United States District Court, D. South Carolina
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
This matter is before the Court for a final Order pursuant to Local Civil Rules 73.02(B)(1) and 83.VII.02, D.S.C.; 28 U.S.C. § 636(c); the parties’ consent to disposition by a magistrate judge [Doc. 6]; and the Honorable Mary G. Lewis’s January 20, 2015 Order of reference [Doc. 10]. 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, the decision of the Commissioner is reversed and remanded for administrative action consistent with this order pursuant to sentence four of 42 U.S.C. § 405(g).
In January 2012, Plaintiff filed an application for DIB, alleging an onset of disability date of October 1, 2007. [R. 146-49.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 87-113.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on August 14, 2013, ALJ Maria Northington conducted a de novo hearing on Plaintiff’s claims. [R. 37-86.]
The ALJ issued a decision on September 17, 2013, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 12-27.] At Step 1,  the ALJ found Plaintiff last met the insured status requirements of the Act on March 31, 2011 and had not engaged in substantial gainful activity during the period from her alleged onset date of March 7, 2011 through her date last insured of March 31, 2011. [R. 17, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: left sacroiliitis with mild lumbar impingement since 2002 and mild lumbar compressive spondylosis. [R. 17, Finding 3.] The ALJ found the following impairments were not severe: hypertension, anemia, irritable bowel syndrome, and episodic shingles. [R. 18.] At Step 3, the ALJ found 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. 18, Finding 4.] The ALJ specifically considered Listing 1.04. [R. 18.]
Before addressing Step 4, Plaintiff’s ability to perform her past relevant work, the ALJ found Plaintiff retained the following residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) as follows. The claimant is capable of performing a wide range of Light work with the ability to occasionally lift and/or carry up to 20 pounds as defined in the Dictionary of Occupational Title (DOT) and regulations, as well as, lift and/or carry 10 pounds frequently. This includes sedentary work as defined in DOT and the regulations. The claimant has no limits for sitting in an eight-hour workday. She is capable of standing and/or walking for up to six hours in an eight-hour workday. In the course of work, she should be allowed the ability to optionally alternate between sitting and standing, but such would not cause her to be off-task. She is able to perform occasional postural functions of climbing ramps/stairs, and stooping. She is to perform no crawling, no crouching, no kneeling and no climbing of ladders/ropes/scaffolds. 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. 18-19, Finding 5.] Based on this RFC, the ALJ found at Step 4 that Plaintiff was unable to perform any past relevant work. [R. 25, Finding 6.] However, based on her 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. 26, Finding 10.] Accordingly, the ALJ found that Plaintiff had not been under a disability, as defined in the Act, from March 7, 2011 through March 31, 2011. [R. 27, Finding 11.]
Plaintiff 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 16, 2015. [Doc. 1.]
THE PARTIES’ POSITIONS
Plaintiff argues the ALJ’s decision is not supported by substantial evidence and should be remanded because the ALJ erred in failing to consider the side effects of Plaintiff’s medications pursuant to 20 C.F.R. § 404.1529, SSR 96-7P, and SSR 96-8P; by according more weight to the opinions of the DDS physicians than to Plaintiff’s treating physician, Dr. William Durrett; in utilizing the “sit and squirm” test in aiding her in reaching her decision; by failing to find that Plaintiff’s bilateral leg radiculopathy was a severe impairment or, in the alternative, by not properly considering Plaintiff’s bilateral leg radiculopathy/pain even if it is not considered a severe impairment; and in failing to consider the requirement that Plaintiff use a cane when ambulating. [Doc. 17.] The Commissioner, however, contends that the decision is supported by substantial evidence and that Plaintiff did not have a disabling condition; the ALJ gave proper weight to the questionnaire completed by Dr. Durrett; and the ALJ complied with the regulations in evaluating Plaintiff’s subjective complaints. [Doc. 18.]
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. Commissioner, 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. Commissioner, 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 byamendment to statute, 42 U.S.C. § 405(g), as recognized in Wilkins v. Sec’y, Dep’t ofHealth & 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 ...