United States District Court, D. South Carolina
ORDER AND OPINION
This
matter is before the court pursuant to Magistrate Judge
Jacquelyn D. Austin's Report and Recommendation
(“Report”), recommending that the
Commissioner's decision be affirmed and Plaintiff Herman
Heyward's claims for disability insurance benefits and
supplemental security income benefits be denied. (ECF No.
15.) For the reasons set forth below, the court
ACCEPTS the Magistrate Judge's Report
(id.).
I.
FACTUAL AND PROCEDURAL BACKGROUND
The
court concludes upon its own careful review of the record
that the factual and procedural summation in the Report (ECF
No. 15) is accurate; therefore, the court adopts this summary
as its own. The court will only recite herein procedures
pertinent to the court's review of the Report
(id.). On January 30, 2018, the Magistrate Judge
filed the Report (id.), and on February 13, 2018,
Plaintiff timely filed an objection (ECF No. 17). On February
27, 2018, the Commissioner replied to Plaintiff's
Objection (ECF No. 18).
II.
JURISDICTION
The
court has jurisdiction over this case pursuant to 42 U.S.C.
§ 405(g) which gives the court jurisdiction over a
review of a final decision of the Commissioner of Social
Security.
III.
LEGAL STANDARD
The
Magistrate Judge's Report is made in accordance with 28
U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(a) for the District of South Carolina. The
Magistrate Judge makes only a recommendation to this court,
which has no presumptive weight. The responsibility to make a
final determination remains with this court. See Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). The court is
charged with making a de novo determination of those
portions of the Report to which specific objections are made.
Fed.R.Civ.P. 72(b)(2)-(3).
The
role of the federal judiciary in the administrative scheme
established by the Social Security Act is a limited one.
Section 405(g) of the Act provides, “the 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). “Substantial evidence
has been defined innumerable times as more than a scintilla,
but less than a preponderance.” Thomas v.
Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). This
standard precludes a de novo review of the factual
circumstances that substitutes the court's findings for
those of the Commissioner. See Vitek v. Finch, 438
F.2d 1157 (4th Cir. 1971). The court must uphold the
Commissioner's decision as long as it is supported by
substantial evidence. See Blalock v. Richardson, 483
F.2d 773, 775 (4th Cir. 1972). “From this it does not
follow, however, that the findings of the administrative
agency are to be mechanically accepted. The statutorily
granted right of review contemplates more than an uncritical
rubber stamping of the administrative agency.”
Flack v. Cohen, 413 F.2d 278, 279 (4th Cir. 1969).
“[T]he courts must not abdicate their responsibility to
give careful scrutiny to the whole record to assure that
there is a sound foundation for the [Commissioner's]
findings, and that this conclusion is rational.”
Vitek, 438 F.2d at 1157-58.
IV.
ANALYSIS
The
parties were advised of their rights to file objections to
the Report. (ECF No. 15.) On February 13, 2018, Plaintiff
filed an objection. (ECF No. 17.) In his Objection, Plaintiff
asserts: (1) the Magistrate Judge's conclusion that the
Administrative Law Judge (“ALJ”) relied on
Vocational Expert (“VE”) testimony that there
were jobs available that Plaintiff could perform does not
address the portion of the rulings that allow an ALJ to rely
on the Medical Vocational Guidelines (“Grid”)
even if a VE cites available “medium-level” jobs;
and (2) in the evaluation of Plaintiff's credibility, the
Magistrate Judge: (a) failed to address the issue of cane use
and Plaintiff's reports of having fallen down several
times, and (b) wrongly concludes that any error made by the
ALJ concerning Plaintiff's daily living and work history
is harmless. (Id.)
Plaintiff's
first objection challenges the ALJ's determination that
there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform. (ECF No. 17 at
2.) Specifically, Plaintiff asserts that the ALJ failed to
explain why he did not consider the Grid, which
“provides that someone who is close to meeting a table
rule for “disabled” should be found disabled even
if there is a small fraction of work that can be performed at
a higher exertional level. (Id.)
The
court finds that the Magistrate Judge adequately explained
why the ALJ rightly did not rely on the Grid. When a
non-exertional limitation rises to the level that it affects
a plaintiff's ability to perform work, even though he has
the exertional capability to perform those jobs, reliance on
the Grid to determine whether the plaintiff is disabled is
precluded. (ECF No. 15 at 18.) Rather, in those
circumstances, the Commissioner has the burden to prove by
expert vocational testimony, and not the Grid, that despite
Plaintiff's combination of exertional and non-exertional
impairments, specific jobs exist in the national economy that
the plaintiff can perform. Grant v. Schweiker, 699
F.2d 189, 192 (4th Cir. 1983); see also Walker v.
Bowen, 889 F.2d 47, 49 (4th Cir. 1989). Where, as here,
Plaintiff's Residual Functional Capacity Assessment
(“RFC”) contains a combination of exertional and
non-exertional limitations, Social Security Ruling 84-14
provides guidance for evaluating the effect of the additional
limitations on the occupational base in question.
Social
Security Ruling 83-14 “clarifies the distinction
between exertional and non-exertional limitations and
explains how the latter affect performance of work
activities.” SSR 83-14, 1983 WL 31254, at *1 (S.S.A.
Jan. 1, 1983). This ruling instructs that “[a]fter it
has been decided that an impaired person can meet the primary
strength requirements of sedentary, light, or medium work -
sitting, standing, walking, lifting, carrying, pushing, and
pulling - a further decision may be required as to how much
of this potential occupational base remains, considering
certain non-exertional limitations which the person may also
have.” Id. at *2. The ruling acknowledges that
certain non-exertional limitations - such as an inability to
use the finger tips to sense the temperature or texture of an
object - may have very little effect on the potential
unskilled medium occupational base. Id. at *5.
However, the ruling explains that other non-exertional
limitations - such as the need to avoid environments which
contain objects or substances commonly known to exist in most
workplaces - can significantly affect the medium occupational
base. Id. For those cases in between the examples
described, the ruling states that “a decision maker
will often require the assistance of a [VE]” to
determine how the additional non-exertional limitation
affects the medium occupational base. Id. at *6;
see SSR 83-12, 1983 WL 31253 (S.S.A. Jan. 1, 1983)
(explaining how disability determination using the Grid is
based on a claimant's remaining occupational base).
Here,
the ALJ found that Plaintiff's “ability to perform
all or substantially all of the requirements of [medium] work
has been impeded by additional limitations.” (ECF No.
7-2 at 19.) To determine the extent to which these
limitations eroded the unskilled medium occupational base,
the ALJ used a VE. (Id.) The ALJ posed hypotheticals
to the VE. (ECF No. 15 at 19.) The first hypothetical asked
the VE to assume a hypothetical individual of ...