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Ferrell v. Berryhill

United States District Court, E.D. Tennessee, Chattanooga Division

May 10, 2019

WILLIAM VIRGIL FERRELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          STEGER JUDGE

          MEMORANDUM AND ORDER

          REEVES, UNITED STATES DISTRICT JUDGE

         Defendant has objected [D. 48] to the Report & Recommendation of Magistrate Judge Steger [D. 46]. The R&R granted in part Plaintiff's motion for judgment on the administrative record [D. 35], and denied Defendant's motion for summary judgment [D. 36]. It further recommended that the administrative decision of the Commissioner be reversed, and that this case be remanded to the Commissioner for further administrative proceedings.

         For the following reasons, Judge Steger's R&R is accepted in whole, and the Commissioner's decision will be reversed and remanded.

         I. PROCEDURAL BACKGROUND

         Plaintiff, proceeding pro se, filed a complaint on March 3, 2016, challenging the Commissioner's denial of his application for Social Security disability insurance benefits [D. 1]. The Court initially dismissed this case without prejudice, and without reaching the merits, because Plaintiff failed to perfect service within the appropriate timeframe [D. 17, 18]. On appeal, the Sixth Circuit found this Court in error, and vacated the order of dismissal. The case was remanded [D. 24, 26].

         Two months after remand, Plaintiff filed a motion for judgment on the administrative record, and Defendant filed a motion for summary judgment [D. 35, 36]. Judge Steger addressed both of these motions in his R&R, and ultimately recommended that the decision of the Commissioner be reversed and remanded for further proceedings [D. 46].

         Plaintiff has filed two applications for disability insurance benefits.[1] The first application was denied on August 15, 2012, when the Administrative Law Judge (ALJ) found the claimant able to perform a limited range of light work, and a request for review was denied.

         He filed his second application on November 5, 2012, alleging disability beginning October 8, 2010 (the onset date was later amended to August 16, 2012). After the claim was initially denied, Plaintiff requested a hearing, which was held on August 14, 2014. At the hearing, Karen Vessell appeared on Plaintiff's behalf, as a non-attorney representative.

         II. COMMISSIONER'S DECISION

         A claimant who has filed an application is entitled to disability insurance benefits if they are i) insured, ii) have not reached retirement age, and iii) are disabled (the claimant must also be a U.S. citizen or meet certain lawful presence requirements). 42 U.S.C. § 423(a)(1)(A)-(E).

         The administrative law judge (ALJ) denied Plaintiff's second claim because he determined Plaintiff was not disabled. “Disability” is defined in this instance as the “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.” Id. § 423(d)(1)(A).

         The Social Security Administration (SSA) has promulgated a practical five-step test that ALJs use to determine if a claimant is disabled. See 20 C.F.R. § 404.1520; Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The five steps are considered sequentially, and if at any step a finding of disability or non-disability can be made, the review ends there. Barnhart, 540 U.S. at 24.

         At the first step, the ALJ looks at the claimant's work activity; if the claimant is doing “substantial gainful activity, ” then the SSA will find the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the ALJ then determines whether the claimant has a “severe” medical impairment; if the impairment is not severe, then the SSA will find the claimant is not disabled. Id. § 404.1520(a)(4)(ii). At the third step, the ALJ looks at a list of impairments that are presumed severe enough to render one disabled; if the claimant's impairment appears on that list, the SSA will find the claimant is disabled. Id. § 404.1520(a)(4)(iii); Barnhart, 540 U.S. at 24-25.

         In this case, the ALJ found that Plaintiff was not doing substantial gainful activity (clearing step one), and that his impairment was severe (step two). But his condition was not so severe that he would be presumed disabled (preventing a finding of disability under step three).

         At step four, the ALJ assesses the claimant's past relevant work and “residual functional capacity, ” which is defined as the “most you can still do despite your physical limitations.” 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(1). A claimant's residual functional capacity is defined categorically, on a scale ranging from “sedentary” to “very heavy” work. See Id. § 404.1567. If the ALJ finds the claimant can still do her past relevant work in her current physical condition (i.e., given her residual functional capacity), the SSA will find the claimant is not disabled. Id. § 404.1520(a)(4)(iv). In this case, the ALJ found that Plaintiff could not perform his past relevant work (as a landscape laborer) with his existing residual functional capacity (classified as “medium”). Thus, the ALJ moved on to step five, which is where Plaintiff's claim ran aground.

         Step five incorporates the residual functional capacity assessment from step four, and requires the SSA to find whether the claimant can make an adjustment to any other work the claimant could perform given her age, education, and work experience. Id. § 404.1520(a)(4)(v). The ALJ must consider whether the claimant could be hired to perform this other work by determining if it exists in “significant numbers” in the region where the claimant lives or several regions in the country. Id. ยง ...


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