50
pounds occasionally and 25 pounds frequently, and stand, walk and sit for six hours at a time
during an eight-hour work day. The ALJ found that plaintiff was unable to return to his past
relevant work, but that, considering plaintiffs age, education, work experience, RFC, and
testimony from the vocational expert (VE), there were other jobs that existed in significant

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numbers in the national economy that Plaintiff could perform. Thus, the ALJ found that Plaintiff
was not disabled within the meaning of the Act.
The ALJ' s decision is not supported by substantial evidence. In finding that Plaintiff was
able to be physically active, the ALJ relied on evidence that Plaintiff obtained his black belt in
martial arts and ran a youth ministry in 2011. Tr. 31. However, as the Administration
acknowledges in its brief, these were not current activities, but instead positive visualizations he
engaged in as a part of therapy. D. Br. at 21, Tr. 502-505. In this case, the ALJ committed error
by failing to analyze these activities as memories or visualizations as opposed to current
activities. This is reversible error and is not harmless. In order for the error to be harmless, the
ALJ would need to further explain the alternative reasoning that makes this mistake harmless.
See Patterson, 846 F.3d 656, 663 (4th Cir. 2017). The evidence would need to be further
explained in order for there to be meaningful judicial review. Id. Since it has not been, remand is
appropriate.
Additionally, the ALJ failed to appropriately consider Plaintiffs loss of memory. The
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ALJ found Plaintiffs cognitive testing to be invalid, finding that it was likely Plaintiff
exaggerated his symptoms. Tr. 32. Generally, the ALJ found Plaintiffs credibility to be low. Tr.
31. However, part of the reason the ALJ discounted Plaintiffs credibility was due to his ability
to "perform rigorous martial arts, obtain his black belt in martial arts, [and] run outreach youth
ministries"_in 2011, which is erroneous. Id.
In this case, the ALJ committed error by relying on incorrect facts both to evaluate
Plaintiffs physical abilities and his credibility. "If the reviewing court has no way of evaluating
the basis for the ALJ's decision, then 'the proper course, except in rare circumstances, is to

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remand to the agency for additional investigation or explanation."' Radford v. Colvin, 734 F.3d
288, 295 (4th Cir. 2013) (citing Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).

CONCLUSION
Accordingly, plaintiff's motion for judgment on the pleadings [DE 17] is GRANTED and
defendant's motion for judgment on the pleadings [DE 20] is DENIED. The decision of the ALJ
is REMANDED to the Commissioner for further proceedings consistent with the foregoing.

SO ORDERED, this

J..1 day of September, 2017.

~L~

UNITED STATES DISTRIC JUDGE

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