United States District Court, D. South Carolina, Anderson/Greenwood Division
Michael A. Montepara, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin Greenville, 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. § 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 reversed
and remanded for administrative action consistent with this
recommendation, pursuant to sentence four of 42 U.S.C. §
February 7, 2013, Plaintiff filed applications for DIB and
SSI, alleging disability beginning January 28, 2013. [R.
147-48, 152-160.] The claims were denied initially and upon
reconsideration by the Social Security Administration
(“the Administration”). [R. 96-99, 103-104.]
Plaintiff filed a request for hearing before an
administrative law judge (“ALJ”), and on March 3,
2015, ALJ Jerry W. Peace conducted a hearing on
Plaintiff's claims. [R. 30-60.]
April 7, 2015, the ALJ issued his decision finding that
Plaintiff had not been under a disability, as defined in the
Social Security Act (“the Act”), from January 28,
2013, through the date of the decision. [R. 11-29.] At Step
the ALJ found Plaintiff meets the insured status requirements
of the Act through March 31, 2017, and had not engaged in
substantial gainful activity since January 28, 2013, the
alleged onset date. [R. 13, Findings 1 & 2.] At Step 2,
the ALJ found that Plaintiff had the following severe
impairments: cerebral trauma, loss of visual acuity in right
eye, affective and anxiety disorders. [R. 13, Finding 3.]
3, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of an impairment listed in 20
CFR Part 404, Subpart P, Appendix 1. [R. 13, Finding 4.] The
ALJ specifically considered Listings 2.02, 11.18, 12.04 and
12.06. [See Id.] Before addressing Step 4,
Plaintiff's ability to perform his 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
medium work as defined in 20 CFR 404.1567(c) and 416.967(c)
except he can never climb ladders, ropes, scaffolds, ramps or
stairs; he can frequently balance; he is limited to frequent
bilateral fingering; limited to occupations requiring
frequent depth perception; and his work is limited to simple,
routine, repetitive tasks, performed in a work environment
free of fast-paced production requirements, involving only
work-related decisions, and with few, if any, work place
changes, with no interaction with the public.
[R. 13, Finding 5.] Based on this RFC, at Step 4, the ALJ
determined Plaintiff was unable to perform his past relevant
work as building maintenance worker. [R. 21, Finding 6.] In
light of Plaintiff's age, education, work experience, and
RFC, the ALJ determined that there were jobs that existed in
significant numbers in the national economy that Plaintiff
could perform. [R. 21, Finding 10.] Thus, the ALJ found that
Plaintiff had not been under a disability, as defined in the
Act, from January 28, 2013, through the date of the decision.
[R. 22, Finding 11.]
filed a request for review of the ALJ's decision with the
Appeals Council which denied review on June 22, 2015. [R.
1-6.] Plaintiff commenced an action for judicial review in
this Court on August 4, 2015. [Doc. 1.]
contends the ALJ's decision is not supported by
substantial evidence and contains multiple legal errors
warranting the reversal and remand of the case. [See
Docs. 14, 16.] Specifically, Plaintiff contends the ALJ:
1. Committed reversible error in formulating the RFC by
failing to adequately explain his reasons for rejecting the
opinions of Plaintiff's treating physicians, treating
psychiatrist, consultative examiners and other physicians and
2. Committed reversible error in failing to find that
Plaintiff's depression and anxiety met the criteria of
Listings 12.04 and 12.06;
3. Erred in discounting Plaintiff's credibility without
applying the factors set forth in 20 CFR § 404.1529 and
4. Erred in finding that Plaintiff “testified that he
could lift 25 pounds, which is consistent with my
RFC.”; and 5. Erred by failing to award benefits
because based on the testimony of the vocational expert,
considering all of Plaintiff's limitations, there was no
work he could perform.
[See Doc. 14 at 2, 15-35.]
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. 15.] Specifically, the Commissioner
1. Substantial evidence supports the ALJ's Listing
2. The ALJ reasonably evaluated the opinion evidence in
accordance with the regulations;
3. The ALJ properly evaluated the Plaintiff's credibility
in accordance with the regulations;
4. The ALJ reasonably relied on the testimony of the
vocational expert in finding Plaintiff was capable of work.
[Doc. 15 at 8-25.]
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 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
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).
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).
The 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.
§§ 404.1520, 416.920. 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. §§ 404.1520(a),
416.920(a)(4); Hall v. Harris, 658 F.2d 260, 264
(4th Cir. 1981).
Substantial Gainful Activity
gainful activity” must be both substantial-involves
doing significant physical or mental activities, 20 C.F.R.
§§ 404.1572(a), 416.972(a)-and gainful-done for pay
or profit, whether or not a profit is realized, id.
§§ 404.1572(b), 416.972(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. §§ 404.1574-.1575, 416.974-.975.
impairment is “severe” if it significantly limits
an individual's ability to perform basic work activities.
See Id. §§ 404.1521, 416.921. 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. §§ 423(d)(2)(B), 1382c(a)(3)(G). 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. §§ 423(d)(2)(B), 1382c(a)(3)(G).
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. §§ 404.1509 or
416.909, the ALJ will find the claimant disabled without
considering the claimant's age, education, and work
experience. 20 C.F.R. §§ 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.
§§ 404.1560(b), 416.960(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
20 C.F.R. §§ 404.1520(f)-(g), 416.920(f)-(g);
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992).
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,
§ 200.00(e); 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.
§§ 404.1569a, 416.969a; 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).