United States District Court, D. South Carolina, Anderson/Greenwood Division
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 disability insurance benefits (“DIB”).
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).
April 10, 2012, Plaintiff filed an application for disability
insurance benefits (“DIB”), alleging an onset of
disability date of September 15, 2007. [R. 50-68.] The claim
was denied initially and upon reconsideration by the Social
Security Administration (“the Administration”).
[Id., R. 69-92]. Thereafter, the claimant filed a
written request for hearing and, on June 11, 2014, he
appeared with an attorney and testified at a hearing before
Administrative Law Judge (“ALJ”) Edward Morriss.
issued a decision on July 17, 2014, finding Plaintiff not
disabled under the Social Security Act (“the
Act”). [R. 13-25.] At Step 1,  the ALJ found Plaintiff last
met the insured status requirements of the Act on December
31, 2012, and had not engaged in substantial gainful activity
since the alleged onset date of September 15, 2007, through
the date last insured of December 31, 2012. [R. 15, Findings
1 & 2.] At Step 2, the ALJ found Plaintiff had the
following severe combination of impairments: degenerative
disc disease (DDD) and fibromyalgia. [R. 21, Finding 3.] At
Step 3, the ALJ found Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one
of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. [R. 17, Finding 4.]
addressing Step 4, Plaintiff's ability to perform her
past relevant work, the ALJ assessed Plaintiff's residual
functional capacity (“RFC”) and found as follows:
After careful consideration of the entire record, I find
that, through the date last insured, the claimant had the
residual functional capacity to perform light work (light
work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10
pounds, as well as sitting, standing, or walking for 6 hours
each in an 8-hour workday) as defined in 20 CFR 404.1567(b)
except that she can never climb ladders, ropes, or scaffolds.
The claimant can occasionally climb ramps and stairs, as well
as occasionally stoop, kneel, crouch, and crawl. She can
[R. 18, Finding 5.] Based on this RFC, the ALJ determined at
Step 4 that Plaintiff was unable to perform her past relevant
work as a veterinarian technician. [R. 24, Finding 6.]
However, based on Plaintiff's age, education, work
experience, and RFC, the ALJ determined that a finding of
“not disabled” was appropriate under
Medical-Vocational Rule 202.21. [R. 24, Finding 10.]
Accordingly, the ALJ concluded Plaintiff had not been under a
disability, as defined in the Act, from September 15, 2007,
through the date last insured, December 31, 2012. [R. 25,
requested Appeals Council review of the ALJ's decision,
and on February 17, 2016, the Appeals Council declined. [R.
1-3.] Plaintiff filed the instant action for judicial review
on April 19, 2016. [Doc. 1.]
contends that errors by the ALJ require the decision to be
reversed and remanded for further administrative proceedings.
[Doc. 16.] Specifically, Plaintiff alleges the ALJ's RFC
analysis is not supported by substantial evidence because the
ALJ failed to perform a function by function analysis of the
evidence related to Plaintiff's ability to perform
work-related activities and the credibility analysis was
flawed. [Id. at 11-17.] Also, Plaintiff contends
that the ALJ failed to sufficiently weigh and discuss the
medical and other opinion evidence in the record.
Commissioner contends the decision is supported by
substantial evidence and should be affirmed. [Doc. 17.]
Specifically, the Commissioner argues that the evidence did
not support any functional limitations through the date last
insured, such that Plaintiff could perform work.
[Id. at 8-10.] The Commissioner asserts that a
function by function analysis of the RFC would not have
changed the RFC determination [id. at 10-14], the
ALJ sufficiently assessed Plaintiff's credibility
[id. at 14-16], and the ALJ adequately considered
the medical source evidence [id. at 16-17].
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 (1991)).
contrast, sentence six provides:
The court may . . . at any time 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. 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
claimant's age, education, and work experience. 20 C.F.R.
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
Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1992); 20
C.F.R. § 404.1520(f)-(g). 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); see also 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; 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. § 404.1527(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. §
404.1527(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). In any 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. § 404.1527(c)(2). An ALJ
determination coming down on the side of a non-examining,