United States District Court, D. South Carolina
RICHARD MARK GERGEL, UNITED STATES DISTRICT JUDGE.
brought this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3), seeking judicial review of the final decision
of the Commissioner of Social Security denying her claim for
Supplemental Security Income ("SSI"). In accordance
with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 DSC,
this matter was referred to a United States Magistrate Judge
for pre-trial handling. The Magistrate Judge issued a Report
and Recommendation ("R & R") on September 18,
2017 recommending that the decision of the Commissioner be
reversed and remanded to the agency. (Dkt. No. 16). The
Commissioner filed a response indicating that she did not
intend to file objections to the R & R. (Dkt. No. 18).
The Court adopts the R & R as the order of the Court and
remands the matter to the agency for further administrative
processing consistent with this opinion.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
role of the federal judiciary in the administrative scheme
established by the Social Security Act is a limited one. The
Act provides that the "findings of the Commissioner of
Social Security as to any fact, if supported by substantial
evidence, shall be conclusive." 42 U.S.C. § 405(g).
"Substantial evidence has been defined innumerable times
as more than a scintilla, but less than preponderance."
Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir.
1964). This standard precludes de novo review of the
factual circumstances that substitutes the Court's
findings of fact for those of the Commissioner. Vitek v.
Finch, 438 F.2d 1157, 1157 (4th Cir. 1971).
the federal court's review role is a limited one,
"it does not follow, however, that the findings of the
administrative agency are to be mechanically accepted. The
statutorily granted right of review contemplates more than an
uncritical rubber stamping of the administrative
action." Flack v. Cohen, 413 F.2d 278, 279 (4th
Cir. 1969). Further, the Commissioner's findings of fact
are not binding if they were based upon the application of an
improper legal standard. Coffman v. Bowen, 829 F.2d
514, 519 (4th Cir. 1987).
applied for SSI on March 25, 2013, when she was 44 years of
age. She alleged she was disabled because of a combination of
physical and mental impairments. A hearing was conducted by
an Administrative Law Judge (ALJ) on March 12, 2015. The ALJ
found that Plaintiff suffered from a myriad of severe
physical and mental impairments, including degenerative disc
disease, arthritis of the right knee, diabetes, obesity,
affective disorder, and anxiety. Tr. 13. Despite these severe
impairments, the ALJ found that Plaintiff retained the
residual functional capacity to perform less than the full
scope of light work. Among Plaintiffs limitations were a
requirement that any position have a sit/stand option and
that she must be able to use a hand-held assistive device,
such as a cane, "to ambulate to the work station."
the circumstances presented by Plaintiffs impairments, the
Commissioner was required to obtain the opinion of a
vocational expert to establish that there existed jobs in
significant numbers in the national economy which Plaintiff
could perform. At this stage of the sequential process, the
burden is on the Commissioner to demonstrate the presence of
such jobs in the national economy. Walker v. Bowen,
889 F.2d 47, 50 (4th Cir. 1989).
vocational expert, Robert Brabum, was presented by the
Commissioner to offer this essential evidence. The vocational
expert was asked by the ALJ as part of a hypothetical
question whether Plaintiff could perform light work with
certain specific limitations, including the use of a
hand-held assistive device. Tr. 70-71. This limitation was in
recognition of the well-established fact that Plaintiff
required the use of a cane, which had been prescribed by her
treating physician. Tr. 53, 295, 316. The vocational expert
responded that there were jobs in the national economy which
Plaintiff could perform. Tr. 71-72. Plaintiffs counsel then
asked the vocational expert if his opinion anticipated that
the claimant would need the hand-held assistive device for
balancing. Tr. 72. The vocational expert stated that he had
not understood the Plaintiff would need to use the hand-held
device for balancing, rather than simply to assist in
ambulating to the work space. Mr. Brabum stated that if the
Plaintiff needed a hand-held assistive device for balancing,
"you're in essence taking one hand away from work up
to four hours in an eight-hour day" and the use of both
hands is a "primary tool" for the type of unskilled
work Plaintiff might be capable of performing. Tr. 73-74.
Consequently, the vocational expert concluded that if
Plaintiff required the use of a hand-held device, such as a
cane, for balancing, there would be no jobs in the national
economy for her to perform at the light level. Tr. 74.
found Plaintiff had the residual functional capacity to
perform light work despite the need for the use of a
hand-held assistive device "to ambulate to the
workstation." Tr. 16. As the Magistrate Judge noted,
there is a significant amount of evidence in the record
indicating that Plaintiff uses her cane for balancing. This
includes the sworn testimony of Plaintiff that "I have a
cane because it helps me to steady myself to be able to walk
because I have fallen in the past, " and the finding of
a consulting medical examiner, Dr. Gordon Early, that
Plaintiff "uses a cane for balance." Tr. 53, 316.
Dr. Early also documented that Plaintiff had a "waddling
gait with external rotation of either foot." Tr. 317.
The record further shows that a treating physician of
Plaintiff, Dr. Lance Miller, prescribed a cane for Plaintiff
in April 2012 and diagnosed her with degenerative disc
disease, chronic lower back pain, and arthritic knee pain.
Tr. 295, 296, 325. These conditions were undoubtedly
aggravated by Plaintiffs obesity. Dr. Miller documented in
his office record in June 2012 that Plaintiff had fallen two
weeks earlier and injured her knee. Tr. 304-05. In short,
there is evidence in the record indicating that Plaintiff
utilized a cane for balancing, making it is essential on
remand for the ALJ to weigh all relevant evidence on this
issue in light of the testimony of the vocational expert that
if Plaintiff required a cane for balancing there would be no
jobs in the national economy involving light work which she
Magistrate Judge appropriately found that the failure of the
ALJ to address the issue of whether Plaintiff used her cane
for balancing constituted legal error and required reversal
of the Commissioner's decision. Dkt. No. 16 at 10-11. The
Court agrees and adopts the Magistrate Judge's R & R
as the order of the Court.
upon the foregoing, the Court hereby ADOPTS
the R & R as the order of the Court,
REVERSES the decision of the Commissioner
pursuant to Sentence Four of 42 U.S.C. § 405(g), and
REMANDS the case ...