United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, 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). 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 March 23, 2010, Plaintiff protectively filed an application for DIB, alleging an onset of disability date of August 12, 2009. [R. 29, 167-68.] The claim was denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 110-13, 115-16]. Plaintiff requested a hearing before an administrative law judge ("ALJ"), and, on April 23, 2012, ALJ Walter C. Herin, Jr., conducted a de novo hearing on Plaintiff's claims. [R. 44-104.]
The ALJ issued a decision on June 28, 2012, finding that Plaintiff has not been under a disability as defined by the Act from August 12, 2009, through the date of the decision. [R. 29-36.] At Step 1,  the ALJ found Plaintiff met the insured status requirements of the Social Security Act ("the Act") through September 30, 2015, and had not engaged in substantial gainful activity since August 12, 2009, the alleged onset date. [R. 31, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative joint disease, right ankle, status post arthroscopic repair; degenerative joint disease, left shoulder; and degenerative disc disease, lumbar spine. [R. 31, Finding 3.] The ALJ also found Plaintiff had non-severe impairments: remote history of surgery, right wrist, without recent treatment; hypertension; diabetes mellitus; hypothyroidism; and mood disorder. [R. 31-32.] 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. 32, Finding 4.] The ALJ specifically considered Listings 1.02, 1.04, and 12.04. [R. 32.]
Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found
that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) with restrictions that require no lifting or carrying over ten pounds occasionally and less than ten pounds frequently; no standing and/or walking over two hours in an eight-hour workday; no more than occasional stooping, crouching, kneeling, or climbing of stairs or ramps; no more than frequent balancing; no crawling or climbing of ladders, ropes or scaffolds; only frequent use of foot pedals or other controls with the bilateral lower extremities; and avoidance of hazards such as unprotected heights, dangerous machinery, uneven terrain, or commercial driving.
[R. 32-36, Finding 5.] Based on this residual functional capacity ("RFC") finding, at Step 4, and the testimony of a vocational expert ("VE"), the ALJ determined Plaintiff was capable of performing past relevant work as an order clerk. [R. 36, Finding 6]. On this basis, the ALJ found Plaintiff had not been under a disability, as defined by the Act, from August 12, 2009, through the date of the decision. [R. 36, Finding 7.]
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 September 3, 2013. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and that remand for an award of benefits is proper for the following reasons:
1. The ALJ failed to perform a proper analysis of Plaintiff's ability to perform her past relevant work in compliance with SSR 82-62 in that he found Plaintiff capable of performing work as an "order clerk" when she "never actually performed this work specifically";
2. The ALJ failed to make findings regarding the physical and mental demands of Plaintiff's past job/occupation as required by SSR 82-62; and
3. The ALJ failed to properly evaluate Plaintiff's credibility and failed to provide any discussion regarding Plaintiff's pain in his decision.
The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence for the following reasons:
1. The ALJ properly found Plaintiff could perform her past relevant work as an order clerk where her work as an order clerk was performed contemporaneously with other duties;
2. The ALJ properly made findings of fact as to the physical and mental demands of Plaintiff's past relevant work as required by SR 82-62 and properly relied on Plaintiff's ability to perform the job as actually performed in the national economy; and,
3. The ALJ properly evaluated Plaintiff's credibility and found Plaintiff's allegations concerning the severity and limiting effects of her impairments were not fully credible to the extent they exceeded the limitations contained in the RFC.
The Commissioner asks the Court to uphold its decision.
STANDARD OF REVIEW
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 ...