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
Title 28, United States Code, Section
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).
September 23, 2014, Plaintiff protectively filed an
application for DIB, alleging an onset of disability date of
February 15, 2010. [R. 215-16.] The claim was denied
initially and upon reconsideration. [R.94-143]. Thereafter,
Plaintiff filed a written request for hearing and, on January
14, 2016, appeared with an attorney and testified at a
hearing before Administrative Law Judge (“ALJ”)
Tammy Georgian. [R. 35-77.]
February 10, 2016, the ALJ issued a decision finding
Plaintiff not disabled from February 15, 2010, through the
date of the decision. [R. 17-30.] The ALJ noted that Plaintiff
had filed a prior application for DIB benefits on February
22, 2012, alleging disability since December 1, 2010, and
that his application was denied initially and upon
reconsideration; that the ALJ had issued a decision on March
18, 2014, finding him not disabled and no request for review
of that decision was made; and that, consequently, the
decision of the Commissioner on the issue of the
claimant's disability status through March 18, 2014, is
final. [R. 17.]
1, the ALJ found that Plaintiff meets the insured status
requirements of the Act through December 31, 2017, and has
not engaged in substantial gainful activity since February
15, 2010. [R. 19-20, Findings 1 and 2.] At Step 2,
the ALJ determined that Plaintiff had the following severe
impairments: degenerative disc disease (DDD), osteoarthritis
of the knees and shoulder, anxiety disorders, and obesity.
[R. 20, Finding 3.]
found that Plaintiff had non-severe impairments of
sleep-related breathing disorders and osteoarthritis of the
neck but those did not cause more than a minimal limitation,
if any, in his ability to perform basic work activities. [R.
20.] At Step 3, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of a listed impairment. [R.
21, Finding 4.]
addressing Step 4, the ALJ determined Plaintiff's
residual functional capacity (“RFC”) as follows:
I find that the claimant has the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b) except
with some limitations. Due to symptomology, the claimant is
limited to frequent sitting, standing, and walking. Due to
postural limitations, the claimant is limited to frequent
balancing, stooping, kneeling, crouching, and climbing of
ramps or stairs. However, the claimant is limited to only
occasional crawling or climbing of ladders, ropes, and
scaffolds. Manipulatively, the claimant is limited to
frequent overhead reaching. Due to environmental limitations,
the claimant must avoid all exposure to very loud noises.
Additionally, the claimant must avoid concentrated exposure
to workplace hazards. Due to mental deficits, the claimant is
limited to simple, routine, and repetitive tasks requiring
only superficial interactions with coworkers or the general
public. The claimant is further limited to only occasional
changes in the work setting.
4, the ALJ found that Plaintiff was unable to perform his
past relevant work as a U.S. Army infantry soldier,
corrections officer, aircraft assembler, landfill equipment
operator, concrete truck driver, or log truck driver. [R. 29,
Finding 6.] At Step 5, taking into consideration
Plaintiff's age, education, work experience, RFC, and the
testimony of the vocational expert (“VE”), the
ALJ determined that there were jobs that existed in
significant numbers in the national economy that Plaintiff
could perform. [R. 29, Finding 10.] Thus, the ALJ found
Plaintiff was not disabled from February15, 2010, through the
date of the decision. [R. 30, Finding 11.]
requested Appeals Council review of the ALJ's decision,
and it denied his request for review. [R. 1-6.] Plaintiff
filed this action for judicial review on April 20, 2016.
contends substantial evidence does not support the
Commissioner's decision and errors of law require remand.
Specifically, Plaintiff alleges the ALJ applied the wrong
legal standard in evaluating Plaintiff's Department of
Veterans Affairs (“VA”) disability rating and,
thus, she did not adhere to the rule articulated by the
Fourth Circuit in Bird v. Comm'r, 699 F.3d 337
(4th Cir. 2012). [Doc. 12 at 3-7.] Plaintiff also contends
the ALJ made extra-judicial comments, advising Plaintiff that
she was putting herself in the role of “the devil's
advocate” in the hearing, which is contrary to her duty
as the decision-maker to make “a fair, independent and
impartial decision based on the law and evidence.”
[Id. at 2-3.] Further, Plaintiff challenges the
ALJ's discussion of the VE's testimony elicited in
light of examination by Plaintiff's counsel.
[Id. at 8-9.] And, lastly, Plaintiff contends the
ALJ's credibility analysis was flawed because the ALJ
failed to give cogent reasons for finding Plaintiff's
testimony regarding his alleged limitations not credible in
light of the record evidence. [Id. at 9-10.]
Commissioner contends the ALJ's decision should be
affirmed because substantial evidence supports the decision
especially given the deferential standard of review
applicable to this case. Specifically, the Commissioner
alleges the ALJ appropriately discounted the VA rating
decision and offered appropriate reasons for affording it
little weight, noting that contrary to Plaintiff's
assertion, the ALJ was not required to cite to Bird
or any other case in her decision, but was only required to
follow the correct procedures. [Doc. 13 at 8-15.] The
Commissioner also contends that the ALJ properly relied on
the VE's testimony, appropriately included the relevant
portion of the VE's testimony in her decision, and
nothing more was required. [Id. at 15-18.] Further,
the Commissioner argues the ALJ properly considered the
factors contemplated by the regulations and applicable law
for evaluating Plaintiff's subjective complaints and
provided articulated proper reasons to support her
credibility finding. [Id. at 18-22.] The
Commissioner did not address the ALJ's extra-judicial
comments regarding her status as “devil's
advocate” in these proceedings.
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 Powe r & 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 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 ...