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Kinsey v. Colvin

United States District Court, D. South Carolina, Anderson/Greenwood Division

October 24, 2014

Robin D Kinsey, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.


JACQUELYN D. AUSTIN, Magistrate Judge.

This matter is before the Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a), D.S.C. Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of Defendant Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claim for disability insurance benefits ("DIB"). For the reasons set forth below, it is recommended that the decision of the Commissioner be reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).


On March 30, 2010, Plaintiff filed an application for DIB alleging an onset of disability date of December 30, 2009. [R. 10, 117-19.] Plaintiff's claim was denied initially on June 23, 2010 [R. 47-50], and on reconsideration on November 9, 2010 [R. 53-55], by the Social Security Administration ("the Administration"). Plaintiff requested a hearing before an administrative law judge ("ALJ") and on March 1, 2012, ALJ Edward T. Morriss conducted a de novo video hearing on Plaintiff's claims. [R. 24-44.]

The ALJ issued a decision on April 26, 2012, finding Plaintiff not disabled under the Social Security Act ("the Act"). [R.10-18.] At Step 1, [1] the ALJ found Plaintiff met the insured status requirements of the Act through March 31, 2014, and had not engaged in substantial gainful activity since December 30, 2009, the alleged onset date. [R. 12, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease, anxiety/panic attacks, and right carpal tunnel syndrome. [R. 12, Finding 3.] The ALJ also determined Plaintiff had non-severe impairments of fibromyalgia, premature ventricular contractions and migraines, and depression. [R. 12-13.] At Step 3, the ALJ determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled the criteria of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 13, Finding 4.] The ALJ specifically considered Plaintiff's back problems under Listing 1.04 and her mental impairments under Listing 12.06 [R. 13-14.]

Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ made the following finding with respect to Plaintiff's residual functional capacity ("RFC"):

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to: sit, stand, and walk each for 6 hours of an 8-hour day; frequently lift/carry 10 pounds; occasionally lift 20 pounds; frequently climb ramps, stairs, balance, stoop, kneel, and crouch; and occasionally climb ladders/ropes/scaffolds, reach overhead, frequently perform gross manipulation, and occasionally crawl. She would be further limited to understanding, remembering, and carrying out simple instructions and would need to avoid work involving contact with the general public.

[R. 14, Finding 5.] Based on this RFC, at Step 4, the ALJ determined Plaintiff was unable to perform her past relevant work as an office manager. [R. 17, Finding 6.] Considering the Plaintiff's age, education, work experience, and residual functional capacity, however, the ALJ found that there are jobs that exist in significant numbers in the national economy that the Plaintiff can perform. [R. 17, Finding 10.] Consequently, the ALJ concluded Plaintiff has not been under a disability, as defined by the Act, from December 30, 2009, through the date of the decision. [R. 18, Finding 11.]

Plaintiff requested Appeals Council review of the ALJ's decision, but the Council declined review on April 23, 2013. [R. 1-6.] Plaintiff filed this action for judicial review on June 24, 2013. [Doc. 1.]


Plaintiff contends the ALJ's decision is not supported by substantial evidence and claims the ALJ erred by

1. failing to find Plaintiff's fibromyalgia was a severe impairment [Doc. 21 at 12-14];
2. failing to consider and provide discussion with respect to the combined impact of Plaintiff's multiple impairments [ id. at 14-15];
3. improperly dismissing the opinion of Plaintiff's treating physician Dr. Michael Smith [ id. at 15-17]; and,
4. improperly assessing Plaintiff's credibility [ id. at 17-19].

The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence because the ALJ

1. did not err in finding Plaintiff's fibromyalgia to be non-severe and, regardless, considered Plaintiff's severe and non-severe impairments throughout the remaining steps of the evaluation [Doc. 23 at 7-9];
2. properly considered the combined effects of Plaintiff's impairments [ id. at 9-14];
3. properly evaluated the opinion of Plaintiff's treating physician Dr. Michael Smith and reasonably accorded it little weight [ id. at 14-16]; and,
4. properly assessed Plaintiff's credibility [ id. at 16-19].

Accordingly, the Commissioner requests that the Court affirm the ALJ's decision. [ Id. at19.]


The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla-i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (citing Woolridge v. Celebrezze, 214 F.Supp. 686, 687 (S.D. W.Va. 1963))("Substantial evidence, it has been held, is evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is substantial evidence.'").

Where conflicting evidence "allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ), " not on the reviewing court. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996); see also Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991) (stating that where the Commissioner's decision is supported by substantial evidence, the court will affirm, even if the reviewer would have reached a contrary result as finder of fact and even if the reviewer finds that the evidence preponderates against the Commissioner's decision). Thus, it is not within the province of a reviewing court to determine the weight of the evidence, nor is it the court's function to substitute its judgment for that of the Commissioner so long as the decision is supported by substantial evidence. See Bird v. Comm'r, 699 F.3d 337, 340 (4th Cir. 2012); Laws, 368 F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962).

The reviewing court will reverse the Commissioner's decision on plenary review, however, if the decision applies incorrect law or fails to provide the court with sufficient reasoning to determine that the Commissioner properly applied the law. Myers v. Califano, 611 F.2d 980, 982 (4th Cir. 1980); see also Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). Where the Commissioner's decision "is in clear disregard of the overwhelming weight of the evidence, Congress has empowered the courts to modify or reverse the [Commissioner's] decision with or without remanding the cause for a rehearing.'" Vitek v. Finch, 438 F.2d 1157, 1158 (4th Cir. 1971) (quoting 42 U.S.C. § 405(g)). Remand is unnecessary where "the record does not contain substantial evidence to ...

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