United States District Court, D. South Carolina, Orangeburg Division
WILLIAM B. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER ADOPTING THE REPORT AND RECOMMENDATION AND
VACATING AND REMANDING DEFENDANT'S DECISION
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
a Social Security appeal in which Plaintiff seeks judicial
review of Defendant's final decision denying his claim
for Disability Insurance Benefits (DIB). The matter is before
the Court for review of the Report and Recommendation
(Report) of the United States Magistrate Judge suggesting to
the Court Defendant's decision be reversed and remanded
for further administrative action as detailed in the Report.
The Report was made in accordance with 28 U.S.C. § 636
and Local Civil Rule 73.02 for the District of South
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on October 17, 2017, and
Defendant filed her objections on October 31, 2017. The Court
has carefully considered the objections, but holds them to be
without merit. Therefore, it will enter judgment accordingly.
filed his application for DIB on March 26, 2014. He contends
his disability commenced on February 24, 2014. Defendant
denied Plaintiff's DIB application initially and upon
reconsideration. Plaintiff then requested a hearing before an
Administrative Law Judge (ALJ), which the ALJ conducted on
April 5, 2016. On April 19, 2016, the ALJ issued a decision
denying Plaintiff's claim. After the Appeals Council
denied Plaintiff's request for review of the ALJ's
decision, Plaintiff filed this action for judicial review on
August 24, 2016.
Agency has established a five-step sequential evaluation
process for determining if a person is disabled. 20 C.F.R.
§§ 404.1520(a), 416.920(a). The five steps are: (1)
whether the claimant is currently engaging in substantial
gainful activity; (2) whether the claimant has a medically
determinable severe impairment(s); (3) whether such
impairment(s) meets or equals an impairment set forth in the
Listings; (4) whether the impairment(s) prevents the claimant
from returning to his past relevant work; and, if so, (5)
whether the claimant is able to perform other work as it
exists in the national economy. 20 C.F.R. §§
Plaintiff's duty both to produce evidence and prove he is
disabled under the Act. See Pass v. Chater, 65 F.3d
1200, 1203 (4th Cir. 1995). Nevertheless, the ALJ has a duty
to fully develop the record and when he “fails in his
duty to fully inquire into the issues necessary for adequate
development of the record, and such failure is prejudicial to
the claimant, the case should be remanded.” Marsh
v. Harris, 632 F.2d 296, 300 (4th Cir. 1980).
also the task of the ALJ, not this Court, to make findings of
fact and to resolve conflicts in the evidence. Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “It
is not within the province of this [C]ourt to determine the
weight of the evidence; nor is it [the Court's] function
to substitute [its] judgment for that of [Defendant] if his
decision is supported by substantial evidence.”
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966). In other words, the Court “must sustain the
ALJ's decision, even if [it] disagree[s] with it,
provided the determination is supported by substantial
evidence.” Smith v. Chater, 99 F.3d 635, 638
(4th Cir. 1996). Under the substantial evidence standard, the
Court must view the entire record as a whole. See Steurer
v. Bowen, 815 F.2d, 1249, 1250 (8th Cir. 1987).
substantial evidence standard presupposes a zone of choice
within which the decisionmakers can go either way, without
interference by the courts. An administrative decision is not
subject to reversal merely because substantial evidence would
have supported an opposite decision.” Clarke v.
Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988) (citations
omitted) (internal quotation marks omitted) (alteration
objects to the Magistrate Judge's suggestion “the
ALJ failed to properly consider a partial disability rating
of the [Veterans Affairs (VA)], and failed to explain his
reasons for not giving it ‘substantial weight, ' in
accordance with . . . Bird v. Comm'r of Soc.
Sec., 699 F.3d 337 (4th Cir. 2012).” Objections
1-2. According to Defendant, “[t]he ALJ need not have
provided greater weight to a partial disability rating from
the [VA], generated under different rules, given mental
treatment records and lay evidence in the record that showed
a lack of significant functional deficits.”
Id. at 1.
Fourth Circuit held in Bird “the disability
determination of a state administrative agency is entitled to
consideration in an [Social Security Administration (SSA)]
disability proceeding. SSA directives have explained that the
SSA is required to consider all record evidence relevant to a
disability determination, including decisions by other
agencies. Bird, 699 F.3d at 343 (citation omitted).
“However, under the regulations implementing the Social
Security Act, although the SSA will accept another
agency's disability determination as evidence of a
claimant's condition, that agency's decision is not
binding on the SSA.” Id. (citation omitted).
But, such a “disability determination cannot be ignored
and must be considered.” Id. (citation
omitted) (internal quotation marks omitted).
specifically, the Fourth Circuit stated: when “making a
disability determination, the SSA must give substantial
weight to a VA disability rating.” Id.
Nevertheless, inasmuch as “the SSA employs its own
standards for evaluating a claimant's alleged disability,
and . . . the effective date of coverage for a claimant's
disability under the two programs likely will vary, an ALJ
may give less weight to a VA disability rating when the
record before the ALJ clearly demonstrates that such a
deviation is appropriate.” Id.
set forth the following statement regarding Plaintiff's
The undersigned has considered the [VA] rating of
[Plaintiff's] service connection/rated disabilities.
[Plaintiff] has a 60% disability rating from the [VA].
However, determinations of disability made by other agencies
are not binding on the [SSA] or determinative of disability
under Social Security Law. The laws defining
“disability” for military disability and
veteran's programs are based on a percentage schedule for
rating disabilities. That definition is not consistent with
the definition of “disability” in the ...