United States District Court, D. South Carolina, Anderson/Greenwood Division
Jacquelyn D. Austin United States Magistrate Judge.
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 [Doc. 10]; and the Order of reference
signed by the Honorable R. Bryan Harwell on February 5, 2016
[Doc. 11]. 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 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).
April 2010, Plaintiff protectively filed an application for
DIB, alleging an onset disability date of March 19, 2010. [R.
310-11.] Plaintiff's DIB claim was denied initially and
on reconsideration by the Social Security Administration
(“the Administration”). [R. 171- 77.] Plaintiff
requested a hearing before an administrative law judge
(“ALJ”) and on March 2, 2012, ALJ Peggy
McFadden-Elmore conducted a hearing on Plaintiff's claim.
18, 2012, the ALJ issued a decision finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 178-93.] Plaintiff requested Appeals Council
review of the ALJ's decision and, the Appeals Council
remanded the case for further consideration. [R. 194-205]. On
remand, the ALJ held a second hearing on November 25, 2013.
[R. 48-104.] On May 13, 2014, the ALJ issued a second
decision, again finding Plaintiff not disabled under the Act.
[R. 21-33.] At Step 1, the ALJ found Plaintiff met the insured
status requirements of the Act through December 31, 2014, and
had not engaged in substantial gainful activity during the
period from her alleged onset date of March 19, 2010, through
the date last insured. [R. 23, Findings 1 & 2.] At Step
2, the ALJ found Plaintiff had the following severe
impairments: bilateral carpal tunnel syndrome, status-post
carpal tunnel release of the right hand; rheumatoid
arthritis; right knee patellofemoral chondrosis, status-post
right knee arthroscopy; coronary artery disease with stent
placement; and lumbar spondylosis. [R. 23, Finding 3.] At
Step 3, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled one of the impairments listed at 20 C.F.R.
Part 404, Subpart P, Appendix 1. [R. 26, Finding 4.] The ALJ
specifically found that there was no evidence of any
impairment or combination of impairments that approached
listing level severity under Listings 1.02, 1.04, 4.04, 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
the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b); with lifting or
carrying up to 20 pounds occasionally and up to 10 pounds
frequently; with standing and/or walking for about six hours
during an eight-hour workday; with sitting for about six
hours during an eight-hour workday; with no more than
occasional climbing of ladders, ropes, or scaffolds; with no
more than occasional crawling; with no more than frequent
climbing of ramps and stairs; with no more than frequent
balancing, stooping, kneeling, and crouching; with no more
than frequent handling and fingering bilaterally; and with
avoidance of concentrated exposure to extreme cold, extreme
heat, humidity, fumes, odors, dusts, gases, poor ventilation,
[R. 26-27, Finding 5.] Based on this RFC finding, the ALJ
determined Plaintiff was capable of performing her past
relevant work as a childcare attendant and administrative
clerk. [R. 32, Finding 6.] Thus, the ALJ found that Plaintiff
had not been under a disability, as defined in the Act, from
March 19, 2010, the alleged onset date, through the date of
the ALJ's decision. [R. 32, Finding 7.]
requested Appeals Council review of the ALJ's decision
and the Appeals Council declined review. [R. 1-5.] Plaintiff
filed this action for judicial review on November 2, 2015.
contends the ALJ's decision is not supported by
substantial evidence and contains multiple legal and factual
errors warranting the reversal and remand of the case. [Doc.
Specifically, Plaintiff contends the ALJ erred by (1) failing
to accord proper weight to the opinion Plaintiff's
treating rheumatologist, Dr. Kathleen P. Flint (“Dr.
Flint”) [id. at 10-15]; (2) failing to provide
the consultative examiner with Plaintiff's medical
records from her treating physician [id. at 15-16];
(3) failing to consider the side effects of Plaintiff's
medications in evaluating her credibility [id. at
16-19]; and (4) improperly finding that Plaintiff was capable
of past relevant work [id. at 19-20].
Commissioner, on the other hand, contends the ALJ's
decision should be affirmed because the decisions is
supported by substantial evidence and is free from reversible
legal error. [Doc. 20.] Specifically, the Commissioner
contends the ALJ properly evaluated Dr. Flint's opinion
under the regulations [id. at 8-11]; reasonably
found Plaintiff's subjective complaints, including those
of disabling medication-related side effects, were only
partially credible [id. at 12-16]; and properly
found Plaintiff capable of her past relevant work
[id. at 16-18].
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. 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).
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.
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
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
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
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. 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); 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)-and gainful-done for pay or profit,
whether or not a profit is realized, id. §
404.1572(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. §§
impairment is “severe” if it significantly limits
an individual's ability to perform basic work activities.
See Id. § 404.1521. 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). 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).
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, the ALJ will
find the claimant disabled without considering the