United States District Court, D. South Carolina
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
matter is before the Court for a Report and Recommendation
pursuant to Local Civil Rule 73.02(B)(2)(a), D.S.C., and 28
U.S.C. § 636(b)(1)(B). Plaintiff brought this action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to
obtain judicial review of a final decision of the
Commissioner of Social Security (“the
Commissioner”), denying Plaintiff's claims for
disability insurance benefits (“DIB”) and
supplemental security income
(“SSI”). For the reasons set forth below, it is
recommended that the decision of the Commissioner be reversed
and remanded for administrative action consistent with this
recommendation, pursuant to sentence four of 42 U.S.C. §
March 26, 2013, Plaintiff filed applications for DIB and SSI,
alleging an onset of disability date of December 15, 2011.
[R. 10, 210-23.] The claims were denied initially and on
reconsideration by the Social Security Administration
(“the Administration”). [R. 106, 108, 134-35.]
Plaintiff requested a hearing before an administrative law
judge (“ALJ”) and on February 11, 2015, ALJ Carl
B. Watson conducted a de novo hearing on Plaintiff's
claim. [R. 27-57.]
issued a decision on June 30, 2015, finding Plaintiff not
disabled under the Social Security Act (?the Act”). [R.
7-26]. At Step 1,  the ALJ found Plaintiff met the insured
status requirements of the Act through December 31, 2017, and
had not engaged in substantial gainful activity since
December 15, 2011, the alleged onset date. [R. 12, Findings
1 & 2.] At Step 2, the ALJ found Plaintiff had the
following severe impairments: status post right torn bicep
and rotator cuff surgery, status post right carpal tunnel
repair, and obesity. [R. 12, Finding 3.] The ALJ also found
Plaintiff had non-severe impairments of hypertension,
otalgia, labyrinthitis, cholecystectomy, and hyperlipidemia.
[R. 12-13.] At Step 3, the ALJ found that Plaintiff did not
have an impairment or combination of impairments that met or
medically equaled the severity of an impairment listed at 20
C.F.R. Part 404, Subpart P, Appendix 1. [R. 13, Finding 4.]
addressing Step 4, Plaintiff's ability to perform his
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 light work as defined in 20
CFR 404.1567(b) and 416.967(b) except that she cannot climb
ladders, ropes, or scaffolds; she can frequently but not
constantly push and pull with the right arm; she can
occasionally reach overhead, front, and laterally with the
right arm; she can perform frequent but not constant fine
manipulation with the right hand; and she must avoid working
at unprotected heights.
[R. 14, Finding 5.] Based on this RFC, the ALJ determined at
Step 4 that Plaintiff was unable to perform any of her past
relevant work as a corrections officer or mental retardation
specialist. [R. 18, Finding 6]. However, upon 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. 18, Finding 10.] Accordingly, the ALJ concluded that
Plaintiff had not been under a disability, as defined in the
Act, from December 15, 2011, through the date of this
decision. [R. 19, Finding 11.]
requested Appeals Council review of the decision, but the
Council declined review. [R. 1-5.] Plaintiff filed this
action for judicial review on January 25, 2017. [Doc. 1.]
contends the ALJ's decision is not supported by
substantial evidence and contains multiple legal errors
warranting the reversal and remand of the case. [Doc. 17.]
Specifically, Plaintiff argues the ALJ
Erred in his findings regarding Plaintiff's RFC
[id. at 12-20];
Failed to give proper weight to the opinions of
Plaintiff's treating and examining physicians regarding
the nature and severity of her impairments [id.];
Erred in relying on the testimony of the VE, as the
hypothetical question he posed to the VE did not include all
of Plaintiff's limitations as established by the record
[id. at 20-21]; and
Erred in finding that Plaintiff is not disabled, as the
Commissioner failed to carry her burden of proof at Step 5
that there are a significant number of jobs in the national
economy that Plaintiff can perform [id. at 21].
Commissioner contends the ALJ's decision is supported by
substantial evidence and should be affirmed. [Doc. 18.]
Specifically, the Commissioner contends substantial evidence
supports the ALJ's accordance of weight to the medical
source opinion evidence [id. at 19-26] and the
VE's testimony constitutes substantial evidence to
support the ALJ's decision that Plaintiff was not
disabled under the Act [id. at 26-27].
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
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. Comm'r, 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).
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).
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); Brenem 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.
Comm'r, 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
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). 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).
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 ...