United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
JACQUELYN D. AUSTIN, Magistrate Judge.
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. Â§ 636(b)(1)(B). Plaintiff brought this action pursuant
to 42 U.S.C. Â§ 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. Â§ 405(g).
November 2011, Plaintiff filed an application for DIB,
alleging an onset of disability date of April 1, 2009. [R.
157-62.] The claim was denied initially and on
reconsideration by the Social Security Administration
("the Administration"). [R. 80-103.] Plaintiff
requested a hearing before an administrative law judge
("ALJ"), and on December 5, 2013, ALJ Walter C.
Herin, Jr. conducted a de novo hearing on Plaintiff's
claims. [R. 28-79.]
issued a decision on March 27, 2014, finding Plaintiff not
disabled under the Social Security Act ("the Act").
[R. 10-27.] At Step 1,  the ALJ found Plaintiff met the
insured status requirements of the Act through December 31,
2014, and had not engaged in substantial gainful activity
since April 1, 2009, the alleged onset date. [R. 15, Findings
1 & 2.] At Step 2, the ALJ found Plaintiff had the following
severe impairments: degenerative disc disease, status post
L5-S1 hemilaminectomy, foraminotomy and discectomy with
radiculopathy; remote history of fractured hip; and
peripheral vascular disease. [R. 15, Finding 3.] The ALJ also
found Plaintiff had non-severe impairments of untreated
hypertension, alcohol dependence, and marijuana abuse.
[R.16.] At Step 3, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that met or
medically equaled one of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. [R. 16, Finding 4.] The ALJ
considered Listings 1.02, 1.04, and 4.12. [R. 16.]
addressing Step 4, Plaintiff's ability to perform his
past relevant work, the ALJ found 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
light work as defined in 20 CFR 404.1567(b) except no lifting
or carrying over 10-15 pounds occasionally and 10 pounds
frequently; no more than occasional stooping, crawling,
crouching, kneeling, and climbing of stairs/ramps; no more
than frequent balancing; no climbing of ladders, ropes or
scaffolds; no standing or walking longer than 45 minutes at
one time without the ability to sit; and avoidance of
exposure to unprotected heights and dangerous machinery.
Finding 5.] Based on this RFC, the ALJ found at Step 4 that
Plaintiff was unable to perform any past relevant work. [R.
21, Finding 6.] However, based on his age, education, work
experience, RFC, and the testimony of a vocational expert,
there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform. [R. 22,
Finding 10.] Accordingly, the ALJ found that Plaintiff had
not been under a disability, as defined in the Act, from
April 1, 2009, through the date of the decision. [R. 23,
requested Appeals Council review of the ALJ's decision
but the Appeals Council declined. [R.1-5.] Plaintiff filed
this action for judicial review on January 13, 2015. [Doc.
argues the ALJ's decision is not supported by substantial
evidence and should be remanded because the ALJ failed to
properly evaluate whether Plaintiff met Listing 1.04A; failed
to conduct a proper Step 5 analysis; and failed to properly
assess opinion evidence. [Doc. 12.] The Commissioner,
however, contends that the decision is supported by
substantial evidence. [Doc. 13.]
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
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.