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Powell v. Colvin

United States District Court, District of South Carolina, Anderson/Greenwood Division

December 2, 2014

Ettamae S. Powell, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.


Jacquelyn D. Austin Greenville, South Carolina United States Magistrate Judge

This matter is before the Court for a Report and Recommendation pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B).[1]Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the 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 April 25, 2011, Plaintiff protectively filed an application for DIB, alleging an onset of disability date of July 29, 2012.[2] [R. 116–17.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 51, 54–57, 61–62]. Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on September 10, 2012, ALJ Ronald Sweeda conducted a de novo hearing on Plaintiff’s claims in North Charleston, South Carolina. [R. 28–49.]

The ALJ issued a decision on September 21, 2012, finding that Plaintiff had not been under a disability as defined by the Act from July 29, 2012, through the date of the decision. [R. 19–27.] At Step 1, [3] the ALJ found Plaintiff met the insured status requirements of the Social Security Act (“the Act”) through December 31, 2015, and had not engaged in substantial gainful activity since July 29, 2012, the alleged onset date. [R. 21, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: cardiomyopathy, history of cardiac arrhythmia, history of breast cancer, and lymphedema. [R. 21, Finding 3.] The ALJ also found Plaintiff had a non-severe impairment of depression resulting in mild restriction in her activities of daily living, mild limitations in her social functioning, and mild deficiencies of her concentration, persistence, or pace. [R. 21–22.] At Step 3, the ALJ determined Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 22, Finding 4.] The ALJ specifically considered Listings 1.02A, 1.03, and 4.11 with respect to Plaintiff’s lymphedema; Listings 4.02, 4.05, and 11.04 with respect to Plaintiff’s cardiomyopathy and arrhythmias; and Listing 13.10 with respect to Plaintiff’s breast cancer. [R. 21–22.]

Before addressing Step 4, Plaintiff’s ability to perform her past relevant work, the ALJ found

the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant can only lift or carry 20 pounds occasionally and 10 pounds frequently using her left arm as a guide; cannot reach beyond arm's length with her non dominant left upper extremity; cannot perform overhead work; cannot climb ladders, ropes, or scaffolds, balance, crawl, or kneel; and cannot work at unprotected heights or with dangerous machinery.

[R. 22, Finding 5.] Based on this residual functional capacity (“RFC”) finding at Step 4, the ALJ determined Plaintiff could not perform her past relevant work as a cosmetologist [R. 25, Finding 6]; but, based on her age, education, work experience, RFC, and the testimony of a vocational expert (“VE”), there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 26, Finding 10]. On this basis, the ALJ found Plaintiff had not been under a disability as defined by the Act from July 29, 2012, through the date of the decision. [R. 27, Finding 11.]

Plaintiff requested Appeals Council review of the ALJ’s decision, and the Council declined review. [R. 1–5.] Plaintiff filed this action for judicial review on November 22, 2013. [Doc. 1.]


Plaintiff contends the ALJ’s decision is not supported by substantial evidence and that remand is necessary for the following reasons:

1. the ALJ failed to resolve a conflict between the VE testimony and the Dictionary of Occupational Titles (“DOT”) in violation of SSR 00-4p;
2. the ALJ failed to include Plaintiff’s need to elevate her left arm for significant periods of time in his hypothetical question to the VE and in his RFC findings; and,
3. the ALJ erroneously rejected the treating physician opinion of Dr. Christian, a specialist in oncology.

The Commissioner, on the other hand, contends the ALJ’s decision is supported by substantial evidence and that the ALJ

1. properly determined Plaintiff’s RFC and properly excluded any limitation requiring Plaintiff to elevate her left arm for significant periods of time; and appropriately did not need to ask the VE to assume Plaintiff’s need to elevate her left arm for significant periods of time;
2. properly evaluated and weighed the opinion of Dr. Christian giving it less than controlling weight; and,
3. At Step Five, properly relied on the VE’s testimony that Plaintiff can perform other work in the economy; properly determined that there was no conflict between the DOT and the VE’s testimony; and addressed the mandates of SSR 00-4p.

The Commissioner asks the Court to affirm its decision. [Doc. 22 at 11.]


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 support a decision denying coverage under the correct legal standard and when reopening the record for more evidence would serve no purpose.” Breeden v. Weinberger, 493 F.2d 1002, 1012 (4th Cir. 1974).

The court may remand a case to the Commissioner for a rehearing under sentence four or sentence six of 42 U.S.C. § 405(g). Sargent v. Sullivan, 941 F.2d 1207 (4th Cir. 1991) (unpublished table decision). To remand under sentence four, the reviewing court must find either that the Commissioner’s decision is not supported by substantial evidence or that the Commissioner incorrectly applied the law relevant to the disability claim. See, e.g., Jackson v. Chater, 99 F.3d 1086, 1090–91 (11th Cir. 1996) (holding remand was appropriate where the ALJ failed to develop a full and fair record of the claimant’s residual functional capacity); Brehem v. Harris, 621 F.2d 688, 690 (5th Cir. 1980) (holding remand was appropriate where record was insufficient to affirm but was also insufficient for court to find the claimant disabled). Where the court cannot discern the basis for the Commissioner’s decision, a remand under sentence four is usually the proper course to allow the Commissioner to explain the basis for the decision or for additional investigation. See Radford v. Comm’r, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see also Smith v. Heckler, 782 F.2d 1176, 1181–82 (4th Cir. 1986) (remanding case where decision of ALJ contained “a gap in its reasoning” because ALJ did not say he was discounting testimony or why); Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 1984) (remanding case where neither the ALJ nor the Appeals Council indicated the weight given to relevant evidence). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. See Smith, 782 F.2d at 1182 (“The [Commissioner] and the claimant may produce further evidence on remand.”). After a remand under sentence four, the court enters a final and immediately appealable judgment and then loses jurisdiction. Sargent, 941 F.2d 1207 (citing Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991)).

In contrast, sentence six provides:

The court may . . . at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .

42 U.S.C. § 405(g). A reviewing court may remand a case to the Commissioner on the basis of new evidence only if four prerequisites are met: (1) the evidence is relevant to the determination of disability at the time the application was first filed; (2) the evidence is material to the extent that the Commissioner’s decision might reasonably have been different had the new evidence been before him; (3) there is good cause for the claimant’s failure to submit the evidence when the claim was before the Commissioner; and (4) the claimant made at least a general showing of the nature of the new evidence to the reviewing court. Borders v. Heckler, 777 F.2d 954, 955 (4th Cir. 1985) (citing 42 U.S.C. § 405(g); Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir. 1983); Sims v. Harris, 631 F.2d 26, 28 (4th Cir. 1980); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)), superseded byamendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec’y, Dep’t ofHealth & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991).[4] With remand under sentence six, the parties must return to the court after remand to file modified findings of fact. Melkonyan, 501 U.S. at 98. The reviewing court retains jurisdiction pending ...

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