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 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) 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 affirmed.
On June 28, 2011, Plaintiff protectively filed an application for DIB, alleging an onset of disability date of May 31, 2001. [R.150-53.] The claim was denied initially and upon reconsideration by the Social Security Administration ("the Administration"). [R. 50-57, 60-67]. Plaintiff requested a hearing before an administrative law judge ("ALJ") and on July 10, 2012, ALJ Ronald Sweeda conducted a de novo hearing on Plaintiff's claims in North Charleston, South Carolina. [R. 21-49.]
The ALJ issued a decision on July 26, 2012, finding Plaintiff was not disabled under the Social Security Act ("The Act"). [R. 12-20.] At Step 1,  the ALJ found Plaintiff met the insured status requirements of the Act through December 31, 2010. [R. 14, Findings 1.] The ALJ found that, during the period of his alleged disability, Plaintiff engaged in substantial gainful activity between January 2001 and December 2001, January 2003 and December 2003, January 2010 and August 2010; additionally, Plaintiff just missed meeting the required income for 2008. [R. 14, Finding 2.] However, the ALJ found there had been continuous 12-month periods during which Plaintiff did not engage in substantial gainful activity. [R. 14, Finding 3.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease and status post lumbar fusion surgery. [R. 14, Finding 4.] 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 [Doc. 19 at 13.] Further, Plaintiff has abandoned his claim for disability from 2001 through 2003. [Doc. 19 at 13.] Accordingly, the Court is concerned with the ALJ's determination of Plaintiff's disability from August 31, 2010, the date Plaintiff alleges his disability recommenced [ id. at 13, 19], to December 31, 2010, Plaintiff's date last insured. impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 15, Finding 5.] The ALJ specifically considered Listing 1.04 (disorders of the spine). [R. 15.]
Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found Plaintiff retained the following residual functional capacity ("RFC"):
through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b). Specifically, the claimant is able to lift and carry up to 20 pounds occasionally and 10 pounds frequently and stand, walk, and sit for 6 hours in an 8-hour day except that the claimant can lift/carry 15 pounds occasionally and can sit for 6 hours and stand/walk for 2 hours each in an 8-hour day. The claimant must be allowed to change positions for stretching purposes every 15 minutes. He can never crawl, kneel, or climb. The claimant can have no exposure to temperature extremes, high humidity, or vibration.
[R. 15, Finding 6.] Based on this RFC, at Step 4, the ALJ determined Plaintiff was unable to perform his past relevant work as a construction manager and forklift operator. [R. 18, Finding 7.] Considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 18-19, Finding 11.] Accordingly, the ALJ found Plaintiff had not been under a disability, as defined by the Act, at any time from May 31, 2001, the alleged onset date, through December 31, 2010, the date last insured. [R. 19, Finding 12.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Council declined review. [R. 1-6. ] Plaintiff filed this action for judicial review on October 10, 2013. [Doc. 1.]
THE PARTIES' POSITIONS
Plaintiff contends the ALJ's decision is not supported by substantial evidence and that remand is necessary because the ALJ
1. improperly evaluated Plaintiff's RFC by failing to explain how he arrived at the specific limitations he assessed and why he rejected key components of Plaintiff's testimony and Plaintiff's physicians' restrictions. Plaintiff also contends the ALJ decision is undermined by treatment notes added to the record by the Appeal Counsel; and, that the ALJ improperly discounted Plaintiff's credibility because he was able to work at times although his working illustrates several starts and stops showing Plaintiff cannot work on any "regular and continuing basis; [Doc. 19 at 13-18].
The Commissioner, on the other hand, contends the ALJ's decision is supported by substantial evidence because the ALJ
1. properly assessed Plaintiff's RFC, taking into account the opinion of his treating physician; [Doc. 22 at 5-8], and,
2. properly evaluated Plaintiff's credibility and provided a well-reasoned credibility finding; [ id. at 8-13].
Accordingly, the Commissioner requests that the Court affirm the ALJ's 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 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 by amendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec'y, Dep't of Health & Human Servs., 925 F.2d 769, 774 (4th Cir. 1991). 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 ...