Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sullivan v. Colvin

United States District Court, D. South Carolina

November 10, 2016

Angela R. Sullivan, Plaintiff,
v.
Carolyn W. Colvin, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge

         This 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).[1] 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”).[2]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. § 405(g).

         PROCEDURAL HISTORY

         On 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.]

         On 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 1[3], 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. 26-27.]

         At Step 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.]

         Plaintiff 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.]

         THE PARTIES' POSITIONS

         Plaintiff 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 5-12.]

         The 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 14-19.]

         Plaintiff replies that she is not seeking a sentence six remand. [Doc. 16 at 5, 12.]

         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. 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).

         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. 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 (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).[4] 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).

         APPLICABLE LAW

         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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.