Heyward v. Berryhill

          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 ...