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Brooks v. Berryhill

United States District Court, D. South Carolina

April 26, 2017

John Preston Brooks, II, Plaintiff,
v.
Nancy A. Berryhill, Acting 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 Civil Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B).[1]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).

         PROCEDURAL HISTORY

         On 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.]

         On February 10, 2016, the ALJ issued a decision finding Plaintiff not disabled from February 15, 2010, through the date of the decision.[2] [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.]

         At Step 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[3]. [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.]

         The ALJ 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.]

         Before 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.

[R. 22.]

         At Step 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.]

         Plaintiff 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. [Doc. 1.]

         THE PARTIES' POSITIONS

         Plaintiff 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.]

         The 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.

         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 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 (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 Step Evaluation

         To 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 ...


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