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Odom v. Colvin

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

January 30, 2015

Maurice Anthony Odom, Sr., Plaintiff,
v.
Carolyn W. Colvin, Commissioner of Social Security, Defendant.

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 Rule 73.02(B)(2)(a), D.S.C., and Title 28 U.S.C. § 636(b)(1)(B).[1] 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 the Commissioner of Social Security ("the Commissioner"), denying Plaintiff's claims for disability insurance benefits ("DIB") and supplemental security income ("SSI").[2] 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).

PROCEDURAL HISTORY

In March 2010, Plaintiff filed applications for DIB and SSI, alleging disability beginning November 16, 2009. [R. 218-31.] The claims were denied initially and upon reconsideration by the Social Security Administration ("the Administration"). [R. 68-82, 108-12, 118-21.] On June 3, 2011, an attorney advisor issued a fully favorable decision on Plaintiff's claims. [R. 83-90.] On August 31, 2011, the Appeals Council decided to review the decision sua sponte and gave Plaintiff an opportunity to submit additional evidence and arguments. [R. 138-42.] On September 21, 2011, the Appeals Council reversed and remanded the matter, finding that the attorney advisor had not resolved significant evidentiary conflicts, assessed Plaintiff's work-related abilities, or addressed evidence indicating possible fraud, and further ordering consideration of additional medical and earnings-related evidence on remand. [R. 96-101.] On October 3, 2011, the Appeals Council issued an amended remand order, addressing additional evidentiary submissions from Plaintiff. [R. 103-07.]

It appears Plaintiff filed a request for hearing before an administrative law judge ("ALJ") on February 22, 2011, [R. 137], and the hearing was scheduled for March 22, 2012. On March 20, 2012, it appears that Plaintiff's caregiver and Plaintiff sent a letter[3] by facsimile to an SSA hearing officer, and Plaintiff's caregiver spoke to the SSA hearing officer by telephone, to request that Plaintiff's hearing be postponed to another date because he did not have proper representation due to his lawyer withdrawing from the case at the last minute because he could not practice law in Augusta, Georgia, the site of the hearing.[4] [R. 67, 363.] Additionally, Plaintiff indicated he did not have transportation to the hearing. [R. 67.] The letter also asked whether the judge could make a decision based on the medical records he already had. [ Id. ] On March 20, 2012, the SSA hearing officer told Plaintiff's caregiver that it would be better to appear at the hearing and then request a postponement. [R. 363.] On March 21, 2012, the ALJ denied Plaintiff's request for a postponement because the case had been in the system long enough and medical expert had been scheduled for the hearing. [R. 66.] On March 21, 2012, the SSA hearing officer left a voicemail for Plaintiff's caregiver that the judge had denied the request for postponement and she and Plaintiff should be present at the hearing set for the next day. [R. 364.] On March 22, 2012, the SSA hearing officer spoke with Plaintiff's caregiver on the telephone, and Plaintiff's caregiver stated that "her car was wrecked and she couldn't find transportation for either she or Mr. Odom and she just wanted Judge Northington to base her decision on the records already submitted." [R. 365.] On March 22, 2012, the ALJ held a hearing at which a medical expert appeared in person and a vocational expert testified via telephone. [R. 40-64.] The ALJ explained at the hearing on the record that his staff had contacted the claimant and his spouse to determine whether Plaintiff wanted a continuance to obtain counsel or requested a decision based on the evidence of record; and, the ALJ stated that Plaintiff and his spouse had communicated they were having car problems and "have requested that I adjudicate the matter on the record." [R. 42-43.]

On June 14, 2012, the ALJ issued a decision finding that Plaintiff was not disabled. [R. 16-32.] At Step 1[5], the ALJ found Plaintiff last met the insured status requirements of the Social Security Act ("the Act") on June 30, 2013, and had not[6] engaged in substantial gainful activity since November 16, 2009, the alleged onset date. [R. 18, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the severe impairment of paranoid schizophrenia. [R. 19, Finding 3.] The ALJ also found Plaintiff had the following non-severe impairments: a history of hemorrhoids and genital herpes. [ Id. ] At Step 3, the ALJ determined Plaintiff's impairments or combination of impairments do not meet or medically equal the severity of one of the listed impairments, considering specifically Listing 12.03. [R. 19-21, Finding 4.]

Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found that Plaintiff retained the following residual functional capacity ("RFC"):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a wide range of work at all exertional levels, which implicitly includes the performance of medium, light, and sedentary work as defined by the Dictionary of Occupational Titles and the Regulations. He has no identifiable limitations for sitting, standing and/or walking in an eight-hour workday. In addition, the claimant does not have any postural limitations. Secondary to his mental impairments, he retains the capacity to understand, remember, and carry out simple instructions; and perform simple, routine tasks as consistent with unskilled work. In the course of work, the claimant is to have no contact with the general public and only occasional contact with coworkers. The claimant is able to perform sustained work activity on a regular and continuous basis for eight hours per day, forty hours per week.

[R. 21, Finding 5.] Based on this RFC, at Step 4, the ALJ determined Plaintiff was unable to perform past relevant work as a Fabric Inspector. [R. 30, Finding 6.] However, considering Plaintiff's age, education, work experience, and RFC, the ALJ determined there were jobs in significant numbers in the national economy that the claimant can perform. [R. 30, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability, as defined in the Act, from November 16, 2009, through the date of the decision. [R. 31, Finding 11.]

Plaintiff, represented by his "caregiver, " Tometrius Williams[7], appealed the decision administratively [R. 8], and on September 5, 2013, the Appeals Council denied the request for review, making the ALJ's decision final for purposes of judicial review. [R. 1-5.] Plaintiff, now acting pro se, brought this action pursuant to 42 U.S.C. § 405(g).

THE PARTIES' POSITIONS

Plaintiff, proceeding pro se, contends he is entitled to disability benefits due to his mental illness. [ See generally Doc. 42; Doc. 47.] Giving liberal construction to the pro se briefs as it is required to do, the Court gleans the following grounds of appeal. Plaintiff's legal rights to attend and testify at the hearing before the ALJ, and to be represented by counsel at the hearing, were violated by the ALJ's refusal to postpone the hearing. [Doc. 42 at 4-5.] He also argues his hearing should have been held in Aiken, South Carolina, where his case was filed; because his hearing was held in Augusta, Georgia, his attorney could not represent him as he was not licensed to practice there. [ Id.; Doc. 47 at 2-3.] Plaintiff alleges "[t]he hearing officer acted corruptly and unprofessional in that manner knowing we were right but chose to do nothing." [Doc. 42 at 4.] Plaintiff also contends the favorable decision finding him disabled by the Attorney Advisor should have been upheld. [ Id. at 4-5.] Plaintiff also appears to argue the ALJ failed to consider the fact that he was in special education classes in school, was a remedial student, and was considered mentally impaired.[8] [ Id. at 5.] Plaintiff contends that there is no way a person can function on a daily basis or hold down a daily job with the amount of medication he is required to take, and the Administration should have adopted the opinions of his doctors who found "agree with is mental disorder in his favor." [Doc. 47 at 1-2.] Plaintiff also contends his work history has nothing to do with the level of his disability and that "as time goes by the years or he losing his mind later." [ Id. at 3.] Ultimately, Plaintiff argues there is no work for a patient with his criteria considering his diagnosis, his medication, and his criminal record. [ Id. at 4.]

The Commissioner contends the ALJ's decision should be affirmed because it is legally sound and supported by substantial evidence. [Doc. 53.]

STANDARD OF REVIEW

Liberal Construction of Pro Se Complaint

Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S.97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

Court's Scope of Review in Social Security Actions

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 ...

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