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Beard v. Berryhill

United States District Court, D. South Carolina, Anderson/Greenwood Division

November 29, 2017

James Edward Beard, Jr, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          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 28 U.S.C. § 636(b)(1)(B).[1] Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claim for social security insurance benefits (“SSI”).[2] 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).


         In March 2013, Plaintiff filed an application for SSI, alleging an onset of disability date of December 16, 2012 [R. 221-37], which was later amended to March 27, 2013 [R. 92-93]. The claim was denied initially and upon reconsideration by the Social Security Administration (“the Administration”). [R. 115-43, 146-49, 159-60.] Plaintiff filed a request for hearing before an Administrative Law Judge (“ALJ”), and on March 4, 2015, ALJ Sherman D. Schwartzberg conducted a video hearing on Plaintiff's claims. [R. 90-106.]

         The ALJ issued a decision on April 14, 2015, finding Plaintiff not disabled under the Social Security Act (“the Act”). [R. 74-84.] At Step 1, [3] the ALJ found Plaintiff had not engaged in substantial gainful activity since March 27, 2013, the application date. [R. 76, Finding 1.] At Step 2, the ALJ found Plaintiff had severe impairments of visual field constriction, status post clavicle fracture with chronic shoulder pain, and adjustment disorder and cognitive disorder from a traumatic brain injury. [R. 76, Finding 2.] At Step 3, the ALJ found Plaintiff did not have an impairment or combination of impairments that med or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 77, Finding 3.]

         Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found Plaintiff retained the following RFC:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform simple, routine, repetitive work at the light exertional level as defined in 20 CFR 416.967(b) which requires only occasional posturals[4] except for no climbing of ladders, ropes, or scaffolds. In addition, the claimant can occasionally perform overhead reaching bilaterally and should avoid concentrated exposure to hazards.

         [R. 77, Finding 4.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform his past relevant work as a heating/air installer/servicer. [R. 82, Finding 5.] However, based on Plaintiff's age, education, work experience, RFC, and the testimony of a vocational expert (?VE”), the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. [R. 82, Finding 9.] Accordingly, the ALJ concluded Plaintiff had not been under a disability, as defined in the Act, since March 27, 2013, the date the application was filed. [R. 83, Finding 10.]

         Plaintiff requested Appeals Council review of the ALJ's decision but the Appeals Council declined review. [R. 1-4.] Plaintiff filed the instant action for judicial review on September 26, 2016. [Doc. 1.]


         Plaintiff contends this case should be remanded. [Doc. 19.] Specifically, Plaintiff contends the ALJ

1. failed to properly account for Plaintiff's visual field constrictions in the hypothetical to the VE [id. at 10-13];
2. failed to explain his findings regarding Plaintiff's RFC as required by SSR 96-8p because the ALJ failed to account for moderate difficulties in concentration, persistence, and pace in assessing the RFC and failed to explain how he determined that Plaintiff could perform light work lifting requirements and occasionally lift overhead [id. 13-17]; and
3. failed to properly evaluate Plaintiff's credibility [id. at 17-20].

         The Commissioner contends the decision is supported by substantial evidence and should be affirmed. [Doc. 20.] Specifically, the Commissioner argues

1. substantial evidence supports the ALJ's assessment of Plaintiff's vision impairment [id. at 9-11];
2. the ALJ properly assessed Plaintiff's moderate concentration, persistence, or pace difficulties [id. at 11-12];
3. substantial evidence supports the ALJ's assessment of Plaintiff's left arm impairment [id. at 13-15]; and
4. substantial evidence supports the ALJ's well-founded credibility determination [id. at 15-17].


         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 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)).

         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 ...

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