United States District Court, D. South Carolina
Michael E. Downing, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.
Bruce H. Hendricks, United States District Judge
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.).
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.
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.
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.
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.
The Magistrate Judge's Report
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.
Judicial Review of a Final Decision
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
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).
The Commissioner's Final Decision
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
Mastro, 270 F.3d at 177 (citing 20 C.F.R. §
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.
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
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
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.
The Court's Review
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