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Goodrich v. Berryhill

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

February 20, 2018

Sylvia Jean Goodrich, Plaintiff,
v.
Nancy A. Berryhill,[1] Acting Commissioner of Social Security, Defendant.

          ORDER

          Jacquelyn D. Austin United States Magistrate Judge

         This matter is before the Court for a final Order pursuant to Local Civil Rules 73.02(B)(1) and 83.VII.02, D.S.C.; 28 U.S.C. § 636(c); the parties' consent to disposition by a Magistrate Judge [Doc. 4]; and the Order of reference signed by the Honorable Timothy M. Cain on November 8, 2016 [Doc. 8]. 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, the decision of the Commissioner is reversed and remanded for administrative action consistent with this recommendation, pursuant to sentence four of 42 U.S.C. § 405(g).

         PROCEDURAL HISTORY

         In July 2012, Plaintiff filed an application for DIB, alleging an onset of disability date of January 4, 2011. [R. 172-78.] The claim was denied initially and on reconsideration by the Social Security Administration (“the Administration”). [R. 75-76, 94-95.] Plaintiff requested a hearing before an administrative law judge (“ALJ”), and on April 2, 2015, ALJ Mary Ann Poulose conducted a de novo video hearing on Plaintiff's claims. [R. 31-62.]

         The ALJ issued a decision on July 31, 2015, finding Plaintiff not disabled under the Social Security Act (?the Act”). [R. 8-29.] At Step 1, [2] the ALJ determined that Plaintiff met the insured status requirements of the Act through September 30, 2015, and had not engaged in substantial gainful activity since January 4, 2011, the alleged onset date. [R. 13, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: status-post left knee meniscectomy, osteoarthritis of the left knee, obesity, carpal tunnel syndrome, and diabetes mellitus with polyneuropathy. [R. 13, Finding 3.] The ALJ also noted Plaintiff had the following non-severe impairments: depression and anxiety, severe ischemic cardiomyopathy, diffuse diabetic triple vessel disease with incomplete revascularization, hyperlipidemia, degenerative changes of the cervical spine, migraine headaches, and tinnitus. [R. 13-15.] Finally, the ALJ noted that Plaintiff's alleged sciatica, neurogenic bladder, metabolic syndrome, and diabetic retinopathy constituted non-medically determinable impairments. [R. 15.] 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. 15, Finding 4.]

         Before addressing Step 4, Plaintiff's ability to perform her past relevant work, the ALJ found 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 sedentary work as defined in 20 CFR 404.1567(a) except only occasional balancing, stooping, kneeling, crouching, climbing, and crawling, with no climbing ladders, ropes, or scaffolds, and no operation of foot controls, permitting frequent but not constant handling and fingering with the upper extremities bilaterally.

[R. 16, Finding 5.] Based on this RFC, the ALJ determined at Step 4 that Plaintiff was unable to perform her past relevant work as a unit clerk, nurse assistant, or scale clerk. [R. 20, Finding 6.] However, 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. 21, Finding 10.] Thus, on that basis, the ALJ determined that Plaintiff had not been under a disability, as defined in the Act, from January 4, 2011, through the date of the decision. [R.22, Finding 11.]

         Plaintiff requested Appeals Council review of the ALJ's decision but the Council declined review. [R. 1-4.] Plaintiff filed this action for judicial review on November 7, 2016. [Doc. 1.]

         THE PARTIES' POSITIONS

         Plaintiff argues that substantial evidence does not support the ALJ's decision, and thus, this Court should reverse the decision and award Plaintiff benefits. [Doc. 19.] Specifically, Plaintiff argues the ALJ erred by (1) failing to properly evaluate the effects of Plaintiff's obesity under SSR 02-1p [id. at 20-22]; (2) failing to adequately explain how the RFC is consistent with the medical and other evidence, including failing to consider all of Plaintiff's impairments in the RFC [id. at 22-28]; and (3) failing to properly weigh the opinions of Plaintiff's treating physicians [id. at 28-31].

         The Commissioner, on the other hand, contends that substantial evidence supports the ALJ's decision. [Doc. 23.] The Commissioner specifically argues that substantial evidence supports the ALJ's step two analysis [id. at 11-14] and RFC analysis [id. at 14-17] and that the ALJ appropriately weighed the opinion evidence [id. at 17-20].

         STANDARD OF REVIEW

         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. Commissioner, 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. Commissioner, 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 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).[3] 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).

         APPLICABLE LAW

         The Act 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).

         I. The Five Step Evaluation

         To 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).

         A. Substantial Gainful Activity

         “Substantial gainful activity” must be both substantial-involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a)-and gainful-done for pay or profit, whether or not a profit is realized, id. ยง 404.1572(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, he is ...


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