United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin United States 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. § 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
September 2011, Plaintiff protectively filed applications for
DIB and SSI, alleging disability beginning on May 1, 2011.
[R. 167-73, 174-79.] The claims were denied initially and on
reconsideration by the Social Security Administration
(“the Administration”). [R. 93-97, 101-04].
Plaintiff requested a hearing before an administrative law
judge (“ALJ”), and on July 30, 2013, ALJ Thomas
G. Henderson conducted a hearing on Plaintiff's claims.
[R. 24-43]. At the hearing, Plaintiff was represented by
attorney Robertson H. Wendt. [R. 12.]
issued a decision on August 20, 2013, finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 12-19.] At Step 1,  the ALJ found Plaintiff met
the insured status requirements of the Act through June 30,
2015, and had not engaged in substantial gainful activity
since May 1, 2011, the alleged onset date. [R. 14, Findings 1
& 2.] At Step 2, the ALJ found Plaintiff had the
following severe impairments: diabetes mellitus, obesity,
hypertension, headaches, right shoulder arthrosis, and
reduced far visual acuity. [R. 14, Finding 3.] The ALJ also
noted a non-severe impairment of glaucoma. [Id.] At
Step 3, the ALJ found Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the impairments listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. [R. 15, Finding 4.] The ALJ
expressly considered Listings 1.02, 2.00, 4.00, 9.00, and
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
claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except that she can occasionally bend, balance,
stoop, crouch, kneel, and crawl; she can never climb ladders
or scaffolds; she can occasionally reach to the front,
laterally, and overhead with her right upper extremity; must
avoid moderate exposure to work hazards; and occasional far
[R. 15, Finding 5.] Based on this RFC, the ALJ determined
that Plaintiff was unable to perform her past relevant work
as a retail sales clerk, babysitter, housekeeper, and
janitor. [R. 18, Finding 6.] However, based on
Plaintiff's age, education, work experience, RFC, and the
testimony of a vocational expert (“VE”), the ALJ
determined that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform.
[R. 18, Finding 10.] Accordingly, the ALJ concluded Plaintiff
has not been under a disability, as defined by the Act, from
May 1, 2011, through the date of the decision. [R. 19,
requested Appeals Council review of the ALJ's decision
[R. 7-8], but the Council declined review. [R. 1-6.]
Plaintiff proceeding pro se, filed this action for judicial
review on January 22, 2015. [Doc. 1.]
does not allege any error on the part of the ALJ. Instead,
Plaintiff provides a brief which is rather unintelligible and
appears to claim some sort of “conspiratorial
violations and denials of equal protection of the law”
as a basis for challenging the ALJ's decision. [Doc. 41
at 2.] For example, Plaintiff argues, the
“Administration for years as confirmed by the records
filed, conspiratorially denied plaintiff her disability
rights under or pursuant to sections 216(i), 223(d) and
1614(a)(3)(A) and (20 CFR 404.1509 and 416.909 as established
herein this entirety by law and facts in derogation or
injuries of plaintiff's rights in their life.”
[Id. at 1.] Further, Plaintiff asks that the
“attorney or legal fees for legal work” be paid
directly to Edward B. Saunders pursuant to 42 U.S.C. §
1988 for his legal work; and that ten percent of gross be
paid directly to her Aunt Yvonne Pamela Levine for her
overall support. [Id. at 3-4.]
Commissioner, on the other hand, contends the decision is
supported by substantial evidence and that the ALJ reasonably
accounted for all of Plaintiff's credibly established
limitations in the RFC assessment and hypothetical question
to the VE; thus, the ALJ's decision should be affirmed.
[Doc. 43 at 7.]
Construction of Pro Se Complaint
brought this action pro se, which requires the Court to
liberally construe her pleadings. Estelle v. Gamble,
429 U.S.97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); Loe v. Armistead, 582
F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are
held to a less stringent standard than those drafted by
attorneys. Haines, 404 U.S. at 520. Even under this
less stringent standard, however, a pro se complaint is still
subject to summary dismissal. Id. at 520-21. The
mandated liberal construction means only that if the court
can reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the plaintiff's legal
arguments for her. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court “conjure up
questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Scope of Review in Social Security Actions
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
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. § 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. §
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 ...