United States District Court, D. South Carolina
Angela R. Sullivan, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant.
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 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. §
April 23, 2012, Plaintiff filed applications for DIB and SSI,
alleging disability beginning April 12, 2012; and, Plaintiff
eventually amended her alleged onset date to March 31, 2013.
[R. 204-20, 24.] The claims were denied initially and upon
reconsideration by the Social Security Administration
(“the Administration”). [R. 180-82, 152-53.]
Plaintiff filed a request for hearing before an
administrative law judge (“ALJ”), and on May 6,
2014, ALJ Jerry W. Peace conducted a hearing on
Plaintiff's claims. [R. 42-98.]
August 1, 2014, the ALJ issued his decision finding that
Plaintiff had not been under a disability, as defined in the
Social Security Act (“the Act”), from April 12,
2012, through the date of the decision. [R. 24-37.] At Step
the ALJ found Plaintiff meets the insured status requirements
of the Act through December 31, 2016, and had not engaged in
substantial gainful activity since April 12, 2012, the
original alleged onset date. [R. 26, Findings 1 & 2.] At
Step 2, the ALJ found that Plaintiff had the following severe
impairments: degenerative disc disease (DDD) of the
lumbar/cervical spine; dysfunction of major joints (knees,
shoulder and neck), depression and obesity. [R. 26, Finding
3.] The ALJ determined that Plaintiff's alleged carpal
tunnel syndrome (CTS) was a non-severe impairment. [R.
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. 27, Finding 4.] The
ALJ specifically considered Listings 1.02, 1.04, 12.04 and
12.06. [See Id.] Before 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
the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a), except she can never climb ladders, ropes,
scaffolds, ramps or stairs; she can occasionally balance with
a hand held assistive device, she is limited to jobs which
can be performed while using a hand held assistive device
required at all times when standing; she can occasionally
stoop, crouch, or kneel, but never crawl; she is further
limited to occasional right overhead reaching; frequent right
handling of objects; she must avoid concentrated use of
moving machinery and exposure to unprotected heights; and her
work is limited to one or two step tasks; with only
occasional interaction with the public.
[R. 29, Finding 5.] Based on this RFC, at Step 4, the ALJ
determined Plaintiff was unable to perform her past relevant
work. [R. 35, Finding 6.] In light of Plaintiff's age,
education, work experience, and RFC, the ALJ determined based
on vocational expert (VE) testimony that there were jobs that
existed in significant numbers in the national economy that
Plaintiff could perform. [R. 36, Finding 10.] Thus, the ALJ
found that Plaintiff had not been under a disability, as
defined in the Act, from April 12, 2012, through the date of
the decision. [R. 37, Finding 11.]
filed a request for review of the ALJ's decision with the
Appeals Council which denied review on November 10, 2015. [R.
1-9.] Plaintiff commenced an action for judicial review in
this Court on January 9, 2016. [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
committed reversible error at Step 5 by relying on the VE
testimony that Plaintiff could perform certain jobs where the
jobs identified by the VE conflicted with the Dictionary of
Occupational Titles (DOT), and the ALJ failed to explain the
discrepancy. [Doc. 14 at 24-28.] And, based on recent
applicable case law, Plaintiff contends a person with her RFC
could not have performed the jobs identified by the VE. [Doc.
16 at 2-4.] Further, Plaintiff contends a sentence four
remand is necessary because the Appeals Council improperly
refused to weigh new evidence of a treating physician opinion
submitted to it that related to Plaintiff's condition
prior to the ALJ's decision, where the evidence was new
and material and likely to have affected the
fact-finder's decision. [Doc. 14 at 28-33; Doc. 16 at
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
contends the ALJ reasonably relied on the VE testimony that
Plaintiff could perform certain jobs because no conflict
existed with Plaintiff's RFC and those jobs as described
by the DOT. [Id. at 11-14.] Further, the
Commissioner alleges that Dr. Kocol's opinion did not
relate to the relevant time period and is not material; thus,
a sentence six remand is not warranted. [Id. at
replies that she is not seeking a sentence six remand. [Doc.
16 at 5, 12.]
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 ...