United States District Court, D. South Carolina, Anderson/Greenwood Division
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
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).
December 29, 2014, Plaintiff filed an application for DIB,
alleging an onset of disability date of August 10,
2010. [R. 170-71; see R. 8.] Plaintiff
subsequently amended his alleged onset date to October 18,
2014. [R. 34.] The claim was denied initially and on
reconsideration by the Social Security Administration (?the
Administration”). [R. 56-90, 93-96.] Plaintiff
requested a hearing before an administrative law judge
(“ALJ”) and on March 3, 2016, ALJ Ethan Chase
conducted a de novo hearing on Plaintiff's claim. [R.
31-53.] The ALJ issued a decision on March 28, 2016, finding
Plaintiff not disabled. [R. 5-21.]
the ALJ found that Plaintiff meets the insured status
requirements of the Act through December 31, 2019, and has
not engaged in substantial gainful activity since August 10,
2010, the alleged onset date. [R. 10, Findings 1 and 2.] At
Step 2, the ALJ determined that Plaintiff had the following
severe impairments: anxiety and affective disorders, and
asthma. [R. 10, Finding 3.] The ALJ also found that Plaintiff
had non-severe impairments of hyperlipidemia, varicose veins,
melanocytic nevi, allergic rhinitis, upper respiratory
infections, bronchitis, obesity, vertigo, and hand
laceration. [R. 10.] 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 C.F.R. Part 404, Subpart P, Appendix
1. [R. 11, 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, I find that
the claimant has the residual functional capacity to perform
medium work as defined in 20 CFR 404.1567(c) except the
claimant must avoid concentrated exposure to extreme
temperatures and respiratory irritants; perform simple
routine tasks with no fast-paced production requirements;
have no more than superficial interaction with the public and
co-workers; and should not have to engage or work in team
tasks with coworkers.
[R. 13, Finding 5.] Based on this RFC, the ALJ determined at
Step 4 that Plaintiff was unable to perform his past relevant
work as a project manager and IT Director. [R. 16, Finding
6.] However, based on Plaintiff's age, education, work
experience, RFC, and vocational expert (“VE”)
testimony, the ALJ determined that there were jobs that
existed in significant numbers in the national economy that
Plaintiff could perform. [R. 16, Finding 10.] Accordingly,
the ALJ concluded that Plaintiff had not been under a
disability, as defined in the Act, from August 10, 2010, the
alleged onset date, through the date of the decision. [R. 17,
requested Appeals Council review of the ALJ's decision,
but the Appeals Council declined review. [R. 2-4.] Plaintiff
filed this action for judicial review on October 17, 2016.
contends the case should be remanded. [Doc. 16.]
Specifically, Plaintiff alleges the ALJ failed to properly
consider Plaintiff's VA impairment rating. [Id.
at 5-7.] The Commissioner contends the ALJ's decision
should be affirmed because substantial evidence supports the
decision. [Doc. 17.] Specifically, the Commissioner asserts
that the ALJ carefully considered the VA's rating
decision and appropriately found that it deserved little
weight. [Id. at 5-11.]
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 ...