United States District Court, D. South Carolina
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) to obtain judicial review
of a final decision of the Commissioner of Social Security
(“the Commissioner”), denying Plaintiff's
claim for social security insurance benefits. 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).
15, 2010, Plaintiff filed an application for supplemental
security income benefits (“SSI”), alleging an
onset of disability date of October 1, 1998, subsequently
amended to June 1, 2010. [R. 268-71.] The claim was denied
initially and upon reconsideration. [R. 92-95]. Thereafter,
Plaintiff filed a written request for hearing and, on April
18, 2013, testified at a hearing before Administrative Law
Judge (“ALJ”) Stanley K. Chin. [R. 31-52.]
issued a decision on May 24, 2013, finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 98-113.] In this initial decision, the ALJ
found Plaintiff capable of performing light work with the
exception of frequent climbing, balancing, stooping,
kneeling, crouching and crawling; and with the need to avoid
concentrated exposure to extreme cold and heat. [R. 105.] On
June 24, 2013, Plaintiff requested Appeals Council review [R.
196-97], and on October 25, 2013, the Appeals Council
remanded the matter back to an ALJ directing the ALJ to
update the evidence on Plaintiff's medication condition
consistent with the guidelines; to give further consideration
to Plaintiff's maximum RFC during the entire period at
issue and to provide rationale with specific references to
the evidence of record in support of the assessed
limitations; and to obtain supplemental evidence from a
vocational expert, if warranted, to clarify the effects of
the assessed limitations on Plaintiff's occupational base
[see R. 114-117].
August 25, 2014, Plaintiff testified before a different ALJ,
Wendell M. Sims. [R. 53-91.] The ALJ issued an opinion on
November 4, 2014, finding Plaintiff not disabled under the
Act. [R. 14-30.] At Step 1,  the ALJ found Plaintiff last met
the insured status requirements of the Act on December 31,
2003, and had not engaged in substantial gainful activity
since the amended alleged onset date of June 1, 2010. [R. 19,
Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had
severe impairments of ankylosing spondylitis and ulcerative
colitis. [R. 19, Finding 3.] The ALJ also noted that
Plaintiff had non-severe impairments of anxiety, depression,
attention deficit hyperactivity, and chest pain. [R. 20.] At
Step 3, the ALJ found Plaintiff did not have an impairment or
combination of impairments that meets or medically equals one
of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. [R. 20, Finding 4.]
addressing Step 4, Plaintiff's ability to perform his
past relevant work, the ALJ assessed Plaintiff's residual
functional capacity (“RFC”) and found as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except: he can frequently
climb, balance, stoop, kneel, crouch, and crawl and must
avoid concentrated exposure to extreme cold and extreme heat.
[R. 20, Finding 5.] Based on this RFC, the ALJ determined at
Step 4 that Plaintiff was capable of performing his past
relevant work as a purchasing director/warehouse supervisor.
[R. 22, Finding 6.] Alternatively, based Plaintiff's age,
education, work experience, RFC, and the testimony of a
vocational expert, the ALJ determined that there were other
jobs that existed in significant numbers in the national
economy that Plaintiff could perform. [R. 23, Finding 6.]
Accordingly, the ALJ concluded Plaintiff had not been under a
disability, as defined in the Act, from June 1, 2010, the
amended onset date, through the date of the decision. [R. 24,
requested Appeals Council review of the ALJ's decision,
and on January 27, 2016, the Appeals Council declined. [R.
1-6.] The Appeals Council considered certain additional
evidence, including a “medical report from Pasquale
Barratta, M.D., dated September 17, 2014.” [R. 5.]
Plaintiff filed the instant action for judicial review on
March 29, 2016. [Doc. 1.]
contends that errors by the ALJ require the decision to be
remanded for further administrative proceedings.
[See Doc. 16.] Specifically, Plaintiff alleges the
ALJ failed to properly assess medical opinion evidence from
Plaintiff's treating physician, Dr. Pasquale D. Baratta,
M.D. (“Dr. Baratta”) [id. at 20-31];
failed to provide a meaningful assessment of Plaintiff's
credibility in accordance with SSR 96-7p [id. at
31-35]; and failed to properly explain his findings regarding
Plaintiff's RFC, in light of his alleged limitations, in
accordance with SSR 96-8p [id. at 35-38].
Commissioner contends the decision is supported by
substantial evidence and should be affirmed. [Doc. 17.]
Specifically, the Commissioner argues that the ALJ followed
controlling regulations in evaluating Dr. Baratta's
opinions [id. at 5-8]; reasonably found
Plaintiff's subjective complaints were inconsistent with
the evidence [id. at 9-10]; and sufficiently
explained the basis for his assessment of Plaintiff's
work capacity [id. at 10-11].
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).
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. §
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.
§ 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.
§ 416.972(a)-and gainful-done for pay or profit, whether
or not a profit is realized, id. § 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. §
impairment is “severe” if it significantly limits
an individual's ability to perform basic work activities.
See Id. § 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. § 416.909, the ALJ will
find the claimant disabled without considering the
claimant's age, education, and work
experience. 20 C.F.R. § 416.920(a)(4)(iii), (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. §
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. § 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.
§ 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).
treating physician's opinion on the nature and severity
of a claimant's impairments is “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence” in the record, the ALJ must give it
controlling weight. 20 C.F.R. § 416.927(c)(2); see
Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). The
ALJ may discount a treating physician's opinion if it is
unsupported or inconsistent with other evidence, i.e., when
the treating physician's opinion does not warrant
controlling weight, Craig, 76 F.3d at 590, but the
ALJ must nevertheless assign a weight to the medical opinion
based on the 1) length of the treatment relationship and the
frequency of examination; 2) nature and extent of the
treatment relationship; 3) supportability of the opinion; 4)
consistency of the opinion with the record a whole; 5)
specialization of the physician; and 6) other factors which
tend to support or contradict the opinion, 20 C.F.R. §
416.927(c). Similarly, where a treating physician has merely
made conclusory statements, the ALJ may afford the opinion
such weight as is supported by clinical or laboratory
findings and other consistent evidence of a claimant's
impairments. See Craig, 76 F.3d at 590 (holding
there was sufficient evidence for the ALJ to reject the
treating physician's conclusory opinion where the record
contained contradictory evidence).
instance, a treating physician's opinion is generally
entitled to more weight than a consulting physician's
opinion. See Mitchell v. Schweiker, 699 F.2d 185,
187 (4th Cir. 1983) (stating that treating physician's
opinion must be accorded great weight because “it
reflects an expert judgment based on a continuing observation
of the patient's condition for a prolonged period of
time”); 20 C.F.R. § 416.927(c)(2). An ALJ
determination coming down on the side of a non-examining,
non-treating physician's opinion can stand only if the
medical testimony of examining and treating physicians goes
both ways. Smith v. Schweiker, 795 F.2d 343, 346
(4th Cir. 1986). Further, the ALJ is required to review all
of the medical findings and other evidence that support a
medical source's statement that a claimant is disabled.
20 C.F.R. § 416.927(d). However, the ALJ is responsible
for making the ultimate determination about whether a
claimant meets the statutory definition of disability.
Medical Tests and Examinations
is required to order additional medical tests and exams only
when a claimant's medical sources do not give sufficient
medical evidence about an impairment to determine whether the
claimant is disabled. 20 C.F.R. § 416.917; see also
Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). The
regulations are clear: a consultative examination is not
required when there is sufficient medical evidence to make a
determination on a claimant's disability. 20 C.F.R.
§ 416.917. Under the regulations, however, the ALJ may
determine that a consultative examination or other medical
tests are necessary. Id.
has determined that a claimant will not be considered
disabled unless he furnishes medical and other evidence
(e.g., medical signs and laboratory findings) showing the
existence of a medical impairment that could reasonably be
expected to produce the pain or symptoms alleged. 42 U.S.C.
§ 423(d)(5)(A). In evaluating claims of disabling pain,
the ALJ must proceed in a two-part analysis. Morgan v.
Barnhart, 142 F. App'x 716, 723 (4th Cir. 2005)
(unpublished opinion). First, “the ALJ must determine
whether the claimant has produced medical evidence of a
‘medically determinable impairment which could
reasonably be expected to produce . . . the actual pain, in
the amount and degree, alleged by the claimant.'”
Id. (quoting Craig, 76 F.3d at 594).
Second, “if, and only if, the ALJ finds that the
claimant has produced such evidence, the ALJ must then
determine, as a matter of fact, whether the claimant's
underlying impairment actually causes her alleged
pain.” Id. (emphasis in original) (citing
Craig, 76 F.3d at 595).
the “pain rule” applicable within the United
States Court of Appeals for the Fourth Circuit, it is well
established that “subjective complaints of pain and
physical discomfort could give rise to a finding of total
disability, even when those complaints [a]re not supported
fully by objective observable signs.” Coffman v.
Bowen, 829 F.2d 514, 518 (4th Cir. 1987) (citing
Hicks v. Heckler, 756 F.2d 1022, 1023 (4th Cir.
1985)). The ALJ must consider all of a claimant's
statements about his symptoms, including pain, and determine
the extent to which the symptoms can reasonably be accepted
as consistent with the objective medical evidence. 20 C.F.R.
§ 416.928. Indeed, the Fourth Circuit has rejected a
rule which would require the claimant to demonstrate
objective evidence of the pain itself, Jenkins v.
Sullivan, 906 F.2d 107, 108 (4th Cir. 1990), and ordered
the Commissioner to promulgate and distribute to all
administrative law judges within the circuit a policy stating
Fourth Circuit law on the subject of pain as a disabling
condition, Hyatt v. Sullivan, 899 F.2d 329, 336-37
(4th Cir. 1990). The Commissioner thereafter issued the
following “Policy Interpretation Ruling”:
This Ruling supersedes, only in states within the Fourth
Circuit (North Carolina, South Carolina, Maryland, Virginia
and West Virginia), Social Security Ruling (SSR) 88-13,
Titles II and XVI: Evaluation of Pain and Other Symptoms:
FOURTH CIRCUIT STANDARD: Once an underlying physical or
[m]ental impairment that could reasonably be expected to
cause pain is shown by medically acceptable objective
evidence, such as clinical or laboratory diagnostic
techniques, the adjudicator must evaluate the disabling
effects of a disability claimant's pain, even though its
intensity or severity is shown only by subjective evidence.
If an underlying impairment capable of causing pain is shown,
subjective evidence of the pain, its intensity or degree can,
by itself, support a finding of disability. Objective medical
evidence of pain, its intensity or degree (i.e.,
manifestations of the functional effects of pain such as
deteriorating nerve or muscle tissue, muscle spasm, or
sensory or motor disruption), if available, should be
obtained and ...