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 28 U.S.C. § 636(b)(1)(B). 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"). 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).
In February 2011, Plaintiff filed applications for DIB and SSI, alleging disability beginning June 1, 2010. [R. 152-66.] Plaintiff, through counsel, subsequently amended his alleged onset date of disability to January 30, 2011. [R. 36.] The claims were denied initially and on reconsideration by the Social Security Administration ("the Administration"). [R. 81-92, 101-04.] Plaintiff requested a hearing before an administrative law judge ("ALJ") and on April 24, 2013, ALJ Edward T. Morriss conducted a video hearing on Plaintiff's claims, with Plaintiff appearing in Myrtle Beach, South Carolina, and the ALJ presiding over the hearing from North Charleston, South Carolina. [R. 32-55.]
On May 15, 2013, the ALJ issued his decision, finding Plaintiff was not disabled under the Social Security Act ("the Act"). [R. 11-31.] At Step 1,  the ALJ found Plaintiff last met the insured status requirements of the Act on December 31, 2015, and had not engaged in substantial gainful activity since January 30, 2011, the amended alleged onset date [R. 16, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, bilateral carpal tunnel syndrome, obesity, and borderline intellectual functioning. [R. 16, Finding 3.] The ALJ also found Plaintiff had the following non-severe impairments: history of hernia repair; hypertension; diabetes mellitus and cholesterol problems; vertigo and enlarged prostate; and vision problems. [R. 17.] Additionally, the ALJ found Plaintiff's diagnosis of a depressive disorder was made based on Plaintiff's subjective complaints and not objective medical findings. [ Id. ] 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. 17, Finding 4.] The ALJ specifically considered Listings 1.02, 1.04, 12.02, and 12.05. [R. 17-20.] Additionally, the ALJ concluded that the combined effects of Plaintiff's impairments were not at least equal in severity to those described in Listings 1.02, 1.04, 2.00, 4.00, 6.00, 9.00, 12.02, 12.04, and 12.05. [ Id. ]
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, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) with no climbing of ladders, ropes and scaffolds and frequent handling with the bilateral upper extremities. He is further limited to understanding, remembering and carrying out simple instructions.
[R. 20, Finding 5.] Based on this RFC finding, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a forklift driver or a construction worker. [R. 24, Finding 6.] However, based on his age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 25, Finding 10.] Thus, the ALJ found that Plaintiff had not been under a disability, as defined in the Act, from January 30, 2011, through the date of the decision. [R. 25, Finding 11.]
Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council declined review. [R. 1-5.] Plaintiff filed this action for judicial review on September 9, 2014. [Doc. 1.]
THE PARTIES' POSITIONS
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 properly assess whether Plaintiff's intellectual deficiencies met or equaled the requirements set forth in Listing 12.05(C), especially considering the criteria promulgated in Flowers v. U.S. Dep't of Health & Human Svcs., 904 F.2d 211 (4th Cir. 1990) [Doc. 16 at 4-7];
2. The ALJ failed to properly consider whether Plaintiff's intellectual deficiencies met or equaled the requirements set forth in Listing 12.05(B), especially considering the results of his I.Q. testing in elementary school which indicated an I.Q. of 59 or less and the lack of any other testing to the contrary [ id. at 7-9]; and
3. The ALJ erred in failing to obtain Vocational Expert Testimony in light of the substantial evidence in the record of Plaintiff's significant non-exertional limitations, and he violated SSR-96-6p when he mechanically relied on the Medical-Vocational Guidelines to deny the claim without providing any specific reasons for doing so [ id. at 9-10].
The Commissioner, on the other hand, contends substantial evidence supports the ALJ's finding that Plaintiff did not meet Listing 12.05 and substantial evidence supports the ALJ's reliance on Medical-Vocational Rule 203.12. [Doc. 17 at 6-15.]
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 ...