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Williams v. Berryhill

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

January 31, 2018

Tamekoe Yolanda Williams, Plaintiff,
Nancy A. Berryhill, [1]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).[2] 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 claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).[3] 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).


         On October 14, 2010, Plaintiff filed applications for DIB and SSI, alleging an onset of disability date of August 13, 2008. [R. 262-272.] The claims were denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 164-67.] Plaintiff requested a hearing before an administrative law judge (“ALJ”) and on March 20, 2012, ALJ Maria C. Northington conducted a de novo hearing on Plaintiff's claim. [R. 95-139.]

         The ALJ issued a decision on May 11, 2012, finding Plaintiff not disabled under the Social Security Act (?the Act”). [R. 170-88]. Plaintiff requested Appeals Council review of the ALJ's decision, and the Appeals Council granted review and remanded the matter to the ALJ for resolution of the following issue:

The decision does not contain an adequate evaluation of the opinion from the claimant's treating physician, Thomas Oliver. M.D. On March 14, 2012, Dr. Oliver opined the claimant should elevate her left leg at least waist high 20 minutes out of every 2 hours whenever seated (Exhibit 12F). Additionally, an audit of the hearing revealed that the vocational expert testified there would be no jobs the claimant could perform if this opinion was adopted. Thus, further consideration of Dr. Oliver's opinion is necessary.

[R. 190.] Further, the Appeals Council directed that, on remand, the ALJ would:

• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). In so doing, evaluate the treating source opinion pursuant to the provisions of 20 CFR 404.1527 and 416.927 and Social Security Rulings 96-2p and 96-5p, and explain the weight given to such opinion evidence. As appropriate, the Administrative Law Judge may request the treating source to provide additional evidence an/or further clarification of the opinion (20 CFR 404.1512 and 416.912).
• If warranted by the expanded record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).

[R. 190-91.] On September 22, 2014, ALJ Alice Jordan conducted a hearing on Plaintiff's claim. [R. 36-81.]

         The ALJ issued a decision on November 10, 2014, finding Plaintiff not disabled under the Act. [R. 15-35]. At Step 1, [4] the ALJ found Plaintiff met the insured status requirements of the Act through September 30, 2013, and had not engaged in substantial gainful activity since August 13, 2008, the alleged onset date. [R. 21, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: left leg lymphedema. [R. 21, Finding 3.] The ALJ also found Plaintiff had non-severe impairments of obesity and depression and anxiety. [R. 23-24.] At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1. [R. 25, Finding 4.]

         Before addressing Step 4, Plaintiff's ability to perform his past relevant work, the ALJ found 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 sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can lift 10 pounds occasionally and less than 10 pounds frequently; she can sit for 6 hours and stand or walk for 2 hours in an 8-hour workday; she must elevate her left leg for 15 minutes every 2 hours; she cannot climb ladders, ropes or scaffolds; she can occasionally crouch, kneel, crawl, and climb ramps or stairs; she can frequently balance and stoop; and she must avoid concentrated exposure to hazards.

[R. 25, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform any of her past relevant work as a fast food worker, forklift driver, or machine operator. [R. 27, Finding 6]. However, upon considering Plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert (“VE”), 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 August 13, 2008, through the date of this decision. [R. 28, Finding 11.]

         Plaintiff requested Appeals Council review of the decision and submitted additional evidence, which was made a part of the record [R. 6, 424-28], but the Council declined review [R. 1-6]. Plaintiff filed this action for judicial review on November 15, 2016. [Doc. 1.]


         Plaintiff contends the ALJ's decision is not supported by substantial evidence and contains multiple legal errors warranting the reversal and remand of the case. [Doc. 17.] Specifically, Plaintiff argues the ALJ erred by

1. Assigning only little weight to the medical source opinion of Plaintiff's treating psychiatrist, Dr. Dana Wiley, without evaluating the factors required by 20 C.F.R. §§ 404.1527, 416.927 [id. at 17-22];
2. Assigning only limited weight to the medical source opinion of Plaintiff's treating vascular physician, Dr. Thomas Oliver, without evaluating the factors required by §§ 404.1527, 416.927 [id. at 22-24];
3. Failing to follow the ?slight abnormality” standard in finding that Plaintiff's depression was not a severe impairment [id. at 24-25];
4. Failing to comply with SSR 96-7p to reject Plaintiff's testimony regarding the severity of her symptoms and limitations [id. at 25-31];
5. Failing to comply with 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3) and SSR 96-7p by not mentioning or evaluating the supportive lay testimony of Plaintiff's mother [id. at 31-34]; and
6. Ignoring the vocational expert's testimony at the hearing that there was no work that Plaintiff can perform upon a proper consideration of all her limitations [id. at 34-35].

         The Commissioner contends the ALJ's decision is supported by substantial evidence and should be affirmed. [Doc. 19.] Specifically, the Commissioner contends substantial evidence supports the ALJ's accordance of weight to the opinions of Dr. Wiley and Dr. Oliver [id. at 13-22] and the ALJ's analysis of Plaintiff's non-severe mental impairments [id. at 22-24], credibility [id. at 24-26], lay witness testimony [id. at 26-28], and nondisability determination [id. at 28-30.]


         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 & LightCo. 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 ...

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