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Stettler v. Berryhill

United States District Court, D. South Carolina, Anderson/Greenwood Division

May 22, 2018

Ingrid Maria Stettler, Plaintiff,
v.
Nancy A. Berryhill, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         This 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).[1] Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”), denying Plaintiff's claim for disability insurance benefits (“DIB”). 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. § 405(g).

         PROCEDURAL HISTORY

         On February 13, 2014, Plaintiff protectively filed an application for DIB alleging disability beginning May 30, 2009. [R. 212-220.] The claim was denied initially [R. 147-151] and on reconsideration [157-164] by the Social Security Administration (“the Administration”). Plaintiff requested a hearing before an administrative law judge (“ALJ”) and on August 25, 2016, ALJ Joseph Booth, III, conducted a de novo hearing on Plaintiff's claims. [R. 57-108].

         The ALJ issued a decision on October 11, 2016, finding Plaintiff has not been under a disability within the meaning of the Social Security Act (“the Act”) from May 30, 2009, the alleged onset date, through December, 31, 2014, the date last insured. [R. 21-45.] At Step 1, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2014, and had not engaged in substantial gainful activity during the period from her alleged onset date of May 30, 2009 through her date last insured of December 31, 2014. [R. 23, Findings 1 & 2.] At Step 2, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease, right hip benign bone cyst, right shoulder bursitis with spur, major depressive disorder, and generalized anxiety disorder. [R. 24, Finding 3.] The ALJ also noted Plaintiff suffers from fibromyalgia and headaches without aura, but found these impairments to be non-severe. [R. 24.] The ALJ noted that Plaintiff had impairments of carpel tunnel syndrome affecting the left upper extremity, capsular contracture of the bilateral breasts, and tinnitus, which were diagnosed after the date last insured, but were considered in evaluating the RFC. [R. 25.]

         At Step 3, the ALJ determined 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 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526). [R. 25, Finding 4.] Before addressing Step 4, the ALJ determined Plaintiff had the following residual functional capacity (“RFC”):

through the date last insured, the claimant had the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except as limited by the following. The claimant was not limited in her ability to use step ladders, defined as ladders with a height of no more than four vertical feet, but she could never climb ladders above that height and never climb ropes or scaffolds of any height. She could frequently climb ramps and stairs. The claimant could frequently balance, stoop, kneel, crouch, and crawl. The claimant could frequently reach, including reach overhead, with the right dominant upper extremity, and she could frequently finger with the left upper extremity. The claimant could frequently be exposed to unprotected heights, extreme cold, extreme heat, and vibration. She could work in an environment where she was exposed to loud noise levels. The claimant could not perform production rate pace work, such as assembly line work, and she was limited to no more than frequent changes to the work setting and the manner/method of performing work. Any time that the claimant was off-task would have been accommodated by normal breaks.

[R. 26-27, Finding 5.]

         At Step 4, the ALJ determined that Plaintiff was capable of performing her past relevant work as an animal caretaker and sales person-general merchandise. [R. 32, Finding 6.] Alternatively, 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 No. in the national economy that Plaintiff could perform. [R. 33-34.] Consequently, the ALJ determined that Plaintiff had not been under a disability as defined by the Act from May 30, 2009, through December 31, 2014, the date last insured. [R. 34, Finding 7.]

         Plaintiff requested Appeals Council review of the ALJ's decision and the Council declined review. [R. 1-7.] Plaintiff filed this action for judicial review on March 30, 2017. [Doc. 1.]

         THE PARTIES' POSITIONS

         Plaintiff argues that her case should be remanded because, given her restrictions, a finding of disability is apparent under the Medical Vocational Guidelines. [Doc. 17.] Plaintiff contends the ALJ erred in considering her RFC because he failed to consider her insomnia and fatigue [id. at 21-24]; failed to properly account for her moderate limitations in concentration, persistence and pace [id. at 24-28]; failed to properly consider her complaints of joint pain [id. at 28-29]; and failed to adequate weigh the medical opinions in evidence [id. at 30-37]. Plaintiff seeks a remand directing the ALJ to evaluate the issue of disability prior to age 55. [Id. at 38.]

         The Commissioner argues, however, that the ALJ's decision is supported by substantial evidence. [Doc. 18.] The Commissioner contends the ALJ adequately considered Plaintiff's subjective complaints related to fibromyalgia, including fatigue and insomnia [id. at 13-16]; adequately accounted for her moderate limitations in concentration, persistence and pace [id. at 16-18]; accounted for all of Plaintiff's physical limitations in the RFC findings [id. at 18-19]; and properly weighed the medical opinions in the record [id. at 19-23].

         STANDARD OF REVIEW

         The 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 ‘substantial evidence.'”).

         Where 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. Commissioner, 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).

         The 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).

         The 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, 690-91 (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. Commissioner, 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 (1991)).

         In 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).[2] 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).

         APPLICABLE LAW

         The Act 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 ...


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