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 28
U.S.C. § 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
claims 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).
March 2012, Plaintiff filed an application for DIB alleging
an onset of disability date of January 1, 2010. [R. 140-46.]
The claim was denied initially and on reconsideration by the
Social Security Administration (“the
Administration”). [R. 58-86, 89-92.] Plaintiff
requested a hearing before an administrative law judge
(“ALJ”), and on March 26, 2014, ALJ Todd Jacobson
conducted a de novo hearing on Plaintiff's claim. [R.
34-57.] The ALJ issued a decision on June 6, 2014, finding
Plaintiff not disabled under the Social Security Act (?the
Act”). [R. 18-33.]
the ALJ determined that Plaintiff met the insured status
requirements of the Social Security Act (“the
Act”) through December 31, 2015, and had not engaged in
substantial gainful activity since January 1, 2010, the
alleged onset date. [R. 23, Findings 1 & 2.] At Step 2,
the ALJ found Plaintiff had the following severe impairments:
cervical and lumbar degenerative disc disease, radiculopathy,
myofascial pain, carpal tunnel syndrome, and obesity. [R. 23,
Finding 3.] The ALJ also found Plaintiff had non-severe
impairments of diabetes and hypertension. [R. 23.] At Step 3,
the ALJ determined that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled
the severity of an impairment listed in 20 CFR Part 404,
Subpart P, Appendix 1. [R. 23, Finding 4.]
addressing Step 4, Plaintiff's ability to perform his
past relevant work, the ALJ found that Plaintiff retained the
following residual functional capacity (“RFC”):
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) with no more than frequent handling and
fingering bilaterally; can never climb ladders; can
frequently climb stairs, balance, stoop, crouch, kneel, and
crawl; with no concentrated exposure to hazards such as
moving machinery or unprotected heights, or cold; further
limited to unskilled work.
[R. 24, Finding 5.] Based on this RFC, the ALJ determined at
Step 4 that Plaintiff was unable to perform his past relevant
work as a material handler and industrial truck forklift
operator. [R. 27-28, Finding 6.] However, considering
Plaintiff's age, education, work experience, RFC, and
vocational expert (“VE”) testimony, the ALJ found
that there were jobs that existed in significant numbers in
the national economy that Plaintiff could perform. [R.28,
Finding 10.] Accordingly, the ALJ concluded that Plaintiff
had not been under a disability, as defined in the Act, from
January 1, 2010, through the date of the decision. [R. 29,
requested Appeals Council review of the ALJ's decision,
but the Council declined review. [R. 1-7.] Plaintiff filed
this action for judicial review on October 3, 2016. [Doc. 1.]
argues that substantial evidence does not support the
ALJ's decision and that the case should be remanded for
resolution of the issues raised in Plaintiff's brief.
[Doc. 18.] Specifically, Plaintiff argues the ALJ erred by
failing to properly explain the weight assigned to opinion
evidence [id. at 14-22]; by failing to explain the
findings regarding Plaintiff's RFC, as required by SSR
96-8p [id. at 22-25]; and by failing to properly
evaluate Plaintiff's credibility [id. at 25-29].
Commissioner contends that substantial evidence supports the
ALJ's decision. [Doc. 21.] The Commissioner specifically
argues that the ALJ properly weighed the medical opinion
evidence [id. at 9-12]; that the ALJ's RFC
assessment is supported by the record evidence [id.
at 12-13]; and that substantial evidence supports the
ALJ's credibility assessment [id. at 13-15].
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 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)).
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 that the claimant can perform,
considering the claimant's age, education, and work
experience. Grant, 699 F.2d at 191. If at any step
of the evaluation the ALJ can find an individual is disabled
or not disabled, further inquiry is unnecessary. 20 C.F.R.
§ 404.1520(a); Hall v. Harris, 658 F.2d 260,
264 (4th Cir. 1981).