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Downing v. Berryhill

United States District Court, D. South Carolina

March 13, 2018

Michael E. Downing, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.


          Hon. Bruce H. Hendricks, United States District Judge

         This is an action brought pursuant to 42 U.S.C. §§ 405(g) seeking judicial review of the Acting Commissioner of Social Security's (“Commissioner”) final decision, which denied Plaintiff Michael E. Downing's (“Plaintiff”) claim for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The record includes the report and recommendation (“Report”) of United States Magistrate Judge Paige J. Gossett, which was made in accordance with 28 U.S.C. § 636 (b)(1)(B) and Local Civil Rule 73.02(B)(2)(a) (D.S.C.).

         In her Report, which was filed on January 26, 2018, the Magistrate Judge recommends that the Court affirm the Commissioner's final decision denying benefits. Plaintiff filed objections to the Report, and the Commissioner filed a response to those objections. See 28 U.S.C. § 636(b)(1) (providing that a party may object, in writing, to a Magistrate Judge's Report within 14 days after being served a copy). For the reasons stated below, the Court respectfully declines to adopt the Magistrate Judge's Report and instead remands this matter for further evaluation consistent with this order.


         Plaintiff applied for DIB and SSI in August of 2009, alleging disability beginning on November 1, 1998. His applications were denied initially and upon reconsideration, and he requested a hearing before an administrative law judge (“ALJ”). A video hearing was held on February 29, 2012, at which Plaintiff, who was represented by counsel, appeared and testified.

         After hearing testimony from a vocational expert (“VE”), the ALJ issued a decision on April 6, 2012, finding that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review, and Downing appealed to the United States District Court. Upon motion of the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g), the District Court reversed the ALJ's decision and remanded Plaintiff's case, specifically directing the ALJ to: (1) further consider the severity and effects of Plaintiff's mental impairments; (2) further consider the opinions of the examining and nonexamining sources in Exhibits 10F, 11F, and 23F; (3) further evaluate Plaintiff's residual functional capacity (“RFC”) taking into consideration all of Plaintiff's medically determinable impairments; (4) if necessary, obtain supplemental testimony from a VE; and (5) issue a new decision. The Appeals Council issued an order on December 4, 2014, remanding the matter for further proceedings consistent with the order of the District Court. A different ALJ held a supplemental hearing on February 11, 2016, and Plaintiff, who was represented by the same counsel, appeared again and testified. This ALJ also heard testimony from a VE and issued a decision on June 29, 2016, finding that Plaintiff was not disabled.[1]

         Plaintiff was born in 1976 and was 21 years old on his alleged disability onset date. He has a ninth grade education and past relevant work experience as a sander and floor finisher, a mover, a plumber's helper, a mechanic, an electrician's helper, and an assembly worker. Downing alleged disability due to attention deficit disorder, bipolar disorder, severe anxiety disorder, and back issues.


         I. The Magistrate Judge's Report

         The Court conducts a de novo review to those portions of the Report to which a specific objection is made, and this Court may accept, reject, or modify, in whole or in part, the recommendations contained in the Report. 28 U.S.C. § 636(b)(1). Any written objection must specifically identify the portion of the Report to which the objection is made and the basis for the objection. Id.

         II. Judicial Review of a Final Decision

         The federal judiciary plays a limited role in the administrative scheme as established by the Social Security Act. Section 205(g) of the Act provides that “[t]he findings of the Commissioner of Social Security, as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). “Consequently, judicial review . . . of a final decision regarding disability benefits is limited to determining whether the findings are supported by substantial evidence and whether the correct law was applied.” Walls v. Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). “Substantial evidence” is defined as:

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.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebreeze, 368 F.2d 640, 642 (4th Cir. 1966)). In assessing whether substantial evidence exists, the reviewing court should not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of” the agency. Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (alteration in original).


         I. The Commissioner's Final Decision

         The Commissioner is charged with determining the existence of a disability. The Social Security Act, 42 U.S.C. §§ 301-1399, defines “disability” 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 result in death or which has lasted or can expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). This determination involves the following five-step inquiry:

[The first step is] whether the claimant engaged in substantial gainful employment. 20 C.F.R. § 404.1520(b). If not, the analysis continues to determine whether, based upon the medical evidence, the claimant has a severe impairment. 20 C.F.R. § 404.1520(c) If the claimed impairment is sufficiently severe, the third step considers whether the claimant has an impairment that equals or exceeds in severity one or more of the impairments listed in Appendix I of the regulations. 20 C.F.R. § 404.1520(d); 20 C.F.R. Part 404, subpart P, App. I. If so, the claimant is disabled. If not, the next inquiry considers if the impairment prevents the claimant from returning to past work. 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a) If the answer is in the affirmative, the final consideration looks to whether the impairment precludes that claimant from performing other work.

Mastro, 270 F.3d at 177 (citing 20 C.F.R. § 416.920).

         If the claimant fails to establish any of the first four steps, review does not proceed to the next step. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993). The burden of production and proof remains with the claimant through the fourth step. However, if the claimant successfully reaches step five, then the burden shifts to the Commissioner to provide evidence of a significant number of jobs in the national economy that the claimant could perform, taking into account the claimant's medical condition, functional limitations, education, age, and work experience. Walls, 296 F.3d at 290.

         At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity since his alleged onset date of November 1, 1998. Next, the ALJ determined that Plaintiff's status-post cervical and lumbar spine; depressive disorder, not otherwise specified; and generalized anxiety disorder, not otherwise specified, were severe impairments. However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). With regard to residual functional capacity (“RFC”), the ALJ found that Plaintiff could:

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with the following additional limitations: the claimant can never climb ladders/ropes/scaffolds, kneel crawl, or balance on slippery or moving surfaces. He can occasionally climb ramps/steps, stoop and crouch. He can never reach overhead with either arm. He must avoid all exposure to extreme cold/heat, wetness, humidity, respiratory irritants and workplace hazards such as operating moving machinery or unprotected heights. He can perform simple, routine tasks in a low-stress work environment with no fast-paced production requirements, only simple work related decisions, few, if any workplace changes and occasional interaction with the public.

(Tr. 599-600; ECF No. 17-12 at 38-39.) The ALJ found that Plaintiff was unable to perform his past relevant work, but that, considering his age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Downing could perform. Therefore, the ALJ found that Plaintiff was not disabled from the alleged onset date of November 1, 1998, through the date of the decision.

         The Appeals Council denied Plaintiff's request for review on June 29, 2016, making the decision of the ALJ the final decision of the Commissioner. Plaintiff filed this action on October 27, 2016, seeking judicial review.

         II. The Court's Review[2]

         In his brief, Plaintiff first asserts that the ALJ did not explain her RFC findings in accordance with Social Security Ruling 96-8p. (ECF No. 10 at 23.) Specifically, Plaintiff asserts that the ALJ's decision fails to properly consider the evidence regarding Plaintiff's lumbar spine and resulting limitations including his need to use a cane for support. Next, Plaintiff asserts that the ALJ did not perform the analysis of treating and evaluating physician opinions as required by 20 C.F.R. § 404.1527(d)(1)-(6), S.S.R. 96-2p ...

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