United States District Court, D. South Carolina, Anderson/Greenwood Division
Sheila M. Tant, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, Magistrate Judge.
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. Â§ 636(b)(1)(B). Plaintiff brought this action pursuant
to 42 U.S.C. Â§Â§ 405(g) and Section 205(g) of the Social
Security Act 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 disabled
widow's insurance benefits ("DWIB"). 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. Â§ 405(g).
January 29, 2013, Plaintiff filed applications for DIB and
DWIB, alleging disability beginning July 31, 2012. [R.
203-17.] The claims were denied initially and upon
reconsideration by the Social Security Administration
("the Administration"). [R. 114-21, 126-37.]
Plaintiff filed a request for hearing before an
administrative law judge ("ALJ"), and on May 8,
2014, ALJ Edward T. Morriss conducted a hearing on
Plaintiff's claims. [R. 31-52.]
12, 2014, the ALJ issued his decision finding Plaintiff not
disabled for DIB or DWIB. [R. 17-26.] At Step 1, the ALJ
found Plaintiff meets the insured status requirements of the
Social Security Act ("the Act") through December
31, 2017; met the non-disability requirements for disabled
widow's benefits set forth in section 202(e) of the Act;
and had not engaged in substantial gainful activity since
July 31, 2012, the alleged onset date. [R. 19, Findings 1, 2
2, the ALJ found Plaintiff had the following severe
impairments: degenerative disc disease of the cervical and
lumbar spine. [R. 20, Finding 5.] The ALJ also found
Plaintiff had the non-severe impairment of anxiety. [
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. [R. 20, Finding
6.] The ALJ specifically considered Listing 1.04 related to
disorders of the spine. [ Id. ]
addressing Step 4, Plaintiff's ability to perform her
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
less than the full range of light work as defined in 20 CFR
404.1567(b). Specifically, the claimant can lift, carry, push
and/or pull 20 pounds occasionally and 10 pounds frequently.
She can sit for 6 hours in an 8-hour day, and stand and/or
walk for 6 hours in an 8-hour day, with normal breaks. The
claimant can only occasionally climb ramps and stairs and
crouch. She can frequently balance, stoop, kneel and crawl.
Additionally, she can never climb ladders, ropes or
scaffolds. The claimant can only occasionally reach overhead
with the bilateral upper extremities.
Finding 7.] Based on this RFC, at Step 4, the ALJ determined
Plaintiff was able to perform her past relevant work as a
registrar. [R. 26, Finding 8.] Thus, the ALJ found Plaintiff
had not been under a disability, as defined by the Act, from
July 31, 2012, through June 12, 2014, the date of the
decision; nor was she entitled to DWIB based on her January
29, 2013, application. [R. 26.]
filed a request for review of the ALJ's decision with the
Appeals Council, which denied review on October 24, 2014. [R.
1-6.] Plaintiff commenced an action for judicial review in
this Court on December 6, 2014. [Doc. 1.]
contends the ALJ's decision is not supported by
substantial evidence and contains legal errors warranting the
reversal and remand of the case. [ See Doc. 13.]
Specifically, Plaintiff contends the ALJ improperly
disregarded the opinion of Plaintiff's treating
orthopedic surgeon Dr. Shaleish Patel ("Dr. Patel")
in determining her RFC. [ Id. at 4-9.] Plaintiff
also argues the ALJ improperly gave more weight to the
opinion of a nontreating state agency physician although
there was no evidence of record from a treating or examining
physician that was inconsistent with the opinion of Dr.
Patel. [ Id. at 9-12.]
Commissioner contends the ALJ's decision should be
affirmed because there is substantial evidence of record that
Plaintiff was not disabled within the meaning of the Act. [
See Doc. 16.] Specifically, the Commissioner
contends the ALJ properly assigned little weight to Dr.
Patel's opinion as his treatment notes failed to include
evidence that would support deficits in Plaintiff's upper
and lower extremity strength and his findings were
inconsistent with Plaintiff's activities of daily living.
[ Id. at 7-10.] Additionally, the Commissioner
contends the ALJ properly found Dr. Patel's opinion was
contradicted by the state agency physician opinion, and thus,
the ALJ was not required to fully credit Dr. Patel's
opinion. [ Id. at 10-12.]
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. Â§ 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
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).
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. Â§
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).
court may remand a case to the Commissioner for a rehearing
under sentence four or sentence six of 42 U.S.C. Â§ 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)).
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. Â§ 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. Â§ 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. Â§ 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 remand and does not enter a
final judgment until after the completion of remand
proceedings. See Allen v. Chater, 67 F.3d 293 (4th
Cir. 1995) (unpublished table decision) (holding that an
order remanding a claim for Social Security benefits pursuant
to sentence six of 42 U.S.C. Â§ 405(g) is not a final order).
provides that disability benefits shall be available to those
persons insured for benefits, who are not of retirement age,
who properly apply, and who are under a disability. 42 U.S.C.
Â§ 423(a). "Disability" is defined as:
the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 consecutive months.
Id. Â§ 423(d)(1)(A).
Five Step Evaluation
facilitate uniform and efficient processing of disability
claims, federal regulations have reduced the statutory
definition of disability to a series of five sequential
questions. See, e.g., Heckler v. Campbell,
461 U.S. 458, 461 n.2 (1983) (noting a "need for
efficiency" in considering disability claims). The ALJ
must consider whether (1) the claimant is engaged in
substantial gainful activity; (2) the claimant has a severe
impairment; (3) the impairment meets or equals an impairment
included in the Administration's Official Listings of
Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1; (4)
the impairment prevents the claimant from performing past
relevant work; and (5) the impairment prevents the claimant
from having substantial gainful employment. 20 C.F.R. Â§
404.1520. Through the fourth step, the burden of production
and proof is on the claimant. Grant v. Schweiker,
699 F.2d 189, 191 (4th Cir. 1983). The claimant must prove
disability on or before the last day of her insured status to
receive disability benefits. Everett v. Sec'y of
Health, Educ. & Welfare, 412 F.2d 842, 843 (4th Cir.
1969). If the inquiry reaches step five, the burden shifts to
the Commissioner to produce evidence that other jobs exist in
the national economy that the claimant can perform,
considering the claimant's age, education, and work
experience. Grant, 699 F.2d at 191. If at any step
of the evaluation the ALJ can find an individual is disabled
or not disabled, further inquiry is unnecessary. 20 C.F.R. Â§
404.1520(a); Hall v. Harris, 658 F.2d 260, 264 (4th
Substantial Gainful Activity
gainful activity" must be both substantial-involves
doing significant physical or mental activities, 20 C.F.R. Â§
404.1572(a)-and gainful-done for pay or profit, whether or
not a profit is realized, id. Â§ 404.1572(b). If an
individual has earnings from employment or self-employment
above a specific level set out in the regulations, he is
generally presumed to be able to engage in substantial
gainful activity. Id. Â§Â§ 404.1574-.1575.
impairment is "severe" if it significantly limits
an individual's ability to perform basic work activities.
See id. Â§ 404.1521. When determining whether a
claimant's physical and mental impairments are
sufficiently severe, the ALJ must consider the combined
effect of all of the claimant's impairments. 42 U.S.C. Â§
423(d)(2)(B). The ALJ must evaluate a disability claimant as
a whole person and not in the abstract, having several
hypothetical and isolated illnesses. Walker v.
Bowen, 889 F.2d 47, 49-50 (4th Cir. 1989) (stating that,
when evaluating the effect of a number of impairments on a
disability claimant, "the [Commissioner] must consider
the combined effect of a claimant's impairments and not
fragmentize them"). Accordingly, the ALJ must make
specific and well-articulated findings as to the effect of a
combination of impairments when determining whether an
individual is disabled. Id. at 50 ("As a
corollary to this rule, the ALJ must adequately explain his
or her evaluation of the combined effects of the
impairments."). If the ALJ finds a combination of
impairments to be severe, "the combined impact of the
impairments shall be considered throughout the disability
determination process." 42 U.S.C. Â§ 423(d)(2)(B).
Meets or Equals an Impairment Listed in the Listings of
claimant's impairment or combination of impairments meets
or medically equals the criteria of a listing found at 20
C.F.R. Pt. 404, Subpt. P, App.1 and meets the duration
requirement found at 20 C.F.R. Â§ 404.1509, the ALJ will find
the claimant disabled without considering the claimant's
age, education, and work experience. 20 C.F.R. Â§ 404.1520(d).
Past Relevant Work
assessment of a claimant's ability to perform past
relevant work "reflect[s] the statute's focus on the
functional capacity retained by the claimant." Pass
v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995). At this
step of the evaluation, the ALJ compares the claimant's
residual functional capacity with the physical and
mental demands of the kind of work he has done in the past to
determine whether the claimant has the residual functional
capacity to do his past work. 20 C.F.R. Â§ 404.1560(b).
previously stated, once the ALJ finds that a claimant cannot
return to her prior work, the burden of proof shifts to the
Commissioner to establish that the claimant could perform
other work that exists in the national economy. See
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992);
20 C.F.R. Â§ 404.1520(f)-(g). To meet this burden, the
Commissioner may sometimes rely exclusively on the
Medical-Vocational Guidelines (the "grids").
Exclusive reliance on the "grids" is appropriate
where the claimant suffers primarily from an exertional
impairment, without significant nonexertional
factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Â§
200.00(e); see also Gory v. Schweiker, 712
F.2d 929, 930-31 (4th Cir. 1983) (stating that exclusive
reliance on the grids is appropriate in cases involving
exertional limitations). When a claimant suffers from both
exertional and nonexertional limitations, the grids may serve
only as guidelines. Gory, 712 F.2d at 931. In such a
case, the Commissioner must use a vocational expert to
establish the claimant's ability to perform other work.
20 C.F.R. Â§ 404.1569a; see Walker, 889 F.2d
at 49-50 ("Because we have found that the grids cannot
be relied upon to show conclusively that claimant is not
disabled, when the case is remanded it will be incumbent upon
the [Commissioner] to prove by expert vocational testimony
that despite the combination of exertional and nonexertional
impairments, the claimant retains the ability to perform
specific jobs which exist in the national economy.").
The purpose of using a vocational expert is "to assist
the ALJ in determining whether there is work available in the
national economy which this particular claimant can
perform." Walker, 889 F.2d at 50. For the
vocational expert's testimony to be relevant, "it
must be based upon a consideration of all other evidence in
the record, ... and it must be in response to proper
hypothetical questions which fairly set out all of
claimant's impairments." Id. (citations
Developing the Record
has a duty to fully and fairly develop the record.
See Cook v. Heckler, 783 F.2d 1168, 1173
(4th Cir. 1986). The ALJ is required to inquire fully into
each relevant issue. Snyder, 307 F.2d at 520. The
performance of this duty is particularly important when a
claimant appears without counsel. Marsh v. Harris,
632 F.2d 296, 299 (4th Cir. 1980). In such circumstances,
"the ALJ should scrupulously and conscientiously probe
into, inquire of, and explore for all the relevant facts, ...
being especially diligent in ensuring that favorable as well
as unfavorable facts and circumstances are elicited."
Id. (internal quotations and citations omitted).
treating physician's opinion on the nature and severity
of a claimant's impairments is "well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence" in the record, the ALJ must give it
controlling weight. 20 C.F.R. Â§ 404.1527(c)(2); see
Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001).
The ALJ may discount a treating physician's opinion if it
is unsupported or inconsistent with other evidence, i.e.,
when the treating physician's opinion does not warrant
controlling weight, Craig, 76 F.3d at 590, but the
ALJ must nevertheless assign a weight to the medical opinion
based on the 1) length of the treatment relationship and the
frequency of examination; 2) nature and extent of the
treatment relationship; 3) supportability of the opinion; 4)
consistency of the opinion with the record a whole; 5)
specialization of the physician; and 6) other factors which
tend to support or contradict the opinion, 20 C.F.R. Â§
404.1527(c). Similarly, where a treating physician has merely
made conclusory statements, the ALJ may afford the opinion
such weight as is supported by clinical or laboratory
findings and other consistent evidence of a claimant's
impairments. See Craig, 76 F.3d at 590
(holding there was sufficient evidence for the ALJ to reject
the treating physician's conclusory opinion where the
record contained contradictory evidence).
instance, a treating physician's opinion is generally
entitled to more weight than a consulting physician's
opinion. SeeMitchell v. Schweiker, 699
F.2d 185, 187 (4th Cir. 1983) (stating that treating
physician's opinion must be accorded great weight because
"it reflects an expert judgment based on a continuing
observation of the patient's condition for a prolonged
period of time"); 20 C.F.R. Â§ 404.1527(c)(2). An ALJ
determination coming down on the side of a non-examining,
non-treating physician's opinion can stand only if the
medical testimony of examining and treating physicians goes
both ways. Smith v. Schweiker, 795 F.2d 343, 346
(4th Cir. 1986). Further, the ALJ is required to review all
of the medical findings and other evidence that support a
medical source's ...