United States District Court, D. South Carolina, Anderson/Greenwood Division
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) 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. §
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].
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.]
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
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.]
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.]
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.]
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.]
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
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. 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).
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, 690-91
(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)).
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 ...