United States District Court, D. South Carolina, Anderson/Greenwood Division
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; and the Honorable J. Michelle Child’s September 18, 2014, Order of reference. 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 recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).
On May 3, 2011, Plaintiff protectively filed an application for DIB, alleging an onset of disability date of December 20, 2010. [R. 19.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 71-78, 89.] On January 19, 2012, Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on May 3, 2013, ALJ Frank D. Armstrong conducted a de novo hearing on Plaintiff’s claims in Charlotte, North Carolina. [R. 31-70.]
The ALJ issued a decision on June 21, 2013, finding Plaintiff not disabled. [R. 19-26.] At Step 1, the ALJ determined that Plaintiff had not engaged in substantial gainful activity (“SGA”) since December 20, 2010, the alleged onset date, and Plaintiff met the insured status requirements of the Social Security Act (“the Act”) through December 31, 2015. [R. 21, Findings 1&2.]
At Step 2, the ALJ determined Plaintiff had the following severe impairments: obesity, hypertension, arthritis, lymphedema, and edema. [R. 21-22, Finding 3.] The ALJ found that Plaintiff had a history of hypertension, chronic lymphedema and edema in her lower extremities, and arthritis in her bilateral knees and right foot, as well as some crepitus in her right knee. [R. 21-22.] The ALJ noted that Plaintiff had been prescribed Lisinopril and Hydrochlorothiazide for her hypertension, a "lymphpump" and supportive stockings for her lymphedema, and Motrin for her arthritis. [R. 22.] Additionally, the ALJ noted that, while Plaintiff did not allege depression in her application for disability and did not testify to any limitations associated with depression, the record reflects that she had been prescribed Sertraline by her primary care physician for symptoms related to depression; thus, the ALJ found Plaintiff’s depression was a non-severe impairment. [Id.]
At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 22, Finding 4.] The ALJ did not specify which listings he considered but noted that he considered Plaintiff’s obesity when making this finding. [Id.]
Before addressing Step 4, the ALJ found Plaintiff’s residual functional capacity (“RFC”) to be as follows:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except: she can sit for two hours at a time for a total of six hours during an eight-hour workday; she can stand for one hour at a time for a total of five hours per workday; she can walk for one hour at a time for a total of five hours per workday; she can occasionally balance, climb ramps and stairs, crouch, kneel, and crawl; she can frequently stoop; and she can never climb ladders, ropes, or scaffolds.
[R. 22, Finding 5.] At Step 4, the ALJ found that Plaintiff was capable of performing her past relevant work as a tax preparer (sedentary in exertion) as it was actually and generally performed. [R. 25, Finding 6.] On this basis, the ALJ determined that Plaintiff had not been under a disability as defined by the Act from December 20, 2010, through the date of the decision, June 21, 2013. [R. 26, Finding 7.]
Plaintiff requested Appeals Council review of the ALJ’s decision, and the Council denied the request for review on July 30, 2014. [R. 1-6.] Plaintiff filed this action for judicial review on September 17, 2014. [Doc. 1.]
THE PARTIES’ POSITIONS
Plaintiff contends that the Commissioner’s decision should be reversed and benefits awarded because the Commissioner committed legal errors and substantial evidence does not support the decision. [Doc. 17.] Specifically, Plaintiff alleges the RFC determination was error because (1) the evidence in the record showed that Plaintiff could not have performed any job on a sustained basis for eight hours a day, five days per week [id. at 12-13]; (2) the ALJ did not sufficiently consider treating physician Dr. Robin Shealy’s (“Dr. Shealy”) several opinions about Plaintiff’s physical limitations in accordance with Social Security regulations and rules [id. at 13-18]; and (3) the ALJ failed to sufficiently consider Plaintiff’s obesity in the RFC determination [id.18-19]. Plaintiff contends the ALJ failed to make specific findings and fully develop the record at Step 4 regarding the physical and mental demands of a tax preparer [id. at 19-20]; and the ALJ, at Step 5, gave the vocational expert (“VE”) incomplete and inaccurate hypothetical questions thus making the VE’s responses defective [id. at 21].
The Commissioner, on the other hand, contends that its final decision is supported by substantial evidence and free of harmful legal error. [Doc. 19.] Specifically, the Commissioner contends the ALJ’s RFC determination was correct, and he considered Plaintiff’s obesity among other impairments and properly found she could perform her sedentary past relevant work as tax preparer. [Id. at 11-14.] The Commissioner also contends the treating physician opinions were properly weighed. [Id. at 14-16.]
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 by amendment to statute, 42 U.S.C. § 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. § 405(g) is not a final order).
The Act 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. § 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. § 423(d)(1)(A).
I. The Five Step Evaluation
To 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. § 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 ...